Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)

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Judgment of the Court (First Chamber) of 18 January 2024, Comune di Copertino, Case C-218/22,  EU:C:2024:51

Reference for a preliminary ruling – Social policy – Directive 2003/88/EC – Article 7 – Article 31(2) of the Charter of Fundamental Rights of the European Union – Allowance in lieu of days of leave not taken at the end of the employment relationship – National legislation prohibiting payment of that allowance in the event of the voluntary resignation of a public servant – Control of public expenditure – Organisational needs of the public employer

Facts

BU was employed by the Municipality of Copertino (Italy), from 1 February 1992 to 1 October 2016, until his voluntary resignation, in order to take early retirement. Taking the view that he was entitled to an allowance in lieu of 79 days’ paid annual leave accrued during the period between 2013 and 2016, BU brought an action before the Tribunale di Lecce (District Court, Lecce, Italy) seeking financial compensation for those days of leave not taken. The Municipality of Copertino opposed that request invoking a national provision which provides, subject to certain exceptions, that no financial compensation may be paid for untaken paid leave. According to the Municipality of Copertino, the fact that BU had taken leave during 2016 showed that he was aware of his obligation, in accordance with that provision, to take the days of leave that he had accrued before the end of the employment relationship.

The Tribunale di Lecce had doubts as to the compatibility of that national provision with Article 7 of Directive 2003/88, concerning certain aspects of the organisation of working time, read in light of Article 31(2) CFREU.

Findings of the Court

The ECJ recalls that the right to paid annual leave, as enshrined in Article 31(2) CFREU and  Article 7(1) of Directive 2003/88, must be regarded as a particularly important principle of EU social law from which there may be no derogations and whose implementation by the competent national authorities must be confined within the limits expressly laid down by Directive 2003/88. That fundamental right also includes the right to an allowance in lieu of annual leave not taken upon termination of the employment relationship, as provided for by Article 7(2) of Directive 2003/88.

Nevertheless, Article 7(1) of Directive 2003/88 does not, in principle, preclude national legislation which lays down conditions for the exercise of the right to paid annual leave, including even the loss of that right at the end of a leave year or of a carry-over period, provided, however, that the worker who has lost his or her right to paid annual leave has actually had the opportunity to exercise the right conferred on him or her by the directive.

In the case at hand, the ECJ considers apparent from the information in the request for a preliminary ruling that, under the national provision at issue in the main proceedings, as interpreted by the Corte costituzionale (Constitutional Court), BU is not entitled to the allowance in lieu of all those days of leave not taken solely because he voluntarily terminated the employment relationship by taking early retirement, which he would have been able to foresee in advance. As that national provision limits the exercise of one of the aspects of the right to paid annual leave, as enshrined in Article 31(2) CFREU, the conditions laid down in Article 52(1) of the Charter must be complied with.

As regards the objectives pursued by the national legislature, which the referring court questions in particular, the ECJ notes, regarding the objective of controlling public spending, that. according to recital 4 of Directive 2003/88, the effective protection of the safety and health of workers should not be subordinated to purely economic considerations. The ECJ observes, however, that the objective linked to the organisational needs of the public employer is aimed, in particular, at rational planning of the leave period and encouraging the adoption of appropriate behaviour on the part of the parties to the employment relationship. The ECJ also acknowledges that, according to the Corte costituzionale case-law, the national provision at issue in the main proceedings is intended to put an end to the uncontrolled use of ‘financial compensation’ for leave not taken and, thus, to ensure that the actual taking of leave is prioritised over the payment of an allowance in lieu. The latter objective corresponds to that pursued by Article 7(2) of Directive 2003/88, which seeks in particular to ensure that workers are entitled to actual rest, with a view to ensuring effective protection of their health and safety.

It follows that the employer is required “to ensure, specifically and transparently, that the worker is actually given the opportunity to take the paid annual leave to which he or she is entitled, by encouraging him or her, formally if need be, to do so, while informing him or her, accurately and in good time so as to ensure that that leave is still capable of procuring for the person concerned the rest and relaxation to which it is supposed to contribute, that, if he or she does not take it, it will be lost at the end of the reference period or authorised carry-over period or can no longer be replaced by an allowance in lieu.” Should the employer not be able to show that it has exercised all due diligence in order to enable the worker actually to take the paid annual leave to which he or she is entitled, the loss of the right to such leave at the end of the reference period or the authorised carry-over period, and, in the event of the termination of the employment relationship, the corresponding absence of a payment of an allowance in lieu of annual leave not taken constitutes a failure to have regard, respectively, to Article 7(1) and Article 7(2) of Directive 2003/88 and Article 31(2) CFREU. However, “where the worker has refrained from taking his or her paid annual leave deliberately and in full knowledge of the ensuing consequences, after having been given the opportunity actually to exercise his or her right thereto, Article 31(2) of the Charter does not preclude the loss of that right or, in the event of the termination of the employment relationship, the corresponding absence of an allowance in lieu of paid annual leave not taken, without the employer being required to force that worker to actually exercise that right.”

Judgment of the Court (First Chamber) of 22 February 2024, Direcţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date, Case C-491/21, EU:C:2024:143

Reference for a preliminary ruling – Citizenship of the Union – Article 21(1) TFEU – Right to move and reside freely within the territory of the Member States – Article 45 of the Charter of Fundamental Rights of the European Union – Directive 2004/38/EC – Article 4 – Issuance of an identity card – Requirement of domicile in the Member State issuing the document – Refusal by the authorities of that Member State to issue an identity card to one of its nationals domiciled in another Member State – Equal treatment – Restrictions – Justification

Facts

WA is a lawyer of Romanian nationality who carries out his professional activities in both France and Romania and resides in France since 2014. The Romanian authorities issued an electronic simple passport to him, stating that he is domiciled in France, and a temporary identity card, which must be renewed annually. That temporary identity card does not constitute a travel document and is issued to Romanian nationals domiciled in another Member State who are temporarily resident in Romania. In 2017, WA applied to the Romanian authorities to be issued with an identity card, whether simple or electronic, constituting a travel document which would enable him to travel to France. His application was rejected on the ground that he had not established his domicile in Romania.

The Curtea de Apel București (Court of Appeal, Bucharest, Romania) dismissed the appeal lodged by WA as unfounded, on the ground that, under Romanian law, identity cards are to be issued only to Romanian nationals domiciled in Romania. On appeal, the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania) had doubts as to the conformity with EU law of the refusal to issue an identity card to WA in the circumstances of the case.

Findings of the Court

The ECJ interprets Article 21 TFEU and Article 45(1) CFREU, read in conjunction with Article 4(3) of Directive 2004/38, on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, as “precluding legislation of a Member State under which a citizen of the European Union, a national of that Member State who has exercised his or her right to freedom of movement and freedom to reside in another Member State, is refused an identity card that may serve as a travel document within the European Union, on the sole ground that he or she has established his or her domicile within the territory of that other Member State.”

The ECJ holds that the Romanian legislation on the issuance of travel documents establishes a difference in treatment between Romanian citizens domiciled abroad, including in another Member State, and those who are domiciled in Romania. The latter may be issued with one or two travel documents enabling them to travel within the European Union, namely an identity card and a passport. The former may be issued only with a passport as a travel document.

In this regard, Article 4(3) of Directive 2004/38 leaves to the Member States the choice of the type of travel document, namely an identity card or a passport, which they are obliged to issue to their own nationals in order to enable them to exercise the right to move and reside freely within the territory of the Member States. However, the ECJ clarifies, “that provision, read in the light of Article 21 TFEU, cannot (…) allow Member States to make that choice by treating less favourably those of their nationals who have exercised their right to freedom of movement and residence within the European Union, and by restricting that right, without justification based on objective considerations of public interest.”

In the case at hand, the ECJ considers that the legislation at issue in the main proceedings is liable to deter Romanian nationals in a situation such as that of WA from exercising their right to move and reside freely within the European Union. Even if Romanian nationals domiciled in another Member State hold a passport, the exercise of their right to freedom of movement is liable to be impeded by that legislation. Actually, in the main proceedings, for a period of 12 days, WA was unable to travel to France since he did not have an identity card that may serve as a travel document and his passport was at the embassy of a third State in Bucharest (Romania) for the purpose of obtaining a visa. In such circumstances, a Romanian national domiciled in Romania could have travelled to another Member State using his or her identity card. It follows that the legislation at issue in the main proceedings constitutes a restriction on the right to move and reside freely provided for in Article 21(1) TFEU.

The Romanian Government argued that the refusal to issue a national identity card that may serve as a travel document to Romanian nationals domiciled in another Member State is justified, inter alia, by the fact that it is impossible to record on the identity card the address of the domicile of those nationals outside Romania. The ECJ does not accept that reasoning and recalls that “considerations of an administrative nature cannot justify derogation by a Member State from the rules of EU law, especially where the derogation in question amounts to restricting, or even preventing, the exercise of one of the fundamental freedoms guaranteed by the Treaty”. Therefore, “the effectiveness of the identification and checking of the address of domicile of Romanian nationals domiciled in another Member State likewise does not constitute an objective consideration of public interest capable of justifying legislation such as that at issue in the main proceedings.”