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Court of Justice ruling on annual leave and sickness

The Court of Justice of the European Union has recently given its judgment in case involving entitlement to payment for holidays that have not been taken due to sickness.

The Working Time Directive imposes an obligation on Member States to take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks. That minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.

The case in question involved a German man, Mr Neidel, who held the position of fireman and then that of chief fireman and had the status of a public servant. He was unfit for service from 12th June 2007 on medical grounds, and retired at the end of August 2009. In view of the fact that the regular weekly working time for firemen differs from the five-day working week, Mr Neidel’s annual leave entitlement in each of the years from 2007 to 2009 was 26 days. In addition, firemen are entitled to compensatory leave for public holidays.

Mr Neidel requested that he be paid an allowance in lieu of leave not taken. As his request was rejected on the ground that German civil and public service law makes no provision for financial compensation for leave not taken, Mr Neidel brought an action.

The German court referred the case to the European Court, asking for clarification on whether the Working Time Directive applies to public servants, and whether the entitlement to an allowance in lieu conferred by that directive extends only to the minimum annual leave of four weeks or whether it extends also to the additional leave for which the national law provides.

The Court of Justice has now given its judgment, which states that on retirement, a public servant is entitled to an allowance in lieu if he has not, on account of sickness, been able to take all or part of the minimum paid annual leave of four weeks to which he is entitled. However, national legislation may preclude the payment of an allowance in lieu as regards any possible additional entitlement to paid leave.