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No doubt about EU law

September 2011 - EU & Competition. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

More articles by this firm.

In a case about entitlement to replacement holiday in the event of sickness, the Danish High Court did not believe that EU law was unclear. The Court therefore denied an application for a preliminary reference to the EU Court.
Under Danish law, employees are not entitled to replacement holiday if they fall ill during their holiday. This principle was called into question in September 2009 when the EU Court ruled in a case about a Spanish employee who had fallen ill when his scheduled holiday began. Click here for our commentary on the EU Court’s ruling.
With the EU Court’s ruling, doubt was cast on whether the Danish holiday rules were compatible with EU law. Therefore, a task force was set up by the Danish Ministry of Employment to look into the matter. Click here for our commentary on the report of the task force.
Holiday was ruined
The Danish Minister for Employment has announced that the Ministry is awaiting the outcome of a case pending before the Danish High Court before any new rules will be introduced.
The case in question concerns a tool maker who took 3 weeks' holiday in July 2009. Three days into his holiday he was injured and did not return to full health until his holiday was over. When he was given notice of termination shortly after his return, he claimed compensation for the 13 days of holiday he had lost due to the injury.
His employer refused the tool maker’s claim because his holiday had begun on a Monday. Under Danish law, this means that the tool maker bore the risk of any sickness which occurred during the holiday.
In court, the employer argued that current law is still unclear, even with the EU Court’s ruling. The employer therefore requested the High Court to ask the EU Court for guidance. The tool maker and his trade union, however, did not believe that a preliminary reference was necessary – in their view, it is clear from the EU Court’s ruling from 2009 that Danish employees are entitled to replacement holiday, also for any sickness which occurs during their holiday.
The High Court held that the issue of entitlement to replacement holiday has already been settled with the EU Court’s ruling from 2009. Accordingly, there was no reason to ask for the EU Court's guidance in the matter.
Norrbom Vinding notes:
  • that the Danish ruling shows that the High Court was not in doubt about how to interpret EU law; but

  • that the ruling only concerns the issue of whether a preliminary reference to the EU Court should be made.
It is not yet known when the High Court will hand down its judgment as to whether the tool maker is entitled to replacement holiday for the 13 days of holiday he lost.
Norrbom Vinding will of course report on new developments in the matter.
The above does not constitute legal advice and should not be relied upon as such

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