Opinion of the Advocate General — ECLI:EU:C:2024:507
Date: 2024-06-13
Language of the case: Lithuanian;Polish
Procedure: Reference for a preliminary ruling
Origin: Lithuania;Poland

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: 
10 March 2023 
Referring court: 
Sąd Rejonowy w Białymstoku (Poland) 
Date of the decision to refer: 
10 March 2023 
Applicant: 
XL 
Respondent: 
Sąd Rejonowy w Białymstoku (District Court, Białystok) 
  
Subject matter of the case in the main proceedings 
Demand for the payment of PLN 10 000 in remuneration for work performed 
from 1 July 2022 to 31 January 2023 and statutory late payment interest on the 
amounts for each month until the date of payment, lodged by Judge XL against his 
employer, the Sąd Rejonowy w Białymstoku (District Court, Białystok). 
Subject matter and legal basis of the request 
1 Request for an interpretation of Article 2 and of the second subparagraph of 
Article 19(1) of the Treaty on European Union (TEU), in conjunction with 
Article 47 of the Charter of Fundamental Rights of the European Union, lodged on 
the basis of the second subparagraph of Article 267 of the Treaty on the 
Functioning of the European Union (TFEU). 
Question referred 
Should Article 2 of the Treaty on European Union, which defines the values on 
which the European Union is based with regard to respect for the rule of law, and 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-146/23 
 
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the second subparagraph of Article 19(1) of the Treaty on European Union, in 
conjunction with Article 47 of the Charter of Fundamental Rights of the European 
Union, which requires Member States to ensure effective legal protection, which 
is based on the right to a fair and public hearing, be interpreted as meaning that 
the principle of judicial independence precludes provisions of national legislation 
which, for the purpose of limiting government spending, waives a mechanism for 
setting judges’ pay on the basis of objective criteria that are independent of 
arbitrary interference by the executive and legislative authorities, resulting in 
sustained cuts to the pay of judges, thereby infringing the constitutional 
guarantees by which judges are granted remuneration consistent with the dignity 
of their office and the scope of their duties and the administration of justice is 
carried out by independent courts and independent judges? 
Provisions of EU law relied on 
Treaty on European Union, Articles 2 and 19. 
Charter of Fundamental Rights of the European Union, Article 47 
Provisions of national law relied on 
Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland; 
‘the Constitution’). 
Article 2 
The Republic of Poland is a democratic State subject to the rule of law and 
implementing the principles of social justice. 
Article 10 
1. The system of government of the Republic of Poland shall be based on 
the separation of and balance between the legislature, executive and 
judiciary. 
2. Legislative power shall be vested in the Sejm and the Senate, executive 
power shall be vested in the President of the Republic and judicial power 
shall be vested in the courts and tribunals. 
Article 173 
The courts and tribunals shall constitute a separate power and shall be 
independent of other branches of power. 
Article 178 
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1. Judges, within the exercise of their office, shall be independent and 
subject only to the Constitution and statutes. 
2. Judges shall be provided with appropriate conditions for work and 
granted remuneration consistent with the dignity of their office and the 
scope of their duties. 
[…] 
Ustawa z dnia 27 lipca 2001 r. – Prawo o ustroju sądów powszechnych (Law of 
27 July 2001 on the System of Ordinary Courts) (consolidated text of 
14 December 2022, Journal of Laws 2023.217, hereinafter the ‘Law on the 
Ordinary Courts’) 
Article 91. 
[…] 
Paragraph 1c. The basis for setting the basic salary of judges for a particular 
year shall be the average salary during the second quarter of the previous 
year published in the ‘Monitor Polski’ Journal of Laws by the President of 
the Central Statistical Office […], subject to Paragraph 1d. 
Paragraph 1d. If the average salary referred to in Paragraph 1c is lower than 
the average salary published for the second quarter of the preceding year, 
this shall be adopted as the basis for setting the basic salary of a judge at the 
previous rate. 
Paragraph 2. The basic salary for a judge shall be expressed in grades, the 
level of which shall be determined through the application of multipliers to 
the basis for determining the basic salary referred to in Paragraph 1c. The 
basic salary grades for individual judicial posts and the multipliers used to 
determine the level of the basic salary for judges in individual grades are set 
out in the annex to this Law. 
[…] 
Paragraph 7. In addition, remuneration for judges shall be differentiated by a 
seniority allowance amounting, as from the sixth year of service, to 5% of 
the basic salary and increasing each year by 1% until it reaches 20% of the 
basic salary. 
Ustawa z dnia 17 grudnia 2021 r. o szczególnych rozwiązaniach służących 
realizacji ustawy budżetowej na rok 2022 (Law of 17 December 2021 on specific 
arrangements for implementing the budget law for 2022) (Journal of Laws 
2021.2445) 
Article 8. 
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1. In 2022, the basis, referred to in Article 91(1c) of the Law on the 
Ordinary Courts, for determining the salary of judges shall be the average 
salary for the second quarter of 2020 published by the President of the 
Central Statistical Office. 
2. The basis referred to in paragraph 1 shall be increased by the sum of 
PLN 26. 
[…] 
Ustawa z dnia 1 grudnia 2022 r. o szczególnych rozwiązaniach służących 
realizacji ustawy budżetowej na rok 2023 (Law of 1 December 2022 on specific 
arrangements for implementing the budget law for 2023) (Journal of Laws 
2022.2666): 
Article 8. 
1. In 2023, the basis, referred to in Article 91(1c) of the Law on the 
Ordinary Courts, for determining the salary of judges is PLN 5 444.42. 
[…] 
Succinct presentation of the facts of the case 
2 The applicant XL was appointed as a judge at the Sąd Rejonowy w Suwałkach 
(District Court, Suwałki) on 4 December 2003 by order of the President of the 
Republic of Poland. On 3 April 2007, by decision of the Minister for Justice, he 
was seconded to the position of judge at the District Court, Białystok, where he 
has been working in a judicial function ever since. 
3 From 5 August 2021, the applicant was assigned to basic pay grade five with a 
basic salary multiplier of 2.5 and a years-of-service supplement at 20% of the 
basic salary. 
4 The applicant’s salary for 2022 was calculated using a multiplier of 2.5 and the 
basic salary set at PLN 5 050.48. 
5 The applicant’s salary for 2023 was calculated using a multiplier of 2.5 and the 
basic salary set at PLN 5 444.42. 
6 The applicant’s payment claim is based on the discrepancy between the pay 
actually received and the pay due to him which, in accordance with the 
calculations submitted, was PLN 1 362.12 monthly from July to November 2022, 
PLN 1 053.90 in December 2022 (including the applicant’s sick leave) and 
PLN 2 135.50 in January 2023. The total value of the claim is PLN 10 000. 
SĄD REJONOWY W BIAŁYMSTOKU 
 
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Essential arguments of the parties to the main proceedings 
7 The applicant claims that the salary actually paid to him was substantially lower 
than the salary due to him under the pay calculation mechanism set out in the Law 
on the Ordinary Courts The applicant claims that there is a discrepancy between, 
on the one hand, ‘budget-related’ laws and, on the other, the Law on the Ordinary 
Courts and the Polish Constitution, as well as EU regulations. He submits that, in 
2021, the usual, incidental and technical law setting out the basis for the 
remuneration of judges outlined a new system of remuneration (bypassing the 
mechanism set out in the Law on the Ordinary Courts), by introducing a 
regulation, renewed on a yearly basis, the aim of which was to ‘eliminate the 
principle of judicial independence and establish conditions allowing influence 
over judicial decisions, and thereby provide an opportunity for part of the 
judiciary to be taken over by the legislature and the executive’, which, the 
applicant believes, amounts to a ‘blatant attack on citizens’ rights as it fails to give 
society the right to an independent and impartial judiciary, understood as the 
Union judiciary’. He stresses the tendentiousness of ‘freezing’ the index-linking 
of judges’ pay against a background of an actual increase in pay for the managers 
of some state-sector entities, or persons in leading government positions (whose 
salaries have increased by 40%-60%). 
8 The respondent, his employer, stated that it had no authority to set independently 
the salaries of judges and to bypass the contested provisions, and that it was 
therefore acting lawfully. It also stressed the lack of available funding in the 
financial plan for the judiciary. 
Brief statement of and reasons for the request 
9 The referring court notes that the European Union is based on common values of 
its Member States and that it is generally accepted that the values expressed in 
Article 2 TEU are an axiomatic expression of the underlying principles of the 
legal system of the Union. Article 19 TEU elaborates on the principle, set out in 
Article 2 TEU, of respect for the rule of law, by tasking the Court of Justice and 
the national courts with the full implementation of Union law. Mutual trust 
between the Member States is built on mutual trust between the courts applying 
EU provisions in judicial proceedings. According to the case-law of the Court of 
Justice, while the administration of justice is within the competence of the 
Member States, they are required to conform with EU law when exercising that 
competence (judgment of 18 May 2021, Asociaţia “Forumul Judecătorilor din 
România” and Others, C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and 
C-397/19, EU:C:2021:393). In exercising their powers, the Member States are 
obliged to comply with their obligations deriving from EU law, which may apply 
in particular to national provisions affecting the status of judges, including the 
procedures for appointing judges, and regulatory provisions of systems for the 
disciplinary liability of judges (judgment of 22 March 2022, Prokurator 
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Generalny (Disciplinary Chamber of the Supreme Court – Appointment), 
C-508/19, EU:C:2022:201). 
10 Article 19 TEU confers judicial supervision over the legal system of the European 
Union not only to the European Court of Justice, but also to the national courts. 
Member States are obliged to ensure that EU law is applied and respected in their 
territory by establishing the means necessary to ensure the protection of the rights 
of individuals to effective judicial protection in areas covered by EU law 
(judgment of 16 February 2022, Poland v Parliament and Council, C-157/21, 
EU:C:2022:98). 
11 According to the case-law of the Court of Justice, guaranteeing effective judicial 
protection is underpinned by the principle of judicial independence. The 
requirements that courts be independent and impartial form part of the essence of 
the right to effective judicial protection and the fundamental right to a fair trial 
(judgment of the Court of 26 March 2020, Review Simpson v Council and Review 
HG v Commission, C-542/18 RX-II and C-543/18 RX-II, EU:C:2020:232). 
Independence means, inter alia, that the body concerned exercises its judicial 
functions wholly autonomously, without being subject to any hierarchical 
constraint or subordinated to any other body and without taking orders or 
instructions from any source whatsoever, and is thus protected against external 
interventions or pressure liable to impair the independent judgment of its members 
and to influence their decisions (judgment of 27 February 2018, Associação 
Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117). 
12 In its judgment of 19 September 2006, Wilson, C-506/04 (EU:C:2006:587), the 
Court refers to the concept of judicial independence as an integral element of 
jurisprudence and stresses the need to provide judges with defined personal 
guarantees to preclude external interference and pressure which may threaten 
judicial independence and neutrality with regard to the interests of the parties in 
dispute. However, in the judgment of 27 February 2018, Associação Sindical dos 
Juízes Portugueses (C-64/16, EU:C:2018:117), the Court carried out a detailed 
analysis of the essence of the guarantee of judicial independence, stating that a 
level of remuneration commensurate with the importance of the functions they 
carry out constitutes a guarantee essential to judicial independence (paragraph 45). 
The cited interpretation of the requirement to provide judges with personal 
guarantees, including ensuring an adequate level of remuneration, is particularly 
important for analysing the mechanism, defined in national regulations, for paying 
judges and how changes in these regulations may actually undermine the financial 
situation of judges as a result of a permanent reduction in their level of 
remuneration. 
13 Addressing the facts of the current case, the referring court states that the 
provisions of the Law on the Ordinary Courts in force have provided, since 2009, 
a mechanism whereby the pay of judges is determined in relation to the average 
pay index for the second quarter of the previous year as officially published 
annually by the president of the Central Statistical Office in the Polish Journal of 
SĄD REJONOWY W BIAŁYMSTOKU 
 
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Laws, replacing the previous method, which was based on the basic amount 
defined annually in the budget law. The introduction of this mechanism ensured a 
more objective method of setting pay rates for judges, and limited the influence of 
other branches of power in regard to basic pay rates for judges. 
14 The mechanism for determining the pay of judges was changed on three occasions 
at the initiative of the executive by means of the laws on specific arrangements for 
implementing the budget law for 2021, 2022 and 2023. In the budget projections 
for 2021, the system of index-linking judges’ pay was ‘frozen’ by basing their pay 
increase on the average pay in the second quarter of 2019, instead of the average 
pay in the second quarter of 2020. The pay rates for judges for 2022 were based 
on the average pay in the second quarter of 2020, with an increase by a designated 
amount, instead of an increase based on the average pay in the second quarter of 
2021. Then, in 2023, the system of setting judges’ pay on the basis of a basic rate 
was introduced, instead of basing their pay on the average rate for the second 
quarter of 2022. 
15 A number of the provisions of the Law of 1 December 2022 on specific 
arrangements for implementing the budget law for 2023, including Article 8 of 
that Law, were contested before the Trybunał Konstytucyjny (Constitutional 
Court). In December 2022, applications for a ruling on the unconstitutionality of 
the provisions amending the mechanism for establishing judges’ pay rates 
established primarily in the Law on the Ordinary Courts were lodged by the 
Pierwsza Prezes Sądu Najwyższego (First President of the Supreme Court), the 
Prezes Naczelnego Sądu Administracyjnego (President of the Supreme 
Administrative Court) and the Krajowa Rada Sądownictwa (National Council of 
the Judiciary). 
16 The First President of the Supreme Court pointed out that the contested provisions 
infringed the guarantee that judges would be remunerated at a level corresponding 
to the dignity of their office and the scope of their duties, thereby infringing the 
guarantee of judicial independence, the principle of protecting acquired rights and 
confidence in the State and the established law and the right of judges to receive 
remuneration corresponding to the dignity of their office and the scope of their 
duties, meaning the subjective right to have pay based on objective criteria 
independent of arbitrary decisions of the legislature. She underlined that the pay-
setting methods introduced as an exemption from the applicable legal principles, 
or bypassing those principles, subject the decision in this important sphere to ad-
hoc decisions by the legislature acting on prior directions from the executive. This 
means that the accepted model of setting pay rates for judges would no longer be 
automatic and objective, but would be based on an annual, and somewhat 
unpredictable, determination by the legislature. 
17 In his application, the President of the Supreme Administrative Court stated, inter 
alia, that the provisions of the budget law in question were an episodic regulation 
and represented a departure from the established statutory principles of setting the 
remuneration of judges. Linking the remuneration of judges with the average pay 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-146/23 
 
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protects it, in his view, against reductions in purchasing power due to inflation, 
but through its episodic regulation the legislature has effectively reduced the 
index-linked pay increase for judges adopted in the Law on the Ordinary Courts. 
The application states that judges are the only group of State employees 
mentioned in the Constitution in the context of working conditions and 
remuneration, thereby requiring the introduction of a pay-setting system distinct 
from the system applicable to other civil servants. This system should take into 
account the protection of an independent judiciary, the dignity of the office and 
the burden of responsibility, with the remuneration of judges fulfilling a protective 
function against external pressures when taking their decisions. The applicant 
states that the drop in real earnings for judges in the period 2021-2023 will be 
approximately 23.6%, a significant difference from the increase in average gross 
salaries of 6.74% in the years 2020-2021. 
18 The National Council of the Judiciary, in its application, emphasised 
Article 178(2) of the Constitution of the Republic of Poland, underlining the 
constitutional guarantee of judges’ salaries, which limits the legality of 
interference by the legislature in the system for setting pay. It pointed out that 
judges’ pay is a significant element in guaranteeing the independence and 
impartiality of judges, and one of the most important aspects of appropriate 
remuneration for the office of judge is to define objective, quantifiable conditions 
for that remuneration and a guarantee of automatic index-linking without giving 
the authorities the opportunity to make discretional decisions on setting pay rates, 
which could become a tool for exerting pressure on judges. The application also 
sets out the dynamics of inflationary processes, the de facto increase in the cost of 
living and the lack of justification for the changes introduced vis-a-vis 
macroeconomic parameters, the position of the State budget and the overall 
financial situation of the country. 
19 The referring court shares the reservations and arguments raised in the three cited 
applications to the Constitutional Court both in terms of the interpretation of 
provisions of the Constitution and in terms of the overall financial situation of the 
country. The referring court believes that note should be taken of the infringement 
of the guarantee of the independence of judges mentioned in all the cited 
applications, which is a precondition for an independent judiciary. In its view, the 
significance of undermining the independence of the judiciary should also be seen 
in the ‘frozen’ index-linking of judges’ pay over the last three years, and de facto 
waiving the mechanism of setting the remuneration of judges based on objective 
reference to the index of the average remuneration in the second quarter of the 
preceding year. This infringement, in the view of the referring court, is associated 
with the threat of a permanent, repeated and consistent reduction of the 
remuneration of judges entailed in the intended subordination of the judiciary to 
the executive and legislature. 
20 In the view of the referring court, the real deterioration in the working conditions 
of judges in the context of the increased effect of new cases, a growing backlog 
and greater time requirements for disposing of cases could make the action taken 
SĄD REJONOWY W BIAŁYMSTOKU 
 
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to increase the efficiency of judges ineffective, and involves a risk of widespread 
demands by judges for payment of the difference between the remuneration paid 
and the remuneration that may be due. 
21 Referring again to the judgment of the Court of Justice of 27 February 2018, 
Associação Sindical dos Juízes Portugueses (C-64/16, EU:C:2018:117), which 
ruled that the principle of judicial independence does not preclude the application 
of general rules reducing remuneration, the referring court stresses that that 
judgment of the Court referred to general regulations whereby all public officials 
in the country have a part to play in austerity measures dictated by the need to 
reduce an excessive national budget deficit and to regulations which 
simultaneously reduced the remuneration of all public officials in Portugal. The 
admissibility of the temporary nature of reductions in the remuneration of judges 
in the context of general reductions in remuneration as part of the requirements for 
reducing an excessive budget deficit have also been analysed in the judgment of 
7 February 2019, Escribano Vindel (C-49/18, EU:C:2019:106). In the opinion of 
the referring court, the Court of Justice’s conclusions about the general nature of 
the provisions and the associated participation in savings cuts by all members of 
the public administration (paragraph 49 of the judgment in Case C-64/16 and 
paragraphs 60 and 67 of the judgment in Case C-49/18), and the temporary nature 
of the provisions reducing remuneration (paragraph 50 of the judgment in Case 
C-64/16 and paragraph 9 of the judgment in Case C-49/18), are not applicable in 
the main proceedings in the present case. 
22 In the opinion of the referring court, the facts of the case in the main proceedings 
here differ significantly from the facts analysed in the above decisions of the 
Court of Justice. Furthermore, in the present instance, it is a matter of the 
introduction of the permanent renunciation of a previously established mechanism 
of setting remuneration according to specific provisions addressed directly to the 
profession of judges (and also indirectly to other professions whose remuneration 
is calculated on the basis of the mechanism analysed). The permanent nature of 
the waiver of the mechanism for setting the remuneration of judges and the fact 
that it burdens solely the profession of judge with salary-reducing changes in the 
rules are substantially and decisively significant in interpreting EU rules in the 
context of the facts of the matter in the main proceedings. 
23 In the view of the referring court, an interpretation of provisions of EU law is 
therefore necessary in order to resolve the dispute on salaries in the main 
proceedings. The crux of the matter lies in the interpretation of Article 2 TEU and 
of the second subparagraph of Article 19(1) TEU, in conjunction with Article 47 
of the Charter of Fundamental Rights of the European Union, regarding the 
replacement of an objective mechanism for setting judges’ pay with a ‘freeze’ on 
their pay levels, resulting in a real and actual reduction in pay through specific 
legislation fundamentally aimed at judges alone. An answer to the doubts with 
regard to the interpretation of EU rules and the confirmation of a possible 
infringement of the guarantee of judicial independence in national legislation 
would be of fundamental significance for the proper functioning of the system of 
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judicial cooperation under the mechanism of referral for a preliminary ruling 
provided for in Article 267 TFEU. 
24 The referring court is inclined towards an interpretation of the provisions listed 
above to the effect that they are an obstacle to the introduction into national law of 
permanent solutions, by means of haphazard provisions intended to improve the 
stability of public finances, which threaten the subordination of the legislative 
power by subjecting the formation of judges’ pay to interference by the executive 
and the legislature. An answer from the Court of Justice to the question referred 
for a preliminary ruling will allow the national court, by observing the primacy of 
EU law, to disapply any national provisions that may be contrary to EU law.