1. Feb 2017

Criticism of the Danish Ministry of Employment

The Danish Supreme Court has ruled that the Danish State may have incurred liability by failing to act ‎sufficiently swiftly to amend the Danish Holiday Act to align it with EU law.‎

If a citizen suffers a loss because an EU member state fails to implement EU law correctly, the member ‎state may incur liability under certain circumstances. In this case, the question before the Danish ‎Supreme Court was whether the Danish Ministry of Employment was to pay compensation to a Danish ‎citizen because an amendment of the Danish Holiday Act that was required for compliance with the ‎Working Time Directive following a judgment from the EU Court had not been implemented already in ‎the summer of 2010.‎

The case concerned an employee who fell sick while on summer holiday in 2010. His sickness lasted 11 ‎days, and on returning to work he demanded 11 days of paid replacement holiday. His employer ‎refused, citing the provisions of the then Holiday Act, according to which the employees themselves ‎bore the risk of falling sick during their holiday.‎

However, the EU Court had ruled in Pereda (C-277/08) in September 2009 that under the Working Time ‎Directive employees are entitled to replacement holiday if they fall sick during any holiday they are ‎entitled to take under the Directive.  The employee therefore issued proceedings against the Ministry ‎of Employment, claiming that the Ministry should have brought the Danish Holiday Act into line with the ‎Working Time Directive already in the summer of 2010.‎

Relatively simple amendment
Before the Supreme Court, the employee argued that he would have been entitled to replacement ‎holiday if the Ministry had brought the state of the law into line with EU law immediately after Pereda ‎and that the Ministry should therefore compensate him for the value of the holiday he would have been ‎entitled to take had the amendment been implemented at that point in time.‎

The Supreme Court noted that in order for an EU member state to incur liability for violating Community ‎law, the violation must be sufficiently qualified and in this test it will be taken into account whether the ‎member state in question has manifestly and grossly exceeded the boundaries of its discretionary ‎powers.‎

The Supreme Court noted that the EU Court's judgment caused such doubt as to the compatibility of the ‎Danish holiday regime with EU law as to require the Danish authorities to clarify the need for a statutory ‎amendment as quickly as possible. However, the Supreme Court believed it had been a valid decision to ‎carry out the studies and analysis that had been carried out in light of Pereda by the working party of the ‎Parliamentary Implementation Committee for the purpose of obtaining an adequate basis on which to ‎make this decision. The Committee issued its report in September 2010, and as the report suggested ‎that only a limited and relatively simple amendment of the Danish Holiday Act was needed, the ‎Supreme Court held that the amendment should have been implemented already with effect from 1 ‎January 2011.‎

A hearing on the draft Bill to amend the Holiday Act was not launched until January 2012, and the ‎amendment did not take effect until April 2012. On that basis, the Supreme Court held that the Danish ‎authorities had incurred liability by not having aligned the Holiday Act with EU law with effect from 1 ‎January 2011 so as to entitle employees to replacement holiday for any periods of sickness suffered ‎during their holiday with effect from this date. As the employee's sickness had occurred already in the ‎summer of 2010, however, the employee in question was not entitled to compensation. ‎

Norrbom Vinding notes

  • that the judgment illustrates that in order to claim compensation for defective implementation of EU ‎law, the violation of EU law must be sufficiently qualified; and‎
  • that a specific result of the judgment is that employees who were sick while on holiday for more than ‎five days in the period from 1 January 2011 to 1 May 2012 may claim compensation from the Danish ‎State, provided that the conditions for being entitled to replacement holiday are met and their claim is ‎not time-barred.‎

The above article is intended for general information only and does not constitute legal advice.

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