Hans Maschek v Magistratsdirektion der Stadt Wien - Personalstelle Wiener Stadtwerke.
Date: 2016-07-20
23


‘In those circumstances, the Verwaltungsgericht Wien (Administrative Court of Vienna) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:





‘(1)


Is national legislation, such as the provision at issue of Paragraph 41a(2) of the [BO], which does not allow an employee who has, at his own request, terminated the employment relationship with effect from a particular date an entitlement to an [allowance in lieu of paid annual leave not taken] within the meaning of Article 7 of Directive No 2003/88/EC compatible with Article 7 of Directive 2003/88/EC?
If not, is a provision of national law which lays down that every employee who, at his own request, terminates an employment contract must make every effort to use up any outstanding entitlement to annual leave by the end of the employment relationship and that, in the event of termination of the employment relationship at the request of the employee, an entitlement to an [allowance in lieu of paid annual leave not taken] arises only if, also in the event of request being made for annual leave beginning on the day of the application to terminate the employment relationship, the employee was unable to take a period of leave corresponding to the full extent of an entitlement to an allowance in lieu of leave compatible with Article 7 of Directive 2003/88/EC?








(2)


Is it to be assumed that there is only to be an entitlement to an [allowance in lieu of paid annual leave not taken] if the employee who was unable due to incapacity to work to use up his leave entitlement immediately before the termination of his employment relationship (a) without unnecessary delay (and therefore in principle before the date of termination of the employment relationship) made his employer aware of his incapacity to work (for example due to illness) and (b) without unnecessary delay (and therefore in principle before the date of termination of the employment relationship) provided proof (e.g. through a doctor’s sick note) of his incapacity to work (e.g. due to illness)?
If not, is a provision of national law which lays down that there is only to be an entitlement to an [allowance in lieu of paid annual leave not taken] if the employee who was unable due to incapacity to work to use up his leave entitlement immediately before the termination of his employment relationship (a) without unnecessary delay (and therefore in principle before the date of termination of the employment relationship) made his employer aware of his incapacity to work (e.g. due to illness) and (b) without unnecessary delay (and therefore in principle before the date of termination of the employment relationship) provided proof (e.g. through a doctor’s sick note) of his incapacity to work (e.g. due to illness) compatible with Article 7 of Directive 2003/88/EC?








(3)


According to the case-law of the Court of Justice of the European Union (see judgments of the Court of Justice of 18 March 2004 in Merino Gomez, C‑342/01, paragraph 31; 24 January 2012 in Dominguez, C‑282/10, paragraphs 47 to 50; 3 May 2012 in Neidei, C‑337/10, paragraph 37) the Member States are free to grant an employee a statutory entitlement to leave or to an allowance in lieu of leave above the minimum entitlement guaranteed by Article 7 of Directive 2003/88. In addition, the entitlements laid down by Article 7 of Directive No 2003/88 have direct effect (see judgments of the Court of Justice of 24 January 2012 in Dominguez, C‑282/10, paragraphs 34 to 36 and 12 June 2014 in Bollacke, C‑118/13, paragraph 28).
In the light of that interpretation given to Article 7 of Directive 2003/88/EC, does a situation in which the national legislature allows a certain class of persons an entitlement to an allowance in lieu of leave significantly above the requirements of that provision of the directive have the effect that, as a result of the direct effect of Article 7 of Directive 2003/88/EC, those persons who were, contrary to the terms of [that] directive, refused an entitlement to an allowance in lieu of leave by that national legislation are also entitled to an [allowance in lieu of paid annual leave not taken] to the extent significantly above the requirements of that provision of [that] directive, and which is allowed by the national legislation to the persons favoured by that provision?’
25


In order to provide an answer which will be of use to the referring court, it must, in the first place, be recalled, as is apparent from the very wording of Article 7(1) of Directive 2003/88, a provision from which that directive allows no derogation, that every worker is entitled to paid annual leave of at least four weeks. That right to paid annual leave which, according to settled case-law, must be regarded as a particularly important principle of EU social law, is therefore granted to every worker, whatever his state of health (judgments in Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 54, and Neidel, C‑337/10, EU:C:2012:263, paragraph 28).
26


On termination of the employment relationship and when therefore it is no longer possible to take paid annual leave, Article 7(2) of Directive 2003/88 provides that the worker is entitled to an allowance in lieu in order to prevent this impossibility leading to a situation in which the worker loses all enjoyment of that right, even in pecuniary form (see judgments of 20 January 2009 in Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 56; 3 May 2012 in Neidel, C‑337/10, EU:C:2012:263, paragraph 29, and 12 June 2014 in Bollacke, C‑118/13, EU:C:2014:1755, paragraph 17).
27


It should also be noted that Article 7(2) of Directive 2003/88, as interpreted by the Court, lays down no condition for entitlement to an allowance in lieu other than that relating to the fact, first, that the employment relationship has ended and, second, that the worker has not taken all annual leave to which he was entitled on the date that that relationship ended (judgment of 12 June 2014 in Bollacke, C‑118/13, EU:C:2014:1755, paragraph 23).
28


It follows, in accordance with Article 7(2) of Directive 2003/88, that a worker who has not been able to take all his entitlement to paid annual leave before his employment relationship has ended, is entitled to allowance in lieu of paid annual leave not taken. In that respect, the reason for which the employment relationship has ended is not relevant.
31


In the second place, concerning a situation such as that at issue in the main proceedings, it must be recalled 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 (judgments in Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 62, and Neidel, C‑337/10, EU:C:2012:263, paragraph 30).
32


Consequently, Article 7(2) of Directive 2003/88 must be interpreted as meaning that an employee is entitled, on retirement, to an allowance in lieu of paid annual leave not taken because he was prevented from working by sickness (see, to that effect, judgment of 3 May 2012 in Neidel, C‑337/10, EU:C:2012:263, paragraph 32).
34


In addition, the right to paid annual leave, according to settled case-law, as laid down in Article 7 of Directive 2003/88, has 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 (judgments in Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 25, and 22 November 2011 in KHS, C‑214/10, EU:C:2011:761, paragraph 31).
38


As regards, in the third place, the question whether national legislation may provide, in respect of a worker who, in breach of Article 7(2) of Directive 2003/88, is not entitled to an allowance in lieu of paid annual leave not taken, for detailed rules on the exercise of that entitlement which are more favourable than those provided for by Directive 2003/88, in particular as regards the amount of allowance to be granted to that worker, it should be recalled that although the purpose of Directive 2003/88 is to lay down minimum health and safety requirements for the organisation of working time, which Member States must respect, they have, in accordance with Article 15 of that directive, the right to introduce more favourable provisions for workers. Thus, Directive 2003/88 does not preclude domestic provisions giving entitlement to more than the minimum period of four weeks’ paid annual leave, guaranteed by Article 7 of that directive, granted under the conditions for entitlement to, and granting of, the right to paid annual leave laid down by national law (see, inter alia, judgments of 24 January 2012 in Dominguez, C‑282/10, EU:C:2012:33, paragraph 47, and 3 May 2012 in Neidel, C‑337/10, EU:C:2012:263, paragraphs 34 and 35).
39


Accordingly, it is, on the one hand, for the Member States to decide whether to grant workers additional paid annual leave in addition to the minimum annual paid leave of four weeks provided for in Article 7 of Directive 2003/88. In that case, the Member States may grant to a worker who, because of illness, could not use up all of his additional paid annual leave before the end of his employment relationship, an entitlement to an allowance in lieu of that additional period. It is, on the other hand, for the Member States to determine the conditions for granting that entitlement (see, judgment of 3 May 2012 in Neidel, C‑337/10, EU:C:2012:263, paragraph 36).