8.4.1.2 Causality and damages

412. In relation to Laval the causal link between the damages suffered by Laval and the collective actions taken by the trade unions is clear. The trade unions based their actions upon the Swedish legislative provision that explicitly allowed them to take these type of actions against a foreign company. It is likely that the trade unions would not have taken these actions if Swedish law, in line with Union law, would have prohibited these actions. This likelihood justifies the conclusion that if the Swedish legislature would have acted in conformity with Article 56 TFEU, Laval would not have suffered these damages. In other words, there is a causal link between the Swedish breach of Article 56 TFEU and the damages suffered by Laval.

413. In the context of Dominguez,the French legislation on days of paid leave was found not to be in conformity with the Working Time Directive as concerns the fact that it subordinated the right to paid annual leave to the condition that a worker during the year of reference, should have actually worked for a period equivalent to a minimum of one month.1 Thus far, the French State has not been held liable.2 As regards the damage suffered by Dominguez – i.e. no days of paid leave over the period in which she was absent due to illness, and no compensation for such days – the question on causality is slightly complicated. To start with, the French provision that constituted wrongful implementation was eventually interpreted in a way consistent with Union law – by the assimilation of the absence following an accident on the journey from or to work should be assimilated with the absence following a work-related accident.3 As a result of this assimilation, Dominguez in principle would have built up a number of days of paid leave while being on sick-leave. However, Article L. 3141-5 Code du Travail and the applicable collective agreement stipulate another condition, namely that for building up days of paid leave during any type of absence the period of that absence does not exceed one year. The collective agreement imposed the same condition. Dominguez was absent for fourteen months. Eventually, these provisions result in the fact that Dominguez is not entitled to days of paid leave or compensation for such days because her right to paid leave or financial compensation for paid leave lapsed as a result of the length of her absence.

As discussed in §5.2.1.3, in view of the unconditional character of the right to paid leave as entrenched in the Directive as well as in view of the Court of Justice’s rulings in Schultz-Hoff, Neidel and KHS it is highly questionable whether this limit of one year is permitted by Union law, which requires a “carry-over period”.4 A salient detail is that in its Rapport Annuel 2013 the Cour de cassation refers to these cases andexpresses its concern, although that same court entirely passed over this issue in its final ruling in Dominguez where it would have been decisive.5In addition, in Bauer and Broûonn the Court of Justice recalls that the right to paid leave including the right to financial compensation is mandatory and unconditional in nature.6 Member States cannot derogate from the rule laid down in Article 7 Directive 2003/88 and Article 31(2) Charter in the sense that “the right to paid annual leave acquired cannot be lost at the end of the leave year and/or of a carry-over period fixed by national law, when the worker has been unable to take his leave”.7 The Court argues that, given the fundamental character of that right, it cannot be accepted that the illness, death or termination of the employment of an employee could retroactively deprive them – or their heirs – of the right to paid annual leave or financial compensation in lieu of paid leave. Consequently, in an action for State liability in relation to the damage suffered by Dominguez, she would be advised to base her claim on the breach of this aspect of Article L. 3141-5 Code du Travail with Article 7 Directive 2003/88 and Article 31(2) Charter. Considering the dates of the relevant cases and the fact that the French provision was not modified, it can be argued that the breach is sufficiently serious.

Still, in review of the condition of causality it should be taken into account that also the collective agreement imposed the condition that the period of absence could not exceed twelve months. The question arises how probable it would have been that the collective agreement would not have imposed this limit if the French legislation would not have imposed the same limit and if it would have been clear that such a limit was incompatible with Union law. Therefore, it is not excluded that in the case of Dominguez the requirement of causality is met, but it requires some hurdles to be taken.

414. With regard to AMS it is questionable whether in the context of the causality the trade union has suffered damages that qualify as recoverable damages. As Union law does not regulate this aspect, this question has to be answered in accordance with French liability law8, the analysis of which goes beyond the scope of this study.