Case C-64/16, Associação Sindical dos Juízes Portugueses – a pay cut ends judicial independence [judgment 2018, ECLI:EU:C:2018:117]
Portuguese judges claim their pay cut contravenes the principle of judicial independence enshrined in the EU Charter.
Background
Today’s Official Journal of the EU mentions a preliminary reference that has been made by the Portuguese Supremo Tribunal Administrativo.
From the question asked, it appears that the Association of Portuguese Judges [the Associação Sindical dos Juízes Portugueses] is challenging a pay cut imposed by the Portuguese State.
The legal basis to their challenge is that the pay cut is contrary to the principle of judicial independence which is enshrined in the EU Charter.
Question Referred
According to the Official Journal of the EU (OJ [2016] C156), the Portuguese Supremo Tribunal Administrativo has asked:
In view of the mandatory requirements of eliminating the excessive budget deficit and of financial assistance regulated by EU rules, must the principle of judicial independence, enshrined in the second subparagraph of Article 19(1) TEU, in Article 47 of the Charter of Fundamental Rights of the European Union […] and in the case-law of the Court of Justice, be interpreted as meaning that it precludes the measures to reduce remuneration that are applied to the judiciary in Portugal, where they are imposed unilaterally and on an ongoing basis by other constitutional authorities and bodies, as is the consequence of Article 2 of Law No 75/2014 of 12 September?
Update – 10 May 2016
Article 47 of the EU Charter and the issue of a fair trial is also at stake in a fresh reference from the Slovak Supreme Court for Administrative Law; see further, Case C-73/16, Puškár – privacy requires removal from a tax office blacklist.
Outcome. On 27 February 2018 the Grand Chamber ruled (ECLI:EU:C:2018:117) that Article 19(1) TEU obliges Member States to ensure that courts which may apply EU law meet the requirements of effective judicial protection, including independence — though Portugal’s general, temporary salary reductions, applied across the public sector, did not impair it. The judgment became the constitutional foundation for the rule-of-law case law that followed.
Comment
This is not the first time that public servants in Portugal have objected in court to a state imposed pay cut nor is it the first time that a preliminary reference has been made to the CJEU; see for example, Case C-128/12, Sindicato dos Bancários do Norte – does slashing public sector pay discriminate?
What remains to be seen is whether the CJEU will decide it has competence to deal with this preliminary reference. Earlier references involving the effects of austerity policies on the pay and working conditions of civil servants have prompted the CJEU to decline jurisdiction (Case C-128/12, Sindicato dos Bancários do Norte; Case C-665/13, Sindicato Nacional dos Profissionais de Seguros e Afins; and Case C-134/12, Corpul Naţional al Poliţiştilor – Biroul Executiv Central).
The ‘independence’ of a state regulator is currently at stake in a Spanish reference; see further, Case C-424/15, Ormaetxea Garai – dismissed so unfairly as to query the independence of regulators.
The ‘independence’ obligation in Article 3 of the EU’s ‘communications networks’ Directive 2002/21/EC has also been raised in a preliminary reference involving the Italian telecoms regulator, AGCOM. See further, Case C-240/15, ISTAT – independence, regulatory capture and economic crisis.
The independence of Italy’s AGCOM and the extent of its regulatory competence is also an issue in a recent reference from the Italian Council of State; see further, Case C-560/15, Europa Way – denied free access to Italy’s broadcasting frequencies.