(Reference for a preliminary ruling — Social policy — Directive 2003/88/EC — Article 7 — Right to paid annual — Retirement at the request of the party concerned — Worker failing to use up all his entitlement to annual paid leave before the termination of his work relations — National legislation excluding allowance in lieu of paid annual leave not taken — Sick leave — Public servants
SOURCE: Court of Justice of the European Union, Press Release No 81/16, 20 July '16
Mr Hans Maschek, a civil servant of the city of Vienna, retired, at his own request, with effect from 1 July 2012. Between 15 November 2010 and 30 June 2012, he did not report to his work place. During the period from 15 November to 31 December 2010, Mr Maschek was on sick leave. From 1 January 2011, he was required, in accordance with an agreement concluded with his employer, to not report to his workplace, while continuing to receive his salary. After retiring, Mr Maschek asked his employer to pay him an allowance in lieu of paid annual leave not taken, claiming that he had fallen ill again shortly before he retired. His employer refused his request on the grounds that, according to the rules on the remuneration of civil servants of the city of Vienna, a worker who, at his own request, terminates the employment relationship – particularly because he applies for retirement – is not entitled to such an allowance.
The Verwaltungsgericht Wien (Administrative Court of Vienna), hearing an action brought by Mr Maschek against that refusal, asks the Court whether such rules are compatible with EU law and, more specifically, with Directive 2003/88.
(…) the Court recalls that the Directive provides that every worker is entitled to paid annual leave of at least four weeks and that the right to paid annual leave is a particularly important principle of EU social law. It is granted to every worker, whatever his state of health. When the employment relationship comes to an end and paid annual leave can therefore no longer be taken, the Directive states that the worker is entitled to an allowance in lieu in order to prevent the impossibility of taking leave leading to a situation in which the worker loses all enjoyment of that right, even in pecuniary form.
The Court states in this regard that the reason why the employment relationship has ended is irrelevant. Therefore, the fact that a worker terminates, at his own request, the employment relationship has no bearing on his entitlement to receive, where appropriate, an allowance in lieu of the paid annual leave that he could not use up before the end of his employment relationship.
The Court concludes from this that the Directive precludes national legislation such as that on the rules on the remuneration of civil servants of the city of Vienna, which deprives the worker, whose employment relationship was terminated following his request for retirement, of an allowance in lieu of paid annual leave not taken and who has been unable to use up his entitlement to paid annual leave before the end of that employment relationship. The Court recalls, in addition, its case-law according to which an employee is entitled, on retirement, to an allowance when he could not, because of sickness, use up his right to paid annual leave. Mr Maschek is therefore entitled to an allowance for the period 15 November to 31 December 2010, a period during which it is established that he was on sick leave and for that reason could not use up his entitlement to the annual paid leave acquired over that period.
The Court adds that the right to annual leave has the twofold purpose of enabling the worker both to rest from carrying out the work he is required to do under his contract of employment and to enjoy a period of relaxation and leisure. In order to ensure the effectiveness of the right to annual leave, the Court proposes the following principle: a worker whose employment relationship has ended and who, pursuant to an agreement with his employer, while continuing to receive his salary, is required not to report to his place of work during a specified period preceding his retirement, is not entitled, should the case arise, to an allowance in lieu of paid annual leave not taken during this period, unless it was owing to sickness that he could not use up that entitlement.
The Court holds therefore that it will be for the referring court to determine if that was the case in respect of Mr Maschek during the period from 1 January 2011 to 30 June 2012. If so, he will not be entitled to an allowance in lieu of the paid annual leave he could not use up during that period, unless it was because of sickness that he could not use up his right to paid annual leave. The Court further observes that, while the purpose of the Directive is to lay down minimum health and safety requirements for the organisation of working time, requirements that the Member States are obliged to comply with; the latter have the right to introduce provisions more favourable to workers. Thus, the Directive does not preclude domestic provisions giving entitlement to more than the minimum period of four weeks’ paid annual leave guaranteed by the Directive and granted on the conditions for entitlement to, and granting of, the right to paid annual leave fixed by national law.
Accordingly, the Member States are free to grant workers more paid annual leave than the minimum annual paid leave of four weeks provided for by the Directive. In that case, the Member States may provide for a worker who, because of illness, could not use up all his additional paid annual leave before the end of his employment relationship, to be granted entitlement to an allowance in lieu of that additional period. It is for the Member States to determine the conditions for granting that entitlement.
(Reference for a preliminary ruling — Social policy — Directive 1999/70/EC — Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Successive fixed-term employment contracts — Clause 5(1) Measures aimed at preventing the misuse of fixed-term contracts — Directive 2000/78/EC — Article 6(1) — Prohibition of discrimination on the ground of age — National legislation authorising the postponement of the end of the contract of employment fixed at the normal retirement age simply because that the worker qualified for a retirement pension)
SOURCE: Court of Justice of the European Union, Press Release No 23/18, 28 February ‘18
Mr Hubertus John was employed by the City of Bremen (Germany) as a contract teacher. As he was approaching the normal retirement age he asked for permission to continue working beyond that date. The City of Bremen agreed to extend his contract until the end of the 2014/2015 school year. Subsequently, it refused another request by Mr John to extend his contract until the end of the first half of the school year of 2015/2016. Taking the view that the fixed term of the extension granted to him is contrary to EU law, Mr John brought legal proceedings against the City of Bremen.
The Landesarbeitsgericht Bremen (Higher Regional Court, Bremen, Germany), before which the case has been brought, observes that the German legislation in force allows the parties to a contract of employment, subject to certain conditions, to postpone the date of termination of the contract which takes place simply because the worker, by reaching the normal age for retirement, is entitled to a retirement pension.
The Landesarbeitsgericht Bremen asks the Court of Justice whether such legislation is compatible with the prohibition on discrimination based on the grounds of age1 and with the Framework Agreement on fixed-term work (an agreement which aims to prevent the misuse of successive fixed-term contracts).
By today’s judgment, the Court declares that the prohibition on discrimination on grounds of age does not preclude a national provision, such as that at issue in the main proceedings, in so far as that provision makes the postponement of the date of termination of the employment of workers who have reached the legal qualifying age for a retirement pension subject to the employer’s consent which is given for a fixed term.
The Court states that the legislation at issue cannot be regarded as unfavourable with regard to persons having reached retirement age as compared with those who have not already reached that age. It constitutes a derogation from the principle of the automatic termination of a contract of employment when the worker reaches normal retirement age and allows the date of termination of the employment relationship to be postponed indefinitely, and on more than one occasion, without any other requirements. The continuation of the employment relationship cannot, in any event, take place without the agreement of both parties to the contract.
As regards the Framework Agreement on fixed-term work, the Court, first, expresses doubts as to whether the extension at issue may be regarded as the use of successive fixed-term contracts. It is possible that such an extension may be regarded as merely the contractual postponement of the retirement age initially agreed.
In that regard, the Court observes that nothing in the file before it indicates that the contested legislation might encourage the successive use of fixed-term contracts, or that it constitutes a potential source of abuse to the detriment of workers. In any event, it cannot be held that the age limits corresponding to the normal retirement age lead, in every case, to greater insecurity of the situation of the workers concerned, for the purposes of the Framework Agreement, if the latter benefit from a full retirement pension and, in particular, if the employer is allowed to renew the contract of employment concerned.
If the Landesarbeitsgericht Bremen were to hold that the extension granted to Mr John must be regarded as the use of successive fixed-term contracts, the Court rules that the Framework Agreement on fixed-term work does not preclude national provisions, such as that at issue in the main proceedings, which allow the parties to an employment contract indefinitely to postpone, by common agreement, and on more than one occasion if necessary, the date of termination of the contract which takes place simply because the worker, by reaching normal retirement age, is entitled to a retirement pension.
In that regard, the Court refers to the observations of the Landesarbeitsgericht Bremen, according to which an employee who reaches the legal standard qualifying age for a retirement pension is not in the same position as other employees, not only because he receives social cover, but also because he is generally at the end of his working life and, with regard to the fixed term of his contract, does not have the alternative of benefitting from an indefinite employment contract. Moreover, the extension at issue guarantees that the initial contractual terms will be maintained, while preserving the right of the worker concerned to receive a retirement pension.