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Supreme Court of Denmark

Illness arisen during a period of leave and interpretation in conformity with EU law 
18-12-2013 

Case no. 205/2012
 

Judgment delivered on 18 December 2013.


The Confederation of Danish Industry (DI) acting for Grundfos A/S
vs.
The Central Organisation of Industrial Employees in Denmark (CO-Industri) acting for A


Interpretation in conformity with EU law of the Danish Holiday Act (ferieloven) in July 2009 did not pass the risk of illness arisen during a period of leave to the employer.

An employee working for a private employer fell ill during the annual period of leave in July 2009. The question arose whether the risk of illness arisen after the beginning of a period of leave passed to the employer according to the Danish Holiday Act in force at the time and therefore entitled the employee to an alternative period of leave.

The European Court of Justice has ruled that Article 7(1) of the Working Time Directive precludes national provisions and, accordingly, an employee who falls ill during a period of leave is not entitled to an alternative period of leave.

The Central Organisation of Industrial Employees in Denmark (CO-Industri) claimed that A was entitled to compensation for a lost period of leave in 2009, as the Danish Holiday Act in force at the time following an interpretation in conformity with EU law must be understood in accordance with the European Court of Justice's interpretation of Article 7(1) of the Working Time Directive.

The Supreme Court held that the state of the law in July 2009 was clear: The risk of illness in connection with a period of leave passed from the employer to the employee at the beginning of the period of leave. Hence, it was not possible, using the generally accepted interpretation principles of Danish law, to conclude that the Danish Holiday Act in force at the time passed the risk of illness arisen during a period of leave to the employer.

The Supreme Court then dismissed the claim against Grundfos.     

The High Court had reached another conclusion.

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