5.2.1.3 The final ruling of the Cour de cassation in broad strokes

226. After the preliminary ruling by the Court of Justice, the Cour de cassation rejects both the claim for paid leave and the claim for compensation in lieu of paid leave. Article L. 223-2(1) Code du Travail, which stipulates that actual work is a condition for paid leave, cannot be interpreted consistently with the Working Time Directive and therefore this provision falls foul of it.1 The Cour de cassation entirely bypasses the question concerning the legal nature of the CICOA. The Cour de cassation just recalls that in proceedings between private parties, such as in the case at hand, a provision of national law cannot be disapplied if it is found to be in conflict with a directive.2 In this case, the Cour de cassation tries to heal this problem by interpreting Article L. 223-4 Code du Travail – on absence owing to work-related accidents – in conformity with the Directive. Encouraged by the Court of Justice, the Cour de cassation rules that 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, employees who are on sick leave due to an accident on the journey from or to work can in principle still build up a number of days of paid leave.4

However, the general condition in Article L. 223-4 Code du travail (now Article L. 3141-5 Code du Travail) is that the period of absence does not exceed one year.5 Consequently, because Dominguez was on sick leave for a period of fourteen months, she is not entitled to paid leave. The assimilation of her accident with a work-related accident does not alter that conclusion. Further, the Cour de cassation states, in line with the judgment of the Cour d’appel de Limoges, that the CICOA has properly applied Article XIV of the annex to the collective agreement applicable to the employment relationship between Dominguez and the CICOA.6 Like the general condition in French law, this clause stipulates that no right to paid leave exists in situations in which the employee was absent due to “illness or prolonged illness that resulted in a break in work of twelve consecutive months or more”.7 Article L. 3141-5 Code du Travail thus prevents Dominguez – and persons in similar positions – from being entitled to days of paid leave, because the period of absence exceeds the limit of twelve months.

227. The Directive requires that each employee has an unconditional right to at least four weeks of paid leave per year, which cannot be limited by the condition that a worker has actually worked during the reference period.8 In my view, the limit imposed by Article L. 3141-5 Code du Travail and by the collective agreement is incompatible with the unconditional character of the right to paid leave as laid down in the Directive.9 Also, in the light of the Court of Justice’s judgments in Schultz-Hoff, Neidel and KHS it is questionable whether Article L. 3141-5 Code du Travail and the clause in the collective agreement are permitted by Union law.10 The Court of Justice held that this right can expire only in case the employee was able to take the days of paid leave but refrained from doing so11, or in case the days of paid leave no longer effect their purpose12 – i.e. recuperation13. The Court clarified that the carry-over period should be at least twelve months in case the reference period is a year.14 In spite of this, the Cour de cassation rejected the claims of Dominguez without even questioning or reviewing the compatibility of the relevant French provisions or the clause in the collective agreement with Union law.15 Also, if the CICOA could be qualified as an emanation of the State16, the direct vertical effect of the Directive should have resulted in sustaining Dominguez’s claim.17

228. In the wake of Dominguez and another French case18 the Cour de cassation has, in the Rapport annuel 2013, requested the French legislature to toe the line by modifying Article L. 3141-5 of the French Labour Code with the aim of “d’éviter une action en manquement contre la France et des actions en responsabilité contre l’État du fait d’une mise en êuvre défectueuse de la directive”.19 In 2016 a modified version of the provision was adopted. A conspicuous detail is however that the alleged problematic part of the provision was maintained.