Last-minute decision of the European Court of Justice on the issue of overtime payment of Romanian judges from overcrowded courts

The Court of Justice of the European Union (CJEU) does not oppose the regulation in Romania which provides for the granting of free time only, as compensation, in the case of overtime. The decision was handed down following a referral to the Bucharest Court of Appeal, in a dispute in which a judge asked to be paid for overtime, the court where he worked not having the staffing scheme fully occupied.

• In the agreement proposed at Wednesday's meeting with President Nicușor Dan and the leaders of the coalition, the High Court of Cassation and Justice, led by Lia Savonea, requested, among other things, the additional payment for judges who work in overcrowded courts, where there are vacancies.

• The CJEU shows in Thursday's decision that it is the attribute of the Superior Council of Magistracy to organize the work of judges fairly.

What the Romanian magistrate who sued the court where he works asked for

The magistrate from Galati who sued the court where he works complained that the court had two positions vacant, so the judges in the positions had a higher workload. He asked to be paid additionally for the period 2019-2021, while the court was understaffed.

The Bucharest court, where the trial was heard on the merits, rejected the action citing the Government's emergency ordinances that established that extra work is compensated only with free time.

At the Bucharest Court of Appeal, where the file arrived after the magistrate challenged the court's sentence, the judges decided to refer the matter to the Court of Justice of the European Union.

The judges of the Bucharest Court of Appeal asked the European Court to determine whether the provisions of the Community Charter of Fundamental Social Rights should be interpreted “in the sense that the principle of the independence of judges is opposed to a national legislative provision that prohibits the payment of overtime worked by a judge as a result of the shortage of personnel in the court in which he works, under the conditions that compensation with appropriate free time for overtime work performed over the normal duration of working time, as well as on weekly rest days and public holidays, if implemented, it would affect the statutory annual leave”.

“The economic, social and financial situation” of the country must be taken into account

“The principle of the independence of judges is not opposed to a national regulation which, by the fact that it only provides for the granting of time off in compensation for the working time that a judge carries out to carry out tasks related to a vacant post in the court in which he works in addition to those due to him according to the position he occupies, excludes any financial compensation for the work carried out in order to carry out these additional tasks, provided that this judge can effectively capitalize on the time off in compensation that he has acquired and that this regulation does not has the consequence of affecting the appropriateness of his remuneration in relation to the importance of the functions he exercises”, states the decision handed down on Thursday by the CJEU, about which G4Media originally wrote.

The Court of Justice of the EU argues in the decision that the adequacy of the remuneration of judges “must be assessed taking into account the economic, social and financial situation of the Member State in question”.

Also, the European court emphasizes that it is appropriate to compare the average remuneration of judges with the average salary in this state.

In the judgment handed down on Thursday, the European Court shows that the need for extra work should be examined by reference to the actual workload of a judge at a given time and cannot be presumed or estimated only by reference to the percentage of occupancy of the staffing scheme of the court where that magistrate works.

“The workload of the judges is quantified by the Superior Council of the Magistracy, which ensures the balance of the distribution of tasks between the courts and establishes the number of judges that must be assigned to each court according to these tasks”, states the European Court.

European judges also say that when adopting budgetary restraint measures affecting its public officials and agents, a member state may, in a society characterized by solidarity, decide to apply these measures to national judges as well.

ICCJ calls for additional pay for overworked judges

At the meeting convened by Nicușor Dan on Wednesday on the subject of magistrates' pensions, the High Court of Cassation and Justice proposed an “agreement for Justice”, and one of the magistrates' requests is “the granting of a compensatory share from the salary savings generated by the non-filling of vacant positions, transparently directed to the magistrates who effectively ensure the functioning of the courts and prosecutor's offices”.

“Magistrates who remain active support the stability of the system and carry a disproportionate amount of work. The Supreme Court requires the recognition and fair reward of their effort is an institutional duty, not a privilege,” the ICCJ points out in the agreement. Therefore, the supreme court considers that it is necessary:

-“the official and public recognition of the fact that, currently, active magistrates take on a disproportionate workload, determined by the high number of vacant and unfilled positions at the level of courts and prosecutor's offices, as well as the fact that this reality affects the pace and quality of the judicial act and leads to significant professional attrition.

-granting a compensatory quota from the salary savings generated by the non-occupation of vacant positions, transparently directed to the magistrates who effectively ensure the functioning of the courts and prosecutor's offices. The implementation of the PNRR reforms must be done through dialogue, professionalism and mutual respect between the state powers, in the spirit of public interest and Romania's European credibility”.