KHS AG v Winfried Schulte.
Date: 2011-11-22
23. 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 from which there can 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, a directive now codified by Directive 2003/88 (see Case C‑173/99 BECTU  [2001] ECR I‑4881, paragraph 43; Case C‑342/01 Merino Gómez  [2004] ECR I‑2605, paragraph 29; Joined Cases C‑131/04 and C‑257/04 Robinson-Steele and Others  [2006] ECR I‑2531, paragraph 48; and Joined Cases C‑350/06 and C‑520/06 Schultz-Hoff and Others  [2009] ECR I‑179, paragraph 22).
24. Further, the Court has already had the opportunity to examine the implementation and the conditions for application of this principle of entitlement to paid annual leave by competent national authorities in the case of workers denied entitlement to periods of paid annual leave because they were on sick leave that did not exceed the duration of the reference periods applicable under the relevant national law ( Schultz-Hoff and Others , paragraph 19).
25. In the course of that examination the Court observed that a provision of national law setting out a carry-over period for annual leave not taken by the end of the reference period aims, as a rule, to give a worker who has been prevented from taking his annual leave an additional opportunity to benefit from that leave. The laying down of such a period forms part of the conditions for the exercise and implementation of the right to paid annual leave and therefore falls, as a rule, within the competence of the Member States (see Schultz-Hoff and Others , paragraph 42).
26. Thus, the Court held that Article 7(1) of Directive 2003/88 does not preclude, as a rule, national legislation which lays down conditions for the exercise of the right to paid annual leave expressly conferred by the directive, including even the loss of that right at the end of a reference period or of a carry-over period. However, the Court attached to that finding of principle the condition that a worker who has lost his right to paid annual leave must have actually had the opportunity to exercise the right conferred on him by that directive (see Schultz-Hoff and Others , paragraph 43).
29. Otherwise, a worker, such as the appl icant in the main proceedings, who is unfit for work for several consecutive reference periods, would be entitled to accumulate, without any limit, all the entitlements to paid annual leave that are acquired during his absence from work.
30. A right to such unlimited accumulation of entitlements to paid annual leave, acquired during such a period of unfitness for work, would no longer reflect the actual purpose of the right to paid annual leave.
31. The right to paid annual leave, as laid down in Article 31(2) of the Charter of Fundamental Rights of the European Union and in Article 7 of Directive 2003/88, has the dual purpose of enabling the worker both to rest from carrying out the work he is required to do under his contract of employment and to enjoy a period of relaxation and leisure (see Schultz-Hoff and Others , paragraph 25).
32. In this connection, it is true that the Court has stated that, while the positive effect of paid annual leave for the safety and health of the worker is deployed fully where that leave is taken in the year prescribed for that purpose, namely the current year, the significance of that rest period in that regard remains if it is taken during a later period (Case C‑124/05 Federatie Nederlandse Vakbeweging  [2006] ECR I‑3423, paragraph 30, and Schultz-Hoff and Others , paragraph 30).
33. None the less, it should be pointed out that the right to paid annual leave acquired by a worker who is unfit for work for several consecutive reference periods can reflect both the aspects of its purpose, as set out in paragraph 31 above, only in so far as the carry-over does not exceed a certain temporal limit. Beyond such a limit annual leave ceases to have its positive effect for the worker as a rest period and is merely a period of relaxation and leisure.
35. With regard to the carry-over period beyond which the right to paid annual leave may lapse where entitlements to paid annual leave are accumulated during a period of unfitness for work, it is necessary to assess, in the light of Article 7 of Directive 2003/88 and taking the above considerations into account, whether a period for carrying over entitlement to paid annual leave set at 15 months under national provisions or practices, such as collective agreements, may reasonably be described as a period beyond which paid annual leave ceases to have its positive effect for the worker as a rest period.
37. The right to paid annual leave is, as a principle of European Union social law, not only particularly important, as noted in paragraph 23 above, but is also 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.
38. It follows that, in order to uphold that right, the objective of which is the protection of workers, any carry-over period must take into account the specific circumstances of a worker who is unfit for work for several consecutive reference periods. Thus, the carry-over period must inter alia ensure that the worker can have, if need be, rest periods that may be staggered, planned in advance and available in the longer term. Any carry-over period must be substantially longer than the reference period in respect of which it is granted.
39. That carry-over period must also protect the employer from the risk that a worker will accumulate periods of absence of too great a length, and from the difficulties for the organisation of work which such periods might entail.
43. In the light of the foregoing it may reasonably be considered that a period of 15 months for carrying over the right to paid annual leave, such as the period at issue in the main proceedings, is not contrary to the purpose of that right, in that it ensures that the latter retains its positive effect for the worker as a rest period.
44. Consequently, the answer to the first question is that Article 7(1) of Directive 2003/88 must be interpreted as not precluding national provisions or practices, such as collective agreements, which limit, by a carry-over period of 15 months on the expiry of which the right to paid annual leave lapses, the accumulation of entitlements to such leave of a worker who is unfit for work for several consecutive reference periods.
Second question