Carlos Escribano Vindel v Ministerio de Justicia.
Date: 2019-02-07
24


In that regard, it should be recalled that, according to the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle required to give a ruling (judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 24 and the case-law cited).
25


It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 25 and the case-law cited).
26


In that regard, the Court recalls that the need to provide an interpretation of EU law which will be of use to the national court requires that the national court define the factual and legal context of the questions it is asking or, at the very least, that it explain the factual circumstances on which those questions are based (see judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 26 and the case-law cited).
32


It should be borne in mind that, according to the Court’s settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. With that in mind, the Court may have to reformulate the questions referred to it. The fact that a national court has, formally speaking, worded a question referred for a preliminary ruling with reference to certain provisions of EU law does not prevent the Court from providing the national court with all the points of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. In that regard, it is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation, having regard to the subject matter of the dispute (see judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 36 and the case-law cited).
37


In the fourth place, as Mr Escribano Vindel is acting solely on his own behalf, in order to answer that question it is necessary to take only his situation into account (see, to that effect, judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 28).
39


In that regard, it must be noted, in the first place, that the prohibition of discrimination based on, inter alia, age, is incorporated in Article 21 of the Charter which, as from 1 December 2009, has the same legal status as the treaties and that that prohibition was given specific expression by Directive 2000/78 in the field of employment and occupation (see, to that effect, judgment of 8 September 2011, Hennigs and Mai, C‑297/10 and C‑298/10, EU:C:2011:560, paragraph 47).
40


In the second place, it is settled case-law that pay conditions for civil servants, including judges, fall within the scope of that directive (see to that effect, judgments of 19 June 2014, Specht and Others, C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 37, and of 9 September 2015, Unland, C‑20/13, EU:C:2015:561, paragraph 29).
41


In the third place, it must be noted that, under Article 1 and Article 2(1) and (2)(b) of Directive 2000/78, indirect discrimination on the grounds of ‘religion or belief, disability, age or sexual orientation as regards employment and occupation’ is prohibited.
42


In the fourth place, as regards the possibility of indirect discrimination on the basis of age, it must be noted that, under Article 2(2)(b) of Directive 2000/78, indirect discrimination is to be taken to occur where an apparently neutral provision, criterion or practice would put persons of a certain age at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary (judgment of 14 March 2018, Stollwitzer, C‑482/16, EU:C:2018:180, paragraph 22).
43


It is necessary, therefore, to examine whether an employee such as Mr Escribano Vindel is treated less favourably than another in a comparable situation on account of his age, or whether the provision at issue in the main proceedings may give rise to a particular disadvantage with regard to the age group to which he belongs, within the meaning of Article 2(2)(b) of Directive 2000/78 (see, by analogy, judgment of 28 February 2018, John, C‑46/17, EU:C:2018:131, paragraph 22).
50


In the fifth place, with regard to the requirement that situations be comparable, it must be pointed out that, on the one hand, it is required not that situations be identical, but only that they be comparable and, on the other hand, whether the situations are comparable must be determined not in a global and abstract manner, but in a specific and concrete manner in the light of the benefit concerned (judgment of 19 July 2017, Abercrombie & Fitch Italia, C‑143/16, EU:C:2017:566, paragraph 25).
51


It is for the referring court, which alone has jurisdiction to assess the facts, to determine whether the members of the judiciary on pay grade 4 are in a situation comparable to that of members of the judiciary on pay grade 1 (see, by analogy, judgment of 5 June 2018, Grupo Norte Facility, C‑574/16, EU:C:2018:390, paragraph 49).
62


In that regard, it must be borne in mind that the second subparagraph of Article 19(1) TEU provides that Member States are to provide remedies sufficient to ensure effective judicial protection for individuals in the fields covered by EU law. Thus, it is for the Member States to provide a system of remedies and procedures to ensure effective judicial review in those fields (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 34).
63


It follows that every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, form part of the system providing judicial remedies in the fields covered by EU law, meet the requirements of effective judicial protection (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 37).
64


The factors to be taken into account in assessing whether a body is a ‘court or tribunal’ include, inter alia, whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 38).
65


The guarantee of independence, which is inherent in the task of adjudication, is required not only at EU level as regards the Judges of the Union and the Advocates-General of the Court of Justice, as provided for in the third subparagraph of Article 19(2) TEU, but also at the level of the Member States as regards national courts (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 42).
66


The concept of independence presupposes, in particular, 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 that it is thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions. Like the protection against removal from office of the members of the body concerned, the receipt by those members of a level of remuneration commensurate with the importance of the functions they carry out constitutes a guarantee essential to judicial independence (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraphs 44 and 45).
67


In the present case, first, it is clear from the information provided by the referring court that, as with the circumstances prevailing in the case giving rise to the judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117, paragraphs 46 to 49), the salary-reduction measures at issue in the main proceedings were adopted because of the overriding need to remove the excessive budget deficit of the Member State concerned and provided for a limited reduction of the amount of remuneration, the percentage of which varies according to the level of remuneration. The measures were applied not only to the members of the Spanish judiciary but, more widely, to various public office holders and employees performing duties in the public sector, including the representatives of the legislature, the executive and the judiciary. They are, therefore, in the nature of general measures seeking a contribution from all members of the national civil service to the austerity effort dictated by the overriding need to reduce the Spanish State’s excessive budget deficit.