# C_2012287EN.01001902.xml

| 22.9.2012 | EN | Official Journal of the European Union | C 287/19 |
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22.9.2012

EN

Official Journal of the European Union

C 287/19

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Reference for a preliminary ruling from the Arbeitsgericht Nienburg (Germany) lodged on 27 June 2012 — Heinz Kassner v Mittelweser-Tiefbau GmbH & Co

(Case C-311/12)

2012/C 287/36

Language of the case: German

Referring court

Referring court

Arbeitsgericht Nienburg

Parties to the main proceedings

Parties to the main proceedings

Applicant: Heinz Kassner

Applicant:

Defendant: Mittelweser-Tiefbau GmbH & Co

Defendant:

Questions referred

Questions referred

| 1. | Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC (1) of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding national legislation under which, in certain sectors, the length of the period of annual leave of at least four weeks may be reduced by way of collective agreement? |
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1.

Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC (1) of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding national legislation under which, in certain sectors, the length of the period of annual leave of at least four weeks may be reduced by way of collective agreement?

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| 2. | Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding national legislation under which it may be provided in collective agreements that reductions in earnings occurring in the period of calculation as a result of short-time work, loss of working hours or non-culpable absence from work affect the calculation of the payment for annual leave with the result that the worker does not receive any payment for annual leave for the duration of the period of annual leave of at least four weeks, or does not receive any allowance in lieu of leave after the employment relationship has ended? |
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2.

Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding national legislation under which it may be provided in collective agreements that reductions in earnings occurring in the period of calculation as a result of short-time work, loss of working hours or non-culpable absence from work affect the calculation of the payment for annual leave with the result that the worker does not receive any payment for annual leave for the duration of the period of annual leave of at least four weeks, or does not receive any allowance in lieu of leave after the employment relationship has ended?

| 3. | If Question 2 is answered in the affirmative: Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding national legislation under which it may be provided in collective agreements that reductions in earnings occurring in the period of calculation as a result of short-time work, loss of working hours or non-culpable absence from work affect the calculation of the payment for annual leave with the result that the worker receives a lower payment for annual leave for the duration of the period of annual leave of at least four weeks, or receives a lower allowance in lieu of leave after the employment relationship has ended, than he would receive if the calculation of the payment for annual leave were based on the average earnings which the worker would have received in the period of calculation without such reductions in earnings? If so, what is the maximum percentage, with reference to the worker’s full average earnings, that a collectively agreed reduction, permitted by national legislation, of the payment for annual leave as a result of short-time work, loss of working hours or non-culpable absence from work may have in the period of calculation in order for the interpretation of that national legislation to be regarded as in conformity with EU law? |
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3.

If Question 2 is answered in the affirmative: Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding national legislation under which it may be provided in collective agreements that reductions in earnings occurring in the period of calculation as a result of short-time work, loss of working hours or non-culpable absence from work affect the calculation of the payment for annual leave with the result that the worker receives a lower payment for annual leave for the duration of the period of annual leave of at least four weeks, or receives a lower allowance in lieu of leave after the employment relationship has ended, than he would receive if the calculation of the payment for annual leave were based on the average earnings which the worker would have received in the period of calculation without such reductions in earnings? If so, what is the maximum percentage, with reference to the worker’s full average earnings, that a collectively agreed reduction, permitted by national legislation, of the payment for annual leave as a result of short-time work, loss of working hours or non-culpable absence from work may have in the period of calculation in order for the interpretation of that national legislation to be regarded as in conformity with EU law?

| 4. | Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding a provision in a national collective agreement under which a leave entitlement does not accrue for periods of the year in which a worker who is unfit for work due to sickness has not received remuneration, sick pay or injury benefit, in so far as, consequently, the worker has an entitlement to less than four weeks’ annual leave? |
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4.

Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding a provision in a national collective agreement under which a leave entitlement does not accrue for periods of the year in which a worker who is unfit for work due to sickness has not received remuneration, sick pay or injury benefit, in so far as, consequently, the worker has an entitlement to less than four weeks’ annual leave?

| 5. | Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding a provision in a national collective agreement under which a paid annual leave entitlement — or after the employment relationship has ended an entitlement to an allowance in lieu of leave — does not accrue in years in which, as a result of loss of working hours or non-culpable absence from work, in particular due to sickness, no gross wage is earned? |
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5.

Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding a provision in a national collective agreement under which a paid annual leave entitlement — or after the employment relationship has ended an entitlement to an allowance in lieu of leave — does not accrue in years in which, as a result of loss of working hours or non-culpable absence from work, in particular due to sickness, no gross wage is earned?

| 6. | Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding a provision in a national collective agreement under which entitlements to leave and to an allowance in lieu of leave expire at the end of the calendar year following the year in which the leave entitlements accrued, thereby limiting the possibility for a worker who is unfit for work for several consecutive reference periods to accumulate entitlements to paid annual leave? If so, is EU law applied better and more effectively in national law if such a collectively agreed rule is disapplied entirely, or if the rule is developed in conformity with EU law in such a way that, rather than the annual period, a certain longer period applies? |
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6.

Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding a provision in a national collective agreement under which entitlements to leave and to an allowance in lieu of leave expire at the end of the calendar year following the year in which the leave entitlements accrued, thereby limiting the possibility for a worker who is unfit for work for several consecutive reference periods to accumulate entitlements to paid annual leave? If so, is EU law applied better and more effectively in national law if such a collectively agreed rule is disapplied entirely, or if the rule is developed in conformity with EU law in such a way that, rather than the annual period, a certain longer period applies?

| 7. | If one or more of Questions 1 to 5 are answered in the affirmative: Do the general principle of legal certainty laid down by EU law and the principle of non-retroactivity allow the possibility of relying on the Court’s interpretation of Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time in the preliminary ruling to be given in the present case to be limited in time, with effect for all parties, because the highest national courts have previously ruled that the relevant national legislation and collectively agreed rules are not amenable to an interpretation in conformity with EU law? If the Court answers this question in the negative: Is it compatible with EU law if, on the basis of national law, the national courts grant protection of legitimate expectations to employers, who have relied on the continued application of the case-law developed by the highest national courts, or is the grant of protection of legitimate expectations reserved for the Court of Justice of the European Union? |
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7.

If one or more of Questions 1 to 5 are answered in the affirmative: Do the general principle of legal certainty laid down by EU law and the principle of non-retroactivity allow the possibility of relying on the Court’s interpretation of Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time in the preliminary ruling to be given in the present case to be limited in time, with effect for all parties, because the highest national courts have previously ruled that the relevant national legislation and collectively agreed rules are not amenable to an interpretation in conformity with EU law? If the Court answers this question in the negative: Is it compatible with EU law if, on the basis of national law, the national courts grant protection of legitimate expectations to employers, who have relied on the continued application of the case-law developed by the highest national courts, or is the grant of protection of legitimate expectations reserved for the Court of Justice of the European Union?

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(1)  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 2003 L 299, p. 9).

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