In the ASE case of 17 March 2021 (C-585-19), the Court of Justice of the European Union has confirmed that in the event that employees have concluded multiple employment contracts with the same employer, the working time limits (as laid down by the Working Time Directive) have to be respected for all the employment contracts, taken together. Whether this would also be the case for different employers is still up for discussion.
1. Facts
The facts of the case concern the payment of experts and lecturers at the Romanian Academia de Studii Economice din Bucureşti (the Bucharest Academy of Economic Studies). This university employed the experts through several projects which were funded by EU grants. For every project they needed a different employment contract. In order to receive the funding, the university had to register and prove the hours performed to a special government institution, the OI POCU. This institution refused to pay the (full) subsidies, as the university registered more hours per expert than the daily limit of 13 hours. The university claimed that this limit should not be applied, as the experts were employed with multiple employment contracts (for the different projects).
The CJEU had to answer the question of whether the minimum provisions of the Working Time Directive relating to the minimum daily rest period (11 hours) and maximum weekly working time (48 hours) should be applied only to the individual contracts, or to all contracts concluded with the same employer or with different employers.
2. Multiple contracts with the same employer
First, the CJEU refers to the fundamental right for workers to a limitation of maximum working hours and to daily and weekly rest periods (laid down in article 31(2) Charter of Fundamental Rights of the EU) and to the purpose of the Working Time Directive: laying down minimum requirements intended to improve the living and working conditions of workers.
In light of this, the Court takes a closer look at the definition of “rest period” in Article 2.2 of the Working Time Directive as “any period that is not working time”. This definition does not refer to employment contracts, but to “any period”. Next, Article 3 of the Working Time Directive states that “Member States shall take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period.” This article clearly refers to “every worker” and not to their employment contracts.
The CJEU also notes that it would be easy for employers to put pressure on the weaker party (= the worker) to conclude multiple employment contracts in order to avoid working time limits, while the Working Time Directive is intended to protect the weaker party.
Therefore, the Court concludes that the working time limits should be applied to all of the employment contracts (combined), which are concluded with the same employer.
3. Derogation for autonomous workers
The university also tries the argument that the working time limits do not apply to lecturers and experts, as they would fall under the derogation of Article 17 of the Working Time Directive for managing executives or other persons with autonomous decision-taking powers. The CJEU rejects this argument, as it holds a restrictive interpretation of the scope of this derogation, and points to the fact that the working time of the experts was at least partially determined by the university itself.
4. Different employers?
The Court and A.G. Pitruzella have carefully avoided answering the question: if the working time limits would also have to be applied to multiple employment contracts, which a worker concluded with different employers? They did not need to, because in the case at hand there was only one employer. The CJEU has understandably remained silent on this matter, as it clearly would be a difficult question to answer. When applying the argumentation of the Court in this case by analogy, one could deduce that the working time limits would also count in case of multiple employment contracts, concluded with different employers. The Working Time Directive intends to protect the worker, and refers to the workers themselves and to the working time and rest periods in total, without looking at separate contracts. However, the question remains as to how employers would be able to respect these limits. Can they restrict their employees from taking other jobs or side-jobs? Would that not be a restriction of the freedom to work? How can employers know about the professional activities of the workers for other employers? Should there then be an obligation for employees to notify their employer? All of these questions remain open.