Sebastian W. Kreuziger v Land Berlin.
Date: 2018-11-06
20


In that regard, it should be recalled that it is the settled case-law of the Court that, whenever the provisions of a directive appear, so far as their subject matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly (judgment of 24 January 2012, Dominguez, C‑282/10, EU:C:2012:33, paragraph 33 and the case-law cited). In addition, where a person involved in legal proceedings is able to rely on a directive against a State, he may do so regardless of the capacity in which the latter is acting, whether as an employer or as a public authority. In either case it is necessary to prevent the State from taking advantage of its own failure to comply with EU law (judgment of 24 January 2012, Dominguez, C‑282/10, EU:C:2012:33, paragraph 38 and the case-law cited).
21


On the basis of those considerations, the Court has held that provisions of a directive that are unconditional and sufficiently precise may be relied upon by individuals, in particular against a Member State and all the organs of its administration, including decentralised authorities (see, to that effect, judgment of 7 August 2018, Smith, C‑122/17, EU:C:2018:631, paragraph 45 and the case-law cited).
22


As regards Article 7(2) of Directive 2003/88, it is apparent from the case-law of the Court that that provision does not lay down any condition for entitlement to an allowance in lieu other than that relating to the circumstance, first, that the employment relationship has ended and, secondly, that the worker has not taken all the annual leave to which he was entitled on the date that that relationship ended. That right is conferred directly by the directive and does not depend on conditions other than those which are explicitly provided for therein (see, to that effect, judgments of 12 June 2014, Bollacke, C‑118/13, EU:C:2014:1755, paragraphs 23 and 28, and of 20 July 2016, Maschek, C‑341/15, EU:C:2016:576, paragraph 27). That provision thus fulfils the criteria of unconditionality and sufficient precision, and thus meets the conditions required for it to have direct effect.
28


In that regard, it should be recalled at the outset that, according to the settled case-law of the Court, every worker’s right to paid annual leave must be regarded as a particularly important principle of EU 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 Directive 2003/88 (see, to that effect, judgment of 12 June 2014, Bollacke, C‑118/13, EU:C:2014:1755, paragraph 15 and the case-law cited).
29


Moreover, the right to paid annual leave, as a principle of EU social law, is not only particularly important, 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 (judgment of 30 June 2016, Sobczyszyn, C‑178/15, EU:C:2016:502, paragraph 20 and the case-law cited).
30


Since the case in the main proceedings relates to a refusal to pay an allowance in lieu of paid annual leave not taken on the date of termination of the employment relationship which existed between the parties in the main proceedings, it should be recalled that, when the employment relationship ends, it is no longer in fact possible for a worker to take the paid annual leave to which he is entitled. In order to prevent this impossibility leading to a situation in which the worker loses all enjoyment of that right, even in pecuniary form, Article 7(2) of Directive 2003/88 provides that the worker is entitled to an allowance in lieu for the days of annual leave not taken (see, to that effect, judgment of 12 June 2014, Bollacke, C‑118/13, EU:C:2014:1755, paragraph 17 and the case-law cited).
32


In that regard, it is apparent from the case-law of the Court that that provision must be interpreted as meaning that it precludes national legislation or practices which provide that, upon termination of the employment relationship, no allowance in lieu of paid annual leave not taken is to be paid to a worker who has not been able to take all the annual leave to which he was entitled before the end of that employment relationship, in particular because he was on sick leave for all or part of the leave year and/or of a carry-over period (judgments of 20 January 2009, Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 62; of 20 July 2016, Maschek, C‑341/15, EU:C:2016:576, paragraph 31; and of 29 November 2017, King, C‑214/16, EU:C:2017:914, paragraph 65).
33


The Court has also held that Article 7 of Directive 2003/88 cannot be interpreted as meaning that the right to paid annual leave and therefore, to the allowance in lieu provided for in paragraph 2 of this Article, may lapse because of the worker’s death. In that regard, the Court has in particular pointed out that, if the obligation to pay such an allowance were to lapse because of the termination of the employment relationship resulting from the worker’s death, the consequence of that circumstance would be an unintended occurrence retroactively leading to the total loss of the entitlement to paid annual leave itself, as set out in Article 7 (see, to that effect, judgment of 12 June 2014, Bollacke, C‑118/13, EU:C:2014:1755, paragraphs 25, 26 and 30).
38


Secondly, while it is, admittedly, settled case-law that, in order to ensure compliance with the fundamental workers’ right to paid annual leave affirmed in EU law, Article 7 of Directive 2003/88 may not be interpreted restrictively at the expense of the rights that workers derive from it (see, to that effect, judgment of 12 June 2014, Bollacke, C‑118/13, EU:C:2014:1755, paragraph 22 and the case-law cited), it must also be noted, however, that the holiday pay required by Article 7(1) is intended to enable the worker actually to take the leave to which he is entitled (see, to that effect, judgment of 16 March 2006, Robinson-Steele and Others, C‑131/04 and C‑257/04, EU:C:2006:177, paragraph 49).
39


According to the settled case-law of the Court, the right to annual leave laid down in Article 7 of Directive 2003/88 is intended to enable the worker 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 (judgment of 20 July 2016, Maschek, C‑341/15, EU:C:2016:576, paragraph 34 and the case-law cited).
40


Thus, by providing that the minimum period of paid annual leave may not be replaced by an allowance in lieu, except in the event of termination of the employment relationship, Article 7(2) of Directive 2003/88 aims in particular to ensure that workers are entitled to actual rest, with a view to ensuring effective protection of their health and safety (see, to that effect, judgment of 16 March 2006, Robinson-Steele and Others, C‑131/04 and C‑257/04, EU:C:2006:177, paragraph 60 and the case-law cited).
41


Thirdly, as is apparent from the very wording of Article 7 of Directive 2003/88 and the case-law of the Court, it is for the Member States to lay down, in their domestic legislation, conditions for the exercise and implementation of the right to paid annual leave, by prescribing the specific circumstances in which workers may exercise the right (judgment of 20 January 2009, Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 28 and the case-law cited).
42


In that regard, the Court has in particular held that Article 7(1) of Directive 2003/88 does not in principle preclude 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 leave year or of a carry-over period, provided, however, that the worker who has lost his right to paid annual leave has actually had the opportunity to exercise the right conferred on him by the directive (judgment of 20 January 2009, Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 43).
44


Such legislation forms part of the rules and procedures of national law applicable to the scheduling of workers’ leave, which seek to take into account the various interests involved (see, to that effect, judgment of 10 September 2009, Vicente Pereda, C‑277/08, EU:C:2009:542, paragraph 22).
48


The worker must be regarded as the weaker party in the employment relationship, and it is therefore necessary to prevent the employer from being in a position to impose upon him a restriction of his rights. On account of that position of weakness, such a worker may be dissuaded from explicitly claiming his rights vis-à-vis his employer where, in particular, doing so may expose him to measures taken by the employer likely to affect the employment relationship in a manner detrimental to that worker (see, to that effect, judgment of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraphs 80 and 81 and the case-law cited).
49


In addition, incentives not to take leave or to encourage employees not to do so are incompatible with the objectives of the right to paid annual leave, as recalled in paragraphs 39 and 40 of the present judgment, relating in particular to the need to ensure that workers enjoy a period of actual rest, with a view to ensuring effective protection of their health and safety (see, to that effect, judgment of 6 April 2006, Federatie Nederlandse Vakbeweging, C‑124/05, EU:C:2006:244, paragraph 32). Thus, 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 (judgment of 29 November 2017, King, C‑214/16, EU:C:2017:914, paragraph 39 and the case-law cited).
51


In that regard, while it should be made clear that compliance with the requirement, for employers, under Article 7 of Directive 2003/88 should not extend to requiring employers to force their workers to actually exercise their right to paid annual leave (see, to that effect, judgment of 7 September 2006, Commission v United Kingdom, C‑484/04, EU:C:2006:526, paragraph 43), the fact remains that employers must, however, ensure that workers are given the opportunity to exercise such a right (see, to that effect, judgment of 29 November 2017, King, C‑214/16, EU:C:2017:914, paragraph 63).
53


In addition, the burden of proof in that respect is on the employer (see, by analogy, judgment of 16 March 2006, Robinson-Steele and Others, C‑131/04 and C‑257/04, EU:C:2006:177, paragraph 68 and the case-law cited). Should the employer not be able to show that it has exercised all due diligence in order to enable the worker actually to take the paid annual leave to which he is entitled, it must be held that the loss of the right to such leave, and, in the event of the termination of the employment relationship, the corresponding absence of a payment of an allowance in lieu of annual leave not taken constitutes a failure to have regard, respectively, to Article 7(1) and Article 7(2) of Directive 2003/88.