Associação Sindical dos Juízes Portugueses v Tribunal de Contas.

• Jurisdiction: European Union
• Celex Number: 62016CJ0064
• ECLI: ECLI:EU:C:2018:117
• Docket Number: C-64/16
• Date: 27 February 2018
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Grand Chamber)

27 February 2018 ( *1 )

(Reference for a preliminary ruling — Article 19(1) TEU — Legal remedies — Effective judicial protection — Judicial independence — Charter of Fundamental Rights of the European Union — Article 47 — Reduction of remuneration in the national public administration — Budgetary austerity measures)

In Case C‑64/16,

REQUEST for a preliminary ruling under Article 267 TFEU from the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal), made by decision of 7 January 2016, received at the Court on 5 February 2016, in the proceedings

Associação Sindical dos Juízes Portugueses

v

Tribunal de Contas,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, A. Tizzano, Vice-President, L. Bay Larsen, T. von Danwitz, J.L. da Cruz Vilaça, A. Rosas, E. Levits (Rapporteur) and C.G. Fernlund, Presidents of Chambers, C. Toader, M. Safjan, D. Šváby, M. Berger, A. Prechal, E. Jarašiūnas and E. Regan, Judges,

Advocate General: H. Saugmandsgaard Øe,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 13 February 2017,

after considering the observations submitted on behalf of:

– the Associação Sindical dos Juízes Portugueses, by M. Rodrigues, advogado,

– the Portuguese Government, by L. Inez Fernandes, M. Figueiredo, M. Rebelo, F. Almeida and V. Silva, acting as Agents,

– the European Commission, by L. Flynn and M. França, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 18 May 2017,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2 The request has been made in proceedings between the Associação Sindical dos Juízes Portugueses (Trade Union of Portuguese Judges, ‘the ASJP’) and the Tribunal de Contas (Court of Auditors, Portugal) concerning the temporary reduction in the amount of remuneration paid to that court’s members, in the context of the Portuguese State’s budgetary policy guidelines.

Legal context

EU law

3 Article 2 TEU reads as follows: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’

4 Article 19(1) and (2) TEU provides: ‘1. The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed. Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law. 2. ... The Judges and the Advocates-General of the Court of Justice and the Judges of the General Court shall be chosen from persons whose independence is beyond doubt ...’

Portuguese law

5 Lei n.o 75/2014 — Estabelece os mecanismos das reduções remuneratórias temporárias e as condições da sua reversão (Law No 75/2014 putting in place the mechanisms for the temporary reduction of remuneration and the conditions governing their reversibility) of 12 September 2014 (Diário da República, 1st Series, No 176, of 12 September 2014, p. 4896, ‘Law No 75/2014’), determines, in accordance with Article 1(1) thereof, the temporary application of the mechanism for reducing remuneration in the public sector.

6 Article 2 of Law No 75/2014 is worded as follows: ‘1 — Gross monthly income greater than EUR 1500 of persons referred to in paragraph 9, whether already employed on that date or taking up their functions thereafter, in any capacity, shall be reduced as follows: (a) by 3.5% of the total amount of remuneration greater than EUR 1500 and less than EUR 2000; (b) by 3.5% of the amount of EUR 2000 plus 16% of the amount of the total remuneration greater than EUR 2000, coming to an overall reduction of between 3.5% and 10% in respect of remuneration equal to or greater than EUR 2000 and up to EUR 4165; (c) by 10% of the total amount of remuneration greater than EUR 4165. … 9 — This Law shall apply to the following office-holders and other employees: (a) the President of the Republic; (b) the President of the Assembleia da República [National Assembly]; (c) the Prime Minister; (d) Deputies of the Assembleia da República; (e) Members of the Government; (f) Judges of the Tribunal Constitucional [Constitutional Court], Judges of the Tribunal de Contas [Court of Auditors], the Attorney General of the Republic, judges and public prosecutors, judges of administrative and tax tribunals and district judges; (g) Representatives of the Republic for the Autonomous Regions; (h) Deputies of the assembleias legislativas das regiões autónomas [Parliaments of the Autonomous Regions]; (i) Members of the Regional Governments; (j) locally elected persons; (k) members of other bodies provided for in the Constitution not referred to in the preceding paragraphs and members of bodies in charge of independent administrative bodies, namely those working for the Assembleia da República; (l) members and employees of cabinets, management bodies and support offices, office-holders and bodies referred to in the preceding paragraphs, the President and Vice-President of the Supreme Council of the Judiciary, the President and Vice-President of the Supreme Council of Administrative and Tax Tribunals, the President of the Supremo Tribunal de Justiça [Supreme Court], the President and Judges of the Tribunal Constitucional [Constitutional Court], the President of the Supremo Tribunal Administrativo [Supreme Administrative Court], the President of the Tribunal de Contas [Court of Auditors], the Provedor de Justiça [Ombudsman] and the Attorney General of the Republic; (m) soldiers of the armed forces and the National Republican Guard (GNR), including military judges and military experts in the Public Prosecutor’s Office, and of other armed forces; (n) managerial staff of the Presidency of the Republic and the Assembleia da República and other supporting staff of the constitutional bodies, other departments and bodies of the central, regional and local State administration and staff performing other duties which are treated as equivalent for the purposes of remuneration; (o) public administrators or those treated as equivalent thereto, members of executive, deliberative, consultative or supervisory bodies or any other statutory body subject to general or special rules, legal persons governed by public law whose independence arises from their involvement in the regulation, supervision or control of public undertakings whose capital is wholly or mainly in public ownership, public undertakings the operation of which is entrusted to a third undertaking and entities forming part of the regional and municipal business sector, public foundations and any other public entity; (p) employees performing public duties with the Presidency of the Republic, the Assembleia da República or in other constitutional bodies, and those performing public duties irrespective of the details of the employment relationship governed by public law, including employees undergoing retraining and on special leave; (q) employees of public institutions subject to a special regime and legal persons governed by public law which are independent as a result of their involvement in regulatory, supervisory or monitoring activities, including employees of independent regulatory entities; (r) employees of public undertakings whose capital is wholly or mainly in public ownership, public undertakings and entities forming part of the regional and municipal business sector; (s) employees and management of public foundations governed by public law and public foundations governed by private law and public establishments not covered by the preceding paragraphs; (t) reserve staff, staff who have taken early retirement or are on stand-by, who are not in service, who receive benefits indexed to the salaries of active staff. … 15 — The rules laid down in this article shall be mandatory and take precedence over all other provisions, whether special or exceptional, or otherwise, and over collective regulatory agreements and contracts of employment, and may not be derogated from or amended by any of the above.’

7 Lei n.o 159-A/2015 — Extinção da redução remuneratória na Administração Pública (Law No 159-A/2015 abolishing the reduction of remuneration in the public administration) of 30 December 2015 (Diário da República, 1st Series, No 254, of 30 December 2015, p. 10006-(4), ‘Law No 159-A/2015’), gradually brought to an end, as from 1 January 2016, the measures to reduce remuneration set out in Law No 75/2014.

8 Article 1 of Law No 159-A/2015 provides: ‘This law shall bring to an end the reduction of remuneration provided for in Law [No 75/2014], in the terms set out in the following article.’

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