Employment—Entitlement to paid annual leave—Sick leave

Court of Justice of the European Communities (First Chamber), Judges Jann (president of the Chamber), Ilesic, Borg Barthet, Levits (Rapporteur) and Kasel, 10 September 2009

Article 7(1) of Parliament and Council Directive (EC) 2003/88 (concerning certain aspects of the organisation of working time) precludes national provisions or collective agreements which provide that a worker who was on sick leave during a period of annual leave scheduled in the annual leave planning schedule of the undertaking which employed him does not have the right, after his recovery, to take his annual leave at a time other than that originally scheduled, if necessary outside the corresponding reference period.

The applicant in the main proceedings was allocated a period of leave for 2007 by his employer from 16 July to 14 August. Following an accident at work on 3 July, he was unable to work until 13 August, with the result that the period of annual leave allocated to him for 2007 during which he was not simultaneously on sick leave was limited to 14 and 15 August 2007. He asked his employer to allocate a new period of paid annual leave, on the basis that he had been on sick leave during the period of annual leave originally allocated. The employer refused and the applicant challenged that decision in the Spanish courts. The courts referred to the European Court of Justice a question for a preliminary ruling on Art 7(1) of Council Directive (EC) 2003/88. 

The European Court of Justice:

Article 7(1) provided: “1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.”
No derogation was allowed with regard to Art 7. By its question, the referring court asked, essentially, whether Art 7(1) of Directive 2003/88 precluded national provisions or collective agreements which provided that a worker who was on sick leave during a period of annual leave scheduled in the annual leave planning schedule of the undertaking which employed him did not have the right, following his recovery, to take his annual leave at a time other than that originally scheduled, if necessary outside the corresponding reference period.

It had to be borne in mind that, as was clear from the actual wording of Art 7(1), every worker was entitled to paid annual leave of at least four weeks. That entitlement to paid annual leave had to be regarded as a particularly important principle of Community social law from which there could be no derogations and the implementation of which by the competent national authorities had been confined within the limits expressly laid down by Directive 2003/88 itself.

In that regard, the court had already held that Art 7(1) of Directive 2003/88 did not preclude, as a rule, national legislation which laid 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 leave year or of a carry-over period, provided, however, that the worker who had lost his right to paid annual leave has actually had the opportunity to exercise that right.
A worker normally had to be entitled to actual rest, with a view to ensuring effective protection of his health and safety, since it was only where the employment relationship was terminated that Art 7(2) of Directive 2003/88 permitted an allowance to be paid in lieu of paid annual leave.

It was, moreover, common ground that the purpose of the entitlement to paid annual leave was to enable the worker to rest and to enjoy a period of relaxation and leisure. The purpose of the entitlement to sick leave was different. It was given to the worker so that he could recover from being ill.
It followed that a worker who was on sick leave during a period of previously scheduled annual leave had the right, on his request and in order that he might actually use his annual leave, to take that leave during a period which did not coincide with the period of sick leave. The scheduling of that new period of annual leave, corresponding to the duration of the overlap between the period of annual leave originally scheduled and the sick leave, was subject to the rules and procedures of national law which were applicable to the scheduling of workers’ leave, taking into account the various interests involved, including overriding reasons relating to the interests of the undertaking.

If such interests precluded acceptance of the worker’s request for a new period of annual leave, the employer was obliged to grant the worker a different period of annual leave proposed by him which was compatible with those interests, without excluding in advance the possibility that that period might fall outside the reference period for the annual leave in question.
While the positive effect of paid annual leave for the safety and health of the worker was deployed fully if it was taken in the year prescribed for that purpose—namely the current year—the significance of that rest period in that regard remained if it was taken during a later period.

Consequently, although Directive 2003/88 did not preclude national legislation or practices which allowed a worker on sick leave to take paid annual leave during that sick leave, where that worker did not wish to take annual leave during a period of sick leave, annual leave had to be granted to him for a different period.

Accordingly, national provisions of the type under consideration were precluded.