Opinion of the Advocate General — ECLI:EU:C:2018:338
Date: 2018-05-29
Language of the case: German
Subject matter: Approximation of laws;Social Policy;Free movement of workers;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Grand Chamber), 6 November 2018 1. Social policy — Protection of the safety and health of workers — Organisation of working time — Right to paid annual leave — National legislation providing for the automatic loss of annual leave not taken and of the allowance in lieu thereof where no application for leave has not been made by the worker prior to the termination of the employment relationship — No prior verification whether the worker had been given the opportunity actually to exercise that right — Not permissible — Obligations of national court — Interpretation of national legislation in a manner consistent with EU law (Charter of Fundamental Rights of the European Union, Arts 31(2) and 52(1); Directive 2003/88 of the European Parliament and of the Council, Art. 7) 2. Social policy — Protection of the safety and health of workers — Organisation of working time — Right to paid annual leave — Directive 2003/88 — Article 7 — Direct effect — Whether possible to invoke it in a dispute between individuals — Not possible (Directive 2003/88 of the European Parliament and of the Council, Art. 7) 3. Social policy — Protection of the safety and health of workers — Organisation of working time — Right to paid annual leave — Particularly important principle of EU social law — Scope (Art. 151 TFEU; Charter of Fundamental Rights of the European Union, Arts 21(1), 27 and 31(2); Directive 2003/88 of the European Parliament and of the Council, Art. 7; Council Directive 93/104, Art. 7) 4. Social policy — Protection of the safety and health of workers — Organisation of working time — Right to paid annual leave — National legislation deemed contrary to Directive 2003/88 and the Charter of Fundamental Rights of the European Union — Obligations of a national court hearing a dispute between private individuals — Non-application of that national legislation and grant of paid annual leave or financial compensation in the event of termination of the employment relationship — Limits (Charter of Fundamental Rights of the European Union, Arts 21(1), 31(2) and 51(1); Directive 2003/88 of the European Parliament and of the Council, Art. 7) 1. Article 7 of 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 and of Article 31(2) of the Charter of Fundamental Rights of the European Union must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which, in the event that the worker did not ask to exercise his right to paid annual leave during the reference period concerned, that worker loses, at the end of that period — automatically and without prior verification of whether the employer had in fact enabled him to exercise that right, in particular through the provision of sufficient information — the days of paid annual leave acquired under those provisions in respect of that period, and, accordingly, his right to an allowance in lieu of paid annual leave not taken in the event that the employment relationship is terminated. It is, in that regard, for the referring court to determine, taking into consideration the whole body of domestic law and applying the interpretative methods recognised by it, whether it can arrive at an interpretation of that right capable of ensuring the full effectiveness of EU law. While it should be made clear in the response, in that regard, to the first question, that compliance with the requirement, for employers, under Article 7 of Directive 2003/88 should not extend to requiring employers to force their workers to actually exercise their right to paid annual leave (see, to that effect, judgment of 7 September 2006, Commission v United Kingdom, C‑484/04, EU:C:2006:526, paragraph 43), the fact remains that employers must, however, ensure that workers are in a position to exercise such a right (see, to that effect, judgment of 29 November 2017, King, C‑214/16, EU:C:2017:914, paragraph 63). To that end, as the Advocate General also observed in points 41 to 43 of his Opinion, the employer is in particular required, in view of the mandatory nature of the entitlement to paid annual leave and in order to ensure the effectiveness of Article 7 of Directive 2003/88, to ensure, specifically and transparently, that the worker is actually in a position to take the paid annual leave to which he is entitled, by encouraging him, formally if need be, to do so, while informing him, accurately and in good time so as to ensure that that leave is still capable of ensuring for the person concerned the rest and relaxation to which it is supposed to contribute, that, if he does not take it, it will be lost at the end of the reference period or authorised carry-over period. In addition, the burden of proof in that respect is on the employer (see, by analogy, judgment of 16 March 2006, Robinson-Steele and Others, C‑131/04 and C‑257/04, EU:C:2006:177, paragraph 68). Should the employer not be able to show that it has exercised all due diligence in order to enable the worker actually to take the paid annual leave to which he is entitled, it must be held that the loss of the right to such leave at the end of the authorised reference or carry-over period, and, in the event of the termination of the employment relationship, the corresponding absence of a payment of an allowance in lieu of annual leave not taken constitutes a failure to have regard, respectively, to Article 7(1) and Article 7(2) of Directive 2003/88. Since the legislation at issue in the main proceedings is an implementation of Directive 2003/88, Article 31(2) of the Charter is intended to apply to the case in the main proceedings (see, by analogy, judgment of 15 January 2014, Association de médiation sociale, C‑176/12, EU:C:2014:2, paragraph 43). In that context, it should, finally, be recalled that limitations may be imposed on the fundamental right to annual paid leave affirmed in Article 31(2) of the Charter only in compliance with the strict conditions laid down in Article 52(1) thereof and, in particular, the essential content of that right. Thus, Member States may not derogate from the principle flowing from Article 7 of Directive 2003/88 read in the light of Article 31(2) of the Charter, that the right to paid annual leave acquired cannot be lost at the end of the leave year and/or of a carry-over period fixed by national law, when the worker has been unable to take his leave (see, to that effect, judgment of 29 November 2017, King, C‑214/16, EU:C:2017:914, paragraph 56). (see paras 44-46, 50, 54, 61, operative part1) 2. Accordingly, although Article 7(1) and (2) of Directive 2003/88 fulfilled the criteria of unconditionality and sufficient precision required in order to produce a direct effect (see, to that effect, judgment of today’s date, Bauer and Willmeroth, C‑569/16 and C‑570/16, EU:C:2018:337, paragraphs 71 to 73), those provisions cannot be invoked in a dispute between individuals in order to ensure the full effect of the right to paid annual leave and to set aside any contrary provision of national law (judgment of 26 March 2015, Fenoll, C‑316/13, EU:C:2015:200, paragraph 48). (see para. 68) 3. See the text of the decision. (see paras 69, 70, 72, 73) 4. In the event that it is impossible to interpret national legislation such as that at issue in the main proceedings in a manner consistent with Article 7 of Directive 2003/88 and Article 31(2) of the Charter of Fundamental Rights, it follows from the latter provision that a national court hearing a dispute between a worker and his former employer who is a private individual must disapply the national legislation and ensure that, should the employer not be able to show that it has exercised all due diligence in enabling the worker actually to take the paid annual leave to which he is entitled under EU law, the worker cannot be deprived of his acquired rights to that paid annual leave or, correspondingly, and in the event of the termination of the employment relationship, to the allowance in lieu of leave not taken which must be paid, in that case, directly by the employer concerned. The right to a period of paid annual leave, affirmed for every worker by Article 31(2) of the Charter, is thus, as regards its very existence, both mandatory and unconditional in nature, the unconditional nature not needing to be given concrete expression by provisions of EU or national law, which are only required to specify the exact duration of annual leave and, where appropriate, certain conditions for the exercise of that right. It follows that that provision is sufficient in itself to confer on workers a right that they may actually rely on in disputes between them and their employer in a field covered by EU law and therefore falling within the scope of the Charter (see, by analogy, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 76). With respect to the effect of Article 31(2) of the Charter on an employer who is a private individual, it should be noted that, although Article 51(1) of the Charter states that the provisions thereof are addressed to the institutions, bodies, offices and agencies of the European Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing EU law, Article 51(1) does not, however, address the question whether those individuals may, where appropriate, be directly required to comply with certain provisions of the Charter and cannot, accordingly, be interpreted as meaning that it would systematically preclude such a possibility. First of all, as noted by the Advocate General in point 78 of his Opinion in Joined Cases Bauer and Willmeroth (C‑569/16 and C‑570/16, EU:C:2018:337), the fact that certain provisions of primary law are addressed principally to the Member States does not preclude their application to relations between individuals (see, to that effect, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 77). Next, the Court has, in particular, already held that the prohibition laid down in Article 21(1) of the Charter is sufficient in itself to confer on individuals a right which they may rely on as such in a dispute with another individual (judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 76), without, therefore, Article 51(1) of the Charter precluding it. Finally, as regards, more specifically, Article 31(2) of the Charter, it must be noted that the right of every worker to paid annual leave entails, by its very nature, a corresponding obligation on the employer, which is to grant such periods of paid leave or an allowance in lieu of paid annual leave not taken upon termination of the employment relationship. (see paras 74, 76-79, 81, operative part2)