–

the Austrian Government, by J. Schmoll, M. Augustin and C. Drexel, acting as Agents,

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the Polish Government, by B. Majczyna, acting as Agent,

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the Swedish Government, by A. Falk and H. Shev, acting as Agents,

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the European Commission, by P. Van Nuffel and F. Erlbacher, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of the second subparagraph of Article 19(1) TEU, Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the principle of effectiveness.

2

That request was submitted in proceedings brought by S.A.D. Maler und Anstreicher OG (‘Maler’) concerning the lawfulness of a decision ordering it to pay mandatory statutory contributions.

3

Article 83 of the Bundes-Verfassungsgesetz (Austrian Federal Constitutional Law, hereinafter ‘the B-VG’) provides that the organisation and jurisdiction of the ordinary courts is prescribed by a federal law and no one may be removed from the jurisdiction of his lawful judge.

4

Under Paragraph 87 of the B-VG:

‘1.   Judges shall be independent in the performance of their judicial duties.

2.   A judge shall act in exercise of his judicial duties when he performs the judicial tasks assigned to him by law and in accordance with the distribution of cases within the court, to the exclusion of judicial administration matters which are not to be dealt with by chambers or committees in accordance with the provisions of the law.

3.   Cases shall be allocated in advance between the judges of the court for a period prescribed by a federal law. Any case thus allocated to a judge may be removed from him only by a decision of the chamber set up for that purpose by a federal law and only in case of impediment or if the volume of cases before him prevents him from ruling on those cases within a reasonable period of time.’

5

Pursuant to paragraph 135(2) of the B-VG, a predetermined order of allocation of the cases before the Verwaltungsgericht Wien (Administrative Court, Vienna, Austria) must be established in advance for the period prescribed by law. According to Article 18 of the Gesetz über das Verwaltungsgericht Wien (Law on the Administrative Court, Vienna), that period is set by calendar year.

6

Under section 135(3) of the B-VG, a case, for which a member of the Verwaltungsgericht Wien (Administrative Court, Vienna) is responsible in accordance with the predetermined order of allocation of cases, may be removed from that member only by the body competent for establishing the predetermined order of allocation, and only if he is unable to perform his duties or if he is unable to perform his duties within a reasonable period of time because of his workload.

7

Maler, a painting undertaking, was ordered, by two decisions of the Bauarbeiter-Urlaubs- und Abfertigungskasse (Construction workers’ holiday and severance pay fund; ‘BUAK’), to pay mandatory statutory contributions under the Bauarbeiter-Urlaubs- und Abfertigungsgesetz (Law on construction workers’ holiday and severance pay) (BGBl. 414/1972), in the version in force at the time of the facts in the main proceedings (‘the BUAG’).

8

That law established BUAK, a collective public law body responsible for collecting the funds required for the payment of claims laid down in the BUAG. That body is responsible for the management and payment of claims for paid annual leave of workers in the construction sector.

9

Since Maler did not pay those contributions, BUAK issued two enforcement orders against it. That company then submitted an administrative appeal to the Magistrat der Stadt Wien (City Council of Vienna, Austria), which upheld those orders by decision of 19 June 2018. Next, Maler brought an action against that decision before the Verwaltungsgericht Wien (Administrative Court, Vienna). It claimed before that court that its staff does not fall within the scope of that law and that, therefore, it is not obliged to pay the salary supplements and extra emoluments set by BUAK.

10

The referring court, which points out that it sits as a single judge (‘the referring judge’), indicates that BUAK is the guarantee body provided for in Austrian law in order to guarantee workers the protection which derives from Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9), according to which Member States must take the necessary measures to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

11

On 26 July 2018, the case in the main proceedings was registered at the Verwaltungsgericht Wien (Administrative Court, Vienna) under a single case number and allocated to the referring judge.

12

The referring judge notes that, by the decision of 19 June 2018, the City Council of Vienna rejected the two appeals lodged by Maler on different dates against the enforcement orders issued by BUAK and arising from debts claimed by the fund against that company.

13

According to the referring judge, although only a single action against a single decision was formally brought before him, it must be considered that, in reality, two actions have been brought against two distinct decisions. However, he states that the registry of the Verwaltungsgericht Wien (Administrative Court, Vienna) registered what, in his opinion, amounts to two actions as a single action. The referring judge argues that the predetermined order of allocation of cases within the Verwaltungsgericht Wien (Administrative Court, Vienna) was infringed since, by having registered two different actions under a single case number, the rule on the allocation of cases was infringed; had it been followed correctly, that rule would have resulted in those cases being allocated to two separate judges.

14

The referring judge states that he informed the registry of his court of that ‘error’.

15

On 31 July 2018, the registry registered the action brought by Maler under a second case number since that action concerned another paragraph of the operative part of the decision of 19 June 2018. That second case was again allocated to the same judge, namely to the referring judge.

16

That judge states that, on 3 August 2018, he made a ‘complaint of lack of jurisdiction’ in relation to that allocation to the president of his court. According to the referring judge, the registry should have, in accordance with the predetermined order of allocation of cases, allocated the case registered under that second number to another judge.

17

In the referring judge’s opinion, the president of the court, by instructing orally the registry not to alter the initial allocation of the first case and to join the second case to that first case, infringed the provisions governing the predetermined order of allocation of cases.

18

The referring judge takes the view that only the committee of the predetermined order of allocation of cases is, as a collegiate body, empowered to make such an allocation.

19

The referring judge states that he was never informed of that ‘conduct’ nor of that ‘disguised’ attribution of the second case. He adds that the Austrian legal system does not provide the possibility of bringing an appeal in order to challenge that kind of ‘conduct’ on the part of a president of a court.

20

On 5 October 2018, the referring judge brought, before the President of the Verwaltungsgericht Wien (Administrative Court, Vienna), in his capacity as president of the committee of the order of allocation of cases, a request seeking a declaration that he has no authority to adjudicate in the case in the main proceedings. In his request, he expressly referred to the case-law of the Verfassungsgerichtshof (Constitutional Court, Austria), according to which a decision of a judge who has been authorised to hear a case in disregard of the internal order of allocation of cases of the court of which he is a member must be classified as a ruling given by a judicial body with no jurisdiction. The referring judge states that the Verfassungsgerichtshof (Constitutional Court) held that such a decision infringes the constitutional provisions of Article 83(2) of the B-VG and of in Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’) and is therefore unconstitutional. In support of that request, that judge also claimed that, if he were to give an unconstitutional ruling, he must expect to be subject to sanctions within his department, disciplinary and criminal sanctions and ordered to pay damages. In addition, he stated that, in accordance with Article 6(1) of the ECHR, he is under an obligation to prevent an unconstitutional judicial decision from being given.

21

By letter of 10 October 2018, the president of the court of which the referring judge is a member informed him that he was authorised to rule on the case at issue in the main proceedings and that he was under an obligation to do so. In that letter, he stated that only one administrative decision was covered by the action, so that there was also only one case.

22

The referring judge, having taken the view that that letter was an act of a public authority, brought an action against it before the Verwaltungsgerichtshof (Supreme Administrative Court, Austria).

23

By order of 21 November 2018, that court dismissed that action as inadmissible, on the ground that, in essence, only the parties to the proceedings before an administrative court can assert an individual right before a judge designated by law. By contrast, an incorrect allocation cannot prejudice an individual right of a member of an administrative court, nor is that member entitled to bring an action against such an allocation.

24

The referring judge states that, by that order, the Verwaltungsgerichtshof (Supreme Administrative Court) nevertheless accepted that, if the referring judge’s view were to be correct, the ruling that he will give in his capacity of judge in the case in the main proceedings would, by reason of his lack of jurisdiction deriving from the unlawful allocation of the case to him, infringe the guarantee of the lawful judge provided for in Article 83(2) of the B-VG and Article 6(1) of the ECHR and that ruling would therefore be unconstitutional.

25

The referring judge also considers that, in a court established by law to act as a judicial protection body for the purposes of Article 6(1) of the ECHR, the cases brought must, before any allocation, be identified in accordance with a predetermined order of allocation, failing which that provision would be infringed.

26

In that regard, the referring judge observes that, first, Austrian law does not allow the allocation of a case to a judge that infringes the predetermined order of allocation of cases to be challenged; accordingly, that judge would either knowingly have to give a ruling which infringes the rights of the parties laid down in Article 6(1) of the ECHR or refrain from adjudicating and thereby infringe the rights of the parties under that provision. Second, by overlooking often purely internal irregularities and events which amount to an infringement of the predetermined order of allocation of cases, Austrian law deprives the parties of an effective guarantee of their rights in breach of Article 6(1) of the ECHR.

27

In his opinion, the Austrian legal system at issue raises serious doubts as to the guarantee of impartiality of judges. A party to the proceedings cannot invoke the lack of jurisdiction of a judge before the court has ruled. Moreover, the judge hearing a case is required to rule on the case despite his lack of jurisdiction. The Austrian legal system therefore prevents both the judge and the parties to the proceedings from raising, before a decision is given, the fact that the decision infringes Article 6(1) of the ECHR on account of an irregularity in the internal predetermined order of allocation of cases of the court concerned, as is the case in the case before him.

28

In those circumstances, the Verwaltungsgericht Wien (Administrative Court, Vienna) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

29

Under Article 53(2) of the Rules of Procedure of the Court, where it is clear that the Court has no jurisdiction to hear and determine a case or where a request or an application is manifestly inadmissible, the Court may, after hearing the Advocate General, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

30

It is appropriate to apply that provision in the present case.

31

As regards the Court’s jurisdiction over the present reference for a preliminary ruling – jurisdiction which is disputed by the Austrian government – it should be recalled that, in the first place, so far as concerns the provisions of the Charter, in the context of a request for a preliminary ruling under Article 267 TFEU, the Court may interpret EU law only within the limits of the powers conferred upon it (judgment 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 77 and the case-law cited).

32

The scope of the Charter, in so far as the action of the Member States is concerned, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States when they are implementing EU law. That provision confirms the Court’s settled case-law, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations (judgment 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 78 and the case-law cited).

33

In this case, as far as concerns more specifically Article 47 of the Charter, covered by the present request for a preliminary ruling, it must be noted that the dispute brought before the referring judge concerns, in essence, the lawfulness of an administrative decision adopted by BUAK which is, in the referring judge’s opinion, the guarantee body provided for in Austrian law in order to ensure that workers benefit from the protection deriving from Article 7 of Directive 2003/88. That judge does not, however, raise any question in relation to the interpretation of Article 7 of that directive, nor does he set out the reasons why that provision is relevant for the dispute in the main proceedings. The mere fact that, according to the referring judge, BUAK ‘stems’ from Article 7 of Directive 2003/88 is not sufficient to find that the dispute in the main proceedings is governed by EU law, in accordance with the case-law referred to in paragraph 32 of this order.

34

It follows from the foregoing that there is nothing to indicate that the dispute in the main proceedings relates to the interpretation or application of a rule of EU law which is implemented at national level. Therefore, the Court does not have jurisdiction to interpret Article 47 of the Charter in the present case.

35

As regards, in the second place, the second subparagraph of Article 19(1) TEU, it should be recalled that, under that provision, 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 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 32 and the case-law cited).

36

As regards the scope of the second subparagraph of Article 19(1) TEU, it follows, moreover, from the Court’s case-law that that provision refers to the ‘fields covered by Union law’, irrespective of whether the Member States are implementing Union law within the meaning of Article 51(1) of the Charter (judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 33 and the case-law cited).

37

Thus, the second subparagraph of Article 19(1) TEU is intended, inter alia, to apply to any national body which can rule, as a court or tribunal, on questions concerning the application or interpretation of EU law and which therefore fall within the fields covered by that law (judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 34 and the case-law cited).

38

This is true of the referring judge, who may be called upon, in his capacity as a member of an Austrian court, to rule on questions relating to the application or interpretation of EU law and, as ‘courts or tribunals’ within the meaning of EU law, come under the Austrian judicial system in the ‘fields covered by Union law’, within the meaning of the second subparagraph of Article 19(1) TEU, so that that judge must meet the requirements of effective judicial protection (see, to that effect, judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 35 and the case-law cited).

39

Furthermore, it should be recalled that, although the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law and, in particular, from the second subparagraph of Article 19(1) TEU (judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 36 and the case-law cited).

40

It follows from the foregoing that, in the present case, the Court has jurisdiction to interpret the second subparagraph of Article 19(1) TEU.

41

As regard the question of the admissibility of the request for a preliminary ruling, raised by the Austrian and Polish governments, and by the Commission, it must be noted that, according to the Court’s settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 43 and the case-law cited).

42

However, it has also been consistently held that the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them. The justification for a reference for a preliminary ruling is however not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute (judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 44 and the case-law cited).

43

As is apparent from the actual wording of Article 267 TFEU, the question referred for a preliminary ruling must be ‘necessary’ to enable the referring court to ‘give judgment’ in the case before it (judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 45 and the case-law cited).

44

The Court has thus repeatedly held that it is clear from both the wording and the scheme of Article 267 TFEU that a national court or tribunal is not empowered to bring a matter before the Court by way of a request for a preliminary ruling unless a case is pending before it in which it is called upon to give a decision which is capable of taking account of the preliminary ruling (judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 46 and the case-law cited).

45

In such proceedings, there must therefore be a connecting factor between that dispute and the provisions of EU law whose interpretation is sought, by virtue of which that interpretation is objectively required for the decision to be taken by the referring court (judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 48 and the case-law cited).

46

In the present case, it must be held, first, that the dispute in the main proceedings is not substantively connected to EU law, in particular to the second subparagraph of Article 19(1) TEU to which the questions referred relate, and that it is not apparent from the request for a preliminary ruling that the referring judge is required to apply that law, or that provision, in order to determine the substantive solution to be given to that dispute. In that respect, the present case can be distinguished, in particular, from the case which gave rise to the judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117), in which the referring court had to rule on an action seeking annulment of administrative decisions reducing the remuneration of the members of the Tribunal de Contas (Court of Auditors, Portugal) pursuant to national legislation which provided for such a reduction and whose compatibility with the second subparagraph of Article 19(1) TEU was challenged before that referring court (see, to that effect, judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 49 and the case-law cited).

47

Second, although the Court has already held to be admissible questions referred for a preliminary ruling on the interpretation of procedural provisions of EU law which the referring court is required to apply in order to deliver its judgment (see, to that effect, inter alia, judgment of 17 February 2011, Weryński, C‑283/09, EU:C:2011:85, paragraphs 41 and 42), that is not the scope of the questions raised in the present case (see, to that effect, judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 50).

48

Third, an answer by the Court to those questions does not appear capable of providing the referring judge with an interpretation of EU law which would allow him to resolve procedural questions of national law before being able to rule on the substance of the disputes before him. In that regard, the present case also differs, for example, from the cases having given rise to the judgment 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) in which the preliminary ruling on interpretation sought from the Court was such as to have a bearing on the issue of determining which court had jurisdiction for the purposes of settling disputes relating to EU law, as is clear specifically from paragraphs 100, 112 and 113 of that judgment (see, to that effect, judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 51 and the case-law cited).

49

As described in paragraphs 14 to 17 of the present order, the referring judge challenged, first of all by making an internal ‘complaint’, and then by bringing a legal action before the Verwaltungsgerichtshof (Supreme Administrative Court) as well as, according to the information provided by the Austrian government, the Bundesverwaltungsgericht (Federal Administrative Court, Austria), the allocation of the case at issue in the main proceedings; those challenges were unsuccessful. It is also apparent from the documents before the Court that the referring judge will not be able, in the dispute in the main proceedings, to rule on the question whether that case was allocated to him lawfully, since the issue of an alleged infringement of the provisions governing the allocation of cases within the referring court is not the subject of that dispute and the question of the jurisdiction of the referring judge will, in any event, be reviewed by the superior court in the event of an appeal.

50

In those circumstances, it is not apparent from the order for reference that there is a connecting factor between the provision of EU law to which the questions referred for a preliminary ruling relate and the dispute in the main proceedings, and which makes it necessary to have the interpretation sought so that the referring court may, by applying the guidance provided by such an interpretation, make the decision needed to rule on that dispute (see, to that effect, judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 52 and the case-law cited).

51

Those questions do not therefore relate to an interpretation of EU law which meets an objective need for the resolution of that dispute, but are of a general nature.

52

Furthermore, as regards the principle of effectiveness, it must be observed that, whereas the referring judge seeks guidance from the Court with regard to that principle, he does not devote any argument to it in his order for reference and, therefore, does not set out the reasons why an interpretation of that principle is necessary for the resolution of the dispute in the main proceedings.

53

It follows from the foregoing that the request for a preliminary ruling is inadmissible.

54

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 (Tenth Chamber) hereby orders:

The request for a preliminary ruling made by the Verwaltungsgericht Wien (Administrative Court, Vienna, Austria), by decision of 27 February 2019, is inadmissible.