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Document 62018CJ0049

Judgment of the Court (Second Chamber) of 7 February 2019.
Carlos Escribano Vindel v Ministerio de Justicia.
Request for a preliminary ruling from the Tribunal Superior de Justicia de Cataluña.
Reference for a preliminary ruling — Budgetary austerity measures — Reduction of remuneration in the national civil service — Method — Differential impact — Social policy — Equal treatment in employment and occupation — Directive 2000/78/EC — Article 2(1) and (2)(b) — Charter of Fundamental Rights of the European Union — Article 21 — Judicial independence — Second subparagraph of Article 19(1) TEU.
Case C-49/18.

Digital reports (Court Reports - general)

ECLI identifier: ECLI:EU:C:2019:106

Provisional text

JUDGMENT OF THE COURT (Second Chamber)

7 February 2019 (*)

(Reference for a preliminary ruling — Budgetary austerity measures — Reduction of remuneration in the national civil service — Method — Differential impact — Social policy — Equal treatment in employment and occupation — Directive 2000/78/EC — Article 2(1) and (2)(b) — Charter of Fundamental Rights of the European Union — Article 21 — Judicial independence — Second subparagraph of Article 19(1) TEU)

In Case C‑49/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Superior de Justicia de Cataluña (High Court of Justice, Catalonia, Spain), made by decision of 28 December 2017, received at the Court on 26 January 2018, in the proceedings

Carlos Escribano Vindel

v

Ministerio de Justicia

THE COURT (Second Chamber),

composed of A. Arabadjiev (Rapporteur), President of the Chamber, E. Levits, M. Berger, C. Vajda and P.G. Xuereb, Judges,

Advocate General: H. Saugmandsgaard Øe,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        Mr Escribano Vindel, by himself,

–        the Spanish Government, by M.J. García-Valdecasas Dorrego and A. Gavela Llopis, acting as Agents,

–        the European Commission, by L. Flynn, H. Krämer and J. Baquero Cruz, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of the second paragraph of Article 19(1) TEU, Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 2(1) and (2)(b) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

2        The request has been made in proceedings between Mr Carlos Escribano Vindel and the Ministerio de Justicia (Ministry of Justice, Spain) concerning the reduction of his remuneration in the context of the Spanish State’s budgetary policy guidelines.

 Legal context

 EU law

3        Article 1 of Directive 2000/78 is worded as follows:

‘The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.’

4        Article 2(1) and (2)(b) of that directive provides:

‘1.      For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.

2.      For the purposes of paragraph 1:

...

(b)      indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:

(i)      that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, ...

...’

5        Article 6(1)(b) of that directive is worded as follows:

‘1.      Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.

Such differences of treatment may include, among others:

...

(b)      the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment’.

 Spanish law

6        Article 299 of the Ley Orgánica 6/1985 del Poder Judicial (Basic Law 6/1985 on the Judiciary) of 1 July 1985 (BOE No 157, of 2 July 1985, p. 20632), provides that the judiciary comprises three levels, namely senior judge (magistrado) of the Tribunal Supremo (Supreme Court, Spain), senior judge (magistrado) and ordinary judge (juez).

7        Article 32(One)II(1) of Ley 26/2009 de Presupuestos Generales del Estado para el año 2010 (Law 26/2009 on the National Budget for 2010) of 23 December 2009 (BOE No 309 of 23 December 2009, p. 108804; ‘the LPGE 2010’) provides that, as from 1 June 2010 the basic salaries of the various categories making up the judiciary are to be reduced by 9.73% as compared with salaries paid prior to that point.

8        The second subparagraph of Article 32(One)II(4) of the LPGE 2010 reads as follows:

‘Additional remuneration for members of the judiciary and the public prosecution service will be reduced by 6% per annum in the case of senior judges and public prosecutors and by 5% per annum in the case of judges and lawyer-prosecutors, as compared with the rates applicable at 31 May 2010.’

9        Article 1 of Real Decreto-Ley 8/2010 (Royal Decree-Law 8/2010) of 20 May 2010 (BOE No 126 of 24 May 2010, p. 45070) amended Article 32 of the LPGE 2010 as regards the remuneration of judges and public prosecutors for the period 1 January to 31 May 2010.

10      Article 31(One) of Ley 39/2010 de Presupuestos Generales del Estado para el año 2011 (Law 39/2010 on the National Budget for 2011) of 22 December 2010 (BOE No 311 of 23 December 2010, p. 105744; ‘the LPGE 2011’) provides, first, that the various categories within the judiciary are to receive the same amounts by way of salary as those set by Article 32(One)(II)(1) of the LPGE 2010, as amended by Royal Decree-Law 8/2010 of 20 May 2010 and, second, that their additional remuneration was not to increase as compared with the rates applicable at 31 December 2010.

 The dispute in the main proceedings and the questions referred for a preliminary ruling

11      Mr Escribano Vindel, a senior judge of the Juzgado de lo Social n 26 de Barcelona (Barcelona Social Court No 26, Spain) (a single-judge court), brought before the Tribunal Superior de Justicia de Cataluña (High Court of Justice, Catalonia, Spain) a complaint concerning his salary slips for 2011, claiming, first, that they represent administrative acts adopted on the basis of Article 31(One) of the LPGE 2011 and, second, that they entail a ‘substantial reduction as compared with the equivalent periods in the previous year’, contrary to the Spanish Constitution.

12      By order dated 30 March 2015, the referring court submitted a question to the Tribunal Constitucional (Constitutional Court, Spain) concerning whether Article 31(One) of the LPGE 2011 is consistent with the Spanish Constitution. In that order it noted that it is clear from a report by the Ministry of Justice that for ordinary judges, who are on pay grade 5 and earn the least, the reduction in salary was 7.16%; for senior judges sitting in single-judge courts, such as Mr Escribano Vindel, who are on pay grade 4, the reduction was 6.64%; and for senior judges who, on pay grade 1, earn the most, the reduction was 5.90%.

13      By order dated 15 December 2015, the Tribunal Constitucional (Constitutional Court) sitting in plenary session declared that question inadmissible and held that the provision in question did not infringe, inter alia, the principle of equality established in Article 14 of the Spanish Constitution. The Constitutional Court held that the members of the Spanish judiciary in question are not in an objectively comparable situation since they are grouped into separate categories and occupy different posts.

14      By order dated 24 February 2016, the referring court invited the parties to submit their observations on whether the salary reduction measures that had been adopted were discriminatory under the terms of the Charter. In response, Mr Escribano Vindel claimed that those measures amounted to indirect discrimination on grounds of age and/or length of service, since the salary reduction is greatest for the category of ordinary judge on pay grade 5, which is the entry point to the judiciary and contains the youngest members with the shortest length of service. Accordingly, an apparently neutral provision has a proportionately more negative impact on those who are younger and/or have a shorter length of service.

15      The referring court is uncertain, in the first place, whether the national legislation in question, which forms part of the objective, imposed by the European Union, of reducing the public deficit, constitutes discrimination on grounds of age, prohibited by the Charter and by Directive 2000/78. It notes, in that regard, that the rate of salary reduction brought about by that legislation is higher for ordinary judges (pay grade 5) and for senior judges sitting in single-judge courts (pay grade 4) than for the other categories of judges. It considers that, as such, the youngest judges with the shortest length of service make a greater contribution to the reduction of the public deficit, without the particular burden imposed on them being justified by a relevant objective reason.

16      The referring court is uncertain, in the second place, whether, in so far as it introduces salary reductions based on criteria that take account of neither the functions performed nor length of service and provides for a salary reduction that is proportionately greater for the least well-paid judges, the national legislation at issue infringes the general principle of judicial independence.

17      It refers, in that regard, first, to Article 6 of the European Charter on the statute of judges, adopted from 8 to 10 July 1998 by the Council of Europe, then, to Recommendation CM/Rec(2010)12 of the Committee of Ministers of the Council of Europe to Member States on judges: independence, efficiency and responsibilities, adopted on 17 November 2010, and, lastly, to points 74 to 79 of Advocate General Saugmandsgaard Øe’s Opinion in the case Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2017:395).

18      It is in those circumstances that the Tribunal Superior de Justicia de Cataluña (High Court of Justice, Catalonia) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1.      Must the general principle of EU law prohibiting all discrimination be interpreted as not precluding a national rule, such as that enshrined in Article 31(One) of [the LPGE 2011], which established different percentage reductions that were more burdensome for the members of the judiciary who earned the least, thus requiring a greater sacrifice from those members as regards contributions to public finances? (principle of non-discrimination)

2.      Must the general principle of EU law of preserving judicial independence through fair and stable remuneration commensurate with the duties performed by the members of the judiciary be interpreted as precluding a national rule, such as that in Article 31(One) of [the LPGE 2011], which does not have regard to the nature of their duties, their length of service or the importance of their tasks, and requires a greater sacrifice from those members of the judiciary who earn the least in the interests of restoring the viability of public expenditure? (principle of judicial independence)’

 Consideration of the questions referred

 Admissibility of the request for a preliminary ruling

19      The Spanish Government takes the view that the request for a preliminary ruling is inadmissible since the information needed in order to rule on the questions referred has not been provided to the Court. It claims that the request does not sufficiently set out the facts of the main proceedings, the relevant national legislation or the EU law in respect of which interpretation is sought.

20      In particular, Mr Escribano Vindel’s age, length of service and pay scheme is not indicated. In addition, the report of the Ministry of Justice does not cover Mr Escribano Vindel’s pay grade — pay grade 1– but pay grades 4 and 5.

21      As regards the account of the national legal framework, it is alleged that the references to only Article 31(One) of the LPGE 2011 and Article 301 of Basic Law 6/1985 on the judiciary are insufficient for it to be possible to understand the pay scheme of members of the Spanish judiciary and how the reduction of the salaries of all public sector employees was applied to those members.

22      The European Commission, while it does not raise a plea of inadmissibility, states that the order for reference contains no information on the actual economic impact of the salary reduction on Mr Escribano Vindel or the other ordinary judges and senior judges and merely refers to percentages without specifying the amounts to which they apply.

23      In addition, no information was provided on the impact of the salary reduction on the senior judges of the Audiencia Provincial (Provincial Court, Spain), the Audiencia Nacional (National High Court, Spain), or on the senior judges of the Tribunal Supremo (Supreme Court). Moreover, the report of the Ministry of Justice compared the situations of only three post types, chosen ‘by way of example’, in order to ‘illustrate’ how the overall percentage reduction varies according to the greater or lesser impact of additional remuneration as part of overall pay.

24      In that regard, it should be recalled that, according to the Court’s settled case-law, 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. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle required to give a ruling (judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 24 and the case-law cited).

25      It follows that questions relating to EU law enjoy a presumption of relevance. 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 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 25 and the case-law cited).

26      In that regard, the Court recalls that the need to provide an interpretation of EU law which will be of use to the national court requires that the national court define the factual and legal context of the questions it is asking or, at the very least, that it explain the factual circumstances on which those questions are based (see judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 26 and the case-law cited).

27      In the present case, first, it should be noted that, contrary to what the Spanish Government claims, the referring court clearly identified the principles of EU law to which the questions referred relate.

28      Second, the Spanish Government is correct to state that the account of the national legal framework in the order for reference is rudimentary. However, in the light, inter alia, of the written observations submitted by that government and by the Commission, which confirm and clarify the legal framework, it appears from all of the information available to the Court that the order for reference nevertheless contains the essential elements of the legal context of the questions submitted by the referring court.

29      Lastly, as regards the description of the factual background, the Spanish Government and the Commission are correct to note that the information provided was incomplete. However, the order for reference contains sufficient information for the Court to be able to understand both the questions referred for a preliminary ruling and their scope.

30      It must, therefore, be concluded that the order for reference contains the factual and legal material necessary to enable the Court to give a useful answer to the referring court.

31      The reference for a preliminary ruling is therefore admissible.

 Substance

 Preliminary observations

32      It should be borne in mind that, according to the Court’s settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. With that in mind, the Court may have to reformulate the questions referred to it. The fact that a national court has, formally speaking, worded a question referred for a preliminary ruling with reference to certain provisions of EU law does not prevent the Court from providing the national court with all the points of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. In that regard, it is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation, having regard to the subject matter of the dispute (see judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 36 and the case-law cited).

33      In the present case, regard being had, inter alia, to all the information provided by the referring court and the observations submitted by the Spanish Government and the Commission, it is necessary, in order to provide the referring court with such points of interpretation that may be of assistance, to reformulate the questions referred.

34      In the first place, in so far as the first question concerns an interpretation of the ‘general principle of EU law prohibiting all discrimination’, it is clear from the order for reference that the referring court is asking, more specifically, whether Article 21 of the Charter and Article 2(1) and (2)(b) of Directive 2000/78 must be interpreted as precluding national legislation such as that at issue in the main proceedings.

35      In the second place, in so far as that same question refers specifically to the salary reductions of the ‘members of the judiciary who earn the least’, it is clear from the order for reference, first, that that group consists of ordinary judges on pay grade 5 and, second, that Mr Escribano Vindel does not belong to that group. While the Spanish Government and the Commission take the view that the facts provided by the referring court establish that Mr Escribano Vindel is on pay grade 1, the referring court seems to consider that he is on pay grade 4.

36      In the third place, although the second question concerns, according to its wording, an interpretation of the ‘general principle of EU law of preserving judicial independence through fair and stable remuneration commensurate with the duties performed by the members of the judiciary’, it is clear from the order for reference that the referring court is asking, in essence, whether the second paragraph of Article 19(1) TEU must be interpreted as meaning that the principle of judicial independence precludes national legislation such as that at issue in the main proceedings.

37      In the fourth place, as Mr Escribano Vindel is acting solely on his own behalf, in order to answer that question it is necessary to take only his situation into account (see, to that effect, judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 28).

 The first question, concerning discrimination on grounds of age or length of service

38      By its first question, the referring court asks, in essence, whether Article 21 of the Charter and Article 2(1) and (2)(b) of Directive 2000/78 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which established, in the context of general salary-reduction measures linked to the requirements of eliminating an excessive budget deficit, different percentage reductions for the basic salary and the additional remuneration of members of the judiciary, which, according to the referring court, has entailed greater percentage reductions for those members of the judiciary on the two lower pay grades than for those on a higher pay grade, when the former receive a lower salary, are generally younger and generally have a shorter length of service than the latter.

39      In that regard, it must be noted, in the first place, that the prohibition of discrimination based on, inter alia, age, is incorporated in Article 21 of the Charter which, as from 1 December 2009, has the same legal status as the treaties and that that prohibition was given specific expression by Directive 2000/78 in the field of employment and occupation (see, to that effect, judgment of 8 September 2011, Hennigs and Mai, C‑297/10 and C‑298/10, EU:C:2011:560, paragraph 47).

40      In the second place, it is settled case-law that pay conditions for civil servants, including judges, fall within the scope of that directive (see to that effect, judgments of 19 June 2014, Specht and Others, C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 37, and of 9 September 2015, Unland, C‑20/13, EU:C:2015:561, paragraph 29).

41      In the third place, it must be noted that, under Article 1 and Article 2(1) and (2)(b) of Directive 2000/78, indirect discrimination on the grounds of ‘religion or belief, disability, age or sexual orientation as regards employment and occupation’ is prohibited.

42      In the fourth place, as regards the possibility of indirect discrimination on the basis of age, it must be noted that, under Article 2(2)(b) of Directive 2000/78, indirect discrimination is to be taken to occur where an apparently neutral provision, criterion or practice would put persons of a certain age at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary (judgment of 14 March 2018, Stollwitzer, C‑482/16, EU:C:2018:180, paragraph 22).

43      It is necessary, therefore, to examine whether an employee such as Mr Escribano Vindel is treated less favourably than another in a comparable situation on account of his age, or whether the provision at issue in the main proceedings may give rise to a particular disadvantage with regard to the age group to which he belongs, within the meaning of Article 2(2)(b) of Directive 2000/78 (see, by analogy, judgment of 28 February 2018, John, C‑46/17, EU:C:2018:131, paragraph 22).

44      In that regard, it must be noted, first, that the referring court has not specified Mr Escribano Vindel’s age or identified another person in a comparable situation to his, merely noting the less favourable impact of the legislation at issue in the main proceedings on the members of the judiciary on pay grades 4 and 5 as compared with those on pay grade 1.

45      Second, it follows that if Mr Escribano Vindel is, as the Spanish Government and the Commission believe, on pay grade 1, he cannot be considered to be a victim of age discrimination, since he will be among the judges who, according to the referring court, are treated favourably by the national legislation at issue in the main proceedings as compared to the others.

46      Lastly, if Mr Escribano Vindel is, as the referring court seems to believe, on pay grade 4, it is important to establish whether the members of the judiciary on that pay grade belong to a particular age group that is different from the age group to which members of the judiciary on pay grade 1 belong.

47      In that regard, the referring court has not identified any specific age group that is treated less favourably, but merely notes, in essence, that, on average, the members of the judiciary on pay grade 5 are younger than the members of the judiciary on pay grades 4 and 1. In particular, it is not apparent from the order for reference that the referring court has identified a specific age gap between those on pay grade 4 and those on pay grade 1.

48      Moreover, the Spanish Government claims (i) that the members of the judiciary on those pay grades do not belong to a particular age group, since the only age limit for admission to the judiciary is that the person concerned should not have reached the judiciary’s retirement age before taking up duties, and (ii) that members of the judiciary are under no obligation to occupy higher posts, categories or grades, it being possible to remain in the category of ordinary judge whatever their age.

49      It is, however, for the referring court, which alone has direct knowledge of the dispute before it, to carry out the necessary verifications in order to establish whether the members of the judiciary on those pay grades belong to a particular age group.

50      In the fifth place, with regard to the requirement that situations be comparable, it must be pointed out that, on the one hand, it is required not that situations be identical, but only that they be comparable and, on the other hand, whether the situations are comparable must be determined not in a global and abstract manner, but in a specific and concrete manner in the light of the benefit concerned (judgment of 19 July 2017, Abercrombie & Fitch Italia, C‑143/16, EU:C:2017:566, paragraph 25).

51      It is for the referring court, which alone has jurisdiction to assess the facts, to determine whether the members of the judiciary on pay grade 4 are in a situation comparable to that of members of the judiciary on pay grade 1 (see, by analogy, judgment of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 49).

52      That being so, it is clear from the information available to the Court that it is not disputed that the basic salaries of the different categories making up the judiciary have been uniformly reduced by 9.73% and that the alleged difference in treatment at issue in the main proceedings results, first, from the lesser reduction in the additional remuneration of some members of the judiciary and, second, the fact that basic salary and additional remuneration account for different proportions of the overall salary, according to pay grade.

53      In that context, the Spanish Government and the Commission state that additional remuneration includes a length-of-service bonus, an assignment allowance, which takes into account, inter alia, the area to which the judge is assigned and objective conditions of representation linked to the duties performed, as well as a special allowance which rewards responsibilities, training and the particular complexities or heavy workload they entail. They consider that, since the additional remuneration varies according to objective factors which differentiate between the separate categories of members of the judiciary, those categories are not in comparable situations.

54      Moreover, the referring court itself noted that the Tribunal Constitucional (Constitutional Court) sitting in plenary session held, by order of 15 December 2015, that the persons concerned were not in objectively comparable situations since the members of the judiciary are divided into separate categories and hold different posts.

55      Accordingly, subject to the verifications which are nevertheless to be made by the referring court, it does not appear that the difference in treatment at issue in the main proceedings concerns comparable situations or that it has an indirect link with age.

56      As a result, it must be held that the circumstances described by the referring court do not suggest that the national legislation at issue in the main proceedings engenders discrimination on grounds of age.

57      In the sixth place, as regards the possibility of discrimination on grounds of length of service, it is clear that such a criterion is not included among the criteria mentioned in the prohibition set out in Article 2(1) and (2)(b) of Directive 2000/78. On the contrary, that criterion is included among those referred to in Article 6(1)(b) of that directive as capable of justifying a difference in treatment on the grounds of age.

58      Moreover, even if Article 21 of the Charter applied, in the present case, outside the scope of that directive, it must be noted that the referring court has not specified Mr Escribano Vindel’s length of service or indeed identified another person in a comparable situation to his, or identified a specific category of length of service that is treated less favourably. In particular, in the light of the Spanish Government’s observations, summarised in paragraph 48 above, it cannot be presumed that the different pay grades reflect specific categories of length of service.

59      Accordingly, it must be held that the circumstances described by the referring court do not suggest that the national legislation at issue in the main proceedings engenders different treatment on the basis of length of service that is incompatible with Article 21 of the Charter or Article 2(1) and (2)(b) of Directive 2000/78.

60      Having regard to all the foregoing considerations, the answer to the first question is that Article 21 of the Charter and Article 2(1) and (2)(b) of Directive 2000/78 must be interpreted, subject to the verifications to be made by the referring court, as not precluding national legislation, such as that at issue in the main proceedings, which established, in the context of general salary-reduction measures linked to the requirements of eliminating an excessive budget deficit, different percentage reductions for the basic salary and additional remuneration of members of the judiciary, which, according to the referring court has entailed greater percentage salary reductions for those members of the judiciary on two lower pay grades than for those members of the judiciary on a higher pay grade, when the former receive a lower salary, are generally younger and generally have a shorter length of service than the latter.

 The second question, concerning judicial independence

61      By its second question, the referring court asks, in essence, whether the second subparagraph of Article 19(1) TEU must be interpreted as meaning that the principle of judicial independence precludes the application to the applicant in the main proceedings of national legislation, such as that at issue in the main proceedings, which established, without regard to the nature of the duties performed, length of service or the importance of the tasks performed, in the context of general salary-reduction measures linked to the requirements of eliminating an excessive budget deficit, different percentage reductions for the basic salary and the additional remuneration of members of the judiciary, which, according to the referring court, has entailed greater percentage salary reductions for those members of the judiciary on two lower pay grades than those on a higher pay grade, when the former are paid less than the latter.

62      In that regard, it must be borne in mind that the second subparagraph of Article 19(1) TEU provides that Member States are to provide remedies sufficient to ensure effective judicial protection for individuals in the fields covered by EU law. Thus, it is for the Member States to provide a system of remedies and procedures to ensure effective judicial review in those fields (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 34).

63      It follows that every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, form part of the system providing judicial remedies in the fields covered by EU law, meet the requirements of effective judicial protection (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 37).

64      The factors to be taken into account in assessing whether a body is a ‘court or tribunal’ include, inter alia, whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 38).

65      The guarantee of independence, which is inherent in the task of adjudication, is required not only at EU level as regards the Judges of the Union and the Advocates-General of the Court of Justice, as provided for in the third subparagraph of Article 19(2) TEU, but also at the level of the Member States as regards national courts (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 42).

66      The concept of independence 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).

67      In the present case, first, it is clear from the information provided by the referring court that, as with the circumstances prevailing in the case giving rise to the judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117, paragraphs 46 to 49), the salary-reduction measures at issue in the main proceedings were adopted because of the overriding need to remove the excessive budget deficit of the Member State concerned and provided for a limited reduction of the amount of remuneration, the percentage of which varies according to the level of remuneration. The measures were applied not only to the members of the Spanish judiciary but, more widely, to various public office holders and employees performing duties in the public sector, including the representatives of the legislature, the executive and the judiciary. They are, therefore, in the nature of general measures seeking a contribution from all members of the national civil service to the austerity effort dictated by the overriding need to reduce the Spanish State’s excessive budget deficit.

68      Second, since, as was noted in paragraph 37 above, it is necessary to take into account only Mr Escribano Vindel’s situation, the examination to be undertaken in the present case as regards the second subparagraph of Article 19(1) TEU merely consists in verifying whether he receives, following the salary reduction at issue in the main proceedings, a level of remuneration commensurate with the importance of the duties he performs.

69      Thus, as the Commission rightly claims, it does not seem that (i) the method of establishing the salary reduction at issue in the main proceedings, which, according to the referring court, did not take into consideration the nature of the duties performed, length of service or the importance of the tasks performed, or (ii) the fact that, according to that court, that method entailed greater percentage salary reductions for those members of the judiciary on two lower pay grades than for those on a higher pay grade, are relevant for the purposes of the assessment to be carried out in the present case by the referring court.

70      Lastly, as regards whether Mr Escribano Vindel receives, after application of the salary reduction at issue in the main proceedings, a level of remuneration commensurate with the importance of the duties he performs, it must be noted that the order for reference contains no precise information regarding the amount of Mr Escribano Vindel’s salary. In its observations, the Commission maintains, in essence, that, according to the report of the Ministry of Justice, after application of the salary reduction, the level of remuneration received by a judge sitting as a single judge in Barcelona, such as Mr Escribano Vindel, who is on pay grade 4, is sufficient, in the light of the socio-economic context of that city and the average remuneration of Spanish civil servants, which that report also refers to, to protect him against any external interference or pressure that might undermine the neutrality of the judicial decisions he must take.

71      It must be added that, even if Mr Escribano Vindel is on pay grade 1, as the Spanish Government and the Commission maintain, the Commission’s argument must apply a fortiori since, as was noted in paragraph 12 above, the remuneration of members of the judiciary on that pay grade is higher than that of those members on pay grade 4.

72      However, it is for the referring court, which alone has direct knowledge of the dispute before it, to carry out the necessary verifications in order to establish whether the level of remuneration received by Mr Escribano Vindel, after application of the salary reduction at issue in the main proceedings, is commensurate with the importance of the duties he performs and, accordingly, guarantees his independent judgment.

73      That being so, the circumstances described by the referring court do not suggest that the national legislation at issue in the main proceedings gives rise to infringement of the principle of judicial independence, as guaranteed by the second paragraph of Article 19(1) TEU.

74      In the light of all the foregoing considerations, the answer to the second question is that the second subparagraph of Article 19(1) TEU must be interpreted as meaning that the principle of judicial independence does not preclude the application to the applicant in the main proceedings of national legislation, such as that at issue in the main proceedings, which established, without regard to the nature of the duties performed, length of service or the importance of the tasks performed, in the context of general salary-reduction measures linked to the requirements of eliminating an excessive budget deficit, different percentage reductions for the basic salary and additional remuneration of members of the judiciary, which, according to the referring court has entailed greater percentage salary reductions for those members of the judiciary on two lower pay grades than for those members of the judiciary on a higher pay grade, when the former are paid less than the latter, provided that the level of remuneration received by the applicant in the main proceedings after application of the salary reduction at issue is commensurate with the importance of the duties he performs and, accordingly, guarantees his independent judgment, which is a matter for the referring court to ascertain.

 Costs

75      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) hereby rules:

1.      Article 21 of the Charter of Fundamental Rights of the European Union and Article 2(1) and (2)(b) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted, subject to the verifications to be made by the referring court, as not precluding national legislation, such as that at issue in the main proceedings, which established, in the context of general salary-reduction measures linked to the requirements of eliminating an excessive budget deficit, different percentage reductions for the basic salary and additional remuneration of members of the judiciary, which, according to the referring court has entailed greater percentage reductions for those members of the judiciary on two lower pay grades than those members of the judiciary on a higher pay grade, when the former receive a lower salary, are generally younger and generally have a shorter length of service than the latter.

2.      The second subparagraph of Article 19(1) TEU must be interpreted as meaning that the principle of judicial independence does not preclude the application to the applicant in the main proceedings of national legislation, such as that at issue in the main proceedings, which established, without regard to the nature of the duties performed, length of service or the importance of the tasks performed, in the context of general salary-reduction measures linked to the requirements of eliminating an excessive budget deficit, different percentage reductions for the basic salary and additional remuneration of members of the judiciary, which, according to the referring court has entailed greater percentage salary reductions for those members of the judiciary on two lower pay grades than those members of the judiciary on a higher pay grade, when the former are paid less than the latter, provided that the level of remuneration received by the applicant in the main proceedings after application of the salary reduction at issue is commensurate with the importance of the duties he performs and, accordingly, guarantees his independent judgment, which is a matter for the referring court to ascertain.

[Signatures]


*      Language of the case: Spanish.

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