No, held the CJEU in the case of Bollacke v Klass & Kock B.V. Mrs Bollacke's husband was employed by the Respondent until his death in service on 19 November 2010. At the date of his death he had accrued 140.5 days of untaken annual leave (since he had been on extended sick leave).
On a reference from the German court, the ECJ noted that Article 7 of Directive 2003/88, entitled 'Annual Leave', did not provide for any derogations to be made from its provisions, nor was there any qualification on the right to annual leave (save that payment in lieu could be made where the employment relationship had terminated).
The Directive treats entitlement to leave and to payment on that account as being two aspects of a single right. This right is an essential principle of EU social law, and a restrictive interpretation of Article 7 could not be taken by the Court. If the entitlement to pay in lieu (of annual leave untaken on death in service) was curtailed, this would retroactively lead to the total loss of the entitlement to paid leave itself. Nor, given the wording of the Directive, could an application from the worker be a prerequisite to the entitlement to pay in lieu of untaken leave.
Thus the Directive must be interpreted as precluding any national law or practice whereby entitlement to paid annual leave is lost on the death of a worker without conferring an entitlement to an allowance in lieu of any leave outstanding.