In its landmark ruling on May 14, 2019, the European Court of Justice held that the European Working Time Directive (Directive 2003/88) and the Charter of Fundamental Rights of the European Union (Article 31) is opposed to any Member State’s legislation that does not impose an obligation on employers to introduce an objective, reliable, and accessible system for recording working time. In the Court's view, national legislation that does not require the introduction of such a system would not be capable of guaranteeing the effectiveness of the rights enshrined in those provisions, namely the rights of workers to the limitation of maximum working hours and to rest periods.

This judgment calls on the courts and tribunals of the Member States to apply the principle of interpretation in conformity, which means that even where a European rule has no direct effect on the laws of the Member State, the national court is required to interpret its national law, as far as possible, to comply with that EU rule standard.

However, the principle of interpretation in conformity sought by the European Court of Justice is not without limits. It cannot serve as a basis for a contra legem interpretation of national law, nor can it run up against the constitutional principle of the separation of powers, which prevents judges from "creating" law.

As the legislation currently stands, however, Belgian law does not provide for any general obligation to record working hours. Moreover, the Belgian rules of evidence in civil proceedings require an employee making a claim for payment of overtime to provide proof of their allegations.

As a result, since this ruling, Belgian labor courts, confronted with claims from employees for overtime pay, face a dilemma—they are torn between their obligation to achieve the result set out in the European Directive and their concern not to encroach on the powers of the legislature. 

Thus, in the light of the above-mentioned judgment of the Court of Justice, some Belgian courts have ruled that it is up to the employer to prove the hours actually worked by the employees, thus reversing the procedural rules on the burden of proof. For example, in a judgment issued on May 22, 2020, the Brussels Labor Court held that the employer had an obligation to set up an objective, reliable, and accessible system for recording working hours. If it did not do so, the employer bore the burden of proving the hours actually worked by the employee or, at the very least, to prove that the employee had not worked the (overtime) hours for which they were claiming payment. The Brussels Labor Court based this reversal of the burden of proof on the employer's manifestly inadequate cooperation in providing evidence.

Although other judges have subsequently followed this reasoning, the majority of case law remains reluctant to make such a U-turn on the grounds that, as long as Belgian legislation has not been adapted to impose an obligation on employers to introduce a system for recording working time, they cannot be forced to introduce such a system.

Notably, in a recent judgment issued March 26, 2024, the Labor Tribunal of Walloon Brabant (Wavre division) was called upon to rule on the request of an employee claiming payment of overtime. The Court refused to grant the request, citing the limits of its jurisdictional power. The employee, on the basis of the aforementioned Labor Court judgment of May 22, 2020, sought to have the burden of proof reversed in his favor, arguing that the employer had failed to cooperate in the administration of evidence. The Court disagreed and ruled as follows: 

As things stand in Belgium, employers are under no obligation to set up an objective, reliable and accessible system for measuring the length of time worked each day by each employee. The Court was therefore faced with an “extrinsic void” in the law. 

In concrete terms, only the existing provision must be applied by the court, without it being able to fill the gap (Cass., 7 May 2010, RG. C09.0317.F/1.) Consequently, the interpretation in conformity with the Directive, with a view to guaranteeing its usefulness (meeting its objective), cannot under any circumstances allow the court to create law. 

The constitutional principle of separation of powers implies this guarantee. A Court may not therefore issue measures in a particular case where the legislature and/or the government have failed to achieve the result set by a Directive. Accepting that the Courts could act in this way would necessarily lead to legal uncertainty. 

By virtue of the judgment delivered on 14/05/2019 by the CJEU, the Court therefore considers that while it is incumbent on the labor courts to interpret Belgian provisions in the light of European law where possible, this principle of interpretation in conformity cannot itself lead the same courts to legislate in place of the legislator (Case C-55/18). [...]. 

In the event of a dispute by the employer as to the overtime claimed by the employee, it is for the employee to provide proof of his allegations by virtue of the joint application of Articles 870 of the Judicial Code and 1315 (now 8.4. C.C.) of the Civil Code.

We are still waiting for the Belgian legislature to take action, which would restore legal certainty on this issue. In the meantime, employers are advised to strictly regulate the provision of overtime in their companies.