Member Article

Judgment of the Danish Supreme Court dated 19 January 2017

The case involved the issue of whether the Ministry of Employment had become liable in damages in regard to an employee in a company, due to the fact that the right to replacement holiday in the event of illness occurring during holiday had not been implemented in Danish law at the time at which the employee became ill during his holiday in the summer of 2010. Pursuant to the then-current Holiday Act, the employee was only entitled to replacement holiday in the event of illness occurring before the commencement of holiday.

However, the European Court of Justice delivered a judgment in 2009 (the Pareda judgment, case no. C-277/08), which expressed doubts about the then-current Holiday Act's compatibility with the working time directive, and, accordingly, the question was whether the Danish authorities had set aside EU law by not amending the Holiday Act.

The Danish Eastern High Court found that, when a judgment of the ECJ is delivered, the individual member states must be granted a reasonable time-limit for considering whether the legislation in force complies with the judgment. Following the Pareda judgment, considerations were implemented in the Ministries of Employment, Justice and Finance regarding the scope of the judgment. Against this background, the High Court found that the implementation process had not taken so long that there was basis for establishing that the then-current legal status would have continued despite the delivery of judgment in a preliminary case. Consequently, the High Court gave judgment in favour of the Ministry of Employment.

The Danish Supreme Court found that a relatively simple amendment of the Holiday Act was to be made in order for it to comply with EU law. As such, an amendment of the Holiday Act should have been implemented for enforcement on 1 January 2011. However, the Holiday Act was not amended until the middle of 2012. Consequently, the Danish authorities had set aside the EU law and were therefore liable for damages. However, as the employee's holiday took place in 2010, where the Holiday Act should not yet have been amended, the employee was not entitled to compensation. Accordingly, the Supreme Court affirmed the judgment of the High Court.