Labour & European Law Review Weekly Issue 259 08 March 2012
Article 7(1) of the Working Time Directive gives workers the right to at least four weeks’ paid annual leave. In Dominguez v Centre Informatique du Centre Ouest Atlantique (CICQA), the Court of Justice of the European Union (CJEU) said that anyone who works for a government (or a government body) can rely on it directly and bypass domestic law.
Following an accident between her home and her place of work, Ms Dominguez was off sick from 3 November 2005 until 7 January 2007.
She asked her employer, a social security organisation (and therefore a government body), for 22.5 days’ paid leave in respect of that period or an award of compensation in lieu of it. Her employer refused and she lodged a claim with the industrial relations court which was dismissed.
She appealed, arguing that as an accident on the way to or from work should be treated as a work-related accident, the period she was off sick should be treated as a period of actual work time for the purpose of calculating her paid leave.
The French Court of Cassation asked the CJEU whether these provisions were compatible with the working time directive.
Article L223-2 of the French labour code says that any worker who has been employed for a minimum of one month of actual work is entitled to holiday leave, calculated on the basis of two and a half working days for each month worked.
Article L223-4 of the code states that “...periods of an uninterrupted duration not exceeding one year during which performance of the contract of employment is suspended owing to a work-related accident or occupational disease, shall be treated as periods of actual work ...”.
The CJEU said that as the directive did not allow national provisions which attached conditions to the right to four weeks paid annual leave, the clause in the French labour code requiring the worker to have done a month’s actual work was incompatible with it.
Before disregarding national law entirely, however, the CJEU said that courts should do whatever they could, taking the whole body of domestic law into consideration, to ensure that the outcome was fully consistent with the objective of the directive.
If that was not possible, it should then decide whether the CICQA was a government body (called an “emanation” of the state). If so, Ms Dominguez could rely directly on article 7 of the directive and the national court would have to disregard any domestic provisions that conflicted with it.
As a directive cannot impose obligations on an individual, if CICQA was not found to be a government body, the court said that Ms Dominguez could rely on another judgment of the European court (Francovich and ors v Italian Republic) as a last resort. This meant she could claim compensation from the state for the loss she had incurred because the directive had not been properly implemented by the state under French law.