Case C‑619/16

Sebastian W. Kreuziger

v

Land Berlin

(Request for a preliminary ruling from the Oberverwaltungsgericht Berlin-Brandenburg)

(Reference for a preliminary ruling — Social policy — Organisation of working time — Directive 2003/88/EC — Article 7 — Right to paid annual leave — National legislation providing for the loss of annual leave not taken and of the payment in lieu thereof, where the worker did not submit a request for leave before the termination of the employment relationship)

Summary — Judgment of the Court (Grand Chamber), 6 November 2018

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 payment in lieu thereof where the worker has not submitted a request for leave before the termination of the employment relationship — No prior verification whether it had been possible for the worker effectively to exercise that right — Not permissible

(European Parliament and Council Directive 2003/88, Art. 7)

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 must be interpreted as precluding national legislation such as that at issue in the main proceedings, in so far as it entails that, in the event that the worker did not ask to exercise his right to paid annual leave prior to the termination of the employment relationship, that worker loses — automatically and without prior verification of whether the employer had in fact enabled him, in particular through the provision of sufficient information, to exercise his right to leave prior to the termination of that relationship — the days of paid annual leave to which he was entitled under EU law on the date of the termination of that relationship, and, accordingly, his right to an allowance in lieu of paid annual leave not taken.

In that regard, while it should be made clear 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 given the opportunity 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 43 to 45 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 guarantee the effectiveness of Article 7 of Directive 2003/88, to ensure, specifically and transparently, that the worker is actually given the opportunity 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 procuring 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, or upon termination of the employment relationship where the termination occurs during such a 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 and the case-law cited). 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, 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.

(see paras 51-53, 56, operative part)