OPINION OF ADVOCATE GENERAL
SAUGMANDSGAARD ØE
delivered on 18 May 2017 (1)
Case C‑64/16
Associação Sindical dos Juízes Portugueses
v
Tribunal de Contas
(Request for a preliminary ruling
from the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal))
(Reference for a preliminary ruling — Second paragraph of Article 19(1) TEU — Effective judicial protection — Charter of Fundamental Rights of the European Union — Article 47 — Judicial independence — National rules providing for the reduction of remuneration in the public administration — Budgetary austerity measures)
I. Introduction
1. The request for a preliminary ruling made by the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal) was submitted 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 reduction in the salaries paid to the members of that court, which resulted from a law that temporarily reduced the amount of remuneration in the public sector in order to combat the effects of the economic crisis in Portugal.
2. The referring court wonders whether such national legislation is compatible with the principle of judicial independence, which in its view derives from both the second subparagraph of Article 19(1) TEU (2) and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) (3) and from the case-law of the Court of Justice.
3. Before setting out the reasons why I consider that the question thus posed should be answered in the negative, I shall examine the objections relating to the inadmissibility of the question for a preliminary ruling and to the manifest lack of jurisdiction of this Court which have been put forward in the present case.
II. Legal context
A. EU law
4. The main acts of EU law designed to correct the excessive deficit of the Portuguese Republic and to grant the latter financial assistance which are mentioned in the present case are the following:
– Council Decision 2010/288/EU of 19 January 2010 on the existence of an excessive deficit in Portugal; (4)
– Council Regulation (EU) No 407/2010 of 11 May 2010 establishing a European financial stabilisation mechanism; (5)
– the agreement on economic and financial adjustment, usually known as the ‘Protocol Agreement’, signed on 17 May 2011 between the Portuguese Government, the European Commission, the International Monetary Fund (‘the IMF’) and the European Central Bank (‘the ECB’); (6)
– Council Implementing Decision 2011/344/EU of 30 May 2011 on granting Union financial assistance to Portugal, (7) amended by, inter alia, Council Implementing Decision 2012/409/EU of 10 July 2012 (8) and Council Implementing Decision 2014/234/EU of 23 April 2014; (9) and
– Council Recommendation with a view to bringing an end to the situation of an excessive government deficit in Portugal, 18 June 2013, 10562/13. (10)
B. Portuguese law
1. Law No 75/2014
5. Law No 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 (11) (‘Law No 75/2014’), in accordance with Article 1(1) thereof, has as its purpose to determine the application of the mechanism for the reduction of remuneration in the public sector and to define the principles with which its reversibility must comply.
6. Article 2 of that Law, entitled ‘Reduction in remuneration’, is worded as follows:
‘1 — Gross monthly income greater than EUR 1 500 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) 3.5% of the total amount of remuneration greater than EUR 1 500 and less than EUR 2 000;
(b) 3.5% of the amount of EUR 2 000 plus 16% of the amount of the total remuneration greater than EUR 2 000, coming to an overall reduction of between 3.5% and 10% in respect of remuneration equal to or greater than EUR 2 000 and up to EUR 4 165;
(c) 10% of the total amount of remuneration greater than EUR 4 165.
…
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, the President of the Supremo Tribunal Administrativo [Supreme Administrative Court], the President of the Tribunal de Contas, the Provedor de Justiça [Ombudsman] and the Attorney General of the Republic;
(m) soldiers of the armed forces and the Republican National 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 carrying out 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 carrying out public duties with the Presidency of the Republic, the Assembleia da República or in other constitutional bodies, and those carrying out 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 shall prevail over any provision to the contrary, special provision or exception provision, and also to collective employment regulatory instruments and contracts of employment, which may not derogate from or amend those rules.’
2. Law No 159-A/2015
7. Law No 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 (12) (‘Law No 159-A/2015’), brought to an end, taking effect gradually from 1 January 2016, to the measures to reduce remuneration resulting from Law No 75/2014.
8. Article 2 of that law states that ‘the reduction of remuneration provided for in Law No 75[/2014] shall be progressively eliminated during 2016, at quarterly intervals, as follows:
(a) reversibility of 40% for remuneration paid as from 1 January 2016;
(b) reversibility of 60% for remuneration paid as from 1 April 2016;
(c) reversibility of 80% for remuneration paid as from 1 July 2016;
(d) total elimination of the reduction in remuneration as from 1 October 2016’.
III. The main proceedings, the question for a preliminary ruling and the procedure before the Court
9. The special administrative action brought by the ASJP, acting on behalf of some of its members who are judges at the Tribunal de Contas (Court of Auditors), seeks the annulment of the administrative acts adopted under Article 2 of Law No 75/2014, which introduced a transitional reduction in the remuneration paid to the persons working in the Portuguese public administration listed in that article, which includes judges. (13) The judges represented by that association also claim repayment of the sums withheld from their salaries with effect from October 2014, together with default interest at the statutory rate, and also a declaration that they are entitled to receive their salaries without that reduction.
10. In support of that action, the ASJP claims that the measures to reduce remuneration at issue breach the ‘principle of judicial independence’ set out in Article 203 of the Constitution of the Portuguese Republic (14) and enshrined in both Article 19(1) TEU and Article 47 of the Charter.
11. In its decision for reference, the Supremo Tribunal Administrativo (Supreme Administrative Court) states that, since the measures limiting expenditure, given concrete form in the reduction of the salaries at issue in the main proceedings, form part of the context of the correction of the excessive deficit in Portugal — regulated and supervised by the institutions of the European Union — followed by financial assistance — granted and regulated by EU legal measures — it would be difficult to deny that those measures were adopted in the framework of EU law or, at least, are European in origin.
12. The referring court goes on to observe that the discretion which the Portuguese State has in establishing guidelines for the budgetary policy, in accordance with the EU institutions, does not however relieve it of its obligation, under Article 51(1) of the Charter, to respect the general principles of EU law, which include the principle of judicial independence.
13. In that regard, the referring court observes that effective judicial protection of the rights arising from the EU legal order is ensured primarily by the national courts, according to the second subparagraph of Article 19(1) TEU, and that the latter must implement such protection with the independence and impartiality to which EU citizens of the Union are entitled under Article 47 of the Charter. According to the referring court, everything indicates that the independence of the judicial bodies is also ensured by the provision of guarantees as to the status of their members, in particular in terms of their financial situation, which is the reason why the unilateral and continued reduction of the remuneration of the principals of the plaintiff in the main proceedings is being contested.
14. Thus, by decision of 7 January 2016, received at the Court on 5 February 2016, the Supremo Tribunal Administrativo (Supreme Administrative Court) decided to stay proceedings and to refer the following question for a preliminary ruling:
‘In view of the mandatory requirements of eliminating the excessive budget deficit and of financial assistance regulated by … rules [of EU law], must the principle of judicial independence, enshrined in the second subparagraph of Article 19(1) TEU, in Article 47 of the [Charter] and in the case-law of the Court of Justice, be interpreted as meaning that it precludes the measures to reduce remuneration that are applied to the judiciary in Portugal, where they are imposed unilaterally and on an ongoing basis by other constitutional authorities and bodies, as is the consequence of Article 2 of Law No 75[/2014]?’
15. Written observations were lodged by the ASJP, the Portuguese Government and the Commission. The Portuguese Government and the Commission were represented at the hearing on 13 February 2017.
IV. Analysis
16. Before taking a position on the substance of the request for a preliminary ruling, I observe that two procedural objections have been raised in the present case, one alleging that the request is inadmissible and the other that the Court lacks jurisdiction. As regards the order in which those objections will be addressed, I note that the Court’s jurisdiction must, in principle, be ascertained first. Nonetheless, in this Opinion, to my mind it is appropriate first of all to address the admissibility of the request, since the issues which the request raises in the present case are less complex than the examination of the Court’s jurisdiction and since that examination is more closely connected to the provisions the interpretation of which is sought, an analysis of the substance that will thus directly follow that examination.
A. The admissibility of the request for a preliminary ruling
17. The Portuguese Government and the Commission have submitted two types of objections capable of affecting the admissibility of the present request for a preliminary ruling. The first relates to the imprecise reasoning in the decision for reference, while the second relates to the fact that the national measures contested in the main proceedings were already repealed when the matter was referred to the Court of Justice.
1. The lacunae in the decision for reference
18. In its written and oral observations, the Commission claims, by way of preliminary point, that the decision for reference is defective, notably because it does not specify either which of the Court’s case-law would be relevant for the purpose of interpreting the provisions of EU law referred to in the question for a preliminary ruling or the reasons for choosing those provisions, (15) and that it follows that the Court must declare that it lacks jurisdiction to answer that question.
19. I consider, however, that the objections raised as regards the content of the decision for reference are more likely to affect the admissibility of the request for a preliminary ruling than the Court’s jurisdiction per se. (16)
20. It is true, as the Commission emphasises, that it is essential that the referring court should formulate its request in a clear and precise fashion, since that request is the only act that serves as a basis for the procedure before the Court, both for the Court and for those participating in that procedure. (17) The requirements relating to the content of a request for a preliminary ruling are expressly stated in Article 94 of the Rules of Procedure of the Court of Justice, of which the referring court is deemed, in the context of the cooperation established in Article 267 TFEU, to be aware and which it is required to observe scrupulously. In particular, it is indispensable that the national courts set out, in the decision for reference itself, the legal framework of the main proceedings and that they explain not only the reasons why they have chosen the provisions of EU law which they seek to have interpreted but also the link which they establish between those provisions and the national legislation applicable to those proceedings. (18)
21. In the present case, the statement of reasons in the decision for reference is particularly brief, especially from two main aspects, and questions therefore arise as to the admissibility of the request for a preliminary ruling which that decision contains.
22. First, as regards the link between the national measures at issue and the provisions interpretation of which is requested in the question for a preliminary ruling — namely the second subparagraph of Article 19(1) TEU and Article 47 of the Charter — the referring court is scarcely explicit, since it states merely that in its view those provisions give rise to a general principle of judicial independence which those measures may have undermined, (19) without providing any specific information in that respect.
23. Second, the question for a preliminary ruling refers to ‘the case-law of the Court of Justice’ which also gives rise to the principle of judicial independence, although the grounds of the decision for reference mention no decision of the Court to that effect. The referring court mentions only the existence of ‘numerous judgments’ delivered by the Court concerning the concept of ‘jurisdiction’ within the meaning of Article 267 TFEU, which take into account the independence of the body which has submitted a request for a preliminary ruling, but does not cite any of the judgments which in its view are relevant. In the absence of sufficient information, it will not in my view be appropriate to rule on that aspect of the question referred to the Court.
24. In spite of the abovementioned lacunae in the decision for reference, it seems to me that, in the light of all the material supplied by that decision and placed on the file, the Court has sufficient information to be in a position to rule on the interpretation of Article 19 TEU and Article 47 of the Charter and thus to give a useful answer to the question submitted to it. (20)
2. The fact that the legislation at issue was repealed before the matter was referred to the Court
25. In its written observations, the Portuguese Government maintained that the request for a preliminary ruling is inadmissible, since it had become devoid of purpose when the matter was referred to the Court, owing to the legislative amendments which had been enacted in the Portuguese domestic legal order and which led to the gradual and total reinstatement, in 2016, of the rights to remuneration at issue in the main proceedings. It inferred that there is no longer any need for the Court to answer the question submitted to it, in that it has become hypothetical. (21)
26. At the hearing, the Portuguese Government confirmed that, under Law No 159-A/2015, the reduction of remuneration in the public administrative introduced by Law No 75/2014 was fully abolished progressively between 1 January and 1 October 2016, (22) but without retroactive effect. It follows that the loss alleged by the principals of the plaintiff in the main proceedings, following the reduction in their remuneration as from October 2014, continued for the past and until 1 October 2016, the date on which full reinstatement of the normal level of remuneration was achieved for all persons active in the public sector who had been affected by that reduction.
27. However, the Portuguese Government claimed that the question for a preliminary ruling related to the breach of judicial independence which was alleged to have been caused by Law No 75/2014, a possible problem to which a remedy had already been put in place when the matter was referred to the Court on 5 February 2016 owing to the abolition of the effects of that measure by Law No 159-A/2015, which was adopted on 30 December 2015 and entered into force on 1 January 2016. It added that the consequences of Law No 75/2014 prior to its repeal on which the ASJP relies were solely of an economic nature, an issue which in the Portuguese Government’s submission does not come within the subject matter of the request for a preliminary ruling.
28. In that regard, I recall that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated 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. (23)
29. In accordance with settled case-law, it follows from both the wording and the structure of Article 267 TFEU that the preliminary ruling procedure presumes that a dispute is actually pending before the national courts, in which those courts are required to deliver a decision that will take the preliminary judgment into account. (24) Thus, when the main proceedings had already become devoid of purpose on the date on which the national court referred the matter to the Court, the Court declared the request for a preliminary ruling inadmissible, (25) while a declaration that there is no need to adjudicate is in principle reserved to cases in which the relevant incident or event occurred during the proceedings before the Court. (26)
30. In particular, the Court refuses to give a ruling on a request when the national provisions initially applicable to the dispute in the main proceedings have been repealed or disapplied because they are unconstitutional. (27) However, the fact that an imminent change in the national legislation at issue was about to be made has been held to have no effect on the admissibility of the request for a preliminary ruling when it was clear from the information contained in the request that an answer from the Court to the questions referred to it was decisive for the outcome of the dispute in the main proceedings. (28)
31. In the present case, I consider that it is not obvious from the material submitted to the Court that the interpretation of EU law sought has no connection with the subject matter of the dispute in the main proceedings or that the problem raised is hypothetical in nature.
32. In fact, contrary to the Portuguese Government’s contention, the dispute before the referring court does not relate to judicial independence as such, as the principle of judicial independence is relied on solely as a plea in law, for the purpose of securing the annulment of the allegedly unlawful administrative measures under which the remuneration of the persons represented by the ASJP was reduced and the reinstatement of the sums improperly withheld from their salaries in application of Law No 75/2014.
33. In addition, since Law No 159-A/2015, which amended Law No 75/2014, had not fully put an end to the contested reductions, either for the past or for the immediate future, on the date on which the request for a preliminary ruling was submitted, (29) it is apparent that on that date the referring court was still under an obligation to adjudicate on the subject matter of the action, and that court considers it possible that the national legislation at issue infringed EU law and that there was a need for the Court to answer the question for a preliminary ruling.
34. In the light of all of those considerations, I am of the view that the present request for a preliminary ruling is admissible.
B. The jurisdiction of the Court
35. In support of its action in the dispute before the national court, the plaintiff in the main proceedings claims that the contested administrative measures are unlawful on the ground that the national legislation which they implement, namely Law No 75/2014, is not compatible with EU law in that it is contrary to the ‘principle of judicial independence’ as laid down, in that party’s submission, in both the second subparagraph of Article 19(1) TEU and Article 47 of the Charter. The referring court takes that common approach to those provisions not only in the wording of the question referred but also in the underlying reasoning on which it is based.
36. In order to give a ruling on the objections to jurisdiction raised by the Portuguese Government and by the Commission, it is necessary, in my view, to analyse the second subparagraph of Article 19(1) TEU independently of the analysis of Article 47 of the Charter, since the conditions governing the applicability of those provisions, and therefore the possibility for the Court to interpret them, are in my view distinct.
1. The second subparagraph of Article 19(1) TEU
37. In both their written and their oral observations, the Portuguese Government and the Commission have not expressly stated the reasons why the Court might in their view not have jurisdiction to give a ruling on the interpretation of Article 19 TEU, taken on its own. In fact, they argued at length in favour of the notion that the national legislation at issue in the main proceedings is not a measure implementing EU law within the meaning of Article 51 of the Charter, with the consequence that there is no need to interpret Article 47 of the Charter, and to my mind they have proposed that similar reasoning should be followed as regards Article 19 TEU. (30)
38. However, in my view that argument cannot be extended, or even applied by analogy, to Article 19 TEU, given the specific wording of Article 19 TEU, which is different from that of Article 51(1) of the Charter, to which I shall return later, (31) but concerning which I would point out now that it limits the scope of the Charter to measures adopted by the Member States in order to implement provisions of EU law.
39. Without in any way prejudging the substantive analysis, which will lead to a definition of the content and scope of Article 19 TEU, (32) it is appropriate at this stage to determine whether the Court does indeed have jurisdiction in the present case to interpret that article, by reason of the possibility that its provisions, and more particularly the second subparagraph of paragraph 1, which is referred to in the question for a preliminary ruling, will apply in a context such as that of the dispute in the main proceedings.
40. In the words of that second subparagraph, ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. (33) It is this last element, specific to that provision, that seems to me to be decisive for the purpose of determining whether the Court is able to rule on the interpretation of that provision in the present case.
41. The effective judicial protection, entailing access to appropriate remedies, from which parties must be able to benefit pursuant to that subparagraph is to my mind required of the Member States when the national courts are likely to exercise their judicial activity in areas covered by EU law, and therefore to act as European judges. I consider that that may be the case of the judges affected by the legislation at issue in the main proceedings, in so far as they may be required to settle disputes falling within the scope of EU law, in which the possibility of making use of such remedies must be guaranteed.
42. That finding is to my mind sufficient to support the conclusion that the Court has jurisdiction in the present case to interpret the second subparagraph of Article 19(1) TEU. Proof of such jurisdiction must now be established as regards the requested interpretation of Article 47 of the Charter, since the criteria for the application of the latter instrument are not set out in the same way as those applicable to Article 19 TEU, even though the actual result to which both sets of criteria lead may be the same.
2. Article 47 of the Charter
43. It is settled case-law that the fundamental rights safeguarded in the legal order of the Union, including the ‘right to an effective remedy and the right to an impartial tribunal’ enshrined in Article 47 of the Charter, must be applied in all situations governed by EU law, but not outside such situations. (34) Thus, Article 51(1) of the Charter provides that the provisions of the Charter are addressed to the Member States only ‘when they are implementing EU law’, in accordance with the Court’s case-law on that concept. (35) Article 6(1) TEU, which confers binding legal value on the Charter, makes clear, as does Article 51(2) of the Charter, that the provisions of the Charter are not to extend in any way the competences of the Union as defined in the Treaties. Consequently, where a legal situation does not fall within the scope of EU law, the Court does not have jurisdiction to adjudicate, and any provisions of the Charter that may be relied on cannot in themselves form the basis of such jurisdiction. (36)
44. In the present case, both the Portuguese Government and the Commission maintain that the conditions that would permit the conclusion that the adoption and application by the Portuguese Republic of the measures provided for in Article 2 of Law No 75/2014 constitute a situation entailing the implementation of EU law, within the meaning of Article 51 of the Charter, are not satisfied and that the Court therefore manifestly lacks jurisdiction to interpret Article 47 of the Charter.
45. I recall that the Court has already declared that it manifestly lacked jurisdiction to give substantive answers to previous requests for a preliminary ruling also submitted by Portuguese courts, on the ground that the decision for reference did not contain any specific material on which it might be considered that the national measures at issue in those cases, comparable to those applicable to the present dispute in the main proceedings, (37) were intended to implement EU law within the meaning of Article 51. (38) However, unlike in those other cases, the Court’s alleged lack of jurisdiction is not manifestly apparent in this instance, since the referring court has supplied more explicit, albeit relatively summary, information as to the existence of such implementation of EU law in the present case.
46. In fact, the referring court explains that the measures to reduce, such as those provided for in Article 2 of Law No 75/2014, were justified by budgetary consolidation requirements, then it set out a list of measures of EU law relating to the excessive deficit situation of the Portuguese State and the financial assistance from which it benefited. (39) However, it is not a simple matter to identify the grounds on which the referring court considers that there is a direct link between the measures at issue in the main proceedings and a particular provision of EU law, as it provides little information on that subject. (40)
47. Thus, the decision for reference does not make clear what was the legislative framework, with respect to the provisions of EU law then applicable, of which the national measures at issue formed part. In particular, it does not clearly mark the distinction, emphasised at the hearing by the Portuguese Government, between the stage at which the Portuguese State was subject to the rules of EU law related to the correction of an excessive deficit and the stage at which the applicable regime was that of the obligations resulting from the grant of financial assistance by the European Union.
48. As Advocate General Bot observed in a case which also concerned budgetary austerity measures adopted by a Member State in the context of undertakings given to the European Community, in order to determine whether the provisions of the Charter are applicable under Article 51 thereof, (41) it is necessary to take into account not only the wording of the national provisions in question, but also the terms of the measures of EU law in which those commitments appear. In that regard, Advocate General Bot added — correctly, in my view — that those measures leave a discretion to the State concerned to decide on the measures best able to ensure compliance with those commitments, provided that the objectives of the relevant measures are sufficiently detailed and precise to constitute a specific rule of EU law in that respect, (42) unlike mere recommendations adopted by the Council, on the basis of Article 126 TFEU, and addressed to Member States whose public deficit is considered excessive.
49. In the present case, in order to characterise what it claims to be the link between Law No 75/2014 and EU law, the referring court does not cite the wording of that law. It does not refer to any measure of EU law, unlike the grounds of the draft law that led to Law No 75/2014, in which a link is established with obligations resulting from EU law in budgetary matters. (43)
50. On the contrary, that court, like the ASJP, relies, in particular, on the economic and financial adjustment agreement concluded by the Portuguese State in May 2011 (44) and, most recently, on Council Implementing Decision 2012/409 of 10 July 2012 on granting Union financial assistance to Portugal, and also on the Council Recommendation of 18 June 2013 with a view to bring an end to the situation of an excessive government deficit in Portugal.
51. In that regard, I recall that a recommendation adopted by the EU institutions is by nature a non-binding act, unlike a decision. (45) In addition, I consider, as do the Portuguese Government (46) and the Commission, that the abovementioned recommendation, which is based, in particular, on Article 126(7) TFEU, did not fix sufficiently specific and precise objectives to support the view that the Portuguese State implemented on the basis of that recommendation requirements of EU law within the meaning of Article 51 of the Charter.
52. As regards Implementing Decision 2012/409, to which the referring court makes reference, I observe that it was replaced by Council Implementing Decision 2014/234, dated 23 April 2014, which was therefore applicable ratione temporis when the measures at issue, based on Law No 75/2014, adopted on 12 September 2014, were adopted. Article 1 of the latter decision amended Implementing Decision 2011/344, which had initially laid down the conditions for the grant of Union financial assistance to the Portuguese Republic, (47) extending Regulation No 407/2010. It is apparent from paragraph 2 of that article that the Portuguese State was to adopt in 2014, ‘in line with specifications in the Memorandum of Understanding’, measures of a specific nature, and not just general measures, (48) consisting in particular in that, within the framework of ‘the 2015 consolidation strategy’, ‘the Government [was to] adopt a single wage scale during 2014 with a view to implementing it in 2015 and aimed at the rationalisation and consistency of remuneration policy across all careers in the public sector’. (49) The discretion which that Member State certainly enjoyed, in the exercise of its budgetary powers, to determine the precise economic corrective measures which it considered most appropriate for attaining the precise objectives thus set cannot call that analysis in question. (50)
53. Although there may be serious doubts owing to the limited light shed on that subject in the decision for reference, I incline to the view that the adoption of the measures to reduce remuneration in the public sector provided for in Article 2 of Law No 75/2014, at issue in the main proceedings, constitutes an implementation of provisions of EU law, within the meaning of Article 51 of the Charter, and that the Court therefore also has jurisdiction to answer the request for a preliminary ruling in so far as it concerns Article 47 of the Charter.
C. Substance
1. The subject matter of the question for a preliminary ruling
54. In support of its claims, the ASJP contends that the legal status of judges cannot be compared with the staff regulations applicable to public officials in generals, whose situation could be precarious. Referring, inter alia, (51) to the European Charter on the statute for judges, (52) adopted under the aegis of the Council of Europe, it asserts that the stability of judges’ remuneration, and the fixing of their remuneration at an appropriate level to protect them from interference designed to influence their decisions, makes it possible to ensure respect for, in particular, the principles of independence and impartiality, which constitute guarantees of the judicial activity. It maintains that the principle of judicial independence, in particular in financial terms, which results from Article 19 TEU and Article 47 of the Charter, precludes measures to reduce remuneration adopted unilaterally by the executive and legislature of a Member State, such as those at issue in the main proceedings.
55. Following a similar line of reasoning, the decision for reference asks the Court, in essence, to determine whether there is a general principle of EU law that the authorities of the Member States are required to respect the independence of the national judges and, more particularly — in the light of the circumstances of the main proceedings — to maintain their remuneration at a constant level that is sufficient for them to be able to perform their duties freely.
56. The referring court considers that such a principle and such consequences flow from both the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, (53) which the Court will in my view have to interpret separately (54) should it consider that it has jurisdiction to adjudicate on both of those provisions. (55) For the reasons set out below, I, like the Portuguese Government and the Commission, do not share the opinion on the substance expressed by the referring court.
2. The interpretation of the second subparagraph of Article 19(1) TEU
57. In support of the argument that the second subparagraph of Article 19(1) TEU states a general principle of EU law which enshrines judicial independence and precludes the national measures at issue in the main proceedings, the referring court and the ASJP assert that judges in the Member States are also European judges from a functional viewpoint, since they bear primary responsibility for ensuring the effective judicial protection of rights flowing from the EU legal order, in particular under that provision.
58. It is true that the second subparagraph of Article 19(1) TEU provides that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’ (56) and that the judges of the national courts responsible for such remedies contribute to that protection. However, in order to interpret the wording of that provision it is necessary to analyse it in the light of its context.
59. On that point, I observe that Article 19 TEU is to be found in Title III of that Treaty, entitled ‘Provisions on the institutions’, which contains a set of general rules laying down the conditions in which each of the institutions of the Union — and in particular the Court of Justice of the European Union, referred to in Article 19 — must act within the limits of the powers conferred on it.
60. In addition, in the light of the provisions set out in paragraphs 1 to 3 of Article 19 TEU, taken as a whole, it seems to me that the abovementioned concept of ‘effective judicial protection’ is perceived to be closely related to the exercise of its functions by the Court of Justice of the European Union, the composition and powers of which form the subject matter of those three paragraphs. In particular, the first subparagraph of paragraph 1 confers on that institution, which consists of both the Court of Justice and the General Court, the task of ensuring that in the interpretation and application of the Treaties the law is observed, (57) it being noted that the ‘general jurisdiction rule’ set out in that subparagraph is subject to derogations. (58)
61. It is apparent from the case-law that the purpose of the second subparagraph of paragraph 1 is to reaffirm the obligation placed on Member States to ‘establish a system of legal remedies and procedures which ensure respect for the fundamental right to effective judicial protection’. (59) Thus, that second subparagraph is not aimed directly at the national judges, but is intended to ensure that possibilities of remedies exist in the Member States so that each individual is able to benefit from such protection in all the fields in which EU law is applicable. That requirement is linked with the fact that judicial review of compliance with the legal order of the European Union is ensured not only by the Courts of the European Union, but also in cooperation with the national courts, in accordance with the two subparagraphs of that paragraph. (60)
62. The Court has made clear that such an obligation also arises under Article 47 of the Charter as regards measures taken by the Member States to implement Union law within the meaning of Article 51(1) of the Charter. (61) In fact, paragraph 1 of Article 47 expressly provides for the right to an effective remedy before a tribunal, in compliance with the conditions laid down in that article, for everyone whose rights and freedoms guaranteed by the law of the Union have been violated. Although I do not wish to comment at this point on the interpretation of the latter article and on any implications which it may have in the light of the details of the main proceedings, (62) I would emphasise that the purpose and the wording of Article 47 are different from those of Article 19 TEU.
63. As regards the latter article, the Court has held that it is for the domestic legal system of each Member State to designate — with due observance of the requirements stemming from, in particular, the second subparagraph of Article 19(1) TEU — the courts and tribunals with jurisdiction and to lay down the detailed procedural rules governing actions brought to safeguard rights which individuals derive from EU law. (63) It therefore seems to me that the purpose of that subparagraph, which places an obligation on Member States to establish remedies that enable those right to be effectively protected, is primarily procedural in nature.
64. In the light of those factors, I consider, like the Portuguese Government, (64) that the concept of ‘effective judicial protection’ within the meaning of the second subparagraph of Article 19(1) TEU must not be confused with the ‘principle of judicial independence’ mentioned in the question for a preliminary ruling as deriving, it is alleged, from that provision. (65)
65. Furthermore, the difference between the right to effective judicial protection, which must be available to the subjects of the Member States by means of appropriate remedies, and the right to a trial before judges acting in complete independence, which is also recognised in the interest of those subjects, seems to me to be evident in the light of both the title and the wording of Article 47 of the Charter, in which those two rights are stated separately. (66) The distinction is likewise clearly drawn in the European Convention for the Protection of Human Rights and Fundamental Freedoms, (67) since the ‘right to an effective remedy’ before a national authority is laid down in Article 13, while the ‘right to a fair trial’, which includes in particular the right to ‘a fair … hearing … by an independent … tribunal’, is provided for in Article 6, (68) although there are quite obviously material links between those two articles. (69) I shall return to these elements in the context of the interpretation of Article 47 of the Charter. (70)
66. The obligation for Member States to provide a system of ‘remedies’ set forth in the second subparagraph of Article 19(1) TEU relates, in my view, only to the right to ‘effective judicial protection’, as is apparent from the wording of that provision, and not to the right to a fair hearing before an independent court, the content of which is substantially different.
67. Consequently, I am of the view that the second subparagraph of Article 19(1) TEU must be interpreted as meaning that it does not enshrine a general principle of EU law according to which the independence of judges sitting in all the courts of the Member States should be guaranteed.
68. In the alternative, in case the Court should deem that the principle of judicial independence derives directly from the requirement of effective judicial protection in the second subparagraph of Article 19(1) TEU, as the referring court asserts, I consider that in any event neither that provision nor that principle (71) can be understood as precluding national measures to reduce remuneration such as those challenged by the plaintiff in the main proceedings, since those measures are not specifically targeted at the judges but, on the contrary, are general in scope, (72) since they apply to a wide group of persons in the civil service. (73)
3. The interpretation of Article 47 of the Charter
69. The referring court, like the ASJP, claims that, under Article 47 of the Charter, the courts of the Member States must implement independently and impartially the effective judicial protection of the rights conferred on citizens by the European legal order and that the unilateral reduction of the remuneration at issue in the main proceedings might have undermined the independence of the judges concerned.
70. In that regard, I recall, as Advocate General Wathelet recently explained, (74) that the title (75) and the wording of Article 47 of the Charter indicate that the Charter recognises the right to an effective remedy, which was also laid down in Article 13 of the ECHR, and the right to a fair trial, including the right to an independent and impartial tribunal, which was enshrined in Article 6(1) of the ECHR.
71. As the content of Article 47 was directly inspired by those provisions of the ECHR, (76) it is appropriate, in accordance with Article 52(3) of the Charter, to interpret it not only taking account of the Explanations on the Charter but also in the light of the case-law of the European Court of Human Rights (‘the ECtHR’), (77) so that the rights guaranteed by Article 47 have in principle the same meaning and the same scope as those conferred on them by the ECHR, although that rule does not preclude EU law conferring a wider protection. It has been made clear from the outset (78) that Article 47 of the Charter specifically offers protection the scope ratione materiae of which is wider than that of the corresponding articles of the ECHR. (79)
72. In the light of the case-law on the ECHR and on the protocols thereto, (80) it seems to me that the ‘principle of judicial independence’ referred to in the present request for a preliminary ruling relates more to the right of everyone ‘to a … hearing … by an independent and impartial tribunal’, as laid down in the second subparagraph of Article 47 of the Charter, (81) than to ‘the right to an effective remedy before a tribunal’, as provided for in the first subparagraph of that article. (82)
73. In fact, both the referring court and the ASJP claim that the principle of judicial independence might ‘preclude the measures to reduce remuneration that are applied to the judiciary in Portugal, where they [were] imposed unilaterally and on an ongoing basis by other constitutional authorities and bodies’. (83)
74. The ECtHR has repeatedly held that the guarantee of an ‘independent tribunal’, within the meaning of Article 6(1) of the ECHR, (84) requires that judges enjoy independence not only in terms of their office and appointment, (85) but also in the exercise of their duties. That concept assumes a dimension that is internal to the judiciary, (86) and not relevant in the present case, and a dimension external to the judiciary, according to which the judges must be able to work without influence from the parties to the dispute (87) or the powers of the State, (88) which in my view is the only aspect invoked by the ASJP. I would emphasise that the Court of Justice has taken a similar approach when it has defined the criteria against which the independence of a national court may defined. (89)
75. As regards, more specifically, the independence of the members of a court by reference to their remuneration, the ECtHR has already acknowledged the interaction between those two factors, and has held that ‘the failure of the State to provide judicial benefits to judges in a timely manner is incompatible with the need to ensure their ability to exercise their judicial functions independently and impartially, in order to be shielded from outside pressures aimed at influencing their decisions and behaviour’, while emphasising, in that context, the judges’ ‘[particularly] sensitive status as independent judicial officers’. (90)
76. That analysis is supported by various legal instruments of the Council of Europe which express such concerns. Article 6 of the European Charter on the status of the judiciary states, although it lacks binding force, that the level of judges’ remuneration should be fixed so as to shield them from pressures aimed at impairing their independence, although that level may vary from one judge to another according to objective factors, such as the importance of the tasks which they must carry out. (91) Likewise, recommendations of the Committee of Ministers (92) have recommended that ‘Judges’ remuneration should be commensurate with their profession and responsibilities, and be sufficient to shield them from inducements aimed at influencing their decisions’ and that ‘specific legal provision [be made] guaranteeing judicial salaries against reduction’. (93)
77. In the light of those factors, I am of the view that the right of everyone to a hearing by an independent tribunal, within the meaning of Article 47 of the Charter, includes the requirement that the independence of the members of that tribunal be guaranteed by the payment to them, having regard to the responsibilities which they assume, of sufficient high and stable remuneration, in order to protect them against any external interference or pressure that might undermine the neutrality of the judicial decisions that they must take.
78. However, although the amount of judges’ remuneration must be commensurate with the importance of the public functions which they carry out, that amount should not be detached from economic and social reality, and in particular the average standard of living, in the State in which they exercise their professional activities. (94) In addition, reasonable stability in their income assumes, to my mind, that their income will not vary over time in a way that would jeopardise their independence of judgment, but not that it will remain unchanged.
79. More particularly, in a situation of great economic crisis, such as that experienced during the period preceding the adoption of the national measures at issue in the main proceedings, (95) the principle of judicial independence cannot be understood as making it impossible to change their remuneration, although such an operation must clearly remain within reasonable proportions in order to avoid making judges vulnerable to pressure that might be brought to bear on them. As the Portuguese Government claims, it is necessary to find a fair balance between the public interest of the community and the particular interest of the judges, who are responsible for ensuring respect for the rights conferred on individuals.
80. In addition, as I have already emphasised, (96) as do the Portuguese Government (97) and the Commission, the measures to reduce remuneration at issue affected not only the judges but a large number of persons active in the civil service. Since the judges were in no way exclusively or even specifically targeted, the ‘other constitutional bodies and authorities’ referred to in the question for a preliminary ruling cannot be considered to have sought to destabilise members of the judiciary, still less because agents of both the executive and the legislature were subject to exactly the same austerity measures under Article 2 of Law No 75/2014.
81. Consequently, I consider that Article 47 of the Charter must be interpreted as meaning that it does not preclude the adoption of national measures such as those contested in the main proceedings, since they do not undermine the principle of judicial independence contained in that article.
82. An interpretation to the contrary would have the practical consequence, which in my view would be deplorable, of depriving Member States of the possibility, in a serious economic crisis, of making the necessary adjustment to the amount of the remuneration of persons forming part of the civil service in the broad sense, provided that that adjustment does not apply only to judges and is not disproportionate.
V. Conclusion
83. In the light of the foregoing considerations, I propose that the Court should answer the question for a preliminary ruling submitted by the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal) as follows:
The second subparagraph of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that they do not preclude general measures to reduce remuneration in the public administration that are applied to the judges under national legislation such as that at issue in the main proceedings.