72) Article 51(1) of the Charter states that the provisions of the Charter are addressed ‘to Member States only when they are implementing Union law’.

73) Furthermore, in the words of the second subparagraph of Article 6(1) TEU, ‘the provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties’. Likewise, under Article 51(2) thereof, the Charter ‘does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties’.

74) In the light of those factors, Article 31(2) of the Charter is applicable to the cases in the main proceedings only if it can be established that the national legislation or the collective agreements at issue in the main proceedings implement Directive 2003/88.

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76) In that regard, it follows from the Court’s case-law that, ‘in order to determine whether a national measure involves the implementation of EU law for the purposes of Article 51(1) of the Charter, it is necessary to determine, inter alia, whether that national legislation is intended to implement a provision of EU law; the nature of the legislation at issue and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and also whether there are specific rules of EU law on the matter or rules which are capable of affecting it’. ( 40 )

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78) According to the first theory, Article 7(1) of Directive 2003/88 defines the perimeter of the obligation borne by the Member States, namely the obligation to take the necessary measures to ensure that every worker benefits from unpaid leave of at least four weeks. It must be considered that, when the Member States adopt measures more favourable to workers, as Article 15 of Directive 2003/88 authorises them to do, they go beyond that perimeter and thus go outside the scope of that directive. It cannot therefore be considered that they are implementing that directive. Consequently, in accordance with Article 51(1) of the Charter, the Charter is not applicable to such a situation. In other words, since the situation is not governed by EU law, the Charter does not apply. As the Member States are not implementing Union law, the Court does not have jurisdiction to interpret Article 31(2) of any other provision of the Charter. ( 41 ) However, if it were to be found that national legislation going beyond the hard core of the minimum protection infringed a norm of EU law, that legislation would again be brought within the normative area covered by EU law and would therefore be subject to the application of the Charter.

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81) After stating that the obligation to provide minimum protection for employees in the event of the employer’s insolvency imposed by Directive 2008/94 was not affected, the Court observed that the first paragraph of Article 11 of that directive ‘merely states’ that that directive is not to affect the option of Member States to adopt provisions that afford more protection to employees. ( 45 ) According to the Court, ‘in the light of its wording, that provision, which features in Chapter V, entitled “General and Final Provisions”, does not grant the Member States an option of legislating by virtue of EU law, but merely, unlike the options provided for in Chapters I and II of that directive, recognises the power which the Member States enjoy under national law to provide for such more favourable provisions outside the framework of the regime established by that directive’. ( 46 ) The Court inferred from the foregoing that ‘a provision of national law, such as that at issue in the main proceedings, which merely grants employees more favourable protection resulting from the exercise of the exclusive competence of the Member States, confirmed by the first paragraph of Article 11 of Directive 2008/94, cannot be regarded as coming within the scope of that directive’. ( 47 ) That provision of national law could not therefore be regarded as implementing EU law within the meaning of Article 51(1) of the Charter and, therefore, could not be examined in the light of the guarantees of the Charter and, in particular, of Article 20 thereof. ( 48 )

82) According to the second theory, on the other hand, when the Member States adopt measures more favourable to workers, as Article 15 of Directive 2003/88 authorises them to do, it must be considered that they are using the option expressly granted to them by that provision, which should be treated as an implementation of that directive. As the situation is then governed by EU law, the Charter is applicable. Such measures are then subject to compliance with the Charter, just as they are subject to compliance with the other norms of EU primary and secondary law. Since it should be considered that, in adopting enhanced national protective measures, the Member States are implementing EU law, the Court has jurisdiction to provide an interpretation of the Charter in the context of a reference for a preliminary ruling under Article 267 TFEU.

83) This second theory has its origin in certain Opinions delivered by a number of Advocates General and also in several judgments of the Court, which were in favour of national measures going beyond a hard core of minimum protection defined by a directive or laying down more stringent rules than those contained in a directive being required to comply with EU law and, in particular, with the general principles of EU law. ( 49 )

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88) Like any act transposing a directive, measures providing enhanced national protection are required to comply with EU law and, in particular, to observe the fundamental rights enshrined in the Charter. ( 56 ) Where a directive leaves the Member States a margin of discretion, they are required to use that discretion in a way that is consistent with the requirements that flow from the protection of fundamental rights. ( 57 ) I would also observe that the provisions of secondary EU law, of which Article 15 of Directive 2003/88 forms part, must be interpreted in the light of primary EU law and therefore of the Charter.

89) Admittedly, the Court has already ruled that ‘fundamental European Union rights could not be applied in relation to national legislation because the provisions of EU law in the area concerned did not impose any specific obligation on Member States with regard to the situation at issue in the main proceedings’. ( 58 ) The Court has also held that ‘the mere fact that a national measure comes within an area in which the European Union has powers cannot bring it within the scope of EU law, and, therefore, cannot render the Charter applicable’. ( 59 )

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96) Since the Charter ranks as primary law, it would to my mind seem inconsistent to take a more restrictive approach with respect to it when determining whether it is applicable by considering that, when the Member States adopt provisions more favourable to the protection of the safety and health of workers pursuant to Article 15 of Directive 2003/88, they are not implementing Union law within the meaning of Article 51(1) of the Charter. I see no compelling reason why the Charter should be the only rule of EU law to which the Member States would not be subject when they adopt measures going beyond the minimum basis of protection provided for in a directive.

97) The argument that the Charter might, in any event, become applicable should it turn out that the national measure at issue came within the scope of another provision of EU law or infringed such a provision seems to me to constitute an unnecessary and somewhat artificial detour. It seems to me both simpler and more coherent to consider that the provisions of the Charter, like those of EU law as a whole, are intended, because of their applicability, to constitute a framework for the adoption by the Member States and/or employers and workers of enhanced national protective measures.

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99) From that aspect, by way of illustration, the Court has in my view jurisdiction to ascertain whether national measures adopted pursuant to Article 15 of Directive 2003/88 respect the fundamental rights enshrined in the Charter, such as the principle of non-discrimination enshrined in Article 21. In addition, the Court could, without exceeding its jurisdiction, examine whether an enhanced national protective measure disproportionately upsets the balance between the interests of workers and those of employers ( 67 ) and thereby undermines the freedom to conduct a business enshrined in Article 16 of the Charter.

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101) It should also be borne in mind, in the context of the present cases, that ‘EU law requires that, when transposing directives, the Member States take care to rely on an interpretation of them which allows a fair balance to be struck between the various fundamental rights protected by the EU legal order. Subsequently, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of EU law’, such as the principle of proportionality. ( 69 ) Furthermore, it follows from the Court’s case-law that ‘the national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised’. ( 70 ) To my mind, those points taken from the Court’s case-law, if they are compared with the situations at issue in the present cases, make it possible to circumscribe the margin of discretion left to the national authorities by an enhanced national protective clause such as that set out in Article 15 of Directive 2003/88.

102) In the present case, it is not alleged that the national legislation or collective agreements at issue in the main proceedings would be of such a kind as to adversely affect any provisions of the Charter other than Article 31(2). I shall therefore concentrate my analysis on that provision, which, as I said earlier, is intended to apply to the situations at issue in the cases in the main proceedings.

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104) In order to reach that conclusion, the Court observed, in particular, that ‘by providing in mandatory terms that “every worker” has “the right”“to an annual period of paid leave” without referring in particular in that regard — like, for example, Article 27 of the Charter which led to the judgment of 15 January 2014, Association de médiation sociale, [ ( 73 )] — to “the cases and … conditions provided for by Union law and national laws and practices”, Article 31(2) of the Charter reflects the essential principle of EU social law from which there may be derogations only in compliance with the strict conditions laid down in Article 52(1) of the Charter and, in particular, the fundamental right to paid annual leave’. ( 74 )

105) According to the Court, ‘the right to a period of paid annual leave, affirmed for every worker by Article 31(2) of the Charter, is thus, as regards its very existence, both mandatory and unconditional in nature, the unconditional nature not needing to be given concrete expression by the provisions of EU or national law, which are only required to specify the exact duration of annual leave and, where appropriate, certain conditions for the exercise of that right. It follows that that provision is sufficient in itself to confer on workers a right that they may actually rely on in disputes between them and their employer in a field covered by EU law and therefore falling within the scope of the Charter’. ( 75 )

106) At EU level, Article 7(1) of Directive 2003/88 specifies the exact duration of the paid annual leave which, as a minimum period, is guaranteed to every worker. That provision of EU secondary law thus defines the scope of the fundamental right enshrined in the Charter. It regulates more specifically the right to an annual period of paid leave, by providing that that period cannot be less than four weeks.

107) To my mind, Article 31(2) of the Charter does not confer on workers a right to benefit from an annual period of paid leave beyond the minimum period thus specified by the EU legislature.

108) In other words, in the absence of a defined period in Article 31(2) of the Charter, a paid annual leave consistent with that provided for in Article 7(1) of Directive 2003/88 is sufficient to meet the requirements of the Charter. A right to paid leave beyond the minimum duration fixed by the EU legislature cannot be inferred from Article 31(2) of the Charter.

109) Given the ‘symbiotic interrelationship’ ( 76 ) between the fundamental right to an annual period of paid leave enshrined in Article 31(2) of the Charter and the secondary EU law which defines the scope of that period of leave, it is logical that, in the context of the cases in which that right is at issue, both that provision of the Charter and Article 7(1) of Directive 2003/88 should be relied on and interpreted together by the Court in order to guarantee the effectiveness of the right to a minimum annual leave of four weeks. ( 77 )

110) That reading of Article 31(2) of the Charter in conjunction with the provision of EU secondary law that specifies the scope of the fundamental right thus protected does not however have the consequence that the duration of the right to paid annual leave is fixed at a period of four weeks, since that period is always amenable to being altered by the EU legislature in line with changes in economic and social conditions and also with technological development, which influence the arrangements applicable to employment relationships. ( 78 ) If the EU legislature thus plays an important role in defining the scope of the fundamental right enshrined in Article 31(2) of the Charter, that is the inevitable consequence of the concise and at the same time the general nature of the formulation of the provisions of the Charter.

111) Such a reading of the relevant provisions together operates in favour of the harmonious application of the Charter and of EU secondary law. In this instance, it precludes Article 31(2) of the Charter being relied on in order to extend to paid annual leave beyond the minimum period of four weeks the protective rules which the Court has gradually established on the sole basis of and in consideration of such a minimum duration.

112) Consequently, provided that the essential content of the right to an annual period of paid leave, as laid down in Article 7(1) of Directive 2003/88, that is to say, the hard core of minimum protection, is not affected, the Member States and/or employers and workers may in my view, without infringing Article 31(2) of the Charter, define conditions for the grant, carrying-over and extinction of additional paid annual leave in addition to the minimum paid annual leave of four weeks which differ from the protective rules which the Court has defined with respect to that minimum period of paid annual leave.

113) In concrete terms, that means that Article 31(2) of the Charter does not in my view preclude national legislation or collective agreements from providing that the days of paid leave beyond the minimum duration of four weeks, as laid down in Article 7(1) of Directive 2003/88, may not be carried over where they overlap with days of sick leave.

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115) In the first place, in accepting that the Charter is applicable to situations in which enhanced national protective measures are at issue, and then defining the normative content of Article 31(2) of the Charter, as I have done, I have avoided the risk that the Charter would be interpreted as affording workers the right to paid annual leave beyond that specified by the EU legislature in order to implement that fundamental right. In this instance, the minimum duration of the annual period of paid leave protected by EU law is specified in Article 7(1) of Directive 2003/88, but is subject to change.

116) In applying such reasoning, the Court, in its role as interpreter of EU law, would not in my view exceed the limit of the jurisdiction conferred on it. Since that reasoning does not have the consequence of altering the allocation of powers between the Union and its Member States, it would not in my view be contrary to Article 51(2) of the Charter.

117) In the second place, it seems important to me that in the present cases the Court should lay the foundations which will allow it, when the situation arises, to effectively neutralise national measures adopted pursuant to Article 15 of Directive 2003/88 that would have the effect of undermining fundamental rights enshrined in the Charter. To deny that the Charter is applicable in situations which call such measures into question could in my view complicate the Court’s task from that aspect, in particular where the link between a national measure and a rule of EU law other than Directive 2003/88 would be difficult to establish.

118) In the third place, if the Court should consider that situations in which enhanced national protective measures are at issue do not fall within the scope of the Charter and therefore do not have to be considered in the light of Article 31(2) thereof, the question of the normative content of that provision, and also the closely connected question of its relationship with Article 7(1) of Directive 2003/88, would remain unresolved. However, it will not be possible to avoid answering that question when the Court is called upon to define the scope of Article 31(2) of the Charter in the context of measures adopted by the institutions of the European Union. ( 79 )

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119) By its second question, the referring court asks the Court to rule on whether Article 31(2) of the Charter may have direct effect in a dispute between private parties.

120) Since I consider that the national legislation or collective agreements at issue in the main proceedings are not contrary to either Article 7(1) of Directive 2003/88 or Article 31(2) of the Charter, there is no need to examine the second question. In any event, the answer to the question is clear from the judgments of 6 November 2018, Bauer and Willmeroth, ( 80 ) and of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften, ( 81 ) and is in the affirmative.

121) Therefore, although, as is clear from my foregoing argument, Article 31(2) of the Charter is not in my view intended to confer on workers a right to paid annual leave beyond the period specified by the EU legislature, the possibility for a worker to rely on that provision in a dispute with a private employer in order to preclude the application of provisions of national law which would undermine the hard core of minimum protection helps to guarantee to that worker the effective benefit of that fundamental right. Therein lies the major contribution of Article 31(2) of the Charter when it is relied on in a dispute between private parties