Right to paid annual leave: The Cour de cassation recognized the direct horizontal effect of Article 31(2) of the EU Charter and strengthened the protection of employees’ rights Case note to Cases n° 22-17.340 Société Transdev,n° 22-17.638 M. V.B.,n°22-11.106 Institut national des formations notariales

Abstract

The French judicial court has operated an important reversal of its case law with three judgments of the 13 of September 2023. For the first time, the Cour de cassation decided to apply Article 31 (2) of the Charter of Fundamental Rights, enshrining the right to paid annual leave, in a horizontal litigation by following the Bauer judgment of the Court of Justice. But this was not the only change that the Cour de cassation made with its rulings of 2023. In fact, it adopted an extensive conception of the right to annual leave by following again the case law of the Court of Justice. This reversal of the French case law was so important that it provoked a legislative amendment of the problematic provisions of the French Labour Code. A trialogue between the Court of Justice, the Cour de cassation and the French legislature permitted thus a better protection of this fundamental social right of employees in France. The decision of the Conseil constitutionnel that followed in 2024, which continued to adopt a restrictive approach of the constitutional right to paid leave, illustrated the added-value of Article 31(2) of the Charter and the importance of the three judgments of the Cour de cassation in 2023.