View of the Advocate General — ECLI:EU:C:2013:573
Date: 2013-06-11
Language of the case: German
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Appeal;Staff cases;Action for damages;Review - successful

Summary — Judgment of the Court (Fourth Chamber), 19 September 2013 1. Social policy — Protection of the safety and health of workers — Organisation of working time — Right to paid annual — Principle of the social law of the European Union of particular importance (Charter of Fundamental Rights of the European Union, Art. 31(2); Directive 2003/88 of the European Parliament and of the Council, Art. 7(1)) European Parliament and Council Directive 2003/88, Art. 7(1)) 2. Social policy — Protection of the safety and health of workers — Organisation of working time — Right to paid annual leave — National legislation providing for the loss of that right at the end of a reference period even in the case of sick leave for the whole or part of that period — Not permissible (European Parliament and Council Directive 2003/88, Art. 7(1)) 3. Social policy — Protection of the safety and health of workers — Organisation of working time — Right to paid annual leave — Financial compensation for leave not taken because of sickness paid at the end of the employment relationship — Calculation of compensation (European Parliament and Council Directive 2003/88; Art. 7(2)) 4. Social policy — Protection of the safety and health of workers — Organisation of working time — Right to paid annual leave — Limitation of the accumulation of rights to paid annual leave for a worker who is unable to work for several consecutive reference periods (European Parliament and Council Directive 2003/88; Art. 7) 5. Officials — Leave — Annual leave — Article 1e(2) of the Staff Regulations — Article 4 of Annex V to the Staff Regulations — Interpretation — Interpretation in accordance with Article 7 of Directive 2003/88 concerning certain aspects of the organisation of working time — Obligation to take account of minimum requirements following from that article without prejudice to the more favourable provisions in the Staff Regulations (Charter of Fundamental Rights of the European Union, Art. 31(2); Staff Regulations, Art. 1e(2), and Annex V, Art. 4; European Parliament and Council Directive 2003/88, Art. 7) 6. Review — Finding of an adverse effect on the unity and consistency of EU law — Criteria for assessment — Inferences to be drawn — Setting aside of judgment — Possibility of the Court’s giving final judgment itself (Charter of Fundamental Rights of the European Union, Art. 31(2); Statute of the Court of Justice, Art. 62, first para.; Staff Regulations, Arts 1e(2), and Annex V, Art. 4; European Parliament and Council Directive 2003/88, Art. 7) 1. See the text of the decision. (see paras 26-29) 2. See the text of the decision. (see para. 31) 3. See the text of the decision. (see para. 33) 4. See the text of the decision. (see paras 35-37) 5. Under a general principle of interpretation according to which a European Union measure must be interpreted, as far as possible, in such a way as not to affect its validity and in conformity with primary law as a whole and, in particular, with the provisions of the Charter of Fundamental Rights of the European Union, Article 1e(2) of the Staff Regulations should be interpreted so as to ensure the consistency of that provision with the right to paid annual leave as a principle of the social law of the European Union now affirmed by Article 31(2) of the Charter. That requires an interpretation of Article 1e(2) to the effect that it allows the inclusion in the Staff Regulations of the substance of Article 7 of Directive 2003/88, concerning certain aspects of the organisation of working time, as a rule of minimum protection which could, as necessary, supplement the other provisions of the Staff Regulations dealing with the right to paid annual leave and, in particular, Article 4 of Annex V to those regulations. Article 4 of Annex V to the Staff Regulations should be interpreted as meaning that it does not deal with the question of the carry-over of paid annual leave which could not be taken by the official during the reference period because of long term sick leave, so that the requirements arising in that respect from Article 1e(2) of the Staff Regulations and more specifically from Article 7 of Directive 2003/88 must be taken into account as the minimum requirements applicable without prejudice to the more favourable provisions in the Staff Regulations. (see paras 40, 46, 56) 6. A judgment by which the General Court, as an appeal court, disregarding the right to paid annual leave as a principle of the social law of the European Union also expressly affirmed by Article 31(2) of the Charter and, in particular, referred to by Directive 2003/88 concerning certain aspects of the organisation of working time, interpreted Article 1e(2) of the Staff Regulations as not including the requirements relating to the organisation of working time contained in Directive 2003/88, in particular, paid annual leave, and, consequently, interpreted Article 4 of Annex V to those regulations as implying that the right to carry over annual leave exceeding the limit laid down in that provision may be granted only where the official has been unable to take leave for reasons connected with his activity as an official and the duties he has thus been required to perform, adversely affects the unity and consistency of EU law within the meaning of the first paragraph of Article 62b of the Statute of the Court of Justice. According to the first paragraph of Article 62b of the Statute of the Court of Justice, if the Court of Justice finds that the decision of the General Court affects the unity or consistency of EU law, it is to refer the case back to the General Court, which is to be bound by the points of law decided by the Court of Justice. In referring the case back, the Court of Justice may also state which of the effects of the decision of the General Court are to be considered definitive in respect of the parties to the litigation. In exceptional cases, the Court of Justice can itself give final judgment if, having regard to the result of the review, the outcome of the proceedings flows from the findings of fact on which the decision of the General Court was based. It follows that the Court cannot confine itself to finding that the unity or consistency of EU law is affected without stating the implications of that finding as regards the dispute in question. Such a judgment of the General Court of the European Union must therefore be set aside. (see paras 60-63, operative part 1, 2)