Francisco Vicente Pereda v Madrid Movilidad SA.
Date: 2009-09-10
18. From the outset, it must be borne in mind that, as is clear from the actual 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 entitlement to paid annual leave must be regarded as a particularly important principle of Community social law from which there can be no derogations and the implementation of which by the competent national authorities must be confined within the limits expressly laid down by Directive 2003/88 itself (see, to that effect, with regard to Directive 93/104, Case C‑173/99 BECTU  [2001] ECR I‑4881, paragraph 43; Case C‑342/01 Merino Gómez  [2004] ECR I‑2605, paragraph 29; and Joined Cases C‑131/04 and C‑257/04 Robinson-Steele and Others  [2006] ECR I‑2531, paragraph 48).
19. In that regard, the Court has already 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 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 that right.  Thus, the right to paid annual leave is not extinguished at the end of the reference period laid down by national law where the worker was on sick leave for the whole or part of the leave year and has not actually had the opportunity to exercise that right (see Joined Cases C‑350/06 and C‑520/06 Schultz-Hoff and Others  [2009] ECR I‑0000, paragraphs 43 and 55).
20. A worker must normally be entitled to actual rest, with a view to ensuring effective protection of his health and safety, since it is only where the employment relationship is terminated that Article 7(2) of Directive 2003/88 permits an allowance to be paid in lieu of paid annual leave (see, to that effect, with regard to Directive 93/104, BECTU , paragraph 44, and Merino Gómez , paragraph 30).
21. It is, moreover, common ground that the purpose of the entitlement to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure. The purpose of the entitlement to sick leave is different. It is given to the worker so that he can recover from being ill (see Schultz-Hoff and Others , paragraph 25).
22. It follows from the foregoing and, in particular, from that stated purpose of the entitlement to paid annual leave that a worker who is on sick leave during a period of previously scheduled annual leave has the right, on his request and in order that he may actually use his annual leave, to take that leave during a period which does not coincide with the period of sick leave.  The scheduling of that new period of annual leave, corresponding to the duration of the overlap between the period of annual leave originally scheduled and the sick leave, is subject to the rules and procedures of national law which are applicable to the scheduling of workers’ leave, taking into account the various interests involved, including overriding reasons relating to the interests of the undertaking.
23. If such interests preclude acceptance of the worker’s request for a new period of annual leave, the employer is obliged to grant the worker a different period of annual leave proposed by him which is compatible with those interests, without excluding in advance the possibility that that period may fall outside the reference period for the annual leave in question.
24. According to the case-law of the Court, while the positive effect of paid annual leave for the safety and health of the worker is deployed fully if it 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 (see Case C‑124/05 Federatie Nederlandse Vakbeweging  [2006] ECR I‑3423, paragraph 30, and Schultz-Hoff and Others , paragraph 30).
25. Consequently, although Directive 2003/88 does not preclude national legislation or practices which allow a worker on sick leave to take paid annual leave during that sick leave ( Schultz-Hoff and Others , paragraph 31), it follows from paragraph 22 of the present judgment that, where that worker does not wish to take annual leave during a period of sick leave, annual leave must be granted to him for a different period.