5.3.2 Creative interpretation is encouraged

242. The Cour de cassation indicated that in relation to Article L. 223-2 Code du Travail it encounters the limitation of contra legem interpretation.1 The Court of Justice however shifts to Article L. 223-4 Code du Travail and stresses that in the Working Time Directive no difference is made between between workers who are absent on sick leave during the reference period and those who have actually worked in the course of that period.2 Subsequently, the Court encourages the Cour de cassation to determine “whether it can find an interpretation of that law that allows the absence of the worker due to an accident on the journey to or from work to be treated as being equivalent to one of the situations covered by [Article L. 223-4] Code du travail” [Edited: I.A.].3 In other words, for the sake of the effectiveness of the Directive, the national court should adopt a creative attitude and try to assimilate two situations that are actually separate in national law. This might be an inventive suggestion for this very case, yet at the same time it makes the Court of Justice guilty of short-termism given the factual disharmony of Article L. 223-2 Code du Travail with Union law.4 As indicated above, the Cour de cassation followed the suggestion by assimilating accidents de trajet with accident de travail.5 From a Dutch perspective, the suggestion made by the Court of Justice and the actual decision of the Cour de cassation to assimilate work-related accidents with an accident that occurred on the way from home to work is to be frowned upon, all the more since the assimilation turns out not to result in the protection of Dominguez’s right to paid leave.6 In Dutch law, and undoubtedly also in other legal systems, the distinction between work-related accidents and other accidents is essential in terms of employers’ liability, protection measures and insurance obligations. In a series of cases in the Netherlands, the Hoge Raad has laid down criteria for the appraisal of whether or not an accident was work-related.7 Surely, the equation of the traffic-accident of Dominguez with a work-related accident would elicit fierce resistance amongst employers, employer associations as well as in the insurance sector. From a Dutch perspective the obedient attitude of the Cour de cassation is all the more striking.8 On the one hand, it could also just have confirmed the judgments delivered by the Conseil de Prud’hommes and the Cour d’appel de Limoges9; on the other hand, in the light of Schultz-Hoff, KHS and Neidel10 the Cour de cassation actually should have reviewed the compatibility of the condition in the collective agreement and in French law that absence should not exceed one year with Union law.11

243. What can we learn from this course of events? First, that the Court of Justice encourages national courts to adopt a creative attitude as regards the interpretation of national law as a whole in conformity with Union law. Second, that the suggestions made by the Court of Justice as to how to interpret a certain term do not (always) reflect insight into the actual background of that term, nor into the consequences of the interpretation suggested. As such that is not necessary as it concerns a suggestion, but it is good to be aware of the fact that the Court’s suggestions may require critical analysis. Third, that a national court should always take into consideration not only the legal consequences of an interpretation for the underlying case, but also the possible implications for the coherency of the national legal system. It cannot be expected that the Court of Justice has an overall view of private law of (all) the Member States and the impact of a changed interpretation of a term. Yet, a national court is expected to have such an overview and it is its task to give effect to Union law, while at the same time respecting the national legal system as such. Also, when a national court involved in horizontal proceedings refers preliminary questions to the Court of Justice, it is important to provide the Court with the private law context of the questions.