Case law from the Court of Justice of the European Union in 2009 appeared to decide that, under the EU Working Time Directive, workers should be permitted to carry forward accrued annual leave indefinitely if sickness absence had prevented them from taking it.

A new opinion from the Advocate General of the Court of Justice suggests that the right to carry forward untaken leave may in fact be more limited. The opinion, given in the German reference KHS AG v Schulte, is the latest instalment in the long-running saga of annual leave entitlement and sickness absence. Though the opinion is currently only available in French, the Court’s press release has summarised its conclusions.

According to the press release, the Advocate General concluded that permitting indefinite carry over of annual leave without limitation goes beyond the strict requirements of the Directive. She had regard to the health and safety objective behind annual leave and considered that this was not furthered by the indefinite accrual of rights. She concludes that the Directive permits Member States to legislate for holiday entitlement, and the corresponding right to payment in lieu on termination of employment, to expire after set period. Whilst Member States are free to implement their own time limits, she considers that expiry 18 months after the end of the year in which leave accrues would be an acceptable guideline which should be followed as far as possible when implementing the Directive. Six months would be insufficient.

Though persuasive, the Advocate General’s opinion is not binding on the Court of Justice and we await its final decision with interest.