ECJ strengthens vacation entitlement – What employers must now do

Vacation entitlements are only subject to the statute of limitations if the employee has been informed of his or her vacation entitlement. Even if the employee continues to be incapacitated for work, the following applies: If the employer has not informed the employee of the possible expiry of vacation, the vacation entitlement cannot expire or become time-barred. This was confirmed by the European Court of Justice in its latest judgment of 22.09.2022 (Ref.: C 120/21; C 518/20; C 727/20) Court.

It is therefore even more urgently recommended than before to explicitly point out in good time in the vacation year the existing remaining vacation and the legal consequence of forfeiture at the end of the year. This should be done in a verifiable form, e.g. in writing against acknowledgement of receipt or by e-mail with concrete confirmation of receipt (i.e. confirmation of receipt of the e-mail). If you as an employer have not yet fulfilled this obligation to cooperate in the current year, we recommend that you do so quickly now. Employees must then actually be enabled by the employer to take the leave.

Already in 2018, the European Court of Justice has ruled that there is no longer an automatic expiry of vacation at the end of the year (ECJ judgment of 06.11.2018 – C-619/16; C-684/16). The entitlement to the statutory minimum leave expires at the end of the calendar year or a permitted carryover period only if the employer has previously enabled the employee to exercise his or her leave entitlement and the employee has nevertheless not taken the leave of his or her own free will. In order to realize the leave entitlement, it is necessary that the employer requests the employee – formally if necessary – to take his leave and informs him clearly and in good time that the leave will expire at the end of the calendar year or carryover period if he does not request it (BAG judgment of February 19, 2019, 9 AZR 541/15).

Other arrangements can be made for contractual additional leave, but these must be clear. In particular, it must be clear that the contractual additional leave is to be treated differently from the statutory minimum leave (BAG ruling dated February 19, 2019, 9 AZR 321/16).

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