The Court of Justice has given judgment following a reference for a preliminary ruling under Article 267 TFEU from the Supreme Court in O’Brien v Ministry of Justice (Council of Immigration Judges intervening), Case C-393/10, 1 March 2012.
The case concerns the refusal by the Ministry of Justice to pay Mr O’Brien a pension in respect of his service as a Recorder, which is alleged to be discrimination contrary inter alia to the Part-time Workers Directive (“PTWD”). The PTWD is implemented in the UK by the Part-time Workers Regulations (“PTWR”). Regulation 17 of the PTWR, entitled “Holders of judicial offices”, provides that the 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”.
The Council of Immigration Judges, representing several hundred daily fee-paid judges, intervened in the Supreme Court and also made oral submissions in Luxembourg.
The following questions were considered by the ECJ:-
(1) Is it for national law to determine whether or not judges as a whole are “workers who have an employment contract or employment relationship” within the meaning of clause 2.1 of the PTWD, or is there a Community norm by which this matter must be determined?
(2) If judges as a whole are workers who have an employment contract or employment relationship within the meaning of clause 2.1 of the PTWD, is it permissible for national law to discriminate (a) between full-time and part-time judges, or (b) between different kinds of part-time judges in the provision of pensions?
As to the first question, the Court of Justice held that European Union law must be interpreted as meaning that it is for the Member States to define the concept of “workers who have an employment contract or an employment relationship” in Clause 2.1 of the PTWD, and, in particular, to determine whether judges fall within that concept. However, this is subject to the condition that that does not lead to the arbitrary exclusion of that category of persons from the protection offered by the PTWD.
The Court further held that an exclusion from that protection may be allowed only if the relationship between judges and the Ministry of Justice is, by its nature, “substantially different” from that between employers and their employees falling, according to national law, under the category of workers.
As to the second question, the Court held that the PTWD must be interpreted as meaning that it precludes, for the purpose of access to the pension scheme, national law from establishing a distinction between full-time judges and part-time judges remunerated on a daily fee-paid basis, unless such a difference in treatment is justified by objective reasons, which is a matter for the referring court to determine.
Tim Ward QC represented the Ministry of Justice in the Court of Justice.
Ian Rogers represented the Council of Immigration Judges in the Supreme Court and in the Court of Justice. He also represents a large number of fee paid judges in different jurisdictions making protective claims.