WRITTEN QUESTION E-3529/02

by Bartho Pronk (PPE-DE) to the Commission

(10 December 2002)

Subject: Statutory regulation of holiday pay

In Belgium an employee who did not work in Belgium in 2001, for example, is not entitled to any paid holidays in 2002. Consequently, a person who enters the labour market in Belgium on 1 January 2002 is not entitled to any paid holidays that year. This applies not only to Belgian nationals but also to people from other Member States wishing to exercise their right to free movement of workers within the Community (Article 39 of the Treaty), with the difference, however, that it applies irrespective of their employment record. This amounts to discrimination on the basis of nationality. The Commission itself has drawn attention to this situation(1), but it is unclear what action it has taken as the regulations still apply today. The relevant statutory provisions are the Royal Decree of 30 March 1967 establishing the general arrangements for implementing the laws relating to workers' annual holidays and the Royal Decree of 28 June 1971 adapting and coordinating the statutory provisions on workers' annual holidays.

1. Is this provision in breach of European regulations and, more specifically, Article 39 of the Treaty and Article 7 of the Working Time Directive (93/104/EC(2))?

2. What action has the Commission taken since noting this state of affairs(3)?

3. Can the Commission indicate what the position is in the EU with regard to transferring accrued entitlements to holiday pay?

4. Does the Commission intend to bring forward proposals to improve coordination of the various statutory provisions in the Member States?

(1) COM(2000) 787.

(2) OJ L 307, 13.12.1993, p. 18.

(3) COM(2000) 787.

Answer given by Ms Diamantopoulou on behalf of the Commission

(20 January 2003)

Article 7 of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time(1) stipulates that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

In the Commission's view, the Belgian provisions you mentioned are in compliance with Article 7 of the Directive, since the latter explicitly refers to the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

According to the Court of Justice's judgment of 26 November 2001 in Case C-173/99(2), legislation of a Member State which imposes a precondition for entitlement to paid annual leave that has the effect of preventing certain workers from acquiring any such entitlement not only negates an individual right expressly granted by Directive 93/104/EC but is also contrary to its objective (point 48 of the judgment). However, the Belgian legislation does not make entitlement conditional on a minimum period of work but merely defers such entitlement to the following calendar year. In the Commission's opinion, this is covered by the final part of Article 7(1).

As regards the transfer of accrued entitlement to holiday pay, there is no Community legislation on this subject and the Commission has no plans at present to put forward proposals in this area.

(1) OJ L 307, 13.12.1993.

(2) Judgment of the Court (Sixth Chamber) of 26 June 2001. The Queen v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU). Reference for a preliminary ruling: High Court of Justice (England & Wales), Queen's Bench Division (Crown Office) United Kingdom, European Court Reports 2001, p. I-04881.