Monitoring working time and Working Time Directive 2003/88/EC: A purposive approach

Monitoring working time and the Court of Justice: a teleological approach

The issue of measuring working time—albeit not unprecedented in the legislation of Member States—has become crucial by virtue of the Court of Justice of the European Union's decision of 14 May 2019, C-55/18, CCOO. ¹

In its judgment, the Court continued to consolidate the protective function enshrined in the Working Time Directive 2003/88/EC. ² Again, the Directive's underlying rationale guided the Court's interpretation of numerous provisions and the determination of an effective balance between the different interests involved.

As it is not necessary here to dwell in detail on already well-known issues, it hence suffices to recall the settled case law according to which ‘the purpose of Directive 2003/88 is to lay down minimum requirements intended to improve the living and working conditions of workers through approximation of national rules concerning, in particular, the duration of working time. That harmonisation at European Union level in relation to the organisation of working time is intended to guarantee better protection of the safety and health of workers by ensuring that they are entitled to minimum rest periods - particularly daily and weekly - and adequate breaks and by providing for a ceiling on the average duration of the working week’. ³

A teleological approach has been taken for quite some time based on Article 31(2) of the EU Charter of Fundamental Rights, which provides that ‘Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave’. Directive 2003/88, which implements this fundamental right, must be interpreted in the light of this provision in the EU Charter. ⁴

The judgment in Case CCOO confirms the importance of this teleological approach. In its decision, the Court addressed the very essence of protection (or alternatively, respect for the ‘essence’ of the fundamental right in question), namely, the measurement of working time. ⁵

It is a fact that the Directive (but also the EU Charter of Fundamental Rights) does not contain an express provision on measuring working time. Nor does it refer—unlike in other instruments of EU law—to specific obligations to keep records on working time up to date, ⁶ with the exception of obligations associated with the opting-out clause, which gives Member States the right to refrain from applying the average working time to each seven-day period, including overtime, provided that the conditions set out in Article 22 are respected. Among these conditions is the requirement for the employer to keep the records of all workers to whom the derogation applies up to date (c) and to place those records at the disposal of the competent authorities (d).

Nevertheless, in Case C-55/18, CCOO the Court concluded that the measurement of working time is essential for guaranteeing achievement of the Directive's objectives (consisting, in fact, of ensuring the effective protection of workers’ living and working conditions and better protection of their health and safety).

The Court's argument, which broadly reproduced the opinion of AG Pitruzzella, is clear: the Member States certainly have discretion in their choice of ‘necessary measures’ to ensure compliance with the minimum daily and weekly rest periods and the maximum weekly working time provided for in the Directive; taking into account its purpose, the chosen instrument cannot be ‘liable to render the rights enshrined in Articles 3, 5 and 6(b) of that Directive meaningless’. ⁷

To fully and effectively guarantee these rights, Member States ‘must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured’. This, in fact, is the only way to verify actual respect of those rights, not only by employers and workers, but also by supervisory bodies. ⁸

This conclusion, based on an already decisive argument, is further corroborated by Directive 89/391, the provisions of which fully apply to the matters covered by Directive 2003/88, without prejudice to more stringent and/or specific provisions contained therein. ⁹

According to the Court, in fact, ‘the introduction of an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured’ is also necessary to enable worker representatives, who have a specific responsibility for the protection of workers’ safety and health, to exercise their right to ask the employer to take appropriate measures and to submit proposals to reduce any risk to workers and/or to eliminate the causes of said risk(s). ¹⁰

The outcome of the Court's reasoning may neither be undermined by the risk of an unjustified interference of the employer in the worker's private life nor by concerns about practical obstacles which such a measurement might represent in terms of business costs.

As regards the first aspect (risk of unjustified interference of the employer in the worker's private life), the CCOO ruling only offered a passing remark when describing the dispute in the main proceedings and the questions referred for a preliminary ruling ¹¹ and, possibly, an implicit reference in so far as it recalled—albeit on a different matter—the Court's judgment in Case C-342/12, Worten, ¹² which the Advocate General instead emphasised in his Opinion.

In view of this precedent, it is indisputable that a record which contains information on the start and end time of a worker's working hours, including any interruptions or breaks, falls within the scope of ‘personal data’ for the purposes of EU law. The Court rejected the notion that the employer's obligation to provide the national authority responsible for monitoring working conditions immediate access to those records, ‘is, in practice, incompatible with the obligation to establish an adequate system of protection of the personal data contained in that record’. In fact, the person responsible for processing personal data has the obligation to implement ‘appropriate technical and organisational measures to ensure that only those persons duly authorised to access the personal data in question are entitled to respond to a request for access from a third party’. ¹³ Consequently, the rights associated with the processing of workers’ personal data, far from representing an obstacle to the measurement of working time for the purposes of protecting the rights to rest periods and to maximum working time limits, entail the employer's obligation to ‘only use the data available in the record in a lawful manner and must grant access only to persons who have a legitimate interest’. ¹⁴

As regards the second aspect (costs resulting from the establishment of a suitable system to measure working time), a careful consideration of the objectives of Directive 2003/88 reveals that the Court (once more) confirmed—as is apparent from Recital 4 of the Directive—that the effective protection of workers’ safety, hygiene and health at work cannot be subordinated to purely economic considerations. ¹⁵

Moreover, as the Advocate General observed, ¹⁶ the Court asserted that ‘neither Deutsche Bank nor the Spanish Government identified clearly or specifically the practical obstacles that might prevent employers from setting up, at a reasonable cost, a system enabling the time worked each day by each worker to be measured’. ¹⁷ The Court, nonetheless, allowed for a wide range of specific procedures to implement such a system (see infra, paragraph 2), thus allowing smaller businesses to adopt less costly systems.

How can working time be accurately recorded for the purpose of enforcing the Working Time Directive? Lessons from national experiences

The Court asserted that Member States can outline specific arrangements for implementing a monitoring system ‘having regard, as necessary, to the particular characteristics of each sector of activity concerned, or the specific characteristics of certain undertakings concerning, inter alia, their size’. ¹⁸

These arrangements, in the Opinion of the Advocate General expressly referred to by the Court, can consist of a number of instruments for recording working time, such as paper records, computer systems, electronic access cards, provided that the selected system ensures the effectiveness of Directive 2003/88 and of the rights enshrined therein. Ultimately, national courts carry responsibility for conducting such a test. ¹⁹

The Court's remarks on the implementation of a system for recording working time leave room for different interpretations, especially because of the absence of a clear reference to two key aspects:

- the precise subject matter of such a recording,

As regards the second point, which hones in on this approach and its outcome, it is doubtful whether any instrument that prescribes a mere noting down of time worked is adequate, as the obligation to establish an ‘objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured’ ²⁰ does not seem to be met.

Some useful insights into both of these aspects emerge, in particular in the analysis of the doctrine relating to the Spanish legislation, which had given rise to the question being decided in CCOO.

In this regard, it is worth to point out, preliminarily, that after the Advocate General submitted his conclusions, but before the Court issued a ruling on the question, the Spanish legislator amended Article 39 of the Estatuto de los trabajadores on working time. Article 39, as amended, now provides for the obligation to keep a daily record of working time, which cites the actual start and end time of each worker's work day without prejudice to time flexibility. ²¹ The records must remain accessible to employees, their lawyers and labour inspectors for four years.

Unlike the original provisions, which had given rise to contrasting views on the inclusion of a legal obligation to establish a system for the recording of working time (as pointed out and summed up in the Court's decision, paras 23–27), Article 39, as amended in 2019, has been deemed by Spanish scholars to be in line with the Directive.

Academic literature, as well as administrative practice relating to the new provision, deserve our attention as they highlight some of the key points that need to be analysed to determine whether national legislation is in line with the Directive.

Academic scholars and legal practitioners have highlighted the following in particular:

- to verify compliance with the protection afforded by the Directive, working time records must cover both the number of hours worked (the amount of working time) and its distribution (when); ²²

The Portuguese and Italian legislation provide examples of different approaches to the regulation of monitoring of working time.

Article 202 of the Portuguese Labour Code and Article 10, Law No. 107/2009 (relating to inspection procedures) contain an interesting regulation on the monitoring of working time. It provides, inter alia, that working time records must indicate the start and end time of working hours, as well as interruptions or intervals that are not included, to determine the number of hours actually worked on a daily and weekly basis. The register must be kept for five years in an accessible place and must be immediately available for inspection and review. ²⁸

The Portuguese legislation seems to comply with the protection afforded by the Directive in view of the relevant elements highlighted in the Spanish literature.

Conversely, we arrive at a different assessment when reviewing the Italian legislation. Article 39 of Law Decree No. 112/2008 requires a noting down of the duration of working time in the Libro Unico del Lavoro (LUL). The regulation provides, among other things, that the employer must keep ‘a timetable of attendances that indicate, for each day, the number of hours worked by each employee, as well as the amount of overtime worked, any absences from work, including unpaid absences, annual leave and rest periods’. ²⁹

The Italian provision appears inadequate for ensuring compliance with the Directive for several reasons, specifically:

- the LUL only requires the total daily number of hours worked to be recorded and there is no ‘provision for an obligation to record the times of entry and exit of the workers, and therefore of the time organisation of the daily hours to be actually worked’; ³⁰

Obligation to measure working time and its usefulness for the burden of proof in individual disputes

As already mentioned, the Court considers the measurement of working time to be an effective means of providing workers the possibility to verify whether their rights to daily and weekly rest periods are being complied with.

Referring to the burden of proof in individual disputes, the Court has admitted that ‘where there is no system enabling working time to be measured, a worker may, under Spanish procedural rules, rely on other sources of evidence, such as, inter alia, witness statements, the production of emails or the consultation of mobile telephones or computers, in order to provide indications of a breach of those rights and thus bring about a reversal of the burden of proof’; however, ‘such sources of evidence do not enable the number of hours the worker worked each day and each week to be objectively and reliably established’. ³³ On these grounds, the Court has noted that:

In this regard, one ambiguity needs to be clarified: beyond the specific facts of the case CCOO, ³⁵ in which the recording of working hours acquired importance also for the purpose of verifying the number of overtime hours worked, the decision does not concern the payment of these additional working hours. In view of the pursuit of the Directive's objectives, the Court's aim is for working time as a whole to be duly recorded on a daily basis to ensure verifiability of compliance with the maximum duration of weekly working time (including overtime) and the minimum rest periods provided for in the Directive and the European Charter of Fundamental Rights.

Indeed, the question of overtime pay is not a matter that can be brought before the Court, which has repeatedly stated that questions concerning the remuneration of workers—with the exception of the regulation on paid annual leave referred to in Article 7(1)—fall outside the scope and purpose of Directive 2003/88 (and, similarly, of Directive 93/104). In accordance with this clarification, the Court has stated that methods for remunerating different aspects of working time fall under Member States’ competence, ³⁶ provided that the full effectiveness of workers’ rights enshrined in EU legislation, namely ‘to protect effectively [their] safety and health’, is guaranteed. ³⁷

Nevertheless, even where the dispute in the main proceedings concerns remuneration, the Court does not shy away from requesting the national tribunal to interpret Directive provisions, though ‘it is for the national court and not the EU Court’ to determine whether the interpretative outcome can, in the given case, be taken into account. ³⁸

In view of this clarification, it must be noted, however, that the establishment of systems to measure the duration of daily working time in an objective, reliable and accessible way can also be useful for testing effective compliance with the national provisions on normal working hours and overtime or, in general, to solve economic disputes concerning the actual duration of work. ³⁹

Ultimately, the Court's observations on the contractual weakness of the worker as an obstacle to claiming his or her rights, the inadequacy of other means of proof and the difficulty of inspections are appropriate and must also be highlighted in this regard. ⁴⁰

Derogations: activities for which the duration of work is not measured and/or predetermined or can be determined by the workers themselves

In para 63 of CCOO, the Court clarified that in any case, there should be no ‘prejudice to Article 17(1) of Directive 2003/88’, according to which:

With due regard for the general principles of the protection of the safety and health of workers, Member States may derogate from Articles 3 to 6, 8 and 16 when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves, and particularly in the case of:

managing executives or other persons with autonomous decision-taking powers;

The Court's assertion is consistent with the premises of its reasoning: if the obligation to measure arises from the need to apply useful means to verify compliance with the protective measures provided for in the Directive, it is clear that such an obligation does not exist when those protective measures are not applicable.

One relevant issue, however, concerns the list of workers for whom derogation is allowed.

Clearly, an objective presupposition is indicated by the word ‘particularly’, suggesting that although the list contained in Article 17(1) is to be interpreted restrictively, it is not exhaustive. ⁴¹

It can therefore be extended by the individual Member State when, as a result of the specific characteristics of the activity, ‘the duration of working time is not measured and/or predetermined or can be determined by the workers themselves’.

As already noted, if this is the case, in order to guarantee compliance with the Directive's rationale, the effective existence of said characteristics is not to be observed in the abstract. Hence, exclusion from protection cannot arise from an abstract ‘definition’ or from belonging to a specific category of workers, but must rather derive from how the actual work is performed; for example, workers who, in practice, are able to independently decide how many hours they will work and who are or who are not required to be present at their workplace at fixed times. ⁴²

The European Commission has rightfully stated that the criteria used by Member States to provide for exemptions from protection provided by Article 17(1)—including the fact that the worker works from home or performs administrative functions—‘do not necessarily guarantee that the criteria of the Directive are fulfilled’. ⁴³

Moreover, a practical check on a case-by-case basis is imposed by the Court's strict position on the derogations provided for in Article 17 of Directive 2003/88 (and already by Directive 93/104).

Generally, exceptions to the European Union’s system for the organisation of working time put in place by the Directive must be interpreted in such a way that their scope is limited to what is strictly necessary to safeguard the interests they are designed to protect. ⁴⁴ Moreover, all of the Directive's provisions that ensure respect for the fundamental right enshrined in Article 31(2) of the Charter ‘may not be interpreted restrictively at the expense of the rights that workers derive from it’. ⁴⁵

With specific reference to the derogation introduced in Article 17(1), the Court has already affirmed its applicability where the worker is entitled to ‘decide on the number of hours of work’ to be performed. ⁴⁶

Besides, the Court has made clear—through the explicit wording of Article 17(1)—that the derogation ‘applies only to workers whose working time as a whole [and not only partially] is not measured or predetermined or can be determined by the workers themselves on account of the kind of activity concerned’. ⁴⁷

These concepts were taken up in a recent ruling, in which the Court stated that the derogation provided for in Article 17(1) ‘cannot apply to paid work, such as that at issue in the main proceedings, … where it is not established that the working time as a whole is not measured or predetermined or it may be determined by the worker himself, which is for the national court to ascertain’; so much so that if such a condition is not met, it is not even necessary to determine whether the employee's activity may be treated as one of those cited as an example in that Article. ⁴⁸

Monitoring of working time in case of teleworking and agile work

Given this framework, it is possible to discuss another specific issue, concerning the traceability of the obligation to monitor working time activities carried out through teleworking and, in general, remotely (for example, agile work, as provided by Italian law).

The issue is admittedly not easy to solve. As a matter of fact, quite a broad theoretical approach emphasises the agile worker's freedom to choose where and when to work. Such a viewpoint may result in the rejection of the idea that ‘agile’ work can be measured.

It is my opinion, however, that even this stance must be analysed in the light of the protective function enshrined in the Working Time Directive (protecting safety and health of worker, through the limitation of working time and the provision of adequate rest periods) and of the purposive approach adopted by the Court of Justice. Above all, it is important to avoid a vicious circle which would lead from the likely exclusion of working time measurement to the exclusion of the protection enshrined in the Directive and in Article 31(2) of the EU Charter of Fundamental Rights.

Before addressing the Italian case, it is useful to remember that pursuant to Article 8 of the 2002 European Framework Agreement on Telework:

‘The employer is responsible for the protection of the occupational health and safety of the teleworker in accordance with Directive 89/391 and relevant daughter directives, national legislation and collective agreements’. ⁴⁹

Following the Framework Agreement, the provisions of the Working Time Directive establishing the maximum working hours and daily and weekly rest periods generally apply to teleworkers, including, since CCOO, the rules on the monitoring and recording of working time.

This is the choice adopted by the Spanish legislator in the recent legislation on remote working, according to which the register referred to in Article 34(9) of the Estatuto de los trabajadores applies to teleworkers, as provided for by collective bargaining agreements, and ‘must faithfully reflect the time the remote worker performs work’. ⁵⁰

On the other hand, it is well-known – as recalled in the 2021 EU Parliament Resolution on the right to disconnect - that remote working, owing also to the use of digital devices and connection, has fostered the porosity between work and private life, causing an increase in working hours and/or the intensification of work activities during (daily and weekly) rest periods. ⁵¹

On this topic, we can only emphasise (and fully endorse) the proposal of the EU Parliament, which provides that the Directive on the right to disconnect should be applied ‘to all sectors, both public and private, and to all workers, independent of their status and their working arrangements’ ⁵² and that Member States should ‘ensure that employers set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured, in accordance with workers’ right to privacy and to the protection of their personal data. Workers shall have the possibility to request and obtain the record of their working times’. ⁵³

Although we cannot further analyse here the wider issues relating to the future improvement of the right to disconnect, it is crucial to clarify that the possibility already provided for under the current EU legislation to derogate from the protective measures (and consequently from the measurement of working time) for remote workers depends on the effective existence of the characteristics already described in the previous paragraph, notably, when the worker is entitled to independently decide on the number of working hours to be performed as a whole.