Georg Neidel v Stadt Frankfurt am Main.
Date: 2012-05-03
21. Consequently, the Court has held that Directive 89/391 must necessarily be broad in scope, with the result that the exceptions to that scope, provided for in the first subparagraph of Article 2(2), must be interpreted restrictively (see, to that effect, inter alia, Case C‑303/98 Simap  [2000] ECR I‑7963, paragraphs 34 and 35, and Judgment of 12 January 2006 in Case C‑132/94 Commission  v Spain , paragraph 22). Those exceptions were adopted purely for the purpose of ensuring the proper operation of services essential for the protection of public health, safety and order in cases the gravity and scale of which are exceptional (Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others  [2004] ECR I‑8835, paragraph 55, and order in Case C‑519/09 May [2011] ECR I‑2761, paragraph 19).
23. It must be noted, next, according to settled case‑law, the concept of ‘worker’ within the meaning of Article 45 TFEU has a specific independent meaning and must not be interpreted narrowly. Any person who pursues activities that are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship is, according to that case‑law, that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration (see, in particular, Case 66/85 Lawrie‑Blum  [1986] ECR 2121, paragraphs 16 and 17; Case C‑138/02 Collins [2004] ECR I‑2703, paragraph 26; and Case C‑456/02 Trojani  [2004] ECR I‑7573, paragraph 15).
25. It must, lastly, be stated that the Court has held that, in the absence of any distinction in the exception in Article 45(4) TFEU, concerning employment in the public service, it is of no interest whether a worker is engaged as a workman [ouvrier], a clerk [employé] or an offic ial [fonctionnaire] or even whether the terms on which he is employed come under public or private law. These legal designations can be varied at the whim of national legislatures and cannot therefore provide a criterion for interpretation appropriate to the requirements of European Union law (see Case 152/73 Sotgiu  [1974] ECR 153, paragraph 5).
28. In that regard, it should be pointed out 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 settled case‑law of the Court, must be regarded as a particularly important principle of European Union social law, is therefore granted to every worker, whatever his state of health (see Joined Cases C‑350/06 and C‑520/06 Schultz‑Hoff and Others  [2009] ECR I‑179, paragraph 54). That concept of ‘worker’ applies, as was stated in the answer given to the first question, to a public servant such as the applicant in the main proceedings.
29. On termination of the employment relationship, it is in fact no longer possible to take paid annual leave. In order to prevent this impossibility leading to a situation in which the worker loses all enjoyment of that right, even in pecuniary form, Article 7(2) of Directive 2003/88 provides that the worker is entitled to an allowance in lieu ( Schultz‑Hoff and Others , paragraph 56).
30. Consequently, the Court has held 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 ( Schultz‑Hoff and Others , paragraph 62).
32. Consequently, the answer to the fourth question is that Article 7(2) of Directive 2003/88 must be interpreted as meaning that a public servant is entitled, on retirement, to an allowance in lieu of paid annual leave not taken because he was prevented from working by sickness.
The second, third and sixth questions
34. In that regard, it must be borne in mind that the Court has held that Directive 2003/88 does not preclude provisions of national law 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 (judgment of 24 January 2012 in Case C‑282/10 Dominguez , paragraph 47).
35. 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 simply to lay down minimum safety and health requirements for the organisation of working time and it does not affect Member States’ right to apply provisions of national law more favourable to the protection of workers ( Dominguez , paragraph 48).
36. Consequently, as it is permissible for Member States to provide, depending on the reason for the worker’s absence on sick leave, for a period of paid annual leave equal to or exceeding the minimum period of four weeks laid down in Directive 2003/88 ( Dominguez , paragraph 50), it is for them, first, to decide whether to confer on public servants an entitlement to further paid leave in addition to the entitlement to a minimum paid annual leave of four weeks, and either provide or not provide for an entitlement, in respect of a public servant who is retiring, to an allowance in lieu if that person has been unable to use that additional entitlement because he was prevented from working by sickness, and, secondly, to lay down the conditions for the granting of that entitlement.
37. It follows that the answer to the second, third and sixth questions is that Article 7 of Directive 2003/88 must be interpreted as not precluding provisions of national law conferring on a public servant an entitlement to further paid leave in addition to the entitlement to a minimum paid annual leave of four weeks, which do not provide for the payment of an allowance in lieu if a public servant who is retiring has been unable to use that additional entitlement because he was prevented from working by sickness.
The fifth question
39. In that regard, it must be stated at the outset that in the judgment in Case C‑214/10 KHS  [2011] ECR I‑11757, paragraph 35, the Court took the view that with regard to the carry‑over period beyond which the right to paid annual leave may lapse where entitlements to paid annual leave are accumulated, it is necessary to assess, in the light of Article 7 of Directive 2003/88, whether that period may reasonably be described as a period beyond which paid annual leave ceases to have its positive effect for the worker as a rest period.
40. In that context, the Court stated that the right to paid annual leave is, as a principle of European Union social law, not only particularly important, but is also expressly laid down 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 ( KHS , paragraph 37).
41. It follows that, in order to uphold that right, the objective of which is the protection of workers, any carry‑over period must take into account the specific circumstances of a worker who is unfit for work for several consecutive reference periods. Thus, the carry‑over period must, inter alia, ensure that the worker can have, if need be, rest periods that may be staggered, planned in advance and available in the longer term and must be substantially longer than the reference period in respect of which it is granted ( KHS , paragraph 38).
42. In the main proceedings, the carry‑over period laid down in Paragraph 9(2) of the HUrlVO is nine months, that is to say a period shorter than the reference period to which it relates.
43. In the light of the foregoing considerations, the answer to the fifth question is that Article 7(2) of Directive 2003/88 must be interpreted as precluding a provision of national law which restricts, by a carry‑over period of nine months on expiry of which the entitlement to paid annual leave lapses, the right of a public servant who is retiring to cumulate the allowances in lieu of paid annual leave not taken because he was unfit for service.
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