1. The present requests for a preliminary ruling concern the interpretation of 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 and of Article 31(2) of the Charter of Fundamental Rights of the European Union.
2. The requests were submitted in the context of two sets of proceedings brought, in the case of TSN (C‑609/17), by the Terveys- ja sosiaalialan neuvottelujärjestö (TSN) ry (health and social services sector union, Finland) against the Terveyspalvelualan liitto ry (now Hyvinvointialan liitto ry (health services sector union, Finland)) and Fimlab Laboratoriot Oy, and, in the case of AKT (C‑610/17), by the Auto- ja Kuljetusalan Työntekijäliitto AKT ry (motor vehicle and transport workers’ union, Finland) against the Satamaoperaattorit ry (port operators’ association, Finland) and Kemi Shipping Oy, concerning the refusal to allow two workers who were ill during a period of paid annual leave to carry over leave representing all or part of the days of sick leave thus affected. The distinctive feature of the requests is that the coincidence between the days of paid annual leave and the days of sick leave relates to a period in excess of the minimum period of four weeks of paid annual leave provided for in Article 7(1) of Directive 2003/88.
3. The question whether Article 31(2) of the Charter may be directly relied on in a dispute between private parties saw a major development in the judgments of 6 November 2018, Bauer and Willmeroth, and of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften. According to a ‘logic of compensation’, which enables the absence of horizontal direct effect of directives to be offset, the Court, in recognising that Article 31(2) of the Charter could be directly relied on in a dispute between private parties, strengthened the effectiveness of the fundamental right to an annual period of paid leave. As the Court made clear in those judgments, that ‘horizontal reliance’ can apply only in situations governed by EU law. It is also necessary to agree on the meaning to be given to the latter expression.
4. The problem facing the Court in the present cases consists in clarifying the scope of Article 31(2) of the Charter in situations in which the Member States and/or employers and workers decide to grant workers paid annual leave beyond the minimum period of four weeks provided for in Article 7(1) of Directive 2003/88 and make that additional leave subject to rules that differ from those applicable to the minimum period of four weeks.
5. Must such enhanced national protective measures fall outside the scope of Directive 2003/88 and therefore outside the scope of the Charter, with the consequence that neither Article 31(2) nor any other provision of the Charter is then applicable to this type of situation? Or, rather, must such measures, which are adopted in accordance with the enhanced national protective clause in Article 15 of Directive 2003/88, fall within the scope of that directive and therefore within the scope of the Charter, with the consequence that both Article 31(2) and the other provisions of the Charter must then be considered to be applicable to this type of situation?
6. In that they relate to the scope of the Charter, the present cases are thus concerned with the problem of the constitutional balance between the Union and the Member States. In fact, these cases will, in particular, allow the Court to decide whether the criterion that the Member States are implementing EU law, set out in Article 51(1) of the Charter, is satisfied when the Member States adopt — or allow employers and workers to adopt — enhanced national protective measures.
7. In this Opinion, I shall state that I am in favour of the Charter being applicable to situations in which such measures are at issue. That will lead me to examine the normative content of Article 31(2) of the Charter and to clarify the relationship between that provision and secondary EU law, in this instance Article 7(1) of Directive 2003/88.
8. In concrete terms, that will lead me, first, to suggest that the Court rule that Article 7(1) of Directive 2003/88 must be interpreted as meaning that it does not preclude national legislation or collective agreements which provide that the days of paid annual leave in excess of the minimum of four weeks provided for in that provision cannot be carried over when they overlap with days of sick leave.
9. I shall then set out the reasons why in my view Article 31(2) of the Charter does not alter that solution. Although to my mind that provision must be considered to be applicable to situations such as that at issue in the main proceedings, it does not in my view have the effect of conferring on workers a right to paid annual leave beyond the minimum duration as specified by the EU legislature. At the same time, I shall emphasise that, in adopting reasoning which proceeds from the starting point that the Charter is applicable in situations in which an enhanced national protective clause is being implemented, the Court would make clear that such situations are subject to compliance with all of the provisions of the Charter.
Having regard to all of the foregoing considerations, I propose that the Court answer the questions for a preliminary ruling referred by the työtuomioistuin (Labour Court, Finland) 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, and Article 31(2) of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that they do not preclude national legislation or collective agreements, such as those at issue in the main proceedings, from which it follows that days of paid annual leave beyond a period of four weeks cannot be carried over when they overlap with days of sick leave.
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