Opinion of Advocate General Bot delivered on 4 June 2019.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2019:459
• Date: 04 June 2019

Provisional text

OPINION OF ADVOCATE GENERAL

BOT

delivered on 4 June 2019 (1)

Joined Cases C‑609/17 and C‑610/17

Terveys- ja sosiaalialan neuvottelujärjestö (TSN) ry

v

Hyvinvointialan liitto ry (C‑609/17),

other party

Fimlab Laboratoriot Oy

and

Auto- ja Kuljetusalan Työntekijäliitto AKT ry

v

Satamaoperaattorit ry (C‑610/17),

other party

Kemi Shipping Oy

(Requests for a preliminary ruling from the työtuomioistuin (Labour Court, Finland))

(Reference for a preliminary ruling — Social policy — Organisation of working time — Directive 2003/88/EC — Article 7(1) — Right to paid annual leave of at least four weeks — Article 15 — Provisions more favourable to the protection of the safety and health of workers — Worker on sick leave during the period of annual leave — Refusal to carry over the annual leave where the failure to carry over does not have the effect of reducing the duration of the annual leave to below four weeks — Charter of Fundamental Rights of the European Union — Article 31(2) — Applicability — Situation governed by European Union law — Whether it may be relied on in a dispute between private parties)

I. Introduction

1. The present requests for a preliminary ruling concern the interpretation of Article 7(1) 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 (2) and of Article 31(2) of the Charter of Fundamental Rights of the European Union. (3)

2. The requests were submitted in the context of two sets of proceedings brought, in the case of TSN (C‑609/17), by the Terveys- ja sosiaalialan neuvottelujärjestö (TSN) ry (health and social services sector union, Finland) (4) against the Terveyspalvelualan liitto ry (now Hyvinvointialan liitto ry (health services sector union, Finland)) and Fimlab Laboratoriot Oy, and, in the case of AKT (C‑610/17), by the Auto- ja Kuljetusalan Työntekijäliitto AKT ry (motor vehicle and transport workers’ union, Finland) (5) against the Satamaoperaattorit ry (port operators’ association, Finland) and Kemi Shipping Oy, concerning the refusal to allow two workers who were ill during a period of paid annual leave to carry over leave representing all or part of the days of sick leave thus affected. The distinctive feature of the requests is that the coincidence between the days of paid annual leave and the days of sick leave relates to a period in excess of the minimum period of four weeks of paid annual leave provided for in Article 7(1) of Directive 2003/88.

3. The question whether Article 31(2) of the Charter may be directly relied on in a dispute between private parties saw a major development in the judgments of 6 November 2018, Bauer and Willmeroth, (6) and of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften. (7) According to a ‘logic of compensation’, (8) which enables the absence of horizontal direct effect of directives to be offset, the Court, in recognising that Article 31(2) of the Charter could be directly relied on in a dispute between private parties, strengthened the effectiveness of the fundamental right to an annual period of paid leave. As the Court made clear in those judgments, that ‘horizontal reliance’ can apply only in situations governed by EU law. It is also necessary to agree on the meaning to be given to the latter expression.

4. The problem facing the Court in the present cases consists in clarifying the scope of Article 31(2) of the Charter in situations in which the Member States and/or employers and workers decide to grant workers paid annual leave beyond the minimum period of four weeks provided for in Article 7(1) of Directive 2003/88 and make that additional leave subject to rules that differ from those applicable to the minimum period of four weeks.

5. Must such enhanced national protective measures fall outside the scope of Directive 2003/88 and therefore outside the scope of the Charter, with the consequence that neither Article 31(2) nor any other provision of the Charter is then applicable to this type of situation? Or, rather, must such measures, which are adopted in accordance with the enhanced national protective clause in Article 15 of Directive 2003/88, fall within the scope of that directive and therefore within the scope of the Charter, with the consequence that both Article 31(2) and the other provisions of the Charter must then be considered to be applicable to this type of situation?

6. In that they relate to the scope of the Charter, the present cases are thus concerned with the problem of the constitutional balance between the Union and the Member States. (9) In fact, these cases will, in particular, allow the Court to decide whether the criterion that the Member States are implementing EU law, set out in Article 51(1) of the Charter, is satisfied when the Member States adopt — or allow employers and workers to adopt — enhanced national protective measures.

7. In this Opinion, I shall state that I am in favour of the Charter being applicable to situations in which such measures are at issue. That will lead me to examine the normative content of Article 31(2) of the Charter and to clarify the relationship between that provision and secondary EU law, in this instance Article 7(1) of Directive 2003/88.

8. In concrete terms, that will lead me, first, to suggest that the Court rule that Article 7(1) of Directive 2003/88 must be interpreted as meaning that it does not preclude national legislation or collective agreements which provide that the days of paid annual leave in excess of the minimum of four weeks provided for in that provision cannot be carried over when they overlap with days of sick leave.

9. I shall then set out the reasons why in my view Article 31(2) of the Charter does not alter that solution. Although to my mind that provision must be considered to be applicable to situations such as that at issue in the main proceedings, it does not in my view have the effect of conferring on workers a right to paid annual leave beyond the minimum duration as specified by the EU legislature. At the same time, I shall emphasise that, in adopting reasoning which proceeds from the starting point that the Charter is applicable in situations in which an enhanced national protective clause is being implemented, the Court would make clear that such situations are subject to compliance with all of the provisions of the Charter.

II. Legal framework

A. EU law

10. Article 1 of Directive 2003/88, entitled ‘Purpose and scope’, states:

‘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 …

…’

11. Article 7 of that directive provides:

‘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.’

12. Article 15 of that directive, entitled ‘More favourable provisions’, is worded as follows:

‘This Directive shall not affect Member States’ right to apply or introduce laws, regulations or administrative provisions more favourable to the protection of the safety and health of workers or to facilitate or permit the application of collective agreements or agreements concluded between the two sides of industry which are more favourable to the protection of the safety and health of workers.’

13. Article 17 of that directive provides that Member States may derogate from certain of its provisions. However, no derogation is permissible in respect of Article 7 thereof.

B. Finnish law

1. The Law on annual leave

14. The vuosilomalaki (162/2005) (Law on annual leave (162/2005)) (10) of 18 March 2005 is intended, in particular, to transpose Article 7 of Directive 2003/88. Under Article 5(1) of that law, a worker is to be entitled to two and a half working days’ leave for each complete monthly reference period. Nonetheless, if, at the end of the annual reference period, the employment relationship has lasted less than one year without interruption, the worker is to be entitled to two days’ holiday for each complete monthly reference period.

15. The annual reference period can consist, at most, of only 12 monthly reference periods. If, during an annual reference period, a worker has 12 complete monthly reference periods, he is to be entitled, under the Law on annual leave, to 24 or 30 days’ leave depending on the duration of the employment relationship.

16. Under Article 4(1)(3) of the Law on annual leave, working days are weekdays, apart from Sundays, religious feast days, Independence Day, Christmas Eve, St John’s Eve, Easter Saturday and 1 May. Six days of annual leave are therefore imputed to one week in which none of the abovementioned days is included.

17. In accordance with Article 20(2) of the Law on annual leave, 24 working days of annual leave (summer leave) must be taken during the leave period. The remaining leave (winter leave) must be granted no later than the beginning of the following leave period. Article 4(1)(2) of that law provides that the leave period is the period between 2 May and 30 September inclusive.

18. In the version in force between 1 October 2013 and 31 March 2016, Article 25(1) of the Law on annual leave, as amended by the laki vuosilomalain muuttamisesta (276/2013) (Law amending the Law on annual leave (276/2013)) of 12 April 2013, provided:

‘Where an employee, on commencement of his or her annual leave, or a part thereof, is incapable of working owing to maternity, sickness or accident, the leave shall, upon application by the employee, be carried over to a later date. The employee shall...