1.

Is it solely for national law to determine the question whether or not judges fall within the scope ratione personae of Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC? ( 2 ) That is, in essence, the question which the Court has been asked to clarify in the present case. It is raised against the background of a national provision under which fee-paid part-time judges are not entitled to a pension.

2.

The EU framework for this case is formed by Directive 97/81/EC. ( 3 ) That directive implements the Framework Agreement on part-time work (hereinafter also ‘the Framework Agreement’), which was concluded on 6 June 1997 between the general cross-industry organisations (UNICE, CEEP and the ETUC) and is annexed to the directive.

3.

Directive 97/81 did not initially apply to the United Kingdom. Its application was extended to the United Kingdom by Council Directive 98/23/EC of 7 April 1998. ( 4 )

4.

Clause 2.1 of the Framework Agreement defines its scope as follows:

5.

The United Kingdom transposed Directive 97/81 with the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000 No 1551), which were made on 8 June 2000 and came into force on 1 July 2000 (‘the Regulations’).

6.

Regulation 17, entitled ‘Holders of judicial offices’, provides:

‘These Regulations do not apply to any individual in his capacity as the holder of a judicial office if he is remunerated on a daily fee-paid basis.’

7.

According to the order for reference, until the 1970s the United Kingdom had only few part-time judges. These part-time judges were remunerated by fees calculated on a daily basis. After the Courts Act 1971 entered into force, the number of part-time judges grew considerably. There are now almost twice as many part-time judges (recorders and deputy judges) as full-time judges. In the case of immigration judges too, the number of part-time judges is much higher than the number of full-time judges. All part-time judges were initially paid on the basis of fees for each day’s sitting or for each day’s work (‘fee-paid part-time judges’), but since about 2000 there has been an increase in salaried part-time judges, especially among immigration judges.

8.

Mr O’Brien is a barrister and Queen’s Counsel. He was also appointed as a recorder in 1978. In the United Kingdom, recorders are part-time judges who work at the Crown Court. He then sat as a recorder, following regular extensions of his term, until 31 March 2005. As a recorder he was paid on a fee basis for each day’s sitting or working day. The amount of salary received by a recorder is equivalent on a pro-rata basis to the salary of a full-time judge.

9.

Under the applicable provisions, as a recorder, Mr O’Brien was entitled to be offered a minimum of 15 sitting days a year and could be required to sit for up to 30 days.

10.

All part-time judges are entitled (where appropriate) to sick pay, maternity or paternity pay, and similar benefits during service. Full-time judges and salaried part-time judges are entitled to pensions on retirement. Fee-paid part-time judges, on the other hand, have no entitlement to a pension on retirement.

11.

Mr O’Brien claimed a pension equivalent pro rata temporis to that of a full-time judge who essentially performed the same work. He was refused this by the United Kingdom Ministry of Justice. Mr O’Brien challenges the refusal of the pension claims in the main proceedings. He relies on Directive 97/81. The main proceedings are now at appeal before the Supreme Court of the United Kingdom.

12.

By order of 28 July 2010, the Supreme Court of the United Kingdom stayed its proceedings and referred the following questions to the Court of Justice for a preliminary ruling:

13.

In the proceedings before the Court, written observations were submitted by, in addition to the appellant in the main proceedings, Ireland, the Latvian, Portuguese and United Kingdom Governments, and the European Commission. The appellant in the main proceedings, the Council of Immigration Judges, Ireland, the Latvian and United Kingdom Governments and the Commission took part in the hearing.

14.

The Latvian Government has doubts as to the admissibility of the reference for a preliminary ruling, since the majority of Mr O’Brien’s work as a recorder, in respect of which he is now claiming a pension, took place before the entry into force of Directive 98/23, which extended the application of the directive on part-time work to the United Kingdom. The directive entered into force on 7 April 1998 and gave the United Kingdom until 7 April 2000 for transposition. Mr O’Brien had worked as a recorder since 1 March 1978. His last appointment was in 1999 and he sat as a recorder until 31 March 2005.

15.

The Latvian Government considers that Directive 98/23 and thus Directive 97/81 can be applied only to events occurring after the expiry of the transposition period or at least since its entry into force.

16.

In connection with the applicability ratione temporis of Directive 97/81, however, the Court has already referred to the principle that new rules apply, unless otherwise specifically provided, immediately to the future effects of a situation which arose under the old rule. It inferred that the calculation of the period of service required to qualify for a retirement pension is governed by Directive 97/81, including periods of employment before the directive entered into force. ( 5 )

17.

The questions referred are therefore admissible.

18.

By its first question, the referring court is seeking to ascertain whether it is for national law or EU law to determine the notion of worker for the purposes of the Framework Agreement.

19.

The background to this question asked by the referring court is that Mr O’Brien, who worked as a fee-paid part-time judge (recorder), relies on the directive in order to claim a pension entitlement in respect of his work. In his view, the refusal to award a pension constitutes discrimination compared with full-time judges. In order to ascertain whether the relationship between full-time and fee-paid part-time judges is determined under the Framework Agreement, the referring court must clarify, as a preliminary question, whether professional judges fall, as a category, within the scope of the directive. The referring court has not yet definitively decided whether a recorder is to be regarded as a worker under national law. ( 6 )

20.

The scope ratione personae of the Framework Agreement is defined in clause 2.1. Under that provision, it applies to ‘part-time workers who have an employment contract or employment relationship as defined by the law, collective agreement or practice in force in each Member State’.

21.

In the light of the fact that in some cases recorders work only a very few days each year, ( 7 ) it should first be pointed out that, according to the order for reference, the Ministry of Justice, as the respondent in the main proceedings, has not relied, even in the alternative, on clause 2.2 of the Framework Agreement. That provision gives the Member States the option, after consultation with the social partners, to exclude part-time workers who work on a casual basis, for objective reasons, wholly or partly from the scope of the Framework Agreement.

22.

In my Opinion in Wippel, I had inferred from the wording of clause 2.1 that the term ‘worker’ is not a EU-law concept for the purposes of the Framework Agreement on part-time work, but has to be defined in reliance upon the law, collective agreements and practices in force in each Member State. The Member States have wide discretionary powers in this respect. Only the very broadest limits can be determined in this respect by reference to EU law. It could therefore constitute a breach of the duty of cooperation (Article 4 TEU) if a Member State were to define the term ‘worker’ so narrowly under its national law that the Framework Agreement on part-time work were deprived of any validity in practice and achievement of its purpose were greatly obstructed. ( 8 )

23.

In its judgment in Wippel, the Court merely stated that workers come within the scope of the Framework Agreement annexed to Directive 97/81 where they have a contract or employment relationship as defined by the law, collective agreement or practices in force in the Member State, without, however, making any further statements on the definition of the term. ( 9 )

24.

However, a feature of Wippel was that the national law had a very broad conception of the term ‘worker’ and the question arose whether this can still come under the Framework Agreement. ( 10 ) The Court could therefore merely point out that even a very broad conception of the term ‘worker’ existing in national law still comes under the directive. In the present case, conversely, the question arises whether it is contrary to the Framework Agreement if national law excludes professional judges from the scope of the Framework Agreement. The Court’s statement in Wippel does not therefore offer any further assistance on this question.

25.

All the parties have pointed out that there is no single definition of worker in EU law. ( 11 ) For example, in the field of equal treatment for male and female workers, the term ‘worker’ is an autonomous EU-law notion, which must be given a broad interpretation. In this connection civil servants may also be regarded as workers. ( 12 ) In the field of the safeguarding of employees’ rights, the Court has stressed, in connection with the Working Time Directive, the need for an autonomous, uniform definition of working time in the European Union, even though here too the wording of the directive referred to national law. ( 13 ) With regard to the Directive on transfers of undertakings, however, it has ruled that in determining the scope regard must be had solely to the definition of worker laid down in national legislation. ( 14 )

26.

In so far as some of the parties invoke Article 51 TFEU, which provides for an exception in relation to freedom of establishment for activities connected with the exercise of official authority, it should be noted that it is not possible to infer from this any inferences as to the definition of the term ‘worker’ in the Framework Agreement on part-time work. The Framework Agreement on part-time work does not concern freedom of movement for workers, but confers on all workers in the Member States rights in connection with part-time work.

27.

Del Cerro Alonso is of particular interest to the present case. ( 15 ) That case concerned the question of the scope ratione personae of the directive and the Framework Agreement on fixed-term work. Clause 2 of the Framework Agreement on fixed-term work contains a definition of its scope which is identical to the Framework Agreement on part-time work. ( 16 )

28.

After the Court had already found that the Framework Agreement on fixed-term work can apply also to employment contracts concluded with public authorities and other public-sector bodies, ( 17 ) it was now called upon to decide whether the Framework Agreement also covers civil servants. As in the present case — and unlike the case of Wippel — it was not a question of possible limits to a broad definition of worker in the Member States, but, on the contrary, the question whether the directive obliges a Member State to grant rights under the Framework Agreement also to a civil servant.

29.

In its judgment in Del Cerro Alonso, it ruled that the mere fact that a post may be classified as ‘regulated’ under national law and has certain characteristics typical of the civil service in the Member State in question is not sufficient to reject the applicability of Directive 1999/70.

30.

In reserving to Member States the ability to remove at will certain categories of persons from the protection offered by Directive 1999/70 and the Framework Agreement, the effectiveness of those EU instruments would be in jeopardy, as would their uniform application in the Member States. Rather, the Member States are required to guarantee the result imposed by EU law. ( 18 )

31.

As grounds, the Court cited the importance of the principles of equal treatment and non-discrimination, which are general principles of EU law. The provisions of the directive and the Framework Agreement which seek to ensure that fixed-term workers enjoy the same benefits as those enjoyed by comparable permanent workers must be deemed to be of general application since they are rules of EU social law of particular importance, from which each employee should benefit as a minimum protective requirement. ( 19 )

32.

A crucial factor for the Court in accepting the applicability of Directive 1999/70 and the Framework Agreement in that case was thus the fact that the person in question had worked for more than 12 years in various hospitals within the public health system of the Basque Country as a member of the temporary staff and that, moreover, the dispute in the main proceedings concerned the comparison between a member of the temporary regulated staff and a member of the permanent regulated staff.

33.

At first glance, this passage of the Del Cerro Alonso judgment might appear circular: because a person was employed on a temporary basis and the situation to be decided concerned the relationship between the member of the temporary regulated staff and the member of the permanent regulated staff, the situation is to fall within the scope of the directive. In that connection it was indeed first necessary to clarify the preliminary question whether regulated staff fall at all within the scope of the Framework Agreement and to infer from it criteria for the comparison between temporary and permanent employees. Otherwise, the directive would always automatically apply where potential discrimination against temporary employment is at issue. The reference in clause 2 of the Framework Agreement to the law of the Member States would then be redundant.

34.

However, I understand the judgment in Del Cerro Alonso to the effect that the Court essentially leaves it for the Member States to define the term ‘worker’ for the purposes of the Framework Agreement on fixed-term work and does not regard it an autonomous EU-law notion. Nevertheless, the effectiveness of the Framework Agreement and the general principles of EU law place limits on the discretion enjoyed by the Member States. In his Opinion in Del Cerro Alonso, Advocate General Maduro rightly spoke of a ‘conditional renvoi’ in national law. ( 20 )

35.

This approach can be applied to the interpretation of the Framework Agreement on part-time work. First of all, its wording regarding the scope ratione personae is identical. ( 21 ) Secondly, as the Commission also rightly states, they have the same regulatory context, since both flesh out the general principle of equal treatment for a certain form of organisation of work. Furthermore, both Framework Agreements and the associated directives were adopted in the same procedure and are identically structured. ( 22 )

36.

Moreover, the 16th recital in the preamble to Directive 97/81 on part-time work in particular, also points out that the Member States are to define the terms which are not specifically defined in the Framework Agreement in accordance with national law and practice, but only ‘providing that the said definitions respect the content of the Framework Agreement’.

37.

Consequently, also in connection with the scope of application of the directive and the Framework Agreement on part-time work, a Member State may not infringe the general principles and fundamental rights under EU law nor remove at will certain categories of persons from the protection offered by those instruments and thereby impair the practical effect of the directive. ( 23 )

38.

First of all, the general principles and fundamental rights under EU law place limits on the discretion of the Member States when they define the area of application of the Framework Agreement, as I have just noted.

39.

The appellant in the main proceedings refers in this respect to Regulation 17 in national law, which explicitly excludes only fee-paid part-time judges, and not all judges, from the measures implementing the directive. If only fee-paid judges were indeed excluded arbitrarily from the measures transposing the Framework Agreement, this could be a breach of the general principle of equality under EU law. ( 24 ) At the hearing before the Court, however, the United Kingdom Government stated that Regulation 17 is only for purposes of clarification and judges are not generally regarded as workers in national law. It will be for the referring court to decide this point.

40.

But when does a Member State otherwise exceed the bounds of the discretion accorded to it in defining the term ‘worker’ and arbitrarily remove a professional category from the protection offered?

41.

In answering this question, it must first be examined what protection is offered by the Framework Agreement. Directive 97/81 and the Framework Agreement annexed thereto are intended to improve the quality of part-time work and to remove discrimination against part-time workers. ( 25 ) The prohibition of discrimination laid down therein is simply a specific expression of the general principle of equality, ( 26 ) which is one of the fundamental principles of EU law and is enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union. ( 27 )

42.

The Framework Agreement thus pursues an objective which is one of the fundamental objectives referred to in Article 1 of the Agreement on Social Policy and incorporated into Article 151 TFEU and the third recital in the preamble to the TFEU. Those fundamental objectives are linked to the improvement of living and working conditions and proper social protection for workers.

43.

In order not to jeopardise the attainment of those objectives of the Framework Agreement, as Advocate General Maduro argued convincingly in his Opinion in Del Cerro Alonso, the exclusion of a category of persons from the scope cannot be accepted unless the nature of the employment relationship is substantially different from that between employees falling, according to national law, within the category of ‘workers’ and their employers. ( 28 )

44.

It is necessarily for the referring court to undertake a definitive examination of the difference in nature. However, the Court can identify for the national court criteria which are to be taken into consideration in the examination. ( 29 )

45.

It follows from the criterion of a difference in nature, first of all, that purely formal grounds cannot justify the exclusion of a category of persons.

46.

The Commission is therefore right to argue that the purely formal fact ( 30 ) that judges are classified as ‘holders of office’ is not sufficient in itself to deny judges the enjoyment of the rights stemming from the Framework Agreement. The referring court also asks whether the number of persons affected may be relevant for recognition of status as a worker. However, this would also be too formal a criterion which has no connection with the nature of the employment relationship.

47.

The Supreme Court stated in its order for reference that judicial office partakes of most of the characteristics of an employment relationship in national law. Difficulties are only raised by the criterion of being subject to directions, which characterises an employment relationship in national law. The United Kingdom Government has also emphasised that the removal of judges from the scope of the Framework Agreement can be explained by the independence of the judiciary.

48.

When examining the nature of the employment relationship it must be borne in mind that the term ‘worker’ used in the definition of the scope ratione personae of the Framework Agreement serves in particular to draw a distinction with a self-employed person. In examining whether the nature of a judge’s employment relationship is substantially different from that between employees falling, according to national law, within the category of ‘workers’ and their employers, the referring court will therefore have to bear in mind that, in order to have regard to the spirit and purpose of the Framework Agreement, that distinction must be made in particular in the light of the differentiation with self-employed persons.

49.

The appellant in the main proceedings states that the independence of judges refers to the essence of their activity, thus the independence in their judicial activities. As far as the external conditions of a judge’s activity are concerned, the referring court refers to a judgment of the House of Lords ( 31 ) holding that judges are nevertheless subject to some organisation of their work. Thus judges are expected to work during defined times and periods, even though this can be managed by the judges themselves with a greater degree of flexibility. Judges are not free agents to work as and when they choose, as are self-employed persons.

50.

In this connection, I would also point out that it is difficult to determine how the rights granted by the Framework Agreement in general, and an entitlement to a retirement pension in particular, can jeopardise the essence of the independence of a judge; on the contrary, an entitlement to a retirement pension strengthens the economic independence of judges, and thus ultimately also the essence of their independence.

51.

Independence in terms of the essence of an activity is not therefore an appropriate criterion for justifying the exclusion of a professional category from the scope of the Framework Agreement.

52.

In determining whether the nature of judicial office is substantially different from that of an employee according to national law, the referring court will also have to bear in mind that, according to the order for reference, judges — including fee-paid judges — are entitled to sick pay, maternity or paternity pay, and similar benefits. Accordingly, they appear to enjoy social rights generally associated with workers. If judges are treated in the same way as workers in this respect, even though they cannot, formally, be regarded as workers, this can be seen as an indication that the nature of their office is not substantially different from what is regarded as an employment relationship according to national law. Judges would then have to be treated at least in the same way as workers also with regard to the Framework Agreement on part-time work.

53.

The answer to the first question is therefore that the question whether judges are to be regarded as part-time workers within the meaning of clause 2.1 of the Framework Agreement on part-time work is determined by national law, but the practical effect of the Framework Agreement and the general principles and fundamental rights under EU law nevertheless place limits on the discretion of the Member States in defining the concept of ‘worker’. Independence in terms of the essence of an activity is in itself not an appropriate criterion for excluding a professional category from the scope of the Framework Agreement.

54.

The second question is asked in the event that the referring court concludes that judges fall within the scope of the directive. By that question, the referring court is seeking to ascertain whether it is permissible for national measures to discriminate between full-time and part-time judges, or between different kinds of part-time judges, in the provision of pensions.

55.

In keeping with the objective of eliminating discrimination between part-time and full-time workers, clause 4 of the Framework Agreement lays down the principle of non-discrimination. Clause 4.1 prohibits, in respect of employment conditions, part-time workers being treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds. Clause 4.2 provides that, where appropriate, the principle of pro rata temporis applies.

56.

The Court has already ruled that clause 4 of the Framework Agreement articulates a principle of EU social law which cannot be interpreted restrictively. ( 32 ) Taking that case-law on Article 157 TFEU into account, the term ‘employment conditions’ within the meaning of clause 4.1 of the Framework Agreement therefore also includes pensions where they depend on an employment relationship between worker and employer; this excludes statutory social security pensions, which are determined less by that relationship than by considerations of social policy. ( 33 )

57.

A retirement pension falls within the scope of the Framework Agreement where the following three conditions are satisfied: the pension concerns only a particular category of workers, it is directly related to the period of service completed and its amount is calculated by reference to the last salary. ( 34 )

58.

I have already stated in the course of the examination of admissibility that the provisions of Directive 97/81 apply to the calculation of the period of service required to qualify for a retirement pension, including periods of employment before the directive entered into force. ( 35 )

59.

It must therefore be examined whether the failure to grant a pension to recorders means that they are treated in a less favourable manner than full-time workers in a comparable situation solely because they work part time.

60.

Clause 3 gives criteria for the examination whether there is a ‘comparable full-time worker’. It concerns the essence of the activity of the persons in question. The argument made by the United Kingdom Government that full-time judges and recorders are not in a comparable situation because they have ‘different careers’ cannot therefore be relevant. The crucial factor is, rather, whether they perform the same essential activity. At the hearing, the parties submitted that recorders and full-time judges have the same functions. The question of ‘different careers’ can thus be relevant at best for the objective justification of different treatment. It will be for the referring court, however, to examine definitively the question whether recorders and full-time judges are comparable.

61.

Under clause 4.1 of the Framework Agreement, however, such different treatment can be considered compatible with the principle of non-discrimination if it is justified on objective grounds.

62.

The unequal treatment at issue must therefore be justified by the existence of precise, concrete factors, characterising the employment condition concerned in its specific context and on the basis of objective and transparent criteria for examining the question whether that unequal treatment responds to a genuine need and whether it is appropriate and necessary for achieving the objective pursued. ( 36 )

63.

The concept of ‘objective grounds’ must be understood as not permitting a difference in treatment between part-time and full-time workers to be justified on the basis that the difference is provided for by a general, abstract norm. Rather, the unequal treatment must respond to a genuine need, be appropriate for achieving the objective pursued and be necessary for that purpose. ( 37 )

64.

In so far as the United Kingdom has argued that a difference in treatment between recorders and full-time judges can be explained by the fact that fee-paid judges are able to continue their other careers in the legal profession or in academia, whilst salaried part-time judges are not able to do this, and any fee-paid judge is free to apply for a position as a salaried part-time judge, it must therefore be stated that this formal argument is not sufficient in itself as a justification.

65.

The difference in treatment could be justified only if it served a legitimate purpose underlying the formal argument of different careers. No such purpose has been asserted in the proceedings before the Court, however. Further justifications have not been put forward either. This can be explained by the fact that the justification of a potential difference in treatment has not thus far been the subject-matter of the main proceedings. So far, the referring court has only dealt with the preliminary question whether the Framework Agreement is actually applicable. The question of the possible justification of a difference in treatment between part-time and full-time judges will therefore have to be examined definitively by the referring court.

66.

The referring court also asks whether the directive also precludes discrimination between different kinds of part-time employment.

67.

According to their wording and the overall regulatory context, Directive 97/81 and its Framework Agreement concern only the elimination of discrimination against part-time workers in comparison with full-time workers. Under the directive, the Member States are therefore in principle at liberty to adopt different rules for different kinds of part-time work.

68.

In her Opinion in Bruno and Pettini, however, Advocate General Sharpston argued convincingly that even though the Framework Agreement prohibits only discrimination against part-time workers in comparison with full-time workers, the implementing measures enacted by the Member States must be coherent and comply with the general principles of EU law, in particular the principle of equal treatment. It follows that Member States cannot introduce distinctions between various types of part-time work that infringe the general prohibition on discrimination in EU law. ( 38 )

69.

The United Kingdom Government disputes this line of argument in the present case, objecting that the treatment of part-time workers among themselves does not fall within the scope of the Framework Agreement and thus of EU law, with the result that the general principle of equal treatment under EU law is not applicable. ( 39 ) I am not convinced by this argument. Just as, for example, the Member States may not breach the principle of equal treatment between men and women in implementing the Framework Agreement in national law, they are not permitted to introduce arbitrary distinctions between various types of part-time work that infringe the general prohibition on discrimination, which forms part of EU law. EU law is applicable because the national measures serve to implement the Framework Agreement.

70.

The answer to the second question must therefore be that the Framework Agreement on part-time work precludes a national provision which discriminates between full-time and part-time judges and among part-time judges in the provision of pensions, where that difference in treatment is not objectively justified.

71.

In the light of the above statements, I propose that the questions asked by the Supreme Court of the United Kingdom be answered as follows: