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CJEU Case C-684/16 / Opinion

Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV v Tetsuji Shimizu.

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

Key facts of the case

Request for a preliminary ruling from the Bundesarbeitsgericht.

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 allowance in lieu thereof where an application for leave has not been made by the worker prior to the termination of the employment relationship — Directive 2003/88/EC — Article 7 — Obligation to interpret national law in conformity with EU law — Charter of Fundamental Rights of the European Union — Article 31(2) — Whether it may be relied upon in a dispute between individuals.

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 Bundesarbeitsgericht (Federal Labour Court, 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 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, 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.

(4) Where, in the context of a dispute between two individuals, national legislation prevents a worker from receiving an allowance in lieu of untaken paid annual leave at the end of the employment relationship to which he is nonetheless entitled under Article 7(2) of Directive 2003/88, the national court dealing with the matter is required to ascertain whether it can interpret the applicable national law in a manner consistent with that provision and, if that does not appear to it to be the case, to ensure, within the framework of its powers, the legal protection resulting for individuals from Article 31(2) of the Charter and to give full effect to that article by disapplying if need be any national provision to the contrary.