Annual leave as defined by the CJEU

By way of several recent rulings, the Court of Justice of the European Union ("CJEU") has provided details concerning paid annual leave for employees. Here is a brief summary of what is reflected in these rulings:

• The CJEU has ruled that an employee shall not automatically lose his acquired rights to paid annual leave on the grounds that he did not apply for leave. However, those rights may lapse if the employer proves that the employee was given the opportunity, in particular through adequate information, to take the leave days at issue in due time. The CJEU considered that EU law does not protect the employee from the loss of that right, nor does it guarantee the employee the right to an allowance in lieu of the leave which is not taken in the event of a termination of the employment contract (Kreuziger, 6 November 2018, C-619/16).
• The CJEU has ruled that the heirs of a deceased employee may claim from the employer of the deceased an allowance in lieu of the paid annual leave not taken by the employee. The Court ruled that, under EU law, an employer’s right to paid annual leave does not lapse upon his death. The deceased employee’s right to an allowance in lieu of leave which is not taken shall thus be inherited by his heirs. The Court also confirms that a national law that precludes that such inheritance is incompatible with EU law and the heirs may therefore seek enforcement by relying directly on EU law, against a private and a public employer (Bauer and Broßonn, 6 November 2018, C-569/16 and C-570/16).
  
  For the time being, Luxembourg law is silent regarding the entitlement of the heirs of the deceased employee to allowance in lieu of leave which is not taken. However, if the legal conditions are met, the law ensures for certain heirs a continued salary payment for the month in which the death occurs as well as an allowance equal to three months’ salary.
   
• The CJEU has confirmed that the period of parental leave taken by the employee cannot be treated as a period of actual work for the purpose of determining the employee’s entitlement to paid annual leave. Thus, according to the CJEU, a provision of national law which does not include a period of parental leave taken by that worker for the purpose of determining the duration of paid annual leave is compliant with EU law. (Dicu, 4 October 2018, C-12/17).
  
  Under Luxembourg law, the employment contract is suspended during the period of parental leave. No salary payment is made by the employer during this period and the employee is not entitled to paid annual leave arising from it. Luxembourg law is thus compliant with EU law in this respect.