Two interesting opinions from Advocate Generals (AG) of the CJEU about right to holiday pay
Two cases before the CJEU addressed the German legal provision, which intends that only workers who at the end of an employment reference period have already requested the right to paid holidays can benefit from compensation for leave in lieu.
The case C-619/16, Kreuziger concerned a Sebastian Kreuziger who the end of his traineeship for the legal professions with the Land of Berlin, requested the grant of an allowance in lieu of untaken paid annual leave. He had decided not to take annual paid leave for the last five months of his traineeship.
That request was refused on the particular ground that the applicable German legislation does not provide for such a right to an allowance. Under that legislation (as interpreted by the courts), the right to paid annual leave is lost at the end of the reference period when the worker did not apply to exercise that right during that period. That loss of the right to paid annual leave entails the loss of the right to an allowance in lieu of untaken paid annual leave at the end of the employment relationship.
In the opinion delivered on 29 May for these case (here), Advocate General Yves Blot proposed to the Court to judge that a worker who has not requested to take his/her holidays cannot automatically be deprived of the right to be compensated for any holidays not taken up before the end of the employment contract. The Advocate General hold the opinion that where the employer shows that he took the necessary steps to enable workers to exercise their right to paid annual leave and, in spite of the measures taken, the worker deliberately declined to exercise that right even though he was able to do so during the employment relationship, that worker cannot claim the allowance.
In the second case, C-569/16 Bauer and Broßonn a German court asked the CJEU if an entitlement to paid annual leave, which had not been made us of by an employee, carried over to the employee’s estate in the event of their death? The German The Bundesarbeitsgericht noted that the CJEU has previously held, in its judgment in Bollacke, that the directive precludes national legislation or practice which provides that the entitlement to paid annual leave is lost without conferring entitlement to an allowance in lieu of outstanding paid annual leave, where the employment relationship is terminated by the death of the worker.
The AG Yve Blot (see his opinion delivered on May 29 here) suggests that the “Court’s interpretation that the directive precludes national legislation or practice, such as that at issue in the main proceedings, which provides that the entitlement to paid annual leave is lost without conferring entitlement to an allowance in lieu of outstanding paid annual leave, and which therefore makes it impossible for the deceased’s heirs to be paid such an allowance, where the employment relationship is terminated by the death of the worker, be confirmed.”