Granting vacation even without an application from the employee? The European Court of Justice decides!

One might think that the procedure for granting vacation has been clarified. Vacation is requested by the employee and approved by the employer. At least that is what the usual practice in employment relationships in this republic looks like.

But what if the employee does not assert the entitlement to vacation leave or only partially asserts it, leaves the employment relationship at the end of the year and demands compensation for the outstanding entitlement at the end of the employment relationship?
The Federal Labor Court (BAG) now had to decide such a case. As can be seen from the Federal Labor Court's press release of December 13, 2016, the plaintiff in the case was employed as a scientist on a temporary basis until December 31, 2013. In a letter dated October 23, 2013, the employer asked him to take his vacation before the end of the employment relationship. The plaintiff took one day of vacation on November 15th and December 2nd, 2013 and, in a letter dated December 23rd, 2013, unsuccessfully requested compensation from the employer for 51 days of vacation not taken.
The legal question that arises from this is whether the employer has to grant the vacation on its own initiative even without the employee's request and thus essentially force the vacation on the employee. The employer is actually not obliged to do this under national law (regulated in the Federal Holiday Act). Rather, according to Section 7 Paragraph 3 Sentence 1 BUrlG, the employee's vacation not taken during the vacation year generally expires at the end of the vacation year, unless there are special operational or personal reasons for the transfer. Such a reason for transfer could, for example, be a long-term illness of the employee. However, there were no such reasons here.
If only national law had been the relevant basis for the decision, the case would have clearly been in favor of the employer and the employee's remaining vacation would not have had to be compensated because the vacation expired at the end of 2013. However, the Federal Labor Court now raised the question of whether European law provisions require the employer to grant vacation on its own initiative, even without the employee's request. This was at least hinted at by the ECJ in several decisions.
The BAG decided to have this question finally clarified by the European Court of Justice (ECJ) and to submit the legal question to the ECJ for decision in a so-called referral procedure. We will only know more details once the European Court of Justice has made and justified its decision. The appeal proceedings pending before the BAG have been suspended until the ECJ has decided on the request for a preliminary ruling.
As soon as the ECJ has made a decision, we will of course inform you about it in our blog.