Terveys- ja sosiaalialan neuvottelujärjestö (TSN) ry v Hyvinvointialan liitto ry and Auto- ja Kuljetusalan Työntekijäliitto AKT ry v Satamaoperaattorit ry.
Date: 2019-11-19
33


In that regard, it should be borne in mind that, according to settled case-law, Directive 2003/88 does not preclude domestic provisions granting a right to a period of paid annual leave longer than the 4 weeks laid down in Article 7(1) of that directive, under the conditions for entitlement to, and granting of, the right to paid annual leave laid down by national law (see, to that effect, judgments of24 January 2012, Dominguez, C‑282/10, EU:C:2012:33, paragraph 47; of 3 May 2012, Neidel, C‑337/10, EU:C:2012:263, paragraph 34; of 20 July 2016, Maschek, C‑341/15, EU:C:2016:576, paragraph 38; and of 13 December 2018, Hein, C‑385/17, EU:C:2018:1018, paragraph 31).
34


Indeed, it is expressly apparent from the wording of Article 1(1) and (2)(a), Article 7(1) and Article 15 of Directive 2003/88 that the purpose of that directive is simply to lay down minimum safety and health requirements for the organisation of working time and it does not affect the Member States’ right to apply provisions of national law that are more favourable to the protection of workers (judgments of 24 January 2012, Dominguez, C‑282/10, EU:C:2012:33, paragraph 48; of 3 May 2012, Neidel, C‑337/10, EU:C:2012:263, paragraph 35; and of 13 December 2018, Hein, C‑385/17, EU:C:2018:1018, paragraph 30).
35


In such a situation, the rights to paid annual leave thus granted beyond the minimum required by Article 7(1) of Directive 2003/88 are governed not by that directive, but by national law, outside the regime established by that directive, it being nonetheless borne in mind that such provisions of national law which are more favourable to workers cannot be used to compensate for a possible infringement of the minimum protection guaranteed by that provision of EU law, such as that resulting from, inter alia, a reduction in the remuneration due by virtue of the minimum paid annual leave thus guaranteed by that provision (see, to that effect, judgment of 13 December 2018, Hein, C‑385/17, EU:C:2018:1018, paragraphs 42 and 43, and, by analogy, judgment of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraphs 43 and 44).
37


The Court has thus held, in particular, where there is a national rule or collective agreement providing that no paid annual leave entitlement is to be given in a particular year in respect of absences as a result of illness or prolonged illness that have resulted in a break in work of 12 consecutive months or more, that it is permissible for Member States to provide that entitlement to paid annual leave under national law may vary according to the reason for the worker’s absence on health grounds, provided that the entitlement is always equal to or exceeds the minimum period of 4 weeks laid down in Article 7 of Directive 2003/88 (judgment of 24 January 2012, Dominguez, C‑282/10, EU:C:2012:33, paragraph 49).
38


Similarly, the Court has held that, when deciding to grant workers rights to paid annual leave beyond that minimum period of 4 weeks, the Member States continue to have the freedom, in particular, to grant or not to grant an allowance in lieu to a worker who is retiring, where that worker has been unable to enjoy leave rights which so exceed that minimum period, because he has been prevented from performing his duties due to illness and, in the case of the former, to determine the conditions for the grant of such an allowance (see, to that effect, judgments of 3 May 2012, Neidel, C‑337/10, EU:C:2012:263, paragraph 36, and of 20 July 2016, Maschek, C‑341/15, EU:C:2016:576, paragraph 39).
42


The scope of the Charter is defined in Article 51(1) thereof, according to which, so far as action by the Member States is concerned, the provisions of the Charter are addressed to those States only when they are implementing EU law (judgment of 13 June 2017, Florescu and Others, C‑258/14, EU:C:2017:448, paragraph 44 and the case-law cited). According to Article 51(2) thereof, the Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.
43


It should also be borne in mind that, according to settled case-law, the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law (judgment of 6 November 2018, Bauer and Willmeroth, C‑569/16 and C‑570/16, EU:C:2018:871, paragraph 52 and the case-law cited).
45


It is therefore necessary to verify whether national rules or collective agreements which provide for the granting of days of paid annual leave which exceed the minimum period of 4 weeks laid down in Article 7(1) of Directive 2003/88 and yet exclude the carrying over of those days of leave on the grounds of illness are to be regarded as implementing that directive for the purposes of Article 51(1) of the Charter and whether, as a result, Article 31(2) thereof is intended to apply to situations such as those at issue in the main proceedings (see, to that effect, judgment of 6 November 2018, Bauer and Willmeroth, C‑569/16 and C‑570/16, EU:C:2018:871, paragraph 53 and the case-law cited).
46


In that regard, it should be borne in mind that the mere fact that domestic measures come, as is the situation in the present case, within an area in which the European Union has powers cannot bring those measures within the scope of EU law, and, therefore, cannot render the Charter applicable (see, to that effect, judgment of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 36 and the case-law cited).
48


In that regard, it should be emphasised that Directive 2003/88, the purpose of which, as recalled in paragraph 34 above, is simply to lay down minimum safety and health requirements for the organisation of working time, was adopted on the basis of Article 137(2) EC, now Article 153(2) TFEU. As is apparent from the case-law of the Court, the expression ‘minimum requirements’ in those provisions of primary law which is reproduced in Article 1(1) of that directive must be read in the light of Article 137(4) EC, now Article 153(4) TFEU, which specifies that such minimum requirements are not to prevent any Member State from maintaining or introducing more stringent protective measures that are compatible with the Treaties. Accordingly, the Member States remain free, in exercising the powers they have retained, to adopt such measures, which are more stringent than those which form the subject matter of action by the EU legislature, provided that those measures do not undermine the coherence of that action (see, to that effect, judgment of 17 December 1998, IP, C‑2/97, EU:C:1998:613, paragraphs 35, 37 and 40).
49


Thus, Article 15 of Directive 2003/88, pursuant to which that directive ‘shall not affect’ Member States’ ‘right’ to apply provisions of national legislation that are more favourable to the protection of the safety and health of workers, does not grant the Member States an option of legislating by virtue of EU law, but merely recognises the power which they have to provide for such more favourable provisions in national law, outside the framework of the regime established by that directive (see, by analogy, judgment of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 44).
50


Therefore, the situations at issue in the main proceedings are different from the situation in which an act of the Union gives the Member States the freedom to choose between various methods of implementation or grants them a margin of discretion which is an integral part of the regime established by that act, and from the situation in which such an act authorises the adoption, by the Member States, of specific measures intended to contribute to the achievement of the objective of that act (see, in those various respects, judgments of 21 December 2011, N.S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 64 to 68; of 16 February 2017, C. K. and Others, C‑578/16 PPU, EU:C:2017:127, paragraph 53; of 9 March 2017, Milkova, C‑406/15, EU:C:2017:198, paragraphs 46, 47, 52 and 53 and the case-law cited; and of 13 June 2017, Florescu and Others, C‑258/14, EU:C:2017:448, paragraph 48).
51


Lastly, in the present case, it should be noted that the fact of granting workers days of paid annual leave which exceed the minimum period of 4 weeks guaranteed in Article 7(1) of Directive 2003/88 and of providing that those days are not to be carried over on the grounds of illness, pursuant to national rules or collective agreements such as those at issue in the main proceedings, is not, as such, capable of affecting or limiting the minimum protection thus guaranteed to those workers under that provision (see, by analogy, judgment of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 43); nor is it capable of infringing other provisions of that directive, or adversely affecting its coherence or the objectives pursued thereby.
52


It follows from all of the foregoing that, where the Member States grant, or permit their social partners to grant, rights to paid annual leave which exceed the minimum period of 4 weeks laid down in Article 7(1) of that directive, such rights, or the conditions for a possible carrying over of those rights in the event of illness which has occurred during the leave, fall within the exercise of the powers retained by the Member States, without being governed by that directive or falling within its scope (see, by analogy, judgment of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 45).
53


Where the provisions of EU law in the area concerned do not govern an aspect of a given situation and do not impose any specific obligation on the Member States with regard thereto, the national rule enacted by a Member State as regards that aspect falls outside the scope of the Charter and the situation concerned cannot be assessed in the light of the provisions of the Charter (see, to that effect, judgments of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 35; of 14 December 2017, Miravitlles Ciurana and Others, C‑243/16, EU:C:2017:969, paragraph 34; and of 19 April 2018, Consorzio Italian Management and Catania Multiservizi, C‑152/17, EU:C:2018:264, paragraphs 34 and 35).