Dermod Patrick O’Brien v Ministry of Justice, formerly Department for Constitutional Affairs.
Date: 2012-03-01
25. The Court has already declared, as regards the applicability ratione temporis of that directive that new rules apply, unless otherwise specifically provided, immediately to the future effects of a situation which arose under the old rule. Thus the Court concluded that the calculation of the period of service required to qualify for a retirement pension is governed by Directive 97/81, including periods of employment before the directive entered into force (Joined Cases C‑395/08 and C‑396/08 Bruno and Others  [2010] ECR I‑5119, paragraphs 53 to 55).
30. As the parties in the main proceedings, all the governments having lodged submission and the European Commission acknowledge, there is no single definition of worker in European Union law: it varies according to the area in which the definition is to be applied (Case C‑85/96 Martínez Sala  [1998] ECR I‑2691, paragraph 31, and Case C‑256/01 Allonby [2004] ECR I‑873, paragraph 63).
33. The Court confirmed that approach, stating that a worker comes within the scope of the Framework Agreement on part-time work when he has a contract of employment or an employment relationship as defined by the law, collective agreement or practices in force in the Member States (Case C‑313/02 Wippel  [2004] ECR I‑9483, paragraph 40).
34. However, the discretion granted to the Member States by Directive 97/81 in order to define the concepts used in the Framework Agreement on part-time work is not unlimited. As the Advocate General observed in points 36 and 37 of her Opinion, certain words used in that agreement may be defined in accordance with the national law and practices on condition that they respect the effectiveness of the directive and the general principles of European Union law.
35. In that regard, Member States may not apply rules which are liable to jeopardise the achievement of the objectives pursued by a directive and, therefore, deprive it of its effectiveness (see Case C‑61/11 PPU El Dridi  [2011] ECR I‑0000, paragraph 55).
36. In particular, a Member State cannot remove at will, in violation of the effectiveness of Directive 97/81, certain categories of persons from the protection offered by that directive and the Framework Agreement on part-time work (see, by analogy with Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) (‘the Framework Agreement on fixed-term work’), Case C‑307/05 Del Cerro Alonso  [1997] ECR I‑7109, paragraph 29).
37. That interpretation is supported by the provisions of those two acts, which do not contain any indication from which it may be inferred that certain categories of employees are excluded from their scope. Indeed, as is clear from the wording of Clause 2.1 of the Framework Agreement on part-time work, the scope of the agreement is conceived in broad terms, covering generally fixed term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State. The definition of ‘fixed term workers’ for the purposes of the framework agreement, set out in Clause 3.1, encompasses all workers without drawing a distinction according to whether their employer is in the public, or private, sector (see, by analogy with Directive 1999/70 and the Framework Agreement on fixed term work annexed thereto, Joined Cases C‑444/09 and C‑456/09 Gavieiro Gavieiro and Iglesias Torres  [2010] ECR I‑0000, paragraphs 39 and 40 and the case-law cited).
41. In that connection, it must be observed that the sole fact that judges are treated as judicial office holders is insufficient in itself to exclude the latter from enjoying the rights provided for by that framework agreement.
42. It follows from paragraphs 34 to 38 of the present judgment and, in particular, from the need to safeguard the effectiveness of the principle of equal treatment enshrined in that framework agreement, that such an exclusion may be permitted, if it is not to be regarded as arbitrary, only if the nature of the employment relationship concerned is substantially different from the relationship between employers and their employees which fall within the category of ‘workers’ under national law.
43. It is ultimately for the referring court to examine to what extent the relationship between judges and the Ministry of Justice is, by its nature, substantially different from an employment relationship between an employer and a worker. The Court may, however, mention to the referring court a number of principles and criteria which it must take into account in the course of its examination.
44. In that connection, it must be observed, as the Advocate General stated in point 48 of her Opinion, that in examining whether the nature of that relationship is substantially different from that between employees falling, according to national law, within the category of ‘workers’ and their employers, the referring court will therefore have to bear in mind that, in order to have regard to the spirit and purpose of the Framework Agreement on part-time work, that distinction must be made in particular in the light of the differentiation between that category and self-employed persons.
45. With that in mind, the rules for appointing and removing judges must be considered, and also the way in which their work is organised. In that connection, it is apparent from the order for reference that judges are expected to work during defined times and periods, even though this can be managed by the judges themselves with a greater degree of flexibility than members of other professions.
47. It must be observed that the fact that judges are subject to terms of service and that they might be regarded as workers within the meaning of Clause 2.1 of the Framework Agreement on part-time work in no way undermines the principle of the independence of the judiciary or the right of the Member States to provide for a particular status governing the judiciary.
51. In those circumstances, the answer to the first question referred is that 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 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 and that framework agreement. An exclusion from that protection may be permitted 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, within the category of workers.
The second question
64. In those circumstances, 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 norm. 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, by way of analogy with Clause 5.1(a) of the Framework Agreement on fixed-term work, Del Cerro Alonso , paragraphs 57 and 58).
66. It must be recalled that budgetary considerations cannot justify discrimination (see, to that effect, Joined Cases C‑4/02 and C‑5/02 Schönheit and Becker  [2003] ECR I‑12575, paragraph 85, and Case C‑486/08 Zentralbetriebsrat der Landeskrankenhäuser Tirols [2010] ECR I‑3527, paragraph 46).