European Commission v Guido Strack.
Date: 2013-09-19
26. As a preliminary point, it must be recalled that, according to the settled case-law of the Court, developed, first, in relation to Article 7 of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18) and, subsequently, Article 7 of Directive 2003/88, the entitlement of every worker to paid annual leave must be regarded as a particularly important principle of European Union social law, affirmed by Article 31(2) of the Charter, which the first subparagraph of Article 6(1) TEU recognises as having the same legal value as the Treaties (see Case C‑173/99 BECTU [2001] ECR I‑4881, paragraph 43; Case C‑124/05 Federatie Nederlandse Vakbeweging [2006] ECR I‑3423, paragraph 28; Schultz‑Hoff and Others , paragraph 22; Case C‑155/10 Williams and Others [2011] ECR I‑8409, paragraphs 17 and 18; KHS , paragraph 37; Neidel , paragraph 40; ANGED , paragraph 17; and Joined Cases C‑229/11 and C‑230/11 Heimann and Toltschin  [2012] ECR I‑0000, paragraph 22).
27. According to the explanations relating to Article 31 of the Charter, which, under the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, must be taken into account in the interpretation of the Charter, Article 31(2) of the Charter is based on Directive 93/104 and on Article 2 of the European Social Charter, signed in Turin on 18 October 1961 and revised in Strasbourg on 3 May 1996, and on point 8 of the Community Charter of the Fundamental Social Rights of Workers, adopted at the meeting of the European Council in Strasbourg on 9 December 1989.
28. As is apparent from the first recital in the preamble to Directive 2003/88, the directive codifies Directive 93/104. Article 7 of Directive 2003/88 concerning the right to paid annual leave reproduces the terms of Article 7 of Directive 93/104 exactly.
29. Moreover, according to the case-law of the Court, the right to paid annual leave cannot be interpreted restrictively ( ANGED , paragraph 18, and Heimann and Toltschin  , paragraph 23).
30. As regards situations in which a worker was unable to take his days of paid annual leave because of sick leave, the Court has held, inter alia that although 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 reference period or of a carry-over period, that finding is subject to the condition that a worker who has lost his right to paid annual leave must have actually had the opportunity to exercise the right conferred on him by that directive (see Schultz-Hoff and Others , paragraph 43, and KHS , paragraph 26).
31. In that connection, the Court has thus held 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 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 ( Schultz-Hoff and Others , paragraph 52).
32. To accept that, in the specific circumstances of incapacity for work, the national provisions laying down the carry-over period, can provide for the loss of the worker’s right to paid annual leave, without the worker actually having the opportunity to exercise that right, would undermine the substance of the social right directly conferred by Article 7 of the directive on every worker (see, to that effect, BECTU , paragraphs 48 and 49, and Schultz-Hoff and Others , paragraphs 44, 45, 47 and 48).
33. In those circumstances, the allowance in lieu to which the worker 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 ( Schultz-Hoff and Others , paragraphs 61 and 62, and Heimann and Toltschin , paragraph 25). The entitlement to annual leave and to a payment on that account must be considered to be two aspects of a single right (see, inter alia, Schultz-Hoff and Others , paragraph 60 and the case-law cited).
34. Under the case-law set out above it cannot be accepted that a worker’s right to a minimum paid annual leave, guaranteed by European Union law, may be reduced where the worker could not fulfil his obligation to work during the reference period due to an illness ( Heimann and Toltschin , paragraph 26).
35. Admittedly, as the Council of the European Union and the Commission point out, the Court has also made clear that, given the dual purpose of enabling 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, the right to paid annual leave acquired by a worker who is unfit for work for several consecutive reference periods can reflect both the aspects of its purpose, as set out in paragraph 31 above, only in so far as the carry-over does not exceed a certain temporal limit ( KHS , paragraphs 31 and 33).
36. However, the Court has equally clearly expressed the view, in that regard, referring expressly to the fact that the right to paid annual leave is a principle of European Union social law of particular importance expressly affirmed by Article 31(2) of the Charter, that to uphold that right, the objective of which is the protection of workers, any carry-over period must be substantially longer than the reference period in respect of which it is granted ( KHS , paragraphs 37 and 38, and Neidel , paragraphs 40 and 41).
37. The Court concluded, inter alia, that a carry-over period of nine months is insufficient since it is shorter than the reference period ( Neidel , paragraphs 42 and 43), holding, rather, that it may reasonably be considered that a carry-over period of 15 months is not contrary to the purpose of the right to paid annual leave ( KHS , paragraph 43).
The interpretation of Article 1e(2) of the Staff Regulations and Article 4 of Annex V thereto
40. It must also be borne in mind that, under a general principle of interpretation, a European Union measure must be interpreted, as far as possible, in such a way as not to affect its validity and in conformity with primary law as a whole and, in particular, with the provisions of the Charter (see, to that effect, Case C‑12/11 McDonagh [2013] ECR I‑0000, paragraph 44 and the case-law cited).
62. It follows that the Court cannot confine itself to finding that the unity or consistency of European Union law is affected without stating the implications of that finding as regards the dispute in question (Case C‑334/12 RX-II Review Arango Jaramillo and Others  v EIB [2013] ECR I‑0000, paragraph 57).