The recording of working time or when Belgian courts are confronted with the limits of the principle of interpretation in conformity with the law

In its landmark ruling of 14 May 2019 on a reference for a preliminary ruling (CCOO v Deutsche Bank), the European Court of Justice held that the European Working Time Directive (Directive 2003/88) and the Charter of Fundamental Rights of the European Union (Article 31) is opposed against legislation of a Member State that does not impose an obligation on employers to introduce an objective, reliable and accessible system for recording working time.

In the Court's view, national legislation which does not require the introduction of such a system would not be capable of guaranteeing the effectiveness of the rights enshrined in those provisions, namely the rights of workers to the limitation of maximum working hours and to rest periods, which would then run the risk of being deprived of their substance.

This judgment calls on the courts and tribunals of the Member States to apply the principle of interpretation in conformity, which means that even where a European rule has no direct effect (in this case, direct horizontal effect), the national court is required to interpret its national law, as far as possible, in the light of the result pursued by that standard.

However, the principle of interpretation in conformity sought by the European Court of Justice is not without limits. It cannot serve as a basis for a contra legem interpretation of national law, nor can it run up against the constitutional principle of the separation of powers, which prevents judges from "creating" law.

However, as the legislation currently stands, Belgian law does not provide for any general obligation to record working hours. Moreover, the Belgian rules of evidence in civil proceedings require an employee making a claim for payment of overtime to provide proof of his allegations.

As a result, since this ruling, Belgian labour courts, confronted with claims from employees for overtime pay, face a dilemma, torn between their obligation to achieve the result set out in the European Directive and their concern not to encroach on the powers of the legislature. 

Thus, in the light of the above-mentioned judgment of the Court of Justice, some Belgian courts have ruled that it is up to the employer to prove the hours actually worked by the employees, thus reversing the procedural rules on the burden of proof. For example, in a judgment of 22 May 2020, the Brussels Labour Court held that the employer had an obligation to set up an objective, reliable and accessible system for recording working hours, failing which it was up to the employer to prove the hours actually worked by the employee or, at the very least, to prove that the employee had not worked the (overtime) hours for which he was claiming payment. The Brussels Labour Court based this reversal of the burden of proof on the employer's manifestly inadequate cooperation in providing evidence.

Although other judges have subsequently followed, the majority of case law remains reluctant to make such a U-turn on the grounds that, as long as Belgian legislation has not been adapted to impose an obligation on employers to introduce a system for recording working time, they cannot be forced to introduce such a system.

Thus, in a recent judgment of 26 March 2024, the Labour Tribunal of Walloon Brabant (Wavre division), called upon to rule on the request of an employee claiming payment of overtime, refused to grant the request, forced to note the limits of its jurisdictional power. The employee, on the basis of the aforementioned Labour Court judgment of 22 May 2020, sought to have the burden of proof reversed in his favour, arguing that the employer had failed to cooperate in the administration of evidence. The Court ruled as follows (free translation): 

We are still waiting for the Belgian legislator to take action, which would restore legal certainty on this issue. In the meantime, employers are advised to strictly regulate the provision of overtime in their companies. Our experts are at your disposal if you have any questions.