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Creation of an annual right to rest

Implications on the paid leave’s rights

09/06/2022

The European concept of an annual right to rest first appeared in a notable ruling of 22nd November 2011 by the European Union Court of Justice (EUCJ), according to which paid leave have "a dual purpose, to enable the worker to rest in relation to the performance of his duties under his contract of employment, on the one hand, and to have a period of relaxation and leisure, on the other hand".

This European case law is particularly based on:

  • Article 31 of the European Union’s Charter of Fundamental Rights which entitles every employee to an "annual period of paid leave";
  • Article 7 of the European Directive 2003/88/EC according to which: "Member States shall take the necessary measures to ensure that every worker is entitled to at least four weeks' paid annual leave, in accordance with the conditions for obtaining and granting of such leave provided in national legislation and/or practice".

On the same grounds, the EUCJ then held, in the context of a question asked on the relation between actual work and paid leave under French law, that Member States must guarantee a period of paid leave of 4 weeks, regardless of whether the employee was absent during the reference period, and regardless of the reason for the absence (EUCJ, 24th January 2012).

In doing so, the court - in a manner that may be considered highly questionable - erased the distinction made in French law, as in Monegasque law, according to which the acquisition of paid leave is subject to periods of actual work and absences considered as such (maternity leave, paternity leave, adoption leave, time off work following an accident or occupational disease).

Whereas until now these concerns were purely confined to the member countries of the European Union, of which Monaco is not a member, the Monegasque courts have recently dedicated the existence of an "annual right to rest, relaxation and leisure", referring expressly to the EUCJ judgment of 22nd November 2011.

For the time being, the Monegasque courts - of first instance - have considered that this annual right to rest implies:

  • The obligation for the employer to take appropriate measures to ensure that the employee can effectively exercise his right to paid leave;
  • The impossibility for the employee to refuse to take paid leave;
  • The impossibility for the employer to prevent the employee from taking his/her paid leave - except for legitimate reasons and subject to compensation;
  • The non-absolute nature of the absence of the right to carry-over paid leave, which must be assessed on a case-by-case basis, depending on the employer's attitude - so that this principle of non-carrying-over paid leave can (or even must in certain cases) be set aside by the employer.

However, the express reference by the Monegasque courts of first instance to the decision of the EUCJ of 22nd November 2011, as well as to the need for the employer "to take appropriate measures to ensure that the employee can effectively exercise his or her right to leave" could raise questions about the scope of this annual right to rest, and the transposition of the European concept into the Principality's internal order.

Nevertheless, if the question of a right to a minimum period of paid leave – like the one established in EU law, for a period of 4 weeks, regardless of whether the employee has acquired any right to paid leave by law - were to be the subject of future debates before the Monegasque courts, it would run up against the hierarchy of norms and the sovereignty of national law.

Pending clarification of the practical effects of this annual right to rest in employment relationships in Monaco, it is therefore essential to anticipate, on a case-by-case basis, any difficulties that may arise in this respect - particularly in the event of prolonged absence of employees (fate of paid leave earned in the previous year, lack of holiday entitlement during the period of absence) in order to ensure that they can exercise their annual right to rest and avoid being ordered to pay damages for unfair performance of the employment contract.

Authors

Portrait ofSophie Marquet
Sophie Marquet
Partner
Monaco
Portrait ofSophia Bernardi
Sophia Bernardi
Senior Associate
Monaco
Portrait ofAnissa BENREJEB
Anissa Benrejeb
Advanced Associate
Monaco