— Obligations of the employer concerning the taking of leave
The Court has held that employers may not impose on workers a restriction of their right to paid annual leave. Any practice or omission of an employer that may deter a worker from taking annual leave, as well as incentives or encouragements not to take leave are incompatible with the right to paid annual leave (243). A worker’s failure to request paid annual leave during the reference period cannot lead to the loss of paid annual leave at the end of the reference period automatically and without prior verification that the employer had in fact enabled him/her to exercise that right (244). The Court held that the employer should inform the worker accurately and in good time of his or her leave rights (245). The employer should also inform the worker that if he or she does not take the leave, it will be lost at the end of the reference period or authorised carry-over period, or upon termination of the employment relationship (246). According to the Court, although employers should create opportunities and encourage the worker, formally if need be, to take the leave, they are not required to force their workers to exercise their right to paid annual leave (247). The burden of proof in that respect is on the employer. If the employer is not able to show that it has exercised all due diligence in order to enable the worker to take the paid annual leave to which he or she is entitled, the entitlement to paid annual leave, and, in the event of the termination of the employment relationship, a payment of an allowance in lieu of untaken annual leave, is not lost (248). The fact that the employer wrongly considered that the worker is not entitled to paid annual leave is irrelevant as it is for the employer to seek all information regarding its obligations in that regard (249). However, the Working Time Directive does not preclude the loss of the right to paid annual leave, if the employer is able to discharge the burden of proof, as a result of which it appears that the worker refrained deliberately and in full knowledge of the ensuing consequences from taking the paid annual leave to which he or she was entitled after having been given the opportunity to exercise this right (250). According to the Court, unlike in a situation of accumulation of entitlement to paid annual leave by a worker who was unfit for work due to sickness, an employer who does not allow a worker to exercise his or her right to paid annual leave must bear the consequences (251). In the absence of any national statutory or collective provision establishing a limit to the carry-over of leave in accordance with the requirements of EU law, paid annual leave cannot lapse at the end of the reference period (252). Indeed, the Court has held that if it were to be accepted, in that context, that the worker’s acquired entitlement to paid annual leave could be extinguished, that would amount to ‘validating conduct by which an employer was unjustly enriched to the detriment [of] workers’ health’ (253). Where the employer has not put the worker in a position to exercise the right to paid annual leave, the right may not lapse at the end of an authorized carry-over period or even at a later stage if the worker becomes incapacitated for work due to illness in the course of the leave year (254). Similarly, the right may not be time-barred at the end of a three-year period which begins to run at the end of the year in which that right arose (255).
Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.