XP and AR v Fraport AG Frankfurt Airport Services Worldwide and St. Vincenz-Krankenhaus GmbH.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:707
• Date: 22 September 2022
• Docket Number: C-518/20,C-727/20
• Celex Number: 62020CJ0518
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (First Chamber)

22 September 2022 (*)

(Reference for a preliminary ruling – Social policy – Protection of the safety and health of workers – Organisation of working time – Article 31(2) of the Charter of Fundamental Rights of the European Union – Directive 2003/88/EC – Article 7(1) – Right to paid annual leave – Total invalidity or incapacity for work due to illness occurring during a leave year – National legislation providing for the loss of entitlement to paid annual leave on expiry of a certain period – Employer’s obligation to enable the worker to exercise his or her right to paid annual leave)

In Joined Cases C‑518/20 and C‑727/20,

REQUESTS for a preliminary ruling under Article 267 TFEU from the Bundesarbeitsgericht (Federal Labour Court, Germany), made by decisions of 7 July 2020, received at the Court on 16 October 2020, in the proceedings

XP

v

Fraport AG Frankfurt Airport Services Worldwide (C‑518/20),

and

AR

v

St. Vincenz-Krankenhaus GmbH (C‑727/20),

THE COURT (First Chamber),

composed of A. Arabadjiev, President of the Chamber, I. Ziemele (Rapporteur), and P.G. Xuereb, Judges,

Advocate General: J. Richard de la Tour,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– XP, by J. Rehberg, Rechtsanwalt,

– AR, by U. Happe, Rechtsanwältin,

– Fraport AG Frankfurt Airport Services Worldwide, by M.A.J. Strömer, Rechtsanwältin,

– St. Vincenz-Krankenhaus GmbH, by N. Gehling,

– the European Commission, by B.-R. Killmann and D. Recchia, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 17 March 2022,

gives the following

Judgment

1 These 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 (OJ 2003 L 299, p. 9) and Article 31(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2 The requests have been made in proceedings between, on the one hand, XP and Fraport AG Frankfurt Airport Services Worldwide (‘Fraport’) (Case C‑518/20) and, on the other hand, AR and St. Vincenz-Krankenhaus GmbH (Case C‑727/20), concerning the entitlement to paid annual leave of XP and of AR for the leave year during which those workers were in a state of total invalidity and incapacity for work due to illness.

Legal context

European Union law

3 Article 7 of Directive 2003/88, entitled ‘Annual leave’, 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.’

German law

4 Paragraph 7 of the Bundesurlaubsgesetz (Federal Law on leave) of 8 January 1963 (BGBl. 1963, p. 2), in the version applicable to the dispute in the main proceedings (‘the BUrlG’), provides:

‘(1) In determining the dates on which leave may be taken, consideration shall be given to a worker’s wishes, save where consideration thereof is precluded by imperative operational interests or the wishes of other workers who deserve to be given priority for social reasons. Leave shall be granted when requested in connection with preventive or post-care medical treatment.

(2) Leave shall be granted for consecutive days, save where compelling operational grounds or reasons personal to the employee necessitate apportionment of the leave. Where the leave cannot be granted for consecutive days for these reasons and the employee is entitled to leave of more than 12 working days, one portion of the leave shall comprise at least 12 consecutive working days.

(3) Leave must be granted and taken in the course of the current calendar year. The carrying-over of leave to the next calendar year shall be permitted only if justified on compelling operational grounds or for reasons personal to the employee. If leave is carried over, it must be granted and taken during the first three months of the following calendar year. At the worker’s request, however, part of the leave acquired in accordance with Paragraph 5(1)(a) shall be carried over to the following calendar year.

(4) If, because of the termination of the employment relationship, leave can no longer be granted in whole or in part, an allowance shall be paid in lieu.’

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

Case C‑518/20

5 XP has been employed since 2000 by Fraport as a driver for the transport of goods. On account of a severe disability, he has, since 1 December 2014, been in receipt, on the ground of a full but non-permanent reduction of earning capacity, of a pension which was most recently extended until 31 August 2022.

6 XP brought proceedings against Fraport seeking a declaration that he was entitled to 34 days of paid annual leave from 2014. In XP’s view, he was unable to take those days of leave because of his state of health, since Fraport had, moreover, failed to fulfil its obligations to cooperate in the granting and taking of leave.

7 Fraport argued that XP’s entitlement to paid annual leave for 2014 lapsed on 31 March 2016, at the end of the carry-over period provided for in Paragraph 7(3) of the BUrlG. In Fraport’s view, a worker who, on health grounds, has been unable to take his or her leave for a long period of time loses his or her leave entitlement 15 months after the end of the leave year, irrespective of whether the employer has fulfilled its obligations to enable that worker to take such leave.

8 Following the rejection of his claims by the courts adjudicating on the substance, XP brought an appeal on a point of law (Revision) before the Bundesarbeitsgericht (Federal Labour Court, Germany).

9 That court refers a question regarding the compatibility, in the light of Article 7 of Directive 2003/88, of the rule laid down in Paragraph 7 of the BUrlG that leave not taken may be regarded as lost in the event of a worker being unfit for work over a prolonged period on health grounds, even if the employer has not actually enabled the worker to exercise his or her leave entitlement during the period of work preceding his or her total invalidity.

10 The referring court recalls that, following the judgment of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften (C‑684/16, EU:C:2018:874), it interpreted Paragraph 7 of the BUrlG in a manner consistent with Article 7 of Directive 2003/88 in so far as it held that the right to minimum paid annual leave is lost at the end of the leave year or the carry-over period only if the employer has previously enabled the worker to exercise his or her leave entitlement, and the worker has nevertheless voluntarily opted not to take that leave.

11 Furthermore, in accordance with the judgments of 20 January 2009, Schultz-Hoff and Others (C‑350/06 and C‑520/06, EU:C:2009:18), and of 22 November 2011, KHS (C‑214/10, EU:C:2011:761), the referring court states that it has held that entitlement to paid annual leave is not lost by reason of Paragraph 7(3) of the BUrlG if the worker is unfit for work due to illness...