Succinct presentation of the facts and procedure in the main proceedings
1 By an application registered with the Regional Court of Bucharest on 9 May 2022, HZ brought an action against the Regional Court of Galați, requesting that it be ordered to pay compensation for the previous three years and in future, calculated by dividing the total minimum net salaries, including any bonuses and other benefits, which the Regional Court of Galați should have paid for judges’ posts that remained vacant in the chamber in which the applicant worked, by the number of judges actually in post in that chamber. HZ also claimed statutory interest from the date on which he should have received each individual amount of compensation, adjusted for inflation on the date of actual payment.
2 In the grounds of the application, HZ stated, in essence, that he had worked as a judge in a non-managerial role at the Regional Court of Galați, had not benefited from a reduction in workload and, unlike his colleagues, had not been delegated, seconded, transferred, selected or appointed to another court in the period between 2019 and the date of the application. He submitted that, during that period, the Regional Court of Galați experienced medium to high fluctuations in its staffing levels as a result of vacant posts, with only 45% of posts being filled. Accordingly, HZ did the work related to his employment as a judge, as well as that related to the vacant posts, since the cases that should have been disposed of by the judges who should have filled the vacant posts were distributed among the judges present; for HZ, this extra work resulted in additional, continual and undue physical and mental strain, without him receiving any compensatory benefit.
3 By civil judgment of 11 January 2023, the Regional Court of Bucharest dismissed the action brought by HZ as unfounded, rejecting his arguments that there are no legal provisions that prohibit or provide for the payment of additional compensation or allowances in the event of additional work being done by judges when ruling on cases and that, in such circumstances, a payment must be made on principle, given the social importance of the work.
4 The Regional Court of Bucharest stated in the grounds of the judgment that the remuneration of staff in the justice sector is governed by clear legal provisions which do not allow for the possibility of granting additional allowances in situations such as that in the present case, in which a judge works overtime owing to staff shortages. The court referred to the mandatory rule laid down in Article II(1) of Government Emergency Order No 130/2021, according to which overtime worked outside normal working hours by staff paid from the public purse will be compensated solely by time off in lieu, and submitted that that legal provision does not allow for compensation to be paid in the event of overtime worked by staff paid from the public purse.
5 HZ lodged an appeal with the Bucharest Court of Appeal against the judgment of the Regional Court of Bucharest.
The essential arguments of the parties in the main proceedings
6 Before the Regional Court, HZ relied on the following provisions of the Romanian Constitution: Article 1(3) concerning the rule of law and the right to human dignity; Article 22 and Article 34 concerning the right to mental integrity of the person during the exercise of employment and the right not to be subjected to degrading treatment; Article 41(2), in conjunction with Article 41(3) concerning the right of the worker, in the widest sense, to social security measures in specific overtime situations. He also referred to Articles 73, 74 and 91 of Law No 303/2004, Article 138 of Law No 304/2004 and Article 6(d) of the framework law.
7 HZ argues that the salary of a judge working overtime should be topped up by a percentage of the salary corresponding [to that of the judges] of the court in which there are vacant posts and whose cases the judge has taken on. The applicant states that the facts are not reflected in the legal rules that govern components of remuneration and submits that there is no legal provision that prohibits or provides for the payment of compensation for overtime. In his opinion, although it is true that the remuneration for the post filled and the remuneration for the vacant post must be calculated in accordance with the law, the remuneration of the activity of a judge who disposes of cases corresponding to a vacant post is not based on the principle of legality, but the principle of the social importance of the work. Therefore, the work must be remunerated according to its complexity and, in the case of a higher volume of work, the actual remuneration must be calculated with the addition of the compensation due.
8 HZ also relies on Article 1 of Protocol No 1 to the European Convention on Human Rights, in conjunction with Article 4(1) and (2) of the Convention. He submits that the State has compelled him to work in more than one chamber – in other words, to do the work related to the vacant posts and to dispose of the associated cases. Had the court been fully staffed, the cases would have been the responsibility of the presiding judge of the chamber. Yet HZ had to dispose, within a reasonable time, of the cases assigned to his chamber, as well as those of the chamber with a shortage of judges.
9 Before the Court of Appeal, HZ submitted that the effective performance of the duties conferred on a judge by law places an obligation not only on him, but on the State to offer adequate working conditions. He relied on Recommendation CM/Rec(2010)12 of the Committee of Ministers on the independence, efficiency and responsibilities of judges, which requires each State to ‘allocate adequate resources, facilities and equipment to the courts to enable them to function in accordance with the standards laid down in Article 6 of the Convention and to enable judges to work efficiently’. In the present case, however, those obligations were not satisfied, to the extent that the judges are overworked by being assigned an extra number of cases for disposal. HZ also maintained that the failure of the legislation to allow for the possibility of granting compensation for the disposal of additional cases that would normally have been assigned to the vacant posts does not lead to the conclusion that such a measure is prohibited by law. On the contrary, in cases where the law is silent, the general provisions and principles of fairness apply. However, the court adjudicating on the substance of the case failed to examine those principles.
10 HZ expressly states that the court of first instance failed to address the complaints raised in the application or to state the reasons adequately and failed to take into account the principles of equal treatment and non-discrimination – equal pay for equal work – which is the subject of the Community Charter of the Fundamental Social Rights of Workers. At the same time, according to the principle of the social importance of the work, provided for in Article 6(d) of the framework law, the work performed for a single judge’s post must be remunerated at a level commensurate with that post. If the work done by the judge goes beyond the normal activity associated with a non-managerial role, by taking on the cases of another chamber in which there are vacant posts, then the actual work must be remunerated on the basis of the average post for which the judge has worked.
Succinct presentation of the reasoning in the request for a preliminary ruling
- Applicability of EU law
11 Although HZ did not expressly rely on the provisions of the second subparagraph of Article 19(1) TEU as the reference rule in support of the original appeal, the referring court nevertheless submits that it must consider them as such, in the light of the wording of the application and the appeal. In addition, the scope of Article 73 of Law No 303/2004, which sets out the rights of judges, taking into account the complexity of the role and in order to guarantee their independence and impartiality, was specified before the court of first instance. The salary rights stem from the constitutional status of judges, as provided for by organic law. The constitutional provisions are supplemented by the case-law of the Court of Justice in order to provide all guarantees essential to judicial independence. Specifically, according to Associação Sindical dos Juízes Portugueses, the receipt by judges of a level of remuneration commensurate with the importance of the functions they carry out constitutes a guarantee essential to judicial independence.
12 Similar to the factual situation established in Associação Sindical dos Juízes Portugueses, in the main proceedings, the salary restriction measures imposed by Decree-Law Nos 114/2018, 130/2021 and 168/2022, according to which overtime is compensated solely by time off in lieu, were adopted in view of the need to reduce Romania’s excessive budget deficit. This takes into account the Council Recommendation with a view to bringing an end to the situation of an excessive government deficit in Romania, as specified in the preamble to the abovementioned legislative acts, with the risk that the European Commission could implement the excessive deficit procedure. Therefore, EU law is relevant in the present case.
13 Likewise, the appeal expressly states that the court of first instance failed to address the complaints raised in the application, including those related to judicial independence, or to state the reasons adequately, and refers to the Community Charter of the Fundamental Social Rights of Workers.
- Principles relating to the remuneration of judges
14 Both in the case-law of the Romanian Constitutional Court, and in the case-law of the other constitutional courts, it has been held that the financial stability of judges represents one of the guarantees of judicial independence.
As consistently held by Romania’s Constitutional Court (Decision No 873 of 25 June 2010), there are various prerequisites for both judicial independence and the independence of the judge: the existence of sufficient funds for the exercise and management of the judicial activity; the presence of a sufficient number of judges in each court to avoid an excessive workload and allow the disposal of cases within a reasonable time; and remuneration commensurate with the nature of the work. The principle of judicial independence cannot be limited solely to the amount of remuneration judges receive, since that principle implies a set of guarantees, including financial guarantees, the administrative independence of judges, and the independence of the judiciary from other State authorities. Moreover, judicial independence includes the financial security of judges, which also presupposes that a social guarantee is provided.
15 The Constitutional Court of the Czech Republic has held that, in democratic States, financial security is clearly considered one of the essential elements guaranteeing judicial independence. The Latvian Constitutional Court has held that the concept of judicial independence includes adequate remuneration, in line with the prestige of the profession and the responsibility of judges, and that the purpose of the remuneration is both to guarantee independence and partly compensate for the restrictions and prohibitions imposed on judges. The Lithuanian Constitutional Court has held that, in democratic States, the State should have an obligation to determine the remuneration of judges in order to reflect their status, duties and responsibilities, and that maintaining the remuneration of judges is one of the guarantees of their independence.
16 The Court of Appeal also refers to the United Nations Basic Principles on the Independence of the Judiciary, according to which ‘the term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law’; to Recommendation No R (94) 12 on the independence, efficiency and role of judges, adopted on 13 October 1994 by the Committee of Ministers of the Council of Europe, which introduced the obligation for Member States to ensure ‘that the status and remuneration of judges is commensurate with the dignity of their profession and burden of responsibilities’; and Recommendation CM/Rec(2010)12 of the Committee of Ministers to Member States on judges: independence, efficiency and responsibilities, according to which ‘judges’ remuneration should be commensurate with their profession and responsibilities, and be sufficient to shield them from inducements aimed at influencing their decisions’.
17 Furthermore, in its Report on the Independence of the Judicial System adopted at its 82nd plenary session (Venice, 12 and 13 March 2010), the Venice Commission observes that ‘the remuneration of judges has to correspond to the dignity of the profession and that adequate remuneration is indispensable to protect judges from undue outside interference’. In its opinion, ‘the responsibility of judges should be taken into account in the light of how they can manage the workload and backlog. … Honest, hard-working judges should not be penalised for situations caused by poor management of the judicial system as a whole or by other circumstances beyond their control’.
18 In principle, judges’ remuneration must guarantee them effective economic independence, an essential requirement if their independence and impartiality in the administration of justice are to be protected.
19 In that regard, the Court of Appeal of Bucharest refers to paragraphs 48, 51 and 52 of LB (Limitation of the right to paid annual leave).
- Overtime worked by judges in Romania: the present case
20 Article 21 of the framework law governs the conditions for compensation of overtime. However, derogating from that law, Government Emergency Order Nos 114/2018, 130/2021 and 168/2022 provide that no sums of money may be granted as compensation for overtime, but only time off in lieu.
21 For the remuneration of staff working in the field of justice, the national legislation does not provide for the possibility of granting additional allowances in situations such as that in the present case, in which a judge does extra work. Therefore, regardless of a judge’s actual workload, their remuneration can only be based on the remuneration criteria provided for by law, since there is no legal rule that permits the remuneration of overtime worked by judges in a court with very low staffing levels.
22 However, by judgment No 2225/3.11.2022 of the Judges’ Section of the Superior Council of the Judiciary, it was decided that where there are staff shortages, the amount of staff costs should be divided among all the judges who actually work for that court. It is doubtful whether that judgment can establish, in principle, obligations for authorising officers, given that there are no provisions to that effect in the law on the judicial system and that the Superior Council of the Judiciary is not a legislative authority.
23 Evidently, ab initio, the need to do overtime must be analysed primarily with regard to the actual volume of work of the court at a given time, and not simply on the basis of the staff vacancy rate. Nevertheless, the overtime worked by judges, in conditions of chronic staff shortages, at the very least puts them at risk of committing errors and facing disciplinary action much more frequently than if they had had a reasonable workload. In Romania, that workload is quantified by the Superior Council of the Judiciary; the number of judges assigned to each court is also established by taking into account the volume of cases and the balancing of the commitments of court staff.
24 Moreover, the overtime worked by judges, where there are severe staff shortages, makes it objectively impossible in many cases to take the statutory annual leave of 35 days, let alone taking time off in lieu under the special derogatory rules on the compensation of overtime.
25 According to the abovementioned case-law of the Court of Justice, it cannot be permitted, on the pretext of guaranteeing legal certainty, for an employer to argue that it has not complied with its obligations – namely, that it has failed to give the worker the opportunity to exercise the right to paid annual leave.
26 Furthermore, in the present case, of the 35 days of statutory annual leave during the reference period, HZ took 26 days of leave in 2019, 13 days in 2021 and 7 days in 2022. He further submitted that he had been unable even to take statutory annual leave for years, let alone being compensated for any overtime in the form of time off in lieu, effectively undermining his right to annual leave.
27 According to the definition in Article 2(1) of Directive 2003/88/EC, working time must satisfy three aspects: the worker’s physical presence at work/at another location established by the employer; being at the employer’s disposal; and carrying out the activity in accordance with national laws and/or practice.
28 In the present case, the Regional Court of Galați did not record HZ’s hours of overtime, despite being obliged to do so. It can also be assumed that the overtime was due to the higher volume of work caused by a shortage of staff. According to HZ, nor is it relevant that he did not subsequently apply for the compensation of overtime by time off in lieu, since he could not have taken the time off in any case, just as he was unable to take all of his annual leave. In addition, from the evidence in the file, it is clear that the Regional Court of Galați did not reject any request to take annual leave or to receive time off in lieu as compensation.
29 Although a right to remuneration such as that relied on in the main proceedings, involving the compensation of hours of overtime worked – linked to whether the budget for staff costs may be distributed among the judges who actually work at the court, given the number of vacant posts – does not fall into the category of fundamental rights, the problem remains of whether the judges’ independence could be compromised, since their financial stability (including the receipt of a level of remuneration commensurate with the importance of the functions they carry out) is one of the guarantees of judicial independence. Article 19 TEU gives concrete expression to the value of the rule of law stated in Article 2 TEU.
Question referred for a preliminary ruling by Bucharest Court of Appeal
”Must the second subparagraph of Article 19(1) TEU, in conjunction with Article 2 TEU, points 5 and 7 of the Community Charter of the Fundamental Social Rights of Workers and Articles 3, 5, 6 and 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, be interpreted, in circumstances such as those at issue in the main proceedings, as meaning that the principle of judicial independence precludes national legislation that prohibits the payment of overtime worked by a judge owing to staff shortages at the court where he or she works, in a situation in which compensation solely by time off in lieu corresponding to the amount of overtime worked outside normal working hours, and on weekly rest days and public holidays, if applied, would have a negative effect on the annual leave provided for by law?”
See, for details, Tribunalul Galati
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