ILO Convention¹

Working conditions/ Organization of working time/ Directive 2003/88/EC/ Right to paid annual leave/ Sick leave/ Annual leave coinciding with sick leave/ Compensation for paid annual leave not taken/ before the end of the contract because of sickness/ Use of international law as a guide for interpreting European Union law

A German worker and two British workers, one recognized as seriously disabled, the others having been sick, were off work for several months due to illness. Not having been able to take their paid annual holidays during the periods concerned, they claimed an allowance for paid holidays not taken. When refused by their respective employers, they took legal action in their own countries to get a ruling requiring the employer to pay the allowance. Their applications were rejected on the grounds that the domestic law of each of the States concerned did not provide it. German and British legal provisions stipulated that paid holiday must be taken during the current year, and no compensation could be paid on termination of employment by way of a financial allowance.  

Asked to rule on three issues by the Landesarbeitsgericht Düsseldorf (Germany) and the House of Lords (United Kingdom) regarding the interpretation of Article 7 of Directive 2003/88/CE of the European Parliament and Council of 4 November 2003 concerning certain aspects of the organization of working time, the Court of Justice of the European Union relied on ILO Convention No. 132.                  

Affirming that Directive 2003/88, in its sixth recital, had taken into account ILO principles where the organization of working time is concerned,² the Court referred to Article 5 paragraph 4 of ILO Convention No. 132 concerning paid annual holiday. The Court then interpreted the Directive in the light of the provisions of Convention No. 132. The Court stated that, since the workers were on duly prescribed sickness leave, the right to paid annual holiday conferred by Directive 2003/88 itself to all workers could not be made subject by a Member State to an obligation to have effectively worked during the reference period established by the said State.³         

Its use of ILO Convention No. 132 as a source for interpreting the Directive thus led the Court of Justice of the European Union to rule that: 

-         Article 7 §1 of Directive 2003/88 must be interpreted in the sense that it overrides national provisions or practices whereby the right to paid annual holiday ceases on expiry of the leave period and/or of a carry-over period established in national law, even when the worker has been on sickness leave during all or part of the leave period and his inability to work has persisted until the termination of his employment, which is why he has not been able to exercise his right to paid annual holiday,

Article 7 §2 of Directive 2003/88 must be interpreted in the sense that it overrides national provisions or practices whereby, when employment is terminated, no allowance for paid annual holiday not taken is payable to a worker who has been on sickness leave during all or part of the leave period and/or of a carry-over period, which is why he has not been able to exercise his right to paid annual holiday. The worker’s ordinary remuneration, i.e. the remuneration that should be maintained during the rest period corresponding to the paid annual leave, is also decisive as regards the calculation of the said allowance.

¹ ILO Convention on Holidays with Pay (Revised), 1970 (No. 132) (ratified by Germany on 01/10/1975).

² Directive 2003/88/CE of the European Parliament and Council of 4 November 2003 concerning certain aspects of the organization of working time. Recital No. 6 – ILO principles need to be taken into account where the organization of working time is concerned, including night working.

³ The conclusions of Advocate General Mrs. Verica Trstenjak, presented on 24 January 2008, emphasize that:

- although the European Community is not a member of the International Labour Organization, all its Member-States belong to the ILO,

- given the reference to ILO principles in the 6th recital of the Directive, in interpreting the Directive it is essential to take into account the essential principles of ILO Convention No. 132, which establishes international reference standards in the field of labour law.