Conley King v The Sash Window Workshop Ltd and Richard Dollar.
Date: 2017-11-29
26


In that regard, it should be noted that, under the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice, require his involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (judgment of 22 June 2017, Federatie Nederlandse Vakvereniging and Others, C‑126/16, EU:C:2017:489, paragraph 31 and the case-law cited).
27


Consequently, an interested party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he examines in that Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (see, to that effect, judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 26).
31


By its first question, the referring court asks, in essence, whether Article 7 of Directive 2003/88 and the right to an effective remedy set out in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) must be interpreted as meaning that, in the case of a dispute between a worker and his employer as to whether the worker has the right to paid annual leave under the first of those articles, they preclude the worker having to take his leave first before establishing whether he has the right to be paid in respect of that leave.
32


First, as is clear from the very wording of Article 7(1) of Directive 2003/88, a provision from which no derogation is permitted by that directive, every worker is entitled to paid annual leave of at least four weeks. That right to paid annual leave must be regarded as a particularly important principle of EU social law, the implementation of which by the competent national authorities must be confined within the limits expressly laid down by Directive 2003/88 itself (judgment of 30 June 2016, Sobczyszyn, C‑178/15, EU:C:2016:502, paragraph 19 and the case-law cited).
33


Second, it must be noted that the right to paid annual leave is expressly set out in Article 31(2) of the Charter, which Article 6(1) TEU recognises as having the same legal value as the Treaties (judgment of 22 November 2011, KHS, C‑214/10, EU:C:2011:761, paragraph 37).
34


Third, it is clear from the terms of Directive 2003/88 and the Court’s case-law that, although it is for the Member States to lay down the conditions for the exercise and implementation of the right to paid annual leave, they must not make the very existence of that right, which derives directly from that directive, subject to any preconditions whatsoever (see, to that effect, judgment of 20 January 2009, Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 28).
35


Fourth, it is also clear from the Court’s case-law that Directive 2003/88 treats the right to annual leave and to a payment on that account as being two aspects of a single right. The purpose of the requirement that the leave be paid is to put the worker, during such leave, in a position which is, as regards salary, comparable to periods of work (judgment of 22 May 2014, Lock, C‑539/12, EU:C:2014:351, paragraph 17 and the case-law cited).
37


The very purpose of the right to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure (see, inter alia, judgments of 20 January 2009, Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 25, and of 30 June 2016, Sobczyszyn, C‑178/15, EU:C:2016:502, paragraph 25).
39


Similarly, such circumstances are liable to dissuade the worker from taking his annual leave. In that regard, it must be noted that any practice or omission of an employer that may potentially deter a worker from taking his annual leave is equally incompatible with the purpose of the right to paid annual leave (see, to that effect, judgment of 22 May 2014, Lock, C‑539/12, EU:C:2014:351, paragraph 23 and the case-law cited).
41


It is true that Directive 2003/88 contains no provisions on judicial remedies available to the worker, in the case of a dispute with his employer, to enforce his right to paid annual leave under that directive. However, it is not disputed that the Member States must, in such a context, ensure compliance with the right to an effective remedy, as enshrined in Article 47 of the Charter (see, by analogy, judgment of 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 46).
49


In that regard, in order to respond to those questions, it must be noted that the Court has previously been called upon, inter alia, in its judgment of 20 January 2009, Schultz-Hoff and Others (C‑350/06 and C‑520/06, EU:C:2009:18), to rule on questions concerning a worker’s right to paid annual leave which he was unable to exercise until termination of his employment relationship due to reasons beyond his control, specifically because of illness.
51


Thus, it must be noted, in the first place, that Directive 2003/88 does not allow Member States either to exclude the existence of the right to paid annual leave or to provide for the right to paid annual leave of a worker, who was prevented from exercising that right, to be lost at the end of the reference period and/or of a carry-over period fixed by national law (judgment of 20 January 2009, Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraphs 47 and 48 and the case-law cited).
52


Moreover, it is clear from the Court’s case-law that a worker who has not been able, for reasons beyond his control, to exercise his right to paid annual leave before termination of the employment relationship is entitled to an allowance in lieu under Article 7(2) of Directive 2003/88. The amount of that payment must be calculated so that the worker is put in a position comparable to that he would have been in had he exercised that right during his employment relationship (judgment of 20 January 2009, Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 61).
54


In that particular context, the Court held that although a worker who is unfit for work for several consecutive holiday years would be entitled to accumulate, without any limit, all the entitlements to paid annual leave that are acquired during his absence from work, such unlimited accumulation of entitlements would no longer reflect the actual purpose of the right to paid annual leave (see, to that effect, judgment of 22 November 2011, KHS, C‑214/10, EU:C:2011:761, paragraphs 29 and 30).
55


Thus, in the specific circumstances in which a worker is unfit for work for several consecutive holiday years, the Court has held that, having regard not only to the protection of workers as pursued by Directive 2003/88, but also the protection of employers faced with the risk that a worker will accumulate periods of absence of too great a length and the difficulties in the organisation of work which such periods might entail, Article 7 of that directive must be interpreted as not precluding national provisions or practices limiting, by a carry-over period of 15 months at the end of which the right to paid annual leave is lost, the accumulation of entitlements to such leave by a worker who has been unfit for work for several consecutive holiday years (see, to that effect, judgment of 22 November 2011, KHS, C‑214/10, EU:C:2011:761, paragraphs 38, 39 and 44).
56


It follows from this that it is necessary to consider, in the third place, whether circumstances such as those at issue in the main proceedings are ‘specific’ for the purposes of the case-law cited in the previous paragraph, such that, as is the case with an extended absence of the worker due to sick leave, they justify an exception to the principle established in Article 7 of Directive 2003/88 and Article 31(2) of the Charter, according to which 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.
58


First, according to the Court’s settled case-law, the right to paid annual leave cannot be interpreted restrictively (see judgment of 22 April 2010Zentralbetriebsrat der Landeskrankenhäuser Tirols, C‑486/08, EU:C:2010:215, paragraph 29). Thus, any derogation from the European Union system for the organisation of working time put in place by Directive 2003/88 must be interpreted in such a way that its scope is limited to what is strictly necessary in order to safeguard the interests which that derogation protects (see, to that effect, judgment of 14 October 2010, Union syndicale Solidaires Isère, C‑428/09, EU:C:2010:612, paragraph 40 and the case-law cited).
62


Against that background, as is clear from paragraph 34 of the present judgment, the very existence of the right to paid annual leave cannot be subject to any preconditions whatsoever, that right being conferred directly on the worker by Directive 2003/88. Thus, as regards the case in the main proceedings, it is irrelevant whether or not, over the years, Mr King made requests for paid annual leave (see, to that effect, judgment of 12 June 2014, Bollacke, C‑118/13, EU:C:2014:1755, paragraphs 27 and 28).
63


It follows from the above that, unlike in a situation of accumulation of entitlement to paid annual leave by a worker who was unfit for work due to sickness, an employer that does not allow a worker to exercise his right to paid annual leave must bear the consequences.
65


It follows from all the foregoing considerations that the answer to the second to fifth questions is that Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave.