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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Sąd Rejonowy w Bialymstoku (Freezing or reduction of remuneration in the national public administration - Measures specifically aimed at judges - Judgment) [2025] EUECJ C-146/23 (25 February 2025) URL: https://www.bailii.org/eu/cases/EUECJ/2025/C14623.html Cite as: ECLI:EU:C:2025:109, [2025] EUECJ C-146/23, EU:C:2025:109 |
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JUDGMENT OF THE COURT
(Grand
Chamber)
class="C19Centre">25
February
2025 (*)
( References for
a preliminary ruling -
Freezing
or reduction of remuneration in the national public administration - Measures specifically aimed at judges - Article 2 TEU - Article 19(1), second subparagraph, TEU - Article 47 of the
Charter
of
Fundamental
Rights of the European Union - Obligations on Member States to provide remedies sufficient to ensure effective judicial protection - Principle of judicial independence - Powers of the legislatures and executives of the Member States to set the
detailed
rules
for
determining
judges’ remuneration - Possibility of
derogating
from
those rules -
Conditions
)
In Joined Cases
C‑146/23
[Są
d
Rejonowy
w
Białymstoku] and
C‑374/23
[Adoreikė], (i)
TWO REQUESTS for
a preliminary ruling under Article 267 TFEU
from
the Są
d
Rejonowy
w
Białymstoku (
District
Court,
Białystok, Poland) (
C‑146/23),
and
from
the Vilniaus apygardos administracinis teismas (Regional Administrative
Court,
Vilnius, Lithuania) (
C‑374/23),
made by
decisions
of 10 March and 1 June 2023, received at the
Court
on 10 March and 13 June 2023 respectively, in the proceedings
XL
v
Sąd
Rejonowy
w
Białymstoku (
C‑146/23),
class="C02AlineaAltA">Lietuvos
Respublika (
C‑374/23),
class="C19Centre">THE
COURT
(Grand
Chamber),
class="C02AlineaAltA">composed
of K. Lenaerts, President, T. von
Danwitz,
Vice-President,
F.
Biltgen, K. Jürimäe,
C.
Lycourgos, M.L. Arastey Sahún, N. Jääskinen,
D.
Gratsias and M. Gavalec (Rapporteur), Presidents of
Chambers,
E. Regan, J. Passer, Z.
Csehi
and O. Spineanu-Matei, Judges,
Advocate General: A.M. Collins,
class="C02AlineaAltA">Registrar:
M. Siekierzyńska, Administrator,
having regard to the written
procedure and
further
to the hearing on 12 March 2024,
after considering
the observations submitted on behalf of:
– XL, by himself,
– the Polish Government, by B. Majczyna and S. Żyrek, acting as Agents,
– the Lithuanian Government, by K. Dieninis,
S. Grigonis and V. Kazlauskaitė-Švenčionienė, acting as Agents,
– the European Commission,
by K. Herrmann, A. Steiblytė and P. Van Nuffel, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 13 June 2024,
gives the following
class="C75Debutdesmotifs">Judgment
class="C01PointnumeroteAltN">
NAME="point1">1 These requests
for
a preliminary ruling
concern
the interpretation of Article 2 and the second subparagraph of Article 19(1) TEU and of Article 47 of the
Charter
of
Fundamental
Rights of the European Union (‘the
Charter’).
class="C01PointnumeroteAltN">
NAME="point2">2 The requests have been made in proceedings between, in
Case
C‑146/23,
XL, a judge, and the Są
d
Rejonowy
w
Białymstoku (
District
Court,
Białystok, Poland) and, in
Case
C‑374/23,
SR and RB, two judges, and the Lietuvos Respublika (the Republic of Lithuania),
concerning
the amount of their remuneration.
Legal context
class="C05Titre2">
Polish law
3 Article 178 of the Konstytucja Rzeczypospolitej Polskiej (Constitution
of the Republic of Poland),
concerning
judicial independence, provides:
‘1. Judges, within
the exercise of their office, shall be independent and subject only to the
Constitution
and statutes.
2. Judges shall be provided with
appropriate
conditions
for
work
and granted remuneration
consistent
with
the
dignity
of their office and the scope of their
duties.
class="C02AlineaAltA">3.
Judges may not be affiliated to any political party or trade union, nor may they engage in a public activity that is incompatible
with
the principle of the independence of
courts
and judges.’
4 The ustawa – Prawo o ustroju sądów
powszechnych (Law on the organisation of the ordinary
courts)
of 27 July 2001 (
Dz.
U. of 2001, No 98, item 1070), in the version applicable to the
dispute
in the main proceedings in
Case
C‑146/23
(‘the Law on the organisation of the ordinary
courts’),
includes Article 91,
concerning
the remuneration of judges,
which
is
worded
as
follows:
class="C02AlineaAltA">1c.
Subject to Paragraph 1d, the basis
for
setting the basic salary of judges
for
a particular year shall be the average salary
during
the second quarter of the preceding year published in the [
Dziennik
Urzę
dowy
Rzeczypospolitej Polskiej “Monitor Polski” (Official Journal of the Republic of Poland, “Monitor Polski”)] by the President of the [Głó
wnego
Urzę
du
Statystycznego (the
Central
Statistical Office, Poland)], in accordance
with
Article 20(2) of [the ustawa o emeryturach i rentach z
Funduszu
Ubezpieczeń Społecznych (Law on retirement and other pensions payable
from
the Social Security
Fund)
of 17
December
1998 (
Dz.
U. of 1998, No 162, item 1118)].
1d. If the average salary referred to in Paragraph 1c is lower than the average salary published for
the second quarter of the preceding year, the latter amount shall be used as the basic amount
for
determining
the basic salary of judges.
2. The salary for
a judge shall be expressed in grades, the level of
which
shall be
determined
through the application of multipliers to the basis
for
determining
the basic salary referred to in Paragraph 1c. The basic salary grades
for
individual judicial posts and the multipliers used to
determine
the level of the basic salary
for
judges in individual grades are set out in the annex to this Law.
…
6. Judges are entitled to an allowance in respect of their office.
7. In addition, remuneration for
judges shall be
differentiated
by a seniority allowance amounting, as
from
the sixth year of service, to 5% of the basic salary and increasing each year by 1% until it reaches 20% of the basic salary.
…’
5 Under Article 8 of the ustawa o szczególnych rozwiązaniach służących
realizacji ustawy budżetowej na rok 2022 (Law on specific arrangements
for
implementing the budget law
for
2022) of 17
December
2021 (
Dz.
U. of 2021, item 2445; ‘the Law accompanying the budget
for
2022’):
‘1. For
2022, the basis
for
setting the basic salary of judges referred to in Article 91(1c) of the [Law on the organisation of the ordinary
courts]
shall be the average salary in the second quarter of 2020, published in the
communication
of the President of the
Central
Statistical Office.
2. The basis referred to in paragraph 1 shall be increased by 26 [Polish zlotys (PLN) (approximately EUR 6)].
3. Where
separate provisions refer to the basic salary of judges referred to in Article 91(1c) of the [Law on the organisation of the ordinary
courts],
this shall
correspond,
for
2022, to the average salary in the second quarter of 2020, published in the
communication
of the President of the
Central
Statistical Office, plus PLN 26.
4. Where
separate provisions refer to the remuneration of judges, that remuneration shall,
for
2022,
correspond
to the remuneration
determined
in accordance
with
paragraphs 1 and 2.’
6 Article 8 of the ustawa o szczególnych rozwiązaniach służących
realizacji ustawy budżetowej na rok 2023 (Law on specific arrangements
for
implementing the budget law
for
2023) of 1
December
2022 (
Dz.
U. of 2022, item 2666; ‘the Law accompanying the budget
for
2023’), provided:
‘1. For
2023, the basis
for
determining
the remuneration of judges referred to in Article 91(1c) of the [Law on the organisation of the ordinary
courts]
shall be PLN 5 444.42 (approximately EUR 1 274).
2. Where
separate provisions refer to the basic salary of judges referred to in Article 91(1c) of the [Law on the organisation of the ordinary
courts],
for
2023, the amount thereof shall be PLN 5 444.42.’
Lithuanian law
7 Article 3 of the Lietuvos Respublikos teisėjų darbo
apmokėjimo įstatymas (Law of the Republic of Lithuania on remuneration of judges) of 6 November 2008 (Žin., 2008, No 131-5022; ‘the Law on the remuneration of judges’), in the version applicable to the main proceedings, provided that,
for
a given year, the base rate
for
the remuneration of State politicians, judges, State officials,
civil
servants, and employees of institutions
funded
by the State and of municipalities of the Republic of Lithuania – adopted by the Parliament of the Republic of Lithuania on a proposal
from
the Government of the Republic of Lithuania –
was
to be used
for
the purpose of
calculating
the remuneration of judges. That base rate
could
not be lower than the base rate
for
the preceding year, unless exceptional
circumstances
were
established. The base rate
was
to be set taking into account the average annual inflation rate
for
the preceding year, as
calculated
by reference to the national
consumer
price index, the level of the minimum monthly salary and the impact of other
factors
affecting the level and evolution of the average salary in the public sector.
8 Pursuant to Article 4(2) of the Law on the remuneration of judges, the remuneration of judges of courts
of general jurisdiction and specialised
courts
was
to
consist
of a basic salary; an increment
for
length of service to the Lithuanian State; a payment
for
working
and being on standby
duty
on rest
days
and on public holidays, and
for
substitution; and, lastly, a bonus
for
an increase in
workload.
class="C01PointnumeroteAltN">
NAME="point9">9 The remuneration of judges of the apygardos teismai (Regional
Courts,
Lithuania)
was
calculated
by multiplying the base rate by the
coefficient
for
salary
which,
under Title II of the annex to the Law on the remuneration of judges,
was
17.2
for
those judges.
The disputes
in the main proceedings and the questions referred
for
a preliminary ruling
class="C01PointnumeroteAltN">
NAME="point10">10 On 4
December
2003, XL
was
appointed judge to the Są
d
Rejonowy
w
Suwałkach (
District
Court,
Suwałki, Poland). Since 3 April 2007, he has performed his
duties
at the Są
d
Rejonowy
w
Białymstoku (
District
Court,
Białystok). His basic remuneration
consists
of the basis amount used
for
determining
his basic salary, to
which
a multiplication
coefficient
of 2.5 is applied, plus, inter alia, a seniority allowance
corresponding
to 20% of the basic salary. The amount of that basis amount
was
PLN 5 050.48 (approximately EUR 1 181)
for
2022 and PLN 5 444.42 (approximately EUR 1 274)
for
2023.
11 XL thus received monthly remuneration of PLN 15 151.44 (approximately EUR 3 544) for
the months of July to November 2022, PLN 15 033.51 (approximately EUR 3 517)
for
December
2022 and PLN 16 333.26 (approximately EUR 3 821)
for
January 2023.
12 After his employer informed him, at his request, that he would
have obtained PLN 10 000 (approximately EUR 2 339) more than he received in respect of his remuneration
for
the period
from
1 July 2022 to 31 January 2023, if his remuneration had been
calculated
in accordance
with
Article 91(1c) of the Law on the organisation of the ordinary
courts,
XL brought an action against the Są
d
Rejonowy
w
Białymstoku (
District
Court,
Białystok) before that same
court,
which
is the referring
court,
seeking payment of that sum, together
with
statutory
default
interest.
13 The referring court
notes,
first
of all, that it
follows
from
the judgment of 27
February
2018, Associação Sindical
dos
Juízes Portugueses (
C‑64/16,
EU:
C:2018:117,
paragraphs 42 to 45), that the receipt by judges of a level of remuneration
commensurate
with
the importance of the
functions
they
carry
out
constitutes
a guarantee essential to judicial independence. That
court
considers
that that guarantee should be observed, including
where
the amendments to the national legislation relating to the
determination
of judges’ remuneration lead to a
worsening
of their material situation
due
to a sustained reduction in the level of their remuneration.
14 The referring court
then notes that Article 91(1c) of the Law on the organisation of the ordinary
courts
provides that the basic salary of judges
for
a given year is to be
determined
objectively on the basis of the average salary
for
the second quarter of the preceding year, as
communicated
by the President of the
Central
Statistical Office.
15 It adds that that mechanism for
determining
the basic salary of judges has, however, recently been amended on three occasions. Thus,
for
2021, the basic salary
was
established by reference to the average salary
for
the second quarter of the year ‘n – 2’, namely that of 2019, not by reference to the average salary
for
the second quarter of the year ‘n – 1’, namely that of 2020, and this resulted in a ‘
freeze’
in the uprating of judges’ remuneration.
For
2022, the average salary
for
the second quarter of 2020
was
taken into account, together
with
an increase of PLN 26. Lastly,
for
2023, judges’ remuneration
was
calculated
not on the basis of the average salary
for
the second quarter of 2022, but on the basis of a basic amount
determined
by the Polish legislature.
16 The referring court
points out that the Polish Government justified those amendments by the economic situation of Poland
caused,
for
2021, by the
COVID-19
pandemic and,
for
2023, both by that pandemic and by the invasion of Ukraine by the Russian
Federation.
By
contrast,
no particular reason
was
referred to
for
2022.
17 The referring court
also states that the
First
President of the Są
d
Najwyższy (Supreme
Court,
Poland), the President of the Naczelny Są
d
Administracyjny (Supreme Administrative
Court,
Poland) and the Krajowa Rada Są
downictwa
(National
Council
of the Judiciary, Poland) brought three separate actions before the Trybunał Konstytucyjny (
Constitutional
Court,
Poland) seeking a
declaration
that Article 8 of the Law accompanying the budget
for
2023
was
unconstitutional. In those three actions, it
was
argued, in essence, that that article infringes the guarantees
which
ensure that judges receive remuneration
consistent
with
the
dignity
of their office, the principle of judicial independence and the principle of the protection of acquired rights and
confidence
in the State. That article provides
for
a method of
determining
the basic salary of judges,
which
is
contrary
to their right to receive remuneration
determined
on the basis of objective
criteria
independent of any arbitrary
decision
by the legislature, and to receive remuneration
consistent
with
the
dignity
of their office. Since the basic amount of judges’ remuneration is
determined
annually by the legislature, the model adopted to
determine
that remuneration is, to a
certain
extent, unforeseeable.
Furthermore,
while
the ‘
freezing’
of salaries
was
supposed to have been introduced temporarily, its maintenance
for
2023
demonstrates
the intention to reduce judges’ remuneration on a permanent basis, in breach of Article 178(2) of the
Constitution
of the Republic of Poland. Lastly, it
was
argued that any intervention in the
functioning
and organisation of the judiciary
can
be
carried
out only exceptionally and
would
have to be the result of
concerted
action by the legislature and the judiciary.
18 The referring court,
which,
as XL’s employer,
considers
that it is not entitled to
disapply
the
contested
national provisions,
concurs
with
the arguments set out in the preceding paragraph. In the present
case,
the undermining of judicial independence lies, it is argued, in the sustained ‘
freezing’
for
three years of the uprating of the judges’ remuneration and the
de
facto
abandonment in 2023 of the mechanism
for
determining
judges’ remuneration based on the average salary of the second quarter of the preceding year, as provided
for
in Article 91(1c) of the Law on the organisation of the ordinary
courts.
The referring
court
considers
that that sustained, repeated and significant evolution in judges’ remuneration is unjustified in the light of the stable situation of the public
finances
of the Republic of Poland and seeks to subordinate an independent and autonomous judiciary so that it acts in an arbitrary manner on the basis of political
considerations
dictated
by the executive and the legislature.
19 Like XL, the referring court
considers
that the judgments of 27
February
2018, Associação Sindical
dos
Juízes Portugueses (
C‑64/16,
EU:
C:2018:117),
and of 7
February
2019, Escribano Vindel (
C‑49/18,
EU:
C:2019:106),
cannot
be transposed to the present
case,
inasmuch as, in this
case,
the
derogation
from
the mechanism
for
determining
judges’ remuneration is permanent, and not temporary as in the
cases
giving rise to those judgments, and primarily
concerns
judges,
which
was
not true of those aforementioned
cases.
class="C01PointnumeroteAltN">
NAME="point20">20 In those
circumstances
the Są
d
Rejonowy
w
Białymstoku (
District
Court,
Białystok)
decided
to stay the proceedings and to refer the
following
question to the
Court
of Justice
for
a preliminary ruling:
‘Should Article 2 [TEU], which
defines
the values on
which
the European Union is based
with
regard to respect
for
the rule of law, and the second subparagraph of Article 19(1) [TEU], in
conjunction
with
Article 47 of the [
Charter],
which
requires Member States to ensure effective legal protection,
which
is based on the right to a
fair
and public hearing, be interpreted as meaning that the principle of judicial independence precludes provisions of national legislation
which,
for
the purpose of limiting government spending,
waives
a mechanism
for
setting judges’ pay on the basis of objective
criteria
that are independent of arbitrary interference by the executive and legislative authorities, resulting in sustained
cuts
to the pay of judges, thereby infringing the
constitutional
guarantees by
which
judges are granted remuneration
consistent
with
the
dignity
of their office and the scope of their
duties
and the administration of justice is
carried
out by independent
courts
and independent judges?’
21 In response to a request for
information
from
the
Court
concerning,
inter alia, the possible impact on the request
for
a preliminary ruling of the judgment of the Trybunał Konstytucyjny (
Constitutional
Court)
of 8 November 2023 (
Case
No K 1/23), by
which
it
was
found
that Article 8 of the Law accompanying the budget
for
2023
did
not
comply
with
Article 178(2) of the
Constitution
of the Republic of Poland, the referring
court
stated that it intended to maintain the request
for
a preliminary ruling, on the ground that the Trybunał Konstytucyjny (
Constitutional
Court)
did
not examine
whether
Article 8
complied
with
the principle of judicial independence set out in Article 178(1) of that
constitution.
Furthermore,
it stated that that judgment relates only to the Law accompanying the budget
for
2023,
whereas
the
dispute
in the main proceedings also involves
determining
whether
the Law accompanying the budget
for
2022 observes that principle.
class="C01PointnumeroteAltN">
NAME="point22">22 SR and RB,
who
are judges at the Vilniaus apygardos teismas (Regional
Court,
Vilnius, Lithuania), brought an action
for
damages
against the Republic of Lithuania before the Vilniaus apygardos administracinis teismas (Regional Administrative
Court,
Vilnius, Lithuania),
which
is the referring
court,
seeking payment of
damages
in the amount of EUR 74 286.09
for
SR and EUR 95 620.17
for
RB. They maintain that the
determination
of their remuneration
depends
on the political
will
of the executive and the legislature and that it
fails
to observe, inter alia, the
constitutional
principle of judicial independence.
23 SR and RB complain
that there is no legal mechanism allowing a
court
or a judge to require the executive and the legislature to set judges’ remuneration
commensurate
with
the
dignity
of their office, based on national economic indicators, and
consistent
with
the responsibilities of judges and the strict limitations imposed upon them, inter alia, as regards engaging in other
work.
class="C01PointnumeroteAltN">
NAME="point24">24 The Republic of Lithuania
contends,
for
its part, that the planning of the State budget and, in particular, of the rate of remuneration of public officials and public sector employees
falls
within
the prerogatives of the Government provided
for
in the
Constitution
of the Republic of Lithuania. In addition, the base rate of the remuneration of those public officials and public sector employees is set annually according to the resources and
financial
constraints
of the State,
with
the result that the latter
could
not have increased that base rate more quickly than it
did.
Furthermore,
from
2018 to 2023, that base rate has
duly
increased and has had a
direct
economic impact on private sector salaries and the national average salary, as
well
as a significant impact on the growth of the judicial salary
fund.
Lastly, the Republic of Lithuania submits that the establishment of the system
for
the remuneration of judges
falls
within
the exclusive
constitutional
discretion
of the State and its institutions.
25 The referring court
states that, under Article 3 of the Law on the remuneration of judges in
conjunction
with
the Annex thereto, the remuneration of the judges of the apygardos teismai (Regional
Courts)
is
calculated
by multiplying the base rate,
which
was
EUR 181
for
2022 and EUR 186
for
2023, by a salary
coefficient
of 17.2, that
coefficient
not having varied since 1 October 2013, except
for
the judges of the apylinkės teismai (
District
Courts,
Lithuania).
26 Excluding the seniority allowance, the remuneration of the judges of the apygardos teismai (Regional Courts)
was
EUR 2 440.85 (gross)
for
2008 and EUR 2 362 (gross)
for
2021, taking into account the tax reform introduced in 2019. Thus,
while
the remuneration of judges appears to have increased by approximately 8% over a 13-year period, in actual
fact
a judge’s remuneration has
decreased
by 3.2% in nominal terms
due
to that tax reform alone. In addition,
from
the end of 2021, judges’ remuneration
decreased
and
was
approaching the level of the national average salary. In the
first
quarter of 2022, the national average salary
was
EUR 1 729.90,
while
the average salary of a judge
was
EUR 3 113.20.
Furthermore,
judges are subject to particularly stringent requirements,
consisting
in, inter alia, the requirement to be of impeccable
conduct,
the requirement to perform their
duties
for
the same monthly remuneration regardless of
workload,
and the requirement not to engage in any other
work,
with
the exception of teaching and
creative
work.
class="C01PointnumeroteAltN">
NAME="point27">27 The referring
court
also states that, according to the Recommendations
concerning
the maximum amount of the
fee
for
the assistance provided by a lawyer or trainee lawyer to be awarded in
civil
cases,
approved in 2004 by the Minister
for
Justice of the Republic of Lithuania and the Lithuanian Bar Association, the amount of the hourly salary
for
a lawyer is EUR 179.9,
whereas
the gross hourly remuneration
for
a judge of an apygardos teismas (Regional
Court,
Lithuania), excluding the seniority allowance, is approximately EUR 20. Such a
difference
would
constitute
discrimination,
contrary
to the principle of equality and to Article 2 TEU, to the
detriment
of those judges as
compared
to lawyers in similar professions.
28 Lastly, the referring court
notes that it
follows
from
the judgment of 27
February
2018, Associação Sindical
dos
Juízes Portugueses (
C‑64/16,
EU:
C:2018:117),
that judicial independence means that the remuneration of national judges must be
determined
according to
criteria
independent of arbitrary intervention by the executive and the legislature and that the level of judges’ remuneration must be
commensurate
with
the importance of the
functions
they
carry
out,
which
is not the
case
here.
29 In that context,
that
court
states that it is required to ascertain
whether
a national system
for
the remuneration of judges
which
is
directly
dependent
on the political
will
of the legislature and the executive is
consistent
with
EU law and guarantees the values protected by Article 2 TEU as
well
as the principle of judicial independence enshrined in Article 47 of the
Charter.
class="C01PointnumeroteAltN">
NAME="point30">30 In those
circumstances
the Vilniaus apygardos administracinis teismas (Regional Administrative
Court,
Vilnius)
decided
to stay the proceedings and to refer the
following
questions to the
Court
of Justice
for
a preliminary ruling:
‘(1) Are the values of democracy,
the rule of law, respect
for
human rights and justice, enshrined in Article 2 TEU, and the provisions of the second subparagraph of Article 19(1) TEU, to be interpreted as
conferring
on the legislature and the executive of the Member States the unrestricted and exclusive
discretion
to set, by means of national legislation, the remuneration of judges at a rate that
depends
solely on the
will
of the legislature and the executive?
(2) Are the provisions of the second subparagraph of Article 19(1) TEU, as well
as those of Article 47 of the
Charter,
which
covers,
inter alia, the independence of the judiciary, to be interpreted as permitting the Member States to introduce, by means of national legislation, rules
which
set the remuneration of judges below the remuneration or
fees
set by the State in respect of members of other legal professions?’
Procedure before the Court
class="C01PointnumeroteAltN">
NAME="point31">31 By
decision
of the
Court
of 23 January 2024,
Cases
C‑146/23
and
C‑374/23
were
joined
for
the purposes of the oral part of the procedure and of the judgment.
The jurisdiction of the Court
and the admissibility of the request
for
a preliminary ruling in
Case
C‑374/23
class="C01PointnumeroteAltN">
NAME="point32">32 In its
written
observations, the Lithuanian Government submits, in the
first
place, that the
Court
does
not have jurisdiction to rule on the questions referred by the national
court
in that
case,
since EU law
does
not regulate either the level of remuneration of national judges or the
detailed
rules
for
determining,
calculating
or paying that remuneration.
33 However, that argument relates, in fact,
to the interpretation of the provisions of primary EU law referred to by the national
court
in its questions. As it is, an interpretation of those provisions
clearly
falls
within
the jurisdiction of the
Court
under Article 267 TFEU. Indeed, although the organisation of justice in the Member States
falls
within
the
competence
of those Member States, they are nonetheless required,
when
exercising that
competence,
to
comply
with
their obligations
deriving
from
EU law (see, to that effect, judgments of 18 May 2021, Asociaţia ‘
Forumul
Judecătorilor
din
România’ and Others,
C‑83/19,
C‑127/19,
C‑195/19,
C‑291/19,
C‑355/19
and
C‑397/19,
EU:
C:2021:393,
paragraph 111, and of 9 January 2024, G. and Others (Appointment of judges to the ordinary
courts
in Poland),
C‑181/21
and
C‑269/21,
EU:
C:2024:1,
paragraphs 57 and 58), in particular
where
they lay
down
the
detailed
rules
for
determining
judges’ remuneration.
34 In addition, the second subparagraph of Article 19(1) TEU is intended to apply, from
a substantive point of view, to any national judge or
court
capable
of ruling on questions
concerning
the interpretation or application of EU law and
which
therefore
fall
within
the
fields
covered
by EU law,
within
the meaning of that provision (see, to that effect, judgment of 11 July 2024, Hann-Invest and Others,
C‑554/21,
C‑622/21
and
C‑727/21,
EU:
C:2024:594,
paragraph 36 and the
case-law
cited).
That is the
case,
in particular, of the two applicants in the main proceedings in
Case
C‑374/23,
in their
capacity
as judges at the Vilniaus apygardos teismas (Regional
Court,
Vilnius).
35 It follows
that the questions referred in
Case
C‑374/23
fall
within
the jurisdiction of the
Court.
class="C01PointnumeroteAltN">
NAME="point36">36 In the second place, the Lithuanian Government submits that the request
for
a preliminary ruling is inadmissible, on the ground that the questions referred bear no relation to the
facts
or the purpose of the
dispute
in the main proceedings and that, therefore, the interpretation sought is not necessary in order to resolve that
dispute.
Thus, it states that, in the present
case,
no national measure specifically aimed at reducing judges’ remuneration is
challenged
and that,
during
the period in question, the remuneration of Lithuanian judges
duly
increased.
37 In that regard, it is settled case-law
that, in the
context
of the
cooperation
between the
Court
and the national
courts,
provided
for
in Article 267 TFEU, it is solely
for
the national
court
before
which
the
dispute
has been brought, and
which
must assume responsibility
for
the subsequent judicial
decision,
to
determine
in the light of the particular
circumstances
of the
case
both the need
for
a preliminary ruling in order to enable it to
deliver
judgment and the relevance of the questions
which
it submits to the
Court.
It
follows
that questions relating to EU law enjoy a presumption of relevance and that
where
the questions submitted
concern
the interpretation of EU law, the
Court
is in principle required to give a ruling. The
Court
may refuse to rule on a question referred by a national
court
for
a preliminary ruling only
where
it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual
facts
of the main action or its purpose,
where
the problem is hypothetical, or
where
the
Court
does
not have before it the
factual
or legal material necessary to give a useful answer to the questions submitted to it (judgment of 18 May 2021, Asociația ‘
Forumul
Judecătorilor
Din
România’ and Others,
C‑83/19,
C‑127/19,
C‑195/19,
C‑291/19,
C‑355/19
and
C‑397/19,
EU:
C:2021:393,
paragraphs 115 and 116 and the
case-law
cited).
class="C01PointnumeroteAltN">
NAME="point38">38 It is apparent
from
the request
for
a preliminary ruling that the referring
court
is hearing an action
for
damages
brought against the Republic of Lithuania, in
which
it is
claimed,
in essence, that the
discretion
enjoyed by the legislature and the executive of that Member State in order to
determine
judges’ remuneration
fails
to observe the principle of judicial independence. In that
context,
the referring
court
wishes
to ascertain, in order to be able to rule on that action,
whether
the
detailed
rules
for
determining
that remuneration and the amount of that remuneration itself are
consistent
with
that principle,
which
follows
from
Article 2 and the second subparagraph of Article 19(1) TEU and
from
Article 47 of the
Charter.
class="C01PointnumeroteAltN">
NAME="point39">39
Consequently,
an answer to the questions referred in
Case
C‑374/23,
which
concern
the interpretation of those provisions, appears necessary in order to enable the referring
court
to rule on the
dispute
in the main proceedings.
40 It follows
that the request
for
a preliminary ruling in
Case
C‑374/23
is admissible.
Consideration
of the questions referred
41 As a preliminary point, in so far
as, in
Case
C‑374/23,
the second question
concerns
the interpretation of Article 47 of the
Charter,
it must be pointed out that the recognition of the right to an effective remedy, in a given
case,
presupposes that the person invoking that right is relying on rights or
freedoms
guaranteed by EU law or that that person is the subject of proceedings
constituting
an implementation of EU law,
within
the meaning of Article 51(1) of the
Charter
(judgment of 22
February
2022, RS (Effect of the
decisions
of a
constitutional
court),
C‑430/21,
EU:
C:2022:99,
paragraph 34 and the
case-law
cited).
class="C01PointnumeroteAltN">
NAME="point42">42 However, it is not apparent
from
the request
for
a preliminary ruling that SR and RB satisfy either of those
conditions.
class="C01PointnumeroteAltN">
NAME="point43">43
Consequently,
in accordance
with
Article 51(1) of the
Charter,
Article 47 thereof is not, as such, applicable in
Case
C‑374/23.
Nevertheless, since the second subparagraph of Article 19(1) TEU requires all Member States to provide remedies sufficient to ensure effective judicial protection in the
fields
covered
by EU law,
within
the meaning in particular of Article 47 of the
Charter,
that latter provision must be
duly
taken into
consideration
for
the purposes of interpreting the second subparagraph of Article 19(1) TEU (judgments of 20 April 2021, Repubblika,
C‑896/19,
EU:
C:2021:311,
paragraphs 44 and 45, and of 22
February
2022, RS (Effect of the
decisions
of a
constitutional
court),
C‑430/21,
EU:
C:2022:99,
paragraphs 36 and 37).
44 That said, the questions referred in Cases
C‑146/23
and
C‑374/23,
which
it is appropriate to examine together, must be understood as seeking to ascertain, in essence,
whether
the second subparagraph of Article 19(1) TEU, read in
conjunction
with
Article 2 TEU, must be interpreted as meaning that the principle of judicial independence precludes:
– on the one hand, the legislature and the executive of a Member State from
laying
down
in a
discretionary
manner, in the legislation of that Member State, the
detailed
rules
for
determining
judges’ remuneration;
– on the other hand, the legislature and the executive of a Member State from
derogating
from
the legislation of that Member State,
which
defines
objectively the
detailed
rules
for
determining
judges’ remuneration, by
deciding
to increase that remuneration by less than is provided
for
by that legislation or even to
freeze
or reduce the amount of that remuneration.
45 In that regard, neither Article 2 TEU nor the second subparagraph of Article 19(1) TEU, nor any other provision of EU law requires Member States to adopt a particular constitutional
model governing the relationships and interaction between the various branches of the State, in particular as regards the
definition
and
delimitation
of their
competences.
Under Article 4(2) TEU, the European Union must respect the national identities of the Member States, inherent in their
fundamental
political and
constitutional
structures. However, in
choosing
their respective
constitutional
model, the Member States are required to
comply
with
their obligations
deriving
from
EU law (see, to that effect, judgment of 22
February
2022, RS (Effect of the
decisions
of a
constitutional
court),
C‑430/21,
EU:
C:2022:99,
paragraph 43 and the
case-law
cited).
class="C01PointnumeroteAltN">
NAME="point46">46 Indeed, in accordance
with
the settled
case-law
referred to in paragraph 33 above, although the organisation of justice in the Member States
falls
within
the
competence
of those States, the
fact
remains that,
when
exercising that
competence,
the Member States are nonetheless required to
comply
with
their obligations
deriving
from
EU law and, in particular,
from
Article 2 and the second subparagraph of Article 19(1) TEU (see, to that effect, judgment of 22
February
2022, RS (Effect of the
decisions
of a
constitutional
court),
C‑430/21,
EU:
C:2022:99,
paragraph 38 and the
case-law
cited).
That is the
case,
in particular,
where
they lay
down
the
detailed
rules
for
determining
judges’ remuneration.
47 Article 19 TEU, which
gives
concrete
expression to the value of the rule of law affirmed in Article 2 TEU, entrusts the responsibility
for
ensuring the
full
application of EU law in all Member States and the judicial protection that individuals
derive
from
EU law to national
courts
and tribunals and to the
Court
of Justice. To that end, maintaining the independence of those bodies is essential (see, to that effect, judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme
Court
– Actions),
C‑824/18,
EU:
C:2021:153,
paragraphs 108 and 115 and the
case-law
cited).
class="C01PointnumeroteAltN">
NAME="point48">48 The requirement that
courts
be independent,
which
is inherent in the task of adjudication, indeed
forms
part of the essence of the
fundamental
right to effective judicial protection and to a
fair
hearing,
which
is of
cardinal
importance as a guarantee that all the rights
which
individuals
derive
from
EU law
will
be protected and that the values
common
to the Member States set out in Article 2 TEU, in particular the value of the rule of law,
will
be safeguarded (judgments of 11 July 2024, Hann-Invest and Others,
C‑554/21,
C‑622/21
and
C‑727/21,
EU:
C:2024:594,
paragraph 49, and of 29 July 2024, Valančius,
C‑119/23,
EU:
C:2024:653,
paragraph 46).
49 The concept
of the independence of the
courts
presupposes, in particular, that the body
concerned
exercises its judicial
functions
wholly
autonomously,
without
being subject to any hierarchical
constraint
or subordinated to any other body and
without
taking orders or instructions
from
any source
whatsoever,
and that it is thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their
decisions.
Like the protection against removal
from
office of the members of the body
concerned,
the receipt by those members of a level of remuneration
commensurate
with
the importance of the
functions
they
carry
out
constitutes
a guarantee essential to judicial independence (judgment of 27
February
2018, Associação Sindical
dos
Juízes Portugueses,
C‑64/16,
EU:
C:2018:117,
paragraphs 44 and 45, and of 7
February
2019, Escribano Vindel,
C‑49/18,
EU:
C:2019:106,
paragraph 66).
50 More specifically, in accordance with
the principle of the separation of powers
which
characterises
the operation of the rule of law, the independence of the judiciary must be ensured in relation to the legislature and the executive (judgments of 19 November 2019, A. K. and Others (Independence of the
Disciplinary
Chamber
of the Supreme
Court),
C‑585/18,
C‑624/18
and
C‑625/18,
EU:
C:2019:982,
paragraph 124; of 20 April 2021, Repubblika,
C‑896/19,
EU:
C:2021:311,
paragraph 54; and of 22
February
2022, RS (Effect of the
decisions
of a
constitutional
court),
C‑430/21,
EU:
C:2022:99,
paragraph 42).
51 That said, the mere fact
that the legislature and the executive of a Member State are involved in
determining
judges’ remuneration is not, in itself, such as to
create
a
dependence
of those judges on the legislature or executive or to give rise to
doubts
as to the independence or impartiality of the judges. As the European
Commission
stated in its
written
observations, the Member States enjoy broad
discretion
when
drawing
up their budgets and
deciding
between the various items of public expenditure. That broad
discretion
includes
determining
the method of
calculating
that expenditure and, in particular, the judges’ remuneration. The national legislature and executive are indeed best placed to take into account the particular socio-economic
context
of the Member State in
which
that budget must be
drawn
up and judicial independence guaranteed.
52 The fact
remains nonetheless that national rules on judges’ remuneration must not give rise to reasonable
doubts,
in the minds of individuals, as to the imperviousness of the judges
concerned
to external
factors
and as to their neutrality
with
respect to the interests before them (see, by analogy, judgment of 20 April 2021, Repubblika,
C‑896/19,
EU:
C:2021:311,
paragraphs 56 and 57).
53 To that end, charters,
reports and other
documents
drawn
up by bodies of the
Council
of Europe or under the aegis of the United Nations may provide relevant guidance
for
the interpretation of EU law
where
national provisions are adopted on the subject.
54 As regards, in the first
place, the
detailed
rules
for
determining
judges’ remuneration, it is important,
first,
in accordance
with
the principle of legal
certainty,
that those rules be
determined
by law,
which
may provide
for
the involvement of the social partners, in particular the organisations representing the judges
concerned.
In that
context,
the transparency of the legislative procedure
contributes
to guaranteeing judicial independence.
55 In that regard, point 11 of the ‘Basic Principles on the Independence of the Judiciary’, adopted by the Seventh United Nations Congress
on the Prevention of
Crime
and the Treatment of Offenders, held in Milan on 26 August to 6 September 1985, provides that the adequate remuneration of judges must be ‘secured by law’. Similarly, Recommendation
CM/Rec(2010)12
of the
Committee
of Ministers of the
Council
of Europe, entitled ‘judges: independence, efficiency and responsibilities’, adopted on 17 November 2010 (‘the 2010 Recommendation of the
Committee
of Ministers’), states, at point 53 thereof, that ‘the principal rules of the system of remuneration
for
professional judges should be laid
down
by law’.
56 Furthermore,
the principle of judicial independence, read in
conjunction
with
the principle of legal
certainty,
requires that the
detailed
rules
for
determining
judges’ remuneration be objective,
foreseeable,
stable and transparent, so as to exclude any arbitrary intervention by the legislature and the executive of the Member State
concerned.
class="C01PointnumeroteAltN">
NAME="point57">57 Second, as referred to in paragraph 49 above, the receipt by judges of remuneration at a level
commensurate
with
the importance of the
functions
they
carry
out
constitutes
a guarantee essential to their independence.
58 In that regard, it is apparent from
the
case-law
arising
from
the judgment of 7
February
2019, Escribano Vindel (
C‑49/18,
EU:
C:2019:106,
paragraphs 70, 71 and 73), that the level of remuneration of judges must be sufficiently high, in the light of the socio-economic
context
of the Member State
concerned,
in order to
confer
on them a
certain
economic independence to protect them against any external interference or pressure that might undermine the neutrality of the judicial
decisions
they must take. Thus, the level of that remuneration must be such as to protect judges against the risk of
corruption.
class="C01PointnumeroteAltN">
NAME="point59">59 Point 54 of the 2010 Recommendation of the
Committee
of Ministers states that ‘judges’ remuneration should be
commensurate
with
their profession and responsibilities, and be sufficient to shield them
from
inducements aimed at influencing their
decisions’.
Point 57 of the Explanatory Memorandum to that recommendation specifies that ‘an adequate level of remuneration is a key element in the
fight
against
corruption
of judges and aims at shielding them
from
any such attempts’.
60 The remuneration of judges may, therefore, vary according to seniority and the nature of the functions
entrusted to them. In any event, it must always be
commensurate
with
the importance of the
functions
they
carry
out.
61 In order to assess whether
judges’ remuneration is adequate, account must be taken not only of the ordinary basic salary but also of the various bonuses and allowances that judges receive, in particular in respect of their seniority or the
duties
entrusted to them, and of any exemption
from
social security
contributions.
class="C01PointnumeroteAltN">
NAME="point62">62 In addition, the assessment of
whether
the judges’ remuneration is adequate must be made having regard to the economic, social and
financial
situation of the Member State
concerned,
as the Advocate General observed, in essence, in point 49 of his Opinion.
From
that point of view, it is appropriate to
compare
the average remuneration of judges to the average salary in that State, as highlighted in particular in the evaluation report on European judicial systems
drawn
up in 2020 by the European
Commission
for
the Efficiency of Justice (
CEPEJ)
(p. 68).
63 Furthermore,
as is apparent
from
that report (p. 67), in order to guarantee judicial independence and, more broadly, the quality of justice in a State governed by the rule of law, ‘justice policies should also
consider
the salaries of other legal professions in order to make the judicial profession attractive to highly qualified legal practitioners’. It
cannot,
however, be inferred
from
this that the principle of judicial independence precludes the remuneration of judges
from
being established at a level lower than that of the average remuneration of other legal professionals, in particular those exercising a liberal profession, such as lawyers,
where
they are
clearly
in a
different
situation
from
that of judges.
64 Third, the detailed
rules
for
determining
judges’ remuneration must be
capable
of being subject to effective judicial review in accordance
with
the procedural rules laid
down
by the law of the Member State
concerned.
class="C01PointnumeroteAltN">
NAME="point65">65 In the second place, as regards the possibility,
for
the legislature and the executive of a Member State, of
derogating
from
national legislation,
which
objectively
defines
the
detailed
rules
for
determining
judges’ remuneration, by
deciding
to increase that remuneration by less than is provided
for
by that legislation or even to
freeze
or reduce the amount of that remuneration, the adoption of such
derogating
measures must itself also satisfy a number of requirements.
66 First,
a
derogating
measure such as that referred to in the preceding paragraph must, like the general rules on the
determination
of judges’ remuneration
from
which
it
derogates,
be provided
for
by law. In addition, the
detailed
rules
for
the remuneration of judges provided
for
by that
derogating
measure must be objective,
foreseeable
and transparent.
67 Second, that derogating
measure must be justified by an objective in the general interest, such as a requirement to eliminate an excessive government
deficit,
within
the meaning of Article 126(1) TFEU (see, to that effect, judgments of 27
February
2018, Associação Sindical
dos
Juízes Portugueses,
C‑64/16,
EU:
C:2018:117,
paragraph 46, and of 7
February
2019, Escribano Vindel,
C‑49/18,
EU:
C:2019:106,
paragraph 67).
68 However, as the Advocate General observed in point 60 of his Opinion, the possibility for
a Member State of relying on such a requirement
does
not presuppose that a procedure under Protocol No 12 on the excessive
deficit
procedure, annexed to the EU and
FEU
Treaties, is initiated against it.
69 The budgetary reasons justifying the adoption of a measure derogating
from
the rules of ordinary law on judges’ remuneration must be
clearly
set out. In addition, subject to
duly
justified exceptional
circumstances,
those measures must not be aimed specifically at members of the national
courts
alone and must
form
part of a more general
framework
seeking to ensure that a
wider
set of members of the national
civil
service
contribute
to the budgetary effort
which
is being pursued (see, to that effect, judgments of 27
February
2018, Associação Sindical
dos
Juízes Portugueses,
C‑64/16,
EU:
C:2018:117,
paragraph 49, and of 7
February
2019, Escribano Vindel,
C‑49/18,
EU:
C:2019:106,
paragraph 67).
70 In that regard, point 54 of the 2010 Recommendation of the Committee
of Ministers provides that ‘specific legal provisions should be introduced as a safeguard against a reduction in remuneration aimed specifically at judges’. By
contrast,
as stated in point 57 of the Explanatory Memorandum to that recommendation, ‘public policies aiming at the general reduction of
civil
servants’ remuneration are not in
contradiction
with
the requirement to avoid reducing specifically judges’ remuneration’.
71 Thus, when
a Member State adopts budgetary restriction measures affecting its officials and public servants, it may, in a society in
which
solidarity prevails, as stated in Article 2 TEU,
decide
to apply those measures also to national judges.
72 Third, in accordance with
the principle of proportionality,
which
constitutes
a general principle of EU law (judgment of 8 March 2022, Bezirkshauptmannschaft Hartberg-
Fürstenfeld
(
Direct
effect),
C‑205/20,
EU:
C:2022:168,
paragraph 31), a
derogating
measure such as that referred to in paragraph 65 above must be appropriate
for
securing the attainment of the objective of general interest pursued, be limited to
what
is strictly necessary in order to attain that objective and not be
disproportionate
to that objective,
which
means that the importance of that objective must be
weighed
against the seriousness of the interference
with
the principle of judicial independence.
73 On that basis, a measure of that nature, if it appears appropriate for
the attainment of the objective of general interest referred to in paragraph 67 above, must nevertheless remain exceptional and temporary, inasmuch as it must not apply beyond the period necessary
for
the attainment of the legitimate objective pursued, such as the elimination of an excessive government
deficit.
class="C01PointnumeroteAltN">
NAME="point74">74
Furthermore,
the impact of that measure on judges’ remuneration must not be
disproportionate
to the objective pursued.
75 Fourth,
the preservation of judicial independence requires that, notwithstanding the application to the judiciary of a budgetary restriction measure, and even if such a measure
were
linked to the existence of a serious economic, social and
financial
crisis,
the level of remuneration of judges is always
commensurate
with
the importance of the
functions
they
carry
out, so that they remain shielded
from
external interventions or pressure liable to jeopardise their independent judgment and to influence their
decisions,
in accordance
with
the
case-law
referred to in paragraph 49 above.
76 Fifth,
a
derogating
measure such as that set out in paragraph 65 above must be
capable
of being subject to effective judicial review, under the
conditions
referred to in paragraph 64 above.
77 Although in proceedings under Article 267 TFEU it is not for
the
Court
to apply the rules of EU law to a particular
case,
it may, in order to provide an answer of use to the referring
courts,
provide guidance based on the
documents
relating to the main proceedings and on the
written
observations before it, in order to enable those
courts
to give judgment (see, to that effect, judgments of 20 June 1991, Newton,
C‑356/89,
EU:
C:1991:265,
paragraph 10; of 16 July 2015,
CHEZ
Razpredelenie Bulgaria,
C‑83/14,
EU:
C:2015:480,
paragraph 71; and of 7 November 2024,
Centro
di
Assistenza
Doganale
Mellano,
C‑503/23,
EU:
C:2024:933,
paragraph 85).
78 In Case
C‑146/23,
it is
for
the referring
court
to ascertain
whether,
as the Polish Government submitted before the
Court,
the measures
derogating
from
Article 91(1c) of the Law on the organisation of the ordinary
courts
which
were
applicable in 2022 and 2023 met an objective of general interest
consisting
in reallocating budgetary resources in a
context
characterised
by the
COVID-19
pandemic, the Russian
Federation’s
aggression against Ukraine and the unprecedented increase in energy prices resulting therefrom.
79 Given that Article 8 of the Law accompanying the budget for
2022 and Article 8 of the Law accompanying the budget
for
2023
were
specifically aimed at the remuneration of judges and prosecutors, such measures must be regarded, prima
facie,
as being
capable
of undermining the principle of judicial independence. However, having regard to the
considerations
set out in paragraphs 69 and 70 above and in the light of the evidence put
forward
by the Polish Government before the
Court,
it
cannot
be excluded –
which
it is, however,
for
the referring
court
to ascertain – that those measures,
while
specifically aimed at judges,
form
part of
wider
reforms also affecting the remuneration of other
categories
of officials or public servants. In particular, according to that evidence, those measures
could
in
fact
seek to apply, on a
deferred
basis, to judges budgetary restriction measures to
which
other
categories
of officials or public servants
were
subject
during
the preceding years.
80 In addition, it appears, subject to verification by the referring court,
that the two national provisions referred to in the preceding paragraph each applied
for
only one year. The salary measures at issue in the main proceedings thus appear to have been exceptional and temporary in nature,
which
seems to be
confirmed
by the
fact
that the mechanism
for
calculating
remuneration provided
for
in Article 91 of the Law on the organisation of the ordinary
courts
was
not repealed and
was
applied again in 2024, as the Polish Government and the
Commission
observed at the hearing before the
Court.
class="C01PointnumeroteAltN">
NAME="point81">81 It is also apparent
from
the
documents
before the
Court
that, again subject to verification by the referring
court,
those measures
did
not have the effect of
depriving
XL of his right to receive remuneration
which
was,
in view of the economic, social and
financial
context
of the Member State
concerned
and the average salary in that Member State,
commensurate
with
the importance of the
functions
he
carries
out. Although those measures may have resulted in a loss of purchasing power
for
XL, they
do
not appear, according to the information in the
file,
to have reduced the amount of his remuneration,
which
was
frozen
in 2021 and increased by 4.37% in 2022 and 7.8% in 2023. Moreover, the Polish Government and the
Commission
have stated that if the various bonuses, as
well
as the exemption
from
social security
contributions
enjoyed by Polish judges,
which
represents a saving of almost 14% of gross remuneration, are aggregated, their remuneration remained,
during
that period, three times the average salary in Poland.
82 Lastly, the reference for
a preliminary ruling made by the Są
d
Rejonowy
w
Białymstoku (
District
Court,
Białystok) in
Case
C‑146/23
is sufficient to
demonstrate
the possibility of effective judicial review of the salary measures at issue in the main proceedings.
83 Accordingly, subject to the checks
which
it is
for
the referring
court
to
carry
out, it is not apparent that Article 8 of the Law accompanying the budget
for
2022 and Article 8 of the Law accompanying the budget
for
2023
disregarded
the requirements arising
from
the principle of judicial independence, as
follows
from
second subparagraph of Article 19(1) TEU, read in
conjunction
with
Article 2 TEU.
84 As regards Case
C‑374/23,
first,
it is apparent
from
the information provided by the referring
court
that the
determination
of the remuneration of the judges of the apygardos teismai (Regional
Courts)
has a legal basis, namely Article 3 of the Law on the remuneration of judges; that provision states that the base rate of that remuneration is to be
fixed
each year by the legislature and the executive at a level
which
may not be lower than that of the preceding year and that it must take account of a number of objective
criteria,
such as the annual inflation rate
for
the preceding year,
which
depends
on the national
consumer
price index, the level of the minimum monthly salary and the impact of other
factors
affecting the level and evolution of the average salary in the public sector. Second, in the light of those
factors,
and subject to verification by the referring
court,
those
detailed
rules appear to be objective,
foreseeable,
stable and transparent.
85 In the event that the referring court
seeks to
call
in question the adequacy of the remuneration received by SR and RB, it has been noted in paragraph 62 above that the adequacy of judges’ remuneration must be assessed by taking into account the economic, social and
financial
situation of the Member State
concerned
and by
comparing
the average remuneration of judges to the average salary in that State.
86 As is apparent from
the evaluation report on European judicial systems
drawn
up in 2022 by the
CEPEJ
(p. 80), in 2020 the average gross remuneration of Lithuanian judges
corresponded,
at the beginning of their
career,
to 2.1 times the average gross salary in Lithuania and,
for
judges of the Lietuvos Aukščiausiasis Teismas (Supreme
Court
of Lithuania), to 2.9 times that average gross salary.
87 Admittedly, the referring court
also refers to a tax reform in 2019,
which,
it is stated, led to a reduction in the nominal remuneration of those judges. However, in the absence of any
details
of that reform in the order
for
reference, reliance on the application of that reform to the judges
cannot,
in itself, be sufficient to
conclude
that the principle of judicial independence has been undermined.
88 Consequently,
subject to the
checks
which
it is
for
the referring
court
to
carry
out, it is not apparent, in
Case
C‑374/23,
that the
detailed
rules
for
determining
the remuneration received by SR and RB
during
the period at issue in the main proceedings
failed
to have regard to the principle of judicial independence.
89 Lastly, the reference for
a preliminary ruling made by the Vilniaus apygardos administracinis teismas (Regional Administrative
Court,
Vilnius) in
Case
C‑374/23
is sufficient to
demonstrate
the possibility of effective judicial review of the salary measures at issue in the main proceedings in that
case.
class="C01PointnumeroteAltN">
NAME="point90">90 In the light of all the
foregoing
considerations,
the answer to the questions referred in
Cases
C‑146/23
and
C‑374/23
is that the second subparagraph of Article 19(1) TEU, read in
conjunction
with
Article 2 TEU, must be interpreted as meaning that the principle of judicial independence
does
not preclude:
– on the one hand, the legislature and the executive of a Member State from
determining
the remuneration of judges in so
far
as that
determination
does
not involve the exercise of an arbitrary power but is based on
detailed
rules
which:
class="C12Marge1avectiretlong">–
are provided
for
by law,
– are objective, foreseeable,
stable and transparent,
– ensure that judges receive a level of remuneration commensurate
with
the importance of the
functions
they
carry
out, having regard to the economic, social and
financial
situation of the Member State
concerned
and the average salary in that Member State, and
– may be subject to effective judicial review in accordance with
the procedural rules laid
down
by the law of that Member State;
– on the other hand, the legislature and the executive of a Member State from
derogating
from
national legislation,
which
defines
objectively the
detailed
rules
for
determining
judges’ remuneration, by
deciding
to increase that remuneration by less than is provided
for
by that legislation or even to
freeze
or reduce the amount of that remuneration, in so
far
as such a
derogating
measure
does
not involve the exercise of an arbitrary power but:
– is provided for
by law,
– sets detailed
rules
for
remuneration that are objective,
foreseeable
and transparent,
– is justified by an objective of general interest pursued in the context
of measures
which,
subject to
duly
justified exceptional
circumstances,
are not specifically aimed at judges but affect, more generally, the remuneration of other
categories
of officials or public servants,
– is necessary and strictly proportionate to the attainment of that objective, which
presupposes that the
derogating
measure remains exceptional and temporary and
does
not undermine the
commensurate
nature of judges’ remuneration
with
the importance of the
functions
they
carry
out, and
– may be subject to effective judicial review in accordance with
the procedural rules laid
down
by the law of the Member State
concerned.
class="C01PointnumeroteAltN">
NAME="point91">91 Since these proceedings are,
for
the parties to the main proceedings, a step in the action pending before the referring
courts,
the
decision
on
costs
is a matter
for
those
courts.
Costs
incurred in submitting observations to the
Court,
other than the
costs
of those parties, are not recoverable.
On those grounds, the Court
(Grand
Chamber)
hereby rules:
The second subparagraph of Article 19(1) TEU, read in conjunction
with
Article 2 TEU, must be interpreted as meaning that the principle of judicial independence
does
not preclude:
– on the one hand, the legislature and the executive of a Member State from
determining
the remuneration of judges in so
far
as that
determination
does
not involve the exercise of an arbitrary power but is based on
detailed
rules
which:
class="C34Dispositifmarge1avectiretlong">–
are provided
for
by law,
– are objective, foreseeable,
stable and transparent,
– ensure that judges receive a level of remuneration commensurate
with
the importance of the
functions
they
carry
out, having regard to the economic, social and
financial
situation of the Member State
concerned
and the average salary in that Member State, and
– may be subject to effective judicial review in accordance with
the procedural rules laid
down
by the law of that Member State;
– on the other hand, the legislature and the executive of a Member State from
derogating
from
national legislation,
which
defines
objectively the
detailed
rules
for
determining
judges’ remuneration, by
deciding
to increase that remuneration by less than is provided
for
by that legislation or even to
freeze
or reduce the amount of that remuneration, in so
far
as such a
derogating
measure
does
not involve the exercise of an arbitrary power but:
– is provided for
by law,
– sets detailed
rules
for
remuneration that are objective,
foreseeable
and transparent,
– is justified by an objective of general interest pursued in the context
of measures
which,
subject to
duly
justified exceptional
circumstances,
are not specifically aimed at judges but affect, more generally, the remuneration of other
categories
of officials or public servants,
– is necessary and strictly proportionate to the attainment of that objective, which
presupposes that the
derogating
measure remains exceptional and temporary and
does
not undermine the
commensurate
nature of judges’ remuneration
with
the importance of the
functions
they
carry
out, and
– may be subject to effective judicial review in accordance with
the procedural rules laid
down
by the law of the Member State
concerned.
class="C77Signatures">[Signatures]
class="C42FootnoteLangue">
HREF="#
Footref*"
NAME="
Footnote*">*
Languages of the
case:
Polish and Lithuanian.
i The name of the present case
is a
fictitious
name. It
does
not
correspond
to the real name of any of the parties to the proceedings.
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