In two rulings published on 10 September 2025, the French Supreme Court brought an end to the long-standing “paid leave and EU law” saga, aligning its case law with European law on two specific issues: the treatment of paid leave when illness arises during a period of annual leave, and the inclusion of paid leave in the calculation triggering the threshold for overtime.
An employee on sick leave during their annual leave is entitled to have such leave carried over, provided that the sick leave is duly notified to the employer.
In a first ruling, the French Supreme Court held that an employee on sick leave during the annual paid leave period is entitled to subsequently take the days of paid leave falling during the period of sick leave (French Supreme Court, 10 september 2025, n° 23-22.732).
Accordingly, the employee, who was on sick leave during their paid leave periods and had duly notified their employer, was entitled to carry over the corresponding days of paid leave, which could not be deducted from their accrued entitlement.
This decision follows infringement proceedings initiated by the European Commission, which compelled France to comply with EU law within a two-month period starting on 18 June 2025.
Until then, French case law (French Supreme Court, 4 December 1996, n°93-44.907) ruled that an employee who fell ill during paid leave could not demand to take that leave at a later date, on the grounds that it had already been used.
Where working time is calculated weekly, paid leave is now taken into account when determining the threshold for the entitlement to overtime.
In a second ruling, the French Supreme Court recognized for the first time that where an employee’s working time is calculated on a weekly basis, days of paid leave taken during that week must be included when determining the calculation of overtime hours (French Supreme Court, 10 september 2025, n° 23-14.455 and 23-14.457).
Indeed, under EU law, any practice or omission by an employer that has a potentially deterrent effect on the exercise of the employee’s right to annual paid leave is incompatible with the very purpose of that right (CJEU, 6 Nov. 2018, Kreuziger, C-619/16, para. 49).
Until this recent development, the French Supreme Court ruled that days of paid leave could not be taken into account when calculating overtime hours, unless otherwise provided by collective bargaining agreements or established practice (French Supreme Court, 4 April 2012, n° 10-10.701).
French Supreme Court, 10 september 2025, n° 23-22.732
French Supreme Court, 10 september 2025, n° 23-14.455 & 23-14.457