Where a handicapped person is placed with a French work rehabilitation centre in order to facilitate his integration into society and to ensure that he flourishes on the labour market, must he work and follow the labour-market courses but without accruing any rights to paid annual leave? Or would that be contrary to the EU’s working time Directive 2003/88?
Mr Fenoll attends a French ‘work rehabilitation centre’ (centre d’aide par le travail). These centres provide socio-medical and educational support to young people or adults who are temporarily or long-term handicapped. In reality, these centres offer courses that focus on the labour market. Courses are designed to ensure that handicapped people flourish on the labour market, and that they integrate into society.
People at a French work rehabilitation centre are known as ‘clients’. They are protected only by health and safety laws. They have no contract of employment. This makes them unlike other handicapped workers in France who are placed in so-called ‘protected’ work environments, or who perform domestic work under the auspices of a work distribution centre.
Without a contract of employment, ‘clients’ at a work rehabilitation centre have absolutely no rights to paid annual leave. Mr Fenoll objects to not being able to take a holiday with full pay, and he put in a claim for compensation in lieu of paid annual leave.
Mr Fenoll’s case was litigated up to the French Cour de cassation. The judicial chamber specialising in social law matters heard the case. Its referring order explains not only that the legislative set-up came about in 1975 but also that the preamble to the 1975 legislation showed that it was the express intention of the French legislature that work rehabilitation centres were to have none of the characteristics associated with performing a public service. French work rehabilitation centres were, and are, run by private companies.
But the judges of the French Court of Cassation also pointed out that some thirty years later, French law had changed – at least in so far as in 2007 the Conseil d’Etat had decreed that the social and professional integration of handicapped people was in society’s general interest.
The problem now facing the French Cour de Cassation was that Mr Fennol was in a legal framework designed to provide him ‘access’ to life in society and to a life in work, but his handicap rendered him incapable of a working life in the mainstream economy or indeed one in a protected environment.
Without rights under French law, the Court of Cassation wondered whether Mr Fennol could invoke rights to paid annual leave by dint of the EU Charter, and Article 7 of the EU’s working time Directive 2003/88/EC.
Article 7 of Directive 2003/88, which is entitled ‘Annual leave’, provides:
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.
Member States cannot derogate from this right (Article 17 of the Directive).
Besides identifying the relevant EU statutory provision, the Court of Cassation summarised the CJEU’s case law on who is a ‘worker’, and the right to paid annual leave. However, it did not know how to apply EU law to Mr Fenoll’s situation.
According to the Curia website, the French Cour de cassation has asked:
 Must Article 3 of Directive 89/391/EEC, to which Article 1 of Directive 2003/88/EC of 4 November 2003, determining the scope thereof, refers, be interpreted as meaning that a person placed in a work rehabilitation centre can be classified as a ‘worker’ within the meaning of that Article 3?
 Must Article 31 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that a person, such as described in the previous question, can be classified as a ‘worker’ within the meaning of that Article 31?
 Can a person, such as described in the first question, rely directly on the rights conferred on her or him by the Charter in order to obtain an entitlement to paid leave if national legislation does not provide for any such entitlement, and must the national courts, in order to ensure that those rights are fully effective, set aside any contrary provision of national law?
It is not clear what has happened to Mr Fenoll’s rights to paid annual leave which he had presumably accrued but perhaps not used at the moment in time when he became ill. Perhaps he has ‘lost’ them if French law deems that sick workers have no rights to paid annual leave?
A worker under Spanish law who has been unable to exercise their rights to paid annual leave within a reference period has also been the subject of a recent reference to the CJEU. See further, Case C-194/12, Maestre García – checking out where annual leave coincides with sick leave.
The linkage between Article 31 of the EU Charter, Article 7 of the working time directive, and German collective agreements, is an issue in Case C-311/12, Kassner – does EU law stop the social partners eroding paid annual leave?
And another aspect of French social law that is currently in the CJEU’s ‘In-Tray’ concerns whether a person who is being ‘apprenticed’, ‘integrated’ or ‘reintegrated’ onto the French labour market should count as a firm’s member of staff. This case is currently before the Grand Chamber of the CJEU. See further, Case C-176/12, Association de médiation sociale – who counts as a member of staff?
Update – 12 May 2014
The Opinion of the Advocate General is due on 12 June 2014.