Contents
The case
The Spanish trade union CCOO had brought the action against Deutsche Bank SAE. The bank recorded only absences such as leave and illness, not the working time actually performed. The union wanted to obtain a system for the whole of working time.
The Spanish court referred to the European Court of Justice the question whether the Working Time Directive 2003/88/EC and the Framework Directive on occupational safety 89/391/EEC require such a duty. The court answered yes.
What the court requires
The system has to be objective, reliable and accessible. Objective means it measures rather than estimates. Reliable means the record cannot be changed at will after the fact. Accessible means employees, employee representatives and authorities can inspect the data.
The reasoning rests on the practical effectiveness of the rights under the directive: without measurement, neither the weekly maximum working time nor the daily rest period can be checked, and employees could not enforce their rights.
The court expressly left the concrete arrangement open. The member states may take into account the particular features of individual fields of activity and the size of the undertakings.
Why Germany did nothing for three years
A judgment of the European Court of Justice is addressed to the member states, not directly to individual employers. The German legislature would have had to amend the Working Hours Act; it did not.
The Federal Labour Court closed the gap on 13 September 2022 (1 ABR 22/21) with an interpretation of the Occupational Safety and Health Act in conformity with the directive. Since then the duty has applied directly in Germany, although the Working Hours Act is unchanged.
The ministerial draft of the amendment exists but is not in force. Anyone advertising a "duty from 2026" is confusing a draft with applicable law.
What that means for choosing a system
The three criteria from the judgment make a usable checklist, even though they are addressed to the legislature. A system that meets them satisfies the duty for certain.
- Objective: times are recorded, not derived from target values.
- Reliable: changes after the fact are possible but logged.
- Accessible: employees can see their own data at any time.
- Complete: breaks and rest periods can be read off it as well.
This is not legal advice; for a specific case at your workplace you are better off asking someone qualified to give it.
Published by: AMNAU GmbH
Editorial responsibility: Ugur Aydogan, Product development.
Last reviewed: 2 September 2026