Opinion of the Advocate General — ECLI:EU:C:2019:1083
Date: 2019-12-12
Language of the case: Spanish
Subject matter: Approximation of laws;Social Policy;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-588/18 — 1 
Case C-588/18 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
20 September 2018 
Referring court: 
Audiencia Nacional (National High Court, Spain) 
Date of the decision to refer: 
3 September 2018 
Applicants: 
Federación de Trabajadores Independientes de Comercio (FETICO) 
Federación Estatal de Servicios, Movilidad y Consumo de la Unión 
General de Trabajadores (FESMC-UGT) 
Federación de Servicios de Comisiones Obreras (CC.OO.) 
Defendants: 
Grupo de Empresas DIA, S.A. 
Twins Alimentación, S.A. 
      
Subject matter of the main proceedings 
Whether various types of paid leave of absence can begin or take place only on 
days which are working days for the employee, that is to say, business days 
(excluding public holidays, rest days and annual leave). 
Purpose and legal basis of the request for a preliminary ruling 
Whether the national legislation at issue, which allows weekly rest periods or 
annual leave to overlap with paid leave of absence, is compatible with Directive 
[2003]/88/EC. The legal basis is Article 267 TFEU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-588/18 
 
2  
Questions referred 
1. Must Article 5 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 be interpreted as precluding national 
legislation under which the weekly rest period is permitted to overlap with 
paid leave of absence intended to meet needs other than rest? 
2. Must 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 be interpreted as precluding national 
legislation under which annual leave is permitted to overlap with paid leave 
of absence intended to meet needs other than rest, relaxation and leisure? 
Provisions of EU law cited 
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; ‘Directive 2003/88’). Recital 5, Article 1, Article 2(2), and 
Articles 5 and 7. 
Judgments of the Court of Justice: 
Of 9 September 2003, Jaeger (C-151/02, EU:C:2003:437). 
Of 18 March 2004, Merino Gómez (C-342/01, EU:C:2004:160). 
Of 16 March 2006, Robinson-Steele and Others (C-131/04 and C-257/04, 
EU:C:2006:177). 
Of 6 April 2006, Federatie Nederlandse Vakbeweging (C-124/05, 
EU:C:2006:244) 
Of 20 January 2009, Schultz-Hoff and Others (C-350/06 and C-520/06, 
EU:C:2009:18). 
Of 10 September 2009, Vicente Pereda (C-277/08, EU:C:2009:542). 
Of 22 April 2010, Zentralbetriebsrat der Landeskrankenhäuser Tirols (C-486/08, 
EU:C:2010:215). 
Of 14 October 2010, Union syndicale Solidaires Isère (C-428/09, 
EU:C:2010:612). 
Of 15 September 2011, Williams (C-155/10, EU:C:2011:588). 
Of 21 June 2012, ANGED (C-78/11, EU:C:2012:372). 
FETICO AND OTHERS 
 
3 
Of 8 November 2012, Heimann and Toltschin (C-229/11 and C-230/11, 
EU:C:2012:693). 
Of 22 May 2014, Lock (C-539/12, EU:C:2014:351). 
Of 11 November 2015, Greenfield (C-219/14, EU:C:2015:745). 
Of 23 December 2015, Commission v Greece (C-180/14, EU:C:2015:840). 
Of 30 June 2016, Sobczyszyn (C-178/15, EU:C:2016:502). 
Of 9 November 2017, Maio Marques da Rosa (C-306/16, EU:C:2017:844). 
Of 29 November 2017, King (C-214/16, EU:C:2017:914). 
Provisions of national law cited 
Spanish Constitution. Article 40(2). 
Estatuto de los Trabajadores (Workers’ Statute); consolidated text approved by 
Royal Legislative Decree 2/2015 of 23 October 2015 (BOE No 255 of 24 October 
2015, p. 100224) (‘ET’). Articles 37 and 38. 
Civil Code. Articles 4(3) and 5(2). 
Collective agreement for the DIA, S.A. corporate group and Twins Alimentación, 
S.A. (BOE No 212 of 2 September, p. 63357; published by a Decision of 
22 August 2016 by the Dirección General de Empleo (Directorate General for 
Employment) (‘collective agreement’). 
Judgment of the Tribunal Supremo (Supreme Court, Spain) of 13 February 2018. 
Brief summary of the facts and the main proceedings 
1 The Federación de Trabajadores Independientes de Comercio (Federation of 
Independent Retail Employees; ‘FETICO’), the Federación de Servicios de 
Comisiones Obreras (Services Federation of the Workers Commissions; ‘CCOO’) 
and the Federación Estatal de Servicios para la Movilidad y el Consumo de la 
Unión General de Trabajadores (National Federation of Transport and Consumer 
Services of the General Workers’ Union; ‘FESMC-UGT’) filed claims on 4, 29 
and 31 May 2018 respectively against the DIA, S.A. corporate group and Twins 
Alimentación, S.A., over an industrial dispute. 
2 FETICO is asking the Audiencia Nacional (National High Court, Spain), which is 
the referring court, to rule that both the start and the remainder of the periods of 
paid leave of absence referred to in Article 46 of the collective agreement, other 
than leave of absence for marriage, should occur on business days (or working 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-588/18 
 
4  
days, that is, days on which the employee who is granted leave of absence is 
required to work) and should exclude non-business days (rest days, annual leave 
and public holidays). It is also requesting that leave of absence for marriage 
should begin on a business day. 
3 CCOO is requesting that all leave of absence provided for in Article 46 (other than 
marriage leave) should be taken on business days and, in the alternative, that the 
date from which the period of leave is calculated should always be the first 
working day after the event that gives rise to the leave; in the case of marriage 
leave, it is requesting that the date from which the period of leave is calculated 
should always be the first working day after the event. 
4 UGT is requesting that all leave of absence provided for in Article 46 should 
always begin on the first working day after the event giving rise to the leave. 
Essential arguments of the parties in the main proceedings 
5 The applicants agreed that these questions should be referred for a preliminary 
ruling. They doubt whether it is consistent with Articles 5 and 7 of Directive 
2003/88 to deny employees the right to take the various leaves of absence 
provided for in Article 37(3) ET where the need or situation giving grounds for 
the leave coincides with a weekly rest or annual leave period, given that in such 
cases employees have to use those rest periods — which are designed for a 
different purpose — to deal with that situation or need. 
6 For their part, the DIA, S.A. group and Twins Alimentación, S.A. argued against 
the need to refer the question. They consider that because the dispute concerns the 
regulation of paid leave of absence, the subject matter falls outside the jurisdiction 
of the Court of Justice. In addition, in their view the weekly and annual rest 
periods provided for in Spanish law are more generous than those provided for in 
Directive 2003/88, and the personal or civic needs which the paid leave of absence 
is designed to address can be met during holiday periods without such periods 
ceasing to satisfy their intended function. 
Brief summary of the grounds for the request for a preliminary ruling 
7 Article 37 ET regulates weekly rest periods, public holidays and leave of absence. 
In this regard, Article 37(1) provides that employees are entitled ‘to a weekly 
minimum uninterrupted rest period, which may be accumulated over periods of up 
to 14 days, of one and a half days which, as a general rule, shall comprise either 
Saturday afternoon or Monday morning, together with the entirety of Sunday’. 
8 In addition, Article 37(3) establishes that, provided that they give advance notice 
and reasons for the absence, employees may take paid leave of absence from work 
in a series of circumstances (known as periods of paid leave of absence): marriage 
(15 calendar days); the birth of a child, or death, accident, serious illness, 
FETICO AND OTHERS 
 
5 
hospitalisation or operation requiring rest at home involving a family member up 
to the second degree of consanguinity or affinity (2 days); change of habitual 
place of residence (1 day); performance of an unavoidable public and personal 
duty, including exercise of the right to vote (for the time required to perform the 
duty); performance of trades union or staff representative duties in accordance 
with statutory provisions or collective agreements; antenatal examinations, 
childbirth classes and attendance at information and preparation sessions and in 
order to complete the mandatory psychological and social reports needed in cases 
of adoption, care and fostering, where the sessions have to take place during the 
working day (for the time required). 
9 Article 38 ET governs annual leave, and stipulates that the minimum annual leave 
allowance is 30 calendar days. It provides that where the period of annual leave 
coincides with temporary inability to work, due to illness or accident, pregnancy, 
childbirth or breastfeeding, or in certain circumstances where the contract of 
employment is suspended (childbirth, adoption), the employee shall be entitled to 
take his or her annual leave at a time falling outside the period of temporary 
incapacity or suspension, and that in certain cases the annual leave may be taken 
the following year. 
10 Article 46 of the collective agreement, which is the subject of the dispute, includes 
the contents of Article 37 ET and in some cases is more generous: in some cases it 
grants more days’ leave of absence and it also grants leave in some additional 
cases (such as the marriage of family members up to the second degree, for 
example). 
11 The purpose of the proceedings is to determine whether the periods of paid leave 
of absence provided for in Article 46 of the collective agreement, other than 
marriage leave, must be taken on working days; the referring court is also being 
asked to rule that marriage leave should begin on a day that is a working day for 
the employee, even though it is calculated in calendar days. 
12 Neither the collective agreement nor the ET specifies whether the leave of absence 
refers to calendar days or business days, except in the case of marriage leave, 
where it is expressly stated that leave is to be calculated in calendar days. 
Standard practice in the defendant companies is for paid leave of absence to run 
from the event that gives rise to it, regardless of whether or not this is a working 
day for the employee, and for it to be calculated in calendar days. 
13 The applicants cite a judgment of the Supreme Court of 13 February 2018, which 
does not constitute a binding precedent; this held that, having regard to 
Article 37(3) ET, in those cases where the event giving rise to the leave of absence 
occurs on a non-working day, the start of the leave period should be postponed to 
the next working day. 
14 The referring court recognises that the case deals with paid leave of absence, over 
which the Court of Justice of the European Union has no jurisdiction. However, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-588/18 
 
6  
the subject matter is closely linked to the right to annual leave and weekly rest 
periods provided for in Directive 2003/88; and the Directive establishes that 
adequate rest, whether weekly or annual, is essential for ensuring workers’ 
occupational health and safety, which is why these rest periods are mandatory and 
may not be replaced by payment in lieu. 
15 Directive 2003/88 is implemented in Spanish law by Article 37(1) and Article 38 
ET, which are more generous than the provisions in the European legislation: the 
first of these provisions fixes the weekly rest period, as a general rule, as a 
minimum uninterrupted period of one and a half days, and the second provision 
provides for a minimum of 30 calendar days’ annual leave. Therefore the question 
relates solely to the overlap with the minimum periods provided for in the 
European legislation, which are the periods guaranteed by that legislation (24 
hours of weekly rest and 4 weeks of annual leave). 
16 The ruling to be given by the referring court is conditioned by the scope of the 
right to a weekly rest period and to annual leave; a crucial factor is whether the 
taking of weekly rest periods and annual leave at the same time as leave of 
absence designed to meet other needs is compatible with Directive 2003/88. In 
this regard, although the Court of Justice has ruled on various occasions on the 
right to holidays, these rulings cannot be clearly extrapolated to the present case. 
17 Thus, the Court of Justice has specified that the purpose of Directive 2003/88 is 
effectively to protect the health and safety of workers. In light of that essential 
objective each employee must in particular enjoy adequate rest periods and, to that 
end, the first paragraph of Article 5 provides for a minimum uninterrupted weekly 
rest period for the benefit of every worker. 
18 With regard to Article 7 of Directive 2003/88, the Court of Justice has held that 
the right of workers to paid annual leave of at least 4 weeks, from which no 
derogation is permitted, is a particularly important principle of EU social law, the 
purpose of which is to enable workers to rest and to enjoy a period of relaxation 
and leisure. That right to an effective rest period must be guaranteed, in the 
interests of effective protection of their health and safety. 
19 The Court of Justice has held that a period of leave guaranteed by EU law cannot 
affect the right to take another period of leave guaranteed by that law, as in the 
case of an overlap between annual leave and maternity leave, or between annual 
leave and sick leave. It has also noted that any practice or omission of an 
employer that may potentially deter a worker from taking his annual leave is 
incompatible with the purpose of the right to paid annual leave. It has also held 
that the right to paid annual leave cannot be interpreted restrictively, which means 
that any derogation from the EU system for the organisation of working time put 
in place by Directive 2003/88 must be interpreted in such a way that its scope is 
limited to what is strictly necessary in order to safeguard the interests which that 
derogation protects. 
FETICO AND OTHERS 
 
7 
20 With regard to the case at issue, it should be noted that the forms of paid leave 
regulated by Article 37(3) ET are causal, as their purpose is to satisfy certain 
personal or civic needs of employees, some of which are connected with freedom 
of association or performance of family duties. 
21 Marriage leave (paragraph (a)) is calculated in calendar days, while the provisions 
on leave for the birth of a child, or death, accident, illness, hospitalisation or 
surgical operation involving a close relative (paragraph (b)) or change of habitual 
place of residence (paragraph (c)) refer to ‘days’, without specifying whether 
these are calendar or working days. Leave for the purpose of performing an 
unavoidable public and personal duty (paragraph (d)), carrying out trades union or 
staff representative duties (paragraph (e)), and attending antenatal examinations, 
childbirth classes and mandatory sessions concerning adoption, care and fostering 
(paragraph (f)) is calculated on the basis of ‘the time required’. 
22 The legislation does not explain why marriage leave is granted in calendar days 
while the other forms of leave are granted in days or for the time required; nor 
does it specify at what point the leave begins. In addition, Article 5(2) of the Civil 
Code, which applies on a supplementary basis, establishes that, for civil law 
purposes, non-working days are not excluded from calculations of time periods. 
23 In order to resolve the dispute, it is necessary to determine what happens when the 
need or situation for which the law establishes paid leave of absence arises during 
an employee’s weekly rest period or annual leave. The applicants argue that all 
periods of leave should begin on a working day and, except in the case of 
marriage leave, should also be taken on a working day, while the defendants argue 
that leave of absence should begin when the causal event occurs, regardless of 
whether or not this is a working day, and should run for an uninterrupted period 
over the following days, without excluding non-working days. 
24 The referring court considers that, where any of the situations addressed in 
Article 37(3) ET occurs during a weekly rest or annual leave period, there would 
be two overlapping needs: the need that is covered by rest periods and annual 
leave, and the need addressed in Article 37. If it were to be accepted that in these 
circumstances the leave of absence cannot be shifted to a time outside the rest or 
annual leave period, then these periods could be stripped of their content, because 
employees would have to use them to deal with problems posed by needs that are 
supposed to be addressed by paid leave of absence, which has a different purpose 
in law. Therefore, as the rights in question are configured as different cases, the 
referring court raises the question whether, where those cases arise at the same 
time, measures should be put in place to ensure that workers can actually enjoy 
the rest periods established in Directive 2003/88.