The CJEU confirms and clarifies the obligation to register working time
11 Mar 2025
On 19 December 2024, the Court of Justice of the European Union (CJEU) passed judgement in case no. C-531/23 ‘Loredas’. The CJEU confirmed that Member States must require employers to implement an objective and reliable system of working time registration – a finding the court first established in its 2019 ‘CCOO’-judgement – and, additionally, ruled that Member States cannot provide for an exception to this general obligation for domestic workers.
As such, this judgement clearly cements the fact that a correct transposition of directive no. 2003/88/EC concerning certain aspects of the organisation of working time (the ‘Working Time Directive’) requires a general obligation to record working time. Member States that don’t have this obligation in place yet – including Belgium – must therefore in principle take legislative action.
General obligation to register working time
In 2019, in its ‘CCOO’-judgement, the CJEU found that – in order to ensure the effectiveness of the Working Time Directive’s provisions on workers’ maximum number of working hours and minimum daily and weekly rest periods – Member States must require employers to set up an objective, reliable and accessible system to measure the duration of time worked each day by each worker.
No exception for domestic workers
As a result of the 'CCOO’-case, the Spanish legislator decided to require companies to implement a system of working time registration for their employees, however, with a specific exception for domestic workers. When queried in the ‘Loredas’ case on the compatibility of this exception with the Working Time Directive, the CJEU reiterated its legal reasoning from the ‘CCOO’-judgement and, moreover, clarified that this also presupposed that no exception can be made for domestic workers.
The Court, however, also found that – although Member States must implement a general obligation to register working time – specific modalities can be provided for, either because of the sector or activity involved or because of the specific characteristics of the employer, as long as this legislation provides employees with the effective means to ensure compliance with the rules regarding maximum working time.
Impact of the CJEU’s case-law
What was already apparent after the CJEU’s ‘CCOO’-judgement is now abundantly clear; for Member States to correctly transpose the Working Time Directive, they must provide for a general obligation to record working time. For the Member States that don’t have any obligation of working time registration in place – including Belgium – action seems to be required.
Belgium, however, has remained notably silent on the legislative front regarding this matter. The social partners in the National Labour Council did deliver their opinion on the ‘CCOO’-judgement in October 2022 but were unable to take a unified stance. The employee representatives fully supported the introduction of a general obligation to record working time in Belgium, whereas the employer representatives believed a legislative initiative in this area was neither desirable nor appropriate. Save from a cursory mention in the section on a newly envisaged system of annualising working time, the recently concluded Belgian government agreement doesn’t contain any initiatives on working time registration either, leading us to believe it’s (currently) not on the agenda.
To date, there has been limited impact of the ‘CCOO’-judgement in Belgian case-law, with only a couple of cases where courts referred to the judgement to reverse the burden of proof in conflicts on overtime. Where it would normally fall on the employee who claims that overtime was performed to prove this, in those cases – where the employer had no system of time registration – the courts pointed towards the ‘CCOO’-judgement to argue that this lack of time registration meant that the employer must (dis)prove whether the contested hours were performed instead. The majority of case-law, however, found that the ‘CCOO’-judgement itself cannot have a direct impact in Belgium and therefore refuse to apply it.
Looking ahead
Although the direct impact of the CJEU’s working time registration case-law on the relationship between employer and employee in Belgium has been limited, it cannot be ruled out entirely and it would therefore – in the interest of legal certainty – be preferable to bring the Belgian legislation fully in line with the Working Time Directive sooner rather than later.
We will of course keep you informed about any developments in this area.
If you have any additional questions about this topic specifically, or the Belgian working time regulations in general, don’t hesitate to reach out; we’d love to hear from you.
