C-350/99

OPINION OF MR RUIZ-JARABO — CASE C-350/99

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 26 October 2000 1

1. The Arbeitsgericht (Labour Court) Bre- committee and is not a member of an men, Germany, seeks from the Court under employers' association. Article 234 EC a ruling on the interpreta- tion of Article 2(2)(i) and Article 6 of Directive 91/533/EEC on an employer's obligation to inform employees of the conditions of their employment. 2 The legal basis for the employment rela- tionship is a contract of employment dated 23 April 1998. The contract stipulated that employment would commence on 1 June The main proceedings concern the legiti- 1998, that the working week would com- macy of an employee's dismissal on the prise 40 hours and that the employer would ground of refusal to work overtime, whe- pay a gross monthly salary of DEM 4 350 ther it would be appropriate to reinstate the (made up of the basic monthly salary appro- employee and the legality of the employer's priate to his category of DEM 3 285.24, a cancellation of a salary bonus by reason of performance bonus of DEM 525 and a the employee's aforementioned refusal to bonus above the collectively agreed rate of work overtime. DEM 539.76, subject to cancellation at any time). With regard to all other matters, the contract provided that the sectoral opera- tional agreements (Ständiger Ausschuss für Beschäftigungsfragen — SAB) would apply, together with the umbrella collective agreement for the metal working industry I — The facts of the main proceedings in the Unterweser region of Bremen.

4. The national court states that the parties are in dispute as to what specific terms were agreed regarding overtime and have produced witness evidence in support of 7. The plaintiff lodged an appeal against their respective versions of events. While his dismissal on 18 December 1998, seek- the defendant asserts that the plaintiff ing reinstatement and a declaration that the declared he would always be available to cancellation of his bonus was invalid. The work overtime and that this was the basis company, for its part, contended that the for the contractually agreed remuneration, action should be dismissed. the plaintiff maintains that he only under- took to work additional hours in an emergency and that the bonuses were in recognition of the fact that the working day exceeded the norm laid down for the rest of the sector in the collective agreement. II — The questions referred to the Court for a preliminary ruling

5. The conflict between the parties came to 8. To enable it to reach a decision in the a head in December 1998 when the plain- proceedings before it, the Arbeitsgericht tiff was instructed to turn four valve Bremen has made a reference to the Court housings, one of which was not properly for a preliminary ruling on the following completed and had to be rejected. questions:

The defendant asserts that the plaintiff was '(1) Does Article 2(2)(i) of Council Direc- partly to blame for this. The deadline for tive 91/533/EEC of 14 October 1991 delivery of the housings, originally fixed for on an employer's obligation to inform 21 December, had to be postponed until employees of the conditions applicable 11 January owing, in the defendant's opi- to the contract or employment relation- nion, to the plaintiff's refusal to work ship (...) also apply to agreements by overtime. the employee pursuant to which he

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2. The information referred to in para- contract or employment relationship, pro- graph 1 shall cover at least the following: vides:

'This Directive shall be without prejudice to national law and practice concerning: (...)

— the form of the contract or employment relationship, (i) the length of the employee's normal working day or week;

— proof as regards the existence and content of a contract or employment relationship,

Lange's representative, the German Gov- working day, which is an essential aspect of ernment's Agent and the Commission's the contract, and that it does not apply to Agent presented oral argument. overtime, which is a secondary obligation forming part of an employee's duty of loyalty to his or her employer.

13. Mr Lange's representative asserted that the requirement to work overtime affects an employee's normal working hours and that overtime should be deemed to be part of an employee's working day. The plaintiff therefore considers that Article 2(2) (i) of The defendant considers that notifying an Directive 91/533 covers information relat- employee in writing of the essential aspects ing to agreements under which an of the contract makes it easier to prove employee undertakes to work overtime. what conditions were agreed but, since that An employer is not allowed the benefit of information is declaratory rather than con- vaguely formulated unilateral rights and all stitutive, it does not preclude the use of the important conditions governing the other methods to establish the remaining employment relationship, which include conditions in the event of a dispute. Fur- working hours and overtime, should be thermore, the defendant feels that the lack clearly set out in the contract of employ- of written information concerning overtime ment. The plaintiff asserts that, notwith- does not have the effect of reversing the standing the provisions of Article 8 of the burden of proof. Finally, the defendant Directive, it is unrealistic for an employee, argues that, pursuant to Article 2(2)(j) of whose right to information has been Directive 91/533, clause 6 of the contract infringed, to apply to the courts for an of employment refers to chapter 4 of the order requiring his or her employer to umbrella collective agreement of the metal comply with that obligation and submits working industry in the Unterweser region that a penalty for employers who are in of Bremen which governs overtime (Para- default can be implied from the Directive. graph 4, Mehrarbeit).

The German Government considers that an case they become part of the employee's employer's failure to comply with the normal working day. requirements as to form imposed by the national law transposing Directive 91/533 will not render an agreement invalid from the substantive point of view. The Austrian Government put forward the same view in its observations. Furthermore, the Commission considers that it cannot be inferred from Directive 91/533 that an employer's failure to comply with it will render invalid agreements entered into in the context of the employ- ment relationship. In the event that an employer does not provide an employee Finally, the German Government submits with the required information, the that Directive 91/533 does not provide for employee may use any other evidence reversal of the burden of proof in the available to establish the existence of an employee's favour where the employer fails employment relationship and the condi- to comply with his obligation to provide tions applying to it, and the admissibility of information about the essential aspects of such evidence will be governed by national the employment relationship. The burden law. of proof is governed by the general princi- ples of civil law in each Member State. The Austrian Government expressed a similar view. The Commission adds, in this regard, that the Directive gives no indication as to whether the principles governing the rules of evidence in force in German law also apply where an employer has failed to V — Analysis of the questions referred to comply with the obligation to provide the the Court for a preliminary ruling employee with written information.

18. As those who have submitted observa- or more other written documents or a tions in these proceedings have rightly written declaration signed by the employer. pointed out, a straightforward reading of the provision that the Court has been asked to interpret would suggest that the answer to this question should be in the negative. The length of an employee's normal work- ing day or week cannot include overtime since, as the name suggests, overtime is, by The information relating to the amount of its nature, worked outside the normal paid leave, the length of notice required for working day, extending or adding to it. termination of the employment relation- ship, the basic remuneration, the frequency of payment of remuneration and the length of the normal working day or week may, pursuant to Article 2(3), be given in the form of a reference to the laws, regulations and administrative or statutory provisions That answer does not, however, preclude or collective agreements governing these the circumstances in which an employer is particular points. entitled to expect employees to work over- time, together with the applicable condi- tions, from being deemed to be essential aspects of the employment relationship, nor does it remove the duty to provide employ- ees with information in that regard. 20. It is clear from the wording of Arti- cle 2(2) of Directive 91/533 that the list contained therein is not exhaustive, imply- ing that there may be other essential aspects which are also covered by the employer's obligation to provide information. 19. Article 2(1) of Directive 91/533 estab- lishes an employer's duty to notify the employee of the essential aspects of the employment relationship, although it does not define what these are, while Arti- cle 2(2) sets out a list of the minimum One such essential aspect of the employ- points which the written information ment relationship might be the circum- should include. stances in which and the conditions under which an employer has the right to ask, and to expect, employees to work overtime.

22. For the reasons I have given, it is my view that Article 2(2)(i) of Directive 91/533 does not apply to agreements The Directive merely requires Member governing overtime. An employer's over- States to adopt such measures as are time working arrangements are, neverthe- necessary to enable employees who con- less, an essential aspect of the employment sider themselves wronged to pursue their relationship about which an employee claims by judicial process. Therefore, in should receive information. That informa- these proceedings, the aim of which is to tion may be given to the employee in the establish whether the requirements laid form of a reference to the laws, regulations down in the Directive were observed, the and administrative or statutory provisions, national court must ascertain whether the or collective agreements, governing this employee was provided with the minimum particular area. amount of information required and whe-

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ther that information was adequate. How- provide documentation, referred to by the ever, the consequences of any failure to national court, have been developed by comply with those requirements fall to be German case-law and by virtue of those determined by national employment legis- principles the effect of one party's breach is lation. that the other is placed in a better position from the evidential point of view and may even be able to reverse the burden of proof

The principles of German law governing the burden of proof where one party has 5 —Joined Cases C-253/96 to C-258/96 Kampelmann and Others v Landschaftsverband Westfalen-Lippe and Others failed to comply with its legal obligation to [1997] ECR 1-6907.

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29. In its judgment in Kampelmann, the 31. Nevertheless, it cannot be inferred from Court held that the objectives set out in the that case-law — as the national court second recital in the preamble to the purports to do by converse interpreta- Directive, namely the wish to afford in tion — that, under Directive 91/533, the greater protection to employees against failure to provide the information referred possible infringements of their rights and to therein is as important as a similar to create greater transparency in the labour omission would be under national law. market, would not be achieved if the employee were unable to use the informa- tion contained in the notification referred to in Article 2(1) as evidence before the national courts, particularly in disputes concerning essential aspects of the contract or employment relationship. 6

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how national rules of evidence should be the Directive does not affect national law applied, nor has it established its own rules. and practice concerning the burden of The same must be said with regard to the proof as regards the existence and content applicable national rules of procedure. of a contract of employment or the relevant procedural rules, the Directive must be construed as neither requiring nor prohibit- 33. I must therefore conclude that, since ing the application of the national rules Article 6 of Directive 91/533 provides that governing such matters.

VI — Conclusion

34. In the light of the foregoing considerations, I propose that the Court of Justice reply to the questions referred to it for a preliminary ruling by the Arbeitsgericht Bremen as follows:

(1) Article 2(2)(i) of Council Directive 91/533/EEC of 14 October 1991 on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship must be construed as not applying to agreements regarding overtime working. An employer's overtime working arrangements are, however, an essential aspect of the employment relation- ship about which the employee should receive information. That information may be provided to the employee by, inter alia, reference to the relevant laws, regulations and administrative or statutory provisions, or collective agree- ments.