Judgment_paragraph 14 · Williams and Others v British Airways plc (C-155/10)

14In those circumstances, the Supreme Court of the United Kingdom decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Under (a) Articles 7 of Council Directive 93/104/EC [of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18), as amended by Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 (OJ 2000 L 195, p. 41] and Directive 2003/88/EC and (b) Clause 3 of the European Agreement …:(1) to what, if any, extent does European law define or lay down any requirements as to the nature and/or level of the payments required to be made in respect of periods of paid annual leave; and(2) to what, if any, extent may Member States determine how such payments are to be calculated?(2) In particular, is it sufficient that, under national law and/or practice and/or under the collective agreements and/or contractual arrangements negotiated between employers and workers, the payment made enables and encourages the worker to take and to enjoy, in the fullest sense of these words, his or her annual leave; and does not involve any sensible risk that the worker will not do so?(3) Or is it required that the pay should either(a) correspond precisely with or(b) be broadly comparable to the worker’s “normal” pay?Further, in the event of an affirmative answer to Question 3(a) or (b):(4) Is the relevant measure or comparison:(a) pay that the worker would have earned during the particular leave period if he or she had been working, instead of on leave, or(b) pay which he or she was earning during some other, and if so what, period when he or she was working?(5) How should “normal” or “comparable” pay be assessed in circumstances where:(a) a worker’s remuneration while working is supplemented if and to the extent that he or she engages in a particular activity,(b) where there is an annual or other limit on the extent to which, or time during which, the worker may engage in that activity, and that limit has been already exceeded or almost exceeded at the time(s) when annual leave is taken, so that the worker would not in fact have been permitted to engage in that activity had he been working, instead of on leave?’