According to judgments of the European Court of Justice (ECJ), the right to paid annual leave may not automatically expire because the employee has not applied for leave.
According to EU law, this can only happen if the employer can prove that he has adequately informed and enabled his employees to take their leave, judged the Luxembourg judges today.
Two german cases as background
The background are two cases from Germany, which were referred by the national courts to the ECJ for clarification. A former law clerk of the state of Berlin had decided not to apply for leave during the last five months of his traineeship. Before the Higher Administrative Court Berlin-Brandenburg, he calls for financial compensation.
His employer, however, argued that he had not been prevented from taking the vacation. A former employee of the Max Planck Society also demands a payment for leave not taken from two years.
ECJ: Workers are weaker party
The ECJ now emphasized that the employee is the weaker party in relation to his boss. Therefore, he could be deterred from insisting on his vacation right. On the other hand, if the employer can prove that the employee voluntarily waived his right to leave, the holiday entitlement or a corresponding compensation payment may be forfeited under EU law. This applies to both public and private employers.
Heirs can demand compensation
In a further ruling, the Luxembourg judges ruled that heirs can demand compensation for missing leave from a deceased person from his former employer – even if national law actually rules out this possibility.