1) This request for a preliminary ruling concerns the interpretation of Article 7(2) 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 ( 2 ) and of Article 31(2) of the Charter of Fundamental Rights of the European Union. ( 3 )

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7) Last, I shall be prompted to make clear that when, in the context of a dispute between two individuals, national legislation prevents a worker from receiving an allowance in lieu of untaken paid annual leave at the end of the employment relationship to which he is nonetheless entitled under Article 7(2) of Directive 2003/88, the national court dealing with the matter is required to ascertain whether it can interpret the applicable national law in a manner consistent with that provision and, if that does not appear to it to be the case, to ensure, within the framework of its powers, the legal protection resulting for individuals from Article 31(2) of the Charter and to give full effect to that article by disapplying, if need be, any national provision to the contrary.

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19) The referring court considers, moreover, that the Court’s case-law does not make it possible to determine clearly whether national legislation having the effects described in the preceding point of this Opinion is consistent with Article 7 of Directive 2003/88 and with Article 31(2) of the Charter, while the literature is divided in that regard.

20) Furthermore, the referring court states that Max-Planck is a non-profit-making organisation governed by private law which is, admittedly, largely financed from public funds but which, however, has no special powers by comparison with the rules applicable between individuals, so that it should be regarded as an individual under the Court’s case-law. ( 7 ) However, the Court has not yet made clear, in that regard, whether Article 7 of Directive 2003/88 or Article 31(2) of the Charter has horizontal direct effect.

21) In those circumstances, the Bundesarbeitsgericht (Federal Labour Court) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Does Article 7 of Directive [2003/88] or Article 31(2) of the [Charter] preclude national legislation, such as Paragraph 7 of the [BUrlG], under which, as one of the methods of exercising the right to annual leave, an employee must apply for such leave with an indication of his preferred dates so that the leave entitlement does not lapse at the end of the reference period without compensation and under which an employer is not required, unilaterally and with binding effect for the employee, to specify when that leave be taken by the employee within the reference period?

(2) If the first question is answered in the affirmative:

Does this apply even where the employment relationship is between two private persons?’

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29) According to the Court, the rule laid down in Article 7 of Directive 2003/88 and in Article 31(2) of the Charter is therefore that ‘the right to paid annual leave acquired cannot be lost at the end of the leave year and/or of a carry-over period fixed by national law, when the worker has been unable to take his leave’. ( 14 )

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63) In the light of the Court’s settled case-law on the lack of horizontal direct effect of directives, the referring court seeks, by this question, to ascertain, in essence, whether Article 31(2) of the Charter might be relied on in a dispute between individuals in order to preclude the application of national legislation which is shown to be inconsistent with Article 7(2) of Directive 2003/88.

64) I have examined in detail that problem, and also the scope of the obligation borne by the national courts to interpret national law consistently with EU law, in my Opinion in Joined Cases BauerandBroßonn (C‑569/16 and C‑570/16, EU:C:2018:337), to which I refer. In the light of the considerations which I have set out in that Opinion, I consider that, in so far as Article 31(2) of the Charter guarantees a worker the right to an allowance in lieu of untaken paid annual leave at the end of the employment relationship when that worker has not been in a position actually to exercise his right to paid annual leave during that relationship, it may be relied on directly by that worker in the context of a dispute between him and his employer in order to preclude the application of national legislation that stands in the way of such an allowance being paid to him.

65) I therefore propose that the Court’s answer to the referring court should be that where, in the context of a dispute between two individuals, national legislation prevents a worker from receiving an allowance in lieu of untaken paid annual leave at the end of the employment relationship to which he is nonetheless entitled under Article 7(2) of Directive 2003/88, the national court dealing with the matter is required to ascertain whether it can interpret the applicable national law in a manner consistent with that provision and, if that does not appear to it to be the case, to ensure, within the framework of its powers, the legal protection resulting for individuals from Article 31(2) of the Charter and to give full effect to that article by disapplying, if need be, any national provision to the contrary.

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66) Having regard to the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Bundesarbeitsgericht (Federal Labour Court, Germany) as follows:

(1) Article 7(2) 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 must be interpreted as conferring entitlement to an allowance in lieu of untaken paid annual leave at the end of the employment relationship when a worker was not able to take all the paid annual leave to which he was entitled during that relationship.

(2) Article 7(2) of Directive 2003/88 must be interpreted as precluding national legislation in accordance with which a worker loses his right to an allowance in lieu of untaken paid annual leave at the end of the employment relationship where the worker did not apply for that leave while he was in active service, without prior verification of whether that worker was actually given the opportunity by his employer to exercise his right to paid annual leave.

(3) Where a national court is dealing with a dispute relating to a worker’s right to an allowance in lieu of untaken paid annual leave at the end of the employment relationship, it must ascertain whether the employer shows that he took the appropriate measures to ensure that the worker was able actually to exercise his right to paid annual leave during that relationship. If the employer shows that he took the necessary steps and that, in spite of the measures which he took, the worker declined deliberately and in an informed manner to exercise his right to paid annual leave although he was able to do so during the employment relationship, that worker cannot claim, on the basis of Article 7(2) of Directive 2003/88, payment of an allowance in lieu of untaken paid annual leave at the end of the employment relationship.

(4) Where, in the context of a dispute between two individuals, national legislation prevents a worker from receiving an allowance in lieu of untaken paid annual leave at the end of the employment relationship to which he is nonetheless entitled under Article 7(2) of Directive 2003/88, the national court dealing with the matter is required to ascertain whether it can interpret the applicable national law in a manner consistent with that provision and, if that does not appear to it to be the case, to ensure, within the framework of its powers, the legal protection resulting for individuals from Article 31(2) of the Charter and to give full effect to that article by disapplying if need be any national provision to the contrary.