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CJEU Case C-385/17 / Opinion

Torsten Hein v Albert Holzkamm GmbH & Co.

Policy area:
Employment and social policy
Deciding Body type:
Court of Justice of the European Union
Deciding Body:
General Advocate
Type:
Opinion
Decision date:
05/09/2018

Key facts of the case

Request for a preliminary ruling from the Arbeitsgericht Verden.

Reference for a preliminary ruling — Social policy — Organisation of working time — Directive 2003/88/EC — Right to paid annual leave — Article 7(1) — Legislation of a Member State under which collective agreements may provide for account to be taken of periods of short-time working when calculating remuneration to be paid in respect of annual leave — Temporal effects of judgments ruling on interpretation.

Outcome of the case

In the light of the aforementioned considerations, I propose that the Court answer the first question posed by the Arbeitsgericht Verden (Labour Court, Verden, Germany) as follows:

Article 7(1) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time does not preclude national legislation, such as that in the main proceedings, under which reductions in earnings occurring in the period of calculation as a result of short-time work affect the calculation of the payment for annual leave with the result that the worker receives a lower remuneration for annual leave for the duration of the period of annual leave of at least four weeks, or receives a lower allowance in lieu of leave after the employment relationship has ended, than he would receive if the calculation of the remuneration for annual leave were based on the average earnings which the worker would have received in the period of calculation without such reductions in earnings. However, it is ultimately for the referring court to assess, in the light of the overall economy of the federal collective framework agreement for the construction industry and, in particular, its arrangements on annual leave, whether the essence of the right to paid annual leave is not undermined by those rules.