Gerhard Schultz-Hoff v Deutsche Rentenversicherung Bund (C-350/06) and Stringer and Others v Her Majesty's Revenue and Customs (C-520/06).
Date: 2009-01-20
19. As a preliminary point, it should be noted that the sick leave at issue in the cases in the main proceedings did not exceed the duration of the leave years applicable, in relation to paid annual leave, under the national law in each of those cases.
The right to take paid annual leave during a period of sick leave
22. According to settled case-law, the entitlement of every worker to paid annual leave must be regarded as a particularly important principle of Community 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 (see 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).
23. 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, BECTU , paragraph 44, and Merino Gómez , paragraph 30).
24. Article 7 of Directive 2003/88 is not, furthermore, one of the provisions from which the directive expressly allows derogation.
25. It is 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.
26. The Court has already held that a period of leave guaranteed by Community law cannot affect the right to take another period of leave guaranteed by that law (see Merino Gómez , paragraphs 32 and 33; Case C‑519/03 Commission  v Luxembourg  [2005] ECR I‑3067, paragraph 33; and Case C‑116/06 Kiiski  [2007] ECR I‑7643, paragraph 56). In the case, in particular, of Merino Gómez , the Court held that Article 7(1) of Directive 93/104 must be interpreted as meaning that, where the dates of a worker’s maternity leave coincide with those of the general annual leave fixed, by a collective agreement, for the entire workforce, the requirements of that directive relating to paid annual leave cannot be regarded as met.
28. With regard to the right to paid annual leave, as is clear from the terms 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 that right, by prescribing the specific circumstances in which workers may exercise the right, without making the very existence of that right, which derives directly from Directive 93/104, subject to any preconditions whatsoever (see, to that effect, BECTU , paragraph 53).
30. 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 (Case C‑124/05 Federatie Nederlandse Vakbeweging  [2006] ECR I‑3423, paragraph 30).
31. On the other hand, nor does Directive 2003/88 preclude national legislation or practices which allow a worker on sick leave to take paid annual leave during that sick leave.
34. As pointed out inter alia by the German Government at the hearing, with reference to paragraph 53 of BECTU , it is clear from Article 7(1) of Directive 2003/88 that the conditions for application of the right to paid annual leave in the various Member States are governed by national legislation and/or practice. The German Government thus concludes that the question of carrying over leave and therefore of the specification of a period during which a worker prevented from taking his paid annual leave during the leave year can still take that leave falls within the conditions for the exercise and implementation of the right to paid annual leave and is therefore governed by national legislation and/or practice.
39. With regard, first, to the provisions concerning minimum rest periods in Chapter 2 of Directive 2003/88, they refer in most cases to ‘every worker’, as indeed does Article 7(1) of the directive in relation to entitlement to paid annual leave ( BECTU , paragraph 46).
40. In addition, concerning that entitlement, Directive 2003/88 does not make any distinction between workers who are absent from work on sick leave, whether short-term or long-term, during the leave year and those who have in fact worked in the course of that year.
41. It follows that, with regard to workers on sick leave which has been duly granted, the right to paid annual leave conferred by Directive 2003/88 itself on all workers ( BECTU , paragraphs 52 and 53) cannot be made subject by a Member State to a condition concerning the obligation actually to have worked during the leave year laid down by that State.
42. A provision of national law setting out a carry-over period for annual leave not taken by the end of the leave year 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.
43. It follows 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 the right conferred on him by the directive.
46. Thus, although the Court has accepted that Member States are free to lay down, in their domestic legislation, conditions for the exercise and implementation of the right to paid annual leave, it has nevertheless made clear that Member States are not entitled to make the very existence of that right, which derives directly from Directive 93/104, subject to any preconditions whatsoever (see, to that effect, BECTU , paragraph 53).
47. According to the same case-law, the Court has stated that the requisite arrangements for implementation and application of the requirements of Directive 93/104 may display certain divergences as regards the conditions for exercising the right to paid annual leave, but that that directive does not allow Member States to exclude the very existence of a right expressly granted to all workers ( BECTU , paragraph 55).
48. It follows that if, under the case-law cited in the previous paragraphs, the right to paid annual leave guaranteed to the worker by Article 7(1) of Directive 2003/88 may not be undermined by provisions of national law which exclude the creation or existence of that right, a different result cannot be allowed in relation to provisions of national law which provide for the loss of that right, in the case of a worker on sick leave for the whole leave year and/or beyond a carry-over period, such as Mr Schultz-Hoff, who has not been able to exercise his right to paid annual leave. As in the circumstances in BECTU , where the Court held that the Member States could not exclude the existence of the right to paid annual leave, in a situation such as that of Mr Schultz-Hoff the Member States may not provide for the loss of that right.
49. It follows from the above that Article 7(1) of Directive 2003/88 must be interpreted as meaning that it precludes national legislation or practices which provide that the right to paid annual leave is extinguished at the end of the leave year and/or of a carry-over period laid down by national law even where the worker has been on sick leave for the whole leave year and where his incapacity for work persisted until the end of his employment relationship, which was the reason why he could not exercise his right to paid annual leave.
– Sick leave for part of the leave year, persisting until the end of that year and/or of a carry-over period
51. Every worker denied the benefit of a period of paid annual leave on account of long-term sick leave is in the same situation as that described in paragraph 44 above, inasmuch as incapacity for work owing to sickness is not foreseeable.
52. In the light of all of the foregoing, the answer to the first and third questions, in so far as the latter relates to the right to leave and not to the allowance in lieu of paid annual leave not taken, referred in Case C‑350/06, is that Article 7(1) of Directive 2003/88 must be interpreted as precluding national legislation or practices which provide that the right to paid annual leave is extinguished at the end of the leave year and/or of a carry-over period laid down by national law even where the worker has been on sick leave for the whole or part of the leave year and where his incapacity to work has persisted until the end of his employment relationship, which was the reason why he could not exercise his right to paid annual leave.
The right to an allowance in lieu, on termination of the employment relationship, in respect of paid annual leave not taken in the leave year and/or in a carry-over period on account of incapacity for work for the whole or part of the leave year and/or of the carry-over period
54. In that regard, it should be pointed out first that, as is clear from the very wording of Article 7(1) of Directive 2003/88, a provision from which that directive allows no derogation, every worker is entitled to paid annual leave of at least four weeks. That right to paid annual leave, which, according to the case-law referred to in paragraph 22 above, must be regarded as a particularly important principle of Community social law, is therefore granted to every worker, whatever his state of health.
55. Second, as is clear from paragraph 52 above, the right to paid annual leave is not extinguished at the end of the leave year and/or of a carry‑over 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 the right conferred on him by Directive 2003/88.
56. On termination of the employment relationship, it is in fact no longer possible to take paid annual leave. In order to avoid that, as a result, the right in question cannot be enjoyed by the worker, even in pecuniary form, Article 7(2) of Directive 2003/88 provides that the worker is entitled to an allowance in lieu.
57. No provision in Directive 2003/88 expressly lays down the way in which the allowance in lieu of the minimum period or periods of paid annual leave must be calculated where the employment relationship is terminated.
58. However, according to the case-law of the Court, the expression ‘paid annual leave’ in Article 7(1) of Directive 2003/88 means that, for the duration of annual leave within the meaning of that directive, remuneration must be maintained and that, in other words, workers must receive their normal remuneration for that period of rest (see Robinson-Steele and Others , paragraph 50).
60. According to the case-law of the Court, Directive 2003/88 treats entitlement to annual leave and to a payment on that account as being two aspects of a single right. The purpose of the requirement of payment for that leave is to put the worker, during such leave, in a position which is, as regards remuneration, comparable to periods of work (see Robinson-Steele and Others , paragraph 58).
61. It follows that, with regard to a worker who has not been able, for reasons beyond his control, to exercise his right to paid annual leave before termination of the employment relationship, the allowance in lieu to which he is entitled must be calculated so that the worker is put in a position comparable to that he would have been in had he exercised that right during his employment relationship. It follows that 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 as regards the calculation of the allowance in lieu of annual leave not taken by the end of the employment relationship.
62. In the light of all of the foregoing, the answer to the second and third questions, in so far as the latter relates to the allowance in lieu of paid annual leave not taken, referred in Case C‑350/06, and to the second question referred in Case C‑520/06, is 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.
Costs