Alexander Heimann and Konstantin Toltschin v Kaiser GmbH.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Levits
• ECLI: ECLI:EU:C:2012:693
• Docket Number: C‑229/11,C‑230/11
• Date: 08 November 2012
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Fifth Chamber)

8 November 2012 ( *1 )

‛Social policy — Directive 2003/88/EC — Short-time working (‘Kurzarbeit’) — Reduction of paid annual leave on the basis of short-time working — Allowance in lieu’

In Joined Cases C‑229/11 and C‑230/11,

REFERENCES for a preliminary ruling under Article 267 TFEU from the Arbeitsgericht Passau (Germany), made by decision of 13 April 2011, received at the Court on 16 May 2011, in the proceedings

Alexander Heimann (C‑229/11),

Konstantin Toltschin (C‑230/11)

v

Kaiser GmbH,

THE COURT (Fifth Chamber),

composed of M. Ilešič, acting as President of the Fifth Chamber, E.Levits (Rapporteur) and M. Safjan, Judges,

Advocate General: V. Trstenjak,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

— Mr Heimann, by R. Zuleger, Rechtsanwalt,

— Mr Toltschin, by R. Zuleger, Rechtsanwalt,

— Kaiser GmbH, by C. Olschar, Rechtsanwalt,

— the German Government, by T. Henze, N. Graf Vitzthum and K. Petersen, acting as Agents,

— the Polish Government, by M. Szpunar, acting as Agent,

— the European Commission, by M. van Beek and V. Kreuschitz, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 These references for a preliminary ruling concern the interpretation of Article 31(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of Article 7 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; ‘Directive 2003/88’).

2 The references have been made in proceedings between Mr Heimann and Mr Toltschin, respectively, and their former employer Kaiser GmbH (‘Kaiser’), concerning their right to an allowance in lieu of paid annual leave not taken in 2009 and 2010.

Legal context

European Union law

3 Article 31 of the Charter provides: ‘Fair and just working conditions 1. Every worker has the right to working conditions which respect his or her health, safety and dignity. 2. 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.’

4 Article 1 of Directive 2003/88, entitled ‘Purpose and scope’, provides: ‘1. This Directive lays down minimum safety and health requirements for the organisation of working time. 2. This Directive applies to: (a) minimum periods of … annual leave … ...’

5 Article 7 of Directive 2003/88, 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.’

6 Article 17 of Directive 2003/88 provides that the Member States may derogate from certain provisions of that directive. No derogation is allowed in respect of Article 7 of the directive.

German law

7 The Federal law on leave (Bundesurlaubsgesetz) of 8 January 1963 (BGBl. 1963, p. 2), as amended by Law of 7 May 2002 (BGBl. 2002 I, p. 1529, ‘the BUrlG’), provides, in Articles 1 to 3, a right to paid annual leave of at least 24 days.

8 Article 7(4) of the BUrlG provides: ‘If, because of the termination of the employment relationship, the leave can no longer be authorised in full or in part, an allowance in lieu thereof shall be paid.’

9 Under the third sentence of Article 11(1) of the BUrlG, reductions in pay during the calculation period resulting from short-time working, temporary employment, or work absences not attributable to any fault of the employee are to be disregarded for the purposes of calculating the leave payment.

The actions in the main proceedings and the questions referred for a preliminary ruling

10 Mr Heimann and Mr Toltschin were employed since 2003 and 1998, respectively, by Kaiser, a sub-contracting business in the motor industry which employs several hundred workers.

11 In 2009, owing to financial difficulties, Kaiser decided to reduce its staff. Accordingly, Mr Heimann and Mr Toltschin were dismissed with effect from 30 June and 31 August 2009, respectively.

12 In May 2009, Kaiser and its works council agreed to a social plan.

13 That social plan provided for the extension of the employment contracts of dismissed workers for one year from the date of their dismissal, while suspending, by the application of ‘zero hours short-time working’ (‘Kurzarbeit Null’), the worker’s obligation to work and the employer’s obligation to pay him a salary.

14 The purpose of that extension of the employment contracts was to give the workers concerned the opportunity of receiving, for the year following their dismissal, a financial allowance. The Federal Employment Agency grants workers, during a period of ‘zero hours short-time working’, an allowance known as ‘Kurzarbeitergeld’. That allowance, calculated and paid by the employer, replaces the salary of the worker in question for the duration of the short-time working.

15 When, on 30 June 2010, Mr Heimann’s employment relationship came to an end, he claimed the sum of EUR 2 284.32 from Kaiser as financial compensation for 15 and 10 days of paid annual leave not taken in 2009 and 2010, respectively.

16 Mr Toltschin, whose employment relationship came to an end on 31 August 2010, claimed a right to financial compensation corresponding to 10 and 30 days of paid annual leave not taken in 2009 and 2010, respectively, representing a total amount of EUR 2 962.60.

17 Kaiser contends that, during the period of ‘Kurzarbeit Null’, the applicants in the main proceedings did not acquire any rights to paid annual leave.

18 The referring court envisages the application of the pro rata temporis rule, treating the ‘Kurzarbeit Null’ in the same manner as a reduction of a worker’s obligation to work resulting from a contractually agreed move from full-time employment to part-time employment, involving a reduction of the paid annual leave to which a worker is entitled during the period of...