A Royal Decree of 8 February 2023 amends the Royal Decree of 30 March 1967 determining the general terms and conditions for the implementation of the laws on annual holidays for salaried workers (M.B., 16 March 2023).
Previously, if the worker fell ill during his leave, the days of leave that he did not take because of his illness could not be carried over after his recovery. He therefore lost these days of leave.
The Court of Justice had already held on several occasions that this system was contrary to Article 7(1)er of Directive 2003/88, according to which Member States shall take the necessary measures to ensure that every worker is entitled to at least four weeks' paid annual leave, in accordance with the conditions for entitlement and granting laid down in national legislation and/or practice.
Thus, the Court has held that the purpose of the right to paid annual leave is to allow the worker to rest and enjoy a period of relaxation and leisure, whereas the purpose of the right to sick leave is to allow the worker to recover from an illness resulting in incapacity to work (CJEU, 10 September 2009, C-277/08, Pereda, www.curia.europa.eu).
The purpose of the Royal Decree of 8 February 2023 is to adapt Belgian legislation to European case law and to Article 7 of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time.
The report to the King specifies, in the words of the Court, that the right to annual leave must allow the worker to rest from the performance of the tasks imposed on him by his employment contract and to have a period of relaxation and leisure.
The new annual holiday regulations therefore allow an employee to postpone his or her holiday in the event of an accident at work, occupational disease, ordinary illness, ordinary accident, maternity or paternity leave, adoption leave, prophylactic leave, foster care leave or parental leave.
From now on, a worker who falls ill during his or her holiday can convert holiday days into sick days and take the holiday later.
Any remaining holidays must be taken within 24 months of the end of the holiday year for which they are still to be taken.
There is, however, a slight peculiarity for a complete removal from work as a maternity protection measure.
The current measure whereby leave can be taken up to twelve months after the end of the holiday year remains.
The Royal Decree of 8 February 2023 has retroactive effect from 1 January 2023.er The first year of application is January 2023 and applies for the first time to the holiday year 2024, holiday year 2023.