In Kreuziger v Land Berlin and Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV v Shimizu K refrained from taking his annual leave entitlement during the last few month of employment and requested payment in lieu when he left. S was invited to take his remaining leave two months before he left, he only took two days off and then requested payment in lieu of the remainder upon leaving. Both employers refused payment and the German labour courts asked the ECJ whether this was permitted under the Working Time Directive. The ECJ held that a worker cannot automatically lose his accrued rights to paid annual holiday because he did not apply to take leave. On the other hand, if the employer proves that the worker deliberately and knowingly refrained from taking his paid annual leave after having been given the opportunity to exercise his right, EU law does not prevent the right being lost or, if the employment relationship ends, the loss of payment in lieu of the leave not taken.

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