Repere normative europene în aplicarea dispoziţiilor legale naţionale privind durata concediului de odihnă
Highlights of the European regulations in applying the provisions of the national laws on the duration of the leave

Summary/Abstract: Due to the fact that the domestic law, respectively art. 145 par. (2) of Law no. 53/2003 regarding the labor code, republished, is in inconsistence with the Directive no. 2003/88/CE of the European Parliament and Council from 4 November 2003, regarding some aspects of working time management, in the interpretation given through the preliminary ruling of 20 January 2009, delivered by the European Court of Justice in the related cases C/350/06 and C/520/06 SCHULZ - HOFF, STINGER a.o., the provisions of the Directive are applied based on art. 148 par. (2) of the Romanian Constitution. Therefore, even if art. 145 par. (2) of Law no. 53/2003 concerning the Labor code, republished, has not been modified, the length of the annual leave is not any more affected by the length of the sick leave taken in a calendar year. Having in view that the above mentioned ruling of the ECJ is mandatory also for the Romanian courts, the provisions of art. 145 par. (2) of Law no. 53/2003 concerning the Labor code, republished, according to which the annual leave is granted proportionally to the effective time worked, are not anymore applicable in the situation in which the employees have been in sick leave. So, according to the provisions of the national law, the sick leave cannot diminish the annual leave agreed of the employee under a minimum of four weeks. Also, having in view the ruling of the court in Luxembourg, delivered in the cases C-350/06 and C7520/06 concerning HOFF, STINGER and others, the provisions of art. 5 par. (1) of the Government Ordinance no. 250/1992, republished, are inapplicable because it was decided that art. 7 par. (1) of the Directive 2003/88/CE opposes that the right to paid annual leave to extinguish at the expiration of the reference period in the case in which the employee was in sick leave during this period.

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