Opinion of the Advocate General — ECLI:EU:C:2018:337
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 — Scope — Allowance in lieu of leave not taken paid upon termination of the employment relationship — National legislation providing that the right to the allowance in lieu be extinguished in the event of the death of the worker — Not permissible (Charter of Fundamental Rights of the European Union, Arts. 31(2) and 52(1); Directive of the European Parliament and of the Council 2003/88, Art. 7; Council Directive 93/104, 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 rely upon it in a dispute between individuals — Not permissible (Directive of the European Parliament and of the Council 2003/88, 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, 31(2) and 52(1); Directive of the European Parliament and of the Council 2003/88, 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 — Financial compensation in lieu of leave not taken paid upon termination of the employment relationship — National legislation considered contrary to Directive 2003/88 and to the Charter of Fundamental Rights of the European Union — Obligations of a national court hearing a dispute between individuals — Non-application of that national legislation and grant of financial compensation to the heir of a deceased worker (Charter of Fundamental Rights of the European Union, Arts. 31(2) and 51(1); Directive of the European Parliament and of the Council 2003/88, 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, where the employment relationship is terminated by the death of the worker, the right to paid annual leave acquired under those provisions and not taken by the worker before his death lapses without being able to give rise to a right to an allowance in lieu of that leave which is transferable to the employee’s legal heirs by inheritance. The loss of a worker’s acquired right to paid annual leave or his corresponding right to payment of an allowance in lieu of leave not taken upon termination of the employment relationship, without the worker having actually had the opportunity to exercise that right to paid annual leave, would undermine the very substance of that right (see, to that effect, judgment of 19 September 2013, Review of Commission v Strack, C‑579/12 RX-II, EU:C:2013:570, paragraph 32). Thus, receipt of financial compensation if the employment relationship is terminated by reason of the worker’s death is essential to ensure the effectiveness of the entitlement to paid annual leave granted to the worker (see, to that effect, judgment of 12 June 2014, Bollacke, C‑118/13, EU:C:2014:1755, paragraph 24). In that context, it is important, finally, to recall that the Court has already held that the expression ‘paid annual leave’ in Article 7(1) of Directive 2003/88, which should be given the same meaning as that of ‘annual period of paid leave’ in Article 31(2) of the Charter, means that, for the duration of annual leave within the meaning of those provisions, remuneration must be maintained and, in other words, workers must receive their normal remuneration for that period of rest (see, to that effect, judgment of 15 September 2011, Williams and Others, C‑155/10, EU:C:2011:588, paragraphs 18 and 19). As was recalled in paragraph 39 of the present judgment, the right to annual leave constitutes only one of two aspects of the right to paid annual leave as an essential principle of EU social law reflected in Article 7 of Directive 93/104 and Article 7 of Directive 2003/88, now expressly enshrined as a fundamental right in Article 31(2) of the Charter. As well as an entitlement to a payment, that fundamental right also includes, as a right which is consubstantial with the right to ‘paid’ annual leave, the right to an allowance in lieu of annual leave not taken upon termination of the employment relationship. In that regard, limitations may be imposed on that right only under the strict conditions laid down in Article 52(1) of the Charter and, in particular, of the essential content of that right. Thus, Member States may not derogate from the rule laid down in 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. 49, 50, 57-59, 61, 63, operative part 1) 2. See the text of the decision. (see paras 72, 73, 77, 78) 3. See the text of the decision. (see paras 80, 81, 83, 84) 4. Where it is impossible to interpret a national rule 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, the national court, before which a dispute between the legal heir of a deceased worker and the former employer of that worker has been brought, must disapply that national legislation and ensure that the legal heir receives payment from the employer of an allowance in lieu of paid annual leave acquired under those provisions and not taken by the worker before his death. That obligation on the national court is dictated by Article 7 of Directive 2003/88 and Article 31(2) of the Charter of Fundamental Rights where the dispute is between the legal heir and an employer which has the status of a public authority, and under the second of those provisions where the dispute is between the legal heir and an employer who is a private individual. 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 the 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, 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 preventing 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. (see paras. 85, 87-90, 92, operative part 2)