EN Official Journal of the European Union C 69/3

Judgment of the Court (Grand Chamber) of 20 January 2009 (references for a preliminary ruling from the Landesarbeitsgericht Düsseldorf (Germany) and House of Lords (United Kingdom)) — Gerhard Schultz-Hoff v Deutsche Rentenversicherung Bund

(Joined Cases C-350/06 and C-520/06) (1)

(Working conditions - Organisation of working time - Directive 2003/88/EC - Right to paid annual leave - Sick leave - Annual leave coinciding with sick leave - Compensation for paid annual leave not taken before the end of the contract because of sickness)

(2009/C 69/04)

Language of the case: German and English

Referring courts

Landesarbeitsgericht Düsseldorf, House of Lords

Parties to the main proceedings

Applicants: Gerhard Schultz-Hoff (C-350/06), Stringer and Others (C-520/06)

Defendants: Deutsche Rentenversicherung Bund (C-350/06), Her Majesty's Revenue and Customs (C-520/06)

Re:

Reference for a preliminary ruling — Landesarbeitsgericht Düsseldorf, House of Lords — Interpretation of Article 7(1) and (2) 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 (OJ L 299, p. 9) — Right to paid annual leave subject to the following conditions: actual presence in the workplace, maintenance of the capacity to work during the leave, and exercise not capable of extension beyond a deadline in the following year — Right of a worker on indefinite sick leave to take annual leave during that sick leave — Right of a worker who has been dismissed while on long-term sick leave to receive compensation for the annual leave not taken during the leave year

Operative part of the judgment

1. Article 7(1) 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 not precluding national legislation or practices according to which a worker on sick leave is not entitled to take paid annual leave during that sick leave.

2. Article 7(1) of Directive 2003/88 must be interpreted as precluding national legislation or practices which provide that the right to paid annual leave is extinguished at the end of the leave year and/or of a carry-over period laid down by national law even where the worker has been on sick leave for the whole or part of the leave year and where his incapacity to work has persisted until the end of his employment relationship, which was the reason why he could not exercise his right to paid annual leave.

3. Article 7(2) of Directive 2003/88 must be interpreted as precluding national legislation or practices which provide that, on termination of the employment relationship, no allowance in lieu of paid annual leave not taken is to be paid to a worker who has been on sick leave for the whole or part of the leave year and/or of a carry-over period, which was the reason why he could not exercise his right to paid annual leave. For the calculation of the allowance in lieu, the worker's normal remuneration, which is that which must be maintained during the rest period corresponding to the paid annual leave, is also decisive.

(1) OJ C 281, 18.11.2006.

OJ C 56, 10.3.2007.