# CE2004084EN.01047301.xml

| 3.4.2004 | EN | Official Journal of the European Union | CE 84/473 |
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3.4.2004

EN

Official Journal of the European Union

CE 84/473

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(2004/C 84 E/0547)

WRITTEN QUESTION E-1671/03

by Bartho Pronk (PPE-DE) to the Commission

(19 May 2003)

Subject:   Follow-up question to question E-3529/02 on statutory regulation of holiday pay

Subject:

In its answer to Written Question E-3529/02 (1), the Commission states that Belgian legislation defers the actual exercise of entitlement to annual leave to the following calendar year. The Commission considers that this is in accordance with Article 7 of Directive 93/104/EC (2). However, the Article in question expressly states that every (!) worker is entitled to paid annual (!) leave of at least four weeks. In COM(2000) 787 the Commission itself notes that workers cannot take any paid leave during the first year of their employment. The only conclusion that may be drawn from this is that not all workers are entitled to paid annual leave in Belgium, as is explicitly required under Directive 93/104/EC. Article 7(2) of the Directive expressly states that the minimum period of paid annual leave may not be replaced by an allowance in lieu. That means that it is not possible to derogate from paragraph 1.

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| 1. | Does the Commission agree that not all workers are entitled to paid annual leave in Belgium, as is noted in COM(2000) 787, and that this is the case in particular for those who are in their first year in employment? How does this accord with the provision in the Directive stating that all workers have this right? The Commission is expressly requested to take account of its communication COM(2000) 787 in its answer. |
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1.

Does the Commission agree that not all workers are entitled to paid annual leave in Belgium, as is noted in COM(2000) 787, and that this is the case in particular for those who are in their first year in employment? How does this accord with the provision in the Directive stating that all workers have this right? The Commission is expressly requested to take account of its communication COM(2000) 787 in its answer.

| 2. | The Commission also did not address, in its earlier answer, the question concerning to what extent the Belgian regulation constitutes an obstacle to free movement of workers and, accordingly, may be in contravention of Article 39 of the Treaty. The Commission is expressly requested to comment on this question. |
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The Commission also did not address, in its earlier answer, the question concerning to what extent the Belgian regulation constitutes an obstacle to free movement of workers and, accordingly, may be in contravention of Article 39 of the Treaty. The Commission is expressly requested to comment on this question.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(20 June 2003)

(20 June 2003)

| 1. | The Commission refers to its answer to Written Question E-3529/02 by Mr Pronk (3). In addition, the Commission would like to stress that, under Belgian law, every worker has a right to paid annual leave of at least four weeks. Article 2 of the Consolidation Law on annual leave of 27 June 1971 provides that workers (...) are entitled to annual leave in proportion to the work performed (...). Workers' right to leave is an acquired right, notwithstanding any agreement to the contrary. Workers may not waive their entitlement to annual leave. Article 3 of the aforementioned law provides that the amount of leave is defined by leave cycle, on the basis of the amount of services performed during the cycle. (...). Leave must total at least twenty-four days per twelve months of work (...). For the purposes of calculating this amount, the cycle is defined as the calendar year preceding the year in which the leave is to be granted (...).
  Belgian legislation should thus not be confused with legislation such as that in question in the Bectu case (4), since it does not make the entitlement to paid annual leave subject to a minimum period of work but merely defers the practical exercise of this right to the following calendar year. In the view of the Commission, this complies with Article 7(1) (see the argument put forward in the answer to question E-3529/02). |
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The Commission refers to its answer to Written Question E-3529/02 by Mr Pronk (3). In addition, the Commission would like to stress that, under Belgian law, every worker has a right to paid annual leave of at least four weeks. Article 2 of the Consolidation Law on annual leave of 27 June 1971 provides that workers (...) are entitled to annual leave in proportion to the work performed (...). Workers' right to leave is an acquired right, notwithstanding any agreement to the contrary. Workers may not waive their entitlement to annual leave. Article 3 of the aforementioned law provides that the amount of leave is defined by leave cycle, on the basis of the amount of services performed during the cycle. (...). Leave must total at least twenty-four days per twelve months of work (...). For the purposes of calculating this amount, the cycle is defined as the calendar year preceding the year in which the leave is to be granted (...).

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Belgian legislation should thus not be confused with legislation such as that in question in the Bectu case (4), since it does not make the entitlement to paid annual leave subject to a minimum period of work but merely defers the practical exercise of this right to the following calendar year. In the view of the Commission, this complies with Article 7(1) (see the argument put forward in the answer to question E-3529/02).

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| 2. | The Commission considers that Belgian legislation does not give rise to discrimination against migrant workers and that, as a result, it does not represent an infringement of the right to free movement of workers (Article 39 of the EC Treaty). |
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2.

The Commission considers that Belgian legislation does not give rise to discrimination against migrant workers and that, as a result, it does not represent an infringement of the right to free movement of workers (Article 39 of the EC Treaty).

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(1)  OJ C 137 E, 12.6.2003, p. 222.

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(2)  OJ L 307, 13.12.1993, p. 18.

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(3)  OJ C 137 E, 12.6.2003, p. 222.

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(4)  See the judgment of the European Court of Justice of 26 June 2001 in case C-l73/99.

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