Sensation: ECJ rules in favor of employee

Claiming vacation entitlements after 3 years

In a recent ruling (Judgment of 22.09.2022 – C-518/20 C-727/20) The European Court of Justice (ECJ) has determined that holiday entitlements do not have a three-year limitation period. This means that old holiday entitlements that could not be taken for health reasons, for example, can still be claimed even after several years and must be paid out to the employee.

In this specific case, an employee who was already receiving a pension due to a severe disability filed a lawsuit against Fraport. During his employment, he had been unable to take 34 days of annual leave due to his health condition.

No expiration of holiday entitlements: still valid 3 years later

Fraport argued that the employee’s holiday entitlement expired after the expiry of the § 7 III Federal Vacation Act (BurlG) The Federal Labor Court (BAG), however, questioned whether this regulation complies with European directives.

The ECJ ruled that holiday entitlements must be settled once they have arisen, regardless of the three-year limitation period common in Germany.

If you were unable to work in the past due to health reasons or pregnancy and therefore could not take your holiday, you are entitled to compensation for these holiday entitlements. We recommend: Have your claims reviewed by our team of lawyers, Sinan Böcek and Burcu Gülcan, who specialize in employment law.

The labor law expert at R&U Sinan Böcek answers your questions:

Am I entitled to vacation, wif I was sick all year?

The clear answer is: YES! According to the case law of the Federal Labor Court (BAG), the right to vacation does not depend on the employee's state of health. This also applies if the employee is ill all year round. In this case, however, special aspects must be taken into account, which should be examined by a lawyer beforehand.

Can remaining vacation days be cancelled?

No! The remaining vacation days may not be cancelled unilaterally by the employer. The employer must give the employee the opportunity to use the remaining vacation days in the same year, but no later than March 31 of the following year. If the employer does not grant this remaining vacation days, this vacation entitlement does not expire even after three years.

When does unused vacation time expire?

According to a recent ruling by the European Court of Justice (ECJ), the remaining vacation days do not expire! Therefore, it is possible to compensate for vacation days even if employment relationships have already ended, i.e. to get them paid out.

Can I get paid out for vacation days I didn't take?

It depends on whether the employment relationship has not been terminated. If the employment relationship continues, the employer must grant the holiday entitlement through paid leave. If the holiday entitlement no longer exists, the employee is entitled to a replacement holiday. The replacement holiday entitlement is intended to ensure that the holiday entitlement that no longer exists continues. This should take place under the conditions of the Federal Holiday Act (BUrlG) - i.e. paid leave instead of compensation in cash. If the employment relationship has ended, however, the only option is to compensate for these entitlements in cash.

Can remaining vacation last beyond 31.03. transferred beyond?

In Germany, there is no legal regulation that states that remaining vacation must be taken by March 31 of the following year. According to § 7 Federal Vacation Act (BUrlG) an employee is entitled to paid holiday and it is the employer's responsibility to ensure that the employee has the opportunity to take the holiday. It is therefore possible that remaining holiday can be carried over beyond 31 March, as long as it is agreed between the employer and the employee.

Does the employer have to inform about remaining vacation days and if so, when?

The employer has a duty to inform and cooperate in this regard. If the employer fails to comply with this duty, the remaining holiday entitlement can be carried over into the following year. The employer should therefore regularly inform employees that they still have holiday entitlement left and that they should take it before it expires. A good time to do this could be shortly before the end of the calendar year, for example.

Can the employer refuse to grant the remaining vacation days after termination?

After termination and termination of the employment relationship, it is possible to compensate for the vacation in cash. Those affected should therefore contact us and have us check their entitlement. It is therefore not permissible for an employer to refuse the remaining vacation just because termination has been announced. However, it is permissible for the employer to pay the remaining vacation in the form of time off in lieu or in cash when the notice period has expired, unless something else is agreed in your employment contract or collective agreement.

Do you have any questions about employment law? Then please contact our team of expert lawyers. We will provide you with legal advice that is sound and reliable – by phone or email.