OPINION OF ADVOCATE GENERAL
BOT
delivered on 4 June 2019 (1)
Joined Cases C‑609/17 and C‑610/17
Terveys- ja sosiaalialan neuvottelujärjestö (TSN) ry
v
Hyvinvointialan liitto ry (C‑609/17),
other party
Fimlab Laboratoriot Oy
and
Auto- ja Kuljetusalan Työntekijäliitto AKT ry
v
Satamaoperaattorit ry (C‑610/17),
other party
Kemi Shipping Oy
(Requests for a preliminary ruling from the työtuomioistuin (Labour Court, Finland))
(Reference for a preliminary ruling — Social policy — Organisation of working time — Directive 2003/88/EC — Article 7(1) — Right to paid annual leave of at least four weeks — Article 15 — Provisions more favourable to the protection of the safety and health of workers — Worker on sick leave during the period of annual leave — Refusal to carry over the annual leave where the failure to carry over does not have the effect of reducing the duration of the annual leave to below four weeks — Charter of Fundamental Rights of the European Union — Article 31(2) — Applicability — Situation governed by European Union law — Whether it may be relied on in a dispute between private parties)
I. Introduction
1. The present requests for a preliminary ruling concern the interpretation of 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 (2) and of Article 31(2) of the Charter of Fundamental Rights of the European Union. (3)
2. The requests were submitted in the context of two sets of proceedings brought, in the case of TSN (C‑609/17), by the Terveys- ja sosiaalialan neuvottelujärjestö (TSN) ry (health and social services sector union, Finland) (4) against the Terveyspalvelualan liitto ry (now Hyvinvointialan liitto ry (health services sector union, Finland)) and Fimlab Laboratoriot Oy, and, in the case of AKT (C‑610/17), by the Auto- ja Kuljetusalan Työntekijäliitto AKT ry (motor vehicle and transport workers’ union, Finland) (5) against the Satamaoperaattorit ry (port operators’ association, Finland) and Kemi Shipping Oy, concerning the refusal to allow two workers who were ill during a period of paid annual leave to carry over leave representing all or part of the days of sick leave thus affected. The distinctive feature of the requests is that the coincidence between the days of paid annual leave and the days of sick leave relates to a period in excess of the minimum period of four weeks of paid annual leave provided for in Article 7(1) of Directive 2003/88.
3. The question whether Article 31(2) of the Charter may be directly relied on in a dispute between private parties saw a major development in the judgments of 6 November 2018, Bauer and Willmeroth, (6) and of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften. (7) According to a ‘logic of compensation’, (8) which enables the absence of horizontal direct effect of directives to be offset, the Court, in recognising that Article 31(2) of the Charter could be directly relied on in a dispute between private parties, strengthened the effectiveness of the fundamental right to an annual period of paid leave. As the Court made clear in those judgments, that ‘horizontal reliance’ can apply only in situations governed by EU law. It is also necessary to agree on the meaning to be given to the latter expression.
4. The problem facing the Court in the present cases consists in clarifying the scope of Article 31(2) of the Charter in situations in which the Member States and/or employers and workers decide to grant workers paid annual leave beyond the minimum period of four weeks provided for in Article 7(1) of Directive 2003/88 and make that additional leave subject to rules that differ from those applicable to the minimum period of four weeks.
5. Must such enhanced national protective measures fall outside the scope of Directive 2003/88 and therefore outside the scope of the Charter, with the consequence that neither Article 31(2) nor any other provision of the Charter is then applicable to this type of situation? Or, rather, must such measures, which are adopted in accordance with the enhanced national protective clause in Article 15 of Directive 2003/88, fall within the scope of that directive and therefore within the scope of the Charter, with the consequence that both Article 31(2) and the other provisions of the Charter must then be considered to be applicable to this type of situation?
6. In that they relate to the scope of the Charter, the present cases are thus concerned with the problem of the constitutional balance between the Union and the Member States. (9) In fact, these cases will, in particular, allow the Court to decide whether the criterion that the Member States are implementing EU law, set out in Article 51(1) of the Charter, is satisfied when the Member States adopt — or allow employers and workers to adopt — enhanced national protective measures.
7. In this Opinion, I shall state that I am in favour of the Charter being applicable to situations in which such measures are at issue. That will lead me to examine the normative content of Article 31(2) of the Charter and to clarify the relationship between that provision and secondary EU law, in this instance Article 7(1) of Directive 2003/88.
8. In concrete terms, that will lead me, first, to suggest that the Court rule that Article 7(1) of Directive 2003/88 must be interpreted as meaning that it does not preclude national legislation or collective agreements which provide that the days of paid annual leave in excess of the minimum of four weeks provided for in that provision cannot be carried over when they overlap with days of sick leave.
9. I shall then set out the reasons why in my view Article 31(2) of the Charter does not alter that solution. Although to my mind that provision must be considered to be applicable to situations such as that at issue in the main proceedings, it does not in my view have the effect of conferring on workers a right to paid annual leave beyond the minimum duration as specified by the EU legislature. At the same time, I shall emphasise that, in adopting reasoning which proceeds from the starting point that the Charter is applicable in situations in which an enhanced national protective clause is being implemented, the Court would make clear that such situations are subject to compliance with all of the provisions of the Charter.
II. Legal framework
A. EU law
10. Article 1 of Directive 2003/88, entitled ‘Purpose and scope’, states:
‘1. This Directive lays down minimum safety and health requirements for the organisation of working time.
2. This Directive applies to:
(a) minimum periods of … annual leave …
…’
11. Article 7 of that directive provides:
‘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.’
12. Article 15 of that directive, entitled ‘More favourable provisions’, is worded as follows:
‘This Directive shall not affect Member States’ right to apply or introduce laws, regulations or administrative provisions more favourable to the protection of the safety and health of workers or to facilitate or permit the application of collective agreements or agreements concluded between the two sides of industry which are more favourable to the protection of the safety and health of workers.’
13. Article 17 of that directive provides that Member States may derogate from certain of its provisions. However, no derogation is permissible in respect of Article 7 thereof.
B. Finnish law
1. The Law on annual leave
14. The vuosilomalaki (162/2005) (Law on annual leave (162/2005)) (10) of 18 March 2005 is intended, in particular, to transpose Article 7 of Directive 2003/88. Under Article 5(1) of that law, a worker is to be entitled to two and a half working days’ leave for each complete monthly reference period. Nonetheless, if, at the end of the annual reference period, the employment relationship has lasted less than one year without interruption, the worker is to be entitled to two days’ holiday for each complete monthly reference period.
15. The annual reference period can consist, at most, of only 12 monthly reference periods. If, during an annual reference period, a worker has 12 complete monthly reference periods, he is to be entitled, under the Law on annual leave, to 24 or 30 days’ leave depending on the duration of the employment relationship.
16. Under Article 4(1)(3) of the Law on annual leave, working days are weekdays, apart from Sundays, religious feast days, Independence Day, Christmas Eve, St John’s Eve, Easter Saturday and 1 May. Six days of annual leave are therefore imputed to one week in which none of the abovementioned days is included.
17. In accordance with Article 20(2) of the Law on annual leave, 24 working days of annual leave (summer leave) must be taken during the leave period. The remaining leave (winter leave) must be granted no later than the beginning of the following leave period. Article 4(1)(2) of that law provides that the leave period is the period between 2 May and 30 September inclusive.
18. In the version in force between 1 October 2013 and 31 March 2016, Article 25(1) of the Law on annual leave, as amended by the laki vuosilomalain muuttamisesta (276/2013) (Law amending the Law on annual leave (276/2013)) of 12 April 2013, provided:
‘Where an employee, on commencement of his or her annual leave, or a part thereof, is incapable of working owing to maternity, sickness or accident, the leave shall, upon application by the employee, be carried over to a later date. The employee shall also be entitled, upon application, to carry over leave or a part thereof where it is established that he or she must, during his or her leave, undergo treatment for an illness or other treatment to be assimilated thereto during the period in which he or she is incapacitated for work.’
19. In the version as amended by the laki vuosilomalain muuttamisesta (182/2016) (Law amending the Law on annual leave (182/2016)) of 18 March 2016, which entered into force on 1 April 2016, Article 25(2) of the Law on annual leave is worded as follows:
‘Should the incapacity for work owing to maternity, sickness or accident commence during annual leave, or a part thereof, the employee shall, upon application, be entitled to carry over the days of incapacity for work falling within the annual leave, provided that they exceed six days of leave. The abovementioned days of absence may not reduce the employee’s entitlement to be granted four weeks’ annual leave.’
2. The applicable collective agreements
20. In Finland, collective agreements frequently grant longer leave than that provided for under the Law on annual leave. That is the case, in particular, of the collective agreement concluded between the health services sector union and TSN, for the period between 1 March 2014 and 31 January 2017, for the health sector (‘the health sector collective agreement’) and the collective agreement concluded between the association of port operators and AKT, for the period between 1 February 2014 and 31 January 2017, for the freight transport sector (‘the freight transport sector collective agreement’).
21. Under Article 16(1) of the health sector collective agreement, ‘annual leave shall be determined pursuant to the Law on annual leave and the following provisions’. In the words of Article 16(7) of that collective agreement, ‘annual leave shall be granted in accordance with the Law on annual leave …’.
22. Under Article 10(1) and (2) of the freight transport sector collective agreement, ‘the period of an employee’s annual leave shall be determined in accordance with the Law on annual leave in force’ and ‘annual leave shall be granted in accordance with the Law on annual leave, unless provision to the contrary is made’.
23. The relevant provisions of the Law on annual leave in force at the material time were applied when the annual leave was carried over, on the ground of incapacity for work, on the basis of the collective agreements cited in the two preceding points.
III. The disputes in the main proceedings and the questions for a preliminary ruling
A. The case of TSN (C‑609/17)
24. Ms Marika Luoma has been employed since 14 November 2011 by Fimlab Laboratoriot as a laboratory assistant, under a contract of employment of indeterminate duration.
25. On the basis of the health sector collective agreement, Ms Luoma is entitled, having regard to her age, to 42 working days, that is to say, seven weeks, of paid annual leave, in respect of the annual reference period ending on 31 March 2015.
26. After being granted annual leave of six days for the period Monday 7 September to 13 September 2015, Ms Luoma informed her employer on 10 August 2015 that she would have to undergo a surgical operation on 2 September 2015 and requested that that annual leave therefore be carried over to a later date. Following her operation, Ms Luoma was on sick leave until 23 September 2015. Of her abovementioned annual leave entitlement of 42 working days, she had already received 22 days, that is to say, 3 weeks and 4 working days. Fimlab Laboratoriot carried over the first two days of leave still owing under the Law on annual leave, but not the remaining four days of leave, which resulted from the health sector collective agreement, relying, in that regard, on Article 16(1) and (7) of that collective agreement and on Article 25(1) of the Law on annual leave in force at the material time.
27. TSN, in its capacity as workers’ representative organisation signatory to the health sector collective agreement, brought an action before the työtuomioistuin (Labour Court, Finland), seeking a declaration that Ms Luoma is entitled, owing to her incapacity for work, to carry over to a later date the leave granted under that agreement for the period between 9 September and 13 September 2015. According to TSN, the employer’s refusal to carry over Ms Luoma’s leave is contrary to Article 7(1) of Directive 2003/88 and to Article 31(2) of the Charter.
28. In their defence, the health services sector union, the employers’ representative organisation, and Fimlab Laboratoriot contend that such a refusal does not infringe those provisions of EU law, since they are not applicable to the part of the paid annual leave guaranteed by national law or by collective agreements that go beyond the minimum of four weeks of paid annual leave prescribed in Article 7 of Directive 2003/88.
29. The referring court, which cites in that respect the judgments of 3 May 2012, Neidel, (11) and of 20 July 2016, Maschek, (12) on the one hand, and the judgments of 19 September 2013, Review Commission v Strack, (13) and of 30 June 2016, Sobczyszyn, (14) on the other hand, considers that the Court’s case-law does not allow it to resolve the question whether the application of Article 25(1) of the Law on annual leave — in this instance through the health sector collective agreement — in that it limits the right to carry over paid annual leave solely to paid leave acquired under the Law on annual leave, to the exclusion of leave acquired under a collective agreement of longer duration than the statutory annual leave, is consistent with the requirements flowing from Article 7(1) of Directive 2003/88 and Article 31(2) of the Charter.
30. As regards the latter provision, the referring court also wonders whether it might have direct effect in a dispute between private persons.
31. In those circumstances, the työtuomioistuin (Labour Court) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Does Article 7(1) of Directive [2003/88] preclude a national provision in a collective agreement, or its interpretation, under which an employee who was incapacitated for work at the beginning of his annual leave or part thereof is not entitled, irrespective of any application by him, to carry over annual leave falling within the period in question and to which he is entitled under the collective agreement, if the employee’s entitlement to four weeks of annual leave is not reduced by reason of the fact that the leave under the collective agreement is not carried over?
(2) Does Article 31(2) of the [Charter] have direct effect in an employment relationship between private legal subjects, that is to say, horizontal direct effect?
(3) Does Article 31(2) of the Charter protect accrued leave, in so far as the duration of the leave exceeds the minimum annual leave of four weeks provided for in Article 7(1) of the Working Time Directive, and does that provision of the Charter preclude a national provision in a collective agreement, or its interpretation, under which an employee who was incapacitated for work at the beginning of his annual leave or part thereof is not entitled, irrespective of any application by him, to carry over annual leave falling within the period in question and to which he is entitled under the collective agreement, if the employee’s entitlement to four weeks of annual leave is not reduced by reason of the fact that the leave under the collective agreement is not carried over?’
B. The case of AKT (C‑610/17)
32. Mr Tapio Keränen is employed by Kemi Shipping.
33. Under the freight transport sector collective agreement, Mr Keränen is entitled to 30 working days, or 5 weeks, of paid annual leave, on the basis of the annul reference period ending on 31 March 2016.
34. After his annual leave began on 22 August 2016, Mr Keränen was taken ill on 29 August 2016. The occupational doctor whom he consulted then prescribed sick leave between that date and 4 September 2016. Mr Keränen’s request for six working days of his annual leave to be carried over was refused by Kemi Shipping on the basis of Article 10(1) and (2) of the freight transport sector collective agreement and of Article 25 of the Law on annual leave as amended by the Law on annual leave (182/2016), and the employer imputed those six days of sick leave to the paid annual leave to which Mr Keränen was entitled.
35. AKT, an employees’ representative organisation and signatory to the freight transport sector collective agreement, brought an action before the työtuomioistuin (Labour Court), seeking a declaration that the application of Article 10(1) and (2) of that agreement cannot lead to the application of Article 25(2) of the Law on annual leave, since the latter provision is contrary to Article 7(1) of Directive 2003/88 and Article 31(2) of the Charter.
36. In their defence, the association of port operators, the organisation representing the employers, and Kemi Shipping contend that Article 25(2) of the Law on annual leave does not infringe those provisions of EU law, for reasons similar to those set out in point 28 of this Opinion.
37. For reasons identical to those stated in the order for reference in the case of TSN (C‑609/17), the referring court is of the view that the Court’s case-law cited in point 29 of this Opinion does not allow it to resolve the question whether the application of Article 25(2) of the Law on annual leave, effected, as in this instance, through the freight transport sector collective agreement, in that it follows from that provision that a worker whose incapacity for work on account of illness commences during his annual leave, or a part thereof, is not entitled, irrespective of any application by him, to carry over the first six days of the period of incapacity for work falling within the annual leave where those days of absence do not reduce the employee’s entitlement to paid annual leave of four weeks, is consistent with the requirements flowing from Article 7(1) of Directive 2003/88 and Article 31(2) of the Charter.
38. In those circumstances, the työtuomioistuin (Labour Court) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Does Article 7(1) of Directive [2003/88] preclude a national provision in a collective agreement, or its interpretation, under which an employee whose incapacity for work on account of illness commences during his annual leave, or a part thereof, is not entitled, irrespective of any application by him, to carry over the first six days of incapacity for work falling within the annual leave, where those days of absence on account of illness do not reduce the employee’s entitlement to be granted four weeks’ annual leave?
(2) Does Article 31(2) of the [Charter] have direct effect in an employment relationship between private legal subjects, that is to say, horizontal direct effect?
(3) Does Article 31(2) of the Charter protect accrued leave, in so far as the duration of the leave exceeds the minimum annual leave of four weeks provided for in Article 7(1) of Directive 2003/88 and does that provision of the Charter preclude a national provision in a collective agreement, or its interpretation, under which an employee whose incapacity for work on account of illness commences during his annual leave, or a part thereof, is not entitled, irrespective of any application by him, to carry over the first six days of incapacity for work falling within the annual leave, where those days of absence on account of illness do not reduce the employee’s entitlement to be granted four weeks’ annual leave?’
IV. My analysis
A. The first and third questions
39. By its first and third questions in each of the present joined cases, which in my view should be answered together, the referring court, in essence, asks the Court to rule on whether Article 7(1) of Directive 2003/88 and Article 31(2) of the Charter must be interpreted as meaning that they preclude national legislation or collective agreements, such as those at issue in the main proceedings, from which it follows that the days of paid annual leave in excess of four weeks cannot be carried over when they overlap with days of sick leave.
1. The interpretation of Article 7(1) of Directive 2003/88
40. It should be borne in mind at the outset, first, that, as is clear from the actual wording of Article 7(1) of Directive 2003/88, a provision from which that directive allows no derogation, every worker is entitled to paid annual leave of at least four weeks, a right which, according to the Court’s settled case-law, must be regarded as a particularly important principle of EU social law. (15) That right, which is enjoyed by all workers, is expressly set out in Article 31(2) of the Charter, which Article 6(1) TEU recognises as having the same legal value as the Treaties. (16)
41. According to the Court, the purpose of the right to paid annual leave, conferred on every worker by Article 7 of Directive 2003/88, is ‘to enable the worker both to rest from carrying out the work he is required to do under his contract of employment and to enjoy a period of relaxation and leisure’. (17)
42. That purpose, ‘which distinguishes paid annual leave from other types of leave having different purposes, is based on the premiss that the worker actually worked during the reference period. The objective of allowing the worker to rest presupposes that the worker has been engaged in activities which justify, for the protection of his safety and health, as provided for in Directive 2003/88, his being given a period of rest, relaxation and leisure. Accordingly, entitlement to paid annual leave must, in principle, be calculated by reference to the periods of actual work completed under the employment contract’. (18)
43. It follows that a worker acquires entitlement to paid annual leave pursuant to Article 7(1) of Directive 2003/88 ‘only for the periods during which he performed actual work’. (19)
44. In the course of the cases brought before it, the Court has developed a body of case-law having as its common feature that it guarantees workers the actual benefit of the periods of rest and relaxation conferred on them by Article 7(1) of Directive 2003/88. Thus, by way of example, those workers must enjoy, during those periods, economic conditions which are comparable to those from which they benefit when exercising their employment. (20)
45. Furthermore, the Court has held that ‘in certain specific situations in which the worker is unable to perform his duties as he is, for instance, on duly certified sick leave, the right to paid annual leave cannot be made subject by a Member State to a condition that the worker has actually worked … Thus, 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’. (21)
46. That case-law, the origins of which are to be found in the judgment of 20 January 2009, Schultz-Hoff and Others, (22) means that the workers concerned are entitled to take their paid annual leave at a later date when it coincides with a period of sick leave.
47. Thus, the Court has held that, ‘in the event of periods of annual leave and sick leave overlapping, Article 7(1) of Directive 2003/88 must be interpreted as precluding national legislation or practices under which the right to paid annual leave is extinguished at the end of the leave year and/or of a carry-over period laid down by national law where the worker has been on sick leave, for the whole or part of the leave year, and therefore has not actually had the opportunity to exercise that right’. (23)
48. The Court considered that ‘the purpose of the right to paid annual leave, which is to enable the worker to rest and to enjoy a period of relaxation and leisure, is different from that of the right to sick leave, which is to enable the worker to recover from an illness’. (24)
49. In the light of those differing purposes of the two types of leave, the Court concluded that ‘a worker who is on sick leave during a period of previously scheduled annual leave has the right, at his request and in order that he may actually use his annual leave, to take that leave during a period which does not coincide with the period of sick leave’. (25)
50. The overlap between sick leave and paid annual leave cannot therefore preclude the paid annual leave acquired by the worker being taken at a later date. A worker who is on sick leave during the period of annual leave originally scheduled is entitled, at the end of his sick leave, to enjoy his annual leave at a time other than that originally scheduled. The Court has held, moreover, that, ‘so far as concerns the scheduling of that new period of annual leave, corresponding to the duration of the overlap between the period of annual leave originally scheduled and the sick leave, … it is subject to the rules and procedures of national law which are applicable to the scheduling of workers’ leave, taking into account the various interests involved, including overriding reasons relating to the interests of the undertaking.’ (26)
51. However, it must be made clear that that case-law was established by the Court when it was interpreting Article 7(1) of Directive 2003/88, and therefore relates solely to the right to paid annual leave which that provision confers on workers. The same applies, moreover, to the other rules established by the Court, such as the rule that workers must receive an amount equivalent to their normal remuneration during the period of annual leave which they are guaranteed under that provision. (27)
52. Article 7(1) of Directive 2003/88 is therefore intended to protect only the hard core of minimum protection consisting in the right to paid annual leave of at least four weeks, provided that the worker has performed an actual period of work in order to obtain such a right of such duration. On the other hand, as regards an additional period of paid annual leave from which a worker benefits under national law, national legislation or collective agreements may determine the conditions of acquisition and extinction of such leave that differ from the protective rules resulting from the interpretation of Article 7(1) of Directive 2003/88. (28)
53. It follows from the foregoing factors that, if the refusal to carry over the paid annual leave of the workers concerned in the context of the present cases had related to days of annual leave included in the minimum period of four weeks guaranteed by Article 7(1) of Directive 2003/88, the national legislation or collective agreements at issue would have had to be regarded as contrary to that provision. In fact, it should be borne in mind that in both of the cases in the main proceedings the leave in question is paid annual leave that could not be carried over, even though the workers concerned had not been able actually to enjoy that leave because of periods of sick leave that occurred during the period of paid annual leave. Those periods were of short duration, so that the question of the maximum duration of paid annual leave that may be carried over that could, where appropriate, arise in a context characterised by long-term absences of the employee on the ground of illness (29) does not arise here.
54. On the other hand, where the overlap of sickness leave and paid annual leave does not affect the minimum period of four weeks protected by Article 7(1) of Directive 2003/88, but affects a period of paid annual leave in excess of that period, the fact that it is impossible under national legislation or a collective agreement to take such leave at a later date is not contrary to that provision. An increase in entitlement to paid annual leave beyond the minimum required by Article 7(1) of Directive 2003/88 constitutes a measure favourable to workers that goes beyond the minimum requirements laid down in that provision and, as a result, is not governed by it. (30)
55. In that regard, it should be observed that the possibility for Member States to go beyond the hard core of minimum protection guaranteed by Article 7(1) of Directive 2003/88 has already been recognised by the Court on a number of occasions.
56. Thus, it follows from the Court’s case-law that Directive 2003/88 does not preclude ‘national provisions giving entitlement to more than four weeks’ paid annual leave, granted under the conditions for entitlement to, and granting of, the right to paid annual leave laid down by that national law. (31)
57. In support of that consideration, the Court has observed on several occasions that it expressly appears from Article 1(1) and (2)(a), from Article 7(1) and also from Article 15 of Directive 2003/88 that that directive merely lays down minimum health and safety requirements for the organisation of working time and that it does not affect Member States’ right to apply national provisions more favourable to the protection of workers. (32)
58. I infer from those factors, first, that it is for the Member States and/or employers and workers to decide whether or not to grant workers paid annual leave in addition to the minimum paid annual leave of four weeks provided for in Article 7(1) of Directive 2003/88. Second, as regards that additional period, it is for the Member States and employers and workers to define the conditions of the grant and extinction of leave, which may differ from the protective rules which the Court has laid down with respect to the minimum period of paid annual leave guaranteed by Article 7(1) of Directive 2003/88. Thus, the rules governing the carrying over of paid annual leave may vary according to whether or not the leave in question is the minimum annual leave protected by Article 7(1) of Directive 2003/88.
59. However, it should be made clear that, when the Member States and/or employers and workers decide to use the option offered to them by Article 15 of that directive to apply provisions of national law more favourable to the protection of the safety and health of workers, in keeping with that objective, they are still required to observe EU law. It cannot therefore be considered that, when they go beyond the hard core of minimum protection defined in Article 7(1) of that directive, the Member States and/or employers and workers are entering a legal area in which they are entirely free. In that sense, the assertion that Member States ‘remain … free to adopt in their national legislation provisions providing for periods of working time and rest periods which are more favourable to workers than those laid down in [Directive 2003/88]’ (33) must be nuanced and supplemented and it must be made clear that their freedom is restricted.
60. In fact, as the Court recently observed in its judgment of 13 December 2018, Hein, (34) it is clear that, when they adopt measures more favourable to workers, in that case by granting them days of leave beyond the minimum period of four weeks, the Member States and/or employers and workers cannot at the same time undermine the protective rules of EU law that are applicable in the context of that minimum period. In that case, the employers and workers could not therefore rely on the fact that they granted additional days of leave to workers to compensate for the fact that the workers did not receive their normal remuneration during the minimum period protected by Article 7(1) of Directive 2003/88.
61. Thus, according to the Court, although ‘Directive 2003/88 does not preclude employers and workers from adopting, by collective agreement pursuant to national legislation, rules aiming to contribute generally to an improvement of workers’ working conditions, the detailed implementing rules must, however, respect the limits flowing from that directive’. (35) Those favourable measures, ‘which go beyond the minimum requirements laid down in that provision and, as a result, are not governed by it … cannot serve to compensate for the negative effect that a reduction in the remuneration due for annual leave has on the worker without undermining the right to paid annual leave under [Article 7(1) of Directive 2003/88], 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’. (36)
62. In that type of situation, the measure which at first sight is more favourable to workers, in that it grants them more days of leave, in reality undermines the hard core of minimum protection guaranteed by Article 7(1) of Directive 2003/88, in that instance because it affects the protective rule that a worker must receive his normal remuneration for the duration of the minimum annual leave which he enjoys under that provision. For that reason, such a measure must be considered to be contrary to that provision. (37)
63. In the context of the present cases, it is not claimed that the national legislation or the collective agreements at issue in the main proceedings undermine the hard core of minimum protection guaranteed by Article 7(1) of Directive 2003/88. At this stage of my analysis, it may therefore be considered that that national legislation or those collective agreements may, without infringing that provision, provide that the days of paid annual leave beyond the minimum of four weeks protected by that provision cannot be carried over where they overlap with days of sick leave.
64. It remains to be determined whether Article 31(2) of the Charter may lead to a different solution. That is the purpose of the referring court’s third question.
2. The interpretation of Article 31(2) of the Charter
65. The third question asks the Court to state whether Article 31(2) of the Charter allows a worker to claim protection of the right to paid annual leave beyond what is guaranteed by Article 7(1) of Directive 2003/88.
66. More specifically, in the context of the present cases, it is necessary to determine whether Article 31(2) of the Charter may be relied on in order to extend beyond the period of four weeks provided for in Article 7(1) of that directive the rule that, where sick leaves coincides with paid annual leave, the paid annual leave must be capable of being carried over to a later date.
67. Let me say at the outset that in my view the answer to that question is that it may not. The difficulty consists, however, in the choice of the legal route to be taken in order to arrive at that answer. Two routes can thus be envisaged.
68. Either it must be considered that the Charter is not applicable to a situation in which the Member States and/or employers and workers decide to grant workers days of paid annual leave beyond the minimum period of four weeks, making those additional days subject to a special arrangement, in particular as regards their being carried over where they overlap with days of sick leave.
69. Or it must be considered that the Charter is indeed applicable in such a situation in which enhanced national protection is implemented, but that Article 31(2) of the Charter is intended to protect only the hard core of minimum protection as specified by the EU legislature, namely, in this instance, an annual period of paid leave of a minimum duration of four weeks. It follows that that provision does not preclude the Member States and/or employers and workers from making the additional days of paid annual leave subject to rules that differ from those that apply to the minimum period of four weeks, including as regards the carrying over of those days where they coincide with days of sick leave.
70. It should be borne in mind that the right to paid annual leave, as a principle of EU social law, is not only particularly important, but is also expressly laid down in Article 31(2) of the Charter, which Article 6(1) TEU recognises as having the same legal value as the Treaties. (38)
71. The fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law. (39)
72. Article 51(1) of the Charter states that the provisions of the Charter are addressed ‘to Member States only when they are implementing Union law’.
73. Furthermore, in the words of the second subparagraph of Article 6(1) TEU, ‘the provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties’. Likewise, under Article 51(2) thereof, the Charter ‘does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties’.
74. In the light of those factors, Article 31(2) of the Charter is applicable to the cases in the main proceedings only if it can be established that the national legislation or the collective agreements at issue in the main proceedings implement Directive 2003/88.
75. It must therefore be determined whether the adoption by the Member States and/or employers and workers of provisions more favourable to the protection of the safety and health of workers, in application of Article 15 of Directive 2003/88, constitutes an implementation of that directive.
76. In that regard, it follows from the Court’s case-law that, ‘in order to determine whether a national measure involves the implementation of EU law for the purposes of Article 51(1) of the Charter, it is necessary to determine, inter alia, whether that national legislation is intended to implement a provision of EU law; the nature of the legislation at issue and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and also whether there are specific rules of EU law on the matter or rules which are capable of affecting it’. (40)
77. As I have previously outlined, there are two opposing theories as regards the classification of national measures such as those at issue in the main proceedings as implementing Union law.
78. According to the first theory, Article 7(1) of Directive 2003/88 defines the perimeter of the obligation borne by the Member States, namely the obligation to take the necessary measures to ensure that every worker benefits from unpaid leave of at least four weeks. It must be considered that, when the Member States adopt measures more favourable to workers, as Article 15 of Directive 2003/88 authorises them to do, they go beyond that perimeter and thus go outside the scope of that directive. It cannot therefore be considered that they are implementing that directive. Consequently, in accordance with Article 51(1) of the Charter, the Charter is not applicable to such a situation. In other words, since the situation is not governed by EU law, the Charter does not apply. As the Member States are not implementing Union law, the Court does not have jurisdiction to interpret Article 31(2) of any other provision of the Charter. (41) However, if it were to be found that national legislation going beyond the hard core of the minimum protection infringed a norm of EU law, that legislation would again be brought within the normative area covered by EU law and would therefore be subject to the application of the Charter.
79. This first theory has its origins in certain judgments of the Court which show that the Court has been reluctant to make national measures that go beyond the hard core of the minimum protection defined by a directive subject to compliance with the general principles of EU law. (42)
80. That tendency in the case-law continued in the judgment of 10 July 2014, Julián Hernández and Others. (43) In that case, the Court was requested, in particular, to assess the scope of a provision comparable to Article 15 of Directive 2003/88, namely the first paragraph of Article 11 of Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer, (44) which provides that that directive ‘shall not affect the option of Member States to apply or introduce laws, regulations or administrative provisions which are more favourable to employees’.
81. After stating that the obligation to provide minimum protection for employees in the event of the employer’s insolvency imposed by Directive 2008/94 was not affected, the Court observed that the first paragraph of Article 11 of that directive ‘merely states’ that that directive is not to affect the option of Member States to adopt provisions that afford more protection to employees. (45) According to the Court, ‘in the light of its wording, that provision, which features in Chapter V, entitled “General and Final Provisions”, does not grant the Member States an option of legislating by virtue of EU law, but merely, unlike the options provided for in Chapters I and II of that directive, recognises the power which the Member States enjoy under national law to provide for such more favourable provisions outside the framework of the regime established by that directive’. (46) The Court inferred from the foregoing that ‘a provision of national law, such as that at issue in the main proceedings, which merely grants employees more favourable protection resulting from the exercise of the exclusive competence of the Member States, confirmed by the first paragraph of Article 11 of Directive 2008/94, cannot be regarded as coming within the scope of that directive’. (47) That provision of national law could not therefore be regarded as implementing EU law within the meaning of Article 51(1) of the Charter and, therefore, could not be examined in the light of the guarantees of the Charter and, in particular, of Article 20 thereof. (48)
82. According to the second theory, on the other hand, when the Member States adopt measures more favourable to workers, as Article 15 of Directive 2003/88 authorises them to do, it must be considered that they are using the option expressly granted to them by that provision, which should be treated as an implementation of that directive. As the situation is then governed by EU law, the Charter is applicable. Such measures are then subject to compliance with the Charter, just as they are subject to compliance with the other norms of EU primary and secondary law. Since it should be considered that, in adopting enhanced national protective measures, the Member States are implementing EU law, the Court has jurisdiction to provide an interpretation of the Charter in the context of a reference for a preliminary ruling under Article 267 TFEU.
83. This second theory has its origin in certain Opinions delivered by a number of Advocates General and also in several judgments of the Court, which were in favour of national measures going beyond a hard core of minimum protection defined by a directive or laying down more stringent rules than those contained in a directive being required to comply with EU law and, in particular, with the general principles of EU law. (49)
84. In social matters, and with regard to the Charter, that theory finds expression, in particular, in the judgment of 18 July 2013, Alemo-Herron and Others, (50) in which the Court held that ‘Article 3 of [Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses], (51) read in conjunction with Article 8 of that directive, [(52)] cannot be interpreted as entitling the Member States to take measures which, while being more favourable to employees, are liable to adversely affect the very essence of the transferee’s freedom to conduct a business’. (53)
85. I am in favour of the second theory.
86. In fact, the adoption of national measures, such as those at issue in the main proceedings, which go beyond a hard core of minimum protection defined by a directive, constitute the domestic extension of the provisions laid down in that directive. (54) The adoption of measures providing enhanced national protection constitutes a means of implementing the directives establishing minimum requirements. (55)
87. I would observe, in that regard, that, by granting workers days of leave that go beyond four weeks, the measures at issue in the main proceedings are in keeping with the objective pursued by Directive 2003/88, which is to ensure the protection of the safety and health of workers.
88. Like any act transposing a directive, measures providing enhanced national protection are required to comply with EU law and, in particular, to observe the fundamental rights enshrined in the Charter. (56) Where a directive leaves the Member States a margin of discretion, they are required to use that discretion in a way that is consistent with the requirements that flow from the protection of fundamental rights. (57) I would also observe that the provisions of secondary EU law, of which Article 15 of Directive 2003/88 forms part, must be interpreted in the light of primary EU law and therefore of the Charter.
89. Admittedly, the Court has already ruled that ‘fundamental European Union rights could not be applied in relation to national legislation because the provisions of EU law in the area concerned did not impose any specific obligation on Member States with regard to the situation at issue in the main proceedings’. (58) The Court has also held that ‘the mere fact that a national measure comes within an area in which the European Union has powers cannot bring it within the scope of EU law, and, therefore, cannot render the Charter applicable’. (59)
90. However, I consider that a national measure adopted in application of a provision of a directive that authorises enhanced national protection is closely linked to that directive and must therefore be regarded as implementing EU law.
91. The fact that a provision such as Article 15 of Directive 2003/88 gives the Member States the option to act and therefore does not impose a specific obligation on them does not in my view permit the conclusion that there is no implementation of EU law.
92. I note, in that regard, that the Court has already held that the fact that a provision of EU law offers the Member States a discretion does not preclude a finding that they are implementing EU law. (60)
93. Furthermore, the enhanced national protective clauses in the FEU Treaty expressly provide that their implementation is to be subject to respect for the Treaties. That is why the Court, rightly in my view, has relied on such clauses in order to make the adoption of such enhanced protection measures by the Member States conditional on their compliance with EU law, in particular the general principles of EU law. (61)
94. I note, in that regard, that Directive 2003/88 has as its legal basis Article 137 EC, now Article 153 TFUE; and Article 153(4) TFEU provides that the provisions adopted pursuant to that article ‘shall not prevent any Member State from maintaining or introducing more stringent protective measures compatible with the Treaties’. (62)
95. Thus, when the Member States adopt measures that go beyond the minimum protective standards laid down in a directive, those provisions must be compatible with the other provisions of EU law and, in particular, with the Treaties. (63)
96. Since the Charter ranks as primary law, it would to my mind seem inconsistent to take a more restrictive approach with respect to it when determining whether it is applicable by considering that, when the Member States adopt provisions more favourable to the protection of the safety and health of workers pursuant to Article 15 of Directive 2003/88, they are not implementing Union law within the meaning of Article 51(1) of the Charter. I see no compelling reason why the Charter should be the only rule of EU law to which the Member States would not be subject when they adopt measures going beyond the minimum basis of protection provided for in a directive.
97. The argument that the Charter might, in any event, become applicable should it turn out that the national measure at issue came within the scope of another provision of EU law or infringed such a provision seems to me to constitute an unnecessary and somewhat artificial detour. It seems to me both simpler and more coherent to consider that the provisions of the Charter, like those of EU law as a whole, are intended, because of their applicability, to constitute a framework for the adoption by the Member States and/or employers and workers of enhanced national protective measures.
98. I do not think that, from the time when, in accordance with an enhanced national protective clause such as that contained in Article 15 of Directive 2003/88, they adopt measures that go beyond the minimum requirements laid down in that directive, which strikes a balance between the interests of workers and those of employers, (64) it should be considered that the Member States are free to upset that balance by adopting measures that favour, in an excessive, or indeed discriminatory, manner, the interests of certain categories of workers or that do not take sufficiently into account the interests of employers and the need to protect the proper functioning of undertakings. (65) In particular, national provisions more favourable to workers adopted in application of Article 15 of Directive 2003/88, which are in keeping with the objective of protecting the safety and health of workers, must not go beyond what is necessary in order to attain that objective. The Member States may therefore adopt such provisions provided that they can be reconciled with the proper implementation of Union law and do not undermine other fundamental rights protected under EU law. (66)
99. From that aspect, by way of illustration, the Court has in my view jurisdiction to ascertain whether national measures adopted pursuant to Article 15 of Directive 2003/88 respect the fundamental rights enshrined in the Charter, such as the principle of non-discrimination enshrined in Article 21. In addition, the Court could, without exceeding its jurisdiction, examine whether an enhanced national protective measure disproportionately upsets the balance between the interests of workers and those of employers (67) and thereby undermines the freedom to conduct a business enshrined in Article 16 of the Charter.
100. In so doing, the Court would in my view participate in the logic that underlies the control of national measures in the light of the fundamental rights protected by the European Union, namely that the protection of those rights within the European Union must be ensured within the framework of the structure and objectives of the Union. (68)
101. It should also be borne in mind, in the context of the present cases, that ‘EU law requires that, when transposing directives, the Member States take care to rely on an interpretation of them which allows a fair balance to be struck between the various fundamental rights protected by the EU legal order. Subsequently, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of EU law’, such as the principle of proportionality. (69) Furthermore, it follows from the Court’s case-law that ‘the national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised’. (70) To my mind, those points taken from the Court’s case-law, if they are compared with the situations at issue in the present cases, make it possible to circumscribe the margin of discretion left to the national authorities by an enhanced national protective clause such as that set out in Article 15 of Directive 2003/88.
102. In the present case, it is not alleged that the national legislation or collective agreements at issue in the main proceedings would be of such a kind as to adversely affect any provisions of the Charter other than Article 31(2). I shall therefore concentrate my analysis on that provision, which, as I said earlier, is intended to apply to the situations at issue in the cases in the main proceedings.
103. In the judgments of 6 November 2018, Bauer and Willmeroth, (71) and of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften, (72) the Court examined the scope of that provision and held that it could be relied on directly in a dispute between private parties.
104. In order to reach that conclusion, the Court observed, in particular, that ‘by providing in mandatory terms that “every worker” has “the right” “to an annual period of paid leave” without referring in particular in that regard — like, for example, Article 27 of the Charter which led to the judgment of 15 January 2014, Association de médiation sociale, [(73)] — to “the cases and … conditions provided for by Union law and national laws and practices”, Article 31(2) of the Charter reflects the essential principle of EU social law from which there may be derogations only in compliance with the strict conditions laid down in Article 52(1) of the Charter and, in particular, the fundamental right to paid annual leave’. (74)
105. According to the Court, ‘the right to a period of paid annual leave, affirmed for every worker by Article 31(2) of the Charter, is thus, as regards its very existence, both mandatory and unconditional in nature, the unconditional nature not needing to be given concrete expression by the provisions of EU or national law, which are only required to specify the exact duration of annual leave and, where appropriate, certain conditions for the exercise of that right. It follows that that provision is sufficient in itself to confer on workers a right that they may actually rely on in disputes between them and their employer in a field covered by EU law and therefore falling within the scope of the Charter’. (75)
106. At EU level, Article 7(1) of Directive 2003/88 specifies the exact duration of the paid annual leave which, as a minimum period, is guaranteed to every worker. That provision of EU secondary law thus defines the scope of the fundamental right enshrined in the Charter. It regulates more specifically the right to an annual period of paid leave, by providing that that period cannot be less than four weeks.
107. To my mind, Article 31(2) of the Charter does not confer on workers a right to benefit from an annual period of paid leave beyond the minimum period thus specified by the EU legislature.
108. In other words, in the absence of a defined period in Article 31(2) of the Charter, a paid annual leave consistent with that provided for in Article 7(1) of Directive 2003/88 is sufficient to meet the requirements of the Charter. A right to paid leave beyond the minimum duration fixed by the EU legislature cannot be inferred from Article 31(2) of the Charter.
109. Given the ‘symbiotic interrelationship’ (76) between the fundamental right to an annual period of paid leave enshrined in Article 31(2) of the Charter and the secondary EU law which defines the scope of that period of leave, it is logical that, in the context of the cases in which that right is at issue, both that provision of the Charter and Article 7(1) of Directive 2003/88 should be relied on and interpreted together by the Court in order to guarantee the effectiveness of the right to a minimum annual leave of four weeks. (77)
110. That reading of Article 31(2) of the Charter in conjunction with the provision of EU secondary law that specifies the scope of the fundamental right thus protected does not however have the consequence that the duration of the right to paid annual leave is fixed at a period of four weeks, since that period is always amenable to being altered by the EU legislature in line with changes in economic and social conditions and also with technological development, which influence the arrangements applicable to employment relationships. (78) If the EU legislature thus plays an important role in defining the scope of the fundamental right enshrined in Article 31(2) of the Charter, that is the inevitable consequence of the concise and at the same time the general nature of the formulation of the provisions of the Charter.
111. Such a reading of the relevant provisions together operates in favour of the harmonious application of the Charter and of EU secondary law. In this instance, it precludes Article 31(2) of the Charter being relied on in order to extend to paid annual leave beyond the minimum period of four weeks the protective rules which the Court has gradually established on the sole basis of and in consideration of such a minimum duration.
112. Consequently, provided that the essential content of the right to an annual period of paid leave, as laid down in Article 7(1) of Directive 2003/88, that is to say, the hard core of minimum protection, is not affected, the Member States and/or employers and workers may in my view, without infringing Article 31(2) of the Charter, define conditions for the grant, carrying-over and extinction of additional paid annual leave in addition to the minimum paid annual leave of four weeks which differ from the protective rules which the Court has defined with respect to that minimum period of paid annual leave.
113. In concrete terms, that means that Article 31(2) of the Charter does not in my view preclude national legislation or collective agreements from providing that the days of paid leave beyond the minimum duration of four weeks, as laid down in Article 7(1) of Directive 2003/88, may not be carried over where they overlap with days of sick leave.
114. I shall conclude my analysis by making three sets of observations.
115. In the first place, in accepting that the Charter is applicable to situations in which enhanced national protective measures are at issue, and then defining the normative content of Article 31(2) of the Charter, as I have done, I have avoided the risk that the Charter would be interpreted as affording workers the right to paid annual leave beyond that specified by the EU legislature in order to implement that fundamental right. In this instance, the minimum duration of the annual period of paid leave protected by EU law is specified in Article 7(1) of Directive 2003/88, but is subject to change.
116. In applying such reasoning, the Court, in its role as interpreter of EU law, would not in my view exceed the limit of the jurisdiction conferred on it. Since that reasoning does not have the consequence of altering the allocation of powers between the Union and its Member States, it would not in my view be contrary to Article 51(2) of the Charter.
117. In the second place, it seems important to me that in the present cases the Court should lay the foundations which will allow it, when the situation arises, to effectively neutralise national measures adopted pursuant to Article 15 of Directive 2003/88 that would have the effect of undermining fundamental rights enshrined in the Charter. To deny that the Charter is applicable in situations which call such measures into question could in my view complicate the Court’s task from that aspect, in particular where the link between a national measure and a rule of EU law other than Directive 2003/88 would be difficult to establish.
118. In the third place, if the Court should consider that situations in which enhanced national protective measures are at issue do not fall within the scope of the Charter and therefore do not have to be considered in the light of Article 31(2) thereof, the question of the normative content of that provision, and also the closely connected question of its relationship with Article 7(1) of Directive 2003/88, would remain unresolved. However, it will not be possible to avoid answering that question when the Court is called upon to define the scope of Article 31(2) of the Charter in the context of measures adopted by the institutions of the European Union. (79)
B. The second question referred for a preliminary ruling
119. By its second question, the referring court asks the Court to rule on whether Article 31(2) of the Charter may have direct effect in a dispute between private parties.
120. Since I consider that the national legislation or collective agreements at issue in the main proceedings are not contrary to either Article 7(1) of Directive 2003/88 or Article 31(2) of the Charter, there is no need to examine the second question. In any event, the answer to the question is clear from the judgments of 6 November 2018, Bauer and Willmeroth, (80) and of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften, (81) and is in the affirmative.
121. Therefore, although, as is clear from my foregoing argument, Article 31(2) of the Charter is not in my view intended to confer on workers a right to paid annual leave beyond the period specified by the EU legislature, the possibility for a worker to rely on that provision in a dispute with a private employer in order to preclude the application of provisions of national law which would undermine the hard core of minimum protection helps to guarantee to that worker the effective benefit of that fundamental right. Therein lies the major contribution of Article 31(2) of the Charter when it is relied on in a dispute between private parties.
V. Conclusion
122. Having regard to all of the foregoing considerations, I propose that the Court answer the questions for a preliminary ruling referred by the työtuomioistuin (Labour Court, Finland) 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, and Article 31(2) of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that they do not preclude national legislation or collective agreements, such as those at issue in the main proceedings, from which it follows that days of paid annual leave beyond a period of four weeks cannot be carried over when they overlap with days of sick leave.