Case C-194/12, Maestre García – checking out where annual leave coincides with sick leave

For the purposes of Article 7 of the working time Directive 2003/88/EC, does a worker, who is on sick leave during a period of annual leave fixed by the company, have the right to take his annual leave at another period?

Facts
The claimant is a supermarket checkout till operator. Owing to illness, she was temporarily off work between 4 November 2010 and 20 June of 2011. During this time, her employer and the works council of the store in which she worked came to an agreement about holidays for 2011. Holidays were to be taken in two broad periods. In the winter period there was a winter holiday of 10 days; and in the summer, a holiday of 21 days. The winter and summer periods were broken down into roughly fortnightly blocks. Workers were to request one block in which they wanted to take their winter annual leave and one block for their summer annual leave. If workers failed to specify their leave, the employer would assign it to them once the employer had considered the requests of the other employees in the employee’s department.

The company informed the claimant in April 2011 that her holiday blocks were in January and June 2011. According to the roster, the claimant’s summer leave was supposed to start on 1 June but she was off work sick. Therefore, on 1 June she replied saying she would take the blocks in August and October. Later in June, she returned to work.

On 30 June, the employer granted her request relating to the winter leave but refused it for the summer leave. Her employer reasoned as follows. Under the collective agreement applicable to hypermarkets, department stores and warehousing sectors, an employee who has been temporarily off work owing to pregnancy, giving birth, or breast feeding, has the right to take their annual leave at a different time. Since none of those grounds were behind the employee’s reason for being temporarily off work, the employee did not have the right under the collective agreement to take leave at another period.

Moreover, the employer added, it was impossible to grant this request. As a checkout operator, she naturally knew that the requested holiday period coincided with the summer sales campaign, and that 7 employees of her department were on holiday. If her department would be deprived of another person, then it would be seriously disadvantaged. This was also one of the busiest periods of the year. This meant that the checkout department would have to be reorganised and structured in a different way. As many employees as possible were required to be present. In light of all of this, it was not possible to grant her request for leave at the time she had requested; to do so would be very damaging for her colleagues, for the store itself, and it would be at the expense of customers.

The Benidorm court felt there were four issues here. The first related to when a period of temporary incapacity started prior the period of annual leave; this matter had already been dealt with by earlier Spanish Supreme Court judgments.

The second issue was where a temporary incapacity arose during a period of annual leave. The judge noted that this had already been the subject of a reference to the CJEU, Case C-78/11. The question in that case arose in the context of the Audiencia Nacional having issued a judicial declaration that workers who were covered by the collective agreement for department stores, were entitled to paid annual leave – even if that leave coincided with periods when they are absent from work on account of being temporarily incapacitated. Employees should have the right to take their unused holidays at another time after the period of temporary incapacity has passed, and that right should continue to exist even if the calendar year had ended. However, the CJEU had not yet handed down its judgment in that reference.

The third issue concerned company agreements which, in the event of temporary incapacity beginning before the annual leave, allows the employer to unilaterally decide annual leave over the wishes of the employee.

And the fourth issue concerned the situation where temporary incapacity arose before or during the period of annual leave and the employer effectively stopped holiday being taken because of reasons relating to production and organisation.

The judge in Benidorm pointed out that the existing case law of the CJEU had laid down criteria in relation to leave and working time. However, that case law did not deal with collective agreements or practices where holidays could be suspended or, where annual leave could no longer be taken due to reasons relating to production or organisation, financial remuneration could be awarded. The judge also added that the CJEU’s case law equally did not cover the situation where practices or collective agreements gave priority to the wishes of the employer over those of the employee.

Questions Referred
According to the EUR-Lex website, the Questions asked by the Benidorm Juzgado de lo Social were:

1. Does Article 7(1) of Directive 2003/88 […] of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time preclude an interpretation of the national legislation that does not allow interruption of a leave period, so that, at a later time, the entire period — or what remains of it — can be taken, where a temporary incapacity takes effect before the period in which leave is taken and there are reasons connected with production or organisation which preclude the leave from being taken in another later period?

2. Does Article 7(1) of Directive 2003/88 of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time preclude an interpretation of the national legislation that permits an undertaking unilaterally to schedule a leave period which coincides with a period of temporary incapacity, where the worker has not expressed in advance a preference to take another period and where there is an agreement between the representatives of the undertaking’s workers and the undertaking which so permits?

3. Does Article 7(1) of Directive 2003/88 of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time preclude an interpretation of the national legislation that permits payment in lieu of leave not taken as a result of temporary incapacity if there are reasons connected with production or organisation which preclude the leave from actually being taken, even though the employment contract has not been terminated?

Comment
Since the Benidorm court has made this reference, the CJEU has handed down its judgment in Case C-78/11 about when temporary incapacity arises during a period of annual leave.

According to the Curia website, the operative part of C-78/11 reads:

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 must be interpreted as precluding national provisions under which a worker who becomes unfit for work during a period of paid annual leave is not entitled subsequently to the paid annual leave which coincided with the period of unfitness for work.

Comment
The CJEU’s judgments in C-131/04, Robinson-Steele, C-350/06 Shultz-Hoff, and C-486/08, Zentralbetriebsrat Landeskrankenhäuser Tirols also crop up in a recent reference from a German court about whether, for the purposes of Article 7 of the working time Directive 2003/88/EC, a worker who is on sick leave has the right to financial compensation in lieu of annual leave that has not been taken before their contract of employment is terminated. See Case C-311/12, Kassner – does EU law stop the social partners eroding paid annual leave?

These CJEU judgments also form part of another reference from a German court about workers who switch from full-time to part-time employment and unused days of annual leave. See Case C-415/12, Brandes – from full-time to part-time work and a disadvantageous recalculation of unused accrued holiday.

Update – 16th October 2013
The Sixth Chamber disposed of Case C-194/12, Maestre García by an Order dated 21 February 2013.

Update – 5 August 2014
Judgment

A version of the CJEU’s Order in Case C-194/12, Maestre García ECLI:EU:C:2013:102 is reproduced below. The reproduction is not authentic. Only the versions of the document published in the ‘Reports of Cases’ or the ‘Official Journal of the European Union’ are authentic. The source of the reproduction is the Eur-Lex Europa web site. The information on that site is subject to a disclaimer and a copyright notice.

ORDER OF THE COURT (Sixth Chamber)

21 February 2013 ()

(Article 99 of the Rules of Procedure – Directive 2003/88/EC – Organisation of working time – Entitlement to paid annual leave – Annual leave scheduled by the undertaking coinciding with sick leave – Entitlement to take annual leave at another time – Allowance in lieu of annual leave not taken)

In Case C-194/12,

REQUEST for a preliminary ruling under Article 267 TFEU from the Juzgado de lo Social de Benidorm (Spain), made by decision of 22 February 2012, received at the Court on 26 April 2012, in the proceedings

Concepción Maestre García

v

Centros Comerciales Carrefour SA,

THE COURT (Sixth Chamber),

composed of M. Berger, President of the Chamber, E. Levits (Rapporteur) and J.-J. Kasel, Judges,

Advocate General: Y. Bot,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1        This request for a preliminary ruling concerns 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 (OJ 2003 L 299, p. 9).

2        The request has been made in proceedings between Ms Maestre García and Centros Comerciales Carrefour SA (‘Carrefour’), her employer, concerning Ms Maestre García’s request to take her annual leave outside the period fixed by the undertaking, during which period she was on sick leave, or, alternatively, to be granted an allowance in lieu of the leave not taken.

 Legal context

 European Union legislation

3        Article 7 of Directive 2003/88, which is 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 17 of Directive 2003/88 provides that Member States may derogate from certain of the directive’s provisions. No derogation is allowed with regard to Article 7 of that directive.

 National legislation

5        Royal Legislative Decree 1/1995 approving the amended text of the Law on the Workers’ Statute (Real Decreto Legislativo 1/1995, por el que se aprueba el texto refundido de la Ley del Estatuto de los Trabajadores) of 24 March 1995 (BOE No 75 of 29 March 1995, p. 9654), in the version applicable at the time of the facts in the main proceedings (‘the Statute’), governs, inter alia, matters relating to paid annual leave and temporary incapacity for work.

6        Article 38 of the Statute provides:

‘1.      The period of paid annual leave, which may not be replaced by an allowance in lieu, shall be that agreed in collective agreements or individual contracts. In no circumstances shall the period of leave be less than 30 calendar days.

2.      The period or periods during which leave may be taken shall be fixed by mutual consent between the employer and the workers, in accordance, where appropriate, with the provisions of the collective agreements on the annual planning of leave.

In the case of disagreement between the parties, the competent court shall set the dates of the leave to be allocated and its decision shall be final. The proceedings shall be summary and dealt with as a matter of priority.

3.      Each undertaking shall establish a leave schedule. Employees shall be made aware of the days to which they are entitled, at the latest, two months in advance of the start of their leave.

When the period of leave set out in the undertaking’s leave schedule to which the previous paragraph refers coincides with a period of incapacity to work resulting from pregnancy, labour or breastfeeding or with the period of suspension of the contract of employment laid down in Article 48.4 of the present Law, employees shall be entitled to take the leave, on a different date from the period of incapacity to work or other period of leave to which they are entitled under that provision, on conclusion of the period of suspension, even if the calendar year to which that leave relates has already ended.’

7        Article 48.4 of the Statute governs the situations in which a contract of employment is suspended on account of child birth, death of the mother after giving birth, premature birth, hospitalisation of the newborn child, adoption or fostering.

8        Article 37, final paragraph, of the Collective Agreement for Department Stores 2009-2012 contains a provision similar to that of the final paragraph of Article 38 of the Statute.

 The dispute in the main proceedings and the questions referred for a preliminary ruling

9        Ms Maestre García, employed as a checkout assistant at Carrefour, was on sick leave from 4 November 2010 to 20 June 2011. During that period, the leave planning schedule for 2011 was fixed. The applicant in the main proceedings was granted 10 days of leave in winter and a further 21 days in summer.

10      The periods of leave accorded to Ms Maestre García coincided with the period of her sick leave. Consequently, she requested that her employer reschedule those periods to dates after her sick leave. That request was upheld only with regard to the annual leave in winter; the request was rejected, so far as the leave in summer was concerned, on grounds of organisational and human-resource problems.

11      In order to ensure that her right to annual leave for 2011 would be recognised, Ms Maestre García brought an action seeking, primarily, an order that Carrefour grant her the 21 days of summer leave that she was unable to take or, alternatively, an allowance in lieu.

12      The Juzgado de lo Social de Benidorm (Social Court, Benidorm), having doubts, in the light of European Union law, as to how to resolve the case before it where periods of annual leave coincide with a period of sick leave, decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1.      Does Article 7(1) of Directive 2003/88 … preclude an interpretation of the national legislation that does not allow interruption of [an annual] leave period, so that, at a later time, the entire period – or what remains of it – can be taken, where a temporary incapacity takes effect before the period in which leave is taken and there are reasons connected with production or organisation which preclude the leave from being taken in another later period?

2.      Does Article 7(1) of Directive 2003/88 … preclude an interpretation of the national legislation that permits an undertaking unilaterally to schedule [an annual] leave period which coincides with a period of temporary incapacity, where the worker has not expressed in advance a preference to take another period and where there is an agreement between the representatives of the undertaking’s workers and the undertaking which so permits?

3.      Does Article 7(1) of Directive 2003/88 … preclude an interpretation of the national legislation that permits payment in lieu of leave not taken as a result of temporary incapacity if there are reasons connected with production or organisation which preclude the [annual] leave from actually being taken, even though the employment contract has not been terminated?’

 Consideration of the questions referred

13      Pursuant to Article 99 of the Court’s Rules of Procedure, where the answer to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law, the Court may at any time, after hearing the Advocate General, give its decision by reasoned order referring to the existing case-law.

14      That article must be applied in the present case.

 The first and second questions

15      By its first and second questions, which it is appropriate to examine together, the referring court asks essentially whether Article 7(1) of Directive 2003/88 must be interpreted as precluding an interpretation of the national legislation according to which a worker who is on sick leave during the period of annual leave scheduled unilaterally in the annual leave planning schedule of the undertaking which employs him does not have the right, following the end of his sick leave, to take his annual leave during a period other than that originally scheduled, if necessary outside the corresponding reference period, for reasons connected with production or organisation of the undertaking.

16      In that regard, it should be noted first of all that, according to 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 can be no derogations and the implementation of which 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, a directive now codified by Directive 2003/88 (Case C-214/10 KHS [2011] ECR I-11757, paragraph 23 and the case-law cited).

17      Second, it should be recalled that the right to paid annual leave is, as a principle of European Union social law, not only particularly important, but is also expressly laid down in Article 31(2) of the Charter of Fundamental Rights of the European Union, which Article 6(1) TEU recognises as having the same legal value as the Treaties (KHS, paragraph 37, and Case C-337/10 Neidel [2012] ECR, paragraph 40).

18      It is, moreover, common ground that the purpose of entitlement to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure. The purpose of entitlement to sick leave is different. Sick leave is given to the worker so that he can recover from an illness that has caused him to be unfit for work (see Case C-78/11 ANGED [2012] ECR, paragraph 19).

19      Accordingly, the Court has already held that it follows in particular from the purpose of entitlement to paid annual leave that a worker who is on sick leave during a period of previously scheduled annual leave has the right, at his request and in order that he may actually use his annual leave, to take that leave during a period which does not coincide with the period of sick leave (see Case C-277/08 Vicente Pereda [2009] ECR I-8405, paragraph 22, and ANGED, paragraph 20).

20      In that regard, it should be pointed out that the worker may submit his request for annual leave not only prior to the period of annual leave scheduled in the annual leave planning schedule of the undertaking and also after that date, thereby expressing his disagreement with the period allocated to him. In that context, any provision resulting from an agreement between the undertaking and the representatives of the undertaking’s workers which denies him that right is irrelevant.

21      Consequently, although Directive 2003/88 does not preclude national legislation or practices which allow a worker on sick leave to take paid annual leave during a period of sick leave (Joined Cases C-350/06 and C-520/06 Schultz-Hoff and Others [2009] ECR I-179, paragraph 31), it follows from the case-law cited in paragraph 19 of the present order that, where that worker does not wish to take annual leave during such a period, his employer must allow him to take annual leave during a different period.

22      The Court has already held, so far as concerns the scheduling of that new period of annual leave, corresponding to the duration of the overlap between the period of annual leave originally scheduled and the sick leave, that it is subject to the rules and procedures of national law which are applicable to the scheduling of workers’ leave, taking into account the various interests involved, including overriding reasons relating to the interests of the undertaking (see Vicente Pereda, paragraph 22).

23      As regards taking the interests of the undertaking into account, the Court has observed that, if such interests preclude acceptance of the worker’s request for a new period of annual leave, the employer is obliged to grant the worker a different period of annual leave proposed by him which is compatible with those interests, without excluding in advance the possibility that that period may fall outside the reference period for the annual leave in question (see Vicente Pereda, paragraph 23).

24      It follows from those considerations that the employer cannot refuse, for reasons relating to the interests of the undertaking, to grant the worker any different period of annual leave. In view of the particular importance of the right to paid annual leave as a principle of European Union social law, as mentioned in paragraph 17 of the present order, the interests of the undertaking can be taken into account only by giving the employer the option to refuse a period chosen by the worker in favour of a different period, which may fall outside the reference period, without calling into question the actual grant of annual leave at a later date.

25      In the light of all of the foregoing, the answer to the first and second questions is that Article 7(1) of Directive 2003/88 must be interpreted as precluding an interpretation of the national legislation according to which a worker who is on sick leave during a period of annual leave scheduled unilaterally in the annual leave planning schedule of the undertaking which employs him does not have the right, following the end of his sick leave, to take his annual leave at a time other than that originally scheduled, if necessary outside the corresponding reference period, for reasons connected with production or organisation of the undertaking.

 The third question

26      By its third question, the referring court asks essentially whether Article 7 of Directive 2003/88 must be interpreted as precluding an interpretation of the national legislation that permits the payment of an allowance in lieu of the period of annual leave which the worker was not able to take as a result of work incapacity, even though the employment relationship has not been terminated, but there are reasons connected with production or organisation of the undertaking which preclude the worker from actually taking his annual leave.

27      For the purpose of answering that question, it should be noted at the outset that, under the actual terms of Article 7(2) of Directive 2003/88, ‘[t]he minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated’.

28      Thus, in accordance with settled case-law (see Vicente Pereda, paragraph 20 and the case-law cited, and Neidel, paragraph 29 and the case-law cited), a worker must normally be entitled to actual rest, with a view to ensuring effective protection of his health and safety. It is thus only where the employment relationship is terminated that Article 7(2) of Directive 2003/88 permits an allowance to be paid in lieu of paid annual leave which has not been taken.

29      In the case in the main proceedings, however, it is common ground that Ms Maestre García’s contract of employment has not ended, with the result that an allowance in lieu cannot be paid pursuant to Article 7 of Directive 2003/88, as reasons connected with the interests of the undertaking which preclude the annual leave from actually being taken are entirely irrelevant in that regard.

30      In the light of all of the foregoing, the answer to the third question is that Article 7 of Directive 2003/88 must be interpreted as precluding an interpretation of the national legislation that permits, while the contract of employment is in force, the payment of an allowance in lieu of the period of annual leave which the worker was not able to take as a result of work incapacity.

 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 (Sixth Chamber) hereby rules:

1.      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 must be interpreted as precluding an interpretation of the national legislation according to which a worker who is on sick leave during a period of annual leave scheduled unilaterally in the annual leave planning schedule of the undertaking which employs him does not have the right, following the end of his sick leave, to take his annual leave at a time other than that originally scheduled, if necessary outside the corresponding reference period, for reasons connected with production or organisation of the undertaking.

2.      Article 7 of Directive 2003/88 must be interpreted as precluding an interpretation of the national legislation that permits, while the contract of employment is in force, the payment of an allowance in lieu of the period of annual leave which the worker was not able to take as a result of work incapacity.

[Signatures]


Language of the case: Spanish.

  
Update – 22 January 2017
The CJEU’s ruling in Case C-194/12, Maestre García ECLI:EU:C:2013:102 is now part of three preliminary references made from the German courts; see further, Case C-569/16, Bauer – an heir’s accrued leave rights post-Bollacke but contra legem.