Concepcion Maestre Garcia v Centros Comerciales Carrefour SA [2013] EUECJ C-194/12 (21 February 2013)

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(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)

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

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,

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.

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.

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.

‘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?’

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.

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-0000, 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 I-0000, 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 I-0000, 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.

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.

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.

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.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Concepcion Maestre Garcia v Centros Comerciales Carrefour SA [2013] EUECJ C-194/12 (21 February 2013) URL: http://www.bailii.org/eu/cases/EUECJ/2013/C19412.html Cite as: [2013] EUECJ C-194/12

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