No Automatic Expiration of Holiday Entitlement Due to Missing Holiday Request


With judgments dated 6 November 2018 (docket number: C-619/16; C-684/16), the European Court of Justice (Europäischer Gerichtshof, EuGH) decided that an employee’s entitlement to paid holiday must not automatically expire due to a missing holiday request. Rather, the holiday entitlement should only expire if the employer is capable of approving that the employee voluntarily waived the holiday after being put in the actual position to take holiday in due time. Therefore the employer has the obligation to provide information to employees.



In the first legal proceedings, the plaintiff (C-619/16), who completed his legal preparatory service as an article clerk at the District Court of Berlin, did not take paid annual holiday during the last months of his service. Therefore he requested compensation for the holidays not taken, which the Court rejected. The plaintiff of the second legal proceedings (C-684/16) was employed by Max Planck Society for the Advancement of Science (Max-Planck-Gesellschaft zur Förderung der Wissenschaften, MPG), which asked the plaintiff two months prior to the end of the employment relationship to take his remaining holiday. However, the Society did not require the plaintiff to take holiday at a preset time. Since the plaintiff took only two days holiday, he requested for remuneration of the remaining holiday. The Society rejected his remuneration request.



At the competent courts’ request for interpretation of Union law, the European Court declared that it was violating Union law if an employee’s entitlement to paid holiday expired automatically in cases where an employee’s holiday request is missing. Being the weaker party and therefore worth protecting, employees might be frightened to explicitly assert their rights towards their employers in general, since their demand might result in measures unfavourable for their employment relationships.


Practice Note

In the opinion of the European Court, however, the expiration of the holiday and compensation entitlement cannot be challenged if the employer is able to approve that the employee was put in an actual position of taking holiday in due time, but nevertheless waived the holiday. Furthermore it was the only possible interpretation to be combined with the basic idea of paid holiday, namely the creation of an actual period of leave to guarantee an effective protection of the employee’s safety and health. Additionally the stated principles are applicable to public as well as private employers.