JUDGMENT OF THE COURT (First Chamber)
(Request
for a preliminary ruling — Social policy — Directive 2003/88/EC —
Organisation of working time — Paid annual leave — Allowance in lieu in
the event of death)
In Case C‑118/13,
REQUEST
for a preliminary ruling under Article 267 TFEU from the
Landesarbeitsgericht Hamm (Germany), made by decision of 14 February
2013, received at the Court on 14 March 2013, in the proceedings
Gülay Bollacke
v
K + K Klaas & Kock B.V. & Co. KG,
THE COURT (First Chamber),
composed of A. Tizzano, President of the Chamber, E. Levits (Rapporteur), M. Berger, S. Rodin and F. Biltgen, Judges
Advocate General: M. Wathelet,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– K + K Klaas & Kock B.V. & Co. KG, by M. Scheier, Rechtsanwalt,
– the German Government, by T. Henze and J. Möller, acting as Agents,
– the Danish Government, by M. Wolff and V. Pasternak Jørgensen, acting as Agents,
– the Hungarian Government, by M. Fehér, K. Szíjjártó and K. Molnár, acting as Agents,
– the United Kingdom Government, by L. Christie, acting as Agent, and by E. Dixon, Barrister,
– the European Commission, by M. van Beek and F. Schatz, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 This
request for a preliminary ruling concerns the interpretation of
Article 7 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 (OJ 2003 L 299, p. 9).
2 The
reference has been made in proceedings between Mrs Bollacke and the
former employer of her late husband, K + K Klaas & Kock B.V. &
Co. KG (‘K + K’) concerning the interested party’s right to receive an
allowance in lieu of paid annual leave not taken by Mr Bollacke at the
date of his death.
Legal context
EU law
3 Article 7 of Directive 2003/88, entitled ‘Annual leave’, is worded as follows:
‘1.
Member States shall take the measures necessary to ensure that every
worker is entitled to paid annual leave of at least four weeks in
accordance with the conditions for entitlement to, and granting of, such
leave laid down by national legislation and/or practice.
2.
The minimum period of paid annual leave may not be replaced by an
allowance in lieu, except where the employment relationship is
terminated.’
4 Article 15 of Directive 2003/88, entitled ‘More favourable provisions’, provides that:
‘This
Directive shall not affect Member States’ right to apply or introduce
laws, regulations or administrative provisions more favourable to the
protection of the safety and health of workers or to facilitate or
permit the application of collective agreements or agreements concluded
between the two sides of industry which are more favourable to the
protection of the safety and health of workers.’
5 Article 17
of that directive provides that Member States may derogate from certain
provisions of that directive. However, no derogation is allowed with
regard to Article 7 thereof.
German law
6 Paragraph 7(4)
of the Federal Law on Paid Leave (Bundesurlaubsgesetz) of 8 January
1963 (BGBl. 1963, p. 2), in the amended version of 7 May 2002 (BGBl.
2002 I, p. 1529), provides that:
‘If,
because of the termination of the employment relationship, the leave can
no longer be authorised in full or in part, an allowance in lieu
thereof shall be paid.’
7 According
to Paragraph 1922(1) of the Civil Code (Bürgerliches Gesetzbuch), upon
the death of a person (devolution of an inheritance), that person’s
property (inheritance) passes as a whole to one or more than one other
persons (heirs).
The dispute in the main proceedings and the questions referred for a preliminary ruling
8 Mrs
Bollacke is the wife and sole beneficiary of her late husband, who was
employed by K + K from 1 August 1998 to 19 November 2010, the date of
his death.
9 Mr
Bollacke had been seriously ill since 2009. During that year he was
unfit for work for more than eight months. He was again unable to work
from 11 October 2010 until the date of his death.
10 It
is not in dispute that, on the date of his death, Mr Bollacke was
entitled to a minimum of 140.5 days of annual leave outstanding.
11 By
letter of 31 January 2011, Mrs Bollacke submitted an application to K +
K for an allowance in lieu of those days of leave outstanding. K + K
rejected that application on the ground that there were doubts that an
inheritable entitlement could exist.
12 The
court of first instance, hearing that application by Mrs Bollacke, also
rejected the application, on the ground that, under the case-law of the
Bundesarbeitsgericht (Federal Labour Court), entitlement to an
allowance in lieu of paid annual leave outstanding at the end of the
employment relationship does not arise where that relationship is
terminated by the death of the employee. That judgment being the subject
of an appeal, the referring court raises the question of the validity
of that national case-law in the light of the case-law of the Court
relating to Article 7 of Directive 2003/88.
13 In
those circumstances the Landesarbeitsgericht Hamm decided to stay the
proceedings and to refer the following questions to the Court of Justice
for a preliminary ruling:
‘1. Is
Article 7(1) of Directive 2003/88/EC to be interpreted as precluding
national legislation or practice according to which the entitlement to a
minimum period of paid annual leave is lost in its entirety on the
death of the worker, namely, not only the entitlement to release from
the obligation to work, which can no longer be implemented, but also the
entitlement to payment of remuneration in respect of annual leave?
2. Is
Article 7(2) of Directive 2003/88 to be interpreted as meaning that the
entitlement to an allowance in lieu of a minimum period of paid annual
leave on termination of the employment relationship attaches to the
person of the worker in such a way that that entitlement accrues only to
him, in order to enable him to realise at a later date the purposes of
rest and leisure associated with the granting of paid annual leave?
3. Is
Article 7(1) of Directive 2003/88 to be interpreted as meaning that,
having regard to the protection of the safety and health of workers, the
employer is obliged, when organising working time, actually to grant
the worker leave by the end of the calendar year or, at the latest, by
the end of a carry-over period applicable to the employment
relationship, regardless of whether or not the worker has submitted an
application for leave?’
Consideration of the three questions referred
14 By
its three questions, which it is appropriate to consider together, the
national court asks, in essence, whether Article 7 of Directive 2003/88
must be interpreted as precluding national legislation or practice, such
as those at issue in the main proceedings, which provide that the
entitlement to paid annual leave is lost without conferring entitlement
to an allowance in lieu of leave outstanding, where the employment
relationship is terminated by the death of the employee and, if so,
whether receipt of such an allowance depends on a prior application by
the applicant.
15 In
that regard it should be noted, first, that, according to the Court’s
settled case-law, the entitlement of every worker to paid annual leave
must be regarded as a particularly important principle of European Union
social law from which there may be no derogations and whose
implementation by the competent national authorities must be confined
within the limits expressly laid down by Council Directive 93/104/EC of
23 November 1993 concerning certain aspects of the organisation of
working time (OJ 1993 L 307, p. 18) itself, that directive having been
codified by Directive 2003/88 (see
Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 22 ;
KHS, C‑214/10, EU:C:2011:761, paragraph 23; and
Dominguez, C‑282/10, EU:C:2012:33, paragraph 16).
16 Moreover,
it must be noted, first, that Article 7 of Directive 2003/88 is not one
of the provisions from which the directive expressly allows derogation
(see
Schultz-Hoff and Others, EU:C:2009:18, paragraph 24), and,
second, that that directive treats entitlement to annual leave and to a
payment on that account as being two aspects of a single right.
17 Finally,
the Court has previously stated that when the employment relationship
has terminated, and, therefore, it is in fact no longer possible to take
paid annual leave, Article 7(2) of Directive 2003/88 provides that the
worker is entitled to an allowance in lieu in order to prevent all
enjoyment by the worker of that right to paid annual leave, even in
pecuniary form, being lost because of that ‘impossibility’ (see, to that
effect,
Schultz-Hoff and Others, EU:C:2009:18, paragraph 56, and
Neidel, C‑337/10, EU:C:2012:263, point 29).
18 Consequently,
the Court has held that Article 7(2) of Directive 2003/88 must be
interpreted as precluding national legislation or practices which
provide that, on termination of the employment relationship, no
allowance in lieu of paid annual leave not taken is to be paid to a
worker who has been on sick leave for the whole or part of the leave
year and/or of a carry-over period, which was the reason why he could
not exercise his right to paid annual leave (
Schultz-Hoff and Others, EU:C:2009:18, paragraph 62).
19 It
is in the light of that case-law that it must be established whether,
when the event that terminated the employment relationship is the
worker’s death, such an event may preclude entitlement to paid annual
leave being transformed into an entitlement to an allowance in lieu.
20 In
that regard, it must be stated that the entitlement to paid annual
leave constitutes only one of two aspects of an essential principle of
EU social law and that that principle also includes the entitlement to a
payment (see, to that effect,
Schultz-Hoff and Others, EU:C:2009:18, paragraph 60 and the case-law cited).
21 In
fact, the expression ‘paid annual leave’, used by the EU legislature,
in, inter alia, Article 7 of Directive 2003/88, means that, for the
duration of annual leave within the meaning of that directive, the
worker’s remuneration must be maintained. In other words, workers must
continue to receive their normal remuneration throughout that period of
rest and relaxation (see,
Robinson-Steele and Others, C‑131/04 and C‑257/04, EU:C:2006:177, paragraph 50;
Schultz-Hoff and Others, EU:C:2009:18, paragraph 58; and
Lock, C‑539/12, EU:C:2014:351, paragraph 16).
22 In
order to ensure respect for that fundamental workers’ right affirmed in
EU law, the Court may not make a restrictive interpretation of
Article 7(2) of Directive 2003/88 at the expense of the rights that
workers derive from it (see, to that effect, inter alia,
Heimann and Toltshin, C‑229/11 and C‑230/11, EU:C:2012:693, paragraph 23 and the case-law cited, and the order in
Brandes, C 415/12, EU:C:2013:398, paragraph 29 and the case-law cited).
23 Next,
it should be noted, as the Hungarian Government puts forward in its
observations, that Article 7(2) of Directive 2003/88, as interpreted by
the Court, lays down no condition for entitlement to an allowance in
lieu other than that relating to the fact, first, that the employment
relationship has ended and, secondly, that the worker has not taken all
annual leave to which he was entitled on the date that that relationship
ended.
24 Finally,
it should be noted that receipt of financial compensation if the
employment relationship has ended by reason of the worker’s death is
essential to ensure the effectiveness of the entitlement to paid annual
leave granted to the worker under Directive 2003/88.
25 Indeed,
if the obligation to pay annual leave were to cease with the end of the
employment relationship because of the worker’s death, the consequence
of that circumstance would be an unintended occurrence, beyond the
control of both the worker and the employer, retroactively leading to a
total loss of the entitlement to paid annual leave itself, as affirmed
in Article 7 of Directive 2003/88.
26 For
all those reasons, that provision of Directive 2003/88 cannot therefore
be interpreted as meaning that that entitlement may be lost because of
the worker’s death.
27 Moreover,
since Article 7(2) of Directive 2003/88 does not impose any condition
for entitlement to an allowance in lieu other than that relating to the
fact that the employment relationship has ended, it must be held that
receipt of such an allowance should not be make subject to the existence
of a prior application for that purpose.
28 Indeed,
on the one hand, that entitlement is conferred directly by the
directive without the worker concerned having to take any steps in this
regard and, secondly, that entitlement does not depend on conditions
other than those which are explicitly provided in the directive, so that
the fact that the worker has not previously applied for an allowance in
lieu under Article 7(2) of that directive is entirely irrelevant.
29 It
follows, first, that Article 7 of Directive 2003/88 is not to be
interpreted as meaning that the death of a worker that ends the
employment relationship relieves the deceased worker’s employer of
payment of the allowance in lieu to which that worker would ordinarily
have been entitled by way of paid annual leave outstanding, and,
secondly, that receipt of such an allowance cannot be made subject to
the existence of a prior application for that purpose.
30 It
follows from the foregoing considerations that the answer to the
questions referred is that Article 7 of Directive 2003/88 must be
interpreted as precluding national legislation or practice, such as
those at issue in the main proceedings, which provide that the
entitlement to paid annual leave is lost without conferring entitlement
to an allowance in lieu of leave outstanding, where the employment
relationship is terminated by the death of the worker. Receipt of such
an allowance is not to be dependent on a prior application by the
interested party.
Costs
31 Since
these proceedings are, for the parties to the main proceedings, a step
in the action pending before the national court, the decision on costs
is a matter for that court. Costs incurred in submitting observations to
the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (First Chamber) hereby rules:
Article 7
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 precluding national legislation or
practice, such as those at issue in the main proceedings, which provide
that the entitlement to paid annual leave is lost without conferring
entitlement to an allowance in lieu of leave outstanding, where the
employment relationship is terminated by the death of the worker.
Receipt of such an allowance is not to be dependent on a prior
application by the interested party.
[Signatures]
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