Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

ĆAPETA

delivered on 23 March 2023(1)

Joined Cases C‑271/22 to C‑275/22

XT (C‑271/22)

KH (C‑272/22)

BX (C‑273/22)

FH (C‑274/22)

NW (C‑275/22)

v

Keolis Agen SARL,

joined party:

Syndicat national des transports urbains SNTU-CFDT

(Request for a preliminary ruling from the Conseil de Prud’hommes d’Agen (Labour Tribunal, Agen, France))

(Reference for a preliminary ruling – Social Policy – Organisation of working time – Charter of Fundamental Rights of the European Union – Article 31(2) – Directive 2003/88/EC – Article 7 – Whether it may be relied upon in a dispute between individuals – Right to paid annual leave – Carry-over of paid annual leave due to long-term illness – National case-law allowing carry-over of leave without any time limit)

I.      Introduction

1.        Can a worker accumulate days of unused paid annual leave without any time limit, or does Article 7(1) of the Working Time Directive (2) require Member States to provide for limited carry-over periods? If so, what is a reasonable length for such a period?

2.        Those are the main issues raised by the referring court, the Conseil des Prud’hommes d’Agen (Labour Tribunal, Agen, France). In addition, that court asks for clarification of the direct effect of the Working Time Directive in horizontal situations, given that the defendant in the main proceedings is a private operator running a public transport network.

3.        The present case arises out of multiple references for a preliminary ruling made in the context of five disputes before the referring court. All of those disputes concern workers currently or formerly employed by Keolis Agen SARL, the company that manages the bus transport network for the urban area of Agen (France). Those workers asked their employer to recognise their entitlements to paid annual leave which they were unable to use during the reference year in which those entitlements arose, and brought disputes before the referring court when the employer rejected those requests. A trade union, the Syndicat national des transports urbains SNTU-CFDT, is intervening in those proceedings in support of the workers.

II.    The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

4.        Keolis Agen is a company governed by private law that provides a public urban transport service of passengers by bus. The five applicants suing that company before the referring court are, or were, its workers.

5.        Over the course of their respective employment contracts, all of the applicants were subject to extended periods of sick leave. (3) After their return to work or after termination of their employment contracts due to incapacity to continue their work, the applicants requested that Keolis Agen either allow them to use the days of annual leave which they were deprived of during their periods of sickness or, when the employment contracts were terminated, to pay them allowances in lieu.

6.        Keolis Agen refused those requests. On the basis of the French Labour Code, (4) it considered that the applicants were not entitled to annual leave where absence from work lasted for more than a year due to an illness unrelated to work. In its view, that national law could not be set aside even if it were contrary to Article 7 of the Working Time Directive, as that directive does not create obligations for private parties.

7.        Keolis Agen claims that due to the liberalisation of transport services in France, (5) the Working Time Directive cannot be relied on against it. Even if it is in the business of providing public transport,the ability of workers to rely directly on the Working Time Directive would place it in a worse competitive position in comparison to other private companies which remain subject to French law and not to that directive.

8.        The applicants consider that they can rely on Article 7(1) of the Working Time Directive and Article 31(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’) against their employer and that those EU law provisions provide for their entitlement to annual leave even during periods of prolonged sickness. French law that provides to the contrary should, therefore, be set aside.

9.        The dispute about direct effect of the Working Time Directive in the case at hand led to the first question of the referring court.

10.      The second and third questions become relevant if the applicants are entitled to paid annual leave in respect of the reference years in which they were on sick leave. Those questions arise because, according to the referring court, French law does not regulate carry-over periods for unused annual leave; it does not specify whether such a right exists or not. It follows from the orders for reference and the observations of the parties that the two highest French courts developed conflicting positions on that issue. On the one hand, the case-law of the Cour de cassation (Court of Cassation, France) (6) suggests that no limit for the carry-over of unused entitlements to annual leave exists under French law. On the other hand, the Conseil d’État (Council of State, France) seems to consider that the right to unused annual leave expires 15 months after the end of the reference year in which the entitlement to that paid annual leave arose. (7) The latter reasoning seems to follow from the case-law of the Court of Justice in which it considered a 15-month period not to be contrary to the Working Time Directive. (8)

11.      In the main proceedings, the referring court asks whether EU law contains such a requirement to provide for a carry-over period. If that is so, it also wonders what constitutes a ‘reasonable period,’ after which the entitlement to annual leave may lapse. In that respect, it explains that the claims for unused annual leave in the case at hand were all filed less than 15 months after the end of the reference period during which those entitlements arose.

12.      Keolis Agen requested the referring court to refer the disputed questions to the Court of Justice. The applicants deemed that reference unnecessary and opposed that request.

13.      In those circumstances, the Conseil de prud’hommes d’Agen (Labour Tribunal, Agen) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling (the questions are identical in all five joined cases):

‘(1)      Must Article 7(1) of [the Working Time Directive] be interpreted as being directly applicable in relations between a private transport operator, with a single public service delegation, and its workers, in the light, in particular, of the liberalisation of the rail passenger transport sector?

(2)      What is a reasonable carry-over period in respect of the acquired entitlement to four weeks’ paid annual leave within the meaning of Article 7(1) of [the Working Time Directive], in so far as the time during which annual leave may be accrued is one year?

(3)      Is the application of an unlimited carry-over period in the absence of a provision of national law, a regulation or convention governing that period contrary to Article 7(1) of [the Working Time Directive]?’

14.      Written observations were submitted to the Court by the applicants in the main proceedings and the Syndicat national des transports urbains SNTU-CFDT (together, ‘the applicants’), Keolis Agen, the French Government and the European Commission. No hearing was held.

III. Analysis

15.      In recent years, there has been an increase in the number of cases related to paid annual leave coming before the Court of Justice. (9)

16.      The present reference offers the Court another opportunity to contribute to a better understanding of the Working Time Directive, and to build upon its existing case-law on the matter.

17.      The referred questions can be divided into two parts: the first question relating to the well-established concept of the direct effect of directives (A), and questions two and three, which I shall address jointly, concerning the carry-over periods in respect of unused paid annual leave (B).

A.      On the direct effect of the Working Time Directive in horizontal situations

18.      It follows from the orders for reference that the French Labour Code prevents a worker on sick leave for more than a year, which is unrelated to work, from acquiring an entitlement to annual leave. (10)

19.      That national law would stand in contrast to Article 7 of the Working Time Directive, as interpreted by the Court. This clearly would follow from the judgment in Dominguez. (11)

20.      In that case, which arose from the application of the same French law, the Court, building on its earlier case-law, (12) ruled that the Working Time Directive does not allow for the entitlement to paid annual leave to be made subject to the condition that the worker has actually worked. No worker, whether they are on sick leave during the reference period as a result of an accident at the place of work or elsewhere, or as the result of sickness of whatever nature or origin, can be denied the right to at least four weeks of paid annual leave. (13)

21.      In short, the entitlement to paid annual leave results from the employment relationship and cannot be made subject to conditions. Member States may impose conditions for exercising the right to paid annual leave, but cannot make its very existence subject to conditions, including the requirement that the worker has actually worked. (14)

22.      It is, therefore, clear from previous case-law that, directly on the basis of Article 7 of the Working Time Directive, the applicants acquired entitlements to paid annual leave during the years in which they were on sick leave.

23.      The defendant does not deny or try to change that interpretation of the Working Time Directive. However, it argues that that directive cannot be applied to the case at hand to create an obligation for it, because the defendant is a company governed by private law.

24.      Much ink was spilled in the parties’ observations over whether or not the defendant is an ‘emanation of the State’ (15) in the sense of the case-law on the vertical direct effect of directives, (16) and accordingly whether the situation in the main proceedings is to be qualified as horizontal (in the defendant’s view) or vertical (in the applicants’ view).

25.      In the circumstances of the present case, that qualification is, however, irrelevant. That is so for the following reasons.

26.      In Dominguez the Court indeed reiterated its position according to which directives cannot of themselves create obligations for individuals. (17) However, another line of case-law holds that general principles of law, today codified in the Charter, may themselves have direct effect, including in horizontal situations. When a general principle with direct effect is merely expressed in, and not established by the directive, the parties draw their rights directly from that principle. (18)

27.      The Court has repeated on numerous occasions that the entitlement of every worker to paid annual leave ‘must be regarded as a particularly important principle of European Union social law from which there can be no derogations’. (19) That right is now also enshrined in Article 31(2) of the Charter.

28.      In Max-Planck-Gesellschaft, the Court recognised that Article 31(2) of the Charter is sufficient in itself to confer directly on workers a right to paid annual leave on which they may rely in disputes between them and their employers, be they private or public entities. (20) In other words, the Court considered that Article 31(2) of the Charter itself has direct effect, including in horizontal situations.

29.      The right to paid annual leave is thus not created, but only expressed, by Article 7 of the Working Time Directive. It is, accordingly, irrelevant that directives are denied horizontal direct effect, as the applicants can rely directly on Article 31(2) of the Charter. (21) National courts are consequently under an obligation to set aside any contrary rule of national law when deciding a case which falls within the scope of EU law.

30.      I therefore propose that the Court reply to the referring court’s first question that Article 31(2) of the Charter, as given concrete expression to in Article 7 of the Working Time Directive, entails the right to paid annual leave for every worker on which they may rely in disputes with their current or former employers, whether they are private or public entities.

B.      On carry-over periods

31.      The referring court takes the view that, taking into consideration the judgment of the Cour de cassation (Court of Cassation), (22) French law does not specify the length of the period for carrying over paid annual leave. Thus, it considers that days of unused annual leave can be accumulated indefinitely. The French Government disputes such an understanding of the consequences of the case-law of the Cour de cassation (Court of Cassation). That government considers that the general provision imposing a three-year limitation period for introducing labour-related claims (23) also results in the limitation of carry-over periods. At the same time, following the Court’s judgment in KHS, the Conseil d’État (Council of State) considers that the limit on carry-over periods can be set at 15 months. (24)

32.      In that regard, it should be noted that it is not for the Court, in the context of a reference for a preliminary ruling, to resolve differences in the interpretation of national law or to decide whether the interpretation of those provisions given by the national courts is correct. In line with the division of jurisdiction between the Court of Justice and the national courts, the Court must take account of the factual and legislative context in which the questions put to it are set, as described in the order for reference. (25)

33.      The referring court decided to initiate a preliminary ruling procedure in a situation where French law does not impose any temporal limitation leading to the expiry of the rights to annual leave. The referring court is not sure whether that national law satisfies the requirements of the Working Time Directive.

34.      Keolis Agen is of the opinion that the possibility to accumulate annual leave and use it later does not fulfil the purpose of annual leave. It recalls that the Court considered that annual leave fulfils a double purpose: it enables rest from work and, at the same time, allows for the enjoyment of a period of relaxation and leisure. (26) It cites the judgment in KHS, in which the Court considered that beyond a certain temporal limit, annual leave ceases to have its positive effect for the worker as a rest period and is merely a period of relaxation and leisure. (27)

35.      In that light, by its second and third questions, the referring court seeks essentially to ascertain whether Article 7(1) of the Working Time Directive must be interpreted as precluding national law which allows for unlimited carry-over periods in respect of unused paid annual leave. If, by virtue of EU law, national law is to provide for a carry-over period, the referring court wonders after how long it is reasonable to allow the entitlement to annual leave to lapse.

1.      The EU legislature did not intend to regulate carry-over periods

36.      To answer the question whether EU law requires that entitlements to annual leave be time-barred by the introduction of reasonable carry-over periods, I will start by positioning the Working Time Directive within the system of the Treaties.

37.      That directive was adopted on the basis of Article 153(2) TFEU (Article 137(2) EC at the time of adoption), under the Treaty title devoted to social policy. That provision empowers the European Parliament and the Council to adopt measures which support and complement Member State activities in the field of social policy. Amongst the various fields listed in Article 153(1) TFEU (previously Article 137(1) EC), lies the protection of workers’ health and safety. The Working Time Directive refers indeed to such concerns in its preamble. (28)

38.      By virtue of Article 4(2)(b) TFEU, social policy is one of the areas of shared competence. Even if Article 153 TFEU allows the European Union to act in order to ‘support and complement’ Member States’ social policies, it does not, in my view, exclude making certain regulatory choices at the EU level and thus harmonising national laws. (29) However, legislation at EU level must be justified in the light of the principle of subsidiarity.

39.      It does not follow from the wording of the Working Time Directive that the EU legislature intended to regulate carry-over periods. The Court recently confirmed that position in the judgment of 22 September 2022, LB (Limitation period for the right to paid annual leave). (30)

40.      Given that social policy is an area of shared competence and absent EU legislation on the issue of limited carry-over periods, the power to introduce limited carry-over periods or not remains in the hands of the Member States. (31)

2.      Conditions for establishing v conditions for exercising a right to paid annual leave

41.      The preceding conclusion is also consistent with the Court’s findings that Member States are free to regulate the conditions for the exercise of the right to annual leave. Although under the Working Time Directive Member States are prevented from imposing any conditions under which the right to paid annual leave arises, (32) they may impose conditions under which that right is exercised. (33)

42.      As pointed out by Advocate General Trstenjak, (34) the Court regards the matter of the transferability of paid annual leave entitlement as a condition of implementation. Thus, the Working Time Directive leaves the Member States to determine those conditions.

43.      Member States are accordingly free to choose whether to impose limits after which the acquired right to annual leave expires or whether to allow for the accumulation of the unused entitlements until the end of the career of a particular worker.

44.      When a Member State decides to impose limits on carry-over periods, the Working Time Directive imposes only the requirement that the chosen limit does not affect the very existence of the right to paid annual leave, as it flows from the Charter and as is expressed in that directive. (35) The Court’s jurisdiction is limited to determining whether the time limit complies with EU law. The Court cannot therefore set the appropriate time limit.

45.      If national legislation provides no limitation on the carry-over period in respect of unused paid annual leave, it cannot conflict with the Working Time Directive, as that directive does not require the setting of a limit on the carry-over period.

3.      What about the purpose of paid annual leave?

46.      In my view, the consideration that the Working Time Directive does not require the setting of a limit on the carry-over period is not called into question by another argument, originating in an obiter dictum in KHS, according to which an unlimited accumulation of entitlements to paid annual leave would no longer reflect the actual purpose of the right to paid annual leave. (36)

47.      I have previously explained that it was the main argument relied on by the defendant, (37) which sought to persuade the referring court that, in the absence of a time limit on carry-over periods imposed by law, a judge-made rule imposing such a limit is necessary.

48.      The French Government argues in its observations in favour of a carry-over period of reasonable length. (38)

49.      In my view, the obiter dictum from KHS (39) does not state a rule. It merely explains why it is understandable and acceptable that a Member State might decide to impose a limit.

50.      Thus, it would be erroneous in my view to infer from that obiter dictum of the Court any regulatory duty for Member States to enact a maximum period during which the days of unused paid annual leave must be used.

51.      EU law, as it stands today, neither requires Member States to set a time limit on carry-over periods nor does it prohibit them from doing so. It leaves that to Member States’ policy choices.

52.      As to the invitation from Keolis Agen to national judges to enact such a rule, it is not for the Court to interfere with the division of powers established by the constitutional systems of a particular Member State. (40)

53.      It is, however, necessary to repeat that EU law, as it stands, does not impose any duty on Member States, whether this concerns legislative bodies or courts, to provide for a time limit on carry-over periods in respect of unused annual leave.

4.      The Court’s case-law on the length of the carry-over period

54.      Finally, it is necessary to comment on the claims, primarily raised by the defendant, that the appropriate carry-over period is 15 or 18 months after the end of the reference period in which the entitlement to annual leave arose.

55.      Those figures result from the combination of the Court’s findings in the judgment of 3 May 2012, Neidel that a nine-month period is too short, (41) and in KHS, that a 15-month period is acceptable. (42) An 18-month period is mentioned in Article 9 of the International Labour Organisation (ILO) Holidays with Pay Convention (Revised), 1970 (No. 132), which is itself referred to in recital 6 of the Working Time Directive.

56.      When assessing whether the periods set by national laws were appropriate, the Court exercised its jurisdiction to review whether the conditions imposed by national law affected the existence of the right to annual leave. (43) The Court did not establish the appropriate limit, nor can it do so. Thus, when stating in KHS that 15 months seems an acceptable amount of time, the Court did not establish a 15-month rule under EU law. It merely confirmed that such a national rule, the result of a choice at the national level, did not conflict with the very existence of the right to paid annual leave.

57.      Regarding the ILO Holidays with Pay Convention (Revised), 1970 (No. 132), it is true that the Court has occasionally referred to ILO instruments. (44) However, it is important to differentiate between conventions such as those mentioned in the ILO Declaration on Fundamental Principles and Rights at Work, (45) to which all EU Member States are parties, and other instruments, such as the ILO Holidays with Pay Convention, which only 14 EU Member States have ratified. Such a distinction is particularly significant in the context of the present case, as France has not ratified that convention. Even if it had, the 18-month limit set by that convention binds its members as a matter of international or domestic constitutional law, but not as a matter of EU law. (46)

58.      Thus, as the Commission rightly argued, in the current state of EU law, there is no time limit set on possible carry-over periods for unused paid annual leave. That is only logical given that the Working Time Directive does not prevent Member States (47) from allowing unused annual leave to accumulate without any end date.

59.      As a consequence, the Court cannot answer which time limit is a reasonable limit, given that such a choice is left to Member States. The Court may only ascertain whether or not the choice made interferes with the existence of the right to paid annual leave.

60.      I, therefore, propose that, in answer to the second and third questions of the referring court, the Court rule that Article 7(1) of the Working Time Directive does not preclude national law which allows for the accumulation of unused paid annual leave by not setting a time limit on the carry-over period in respect of that leave, nor does it set the length of a reasonable carry-over period.

IV.    Conclusion

61.      In the light of the foregoing, I propose that the Court of Justice answer the questions referred by the Conseil des Prud’hommes d’Agen (Labour Tribunal, Agen, France) as follows:

(1)      Article 31(2) of the Charter of Fundamental Rights of the European Union, as given concrete expression to in Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time,

entails the right to paid annual leave for every worker on which they may rely on in disputes with their current or former employers, whether they are private or public entities.

(2)      Article 7(1) of Directive 2003/88

does not preclude national law which allows for the accumulation of unused paid annual leave by not setting a time limit on the carry-over period in respect of that leave, nor does it set the length of a reasonable carry-over period.

1      Original language: English.

2      Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9, ‘the Working Time Directive’).

3      It follows from the orders for reference that those periods of sick leave were, in Case C‑271/22, from 9/01/2017 to 31/10/2018; in Case C‑272/22, 60 days in 2016, the whole of 2017 and 236 days in 2018; in Case C‑273/22, from 9/01/2017 to 31/10/2018; in Case C‑274/22, 105 days in 2017 and 308 days in 2018; and in Case C‑275/22, 84 days in 2017, 355 days in 2018 and 308 days in 2019.

4      The defendant invokes, in that respect, Article L. 3141-5 of the French Labour Code, which states:

      ‘The following shall be treated as periods of actual work for the purpose of calculating the length of leave: …

      5. Periods of an uninterrupted duration not exceeding one year during which performance of the contract of employment is suspended owing to a work-related accident or occupational disease.’

5      It is apparent from all the information available before the Court that Keolis Agen is a member of the Keolis group, which belongs to the constellation of companies within the SNCF cluster, the incumbent operator of the railway sector in France. If Keolis also seems to be involved in that latter sector, it is common ground that, in the main proceedings, Keolis Agen solely operates buses and offers a bicycle service.

6      Cour de Cassation (Social) (Court of Cassation (Social)), 21 September 2017, No 16-24.022, ECLI:FR:CCASS:2017:SO02067.

7      Conseil d’État (Council of State), Opinion No 406009, 26 April 2017, ECLI:FR:CECHR:2017:406009.20170426.

8      Judgment of 22 November 2011, KHS (C‑214/10, EU:C:2011:761, paragraph 44, ‘KHS’).

9      Judgments of 4 October 2018, Dicu (C‑12/17, EU:C:2018:799, ‘Dicu’); of 6 November 2018, Bauer and Willmeroth (C‑569/16 and C‑570/16, EU:C:2018:871); of 6 November 2018, Kreuziger (C‑619/16, EU:C:2018:872); of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften (C‑684/16, EU:C:2018:874, ‘Max-Planck-Gesellschaft’); of 19 November 2019, TSN and AKT (C‑609/17 and C‑610/17, EU:C:2019:981); and of 8 September 2020, Commission and Council v Carreras Sequeros and Others (C‑119/19 P and C‑126/19 P, EU:C:2020:676).

10      See footnote 4 of the present Opinion.

11      Judgment of 24 January 2012, Dominguez (C‑282/10, EU:C:2012:33, ‘Dominguez’).

12      Judgment of 20 January 2009, Schultz-Hoff and Others (C‑350/06 and C‑520/06, EU:C:2009:18, ‘Schultz-Hoff’, paragraph 41).

13      Dominguez, paragraphs 20, 30, 46 and the case-law cited. See also Dicu, paragraph 29.

14      Judgment of 26 June 2001, BECTU (C‑173/99, EU:C:2001:356, ‘BECTU’, paragraph 55), and Schultz-Hoff, paragraph 47.

15      That expression describing bodies against which directives can be relied on was used only in the judgment of 26 February 1986, Marshall (152/84, EU:C:1986:84, paragraph 12). See, also, judgment of 12 July 1990, Foster and Others (C‑188/89, EU:C:1990:313, paragraphs 20 and 22).

16      The explanation about the bodies against which directives can be relied on was provided in judgments of 10 October 2017, Farrell (C‑413/15, EU:C:2017:745), and of 7 August 2018, Smith (C‑122/17, EU:C:2018:631).

17      Paragraph 37 of that judgment.

18      That case-law started with the judgment of 22 November 2005, Mangold (C‑144/04, EU:C:2005:709), and was later confirmed by other judgments, inter alia, of 19 January 2010, Kücükdeveci (C‑555/07, EU:C:2010:21); of 15 January 2014, Association de médiation sociale (C‑176/12, EU:C:2014:2); and of 17 April 2018, Egenberger (C‑414/16, EU:C:2018:257).

19      BECTU, paragraph 43; judgments of 18 March 2004, Merino Gómez (C‑342/01, EU:C:2004:160, paragraph 29); and of 16 March 2006, Robinson-Steele and Others (C‑131/04 and C‑257/04, EU:C:2006:177, paragraph 48); Schultz-Hoff,, paragraph 22); KHS, paragraph 23; Dominguez, paragraph 16.

20      See, to that effect, Max-Planck-Gesellschaft, paragraphs 74 and 76.

21      That settles the issue in the present case, both from the perspective of direct effect and from a level playing field point of view. However, denial of horizontal direct effect of directives indeed could, in different situations, lead to the discrimination of public companies compared to private companies. That discrimination, as well as other arguments expressed by Advocate General Lenz in Faccini Dori (C‑91/92, EU:C:1994:45), are still valid reasons for reconsidering the doctrine denying directives direct effect in horizontal situations.

22      See footnote 6 to the present Opinion.

23      Article L. 3245-1 and Article D. 3141-7 of the French Labour Code.

24      See point 10 of the present Opinion.

25      See, for example, judgments of 23 April 2009, Angelidaki and Others (C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 48 and the case-law cited), and of 26 October 2017, Argenta Spaarbank (C‑39/16, EU:C:2017:813, paragraph 38).

26      Schultz-Hoff, paragraph 25, KHS, paragraph 31.

27      KHS, paragraph 33.

28      Recitals 1 to 4 of the Working Time Directive. See, also, to that effect, concerning Directive 93/104, which the current Working Time Directive codified, BECTU, paragraphs 37 and 38.

29      The European Union can only regulate in order to achieve objectives stated in Article 151 TFEU, which includes improved living and working conditions. Even if that provision used to be referred to as programmatic, it has been of significant importance in the interpretation of EU labour legislation. On that matter, see Lecomte, F., ‘Embedding Employment Rights in Europe’, Columbia Journal of European Law, Vol. 17(1), 2011, p. 1, at p. 12 et seq. (examining the progressive construction of the case-law on that provision and the narratives surrounding it, departing from a purely programmatic provision to a tool that supplies substantial resources for the purposes of interpretation).

30      C‑120/21, EU:C:2022:718, ‘LB’, paragraph 31.

31      It is worth clarifying that I am not of the opinion that the European Union could not impose on the Member States the obligation to introduce limited carry-over periods, if it can justify such a regulatory need in the light of subsidiarity. I only claim that, under the current version of the Working Time Directive, the European Union has not regulated that issue.

32      Dominguez, paragraph 18.

33      Schultz-Hoff, paragraph 28.

34      Emphasis in the original text of the Opinion of Advocate General Trstenjak in KHS (C‑214/10, EU:C:2011:465, point 43).

35      Schultz-Hoff, paragraph 46 and the case-law cited.

      If the limit imposed on the carry -over period would be such as to limit the very existence of the right to paid annual leave, it would have to be imposed by law, as required by Article 52(1) of the Charter. Given that it is EU law that grants the fundamental right at issue in the main proceedings, it is only EU law, and not national law, that could introduce such a limitation. In any case, it is questionable whether judge-made law, as requested by the defendant from the French courts, could introduce such a limitation. See, to that effect, judgments of 5 September 2012, Parliament v Council (C‑355/10, EU:C:2012:516, paragraph 77); of 10 September 2015, Parliament v Council (C‑363/14, EU:C:2015:579, paragraph 53); and of 26 July 2017, Czech Republic v Commission (C‑696/15 P, EU:C:2017:595, paragraph 78).

36      KHS, paragraph 30; judgments of 29 November 2017, King (C‑214/16, EU:C:2017:914, paragraph 54); and of 22 September 2022, Fraport and St. Vincenz-Krankenhaus (C‑518/20 and C‑727/20, EU:C:2022:707, paragraph 34).

37      See point 34 of the present Opinion.

38      The French Government mentions in its observations that French law provides for a three-year general limitation period for labour disputes. The Court has not, in principle, opposed the idea that limitation periods can lead to the same result as the imposition of limited carry-over periods. In that respect, see LB, paragraph 40.

39      See references in footnote 36 of the present Opinion.

40      I will only observe that it seems that the Conseil d’État (Council of State) considers that a rule on the length of the carry-over period can, in France, be established by the judicial branch. The Cour de cassation (Court of Cassation), by contrast, considers that such a regulatory decision belongs to the legislature, and has been inviting the national legislature to act, thus far with no result. See, in that respect, Cour de cassation (Court of Cassation), ‘Note explicative, Arrêt du 21 septembre 2017, n°2067’, p. 3. For a similar view, see Véricel, M., ‘Le droit à congés payés du salarié malade face à la Cour de justice européenne et à la Cour de cassation’, Revue de droit du travail, No 6, 2012, p. 371.

41      C‑337/10, EU:C:2012:263, paragraph 43, ‘Neidel’). In KHS, paragraph 38, and in Neidel, paragraph 41, the Court additionally expressed the opinion that the carry-over period has to be substantially longer (not explaining what substantially means) than the reference period in respect of which it is granted. The reason for this is to enable the specific circumstances of a worker who was unfit for work for several consecutive reference periods to be taken into account. Longer carry-over period ensures that the worker can plan how to distribute adequately the use of acquired days of annual leave.

42      KHS, paragraph 44.

43      See point 44 of the present Opinion.

44      See, for instance, Opinion C-2/15 (EU-Singapore Free Trade Agreement) of 16 May 2017 (EU:C:2017:376, paragraph 149).

45      ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, adopted on 18 June 1998 in Geneva (Annex revised on 15 June 2010).

46      Additionally, as stated by Advocate General Trstenjak, the ILO Holidays with Pay Convention cannot amount to a valid tool to indirectly and partially harmonise Member States’ legislation. Opinion of Advocate General Trstenjak in KHS (C‑214/10, EU:C:2011:465, points 83 to 90).

47      As explained in points 41 to 43 of the present Opinion.

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