One of the main tasks of the European Court of Justice (“ECJ”) is issuing preliminary rulings. The ECJ interprets the European Union Law with the preliminary reference from the court or tribunal of the Member State. Once the ECJ reaches to a decision this is called a preliminary ruling and therefore this decision can not be appealed.
The courts of each Member State havethe capacity to seek a preliminary ruling where a provision of the EU Law appears to be either unclear or ambiguous or in cases where it is considered to be necessary in order for a judge be able to rule (Article 267(2) TFEU). The case proceedings will be adjourned until the ECJ ruling is issued. The ECJ has the power to rule only on matters that are related to the validity and interpretation of the EU Law and leave the application, remedies and costs at the national court’s discretion.
However, if the ECJ has published on a judgement regarding a point in a previous case, then there is no obligation on the ECJ to refer again. As it was mentioned in case C-28/62 Da Costa, the decision is considered to be res judicata and therefore binding. The ECJ judgement is binding on all EU Member States, and it is not restricted to the Member State that has requested a ruling. Consequently, since the preliminary ruling is binding on all the EU Member States this ensures that EU law is properly applied and the risk of having different interpretations and being misleading is restricted.
In a recent case (case C-55/18 CCOO) the ECJ was requested by the National High Court of Spain to establish a preliminary ruling regarding whether or not it was mandatory for the employers to introduce systems that would measure the duration of the working hours of each employee daily.
The dispute was between a workers’ union that was part of a trade union in Spain and Deutsche Bank regarding the measurement of working time and overtime and the failure of Spanish law to ensure proper compliance with the fundamental workers' rights towards a more fair and just working conditions, as they had been assured of in the European Charter of Fundamental Rights and implemented by the Directives on Working Time and the Safety and Health of Workers. The Applicant’s claim was based on Articles 34 and 35(5) of the Workers statute in interpretation with Article 31(2) of the Charter of Fundamental rights of the European Union to set a system that would record every employee’s working hours each day.
It should be mentioned that the main aim of Directive 2003/88 is to improve the protection of health and safety in the workplace, but in order for the Directive to achieve its aim it lays down the minimum daily rest periods that a worker should take. As a result, the workers would enjoy their rights, since restricting or undermining the enjoyment of those rights would cease.
On the other hand, Deutsche Bank supported that such an obligation to introduce a system that would record each employee’s working time daily does not exist under the Spanish law. This was based on Article 22 of Directive 2003/88 which was adopted by the Spanish Law. Article 22 mentions that the employer is under the obligation to maintain a record of the time that is worked whereas the employer has no obligation to maintain a record for the “normal” hours that have been worked. It was for these inconsistencies that the National Court of Spain addressed the matter to the ECJ.
The ECJ has ruled on the matter and held that, since EU Law prevails over national Law, employers are required to set up a system enabling the measurement of the duration of time worked by every employee daily.
As the key issue was whether the Spanish national law was adequate, which requires employers to keep track of employees’ overtime work, but not the working time in its entirety, and as such, the ECJ stated that a requirement to record only overtime hours does not provide employees with an effective means of ensuring that the maximum weekly working time is not exceeded or that the minimum daily and weekly rest periods are observed under all circumstances. In order to effectively ensure the rights under the Directive and the Charter, “Member States must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each employee to be measured” (ECJ, C-55/18, par. 60). As a result, the ECJ held that the Spanish legislation was insufficient in this respect.
The ECJ made reference to Articles 3 and 5 of Directive 2003/88. According to Article 3, Member States have the obligation to undertake all the necessary measures and means to ensure that every worker is entitled to a period of 11 consecutive hours of daily rest and during each 7-day period, to take an uninterrupted 24-hour rest period plus 11 hours. In order for the Directive to be effective and the workers’ rights to be assured, the minimum rest hours must be recorded and observed as supported by Article 6(b) of the Directive 2003/88.
It should be noted that each Member State has the freedom to choose what constitutes a necessary measure. However, Member States might impose general or specific measures to guarantee that the Directive's efficacy is not jeopardized, even if it is caused by omissions in national legislation. It is possible to see how the directive's effectiveness will be compromised if such measures are not included in the Member State's legislation. 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.
It was supported by the Advocate General that “in the absence of such a system, it not possible to determine objectively and reliably either the number of hours worked by the worker and when that work was done, or the number of hours worked beyond normal working hours, as overtime” (ECJ, C-55/18, par. 57-58).
It can be argued that without such a system no one can guarantee that the working hours of each day and week will be recorded and therefore, the rights of the employees will be deprived due to the fact that there will be no way to check whether their rights to enhanced safety and health protection have been met.
Because of the aforementioned reasons, and the lack of any such recording mechanism, there is no guarantee that the time limits imposed by Directive 2003/88 will be observed, and thus employees' rights could be violated. Furthermore, how much time a worker has worked cannot be proven with precision. Another consequence of the lack of such a system is that it will be impossible to distinguish normal working hours from overtime working hours. Furthermore, without the proper system, workers will face a larger evidentiary burden when bringing procedures against their employer. However, the real impact of this judgement is on employers' obligations in relation to working time recording, which must be studied and assessed separately for each Member State. 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 was still any doubt until now, employers and active companies providing their services 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 area. These will 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.
The Department of Labour Relations is the competent authority for enforcing labour legislation in Cyprus. There are several Labour Regulations and Orders, for which the Department is responsible for their enforcement. Labour legislation determines and safeguards minimum terms of employment, working time, termination procedures, and other relevant provisions relating to the employment relationship whilst it also provides for a number of other rights and obligations for both employees and employers.
It should be noted that according to the industrial relations system and practice followed in Cyprus, terms and conditions of employment, as well as minimum standards, are mainly provided for in collective agreements. Furthermore, where collective agreements provide for more favourable terms and conditions of employment, these always supersede the minimum terms provided for by legislation. The Cyprus legal framework, however, does not force employers to track employees’ working time, for the time being at least, therefore employers are not required to implement any urgent changes in their monitoring of employees’ working time. Preliminary rulings from the ECJ primarily address the Member States, which are required to implement the EU legislation into national law, and the national authorities, which are required to interpret national law in light of the ECJ case law. For the time being, employers await legislative changes or statements from national authorities.
However, there is a risk that legislative changes, such as requirements for employers to introduce burdensome administrative solutions monitoring all time worked, including regular working time, are in the pipeline. It is therefore advisable that employers take a proactive approach and enter into social dialogue in order to ensure that a suitable mechanism for monitoring is well communicated between employers and employees.
EUR-Lex - 62018CJ0055 - EN - EUR-Lex (europa.eu)
EUR-Lex - 62018CC0055 - EN - EUR-Lex (europa.eu)
The content of this article is valid as at the date of its first publication. It is intended to provide a general guide to the subject matter and does not constitute legal advice. We recommend that you seek professional advice on your specific matter before acting on any information provided. For further information or advice, please contact Andrea Karageorgi, Associate, at our Nicosia office, Tel +357 22447777 or email andrea.karageorgi@kyprianou.com
