According to the French Labour Code, any hour worked in excess of the legal weekly working time or the time considered equivalent is overtime, which entitles the employee to additional pay or, where applicable, equivalent compensatory rest. To determine the number of overtime hours that may be due, only actual working hours and equivalent time should be taken into account.
Until now, the Court of Cassation had ruled that paid leave days could not be taken into account when determining whether working hours exceeded the legal weekly limit.
This consistent approach was challenged by the case law of the Court of Justice of the European Union in a decision of 13 January 2022 (ECJ, 13 January 2022, DS v Koch Personaldienstleistungen GmbH, C-514/20).
Consequently, in its decision of 10 September 2025, the Court of Cassation decided to set aside the application of the contradictory provisions of the Labour Code. It ruled that an employee was entitled to the overtime pay he would have received if he had worked the entire week.
According to the Court of Cassation’s press release, the solution reached remains limited to the weekly calculation of working time that was applied in the case brought before the Court. It does not prejudge the solution with regard to other methods of calculating working time (e.g. working time assessed on an annual rather than weekly basis).
