Information;Order — ECLI:EU:C:2023:783
Date: 2023-10-10
Language of the case: Spanish
Court formation: Sixth Chamber
Subject matter: Approximation of laws;Social Policy;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-795/22 – 1 
Case C-795/22 
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: 
30 December 2022 
Referring court: 
Tribunal Superior de Justicia de la Comunidad Valenciana (Spain) 
Date of the decision to refer: 
25 October 2022 
Appellant: 
Adolfo 
Respondents: 
Direccion000 CB 
Alfonso 
Álvaro 
Fondo de Garantía Salarial (FOGASA) [Wages Guarantee Fund] 
  
Subject matter of the main proceedings 
Claim for an allowance in lieu of leave not taken corresponding to a period to 
which the limitation period for actions applies. 
Subject matter and legal basis of the request 
Interpretation of EU law and of the Court’s case-law as regards (i) recognition, 
after the end of the reference period that gave rise to it, of the right to leave or of 
the right to an allowance in lieu where the leave was not taken, (ii) the time 
constraints governing the exercise of that right, and (iii) the calculation of the 
limitation period for bringing the corresponding action. Legal basis: Article 267 
TFEU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-795/22 
 
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Questions referred for a preliminary ruling 
(1) Does Article 7(1) of Directive [2003/88] or Article 31(2) of the [Charter] 
preclude a legislative provision or interpretation that makes it possible to 
determine the right to leave and an allowance in lieu of leave prior to the 
termination of the employment relationship? 
(2) If not, do Article 7(1) of Directive [2003/88] or Article 31(2) of the [Charter] 
preclude national legislation, such as Article 59 of the Workers’ Statute, which 
defines the loss, by limitation period, of rights or one-off actions such as annual 
leave [as] the lapse of one year from the end of the annual reference period to 
which the leave relates, with the loss, in the event that the employment 
relationship is terminated, of the right to be compensated for such unused leave, 
and specifically by not interrupting the limitation period through the use of the 
specific process for setting leave established in favour of the worker, or other 
forms of interruption that do not entail taking any legal action? 
Provisions of European law relied on 
Article 31 of the Charter of Fundamental Rights of the European Union. 
Recitals 4, 5 and 6, and Articles 7 and 17 of the 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. 
Provisions of national law relied on 
(A) Texto refundido de la Ley del Estatuto de los Trabajadores (ET), aprobado 
por Real Decreto Legislativo 2/2015, de 23 de octubre (Consolidated text of the 
Workers’ Statute Law (ET), approved by Royal Legislative Decree 2/2015 of 
23 October) 
Article 38. Annual leave. 
1. The period of paid annual leave, which may not be replaced by an 
allowance in lieu, shall be that agreed in collective agreements or individual 
contracts. In no circumstances shall the duration be less than 30 calendar 
days. 
2. The period or periods during which leave may be taken shall be scheduled 
by mutual consent between the employer and the employee, in accordance, where 
appropriate, with the provisions of the collective agreements on the annual 
planning of leave. 
DIRECCION000 AND OTHERS 
 
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In the case of disagreement between the parties, the social court shall set the dates 
of the leave to be allocated and its decision shall be final. The proceedings shall be 
summary and dealt with as a matter of priority. 
3. Each employer shall establish a leave schedule. Employees shall be made 
aware of the days to which they are entitled at least two months in advance of the 
start of their leave. 
When the period of leave set out in the employer’s leave schedule to which the 
previous paragraph refers coincides with a period of temporary incapacity 
resulting from pregnancy, childbirth or breastfeeding, or with the period of 
suspension of the contract of employment laid down in Article 48(4), (5) and (7) 
of this Law, employees shall be entitled, at a different point in time from that 
period of temporary disability or other period of leave, to take the leave to which 
they are entitled under the above provision following the period of suspension, 
even if the calendar year to which that leave relates has ended. 
If the period of leave coincides with a period of temporary incapacity resulting 
from circumstances other than those indicated in the preceding paragraph and 
which wholly or partially prevents the employee from taking leave during the 
calendar year to which it relates, the employee may take the leave after his or her 
period of disability has ended, provided that no more than 18 months have passed 
since the end of the year in which the leave arose. 
Article 59. Limitation period and time bars. 
1. Actions arising out of a contract of employment that are not subject to a 
special time limit shall be subject to a limitation period of one year from the end 
of the contract. … 
2. If the action is brought to claim financial payments or to demand the 
performance of one-off obligations, which cannot take place after the 
termination of the contract, the period of one year shall run from the date on 
which the action may be brought. 
(B) Código Civil (Civil code) (limitation period for actions) 
Article 1961 
Actions shall be time-barred by the mere lapse of the period of time set by law. 
Article 1969 
In the absence of specific provisions to the contrary, the limitation period for all 
types of legal action shall begin to run from the date on which the action may be 
brought. 
 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-795/22 
 
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Article 1973 
The limitation period for actions is interrupted by the commencement of an 
action before the courts, by an out-of-court claim by the creditor, or by any 
act of recognition of the debt by the debtor. 
(C) Ley 36/2011, de 10 de octubre, reguladora de la jurisdicción social (Law 
36/2011 of 10 October governing social jurisdiction) 
Articles 125 and 126 of this Law establish a special procedure for determining the 
date on which leave is taken, as follows: 
(a) Time limit for lodging the claim: (i) where the date of leave is specified in a 
collective agreement, or by agreement between the employer and the workers’ 
representatives, or where it has been set unilaterally by the employer, the worker 
shall have 20 days, from the day on which he or she became aware of that date, to 
lodge a claim before the social court; (ii) where the date on which leave is taken is 
not indicated, the claim must be lodged at least two months before the date on 
which the worker intends to take leave. 
(b) The procedure shall be urgent and dealt with as a matter of priority. The 
hearing shall be held within five days of the date on which the claim was lodged. 
The judgment, against which no appeal lies, must be delivered within three days. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The appellant, Mr Adolfo, was employed by the company DIRECCION000 CB, 
composed of Mr Alfonso and Mr Álvaro, as a baking assistant from 1 July 2015 
until the end of the employment relationship on 20 July 2019. The worker did not 
take leave in 2017 or 2018, and did not receive an allowance in lieu of leave not 
taken. 
2 On 4 September 2019, he lodged a claim before the mediation and conciliation 
service for an allowance in lieu of leave not taken. On 20 November 2019, he 
lodged a claim with the social court, which gave judgment on 18 May 2021 
partially upholding the claim for the amount of leave not taken as the respondent 
company had not proved that the employee was compensated for the unused 
leave, although it considered the action time-barred with regard to the leave 
claimed for the year 2017, on the grounds that it is a right that accrues during the 
year and that the right to take the accrued leave expires on 31 December of each 
year; thus, the leave for 2017 was accrued on 31 December 2017, and the claim 
for the corresponding right was lodged before the mediation and conciliation 
service on 4 September 2019, in other words, after more than a year had elapsed. 
3 The worker brought an appeal against that judgment before the referring court. 
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The essential arguments of the parties in the main proceedings 
4 The appellant, the worker, claimed that the situation at issue is governed by the 
judgment of the CJEU in Case C-684/16, taking the view that, at the end of the 
employment relationship, the worker is entitled to an allowance in lieu of leave 
not taken beyond the year in which the claim is made. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
Preliminary considerations 
5 The referring court has doubts as to the extent of the right to an allowance in 
lieu of leave not taken, particularly in cases where, even though it is possible to 
carry over the leave, the worker does not exercise that right or take any steps 
(either in the reference year or at a later date) to preserve the right during the term 
of the employment relationship, bearing in mind the rules on limitation periods for 
actions and the existence of a preferential and urgent procedure for setting the 
dates on which leave is taken. 
6 More specifically, the Court is asked to rule whether, in the circumstances 
described, the rules on limitation periods must be followed, with the consequent 
loss of the right to leave and to an allowance in lieu of leave not taken, or whether, 
on the contrary, the claim for the right to leave and to an allowance in lieu of leave 
not taken arises only after the termination of the employment relationship. 
Case-law of the CJEU on leave cited by the referring court 
Purpose of leave 
7 Judgment of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der 
Wissenschaften (C-684/16), paragraph 32: the right to annual leave laid down in 
Article 7 of Directive 2003/88 is intended to enable the worker to rest from 
carrying out the work he is required to do under his contract of employment and to 
enjoy a period of relaxation and leisure. 
8 Judgment of 20 January 2009, Schultz-Hoff and Others (C-350/06 and C-520/06), 
paragraph 30: while the positive effect of paid annual leave for the safety and 
health of the worker is deployed fully if it is taken in the year prescribed for that 
purpose, namely the current year, the significance of that rest period in that 
regard remains if it is taken during a later period. 
Scope of the rules on taking a period of leave 
9 Judgment of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der 
Wissenschaften (C-684/16), paragraph 34: it is for the Member States to lay 
down, in their domestic legislation, conditions for the exercise and 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-795/22 
 
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implementation of the right to paid annual leave, by prescribing the specific 
circumstances in which workers may exercise the right. 
10 Judgment of 20 January 2009, Schultz-Hoff and Others (C-350/06 and C-520/06), 
paragraph 42: a provision of national law setting out a carry-over period for 
annual leave not taken by the end of the leave year aims, as a rule, to give a 
worker who has been prevented from taking his annual leave an additional 
opportunity to benefit from that leave. The laying down of such a period forms 
part of the conditions for the exercise and implementation of the right to paid 
annual leave and therefore falls, as a rule, within the competence of the 
Member States. 
Loss of the right to leave 
11 Judgment of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der 
Wissenschaften (C-684/16), paragraph 35: Article 7(1) of Directive 2003/88 does 
not in principle preclude national legislation which lays down conditions for the 
exercise of the right to paid annual leave expressly conferred by the directive, 
including even the loss of that right at the end of a leave year or of a carry-
over period, provided, however, that the worker who has lost his right to paid 
annual leave has actually had the opportunity to exercise the right conferred 
on him by the directive. The judgments of 22 November 2011, KHS (C-214/10), 
paragraph 26, and of 22 September 2022, LB, (C-120/21), paragraph 25, are 
similar. 
12 Judgment of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der 
Wissenschaften (C-684/16), paragraphs 54 and 56: 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. Where 
the worker has refrained from taking his paid annual leave deliberately and in 
full knowledge of the ensuing consequences, after having been given the 
opportunity actually to exercise his right thereto, Article 7(1) and (2) of Directive 
2003/88 and Article 31(2) of the Charter do not preclude the loss of that right 
or, in the event of the termination of the employment relationship, the 
corresponding absence of an allowance in lieu of paid annual leave not taken, 
without the employer being required to force that worker to actually exercise that 
right. 
13 Judgment of 22 September 2022, LB (C-120/21), paragraphs 28, 45 and 52: it is 
only where there are ‘specific circumstances’ that the right to paid annual 
leave enshrined in Article 7 of Directive 2003/88 may be limited. It follows that, 
as has been noted in paragraph 25 of this judgment, the loss of the right to paid 
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annual leave at the end of a leave year or carry-over period can occur only 
provided that the worker concerned has actually had the opportunity to exercise 
that right in good time. In those circumstances, to accept that the employer may 
rely on the limitation period in respect of a worker’s entitlement without 
actually having put that worker in a position to exercise it would amount to 
validating conduct by which an employer was unjustly enriched, to the detriment 
of the very purpose of having due regard for workers’ health referred to by 
Article 31(2) of the Charter. 
National case-law on leave cited by the referring court 
14 The judgment of the Supreme Court of 25 February 2003 contains, in summary, 
the following rulings: 
15 The right to annual leave shall be designed so as to enable workers to recover 
from the physical and mental exertions of their work and to give them a long-
enough period of time for leisure and relaxation. 
16 The Workers’ Statute therefore makes it compulsory for leave to be granted and, 
to ensure that that purpose is not frustrated, also provides that the actual taking of 
leave may not be replaced by remuneration in cash, so that, if workers do not take 
the leave within the calendar year, not only do they lose the right to take it in the 
following year, but they may not receive financial remuneration in return for not 
taking it. 
17 The judgment of the Supreme Court of 14 March 2019 contains, in summary, the 
following ruling: 
18 The right to an allowance in lieu of leave not taken at the end of the employment 
relationship is recognised where it has not been possible to take the leave for 
reasons beyond the control of the worker, in particular where the worker is in a 
situation of temporary incapacity as a result of a declaration of permanent 
incapacity, it being understood that the action is not time-barred, including with 
regard to a claim for several previous years’ annual leave, since during those years 
the situation of temporary incapacity precluded the exercise of the right to leave 
during those reference periods. 
19 The judgment of the Supreme Court of 14 January 2020 contains, in summary, the 
following rulings: 
20 Even where the employment relationship has not ended, a claim for leave and an 
allowance in lieu of leave not taken is possible where it was not possible to take 
the leave during the corresponding calendar year. 
21 It is one thing for the right to take leave to be unwaivable and for the period of 
leave not to be replaced by financial compensation, and quite another for that right 
not to be economically assessable for the purposes of quantifying the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-795/22 
 
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consequences of a potential breach by the company of the applicable rules on this 
matter. 
22 The judgment of the Supreme Court of 1 December 2016 contains, in summary, 
the following rulings on the subject of limitation periods: 
23 Since the limitation period is an institution based not on principles of strict justice 
but on the principles of waiving or neglecting to exercise a right and the principle 
of legal certainty, its application by the courts must not be strict but cautious and 
restrictive. 
24 Where the ‘animus conservandi’ is duly established by the person entitled to bring 
an action, which is incompatible with any idea of abandoning that action, it must 
be held that the ‘tempus praescriptionis’ is interrupted, by recognising the out-of-
court claim (characterised by not requiring any instrumental formula for the 
purpose of interrupting the limitation period, with the result that any means may 
be used for that purpose) as a means of interrupting the limitation period, and by 
accepting proceedings before a body that is not competent to rule on the matter, 
such as the labour inspectorate. 
25 However, it does not appear that the Supreme Court has ruled on the general right 
to carry over leave or on the right to an allowance in lieu of leave not taken due to 
mere passivity on the part of the worker who has not brought an action to enforce 
rights. 
Doubts as to the interpretation of EU law 
26 On the basis of the case-law of the CJEU on the prevalence of the right to annual 
leave and the restrictive nature of the loss of such rights by the worker, in 
particular where the worker has not been able to exercise the right to leave, the 
question arises as to the effect that the legal provisions on the loss of rights due to 
the passage of time (limitation period) may have on the right to leave and, where 
applicable, whether the right to leave and, potentially, to an allowance in lieu of 
leave not taken may be subject to limitation. 
27 Annual leave must be taken during a reference period (leave year), but there is no 
doubt that, as the case-law of the CJEU states, annual leave can fulfil its purpose 
outside the leave year, notwithstanding the aforementioned findings of the 
Supreme Court, according to which the failure to take annual leave during the 
calendar year entails the loss of that right. 
28 The possibility of annual leave retaining its purpose and function after the leave 
year determines the possibility of leave being taken outside that period, but raises 
the question as to the period during which leave taken outside the calendar year 
may be taken, and the question of whether that right must be regarded as not 
subject to any limitation period, but as a cumulative right, not subject to a 
limitation period, to any annual leave not taken, which, in a strict interpretation of 
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EU law, would mean that the allowance in lieu of leave not taken could only be 
the subject of a dispute and could only be claimed once the employment 
relationship was over. 
29 Leave, which in principle is annual, must be taken during that period and, where 
the period is different, the general limitation period of one year would apply, with 
the result that the failure to exercise that right (specifically protected by an urgent 
and preferential procedure which, in addition, interrupts the limitation period) in 
such an annual period, without any specific cause preventing the exercise of that 
right, would lead to the loss of the right to carry over leave and to take it at a later 
date, which would mean that, in such circumstances and due to the passivity of the 
worker, an allowance in lieu of leave not taken would be unfeasible at the end of 
the employment relationship, since the right would be time-barred. 
The views of the referring court 
30 The referring court considers that, in accordance with the aforementioned case-
law and legislation: 
– the right to annual leave must be taken during the annual reference period; 
– that does not preclude, in view of the usefulness of taking leave during a 
different period, the right to take leave outside that period from being assessed, 
in so far as the employer has not established the leave schedule, by recognising a 
hypothetical general right to carry over such leave; 
– however, such a right does not become a right, not subject to a limitation 
period, to take leave or to receive an allowance in lieu of leave not taken at the 
end the limitation period for rights or actions, in the event that the worker has not 
been prevented from taking leave and has not claimed his or her right by recourse 
to the specific procedure for setting the leave period, or, at the very least, has not 
interrupted the limitation period by the various and simple procedures permitted 
by law; 
– it is not possible, at the end the employment contract, to claim an ‘allowance in 
lieu’ of leave not taken arising from an employment relationship the existence of 
which is not disputed and in respect of annual periods during which the worker 
did not exercise his or her right within the time limits laid down by national 
legislation and by means of specific procedures under Spanish law that could be 
regarded as granting ‘an effective possibility of exercising that right at the 
appropriate time’, with the result that the employer’s argument that the claim is 
time-barred is not contrary to the law and the case-law of the CJEU.