Maribel Dominguez v Centre informatique du Centre Ouest Atlantique and Préfet de la région Centre.
Date: 2012-01-24
16. In that regard it should be noted that, according to settled case-law, the entitlement of every worker to paid annual leave must be regarded as a particularly important principle of European Union 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, that directive being now codified by Directive 2003/88 (see Case C‑173/99 BECTU  [2001] ECR I‑4881, paragraph 43; Joined Cases C‑350/06 and C‑520/06 Schultz-Hoff and Others  [2009] ECR I‑179, paragraph 22; and Case C‑214/10 KHS [2011] ECR I‑11757, paragraph 23).
17. Thus, Directive 93/104 must be interpreted as precluding Member States from unilaterally limiting the entitlement to paid annual leave conferred on all workers by applying a precondition for such entitlement which has the effect of preventing certain workers from benefiting from it ( BECTU , paragraph 52).
18. Although Member States are free to lay down, in their domestic legislation, conditions for the exercise and implementation of the right to paid annual leave, they are not entitled to make the very existence of that right subject to any preconditions whatsoever (see Schultz-Hoff and Others , paragraph 46).
19. Thus, the requisite arrangements for implementation and application of the requirements of Directive 93/104, codified by Directive 2003/88, may display certain divergences as regards the conditions for exercising the right to paid annual leave, but that directive does not allow Member States to exclude the very existence of a right expressly granted to all workers ( BECTU , paragraph 55, and Schultz-Hoff and Others , paragraph 47).
20. Also, since Directive 2003/88 does not make any distinction between workers who are absent from work on sick leave during the reference period and those who have in fact worked in the course of that period (see Schultz-Hoff and Others , paragraph 40) it follows that, with regard to workers on sick leave which has been duly granted, the right to paid annual leave conferred by that directive on all workers cannot be made subject by a Member State to a condition that the worker has actually worked during the reference period laid down by that State ( Schultz‑Hoff and Others , paragraph 41).
23. It should be stated at the outset that the question whether a national provision must be disapplied in as much as it conflicts with European Union law arises only if no compatible interpretation of that provision proves possible.
24. In that regard, the Court has consistently held that when national courts apply domestic law they are bound to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 288 TFEU. This obligation to interpret national law in conformity with European Union law is inherent in the system of the Treaty on the Functioning of the European Union, since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of European Union law when they determine the disputes before them (see, inter alia, Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others [2004] ECR I‑8835, paragraph 114; Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others  [2009] ECR I‑3071, paragraphs 197 and 198; and Case C‑555/07 Kücükdeveci [2010] ECR I‑365, paragraph 48).
25. It is true that this principle of interpreting national law in conformity with European Union law has certain limitations. Thus the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law and it cannot serve as the basis for an interpretation of national law contra legem (see Case C‑268/06 Impact  [2008] ECR I‑2483, paragraph 100, and Angelidaki and Others , paragraph 199).
27. In that regard, it should be noted that the principle that national law must be interpreted in conformity with European Union law also requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the directive in question is fully effective and achieving an outcome consistent with the objective pursued by it (see Case C‑212/04 Adeneler and Others  [2006] ECR I‑6057, paragraph 111, and Angelidaki and Others , paragraph 200).
31. It is clear from the foregoing that it is for the national court to determine, taking the whole body of domestic law into consideration, in particular Article L. 223-4 of the Code du travail, and applying the interpretative methods recognised by domestic law with a view to ensuring that Directive 2003/88 is fully effective and achieving an outcome consistent with the objective pursued by it, whether it can find an interpretation of that law that allows the absence of the worker due to an accident on the journey to or from work to be treated as being equivalent to one of the situations covered by that article of the Code du travail.
33. In that regard, it is clear from the settled case-law of the Court that, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly (see, inter alia, Pfeiffer and Others , paragraph 103 and the case‑law cited).
34. Article 7 of Directive 2003/88 fulfils those criteria as it imposes on Member States, in unequivocal terms, a precise obligation as to the result to be achieved that is not coupled with any condition regarding application of the rule laid down by it, which gives every worker entitlement to at least four weeks’ paid annual leave.
35. Even though Article 7 of Directive 2003/88 leaves the Member States a degree of latitude when they adopt the conditions for entitlement to, and granting of, the paid annual leave which it provides for, that does not alter the precise and unconditional nature of the obligation laid down in that article. It is appropriate to note in that regard that Article 7 of Directive 2003/88 is not one of the provisions of that directive from which Article 17 thereof permits derogation. It is therefore possible to determine the minimum protection which must be provided in any event by the Member States pursuant to that Article 7 (see, mutatis mutandis , Pfeiffer and Others , paragraph 105).
36. Since Article 7(1) of Directive 2003/88 fulfils the conditions required to produce a direct effect, it should also be noted that the CICOA, one of the two respondents in the main proceedings and Ms Dominguez’s employer, is a body operating in the field of social security.
37. It is true that the Court has consistently held that a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against an individual (see, inter alia, Case C‑91/92 Faccini Dori  [1994] ECR I‑3325, paragraph 20; Case C‑192/94 El Corte Inglés [1996] ECR I‑1281, paragraph 15; Pfeiffer and Others , paragraph 108; and Kücükdeveci , paragraph 46).
38. It should also be recalled however that, where a person is able to rely on a directive not as against an individual but as against the State he may do so regardless of the capacity in which the latter is acting, whether as employer or as public authority. In either case it is necessary to prevent the State from taking advantage of its own failure to comply with European Union law (see, inter alia, Case 152/84 Marshall [1986] ECR 723, paragraph 49; Case C‑188/89 Foster and Others  [1990] ECR I‑3313, paragraph 17; and Case C‑343/98 Collino and Chiappero [2000] ECR I‑6659, paragraph 22).
39. Thus the entities against which the provisions of a directive that are capable of having direct effect may be relied upon include a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals (see, inter alia, Foster and Others , paragraph 20; Collino and Chiappero , paragraph 23; and Case C‑356/05 Farrell  [2007] ECR I‑3067, paragraph 40).
40. It is therefore for the national court to determine whether Article 7(1) of Directive 2003/88 may be relied upon against the CICOA.
41. If that is the case, as Article 7 of Directive 2003/88 fulfils the conditions required to produce a direct effect, the consequence would be that the national court would have to disregard any conflicting national provision.
42. If that is not the case, it should be borne in mind that even a clear, precise and unconditional provision of a directive seeking to confer rights or impose obligations on individuals cannot of itself apply in proceedings exclusively between private parties (see Pfeiffer and Others , paragraph 109).
43. In such a situation, the party injured as a result of domestic law not being in conformity with European Union law can none the less rely on the judgment in Joined Cases C‑6/90 and C‑9/90 Francovich and Others  [1991] ECR I‑5357 in order to obtain, if appropriate, compensation for the loss sustained.
47. However, as stated both by the Advocate General in point 178 of her Opinion and by the European Commission in its written observations, the finding made in the preceding paragraph does not mean that Directive 2003/88 precludes national provisions giving entitlement to more than four weeks’ paid annual leave, granted under the conditions for entitlement to, and granting of, the right to paid annual leave laid down by that national law.
48. As appears expressly from Article 1(1) and (2)(a) and from Articles 7(1) and 15 of Directive 2003/88, the purpose of the directive is merely to lay down minimum safety and health requirements for the organisation of working time and it does not affect Member States’ right to apply national provisions more favourable to the protection of workers.
49. Thus 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 four weeks laid down in Article 7 of that directive.
50. It follows from the foregoing that Article 7(1) of Directive 2003/88 must be interpreted as not precluding a national provision which, depending on the reason for the worker’s absence on sick leave, provides for a period of paid annual leave equal to or exceeding the minimum period of four weeks laid down in that directive.
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