European Commission - Press release
Working time: Commission requests Belgium to end compulsory postponement of workers' annual leave
Brussels, 24 November 2011 – The European Commission has requested Belgium to end rules which prevent some workers from taking any annual holidays for over a year. Under Belgian law, all workers are entitled to the minimum holiday leave required under the Working Time Directive (four weeks in total for each year worked), however some workers can face very long delays (up to 12 months) before they can actually take even one day of their holidays.
For instance, a worker who starts a new job on 1 January 2011 and works throughout 2011 is entitled to four weeks' annual leave. However, certain of these workers are not entitled under national law to actually take a single day of that leave until the following calendar year (after 1 January 2012).
Similarly, a worker starting a new job on 1 September 2010 is entitled, by 31 December 2010, to one week's leave, and if he/she works continuously throughout 2011 they are entitled to another four weeks' leave. However, in this situation certain workers are not entitled under national law to take any leave during 2010 and during 2011 they are only entitled to take one single week's holidays. It is only in 2012 that they are entitled actually to take the full four weeks' annual holidays.
These restrictions under national law apply particularly when workers are in transition between different employment situations – for example, moving from unemployment into employment, from public sector to private sector employment, from college via voluntary service into a first job, or moving between fixed-term contracts. (Under a special exception, school or college students who move into a first job within the calendar year of their graduation are exempt from this problem.)
The Commission considers this situation contrary to EU working time rules, which expects that a worker can take minimum annual holiday entitlements within a reasonable period to ensure effective rest and recuperation.
Based on a number of complaints from EU citizens, the Commission’s request takes the form of a reasoned opinion. Belgium now has two months to inform the Commission of measures they have taken to bring their legislation into line with EU law. Otherwise, the Commission may decide to refer Belgium to the EU's Court of Justice.
Belgian national law provides for more favourable financial treatment than the Directive requires: double payment during annual leave (the 'pécule de vacances' /' vakantiegeld' . However, since the Directive's objective is not concerned with pay but rather with ensuring effective recuperation to protect short-term and long-term health and safety, the Commission considers that the existence of a 'p é cule de vacances / vakantiegeld' does not justify imposing such long delays on certain workers.
Under the Working Time Directive , all workers are entitled on health and safety grounds to a minimum four weeks' annual paid leave for each year worked. A worker who has only worked for part of the year is entitled to a proportionate part of the four weeks' annual leave. Self-employed persons are outside the scope of the Directive.
The Directive allows Member States to regulate the practical details of annual leave, but not to impose conditions which would mean that workers could not benefit effectively from minimum annual holidays. The Directive does allow annual leave to be postponed into the following year if the worker is unable, for reasons such as illness, to take it during the calendar year concerned.
The Directive requires that minimum annual leave is paid at the worker's normal rate of pay, to ensure that financial pressures do not prevent workers from actually taking any holidays. It does not require extra payments during annual leave, though Member States are always free to introduce or maintain more favourable rules for workers than the Directive requires.
Working Time Directive
For more information on infringement procedures, see MEMO/11/824
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Cristina Arigho (+32 2 298 53 99)
Maria Javorova (+32 2 299 89 03)