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.
24) By way of preliminary point, I observe that, although a number of interested parties, including the Land of Berlin, submitted observations in respect of the nature of the relationship between that Land and Mr Kreuziger in his capacity as Rechtsreferendar (legal trainee) and, in particular, on whether that relationship fell within the scope of Directive 2003/88, it should be noted that the referring court considered that Mr Kreuziger did indeed come within the scope of that directive and therefore did not submit any question in that respect. On that point, therefore, I shall merely note that the first subparagraph of Article 1(3) of Directive 2003/88 provides that that directive is to apply to all sectors of activity, both public and private, and in particular to ‘educational’ activities. It follows from the Court’s case-law that Directive 2003/88 must be given a broad scope. ( 5 ) I refer, moreover, to the definition of ‘worker’, within the meaning of Article 7 of Directive 2003/88 and of Article 31(2) of the Charter of Fundamental Rights of the European Union, ( 6 ) which the Court has applied in its case-law. ( 7 ) Like the European Commission, I am inclined to take the view that preparation for the legal professions is an educational activity which in addition, in the present case, has the general characteristics of an employment relationship. The right to paid annual leave granted to each trainee in the context of the national scheme applicable to officials and judges must therefore, in my view, be exercised in accordance with Article 7 of that directive and Article 31(2) of the Charter.
31) According to the Court, the rule laid down in Article 7 of Directive 2003/88 and in Article 31(2) of the Charter is therefore that ‘the right to paid annual leave acquired cannot be lost at the end of the leave year and/or of a carry-over period fixed by national law, when the worker has been unable to take his leave’. ( 15 )