Case C-415/12, Brandes – from full-time to part-time work and a disadvantageous recalculation of unused accrued holiday [order 2013, ECLI:EU:C:2013:398]

Do Clause 4.1 and 4.2 of the EU social partners’ Framework Agreement on part-time work in the Annex to Council Directive 97/81/EC, preclude national statutes, collective agreements or practices that ‘recalculate’ rights to unused paid annual leave when a full-time worker becomes a part-time worker and the employer’s recalculation has the effect of reducing the amount of paid leave to which the employee is entitled?

Facts

In April 2009, the claimant started to work full time for the defendant employer. In 2010, the employee became pregnant. She was prohibited from working during maternity leave. A child was born in December 2010 and maternity and parental leave ran from February 2011 until December 2011. In September 2011, the claimant and the defendant employer agreed that the claimant would switch from working full-time to working part-time for a period of two years starting in December 2011. Under the new arrangement there was no express agreement as to how the hours would be distributed over the various days of the working week but the claimant worked the reduced numbers of hours in three working days.

When it came to switching the right to annual leave however, there was a dispute between the claimant and her employer. She claimed that on the basis of her full-time work in 2010 and 2011, she had accrued a total of 29 days of leave. The employer disagreed: it had applied a formula laid out in a 1998 judgment of the Federal Labour Court with the result that the claimant’s 29 days of leave were divided by 5 working days, and multiplied by 3 working days, with the total coming to 17.4 days of leave. As a result of the formula, the claimant only had 17 days of leave.

The claimant claimed that this formula in German case law was contrary to EU law. The Nienburg Labour Court recalled the CJEU’s 2010 judgment in Case C-486/08, Zentralbetriebsrat der Landeskrankenhäuser Tirol. In that judgment, the CJEU had explained that the right of every worker to paid annual leave was a particularly important principle of European Union social law from which there can be no derogation, and whose implementation by the competent national authorities must be confined within the limits expressly laid down by Council Directive 93/104/EC. Further, it was common ground that the purpose of the right to paid annual leave was to enable the worker to rest and to enjoy a period of relaxation and leisure. The CJEU had also recognised that the positive effect of paid annual leave for the safety and health of the worker continues to be of significance even if it is not been taken in the reference period but during a later period. It had gone on to conclude that a change, and in particular a reduction, of working hours when moving from full-time to part-time employment ‘cannot reduce the right to annual leave that the worker has accumulated during the period of full-time employment.’

The Nienburg Labour Court recognised that the CJEU’s ruling had had no effect on the case law of the Federal Labour Court. And yet the Nienburg Labour Court was of the view that the employee in the particular case before it had been disadvantaged precisely because of the switch she had made from full-time employment to part-time employment.

As such, this was contrary to Clause 4.1 and 4.2 of the EU social partners’ Framework Agreement on part-time work. Clause 4 of the framework agreement is entitled ‘Principle of non-discrimination’, and it provides: ‘1. In respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds. 2. Where appropriate, the principle of pro rata temporis shall apply.’

The referring court also pointed out that if the Court of Justice were to find the proportionate adjustment of the right to annual leave contrary to EU law, then this would require national practices to change. In that context, the referring court thought that an obiter dictum of the CJEU might be an appropriate way of avoiding a reference in a future scenario where an employee switches from part-time employment to full-time employment.

Question Referred

An unofficial translation of the Question asked by the Nienburg Labour Court reads:

‘Are the relevant provisions of EU law, and in particular Clause 4.1 and 4.2 of the Framework Agreement concerning part-time work which is annexed to Council Directive 97/81/EC of 15 December 1997 concluded by UNICE, CEEP and the ETUC, as amended by Council Directive 98/23/EC, to be interpreted as precluding national statutes, collective agreements or practices under which a change in an employee’s working time resulting from a change in the number of days worked each week, alters the scope of the right to annual leave which the employee has not been able to exercise during the reference period, and is adjusted in such a way that the right to annual leave, when expressed in weeks admittedly remains the same but becomes recalculated on the basis of the new working time and expressed in days?’