CCOO vs Deutsche Bank (ECJ C-55/18): another piece of the puzzle for fundamental rights enforcement in employment matters?

This ruling is remarkable on various accounts, including the far-reaching involvement of the ECJ in day-to-day HR practices and its direct effects on such practices, notwithstanding the alleged fragmentary legislative competences of the EU institutions in the field of employment law. Indeed, this case may prove to be yet another example of where the required observance of  general principles of law and fundamental rights, as enshrined notably in the Charter of Fundamental Rights of the EU ('the Charter') is of growing importance for day-to-day business activities in Europe. That is probably its main relevance for the business community.  

However, the concrete impact of this ruling on employers' obligations in connection with working time recording needs to be analysed and assessed for each Member State separately.  We will return very shortly with an overview of major compliance issues in this connection for all jurisdictions within the EU with Bird&Bird offices.

From a legal perspective, the issue at stake in the case at hand is the interpretation of provisions in the EU Directives on working time (Directive 2003/88) and on measures to improve health and safety (Directive 89/391). It is generally accepted that such provisions do not have so-called direct horizontal effects, i.e. cannot be invoked as such in litigation between private parties (employer/employee).  However, over the past decade or so, this principle has suffered attack and is currently, through ECJ case-law,  subject to a series of well-accepted limitations and exceptions. 

One of these exceptions is where Directives are seen to implement general principles of EU law (such as the prohibition of age or gender discrimination) or fundamental rights. In this case, according to the ECJ, the Charter comes directly into play: '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' (art 31 (2)). Although neither of the Directives in scope contains any specific provisions nor impose obligations on measurement or recording of working time, the ECJ considers the aforementioned fundamental right to constitute a sufficient basis for imposing time recording systems on employers. 'The effectiveness of this fundamental right requires employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured' (ECJ, C-55/18, par. 60).   

With this ruling the ECJ confirms the importance it attaches to the Charter, the scope of its rules and the direct enforceability of the fundamental rights contained herein.    

If there still was any doubt until now, employers and companies active in the European Union are well advised to get firmly acquainted with the Charter and its wide array of rights and principles of direct relevance in the employment arena. These include the right to information and consultation, the right to collective bargaining and action, the right of access to placement services, the protection against unjustified dismissal, the right to fair and just working conditions, and the protection of young people at work. 

Based notably on the ruling at hand, there is no reason why these rights could not be enforced one way or another in private litigation throughout Europe, irrespective of the existence, content and scope of national regulations on the subject matter.