# C_2012118EN.01000301.xml

| 21.4.2012 | EN | Official Journal of the European Union | C 118/3 |
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21.4.2012

EN

Official Journal of the European Union

C 118/3

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Judgment of the Court (Second Chamber) of 1 March 2012 (reference for a preliminary ruling from the Supreme Court of the United Kingdom) — Dermod Patrick O’Brien v Ministry of Justice, formerly Department for Constitutional Affairs

(Case C-393/10) (1)

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(Framework agreement on part-time work - Definition of ‘part-time workers who have an employment contract or employment relationship’ - Judges working part-time remunerated on a fee-paid basis - Refusal to grant a retirement pension)

2012/C 118/04

Language of the case: English

Referring court

Referring court

Supreme Court of the United Kingdom

Parties to the main proceedings

Parties to the main proceedings

Applicant: Dermod Patrick O’Brien

Applicant:

Defendant: Ministry of Justice, formerly Department for Constitutional Affairs

Defendant:

Re:

Re:

Reference for a preliminary ruling — Supreme Court of the United Kingdom — Interpretation of Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC (OJ 1998 L 14, p. 9) — Meaning of ‘part-time workers who have an employment contract or employment relationship’ (clause 2.1 of the directive) — Part-time judges — Difference in treatment, as regards the right to an old-age pension, between full-time and part-time judges, or between different kinds of part-time judges

Operative part of the judgment

Operative part of the judgment

| 1. | 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 Framework Agreement on part-time work concluded on 6 June 1997 which appears in the Annex to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC, as amended by Council Directive 98/23/EC of 7 April 1998, and, in particular, to determine whether judges fall within that concept, subject to the condition that that does not lead to the arbitrary exclusion of that category of persons from the protection offered by Directive 97/81, as amended by Directive 98/23, and that agreement. 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. |
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1.

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 Framework Agreement on part-time work concluded on 6 June 1997 which appears in the Annex to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC, as amended by Council Directive 98/23/EC of 7 April 1998, and, in particular, to determine whether judges fall within that concept, subject to the condition that that does not lead to the arbitrary exclusion of that category of persons from the protection offered by Directive 97/81, as amended by Directive 98/23, and that agreement. 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.

| 2. | The Framework Agreement on part-time work concluded on 6 June 1997 which appears in the Annex to Directive 97/81, as amended by Directive 98/23, must be interpreted as meaning that it precludes, for the purpose of access to the retirement 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. |
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2.

The Framework Agreement on part-time work concluded on 6 June 1997 which appears in the Annex to Directive 97/81, as amended by Directive 98/23, must be interpreted as meaning that it precludes, for the purpose of access to the retirement 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.

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(1)  OJ C 274, 9.10.2010.

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