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(Reference for a preliminary ruling – Directive 2003/88/EC – Organisation of working time – Protection of the health and safety of workers – Article 7(1) – Right to paid annual leave – Level of remuneration – Reduced remuneration due to incapacity for work)
In Case C‑217/20,
REQUEST for a preliminary ruling under Article 267 TFEU from the Rechtbank Overijssel (District Court, Overijssel, Netherlands), made by decision of 20 May 2020, received at the Court on 25 May 2020, in the proceedings
Staatssecretaris van Financiën,
THE COURT (Second Chamber),
composed of A. Arabadjiev, President of the First Chamber, acting as President of the Second Chamber, I. Ziemele (Rapporteur), T. von Danwitz, P.G. Xuereb and A. Kumin, Judges,
Advocate General: G. Hogan,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–the Netherlands Government, by M.A.M. de Ree and M.K. Bulterman and by J.M. Hoogveld, acting as Agents,
–the European Commission, by H. van Vliet and by C. Valero, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 8 July 2021,
gives the following
1This request for a preliminary ruling concerns the interpretation 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).
2The request has been made in proceedings between the applicant in the main proceedings and the Staatssecretaris van Financiën (State Secretary for Finance, Netherlands) concerning the amount of remuneration to which the applicant is entitled in respect of paid annual leave.
3Recitals 2 and 4 to 6 of Directive 2003/88 state:
(2)Article 137 [EC] provides that the Community is to support and complement the activities of the Member States with a view to improving the working environment to protect workers’ health and safety. …
(4)The improvement of workers’ safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations.
(5)All workers should have adequate rest periods. …
(6)Account should be taken of the principles of the International Labour Organisation with regard to the organisation of working time, including those relating to night work.’
4Article 1 of Directive 2003/88, entitled ‘Purpose and scope’, provides:
(a)minimum periods of … annual leave …
…’
5Article 7 of that directive, entitled ‘Annual leave’, states:
6Under Article 22(1) of the Algemeen Rijksambtenarenreglement (General State Civil Service Regulations), in the version applicable to the dispute in the main proceedings (‘the ARAR’), an official is entitled each year to leave with maintenance of his full remuneration.
7Article 37 of the ARAR provides:
…
5. By way of derogation from the first paragraph, the official shall be entitled, following the end of the period of 52 weeks referred to in the first paragraph, to continued payment of his full remuneration for the number of hours performed or would have been performed by him had appropriate work been offered to him.
8The applicant in the main proceedings is employed by the Belastingdienst (Tax Administration, Netherlands). Since 24 November 2015, he has been partially incapacitated for work on a long-term basis due to illness and is engaged in a professional reintegration process.
9In accordance with Article 37(1) of the ARAR, the applicant in the main proceedings received his full remuneration during the first year of incapacity for work, that is to say, until 24 November 2016, then 70% of that remuneration from that date. However, by virtue of Article 37(5) of the same regulations, he continued to receive his full remuneration for the hours for which he was considered fit to work.
10During the annual leave taken by the applicant in the main proceedings from 25 July to 17 August 2017, he was paid an allowance equivalent to the remuneration received since 24 November 2016, namely 70% of his remuneration in respect of the hours corresponding to his incapacity for work and 100% of it in respect of the hours during which he was considered fit to work.
11By an objection lodged with the State Secretary for Finance, the applicant in the main proceedings challenged the amount of that remuneration, claiming that, during that leave, he should have received his full remuneration. The State Secretary for Finance having rejected that objection by a decision of 13 October 2017, the applicant in the main proceedings brought an appeal against that decision before the Rechtbank Overijssel (District Court, Overijssel, Netherlands), the referring court.
12That court notes that, under Article 22(1) of the ARAR, the official is entitled each year to paid leave with continuation of his ‘full remuneration’. It considers that that concept of ‘full remuneration’ relates to the remuneration due for the period of work preceding that during which annual leave is requested (‘the reference period’), namely, in the case in the main proceedings, the remuneration referred to in paragraph 10 of the present judgment. Consequently, the position of the State Secretary for Finance is in conformity with national legislation.
13Moreover, the referring court notes that, although Directive 2003/88 guarantees entitlement to paid annual leave of at least four weeks, including in the event of total incapacity for work, it does not contain any indication as to the amount of remuneration to be paid during that annual leave.
14That court recalls that, in its judgments of 16 March 2006, Robinson-Steele and Others (C‑131/04 and C‑257/04, EU:C:2006:177), and of 20 January 2009, Schultz-Hoff and Others (C‑350/06 and C‑520/06, EU:C:2009:18), the Court of Justice found that, during their annual leave, workers must receive their ‘normal’ remuneration. In that regard, the referring court indicates that the amount of remuneration received by the applicant in the main proceedings during his annual leave is the same as that which he received during the reference period.
15However, the referring court also indicates that the Court of Justice, in paragraph 25 of the judgment of 20 January 2009, Schultz-Hoff and Others (C‑350/06 and C‑520/06, EU:C:2009:18), specified that the purpose of the right to paid annual leave is different from that of the right to sick leave.
16In the light of that consideration, it asks whether taking account, for the purposes of determining the amount of remuneration due during a period of paid annual leave, of the reduction in remuneration following a situation of incapacity for work affects the right to paid annual leave of the worker concerned.
In those circumstances, the Rechtbank Overijssel (District Court, Overijssel) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:
(1)‘(1) Must Article 7(1) of [Directive 2003/88] be interpreted as meaning that a worker does not lose his remuneration, or part thereof, because he [or she] exercises his [or her] right to annual leave? Or should that provision be interpreted as meaning that a worker retains [his or her] remuneration while exercising [his or her] right to annual leave, irrespective of the reason for not working during the leave period?
(2)Must Article 7(1) of [Directive 2003/88] be interpreted as precluding national provisions and practices whereby a worker who is incapacitated for work due to illness, when taking his [or her] annual leave, retains his [or her] remuneration at the level it was immediately prior to his [or her] taking annual leave, even if, on account of the long duration of his [or her] incapacity for work, that remuneration is lower than that paid in the event of full fitness for work?
(3)Must the entitlement of every worker to paid annual leave under Article 7 of [Directive 2003/88] and under settled EU case-law be interpreted as meaning that reducing that remuneration during leave taken during incapacity for work runs counter to that entitlement?’
18By its questions referred for a preliminary ruling, which it is appropriate to examine together, the referring court is asking, in essence, whether Article 7(1) of Directive 2003/88 must be interpreted as precluding national provisions and practices under which, where a worker who is incapacitated for work due to illness exercises his or her right to paid annual leave, the reduction, following the incapacity for work, of the amount of remuneration that he or she received during the reference period preceding that during which his or her annual leave is requested, is taken into account to determine the amount of remuneration that will be paid to him or her in respect of his or her paid annual leave.
19In the first place, it must be recalled that, as is apparent from the very wording of Article 7(1) of Directive 2003/88, that provision confers on every worker a right to paid annual leave of at least four weeks. That right must be regarded as a particularly important principle of EU social law, the implementation of which by the competent national authorities must be confined within the limits expressly laid down by Directive 2003/88 itself (see, to that effect, judgment of 25 June 2020, Varhoven kasatsionen sad na Republika Bulgaria and Iccrea Banca SpA, C‑762/18 and C‑37/19, EU:C:2020:504, paragraph 53 and the case-law cited).
20In the second place, the right to paid annual leave being enshrined in Article 7(1) of Directive 2003/88, it should be noted that the provisions of that directive concern, as is apparent from recital 4 thereof, the improvement of workers’ safety, hygiene and health at work.