Analysis: “Advocate General suggests the Court of Justice uphold its stance on the qualification of Giudici di Pace as judges within the meaning of Article 267 TFEU and deem them ‘workers’ under EU law” by Daniele Gallo
Four days ago, AG Kokott delivered an Opinion in UX(C‑658/18) on the status of magistrates (Giudici di Pace) from the standpoint of EU law.
The request has been made by the Giudice di Pace di Bologna as the result of an application submitted to a judge of that type for an order directing the Italian Government to pay damages to the applicant, a Giudice di Pace who has completed 14 years of service, for infringement of Articles 1(3) and 7 of the Working Time Directive 2003/88/EC and Clauses 2 and 4(1), (2) and (4) of the Framework Agreement on Fixed-Term Work approved by Directive 1999/70/EC.
The request touches upon three main issues: the first two concern the magistrates in particular, while the third is relevant for the whole Italian judicial system.
The AG, firstly, affirms that the Giudice di Pace di Bologna is a ‘court or tribunal’ within the meaning of Article 267 TFEU. The reasoning, which is also built upon the previous case law of the CJEU, revolves around the question whether the magistrate who has requested the preliminary ruling is in compliance with one of the requirements on the meaning of ‘court or tribunal’ established in settled case-law, that is, independence, in the twofold sense of the word.
The AG, on the one hand, admits the existence of doubts as to the objective independence of magistrates from the perspective of the adequacy of the remuneration, the length of their terms of office and the arrangements for their possible extension. On the other, she stresses the need for the Court to proceed by virtue of the presumption that the Member States’ courts are sufficiently independent. That presumption had not been impaired in the present case.
As to the magistrates’ subjective independence, the AG does not find grounds for questioning the magistrates’ impartiality and objectivity and, in any case, points out that any doubts in this respect shall be raised first and foremost through domestic remedies foreseen in national law.
The AG, subsequently, observes that in order to determine whether and to what extent the applicant may claim compensation for the refusal to grant paid leave, it must be clarified if Italian magistrates are ‘workers’ within the meaning of the Working Time Directive.
In this connection, the AG argues that an Italian magistrate whose remuneration is made up of a small basic sum and payments for settled cases and trials must be regarded as a worker, and is therefore entitled to at least four weeks’ paid annual leave if he or she carries out a significant number of judicial functions, cannot decide autonomously which cases to deal with, and is subject to the same disciplinary obligations as professional judges.
Moreover, as pointed out by the AG, such a magistrate who has been appointed only for a fixed period of time is comparable to Italian professional judges as regards the duration of the paid annual leave and may therefore request the same amount of leave as professional judges pursuant to Article 4 of Council Directive 1999/70/EC.
Lastly, the AG does not consider it to be consistent with EU law where there is a legal system through which personal liability of the adjudicating judges for intentional fault or serious misconduct is incurred not only in the event of manifest infringement of EU law but also if EU law is correctly applied and national law consequently disapplied by the judge.
Indeed, as remarked by the AG, the threat of a penalty for applying EU law while simultaneously disapplying incompatible national law would be contrary to the primacy of EU law, the principle of sincere cooperation laid down in Article 4(3) TEU, and the right to effective judicial protection ex Article 47 of the Charter of Fundamental Rights. Hence, legislation on the personal liability of judges can never give rise to judicial liability. The AG concludes on this matter that if such an interpretation is not possible, the legislation cannot be applied because under no circumstances may the judge concerned be subject to a penalty for the correct application of EU law.
The AG’s Opinion marks an inclusive interpretation of ‘court or tribunal’ under Article 267 TFEU, notwithstanding the doubts and criticisms raised by the Commission, the Italian Government and the referring magistrate himself on the matter of the magistrates’ independence. From the standpoint of EU substantive law, the same degree of inclusiveness is evident inasmuch as magistrates are qualified as ‘workers’ under the Working Time Directive.
On a different, broader level, it is worth noting that the AG’s Opinion, with regard to the scope and extent of the Italian judges’ personal liability, while urging for a consistent interpretation of domestic law, de facto, sets out an obligation of disapplication for the Italian judiciaries. And it does so without elaborating at all on whether the applicable EU law provisions have direct effect.
Daniele Gallo, previously EU Schuman Fulbright Scholar (Fordham Law School) and Jean Monnet Fellow (EUI), editor of European Papers’ Forum, is Professor of EU Law at Luiss University (Rome), Recurring Adjunct Professor at the School of Law of American University (Washington DC) and Professeur invité at Université Panthéon-Assas (Paris). His most recent publication is: ‘Challenging EU constitutional law: The Italian Constitutional Court’s new stance on direct effect and the preliminary reference procedure’, in European Law Journal (2019) pp. 434-456.