TSN (Minimum safety and health requirements for the organisation of working time - Right to paid annual leave - Abstract) [2019] EUECJ C-609/17 (19 November 2019)

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(Reference for a preliminary ruling — Social policy — Article 153 TFEU — Minimum safety and health requirements for the organisation of working time — Directive 2003/88/EC — Article 7 — Right to paid annual leave of at least 4 weeks — Article 15 — Provisions of national legislation and collective agreements more favourable to the protection of the safety and health of workers — Workers incapable of working during a period of paid annual leave due to illness — Refusal to carry over that leave where not carrying over that leave does not reduce the actual duration of the paid annual leave below 4 weeks — Article 31(2) of the Charter of Fundamental Rights of the European Union — Inapplicable where there is no implementation of EU law for the purposes of Article 51(1) of the Charter of Fundamental Rights)

1. Social policy — Protection of the safety and health of workers — Organisation of working time — Right to paid annual leave — National legislation which provides for the granting of days of paid annual leave which exceed the minimum period of 4 weeks laid down by Directive 2003/88 — Impossibility of carrying over those additional days of leave on the grounds of illness — Lawfulness

(European Parliament and Council Directive 2003/88, Arts 1(1) and (2)(a), 7(1) and 15)

2. Fundamental rights — Charter of Fundamental Rights of the European Union — Scope — Implementation of EU law — National legislation which provides for the granting of days of paid annual leave which exceed the minimum period of 4 weeks laid down by Directive 2003/88 and yet excludes the carrying over of those additional days of leave on the grounds of illness — National legislation falling within the exercise of the powers retained by the Member States and not falling within the scope of the directive — No implementation of EU law

A Member State may exclude the carrying over of days of paid annual leave on the grounds of illness where those days exceed the minimum period of 4 weeks required by Directive 2003/88

In the judgment TSN and AKT (Joined Cases C-609/17 and C‑610/17), delivered on 19 November 2019, the Court, sitting as the Grand Chamber, ruled, first, that Article 7(1) of Directive 2003/88, (1) which guarantees the right to a period of paid annual leave of at least 4 weeks, does not preclude national rules or collective agreements which provide for the granting of days of paid annual leave which exceed that minimum period, and yet exclude the carrying over of those days of leave on the grounds of illness. Second, the Court ruled that Article 31(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’), which provides, in particular, that every worker has the right to paid annual leave, is not intended to apply where such national rules or collective agreements exist.

Each of the cases pending before the referring court concerns a worker who was entitled, under the collective agreement applicable to his or her sector, to a period of paid annual leave exceeding the minimum period of 4 weeks laid down by Directive 2003/88, namely 7 weeks (Case C‑609/17) and 5 weeks (Case C‑610/17). As those workers had been incapable of working on the grounds of illness during a period of paid annual leave, they asked their respective employers to carry over the part of the annual leave that they had been unable to enjoy. However, their employers refused to grant those requests in so far as they concerned the part of the right to paid annual leave exceeding the minimum leave period of 4 weeks laid down by Directive 2003/88.

In the first place, regarding Directive 2003/88, the Court recalled that that directive does not preclude domestic provisions granting a right to a period of paid annual leave longer than the 4 weeks laid down in Article 7(1) of that directive. However, in such a situation, the rights to paid annual leave which exceed that minimum period are governed not by that directive, but by national law, in particular as regards the conditions for granting and extinguishing those additional days of leave. Consequently, the Court concluded that the Member States continue to have the freedom to grant or not to grant the right to carry over all or some of those additional days of leave where the worker has, during a period of annual leave, been incapable of working due to illness, provided that the right to paid annual leave actually enjoyed by the worker remains at least equal to the minimum period of 4 weeks guaranteed by Directive 2003/88.

In the second place, regarding the Charter, the scope of which is defined in Article 51(1) thereof, the Court began by noting that, so far as action by the Member States is concerned, the provisions of the Charter are addressed to those States only when they are implementing EU law. It found that, by adopting rules or authorising the negotiation of collective agreements which provide for the granting of days of paid annual leave which exceed the minimum period of 4 weeks guaranteed by Directive 2003/88, and yet exclude the carrying over of those days on the grounds of illness, a Member State is not implementing that directive for the purposes of Article 51(1) of the Charter, with the result that that Charter, in particular Article 31(2) thereof, is not intended to apply.

In that regard, the Court emphasised, inter alia, that Directive 2003/88, which was adopted on the basis of Article 137(2) EC, now Article 153(2) TFEU, confines itself to laying down the minimum safety and health requirements for the organisation of working time. Under Article 153(4) TFEU, such minimum requirements may not prevent any Member State from maintaining or introducing more stringent protective measures that are compatible with the Treaties. Accordingly, the Member States remain free, in exercising the powers they have retained in the area of social policy, to adopt such measures, which are more stringent than those which form the subject matter of action by the EU legislature, provided that those measures do not undermine the coherence of that action.

The Court thus found that, where the Member States grant, or permit their social partners to grant, rights to paid annual leave which exceed the minimum period of 4 weeks laid down by Directive 2003/88, such rights, or the conditions for a possible carrying over of those rights in the event of illness which has occurred during the leave, fall within the exercise of the powers retained by the Member States, without being governed by that directive. Where the provisions of EU law in the area concerned do not govern an aspect of a given situation and do not impose any specific obligation on the Member States with regard thereto, the national rule enacted by a Member State as regards that aspect falls outside the scope of the Charter.

1 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).

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