According to the conclusions of the Advocate General, Verica Trstenjak, following to the case-law of the Court of Justice, the workers right to annual leave is inviolable even in cases of long-term illness. In addition, a limit of 18 months, on expiry of which entitlement to leave or to the allowance in lieu of leave is extinguished, is sufficient.

The Arbeitsgericht Dortmund (the German Work Court) has presented to the Court of Justice a question regarding a case in which a German worker, now with the non-capacity of work due a serious illness, has claim an economic compensation in lieu of leave for the years 2006 to 2008. He was severely disabled since 2002, thus he could not enjoy the leave. The German Work Court seeks a ruling from the Court of Justice as to whether European Union law, in particular 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, which allows workers to accumulate entitlement to allowances in lieu of leave over several years, even where a worker – as a result of long-term incapacity for work – was not in a position to avail himself of his right to annual leave, and whether the Member States are allowed to set a time-limit of 18 months for those entitlements.

Ms Trstenjak, the Advocate General, considers that from the case-law of the Court of Justice has established an inviolable right to annual leave even in cases of long-term illness. Therefore, in her view, this applies also to the entitlement to payment in lieu of annual leave not taken, which may not be refused on the ground that it cannot be claimed because of a long-term illness. That entitlement, which the entitlement to leave becomes on termination of the employment relationship, ultimately serves the purpose of placing the worker in a position to be compensated for his annual leave financially under comparable conditions to those that would apply if he were still in active employment and received an allowance in lieu of leave. In addition, the accumulation, without any limitation in time, of entitlements to leave or allowances in lieu is not required by EU law, in order to achieve the objective of recuperation essentially sought by the Directive. Advocate General Trstenjak thus comes to the conclusion that a limitation of the carry-over period to 18 months, on expiry of which the leave entitlement of the employee is lost, is sufficient and thus ultimately capable of enabling the employee actually to exercise his right to annual leave. However, the Advocate General emphasises that the period of 18 months represents a guideline which the Member States should follow as far as possible for the purposes of implementation in their domestic law.

Although the Advocate General’s Opinion is not binding on the Court of Justice, it is her role to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date. Moreover, a reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which have been brought before them, to refer questions to the Court of Justice about the interpretation of European Union law or the validity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.