Williams and Others v British Airways plc.
Date: 2011-09-15
17. The wording of Article 7 of Directive 2003/88 makes no specific reference to the remuneration to which a worker is entitled during his annual leave. The case-law, however, points out that it follows from the very wording of Article 7(1) – a provision from which that directive allows no derogation – that every worker is entitled to paid annual leave of at least four weeks and that that right to paid annual leave must be regarded as a particularly important principle of Community social law (see Joined Cases C‑350/06 and C‑520/06 Schultz-Hoff and Stringer and Others  [2009] ECR I‑179, paragraphs 22 and 54 and the case-law cited).
18. The right to such an annual period of paid leave is, moreover, expressly laid down in Article 31(2) of the Charter of Fundamental Rights of the European Union, which Article 6(1) EU recognises as having the same legal value as the Treaties.
19. In that context, the Court has already had occasion to state that the expression ‘paid annual leave’ in Article 7(1) of Directive 2003/88 means that, for the duration of ‘annual leave’ within the meaning of that directive, remuneration must be maintained and that, in other words, workers must receive their normal remuneration for that period of rest (see Joined Cases C‑131/04 and C‑257/04 Robinson-Steele and Others [2006] ECR I‑2531, paragraph 50, and Schultz-Hoff and Stringer and Others , paragraph 58).
20. The purpose of the requirement of payment for that leave is to put the worker, during such leave, in a position which is, as regards remuneration, comparable to periods of work (see Robinson-Steele and Others , paragraph 58, and Schultz-Hoff and Stringer and Others , paragraph 60).
21. As the Advocate General states in point 90 of her Opinion, it follows from the foregoing that remuneration paid in respect of annual leave must, in principle, be determined in such a way as to correspond to the normal remuneration received by the worker. It also follows that an allowance, the amount of which is just sufficient to ensure that there is no serious risk that the worker will not take his leave, will not satisfy the requirements of EU law.
22. However, where the remuneration received by the worker is composed of several components, the determination of that normal remuneration and, consequently, of the amount to which that worker is entitled during his annual leave requires a specific analysis. Such is the case with regard to the remuneration of an airline pilot as a member of the flight crew of an airline, that remuneration being composed of a fixed annual sum and of variable supplementary payments which are linked to the time spent flying and to the time spent away from base.
23. In that regard, although the structure of the ordinary remuneration of a worker is determined, as such, by the provisions and practice governed by the law of the Member States, that structure cannot affect the worker’s right, referred to in paragraph 19 of the present judgment, to enjoy, during his period of rest and relaxation, economic conditions which are comparable to those relating to the exercise of his employment.
24. Accordingly, any inconvenient aspect which is linked intrinsically to the performance of the tasks which the worker is required to carry out under his contract of employment and in respect of which a monetary amount is provided which is included in the calculation of the worker’s total remuneration, such as, in the case of airline pilots, the time spent flying, must necessarily be taken into account for the purposes of the amount to which the worker is entitled during his annual leave.
25. By contrast, the components of the worker’s total remuneration which are intended exclusively to cover occasional or ancillary costs arising at the time of performance of the tasks which the worker is required to carry out under his contract of employment, such as costs connected with the time that pilots have to spend away from base, need not be taken into account in the calculation of the payment to be made during annual leave.
26. In that regard, it is for the national court to assess the intrinsic link between the various components which make up the total remuneration of the worker and the performance of the tasks which he is required to carry out under his contract of employment. That assessment must be carried out on the basis of an average over a reference period which is judged to be representative and in the light of the principle established by the case-law cited above, according to which Directive 2003/88 treats entitlement to annual leave and to a payment on that account as being two aspects of a single right (see Robinson-Steele and Others , paragraph 58, and Schultz-Hoff and Stringer and Others , paragraph 60).
27. That stated, it must also be pointed out that the Court has already held that an employee, working as a purser for an airline company and transferred, by reason of her pregnancy, temporarily to ground work, was entitled, during her temporary transfer, not only to maintenance of her basic salary but also to pay components or supplementary allowances relating to her professional status as an employee. Accordingly, allowances relating to her seniority, her length of service and her professional qualifications had to be maintained (see, to that effect, Case C‑471/08 Parviainen [2010] ECR I‑0000, paragraph 73). That case-law also applies to a pregnant worker who has been granted leave from work (Case C‑194/08 Gassmayr [2010] ECR I‑0000, paragraph 65).
30. Thus, there is no provision of EU law which prevents the Member States, or, as the case may be, management and labour from exceeding the minimum protection of workers guaranteed by EU legislation and providing for the maintenance of all the components of the total remuneration to which such workers are entitled during their period of work (see, to that effect, Parviainen , paragraph 63).