Opinion of the Advocate General — ECLI:EU:C:2000:589
Date: 2000-10-26
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
1. Social policy — Approximation of laws — Employer's obligation to inform employ­
ees of the conditions applicable to the contract or employment relationship — 
Directive 91/533 — Scope — Working of overtime — Included — Condition — 
Basis — Definition of 'essential element of the contract or employment relation­
ship' — Form in which notified to the employee 
(Council Directive 91/533, Art. 2(1),(2) and (3)) 
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SUMMARY — CASE C-350/99 
2. Social policy — Approximation of laws — Employer's obligation to notify the 
employee of any term having the nature of the conditions applicable to the contract 
or employment relationship — Directive 91/533 — Failure to give the requisite 
information concerning an essential element of the contract or employment relation­
ship •— Penalties — Power of the Member States — Limits •—• Availability of judi­
cial process 
(Council Directive 91/533, Art. 8(1)) 
3. Social policy — Approximation of laws —· Employer's obligation to inform employ­
ees of the conditions applicable to the contract or employment relationship — 
Directive 91/533 — Breach of the obligation to inform •— Proof of the existence and 
content of the contract or employment relationship — Application of national law 
(Council Directive 91/533) 
1. Article 2(2)(i) of Directive 91/533 on 
an employer's obligation to inform 
employees of the conditions applicable 
to the contract or employment relation­
ship must be interpreted as not relating 
to the working of overtime. However, 
it is clear from Article 2(1) of that 
Directive that the employer is obliged 
to notify the employee of any term 
having the nature of an essential ele­
ment of the contract or employment 
relationship and requiring the 
employee to work overtime whenever 
requested to do so by his employer. 
That information must be notified 
under the same conditions as those laid 
down by the Directive for the elements 
expressly mentioned in Article 2(2) 
thereof. It may, where appropriate, by 
analogy with the rule which applies, in 
particular, to normal working hours by 
virtue of Article 2(3) of the Directive, 
take the form of a reference to the 
relevant laws, regulations and admin­
istrative or statutory provisions or 
collective agreements. 
(see para. 25, and operative part 1) 
2. It follows from Article 8(1) of Direc­
tive 91/533 on an employer's obliga­
tion to inform employees of the condi­
tions applicable to the contract or 
employment relationship that the 
Directive cannot be interpreted as 
meaning that a failure to give an 
employee the requisite information 
concerning an essential element of the 
contract or employment relationship 
will render that element inapplicable 
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LANGE 
since the Directive leaves to the Mem­
ber States the power to define the 
penalties appropriate to such circum­
stances, subject to the proviso that 
employees must be able to pursue their 
claims by judicial process. 
(see para. 28) 
3. The question whether the rules applic­
able under national law to presump­
tions of obstruction of the proper 
taking of evidence must also be applied 
in the event of an employer's failing to 
comply with his obligation under 
Directive 91/533 on an employer's 
obligation to inform employees of the 
conditions applicable to the contract or 
employment relationship to provide 
information is a question which per­
tains to the scope of those rules, which 
relate to the burden of proof, and thus 
concerns the rules of evidence applic­
able in that event. Such a question is 
not governed by the Directive, which 
leaves it to the Member States to apply 
their own rules of evidence as to the 
existence and content of contracts or 
employment relationships. 
(see paras 33-34) 
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