Ms Dicu is a judge at the Tribunalul Botoșani (Regional Court, Botoșani). In 2014, she first took her entire annual leave entitlement and was then on maternity leave from 1 October 2014 to 3 February 2015. Subsequently, she took parental leave from 4 February 2015 until 16 September 2015, during which period her employment relationship was suspended. Lastly, she took 30 days’ paid annual leave from 17 September to 17 October 2015.
Pursuant to Romanian law, which provides for 35 days’ paid annual leave, Ms Dicu asked the court to which she had been appointed to grant her the five remaining days of paid annual leave for 2015, which she intended to take on working days over the end-of-year holiday period. The Tribunalul Botoșani refused that request on the ground that, under Romanian law, the duration of paid annual leave is commensurate with the period of time actually worked during the current year and, in that regard, that the period of parental leave she took in 2015 could not be regarded as a period of actual work for the purpose of determining her paid annual leave entitlement.

Ms Dicu brought proceedings against the Tribunalul Botoșani before the Tribunalul Cluj (Regional Court, Cluj, Romania), seeking a declaration that, for the purpose of determining her paid annual leave entitlement for 2015, the period she took as parental leave is to be regarded as a period of actual work.

By judgment of 17 May 2016, the Tribunalul Cluj (Regional Court, Cluj) granted Ms Dicu’s application. The Tribunalul Botoșani appealed against that decision before the referring court. The Curtea de Apel Cluj (Court of Appeal, Cluj, Romania) stayed the proceedings and referred a question to the Court of Justice of the EU (CJEU) for a preliminary ruling.

Consideration by CJEU

The CJEU noted that, as is apparent from the wording of Article 7(1) of Directive 2003/88, every worker is entitled to paid annual leave of at least four weeks, a right which, according to the CJEU’s established case-law, must be regarded as a particularly important principle of EU social law. Moreover, that right is expressly set out in Article 31(2) of the Charter of Fundamental Rights of the European Union, which Article 6(1) TEU recognises as having the same legal value as the Treaties.
The CJEU further noted that, while Member States are not entitled to make the very existence of the right to paid annual leave, which derives directly from Directive 2003/88, subject to any preconditions whatsoever, the issue raised in the present case is whether a period of parental leave must be treated as a period of actual work for the purpose of determining paid annual leave entitlement.

The CJEU considered it appropriate to recall the purpose of the right to paid annual leave, conferred on every worker by Article 7 of Directive 2003/88, which 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. That purpose, which distinguishes paid annual leave from other types of leave having different purposes, is based on the premise 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, his being given a period of rest, relaxation and leisure. Accordingly, entitlement to paid annual leave must, in principle, be determined by reference to the periods of actual work completed under the employment contract.

It is apparent from established case-law 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. The same applies as regards workers on maternity leave, who are, as a result, unable to perform the duties required by virtue of their employment relationship and whose right to paid annual leave must be guaranteed when they are on maternity leave; it must be possible to exercise that right during a different period from that in which they are on maternity leave.

However, the CJEU considered that the case-law cited in the previous two paragraphs cannot be applied mutatis mutandis to the situation of a worker, such as Ms Dicu, who took parental leave during a reference period.
The CJEU held that:

Article 7 of Directive 2003/88/EC is to be interpreted as not precluding a provision of national law which, for the purpose of determining a worker’s entitlement to paid annual leave, does not treat the amount of time spent by that worker on parental leave during that reference period as a period of actual work.

Why is this decision important?

Employers need to apply carefully the provisions of the Working Time Directive (and the UK Working Time Regulations) when calculating an employee’s entitlement to annual leave. It has been clear that sickness and maternity leave are to be treated as periods of “actual work” for the purposes of such calculations. This decision of the CJEU means employers are not required to treat parental leave in the same way.
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62017CJ0012&from=EN