In relation to a recent case (C-218/2022), the Advocate General of the European Court of Justice, in the conclusions submitted on June 8, 2023, established that national legislation that encourages the use of paid annual leave instead of monetization is permissible.
The case examined by the European Court of Justice
- that he had accrued a total of 79 days of paid unused annual leave between 2013 and 2016,
- therefore, he requested their monetization.
The employer, in its defense:
- clarified that the worker was aware of the obligation to take the annual paid leave and the impossibility of monetizing it,
- invoked the provisions of Article 5 of Decree Law no. 95/2012, according to which public employees’ annual leave must be taken, and their non-use cannot result in the payment of substitute financial benefits.
The preliminary questions raised by the referring court
- allowed the monetization of leave only when it had not been taken for reasons beyond the worker’s control,
- but at the same time stated that the worker could be deprived of receiving substitute financial benefits if the termination of the employment relationship, as in the case of resignations, was foreseeable.
- whether European legislation should be interpreted as precluding national legislation that prohibits the monetization of leave in the case of voluntary resignations,
- whether, in the event of an affirmative answer to the first question, the public employee must demonstrate the impossibility of taking leave during the employment relationship.
The ruling of the European Court of Justice
- the prohibition on requesting monetization of leave does not concern the right to annual leave accrued in the year of termination of the employment relationship,
- the worker had the opportunity to take paid annual leave in previous reference years, the employer encouraged the worker to take leave,
- the employer informed the worker that unused paid annual leave cannot be accumulated and replaced by a request for monetization at the end of the employment relationship.
- that the worker was given the opportunity to take leave,
- that the worker was informed of the impossibility of monetizing leave at the end of the employment relationship, and despite that, still decided not to take leave. Otherwise, if the employer fails to prove the above, the worker must be compensated.