# C_2013046EN.01001303.xml

| 16.2.2013 | EN | Official Journal of the European Union | C 46/13 |
| --------- | -- | -------------------------------------- | ------- |

---

Reference for a preliminary ruling from Employment Tribunal (United Kingdom) made on 26 November 2012 — ZJR Lock v British Gas Trading Limited & Others

(Case C-539/12)

2013/C 46/25

Language of the case: English

Referring court

Employment Tribunal

Parties to the main proceedings

Applicant: ZJR Lock

Defendants: British Gas Trading Limited & Others

Questions referred

| 1. | Where
(i)
a worker’s annual pay comprises of basic pay and commission payments made under a contractual right to commission (ii)
the commission is paid by reference to sales made and contracts entered into by the employer in consequence of the worker’s work (iii)
commission is paid in arrears and the amount of commission received in a given reference period fluctuates according to the value of sales achieved and contracts entered into and the time of such sales (iv)
during periods of annual leave, the worker does not undertake any work that would entitle him to those commission payments and accordingly does not generate commission in respect of such periods (v)
during the pay period which includes a period of annual leave, the worker is entitled to basic pay and will continue to receive commission payments based on commission earned earlier; and (vi)
his average commission earnings over the course of the year will be lower than they would be if the worker had not taken leave, because, during the leave period, he will not have undertaken any work that would entitle him to commission payments does Article 7 of Directive 93/104/EC( 1 ), as amended by Directive 2003/88/EC( 2 ), require that Member States take measures to ensure that a worker is paid in respect of periods of annual leave by reference to the commission payments he would have earned during that period, had he not taken leave, as well as his basic pay? | (i) | a worker’s annual pay comprises of basic pay and commission payments made under a contractual right to commission | (ii) | the commission is paid by reference to sales made and contracts entered into by the employer in consequence of the worker’s work | (iii) | commission is paid in arrears and the amount of commission received in a given reference period fluctuates according to the value of sales achieved and contracts entered into and the time of such sales | (iv) | during periods of annual leave, the worker does not undertake any work that would entitle him to those commission payments and accordingly does not generate commission in respect of such periods | (v) | during the pay period which includes a period of annual leave, the worker is entitled to basic pay and will continue to receive commission payments based on commission earned earlier; and | (vi) | his average commission earnings over the course of the year will be lower than they would be if the worker had not taken leave, because, during the leave period, he will not have undertaken any work that would entitle him to commission payments |
| ----- | ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | --- | ----------------------------------------------------------------------------------------------------------------- | ---- | -------------------------------------------------------------------------------------------------------------------------------- | ----- | --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | ---- | -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | --- | ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | ---- | ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- |
| (i) | a worker’s annual pay comprises of basic pay and commission payments made under a contractual right to commission | | | | | | | | | | | | |
| (ii) | the commission is paid by reference to sales made and contracts entered into by the employer in consequence of the worker’s work | | | | | | | | | | | | |
| (iii) | commission is paid in arrears and the amount of commission received in a given reference period fluctuates according to the value of sales achieved and contracts entered into and the time of such sales | | | | | | | | | | | | |
| (iv) | during periods of annual leave, the worker does not undertake any work that would entitle him to those commission payments and accordingly does not generate commission in respect of such periods | | | | | | | | | | | | |
| (v) | during the pay period which includes a period of annual leave, the worker is entitled to basic pay and will continue to receive commission payments based on commission earned earlier; and | | | | | | | | | | | | |
| (vi) | his average commission earnings over the course of the year will be lower than they would be if the worker had not taken leave, because, during the leave period, he will not have undertaken any work that would entitle him to commission payments | | | | | | | | | | | | |

| 2. | What are the principles which inform the answer to question 1.? |
| -- | --------------------------------------------------------------- |

| 3. | If the answer to question 1 is ‘Yes’, what principles (if any) are required to be adopted by member states in calculating the sum that is payable to the worker by reference to the commission that the worker would or might have earned if he had not taken annual leave? |
| -- | --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- |

---

( 1 )  Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of working time

OJ L 307, p. 18

( 2 )  Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time

OJ L 299, p. 9

---