Case C‑341/15

Hans Maschek

v

Magistratsdirektion der Stadt Wien — Personalstelle Wiener Stadtwerke

(Request for a preliminary ruling from the Verwaltungsgericht Wien)

‛Reference for a preliminary ruling — Social policy — Directive 2003/88/EC — Article 7 — Right to paid annual leave — Retirement at the request of the party concerned — Worker failing to use up all his entitlement to annual paid leave before the termination of his work relations — National legislation excluding allowance in lieu of paid annual leave not taken — Sick leave — Public servants’

Summary — Judgment of the Court (Tenth Chamber), 20 July 2016

Social policy — Protection of the safety and health of workers — Organisation of working time — Right to paid annual leave — Allowance in lieu of annual leave not taken paid at the end of the employment relationship — National legislation refusing that allowance to a worker who has applied for retirement and who is unable to exhaust his entitlement to leave before the end of this relationship — Unlawful — Entitlement to that allowance where the worker was prevented from working by sickness — Absence of such entitlement in the case of an agreement between the worker and the employer requiring the worker not to report to his place of work with the concomitant payment of his salary — Limits — Non-exhaustion of entitlements to leave due to illness — Right for Member States to grant workers additional annual paid leave in addition to the minimum annual leave — Detailed rules and arrangements

(European Parliament and Council Directive 2003/88, Arts 7(2) and 15)

Article 7(2) of Directive 2003/88 concerning certain aspects of the organisation of working time, must be interpreted:

— as precluding national legislation which deprives the worker, whose employment relationship was terminated following his request for retirement, of an allowance in lieu of paid annual leave not taken and who has not been able to use up his rights to paid annual leave before the end of that employment relationship. In that respect, the reason for which the employment relationship has ended is not relevant. Therefore, the fact that a worker terminates, at his own request, his employment relationship has no bearing on his entitlement to receive, where appropriate, an allowance in lieu of paid annual leave which he has not been able to use up before the end of his employment relationship;

— as meaning that a worker is entitled, on retirement, to an allowance in lieu of paid annual leave not taken because he was prevented from working by sickness;

— as meaning that a worker whose employment relationship has ended and who, pursuant to an agreement with his employer, while continuing to receive his salary, was required not to report to his place of work during a specified period preceding his retirement, is not entitled to an allowance in lieu of paid annual leave not taken during this period, unless he was not able to use up that entitlement due to illness;

— as meaning that it is, on the one hand, for the Member States to decide whether to grant workers additional paid leave in addition to the minimum annual paid leave of four weeks provided for in Article 7 of Directive 2003/88. In that case, the Member States may grant to a worker who, because of illness, could not use up all of his additional paid annual leave before the end of his employment relationship, an entitlement to an allowance in lieu of that additional period. It is, on the other hand, for the Member States to determine the conditions for granting that entitlement. Although the purpose of Directive 2003/88 is to lay down minimum health and safety requirements for the organisation of working time, which Member States must respect, they have, in accordance with Article 15 of that directive, the right to introduce more favourable provisions for workers.

(see paras 28, 29, 32, 35, 38, 40, operative part)