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CJEU Case C-619/16 / Opinion

Sebastian W. Kreuziger v Land Berlin.

Policy area:
Employment and social policy
Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Type:
Decision
Decision date:
29/05/2018

Key facts of the case

Request for a preliminary ruling from the Oberverwaltungsgericht Berlin-Brandenburg.

Reference for a preliminary ruling — Social policy — Organisation of working time — Directive 2003/88/EC — Article 7 — Right to paid annual leave — National legislation providing for the loss of annual leave not taken and of the payment in lieu thereof, where the worker did not submit a request for leave before the termination of the employment relationship.

Outcome of the case

Having regard to the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Oberverwaltungsgericht Berlin-Brandenburg (Higher Administrative Court, Berlin-Brandenburg, Germany) as follows:

(1) Article 7(2) 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 must be interpreted as conferring entitlement to an allowance in lieu of untaken paid annual leave at the end of the employment relationship when a worker was not able to take all the paid annual leave to which he was entitled during that relationship.

(2) Article 7(2) of Directive 2003/88 must be interpreted as precluding national legislation or practice in accordance with which a worker loses his right to an allowance in lieu of untaken paid annual leave at the end of the employment relationship where the worker did not apply for that leave while he was in active service and does not show that he was unable to take it for reasons beyond his control, without prior verification of whether that worker was actually given the opportunity by his employer to exercise his right to paid annual leave.

(3) Where a national court is dealing with a dispute relating to a worker’s right to an allowance in lieu of untaken paid annual leave at the end of the employment relationship, it must ascertain whether the employer shows that he took the appropriate measures to ensure that the worker was able actually to exercise his right to paid annual leave during that relationship. If the employer shows that he took the necessary steps and that, in spite of the measures which he took, the worker declined deliberately and in an informed manner to exercise his right to paid annual leave although he was able to do so during the employment relationship, that worker cannot claim, on the basis of Article 7(2) of Directive 2003/88, payment of an allowance in lieu of untaken paid annual leave at the end of the employment relationship.