1.

Over the years, the Court has been called upon on many occasions to interpret 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. ( 2 ) One feature of Article 7 of that directive, however, that has not been scrutinised by the Court until now is the amount of remuneration due to a worker if that worker decides to take annual leave while he or she is on (long-term) sick leave. The consequences of such a ruling could vary greatly in the different Member States. As the Commission has pointed out in its written submissions, if there is a state-mandated provision for sick pay, the percentage of the monthly gross wage paid as sick pay varies between 25% and 100% in the different Member States and depends greatly on various factors, such as the duration of the employment contract, the worker’s status, the existence of collective agreements and the type of injury/disease. ( 3 )

2.

That is, in essence, the issue addressed by the questions referred to the Court by the Rechtbank Overijssel, zittingsplaats Zwolle (District Court, Overijssel, sitting in Zwolle, Netherlands).

3.

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.’

4.

According to Article 22(1) of the Algemeen Rijksambtenarenreglement (General Civil Service Regulations; ‘the ARAR’) civil servants are entitled to annual leave on full pay.

5.

Article 37 of the ARAR provides in its first and fifth paragraphs:

‘1.   In the case of unfitness for work on account of illness, a civil servant shall be entitled to continued payment of his remuneration for a period of 52 weeks. In the event of continued unfitness, he is then entitled to continued payment of 70% of his remuneration.

…

5.   By way of derogation from the first paragraph, the civil servant shall be entitled, even after the end of the period of 52 weeks referred to in the first paragraph, to continued payment of his remuneration for the number of hours performed or would have been performed by him had that work been offered to him.’

6.

The applicant is a civil servant, who has been employed by the Belastingdienst (Netherlands tax authorities) since 1 March 2002. Since 1 November 2014 he has been employed as an investigating officer. However, on 24 November 2015, he was declared and has since that date been partially unfit for work on a long-term basis due to illness. In July and August 2017, which is the relevant time period here, he took part in a reintegration programme.

7.

Pursuant to Article 37(1) of the ARAR, the applicant was paid 100% of his usual remuneration for the first year of his illness. Since 24 November 2016, he has continued to be paid at the rate of 70% of that amount. Pursuant to Article 37(5) of the ARAR, the applicant was paid at the rate of 100% for the hours for which he was considered fit for and performed work. ( 4 )

8.

The applicant took annual leave for the period from 25 July 2017 to 17 August 2017. According to the salary slips for the months of July and August 2017, the applicant was paid – as he had been during the time when he did not take his annual leave – at the rate of 70% for the hours for which he was unfit for work during the leave period and at the rate of 100% for the hours for which he was deemed fit for work (to the extent that he was able to work in the context of his reintegration).

9.

The applicant raised an objection with regard to the amount of his remuneration during that period of annual leave. He believes that he is entitled to full remuneration during the leave taken, that is to say also for the hours during which he was unfit for work. By decision of 13 October 2017, the Netherlands tax authorities declared the applicant’s objections unfounded. The applicant appealed against that decision before the referring court.

10.

The applicant relies in that regard on the provisions of Article 22 of the ARAR, on Directive 2003/88 and on the case-law of the Court, in particular on the Court’s findings in Schultz-Hoff and Others ( 5 ). The applicant also refers to Article 31(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

11.

That is the factual and legal context in which the referring court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

12.

Written observations were submitted by the Netherlands Government and by the European Commission.

13.

By its three questions the referring court wishes to know whether Article 7(1) of Directive 2003/88 must be interpreted as precluding national legislation that provides that a worker who is fully or partially unfit for work purposes and who takes his or her annual leave from being paid a reduced remuneration – at the same rate as that paid during long-term sick leave – during that period of annual leave. ( 6 ) All three questions may therefore conveniently be dealt with at the same time.

14.

The wording of Article 7(1) of Directive 2003/88 does little to help answer that question. It merely states that ‘every worker is entitled to paid annual leave of at least four weeks’. ( 7 ) There is, however, a well-developed case-law of the Court on Article 7 of Directive 2003/88 which describes the general working of that provision.

15.

First, the Court has found that Article 7(1) of Directive 2003/88 – a provision from which that directive allows no derogation ( 8 ) – provides that every worker is entitled to paid annual leave of at least four weeks and that that right to paid annual leave must be regarded as a particularly important principle of EU social law. ( 9 ) It is, as a principle of EU social law, not only particularly important, but is also expressly recognised by Article 31(2) of the Charter, which Article 6(1) TEU recognises as having the same legal value as the Treaties. ( 10 )

16.

Second, according to the case-law of the Court, Directive 2003/88 treats the entitlement to annual leave and to a payment on that account as being two aspects of a single right. The purpose of the requirement of payment for that leave is to put the worker, during such leave, in a position which is, as regards remuneration, comparable to periods of work. ( 11 )

17.

There are therefore two strands to the case-law of the Court, one dealing with the entitlement to be granted annual leave and in particular its duration and the other dealing with the question of remuneration. Although the reference for a preliminary ruling addresses only the question of remuneration, I propose briefly to examine the strand regarding duration in order to compare the principles applied in both of these strands.

18.

With regard to the first strand, the duration of annual leave granted according to Article 7(1) of Directive 2003/88, the Court has found that the entitlement to paid annual leave must, in principle, be calculated by reference to the periods of actual work completed under the employment contract. ( 12 ) The reason for that is that it is the purpose of the right to paid annual leave conferred on every worker by Article 7 of Directive 2003/88, to enable the worker both to rest from carrying out the work he or she is required to do under his or her contract of employment as well as to enjoy a period of relaxation and leisure. ( 13 ) Therefore, the Court has held that if a worker works only part time, any reduction of the duration of annual leave to be granted by comparison to that granted for a period of full-time employment according to the principle pro rata temporis is, in essence at least, objectively justifiable. ( 14 )

19.

These considerations do not, however, apply in the case of sick leave. It is clear from the Court’s settled case-law that it considers that Directive 2003/88 does not make any distinction between workers who are absent from work on sick leave – whether short-term or long-term – during the leave year and those who have in fact worked in the course of that year. It follows, in turn, that with regard to workers on sick leave which has been duly granted, the right to paid annual leave conferred by Directive 2003/88 itself on all workers cannot be made subject by a Member State to a condition concerning the obligation actually to have worked during the leave year laid down by that State. Rather, with regard to entitlement to paid annual leave, workers who are absent from work on sick leave during the reference period are to be treated in the same way as those who have in fact worked during that period. ( 15 )

20.

Apart from the fact that Directive 2003/88 does not make any such distinction, the reasons for this are two-fold. First, the purposes of the entitlement to annual leave and of the entitlement to sick leave are different. Whereas annual leave aims to provide the worker with an opportunity to rest from the demands of work and to enjoy a period of relaxation and leisure, sick leave is given to the worker so that he or she can recover from an illness that has caused him or her to be unfit for work. ( 16 ) Second, unfitness for work owing to sickness is not foreseeable and is beyond the worker’s control. That aspect is also included in Article 5(4) of Convention No 132 of the International Labour Organisation of 24 June 1970 concerning Annual Holidays with Pay, as revised, which counts absences on account of illness among absences from work ‘for such reasons beyond the control of the employed person concerned’ which must be ‘counted as part of the period of service’. ( 17 ) As per recital 6 of Directive 2003/88, the principles of that Convention should be taken account of.

21.

That means that, although the entitlement to paid annual leave according to Article 7(1) of Directive 2003/88 must generally be calculated with regard to periods of actual work completed under the employment contract, that is not the case if a person is on sick leave.

22.

I will now turn to the second strand of the Court’s case-law, namely the question of remuneration. As Advocate General Bobek has already pointed out in his Opinion in Hein, the principle pro rata temporis – and I would add, any pro rata principle – which is used to calculate the duration of annual leave, except if a person is on sick leave, has never been applied to the right to remuneration for annual leave by the Court. ( 18 ) That position remains unchanged after the Court’s judgment in Hein. ( 19 )

23.

It is the settled case-law of the Court that the expression ‘paid annual leave’ in Article 7(1) of Directive 2003/88 means that, for the duration of annual leave within the meaning of that directive, remuneration must be maintained. That implies that workers must receive their normal remuneration for that period of rest. ( 20 )

24.

The Netherlands Government argues that Directive 2003/88 does not provide for any requirements regarding the structure of remuneration. Therefore, the Member States are free to determine such a structure. In that government’s opinion, Article 7(1) of Directive 2003/88 merely means that the worker’s remuneration (as it was prior to that worker’s annual leave, according to the national rules) must be maintained. ( 21 ) As there is no separate way to calculate payment during sick leave according to Netherlands law and practice, the civil servant in the present case retains the amount of remuneration that he or she received prior to taking his or her annual leave. According to that government, maintaining the ‘normal remuneration’ means that there must be no causal link between the taking of annual leave and the reduction in remuneration and that the worker must, before, during and after his or her annual leave receive the remuneration that he or she would have received, had he or she not taken annual leave.

25.

These arguments do not, I think, sufficiently take account of the Court’s case-law. The Court has held in Hein, that, ‘although the structure of the ordinary remuneration of a worker is determined, as such, by the provisions and practices governed by the law of the Member States, [such] structure cannot affect the worker’s right to enjoy, during his period of rest and relaxation, economic conditions which are comparable to those relating to the exercise of his employment.’ ( 22 ) It further held that the purpose of the requirement of payment for annual leave is to put the worker during such leave in a position which is, as regards remuneration, comparable to periods of work. ( 23 ) That second strand of the Court’s case-law aims at ensuring that workers are in a position to take annual leave without having to fear financial loss. ( 24 ) The considerations made regarding the duration of paid annual leave, namely that the worker has to rest from work done, is not taken into account here.

26.

In order to guarantee that the worker receives remuneration comparable to periods of work, the reference point for the assessment of the remuneration is the time when the worker was actually working. The fact that the taking of paid annual leave is not the reason for the reduction in his or her remuneration cannot justify a remuneration lower than the one that he or she receives while he or she performs work. Contrary to what the Netherlands Government argues, its opinion that Article 7(1) of Directive 2003/88 only obliges Member States to prevent a decrease in remuneration as a result of the taking of annual leave cannot be reconciled with the Court’s case-law.

27.

This is in line with the purpose of Article 7 of Directive 2003/88. According to the Court’s settled case-law, in order to ensure compliance with the fundamental workers’ right to paid annual leave affirmed in EU law, Article 7 of Directive 2003/88 may not be interpreted restrictively at the expense of the rights that workers derive from it. ( 25 ) The Court has stressed that Article 7(1) of Directive 2003/88 is intended to enable the worker actually to take the leave to which he or she is entitled. ( 26 ) Accordingly, an allowance, the amount of which is just sufficient to ensure that there is no serious risk that the worker will not take his or her leave, will not satisfy the requirements of EU law. ( 27 )

28.

First, it might be argued that the fact that the remuneration is the same as the sick pay does not discourage that worker from taking his or her annual leave because he or she would not receive a higher remuneration if he or she did not take annual leave at that point in time. Indeed, if a worker wanted to prevent such a reduction in remuneration he or she would only have to wait and take his or her annual leave once that worker was once again fully fit to perform the work required. The worker does not risk to lose his or her right to paid annual leave if he or she postpones his or her annual leave as the case-law of the Court protects the worker’s right to paid annual leave from being extinguished at the end of the leave year and/or of a carry-over period laid down by national law. ( 28 )

29.

In that respect, while accepting that the law must not deter a worker from taking annual leave, one might nonetheless argue there is no reason to provide for an encouragement in taking that leave during periods of full or partial unfitness for work either. This can be argued in the present case because the worker might receive a higher remuneration than the sick pay he would otherwise receive if he were not to take annual leave at that point in time.

30.

With respect, however, I cannot agree with that argument. The Court has held that Article 7(1) of Directive 2003/88 does not, as a rule, preclude national legislation or practices according to which a worker on sick leave is not entitled to take paid annual leave during his or her sick leave, provided however that the worker in question has the opportunity to exercise the right conferred by that directive during another period. ( 29 ) The Netherlands law and practice evidently does not provide for such a rule, at least not for the civil servant concerned in the present case. ( 30 ) In those cases where national law does allow for annual leave to be taken during the period of sick leave, there is, however, no justification for any variation of the remuneration during such a leave of absence.

31.

While it is for the Member States to lay down, in their domestic legislation, conditions for the exercise and implementation of the right to paid annual leave, by prescribing the specific circumstances in which workers may exercise that right, they may not make the very existence of that right subject to any preconditions. That would, however, be the case if one were to interpret the term ‘paid’ in ‘paid annual leave’ in such a way as to allow for lower remuneration to be paid according to whether a worker exercises that right while he or she is (partially or fully) unfit for work or at another time. In other words, the ‘value’ of the right to paid annual leave cannot depend on when it is taken.

32.

The Court in Hein did in fact consider a situation where a worker did not receive remuneration which corresponded to the normal remuneration that he received during periods of actual work. As this occurred in the context of a collective agreement, it could be argued that a lower remuneration during annual leave was compensated by other advantages arising from the collective agreement. ( 31 ) The Court rejected that argument. It found that that would undermine the right to paid annual leave, ‘an integral part of which is the right for the worker to enjoy, during his period of rest and relaxation, economic conditions which are comparable to those relating to the exercise of his employment’. ( 32 )

33.

There is no valid reason why the assessment should be different in the case of sick leave where there are no such factors that might offset the negative effects of a decrease in the remuneration during the minimum paid annual leave guaranteed under Article 7(1) of Directive 2003/88.

34.

In cases dealing with the first strand of the Court’s case-law referred to above, regarding the duration of paid annual leave, the Court has found that ‘workers who are absent from work on sick leave during the reference period are to be treated in the same way as those who have in fact worked during that period’. ( 33 ) As Directive 2003/88 treats entitlement to annual leave and to payment on that account as being two aspects of a single right, there is no basis for distinguishing between the entitlement and the payment when it comes to treating workers who are absent from work on sick leave in the same way as those who have in fact worked during that period. Therefore, it cannot make any difference whether the worker is fully or partially unfit for work at the time that he or she takes his or her paid annual leave and neither is it possible to apply a pro rata approach to the remuneration to be paid during periods of paid annual leave depending on whether a worker is fully or partially unfit for work.

35.

Accordingly, in the light of the foregoing considerations, I propose that the Court should answer the questions referred by the Rechtbank Overijssel, zittingsplaats Zwolle (District Court, Overijssel, sitting in Zwolle, Netherlands) as follows:

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 must be interpreted as precluding national provisions and practices, such as that at issue in the main proceedings, whereby the amount of a worker’s remuneration during his or her paid annual leave which he or she takes while he or she is (fully or partially) unfit for work is reduced to the level of the remuneration that he or she would receive during such (full or partial) unfitness for work.