Opinion of the Advocate General — ECLI:EU:C:2011:746
Date: 2011-11-17
Language of the case: English
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary of the Judgment 1. Social policy — Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 97/81 — Scope (Council Directive 97/81, as amended by Directive 98/23, Annex, clause 2.1) 2. Social policy — Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 97/81 (Council Directive 97/81, as amended by Directive 98/23, Annex, clause 4.1) 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 which appears in the Annex to Council Directive 97/81 concerning the Framework Agreement on part‑time work concluded by UNICE, CEEP and the ETUC, as amended by Council Directive 98/23, 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. In that connection, it must be observed that the sole fact that judges are treated as holders of judicial office holders is not in itself enough to exclude them from enjoying the rights provided for by that framework agreement. Furthermore, that judges are subject to terms of service and they might be regarded as workers within the meaning of clause 2.1 of the Framework Agreement on part-time work in no way jeopardises the principle of the independence of the judiciary or the right of the Member States to provide for a particular status governing the judiciary. (see paras 41, 47, 51, operative part 1) 2. The Framework Agreement on part-time work which appears in the Annex to Directive 97/81 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC, 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 it is a matter for the referring court to determine. In that connection, the concept ‘objective grounds’ within the meaning of that clause must be understood as not permitting a difference in treatment between part-time workers and full-time workers to be justified on the basis that the difference is provided for by a general, abstract rule. On the contrary, that concept requires the unequal treatment at issue to respond to a genuine need, be appropriate for achieving the objective pursued and be necessary for that purpose. (see paras 64, 67, operative part 2)