Ministerul Justiţiei and Tribunalul Botoşani v Maria Dicu.
Date: 2018-10-04
24


In that regard, it should be noted that, as is apparent from the wording of Article 7(1) of Directive 2003/88 itself, every worker is entitled to paid annual leave of at least four weeks, a right which, according to the Court’s established case-law, must be regarded as a particularly important principle of EU social law (judgment of 20 July 2016, Maschek, C‑341/15, EU:C:2016:576, paragraph 25 and the case-law cited).
25


Moreover, that right, which is enjoyed by all workers, is expressly set out 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 29 November 2017, King, C‑214/16, EU:C:2017:914, paragraph 33 and the case-law cited).
26


It should further be noted that, while Member States are not entitled to make the very existence of the right to paid annual leave, which derives directly from Directive 2003/88, subject to any preconditions whatsoever (see, inter alia, judgments of 26 June 2001, BECTU, C‑173/99, EU:C:2001:356, paragraph 53; of 20 January 2009, Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 28; and of 29 November 2017, King, C‑214/16, EU:C:2017:914, paragraph 34), the issue raised in the present case is whether a period of parental leave must be treated as a period of actual work for the purpose of determining paid annual leave entitlement.
27


In that regard, it is appropriate to recall the purpose of the right to paid annual leave, conferred on every worker by Article 7 of Directive 2003/88, which is to enable 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, inter alia, judgments of 20 January 2009, Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 25; of 22 November 2011, KHS, C‑214/10, EU:C:2011:761, paragraph 31; and of 30 June 2016, Sobczyszyn, C‑178/15, EU:C:2016:502, paragraph 25).
28


That purpose, which distinguishes paid annual leave from other types of leave having different purposes, is based on the premiss that the worker actually worked during the reference period. The objective of allowing the worker to rest presupposes that the worker has been engaged in activities which justify, for the protection of his safety and health, as provided for in Directive 2003/88, his being given a period of rest, relaxation and leisure. Accordingly, entitlement to paid annual leave must, in principle, be determined by reference to the periods of actual work completed under the employment contract (see, to that effect, judgment of 11 November 2015, Greenfield, C‑219/14, EU:C:2015:745, paragraph 29).
29


Admittedly, it is apparent from established case-law that, in certain specific situations in which the worker is unable to perform his duties as he is, for instance, on duly certified sick leave, the right to paid annual leave cannot be made subject by a Member State to a condition that the worker has actually worked (see, inter alia, judgment of 24 January 2012, Dominguez, C‑282/10, EU:C:2012:33, paragraph 20 and the case-law cited). Thus, with regard to entitlement to paid annual leave, workers who are absent from work on sick leave during the reference period are to be treated in the same way as those who have in fact worked during that period (see, inter alia, judgment of 20 January 2009, Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 40).
30


The same applies as regards workers on maternity leave, who are, as a result, unable to perform the duties required by virtue of their employment relationship and whose right to paid annual leave must be guaranteed when they are on maternity leave; it must be possible to exercise that right during a different period from that in which they are on maternity leave (see, to that effect, judgment of 18 March 2004, Merino Gómez, C‑342/01, EU:C:2004:160, paragraphs 34, 35 and 38).
32


It should be noted, first of all, that incapacity for work owing to sickness is, as a rule, not foreseeable (judgment 20 January 2009, Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 51) and beyond the worker’s control (see, to that effect, judgment of 29 November 2017, King, C‑214/16, EU:C:2017:914, paragraph 49). As the Court previously stated in paragraph 38 of the judgment of 20 January 2009, Schultz-Hoff and Others (C‑350/06 and C‑520/06, EU:C:2009:18), Convention No 132 of the International Labour Organisation of 24 June 1970 concerning Annual Holidays with Pay, as revised, the principles of which must be taken into account, as stated in recital 6 of Directive 2003/88, when interpreting that directive, counts, in Article 5(4) thereof, absences on account of illness among absences from work ‘for such reasons beyond the control of the employed person concerned’ which must be ‘counted as part of the period of service’. On the other hand, where a worker takes parental leave, that is not unforeseeable and, in most cases, is a reflection of the worker’s wish to take care of his or her child (see, to that effect, judgment of 20 September 2007, Kiiski, C‑116/06, EU:C:2007:536, paragraph 35).
33


Next, inasmuch as a worker on parental leave 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 (see, by analogy, judgment of 8 November 2012, Heimann and Toltschin, C‑229/11 and C‑230/11, EU:C:2012:693, paragraph 29).
34


The situation of a worker on parental leave is equally different to that of a worker who has exercised her right to maternity leave. Maternity leave is intended, first, to protect a woman’s biological condition during and after pregnancy and, second, to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by ensuring that the relationship is not disturbed by the need to perform multiple tasks which would result if the woman continued to work at the same time (see, to that effect, judgments of 18 March 2004, Merino Gómez, C‑342/01, EU:C:2004:160, paragraph 32, and of 20 September 2007, Kiiski, C‑116/06, EU:C:2007:536, paragraph 46).
35


Lastly, while, admittedly, a worker on parental leave remains, during that period, a worker for the purposes of EU law (judgment 20 September 2007, Kiiski, C‑116/06, EU:C:2007:536, paragraph 32), the fact nonetheless remains that where, as in the present case, such a worker’s employment relationship is suspended pursuant to national law, as permitted by Clause 5(3) of the Framework Agreement on parental leave, the reciprocal obligations of the employer and the worker as regards work and salary are correspondingly suspended temporarily, in particular the obligation on the latter to perform the duties required of him or her in connection with that relationship (see, by analogy, judgment of 8 November 2012, Heimann and Toltschin, C‑229/11 and C‑230/11, EU:C:2012:693, paragraph 28).
37


It should also be noted that, while it is, admittedly, apparent from the Court’s settled case-law that a period of leave guaranteed by EU law cannot affect the right to take another period of leave guaranteed by that law which has a different purpose from the former (see, to that effect, judgment of 20 January 2009, Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 26 and the case-law cited), it cannot be inferred from that case-law, which was developed in the context of situations where the periods to which those two respective types of leave related overlapped or coincided, that Member States are required to treat a period of parental leave taken by a worker during the reference period as a period of actual work for the purpose of determining that worker’s paid annual leave entitlement under Directive 2003/88.