WORTEN-EQUIPAMENTOS PARA O LAR SA V. ACT (AUTHORITY FOR WORKING CONDITIONS), 30.5.2013 (“WORTEN”)

Necessity/proportionality: Collection and processing of personal data contained in the record of working time to ensure compliance with national legislation relating to working conditions is lawful if it is necessary for compliance with a legal obligation to which the controller is subject. Access should be grated only to authorities having powers of monitoring compliance with legal requirements. An obligation to provide immediate access to the record could be necessary if it contributes to the more effective application of the legislation relating to working conditions. (¶¶ 35–43). Penalties must respect the principle of proportionality. (¶ 44)

That seems to be the case in a situation such as that in the main proceedings, since it appears that – which is for the referring court to verify – on the one hand, the personal data contained in the record of working time are collected in order to ensure compliance with the legislation relating to working conditions and, on the other hand, the processing of those personal data is necessary for compliance with a legal obligation to which the employer is subject and to the performance of the monitoring task entrusted to the national authority responsible for monitoring working conditions.

As regards the actual rules for the organisation of the national authority’s access to those personal data in order to carry out its task of monitoring working conditions, it must be recalled that only the grant of access to authorities having powers in that field could be considered to be necessary within the meaning of Article 7(e) of Directive 95/46 (see, to that effect, Huber, paragraph 61).

Concerning the employer’s obligation to provide that national authority immediate access to the record of working time, it is clear from the case‑law that such an obligation could be necessary, within the meaning of Article 7(e) of Directive 95/46, if it contributes to the more effective application of the legislation relating to working conditions (see, by analogy, Huber, paragraph 62).

In that respect, it must be pointed out that the purpose of Directive 2003/88 is to lay down minimum requirements intended to improve the living and working conditions of workers through approximation of national rules concerning, in particular, the duration of working time, by ensuring that they are entitled to minimum rest periods – particularly daily and weekly – and adequate breaks and by providing for a ceiling on the average duration of the working week (see, to that effect, inter alia, Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others [2004] ECR I‑8835, paragraph 76, and Case C‑429/09 Fuß [2010] ECR I‑12167, paragraph 43).

In view of the above, Article 6(b) of Directive 2003/88 requires the Member States to take the ‘measures necessary’ to ensure that, in keeping with the need to protect the safety and health of workers, the average working time for each seven‑day period, including overtime, does not exceed 48 hours (see, to that effect, Pfeiffer and Others, paragraph 100, and Case C‑243/09 Fuß, paragraph 33).

Moreover, the first subparagraph of Article 22(1) of Directive 2003/88 provides that a Member State may choose not to apply Article 6 of that directive, provided, inter alia, it takes the necessary measures to ensure that the employer keeps up-to-date records of all workers who carry out such work (point (c) of the first subparagraph of Article 22(1) of that directive) and that the records are placed at the disposal of the competent authorities, which may, for reasons connected with the safety and/or health of workers, prohibit or restrict the possibility of exceeding the maximum weekly working hours (point (d) of subparagraph 1 of Article 22(1) of that directive).

According to the European Commission, although Directive 2003/88 does not expressly require the Member States to adopt legislation such as that at issue in the main proceedings, the monitoring of compliance with the obligations imposed by that directive may entail – as ‘measures necessary’ to the performance of the objectives which that directive pursues – the establishment of surveillance measures. In the Commission’s view, the employer’s obligation to allow immediate consultation of the record of working time ensures that data is not altered during the interval between the inspection visit carried out by the competent national authorities and the actual verification of those data by those authorities.

Worten claims, by contrast, that this obligation is excessive, given the interference it entails in workers’ private lives. First, the record of working time is intended to provide workers with a means of proving the hours they have actually worked. The authenticity of that record has not been contested in the main proceedings. Secondly, that record allows the assessment of average working times, for the purposes of monitoring, inter alia, working hours exemptions. For that purpose, the immediate availability of those records does not, according to Worten, provide any added value. Moreover, the information in that record could be submitted subsequently.

In the present case, it is for the referring court to examine whether the employer’s obligation to provide the competent national authority access to the record of working time so as to allow its immediate consultation can be considered necessary for the purposes of the performance by that authority of its monitoring task, by contributing to the more effective application of the legislation relating to working conditions, in particular as regard working time.

In that respect, it must also be noted that, in any case, if such an obligation is considered necessary to achieving that objective, the penalties imposed with a view to ensuring the effective application of the requirements laid down by Directive 2003/88 must also respect the principle of proportionality, which it is also for the referring court to verify in the main proceedings (see, by analogy, Case C‑101/01 Lindqvist [2003] ECR I‑12971, paragraph 88).