Sick leave and acquisition of paid leave : the French state condemned for non-compliance with European law

Versailles Administrative Court of Appeal, 17 July 2023, n°22VE00442

• As a reminder, under French law, non-work-related sick leave does not entitle the employee to paid vacation. While certain absences, such as work-related sick leave, are treated as actual working time under Article L.3141-5 of the French Labor Code, for the purposes of acquiring paid leave, this is not the case for non-work-related sick leave.

• The Court of Justice of the European Union has already punished the French State for the non-compliance of our national law with Article 7§1 of European Directive 2003/88/EC, which guarantees all employees a minimum of four weeks’ paid annual leave, without distinction between employees on sick leave and employees who have actually worked during the period in question and, above all, without distinction according to the origin of the work stoppage (CJEU, 24 Jan. 2012, n°C-282-10).

• However, because the European directive has no horizontal effect, French employees cannot rely on it against a private employer.

In the absence of transposition, French law remains fully applicable to them, and they cannot reproach their employer for applying the French Labour Code.

Consequently, the only option left to obtain compensation for the damage suffered is to hold the French State liable for failure to transpose.

• This is precisely the action brought by three trade unions in this case, who have applied to the administrative court for an order that the French State pay them the sum of 50,000 euros each as compensation for the non-material damage suffered by the employees whose interests they were defending.

In a judgement of the 17 July 2023, the Versailles Administrative Court of Appeal partially upheld their claim and ruled that French law did not comply with European law.

The Court pointed out that :

• Article 7§1 of Directive 2003/88/EC prevents Member States from unilaterally limiting the entitlement to paid annual leave conferred on each worker by applying a condition that would have the effect of excluding certain workers from the benefit of that entitlement.

• This is the case with Article L.3141-5 of the Labour Code, which distinguishes between suspension periods of the employment contract according to their origin.

• Thus, the restrictions introduced by this article are incompatible with Article 7§1 of the European Directive.

The Court concluded that :

• Article 7§1 of Directive n°2003/88/EC had not been fully transposed by the legislative provisions of the Labour Code, which left or allowed to remain incompatible provisions.

• Such a delay in transposition is likely to render the State liable for compensation for the non-material damage suffered as a result by the employees represented by the applicant trade unions.

It therefore ordered the State to compensate each trade union organisation up to 10,000 euros for the damage caused to the collective interest of the profession it represents.

In practice :

• This decision is insufficient to change the state of applicable French law and company practices. Consequently, it is still appropriate to consider that non-work-related sick leave do not give rise to the acquisition of days of paid leave.

• Nevertheless, this decision might prompt the government to transpose the directive and amend Article L.3141-5 of the Labour Code. This is in fact what the Cour de cassation is advocating since 2013, in its annual reports.

To be continued…