§2 Minimum leave for all workers, subject to no conditions

Article 7(1) states that the right to paid annual leave is granted to every worker. The Court has stated that ‘every worker’ includes workers who are absent from work on sick leave, whether short or long term, regardless of whether they have in fact worked in the course of the leave year (231). The Court has ruled on the particular case of workers who were unlawfully dismissed and then reinstated in their employment, in accordance with national law, following the annulment of the dismissal by a decision of a court. It held that those workers are entitled to paid annual leave for the period between the date of the dismissal and that of the reinstatement in their employment, despite the fact that, during that period, they did not actually carry out work for the employer (232). The Court stated that the fact that a worker is deprived of the opportunity to work owing to dismissal that was subsequently held to be unlawful is, as a rule, not foreseeable and beyond the worker’s control. That situation is the consequence of the employer’s actions, and an employer that does not allow a worker to exercise his or her right to paid annual leave must bear the consequences. Thus, the period between the date of the unlawful dismissal and the date of the worker’s reinstatement must be treated as a period of actual work for the purpose of determining the rights to paid annual leave. However, where, during that period, the worker obtained other employment, he or she can claim the entitlement to paid annual leave corresponding to the period of work with the new employer only from that employer. The Directive provides that paid annual leave is granted ‘in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice’. Thus, it is for the Member States to lay down, in their domestic legislation, conditions for the exercise and implementation of the right to paid annual leave, by prescribing the specific circumstances in which workers may exercise the right (233). Nevertheless, the Court has held that the Directive precludes Member States from unilaterally limiting the entitlement to paid annual leave conferred on all workers by applying preconditions which would in practice prevent certain workers from benefiting from it (234). For example, the Court has held that Member States may not impose on workers the condition of a period of 13 weeks of uninterrupted employment with the same employer before accruing leave (235). Similarly, Member States cannot impose conditions that make it impossible for certain workers to exercise the right to paid annual leave (236). Having in mind that the right to paid annual leave enshrined in Article 7 of the Directive is also a fundamental right affirmed in Article 31(2) of the Charter of Fundamental Rights, the Court has expressly stated that limitations to that right have to comply with the strict conditions laid down in Article 52(1) of the Charter and, in particular, the essential content of that right (237). Member States nevertheless have some scope to regulate the way in which the right to paid annual leave may be exercised. This could include, for example, ‘the planning of holiday periods, the obligation, if any, for the worker to give his employer advance notice of when he intends to take leave, the requirement that a minimum period of employment must be completed before leave can be taken, the criteria governing the pro-rata calculation of annual leave entitlement where the employment relationship is of less than one year, and so forth’ (238). Entitlement to and granting of leave in the early period of employment While Member States may, for example, organise ‘the manner in which workers may take the annual leave to which they are entitled during the early weeks of their employment’ (239), they may not impose a minimum period of uninterrupted work for the same employer before workers are entitled to paid annual leave (240). Scheduling of leave The Directive does not regulate the scheduling of paid annual leave. This is left to national law, collective agreements or practices. However, as explained below, it provides that a worker who is unable to take planned leave due to another conflicting period of leave (sick leave, maternity leave or another period of leave whose purpose is different from that of the right to annual leave) is entitled to take that annual leave at another time, if necessary outside the corresponding reference period (241), with certain limits to the carry-over period in the event of long-term sick leave (242). 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). Carry-over and possible loss of leave Similarly, national law can lay down conditions for exercising the right to paid annual leave, including the conditions for carry-over at the end of a leave year. As concerns carry-over, the Court has held that ‘while the positive effect of paid annual leave for the safety and health of the worker is deployed fully if it is taken in the year prescribed for that purpose, namely the current year, the significance of that rest period in that regard remains if it is taken during a later period’ (256). The Court has elaborated on the need to provide for carry-over if the worker whose right to annual leave is lost has not had the opportunity to exercise that right (257). The Court took the view that carry-over is inevitable where periods of leave guaranteed by EU law (258) overlap, and in the case of sick leave (259). The Court has also held that where an employer refuses to remunerate the annual leave to which the worker was entitled, the worker’s right to carry-over remains until the termination of the employment relationship (260). Loss of leave entitlement is consequently limited to cases in which the worker has actually had the opportunity to exercise that right (261). For instance, it cannot lapse at the end of the reference period laid down by national law if the worker was on sick leave for the whole or part of the leave year and has not had the opportunity to take annual leave (262), save for the exception admitted by the Court that allows the carry-over period to be limited in the case of long-term sick leave (see Part C). Furthermore, it cannot lapse automatically and without prior verification whether the employer had in fact enabled the worker, in particular through the provision of sufficient information, to exercise his or her right to leave (263).

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07