§3 What can be included in the reference period

In light of the wording of Article 16(b) and despite the absence of case-law of the Court on this issue, the Commission considers that, where national law entitles workers to additional periods of paid annual leave beyond the minimum of 4 weeks, the Member State concerned remains free to decide on the inclusion or exclusion of these additional periods of paid annual leave when calculating the average weekly working time. A provision with direct effect The Court has considered Article 6(2), in conjunction with the provisions on the reference period, as fulfilling all the conditions necessary to produce direct effect (201). Despite the possible adjustments of the reference period applicable to the maximum weekly working time, the Court stated that ‘[t]he latitude allowed does not make it impossible to determine minimum rights’ and that the provisions were precise and unconditional (202). As a consequence, the Court held that Article 6(2) of the Directive confers a ‘right on individuals whereby the reference period for the implementation of the maximum duration of their weekly working time must not exceed 12 months’ (203). Nevertheless, the Directive cannot in itself impose obligations on an individual and therefore cannot be applied in proceedings exclusively between private parties (‘horizontal direct effect’) (204). However, it is in any event the responsibility of the national courts to provide the legal protection which an individual derives from that rule and therefore to interpret national law, as far as possible, in the light of the wording and the purpose of the Directive, in order to achieve the desired result (205). In addition, the direct effect of a provision also enables citizens to rely directly on it in actions against the state or public bodies which are ‘emanations of the state’ such as regional authorities, cities and towns or communes (206), including in their capacity as employers, where they have failed to transpose a provision into national law or transposed it incorrectly (207) (‘vertical direct effect’). This may in turn lead to the application of the principle of State liability for loss or damage caused to individuals as a result of breaches of EU law. The State can then be held responsible and have to grant individuals a right to reparation under certain conditions, which have to be examined by the national courts (208). It should be pointed out that an exception would remain where the Member State concerned has used a relevant derogation such as that for autonomous workers or the individual opt-out. However, this is subject to compliance with all the conditions set out for the concerned derogations under the Directive (209). PAID ANNUAL LEAVE The Court has considered the right to paid annual leave very closely and notably held that it was a particularly important principle of Community and European Union social law (210). This right is also expressly laid down in the Charter of Fundamental Rights of the European Union, which has the same legal value as the Treaties. Article 31(2) of the Charter provides that ‘Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave’. The right to paid annual leave of every worker Article 7(1) provides that ‘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.’ The Directive does not permit any derogation from Article 7(1) (211). The Court has determined that this leave has a dual purpose: to enable the worker both to rest and to enjoy a period of relaxation and leisure (212). The Court has ruled that the entitlement to annual leave cannot be interpreted restrictively (213) and that its implementation by the competent national authorities must be confined within the limits expressly laid down by the Directive (214).

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