Einde inhoudsopgave
Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/5.2.1.2
5.2.1.2 The ruling of the Court of Justice in a nutshell
mr. I.V. Aronstein, datum 01-09-2019
- Datum
01-09-2019
- Auteur
mr. I.V. Aronstein
- JCDI
JCDI:ADS141382:1
- Vakgebied(en)
EU-recht / Algemeen
Burgerlijk procesrecht / Algemeen
Voetnoten
Voetnoten
Ibid., paras. 16-18 and 20-21. See also CJ 26 June 2001, Case C-173/99 (BECTU), para. 43. CJ 20 January 2009, Joined Cases C-350/06 and C-520/06 (Schultz-Hoff), paras. 40-41 and 46. Later this was, again, confirmed in Neidel: CJ 3 May 2012, Case C-337/10 (Neidel), para. 28. The reference period is the period in which the employee builds up days of paid leave. Usually, the reference period is a calendar year.
CJ 27 June 2001, Case C-173/99 (BECTU), paras. 39 and 43. CJ 12 June 2014, Case C‑‑118/13 (Bollacke), para. 15. CJ 6 November 2018, Joined Cases C-569/16 and C-570/16 (Bauerand Broûonn), paras. 38-39, 50 and 80-81. It is uncertain whether this principle of social EU law is also a general principle of European Union law. See for example AG Trstenjak who argues that there are arguments to answer this question in the affirmative: Opinion, ECLI:EU:C:2012:33, paras. 110-114.
Cf. CJ 24 January 2012, Case C-282/10 (Dominguez), paras. 46-49.
For the summary of the navigation pane, see para. 44 of the judgment.
CJ 24 January 2012, Case C-282/10 (Dominguez), para. 24.
Ibid., paras. 29-31 and per curiam. See further nos. 242-243 in §5.3.2.
Ibid., para. 25. See §5.3.3. Cf. CJ 15 January 2014, Case C-176/12 (AMS), para. 39. CJ 19 April 2016, Case C-441/14 (Dansk Industri), para. 32. It is noteworthy that rules on contra legem interpretation can appear in various ways in the law of Member States. For example, the German Verfassungsbeschwerde is a type of contra legem interpretation. A private party can bring a constitutional complaint to the Bundesverfassungsgericht, which according to §90 BVerfGG, can set aside or declare invalid (Article 100 (1) Grundgesetz; German Basic Law) an administrative act, legislative provision or judgment that conflicts with a constitutional right. See also Article 93 (4a) Grundgesetz. BVerfG 15 January 1958, ECLI:DE:BVerfG:1951:rs19580115.1bvr040051 (Lüth), 207-209. BVerfG 6 July 2010, ECLI:DE:BVerfG:2010:rs20100706.2bvr266106 (Honeywell). Cf. Neuner 2005. Terhechte 2008. And in Dutch law, the restrictive effect of reasonableness and fairness can require the disapplication of a legislative provision, even one of mandatory law. Parl. Gesch. Boek 6, pp. 72-73. Cf. Opinion Keus 23 March 2012, ECLI:NL:PHR:2012:BW5695, para. 2.16. HR 22 June 2012, ECLI:NL:HR:2012:BW5695, para. 4.2.1. HR20 January 1989, ECLI:NL:HR:1989:AD0580 (Wesselingh/Weisz), para. 3.1. HR 27 October 1995, ECLI:NL:HR:1995:ZC1859. Asser/Sieburgh 6-III 2018/416-420.
CJ 24 January 2012, Case C-282/10 (Dominguez), paras. 32-41. See §2.1.1.
Ibid., paras. 41-42.
AG Trstenjak argued that Article 31(2) Charter cannot be invoked as such: Opinion 8 September 2011, Case C-282/10 (Dominguez), paras. 135-143 and 145-169. Cf. De Mol 2014, pp. 242-245. See §5.5.
CJ 6 November 2018, Joined Cases C-569/16 and C-570/16 (Bauer and Broûonn).
The Court recalled in Bauer and Broûonn, para. 16 that “[…] according to settled case-law, the entitlement of every worker to paid annual leave must be regarded as a particularly important principle of European Union social law from which there can be no derogations”. Yet, thus far it has not been labelled as a “general principle of Union law”. Cf. CJ 12 June 2014, Case C‑‑118/13 (Bollacke), para. 15.
Cf. CJ 22 November 2005, Case C-144/04 (Mangold).
225. In response to the preliminary questions referred by the Cour de cassation the Court of Justice holds that Article 7(1) Working Time Directive precludes a national provision that makes the entitlement to paid annual leave of, at a minimum, four weeks subject to a minimum period of actual work during the reference period.1 This is a principle of European Union social law.2 The period of four weeks is a minimum; any extra days of paid leave are a matter governed by national law, which means that Member States are free to impose conditions and limits as regards the calculation of those extra days.3
The Court plots a complete navigation course for the national court, and runs through the alternative options.4 It recalls that national courts first and foremost are obliged to interpret, as far as possible, national law in harmony with the Directive.5 The Court of Justice even suggests that the Cour de cassation indeed interprets the accident from Dominguez as a work-related accident so that she would be entitled to paid annual leave for this reference period.6 Further, the Court of Justice recalls that the duty of consistent interpretation cannot serve as a basis for interpretation contra legem; whether a national court may interpret contra legem is governed by national law.7If interpretion contra legem is not possible, the national court has to assess the legal nature of the parties to the case. In case the party infringing a right conferred by the Directive qualifies as a State organ or an emanation of the State, the national court should examine whether direct vertical effect of the Directive would bring solace to the case.8 In relation to horizontal proceedings, the Court of Justice recalls that national courts cannot set aside national provisions that as regards their content are incompatible with a directive.9 Unfortunately, the Court passed up the chance to elaborate on the question when general principles or Charter provisions can be invoked in horizontal proceedings to set aside national legislation incompatible with such rules.10 In 2018 this issue was clarified in BauerandBroûonn in which the Court held that Article 31(2) Charter can be invoked in horizontal proceedings to require the disapplication of national provisions that are incompatible with the right to paid leave or financial compensation in lieu ofpaid leave.11 Considering its temporal effect, Article 31(2) Charter does not as such apply to the legal facts in Dominguez. Yet, if Article 31(2) Charter would qualify as a general principle of Union law12 the temporal effect of the Charter would not stand in the way of invoking that principle to request a national court to set aside a national provision incompatible with that principle.13 Be that as it may, for Dominguez this interpretation of the Court came too late, as the horizontal proceedings are now closed.