Trust is good, control is (really?) better - The ECJ ruling on working time recording from May 14, 2019.

The ECJ ruling of May 14, 2019 It's not just the world of labor law that's shaking. The verdict also received an enormous response in the press. Do all employees now have to record their working hours on the time clock again? Can trust-based working hours still be saved? The judgment does indeed raise a number of questions, which we would like to address below.
What are the relevant contents of the decision?
What happened? A Spanish union sued Deutsche Bank because it had not systematically recorded working hours. This was also entirely compatible with Spanish law, since according to this the companies - comparable to the German norm Section 16 Paragraph 2 ArbZG (Working Hours Act) – are only obliged to record overtime hours, but not to record regular daily and weekly working hours.
In the proceedings, the ECJ had to examine whether such a legal regulation was compatible with European law, in particular the Charter of Fundamental Rights and the European Working Time Directive. The simple result: no, it's not her. Rather, there must be a legal obligation in the EU member states to systematically record not only overtime hours, but also regular daily working hours. What was essential for the ECJ in its considerations was that the right of employees to limit maximum working hours and to daily and weekly rest periods is not just a simple rule of European social law, but has quasi-constitutional status, as it is the highest-ranking European law in Article 31 Paragraph 2 of Charter of Fundamental Rights of the EU is guaranteed.
What are the consequences of the verdict?
Many employers in particular are worried about whether they need to immediately introduce a time clock or a comparable working time recording system. To answer this question, read the ECJ ruling of May 14, 2019 helpful. A central sentence of the decision (paragraph 60 of the judgment) is:
“In order to ensure the practical effectiveness of the rights provided for by Directive 2003/88 and the fundamental right enshrined in Article 31(2) of the Charter, Member States must therefore require employers to put in place an objective, reliable and accessible system by which the the daily working time worked by each employee can be measured.” 
The judgment itself does not directly oblige companies, but (only) the individual member states to create an adequate legal regulation, if it does not exist. So far there is actually no regulation in Germany as required by the ECJ. According to the current – and until further notice still applicable – legal situation, employers must comply with Section 16 Paragraph 2 ArbZG only record the times that exceed the maximum daily working hours. First of all, the legislature is required to enact a law that meets the requirements of the ECJ.
But how should an “objective, reliable and accessible” working time recording system, as required by the ECJ in its ruling, be designed? The judgment does not contain any specific requirements in this regard. There will therefore likely be an intensive political discussion in the near future about how and with what consequences the ruling will be implemented. A first dispute has already broken out within the government. While Economics Minister Peter Altmaier (CDU) would first like to commission a legal opinion on the requirements of the ruling, Labor Minister Hubertus Heil (SPD) is calling for the ruling to be implemented quickly. The discussion about the implementation of the ruling is likely to continue for some time.
The ECJ ruling The result is only vaguely stated, but it also provides information about the scope for legislative action. The second central statement of the ECJ ruling (Paragraph 63 of the judgment) reads:
"However, it is for the Member States, within the scope of the scope available to them, to determine the specific modalities for implementing such a system, in particular its form, taking into account, where appropriate, the specific characteristics of the respective field of activity, even the characteristics of certain undertakings, especially their size; This is without prejudice to Article 17(1) of Directive 2003/88, which provides that Member States, taking into account the general principles of protection of the safety and health of workers, may make exceptions, inter alia. of Articles 3 to 6 of this Directive if the duration of working time is not measured and/or predetermined or cannot be determined by the workers themselves due to specific characteristics of the activity carried out."
The legislature is therefore not obliged to uniformly impose the establishment of a working time recording system on the entire working world. Rather, exceptions and restrictions should also be possible, which are likely to apply primarily to smaller companies and could also affect certain activities (keyword sales/field service) or particularly responsible positions (keyword senior managers).
However, outside of such exceptions, a working time regulation that largely dispenses with time recording, such as various forms of “trusted working hours” that are quite widespread in practice today, is unlikely to be tenable.
Impact on future overtime litigation?
An aspect of the judgment that has not yet been examined is its possible impact on the disputes about overtime compensation that often arise in practice. Not that though ECJ ruling itself, but the expected legal regulation, is likely to have a significant impact on disputes concerning the compensation or payment of overtime credits. Until now, according to established case law, the employee regularly had to provide a substantiated statement on which days and at what specific times he wanted to have worked. This discussion is unlikely to arise in the future if a working time recording system is to be firmly established. If an employer has not established such a system contrary to a legal requirement, it is unlikely that a labor court will impose the full burden of proof and proof regarding his working hours on the employee. In this respect, too, the ruling may shake some long-standing principles.
What action does employers now need to take?
The following observation seems important in advance: existing employment contractual agreements (keyword: trust-based working hours!) or collective agreements, such as company agreements on working hours, remain unaffected by the judgment - at least for the time being - in their effectiveness, even if they contradict the ECJ's requirements .
Even if there is no immediate need for action, employers are still well advised to prepare for expected legal regulations and, if necessary, prepare a practical working time recording system. There is hardly any reasonable doubt that a legal regulation will fundamentally require employers to implement a functioning working time recording system in the future. Panic and activism are the reaction to this ECJ ruling However, it is certainly just as inappropriate as ignoring the upcoming changes. Larger companies in particular should already make preliminary considerations today - if necessary together with the existing works council committees - as to the form in which employees' working hours can and should be recorded. Since the implementation of a working time recording system in smaller companies will involve a relatively manageable amount of effort and exceptions could also apply in this area, start-up companies, for example, can initially wait to see what requirements the legislature will make.