Gülay Bollacke v K + K Klaas & Kock BV & Co. KG.
Date: 2014-06-12
15. In that regard it should be noted, first, that, according to the Court’s settled case-law, the entitlement of every worker to paid annual leave must be regarded as a particularly important principle of European Union social law from which there may be no derogations and whose implementation by the competent national authorities must be confined within the limits expressly laid down by Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18) itself, that directive having been codified by Directive 2003/88 (see Schultz-Hoff and Others , C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 22 ; KHS , C‑214/10, EU:C:2011:761, paragraph 23; and Dominguez , C‑282/10, EU:C:2012:33, paragraph 16).
16. Moreover, it must be noted, first, that Article 7 of Directive 2003/88 is not one of the provisions from which the directive expressly allows derogation (see Schultz-Hoff and Others , EU:C:2009:18, paragraph 24), and, second, that that directive treats entitlement to annual leave and to a payment on that account as being two aspects of a single right.
17. Finally, the Court has previously stated that when the employment relationship has terminated, and, therefore, it is in fact no longer possible to take paid annual leave, Article 7(2) of Directive 2003/88 provides that the worker is entitled to an allowance in lieu in order to prevent all enjoyment by the worker of that right to paid annual leave, even in pecuniary form, being lost because of that ‘impossibility’ (see, to that effect, Schultz-Hoff and Others , EU:C:2009:18, paragraph 56, and Neidel , C‑337/10, EU:C:2012:263, point 29).
18. Consequently, the Court has held that 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 ( Schultz-Hoff and Others , EU:C:2009:18, paragraph 62).
20. In that regard, it must be stated that the entitlement to paid annual leave constitutes only one of two aspects of an essential principle of EU social law and that that principle also includes the entitlement to a payment (see, to that effect, Schultz-Hoff and Others , EU:C:2009:18, paragraph 60 and the case-law cited).
21. In fact, the expression ‘paid annual leave’, used by the EU legislature, in, inter alia, Article 7 of Directive 2003/88, means that, for the duration of annual leave within the meaning of that directive, the worker’s remuneration must be maintained. In other words, workers must continue to receive their normal remuneration throughout that period of rest and relaxation (see, Robinson-Steele and Others , C‑131/04 and C‑257/04, EU:C:2006:177, paragraph 50; Schultz-Hoff and Others , EU:C:2009:18, paragraph 58; and Lock , C‑539/12, EU:C:2014:351, paragraph 16).
22. In order to ensure respect for that fundamental workers’ right affirmed in EU law, the Court may not make a restrictive interpretation of Article 7(2) of Directive 2003/88 at the expense of the rights that workers derive from it (see, to that effect, inter alia, Heimann and Toltshin , C‑229/11 and C‑230/11, EU:C:2012:693, paragraph 23 and the case-law cited, and the order in Brandes , C 415/12, EU:C:2013:398, paragraph 29 and the case-law cited).
23. Next, it should be noted, as the Hungarian Government puts forward in its observations, that Article 7(2) of Directive 2003/88, as interpreted by the Court, lays down no condition for entitlement to an allowance in lieu other than that relating to the fact, first, that the employment relationship has ended and, secondly, that the worker has not taken all annual leave to which he was entitled on the date that that relationship ended.
24. Finally, it should be noted that receipt of financial compensation if the employment relationship has ended by reason of the worker’s death is essential to ensure the effectiveness of the entitlement to paid annual leave granted to the worker under Directive 2003/88.
25. Indeed, if the obligation to pay annual leave were to cease with the end of the employment relationship because of the worker’s death, the consequence of that circumstance would be an unintended occurrence, beyond the control of both the worker and the employer, retroactively leading to a total loss of the entitlement to paid annual leave itself, as affirmed in Article 7 of Directive 2003/88.
27. Moreover, since Article 7(2) of Directive 2003/88 does not impose any condition for entitlement to an allowance in lieu other than that relating to the fact that the employment relationship has ended, it must be held that receipt of such an allowance should not be make subject to the existence of a prior application for that purpose.
28. Indeed, on the one hand, that entitlement is conferred directly by the directive without the worker concerned having to take any steps in this regard and, secondly, that entitlement does not depend on conditions other than those which are explicitly provided in the directive, so that the fact that the worker has not previously applied for an allowance in lieu under Article 7(2) of that directive is entirely irrelevant.