5.2.1.1 The case of Dominguez

224. The failure of a Member State to correctly transpose a directive in due time can put private parties upon which the directive seeks to confer rights at a disadvantage. The Dominguez case serves as a good example to illustrate this scenario. In the French legislation that aimed at implementing the Working Time Directive1, the right to paid annual leave was – and still is – made subject to the condition that the worker, during the year of reference, should have actually worked for a period equivalent to a minimum of one month.2 Further, the French law stipulated that periods of an uninterrupted duration not exceeding one year during which performance of the employment contract is suspended due to a work-related accident or an occupational disease, shall be treated as periods of actual work.3

Article XIV of the model rules annexed to the national collective employment agreement for staff of social security bodies4 regulated that no annual leave entitlement is given in a particular year in which a worker was absent as a result of illness or prolonged illness that has resulted in a break in work of twelve consecutive months or more. This clause in the collective agreement does not distinguish between various causes of sick leave and thus deviates from the French legislative provision as the restriction to the right to annual leave has a wider scope of application.

Maribel Dominguez, employed by the CICOA (Centre informatique du Centre Ouest Atlantique) since 1987, was absent from 3 November 2005 until 7 January 2007 (thus around fourteen months) due to an accident on the journey between her home and her place of work. Dominguez claimed to be entitled to paid annual leave not taken during the particular period between November 2005 and January 2007. Alternatively, Dominguez claimed payment in lieu of leave.5 The CICOA responded that on the basis of the collective agreement as well as the French legislation, Dominguez was not entitled to paid leave.

The Conseil de Prud’hommes6 rejected both of Dominguez’s claims7 after which she lodged an appeal before the Cour d’appel de Limoges, maintaining her original claims. The Cour d’appel de Limoges concludes that Dominguez cannot invoke the legislative provisions applicable to work-related accidents.8 Since Dominguez has been absent longer than twelve months as a result of an accident on the journey to or from work, Article XIV(4) of the annex to the collective agreement stipulates that she does not have a right to paid leave anymore.9 According to the Cour d’appel the CICOA has “à bon droit”applied this clause. Thereupon Dominguez brings the case before the Cour de cassation. She argues that an accident on the journey to or from work (accident de trajet) is equivalent to a work-related accident (accident du travail). Therefore, according to Dominguez, Article L. 223-4 Code du Travail applies, on the basis of which the period of absence following the accident on the journey to work should be treated as being equivalent to “actual work time” in relation to the entitlement to and calculation of paid leave.10 The Cour de cassation refers preliminary questions to the Court of Justice concerning the interpretation of the Working Time Directive in view of the conditions that French law imposes regarding the entitlement to paid annual leave.11