The EU Charter of Fundamental Rights and Working Time: Bauer, Kreuziger and Shimizu before the Grand Chamber

Michael Ford

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The few words “paid annual leave” in Article 7 of the working time directive have given rise to many difficult legal issues.1 The original directive was enacted as a health and safety measure under then Article 118a of the EU Treaty (now Article 153 of the Treaty on the Functioning on the European Union).2 From an early stage, however, the right to paid annual leave was conceived as a fundamental social right. The process began with the opinion of Advocate General (AG) Tizzano in bectu, who attributed the source of Article 7 to various human rights instruments, including the Universal Declaration of Human Rights, the European Social Charter, and the UN Charter of 1966 on economic, social, and cultural rights.3 While the Court of Justice of the European Union (cjeu) has been more restrained in its sources, it has often had regard to the principles of the ilo, which are expressly referred to in the recitals to the Directive. For example, ilo Convention no. 132, Holidays with Pay (Revised), has been influential in relation to matters such as the holiday entitlement of sick workers4 and the requirement that ‘normal remuneration’ is maintained in respect of annual leave.5

Three Grand Chamber judgments all delivered on the same day now add to the burgeoning cjeu case law on the meaning and effect of this fundamental social right: Max-Planck v. Shimizu,6 Kreuziger v. Land Berlin,7 and Stadt Wuppertal v. Bauer.8 Quite apart from the important substantive issues at stake, the judgments in Shimizu and Bauer are relevant to a wider issue. Foremost among the human rights instruments referred to by AG Tizzano in bectu was Article 31(2) of the EU Charter of Fundamental Rights (the Charter), which gives “every worker” the right, among other matters, to limits on maximum working hours, to daily and weekly rest periods and to an annual period of paid annual leave. However, in subsequent cases on working time, the Charter figured only as a passing reference in the cjeu’s mantra that the right to paid annual leave was “expressly laid down in Article 31(2) of the Charter.”9 When, in Dominguez,AG Trstenjak opined at considerable length that the right to paid annual leave in Article 31 enshrined a fundamental right but lacked horizontal effect between private individuals, the Grand Chamber ignored the issue altogether, referring instead to the conventional tools of vertical direct effect and harmonious interpretation of the domestic law.10 This was taken as a sign of the Charter’s impotence.11

That has all now changed as a result of Shimizu and Bauer, in which the Grand Chamber finally addressed the interrelationship between the directive, international human rights instruments and Article 31 of the Charter. Signalling a new direction in the enforcement of social rights in the Charter, the judgments are relevant to other social provisions in the “solidarity” Chapter of the Charter and highlight a new direction in the means of giving effect to EU social law.
Original languageEnglish
Pages (from-to)242-246
Number of pages5
JournalInternational Labor Rights Case Law
Issue number2
Publication statusPublished - 29 Aug 2019


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