Facts Decision

In a January 19 2017 judgment the Supreme Court considered whether the Ministry of Employment was liable for damages regarding replacement holiday.

Facts

An employee became ill during his holiday in Summer 2010; however, the right to replacement holiday in the event of illness during holiday had not yet been implemented in Danish law at the time. Pursuant to the then-current Holiday Act, the employee was entitled to replacement holiday only in the event of illness occurring before the holiday commenced.

However, in 2009 the European Court of Justice (ECJ) issued a judgment (Pareda v Madrid Movilidad SA, C-277/08) which expressed doubts about the Holiday Act's compatibility with the EU Working Time Directive, and considered whether the Danish authorities had departed from EU law by not amending the act.

The Eastern High Court found that, when the ECJ issues a judgment, individual member states must be granted a reasonable timeframe to consider whether their national legislation complies with the judgment. Following Pareda, the Ministries of Employment, Justice and Finance considered the scope of the judgment. As such, the court found that the implementation process had not taken so long as to suggest that the then-current legal status would have continued, despite the ECJ's judgment. Consequently, the court ruled in favour of the Ministry of Employment.

Decision

The Supreme Court found that a simple amendment to the Holiday Act should be made in order for it to comply with EU law; this should have been implemented by January 1 2011, but the act was not amended until the middle of 2012. Consequently, the court found that the Danish authorities had set aside EU law and were liable for damages. However, as the employee's holiday had taken place in 2010 – before the Holiday Act should have been amended – the employee was not entitled to compensation. Accordingly, the Supreme Court affirmed the judgment of the Eastern High Court.

For further information on this topic please contact Henriette Stakemann at Plesner by telephone (+45 33 12 11 33) or email (hst@plesner.com). The Plesner website can be accessed at www.plesner.com.

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