EU law precludes a worker from automatically losing the paid annual leave to which he was entitled and his right to financial compensation for leave not taken solely because he did not request leave before the employment relationship ended, the EU Court of Justice ruled on Tuesday 6 November (Cases C-619/16 and C-684/16).
Mr Kreuziger completed a paid preparatory internship for the legal professions with the State of Berlin during which he refrained from taking paid annual leave. His employer rejected his request for financial compensation after the end of the internship for unused leave days. This was based on German legislation according to which paid annual leave and the resulting financial compensation are lost when a request for leave is made after the termination of the employment relationship.
When asked to interpret the Directive (2003/88) on the organisation of working time, the Court endorsed the conclusions of the Advocate General (see EUROPE 12029).
Considering that the worker must be considered as the weak part of an employment relationship, it considers that a worker cannot automatically lose his rights to earned paid annual leave because he has not requested leave during the employment relationship.
Nevertheless, these rights may lapse if the worker has actually been given the opportunity by the employer, in particular through adequate information, to take the leave in question in good time. It is up to the employer to prove such a situation.
In another case, Max-Planck Gesellschaft invited its employee, Mr Shimizu, two months before the end of the employment relationship to take his remaining leave. The latter took only two days of leave and requested payment of compensation for the days of leave not taken.
According to the Court, any interpretation of the Directive which would encourage a worker to deliberately refrain from taking paid annual leave during the reference periods in order to increase his remuneration when the employment relationship ends would be incompatible with the objective of guaranteeing the worker effective protection of his safety and health.
And the European judge pointed out that these principles apply to both public and private employers. As the right to paid annual leave is a fundamental right enshrined in the European Charter of Social Rights, this right implies a corresponding obligation for a private employer. Any contrary national provisions must be left unimplemented (see other news). (Original version in French by Mathieu Bion)