Der EuGH und das deutsche Urlaubsrecht

With two current ones Decisions from November 6th, 2018 he brings European Court a breath of fresh air into German holiday law.
In the first legal dispute (C-619/16) that the ECJ had to decide, a legal trainee who had not taken any vacation at the end of his legal preparatory service applied for financial compensation for the vacation he had not taken. The state of Berlin rejected the trainee lawyer's application, whereupon he filed a lawsuit with the OVG Berlin-Brandenburg.
In the second legal dispute (C-684/16), the employer asked the employee to take his remaining vacation approximately two months before the termination of the employment relationship. The employee then only took two days of vacation and requested financial compensation for the remaining vacation days that he was still entitled to. The employer rejected the employer's application, whereupon the employer turned to the labor courts.
The Federal Labor Court (BAG) and the Higher Administrative Court of Berlin-Brandenburg asked the ECJ in the context of requests for a preliminary ruling whether European law conflicts with a national regulation that provides for the loss of unused annual leave and holiday compensation if the employee has not applied for the leave.
Contrary to the BAG's previous case law, the Luxembourg judges rejected an automatic loss and decided, "that Union law does not allow a worker to automatically lose the days of leave to which he is entitled under Union law and, accordingly, his right to financial compensation for the leave not taken, simply because he did not request leave before the end of the employment relationship (or during the reference period)..“
However, according to the case law of the ECJ, a loss of vacation entitlement or a loss of financial compensation for paid annual vacation not taken is possible if the employee was actually put in a position by the employer to take the vacation days in question in a timely manner. However, it is the employer's responsibility to prove that the employee chose not to take paid annual leave of his own free will and with full knowledge of the facts.

Implications for practice:
According to the principle of interpretation in accordance with EU law, the German courts are required to implement the requirements from Luxembourg. While under the previous German legal situation, employees had to apply for vacation and generally take it in the current calendar year, at the latest by March 31 of the following year (Section 7 Para. 3 BurlG), the practice will change as a result of the current ruling by the European Court of Justice. Therefore, there is already a need for (organizational) action for every employer:
On the one hand, the ECJ ruling will require employers to take organizational measures and, on the other hand, the new legal situation will also be reflected in the content of employment contracts.
In particular, every employer should - especially with a view to the upcoming New Year - get an overview of the vacation status of their employees and point out to those employees who still have vacation days open that the vacation should be taken and inform them that the vacation that has not been taken Vacation will expire at the end of the transfer period or employment relationship. It is currently unclear which organizational measures employers should take. For evidentiary purposes, a formal request from the employees is advisable.
In addition to these additional information measures, it is therefore even more advisable to differentiate in employment contracts between the statutory minimum vacation (Section 3 BurlG) and additional contractual vacation granted. It is recognized that the latter may be treated differently to statutory minimum leave and therefore a loss may be contractually agreed.