Alexander Heimann and Konstantin Toltschin v Kaiser GmbH.
Date: 2012-11-08
22. In that regard, it should be noted first of all that, according to 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 (see Joined Cases C‑350/06 and C‑520/06 Schultz-Hoff and Others  [2009] ECR I‑179, paragraph 54, and Case C‑337/10 Neidel  [2012] ECR, paragraph 28). The right to paid annual leave is, as a principle of European Union social law, expressly laid down in Article 31(2) of the Charter of Fundamental Rights of the European Union, which Article 6(1) TEU recognises as having the same legal value as the Treaties (see Case C‑214/10 KHS [2011] ECR I‑11757, paragraph 37, and Neidel , paragraph 40).
23. Secondly, it must be recalled that the right to paid annual leave may not be interpreted restrictively (Case C‑78/11 ANGED [2012] ECR, paragraph 18).
24. Thus, the Court has held that, with regard to workers on sick leave which has been duly granted, the right to paid annual leave conferred by Directive 2003/88 on all workers may not be made subject by a Member State to a condition that the worker should actually have worked during the reference period laid down by that State ( Schultz-Hoff and Others , paragraph 41, and Case C‑282/10 Dominguez [2012] ECR, paragraph 20).
25. According to that case‑law, it follows 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. 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 ( Schultz-Hoff and Others , paragraph 62).
26. However, although it cannot be accepted that a worker’s right to a minimum paid annual leave, guaranteed by European Union law, may be reduced where the worker could not fulfil his obligation to work during the reference period due to an illness, the case‑law referred to in the previous paragraph cannot be applied mutatis mutandis to a situation of a worker on short-time working, such as that in the main proceedings.
28. In that respect, it must be recalled, first, that, in the case in the main proceedings, the short-time working is based on a social plan which is part of a particular form of staff agreement, agreed between the employer and the representative of the undertaking’s staff. That social plan provides for the suspension, on the basis of the short-time working, of the reciprocal obligations of the employee and the employer as regards work and salary.
29. Secondly, it must be stated that, during the period of short-time working ensuing from that social plan and consequently, foreseeable for the worker in question, the latter is free to rest or to devote himself to recreational and leisure activities. Accordingly, inasmuch as that worker is not subject to physical or psychological constraints caused by an illness, he is in a situation different from that resulting from an inability to work due to his state of health.
34. In Case C‑486/08 Zentralbetriebsrat der Landeskrankenhäuser Tirols  [2010] ECR I‑3527, paragraph 33, the Court evoked Clause 4.2 of the framework agreement on part-time work, concluded on 6 June 1997, which is included in the annex to Directive 97/81/EC of the Council, of 15 December 1997, concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC (OJ 1998 L 14, p. 9), as modified by Directive 98/23/EC of the Council of 7 April 1998 (OJ 1998 L 131, p. 10), according to which, where it is appropriate, the rule of pro rata temporis applies to the conditions of employment of part-time workers. The Court has applied that rule to the grant of annual leave for a period of part-time employment, because for such a period, the reduction of annual leave by comparison to that granted for a period of full-time employment is justified on objective grounds.
35. However, it must be recalled that the Court has specified that this rule cannot be applied ex post to a right to annual leave accumulated during a period of full-time work. Thus, it cannot be inferred from the relevant provisions of Directive 2003/88 or from Clause 4.2 of the framework agreement on part-time work that national legislation may provide, among the conditions for the exercise of the right to paid annual leave, for the partial loss of the right to leave accumulated over a reference period (see Zentralbetriebsrat der Landeskrankenhäuser Tirols , paragraphs 33 and 34).
36. It follows from all the foregoing considerations that the answer to the first question must be that Article 31(2) of the Charter and Article 7(1) of Directive 2003/88 must be interpreted as meaning that they do not preclude national legislation or practice, such as a social plan agreed between an undertaking and its works council, under which the paid annual leave of a worker on short-time working is calculated according to the rule of pro rata temporis .
The second question