Information;Order — ECLI:EU:C:2023:858
Date: 2023-11-08
Language of the case: German
Court formation: Ninth Chamber
Subject matter: Provisions governing the Institutions;Principles, objectives and tasks of the Treaties;Social Policy;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Germany

Summary C-333/23 – 1 
Case C-333/23 [Habonov] 1 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
26 May 2023 
Referring court: 
Verwaltungsgericht Gießen (Germany) 
Date of the decision to refer: 
19 May 2023 
Applicant: 
GM 
Respondent: 
Federal Republic of Germany 
  
Subject matter of the main proceedings 
Asylum law – Regulation (EU) No 604/2013 – Deportation of the applicant to the 
competent Member State – Action before the competent court – In the context of 
these proceedings, request for a preliminary ruling to the Court of Justice on 
questions not concerning the interpretation of Regulation (EU) No 604/2013 but 
concerning the payment of judges in the Member State of the referring court 
Subject matter and legal basis of the request 
Interpretation of European Union law, Article 267 TFEU 
 
1 The present case is referred to by a fictitious name that does not correspond to the real name of a party to the proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-333/23 
 
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Questions referred for a preliminary ruling 
1. Are Article 19 TEU and Article 47 of the Charter of Fundamental Rights of 
the European Union to be interpreted as meaning that they preclude the 
provisions on the remuneration of judges in force in the Member State of the 
referring court, such as follow from the  Gesetz zur weiteren Anpassung der 
Besoldung und Versorgung im Jahr 2023 sowie im Jahr 2024 (Law on the 
further adjustment of remuneration and pensions of civil servants in 2023 
and 2024) of the Land Hesse (Drucksache20/9499 of the Landtag of Hesse), 
if, at the end of a period to be determined by the Court of Justice which 
begins on notification of the decision of the Court, the Land of Hesse has not 
adopted legislation on the remuneration of judges which complies with 
European standards? 
2. Are Article 19 TEU and Article 47 of the Charter of Fundamental Rights of 
the European Union, read in conjunction with Articles 2, 3 and 6 of Council 
Directive 2000/78/EC of 27 November 2000 establishing a general 
framework for equal treatment in employment and occupation to be 
interpreted as meaning that they preclude that the remuneration of judges in 
Grade R 6 of the Bundesbesoldungsgesetz (Federal Law on remuneration of 
civil servants) in the Member State of the referring court be linked to the 
condition of having reached the age of 35, with the result that the judges of 
that Member State who have hitherto received a remuneration that is lower 
than that of Grade R 6 of the Federal Law on remuneration of civil servants, 
must be paid at the level of the amount laid down for Grade R 6 of the 
Federal Law on remuneration of civil servants, and that those judges of the 
Member State of the referring court, who, under national legislation, have 
applied for remuneration appropriate to their role for previous financial 
years or have brought an action against their inappropriate remuneration for 
the previous financial years, may claim the difference in remuneration 
compared to Grade R 6 of the Federal Law on remuneration of civil servants 
for the previous years in which they were active? 
Provisions of European Union law relied on 
Article 19 TEU, Article 47 of the Charter of Fundamental Rights of the European 
Union 
Council Directive 2000/78/EC of 27 November 2000 establishing a general 
framework for equal treatment in employment and occupation, Articles 2, 3 and 6 
Regulation (EU) No 604/2013 of the European Parliament and of the Council of 
26 June 2013 establishing the criteria and mechanisms for determining the 
Member State responsible for examining an application for international 
protection lodged in one of the Member States by a third-country national or a 
stateless person (Dublin III Regulation) 
HABONOV 
 
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Provisions of national law relied on 
Hessisches Besoldungsgesetz (Hesse Law on remuneration of civil servants) and 
Besoldungsordnung R (Civil Service Remuneration Order R) in the Annex to this 
Law 
Hessisches Gesetz zur weiteren Anpassung der Besoldung und Versorgung im 
Jahr 2023 sowie im Jahr 2024 (Hesse Law on the further adjustment of 
remuneration and pensions of civil servants in 2023 and in 2024) 
Bundesbesoldungsgesetz (Federal Law on remuneration of civil servants) and 
Bundesbesoldungsordnung R (Federal Civil Service Remuneration Order R) in the 
Annex to this Law 
Succinct presentation of the facts and procedure in the main proceedings 
1 The request for a preliminary ruling is made in the context of an urgent procedure 
under asylum law between the applicant and the Federal Republic of Germany as 
respondent. The applicant is a Russian national. He entered the Federal Republic 
of Germany on 19 December 2022 and applied for asylum on 29 December 2022. 
According to the findings of the respondent as a result of a comparison of 
fingerprints with the Eurodac database, there were grounds for believing that 
another state was responsible under Regulation (EU) No 604/2013. A transfer 
request under the Dublin III Regulation was sent to Croatia on 9 January 2023. 
The Croatian authorities declared their responsibility for processing the asylum 
application pursuant to Article 20(5) of the Dublin III Regulation. The applicant 
stated that he had been in Croatia and had applied for asylum there. He explained 
that it had been inhumane there, that he had had to give fingerprints to the police 
and that he now wanted to stay in Germany. 
2 By decision of 20 March 2023, the respondent rejected the asylum application as 
inadmissible. There were no prohibitions on deportation. The deportation of the 
applicant to Croatia was ordered, along with a ban on entry and residence. In 
justifying the decision, it was essentially stated that due to the asylum application 
having been lodged in Croatia, under Article 20(5) of the Dublin III Regulation, 
Croatia was responsible for dealing with the asylum application, and there were 
no systemic deficiencies there. Furthermore, the current humanitarian conditions 
in Croatia did not lead to the assumption that there would be an infringement of 
Article 3 of the ECHR if the applicant were to be deported, because the high 
standards required for this were not met. 
3 On 5 April 2023, the applicant, who does not speak German, appeared before the 
referring court. He handed over the decision to those acting for the respondent and 
indicated by his conduct that he would like to file a lawsuit and an urgent 
application against this decision. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-333/23 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
4 In the main proceedings, the referring court has to examine an administrative act 
for which the legal basis essentially derives from the Dublin III Regulation. 
However, in the present case, the court is faced with the procedural question, 
which precedes asylum law, of whether it itself meets the requirements set out in 
European Union law with a view to ensuring effective judicial protection in the 
areas covered by European Union law and with a view to ensuring the right to an 
effective remedy and a fair trial. The question arises for the referring court against 
the background of the existing rules on the remuneration of judges in the Member 
State of the referring court. 
5 The remuneration of judges in Germany is regulated for federal judges in the 
Bundesbesoldungsordnung R and in the Länder for judges working in the 
respective Länder in their own civil service remuneration orders with their own 
basic salaries. In addition, family allowances of varying levels are granted as part 
of the salary in each case, depending on the number of children and for the 
spouse. 
6 In the Land of Hesse, there are grades R 1 to R 8 within the Besoldungsordnung 
R. In grades R 1 and R 2, one rises in experience levels, each of which lasts 
2 years in the Land of Hesse, from the starting salary to the final basic salary. 
There is no advancement in experience levels in grades R 3 to R 8: these grades 
provide for fixed salaries. 
7 The remuneration of judges has often been the subject of decisions by the 
Bundesverfassungsgericht (Federal Constitutional Court, Germany). In doing so, 
it has developed several examination parameters for determining a salary that is 
commensurate with the office. On the basis of this case-law, the Hesse 
Verwaltungsgerichtshof (Administrative Court, Hesse, Germany) found in 
January 2022 that there was an infringement of the requirement to pay judges in 
Hesse a salary that was commensurate with their office. At the same time, the 
Hesse Administrative Court stayed the proceedings pending before it and 
submitted to the Federal Constitutional Court the question to be examined against 
German constitutional law as to whether the regulation of the remuneration of 
judges in Hesse is unconstitutional; the Federal Constitutional Court has not yet 
ruled on this question. 
8 As a result, the Land of Hesse increased the salaries of judges by 3% in 2023 and 
by 3% in 2024 on a linear basis. In addition, the family allowance for the first and 
second child was increased by EUR 100 per month, and the family allowance for 
the third and each additional child was increased by EUR 300 per month. 
9 That being said, the referring court asks whether Article 19 TEU and Article 47 of 
the Charter of Fundamental Rights of the European Union are to be interpreted as 
meaning that the existing rules on the remuneration of judges in the Law on the 
Further Adjustment of Salaries and Pensions in 2023 and 2024 of the Land of 
HABONOV 
 
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Hesse in the Member State of the referring court will preclude them if the Land of 
Hesse has not, within a period to be determined by the CJEU, brought into force a 
system of remuneration for judges that complies with European standards 
following notification of the decision of the CJEU. In the view of the referring 
court, this European standard is not currently being met. 
10 The Land of Hesse has set the level of remuneration in the Hesse Law on the 
Further Adjustment of Salaries and Pensions in 2023 and in 2024. However, it is 
clear from the explanatory memorandum to this Law that the legislator is 
deliberately falling short of the minimum requirements that must be met under the 
constitutional laws of the Member States. The explanatory memorandum to the 
Law in fact states that this Law does not aim to completely close the excessively 
low remuneration of judges that has been identified for Hesse, but merely to take 
initial measures to remedy the existing situation within the framework of the 
existing financial possibilities. The Hesse legislator was therefore positively aware 
at the time this Law was passed that it would not put an end to an underpayment 
of salary contrary to its own Member State law. 
11 In so far as the Law refers to the avoidance of an excessive demand on the Land 
budget, the referring court does not consider such a demand to have been 
substantiated. The explanatory memorandum to the Law does not specify any 
precise obstacles to the direct establishment of an appropriate salary. It is also 
emphasised that the explanatory memorandum does not consistently differentiate 
between the costs that would be incurred for an increase in the remuneration of 
judges and those for an increase in the remuneration of other civil servants as well 
as public prosecutors. In addition, the very low additional costs for judges’ 
salaries of around EUR 2.5 million in 2023 and around EUR 3.7 million in 2024 
compared with the total costs show that the additional costs attributable only to 
the justice sector as such are very small in relation to the total additional costs. 
However, it must be taken into account that judges, unlike civil servants, are 
original guarantors of effective legal protection, which is not reflected in their 
remuneration. 
12 In so far as the explanatory memorandum to the Law further states that the Land 
of Hesse has to bear the consequences of the war in Ukraine with regard to rising 
inflation, it overlooks the fact that the remuneration of judges in particular also 
has to be adjusted to this rising inflation. 
13 It is also not clear from the explanatory memorandum to the Law that the Land of 
Hesse has taken into account the European Commission’s guidelines in its Rule of 
Law Report of 13 July 2022 with regard to the remuneration of judges in its 
consideration process. This report recommends that the Federal Republic of 
Germany continue its efforts to adequately equip the judiciary within the 
framework of the new Rule of Law Pact, including with regard to the level of 
remuneration of judges, taking into account the European standards for the 
equipment and remuneration of the judiciary. No attention is paid to this in the 
explanatory memorandum to the Law. The process of consideration initiated by 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-333/23 
 
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the Land of Hesse does not take into account the European recommendations that 
have been openly communicated in this respect. 
14 On the second question: First of all, it is clear from the case-law of the Court of 
Justice that the conditions of remuneration of judges fall within the scope of 
Directive 2000/78/EC and that Articles 2, 3 and 6 of that Directive preclude 
national provisions under which the basic pay of a judge is determined at the time 
of his or her appointment solely according to the judge’s age (judgment of 
9 September 2015, Unland, C-20/13, EU:C:561). The term ‘pay’ in Article 3(1)(c) 
of Directive 2000/78/EC is part of the conditions of employment and does not 
directly concern the determination of remuneration. The Court of Justice therefore 
held that the national rules governing the methods of allocating the amount of pay 
for each grade and step cannot be severed from the material scope of Directive 
2000/78. 
15 In this regard, the referring court makes the following observations concerning the 
appointment of judges at the highest federal courts (such as the Bundesgerichtshof 
(Federal Supreme Court, Germany)). The Federal Law on remuneration of civil 
servants applies to judges at the highest federal courts. Access to grade R 6 of the 
Federal Law on remuneration of civil servants for the office of federal judge is 
exclusively linked to the age of 35. Theoretically, someone who has not 
previously been a judge can also be appointed as a judge for life and thus be 
elected as a judge at a federal court. Thus, entry into grade R 6 of the Federal Law 
on remuneration of civil servants does not require any judicial service experience 
in lower instances, but is exclusively dependent on reaching a fixed age limit. The 
remuneration granted to such a judge on the occasion of his or her recruitment as a 
federal judge is therefore based solely on his or her age. 
16 The question is therefore whether Articles 2, 3 and 6 of Directive 2000/78/EC in 
conjunction with Article 19 TEU and Article 47 of the Charter are to be 
interpreted as meaning that it follows from the age discrimination arising from the 
purely lifetime-based remuneration in Grade R 6 of the Federal Law on 
remuneration of civil servants that judges in the Member State of the referring 
court - who have hitherto received a remuneration that is lower than Grade R 6 of 
the Federal Law on remuneration of civil servants are to be remunerated at the 
amount of Grade R 6 of the Federal Law on remuneration of civil servants - and 
those judges of the referring Member State who, in accordance with the law of the 
Member State, have applied for remuneration commensurate with their office for 
past financial years or have lodged an objection against their inappropriate 
remuneration, may claim the respective differential amount up to grade R 6 of the 
Federal Law on remuneration of civil servants for the respective past years in 
which they were correspondingly active. 
17 The referring court asks the Court to rule on the request by way of urgent 
preliminary ruling under Article 107 of the Rules of Procedure of the Court of 
Justice or, in the alternative, by way of expedited procedure under Article 105 of 
the Rules of Procedure. 
HABONOV 
 
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18 Under Article 107 of the Rules of Procedure of the Court of Justice, a request for a 
preliminary ruling that raises one or more questions relating to the areas covered 
by Part Three, Title V TFEU may, at the request of the referring court or, 
exceptionally, of its own motion and by way of derogation from the provisions of 
the Rules of Procedure, be subject to an urgent procedure. Since the subject matter 
of this request is an urgent procedure under asylum law on the basis of the Dublin 
III Regulation and asylum policy falls under Part Three, Title V TFEU pursuant to 
Article 78 TFEU, the request can in principle be submitted to an urgent procedure. 
The fact that the request deals with questions of interpretation of Article 19 TEU 
and Article 47 of the Charter does not preclude this. These questions are, after all, 
linked to principles relating to the area of freedom, security and justice that the 
European Union constitutes under Article 67 TFEU, which in turn opens up Part 
Three, Title V TFEU. 
19 With regard to urgency, it should be emphasised that the deportation order to 
Croatia is immediately enforceable, as the action brought against it before the 
referring court has no suspensive effect. The applicant, who is threatened with 
deportation, therefore urgently needs the Court to rule soon in order to obtain legal 
clarity. In addition, a huge increase in further asylum procedures may currently be 
on the horizon. In this respect, the referring court needs a decision for its 
jurisdiction that is as prompt as possible. 
20 Moreover, the referring court is dealing with the applicant’s main proceedings 
under national law in an urgent procedure. Therefore, it is in the legal interests of 
both parties to subject the preliminary ruling procedure initiated in the context of 
the urgent preliminary ruling procedure under asylum law to the rules of an urgent 
preliminary ruling procedure as well. If the request were not submitted to an 
urgent preliminary ruling procedure, the effectiveness of the Dublin III 
Regulation, which aims at acceleration, would be called into question by the 
procedural duration to be expected for the standard preliminary ruling procedure. 
This is because the applicant may have to be deported to Croatia, but this could 
then possibly not take place for the duration of a standard preliminary ruling 
procedure. Moreover, the applicant would be threatened with a long period of 
existential legal uncertainty due to the long duration that would accompany a 
standard preliminary ruling procedure. 
21 In the alternative, in so far as the requirements of Article 107 of the Rules of 
Procedure of the Court of Justice are not met, it is asked that the request for a 
preliminary ruling under Article 105 of the Rules of Procedure be submitted to an 
expedited procedure by way of derogation from the provisions of the Rules of 
Procedure, on the grounds that the case requires a speedy resolution. The referring 
court refers in this respect to its observations on Article 107 of the Rules of 
Procedure of the Court of Justice, which is why, in its view, the application of the 
expedited procedure is justified in any event. 
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22 Since the referring court considers that it is unable to rule on the action before it 
without clarification of the questions referred for a preliminary ruling, it refers the 
questions set out above to the Court of Justice for a preliminary ruling.