Constitutional Council Ruling on Paid Annual Leave
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Constitutional Council, CJEU, paid annual leave, Labour Code, Article L. 3141-5, Court of Cassation, September 13, 2023, European Union law, right to health and rest, constitutional norms, sick leave, occupational illness, work-related accident, Directive 2003/88/CE, Charter of Fundamental Rights of the European Union, priority questions of constitutionality, QPC, employment contract, principle of equality, Article 6 Declaration of the Rights of Man and of the Citizen, Article 1 Constitution of 4 October 1958, French law, European law, employee rights, annual leave accrual, illness, non-occupational illness, work-related illness, Court of Justice of the European Union case law, CJEU jurisprudence, labour legislation, constitutional compliance, employment law, worker rights, leave entitlement, health and safety, EU labour law, French labour law, labour rights, constitutional law, European labour law standards
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Abstract
The Constitutional Council's decision on the conformity of French Labour Code provisions with the Constitution regarding paid annual leave during sick leave.
Extract
[...] The applicants, before the Constitutional Council, therefore positioned themselves on the same terrain as that raised by the Court of Justice of the European Union in its judgments of 20 January 2009 and 24 January 2012. Taking the total opposite view of the CJEU, the Constitutional Council however decides that the 5th paragraph of Article L3141-5 of the Labour Code is in conformity with the Constitution: -By relying on the preparatory work of the 1946 law at the origin of the provisions of the Labour Code, the Council first considered that the methods adopted by the law are not manifestly inappropriate to the objective aimed at, namely to guarantee the protection of the health, rest and leisure of employees on sick leave, who are partially deprived of the acquisition of their paid leave. [...]
[...] This is why, in its judgments of 13 September 2023, the Court of Cassation carried out a conventionality control through Article 31 of the Charter of Fundamental Rights in order to affirm that the provisions of national law should be set aside. Due to this conventionality control, the decision of the Constitutional Council necessarily had a limited scope. The Constitutional Council could not seize the non-transposition of Directive 2003/88/CE nor operate a constitutional control of the conventionality control carried out by the Court of Cassation. [...]
[...] 3141-5, 5°, of the Labour Code constitutes a violation of the principle of equality guaranteed by Article 6 of the Declaration of the Rights of Man and of the Citizen of 1789 and Article 1 of the Constitution of 4 October 1958, in that it establishes a difference in treatment between employees according to the cause of the sick leave (work-related accident/occupational illness or non-occupational). The question at issue was therefore to know if Articles L. 3141-3 and L. 3141-5 of the Labour Code were in conformity with the Constitution, and more precisely in conformity with the right to health and rest, as well as the principle of equality? The Constitutional Council judged the articles to be in conformity with the Constitution. [...]
[...] To recall, the Court of Cassation has set aside the French provisions in favor of the general European norms and principles recalled by the Court of Justice of the European Union (CJEU), which now allows any employee to acquire paid annual leave during periods of suspension of the employment contract due to illness, without any time limit. These judgments have shaken up French labor law, as they have enabled the full recognition of the right to rest for employees. Thus, the following disappear : - the distinction between simple illness and occupational illness: all employees on sick leave, regardless of the origin of the latter, must continue to acquire paid annual leave; - the limitation of one year provided for in Article L. [...]
[...] This still testifies to a difference in treatment that may be contested in the future before the Constitutional Council. The Council of State had the opportunity to issue an opinion on the draft law that had been submitted to it by the government on 11 March 2024. It had considered that This difference in treatment did not disregard the constitutional principle of equality, since it is in line with Directive 2003/88, as interpreted by the case law of the CJEU. [...]
