During 2023 the Dutch Supreme Court issued three principal rulings on vacation law. This article provides an overview of the highlights.

Dutch Supreme Court ruling of 9 June 2023 (ECLI:NL:HR:2023:816)

This ruling holds two principal decisions. Firstly the Dutch Supreme Court ruled that leave-entitlements qualify as vacation if – at the time they are granted – their purpose is to provide the employee with an opportunity for rest and relaxation from the workload placed on the employee. If leave entitlements were granted for this purpose, the nature of these entitlements does not change if the granted leave is subsequently used for other purposes.

The second principal decision is that for the value of vacation days no distinction can be made between the statutory minimum vacation days and vacation days that exceed the statutory minimum. Previously one could argue that employers and social partners are allowed to make different arrangements about the value of vacation days that exceed the statutory minimum, because these days are granted voluntarily. This argument is rejected by the Dutch Supreme Court.

It may be derived from this ruling – although not literally stated by the Dutch Supreme Court – that statutory vacation days and vacation days that exceed the statutory minimum must be treated the same on all aspects, unless an exception is prescribed by law.

Dutch Supreme Court ruling of 23 June 2023 (ECLI:NL:HR:2023:955)

The key question in this ruling was whether the Max Planck ruling (C-684/16) from the ECJ (‘vacation days can only lapse if the employer fulfilled the duty of care to inform and provided the employee with the opportunity to take vacation days and the employee was actually able to enjoy vacation days’) only applies to the six month expiration period for statutory vacation days, or also to the five year time limit that applies to vacation days that exceed the statutory minimum. While this proceeding was pending before the Dutch Supreme Court, the ECJ held in LB (C-120/21) that the rule from Max Planck also applies to a three year time limit. In light of this ruling the Dutch Supreme Court held in quite strong words that “there can be no reasonable doubt” that the rule from Max Planck also applies to the five year time limit for vacation days that exceed the statutory minimum.

Dutch Supreme Court ruling of 17 November 2023 (ECLI:NL:HR:2023:1603)

In this ruling the Dutch Supreme Court confirmed that sick employees who are unable to perform re-integration activities are unable to take vacation days. After all, recovery from the workload placed on the employee – and therefore taking up vacation days – is not possible in such situations. This means that even if such an employee willingly went with vacation, the employer may not deduct vacation days.

Furthermore the Dutch Supreme Court held that an employer of an employee who does perform re-integration activities may only deduct vacation days if these days are taken up with the explicit consent of the employee to deduct vacation days. There mere fact that the employee and employer agreed that the employee has a vacation is insufficient: the employee must actually agree to deduct vacation days.

This article is also published in Lexology (ILO).