I. Ruling of the European Court of Justice of 14 May 2019

The European Court of Justice (ECJ) had stated in the CCOO ruling (case C-55/18) that only a system with a comprehensive recording of working time could grant the substantive rights under Directive 2003/88/EC (Working Time Directive) and Article 31 of the Charter of Fundamental Rights (CFR). Otherwise, neither the number of hours worked by the employee nor the working time exceeding the normal working time could be determined objectively and reliably. The ECJ therefore held that the “necessary measures” within the meaning of Articles 3, 5 and 6 lit. b of the Working Time Directive include such a determination of working times. The enforcement of these rights would only be possible if the member states oblige employers to provide an appropriate objective, reliable and accessible time recording system.

II. Effects on overtime litigations

In overtime litigations, it is generally the employee’s responsibility to prove how much overtime he/she has worked and when, and which activities were performed during this time. The BAG has developed the so-called 2-step model for this purpose. At the first stage, the employee must prove on which days and at which times of day he/she worked beyond the agreed working hours. At the second stage, the employee must then prove that the employer also initiated the overtime; this could be done by explicit order, but also by approval or acquiescence. This clearly shows that the employee’s chances of success would significantly increase if his working hours have to be recorded in detail by the employer.
In light of the ECJ ruling and the employer’s obligation to provide a time recording system, there could also be implications for overtime litigations. At the first level, it could be considered that overtime is deemed to be accepted by the employer as work if a detailed record is kept, and without a record, the employer would have to prove that the overtime is unjustified. At the second level, acquiescence to overtime by the employer could be assumed on basis of the record. These arguments were used by the Emden Labor Court in a decision following the ECJ ruling to ease the burden of proof for employees.

III. Decisions of the Regional Labor Court of Lower Saxony and the Regional Labor Court of Hesse

The decision of the Emden Labor Court was corrected by the Regional Labor Court of Lower Saxony (LAG Niedersachsen) because the ECJ would not have any competence in questions of remuneration for work on basis of Article 153 (5) TFEU and no effect on the employer’s obligation to tolerate and provide evidence on basis of mandatory recording could be assumed. The Regional Labor Court of Hesse also rejected any effects on the burden of proof in overtime proceedings because the EU would not be competent in questions of remuneration and the wording of § 16 para. 2 German Working Hours Act (Arbeitszeitgesetz – ArbZG) would not permit an interpretation in conformity with European law.

IV. Ruling of the BAG

The BAG decided on the appeal against the judgment of the Regional Labor Court of Lower Saxony in May 2022. Even though the reasons for the ruling are not yet available, the most important reasons for the ruling can be found in the press release, so that there is now clarity about the actual effects of the aforementioned ECJ ruling on overtime litigations.
The BAG clarifies that it will continue to adhere to the established two-stage model and that there will be no redistribution of the burden of proof and presentation. In its reasoning, the BAG essentially agreed with the Regional Labor Court of Lower Saxony. The decision of the ECJ had referred to the application of the Working Time Directive and Article 31 CFR and thus to aspects of the organization of working time with regard to the safety and health of employees and not to the remuneration of the same. The BAG therefore denies any effects on the principles developed under German law, so that the already known burden of proof remains.