Determining the remuneration base for calculating judges’ basic remuneration for the year 2023 K 1/23
On 8 November 2023, the Constitutional Tribunal considered joined applications filed by the First President of the Supreme Court, the President of the Supreme Administrative Court, and the National Council of the Judiciary with regard to rules for determining the remuneration base for calculating judges’ remuneration in 2023.
The Constitutional Tribunal adjudicated as follows:
1. Article 8 and Article 9 of the Act of 1 December 2022 on special measures aimed at implementing the 2023 State Budget Act (Journal of Laws – Dz. U. of 2022, item 2666) are inconsistent with Article 178(2) of the Constitution of the Republic of Poland.
2. Article 7 of the Act of 1 December 2022 on special measures aimed at implementing the 2023 State Budget Act (Journal of Laws – Dz. U. of 2022, item 2666) is inconsistent with Article 195(2) of the Constitution.
The Tribunal discontinued the review proceedings as to the remainder.
The ruling was unanimous.
The case concerned Article 7, Article 8 and Article 9 of the Act of 1 December 2022 on special measures aimed at implementing the 2023 State Budget Act (hereinafter: the 2023 State Budget Implementation Act). In the indicated provisions, a departure was made from the rules for specifying the remuneration base for calculating judges’ remuneration. The reference to the average remuneration in the second quarter of the previous year – regulated in the Act on the Organisational Structure of Common Courts, the Supreme Court Act, and the Act on the Status of the Judges of the Constitutional Tribunal – was dispensed with. Instead, it was specified that, in 2023, the remuneration base for calculating the basic remuneration for common-court judges (mutatis mutandis for the judges of voivodeship administrative courts and military-court judges), for the judges of the Supreme Court (mutatis mutandis for the judges of the Supreme Administrative Court) and the judges of the Constitutional Tribunal is the amount of PLN 5444.42. Also in 2021 and 2022, departures from the general rules for calculating judges’ remuneration were introduced. In 2021, what constituted the remuneration base for calculating judges’ basic remuneration was the average remuneration in the second quarter of not 2020, but 2019. By contrast, in 2022, the remuneration base for calculating judges’ basic remuneration was the average remuneration in the second quarter of not 2021, but 2020, increased by PLN 26.
The issue of judges’ remuneration and the significance of the said remuneration, from the constitutional perspective, were discussed in detail by the Constitutional Tribunal in its judgment of 12 December 2012, ref. no. K 1/12. In the said judgment, the Tribunal formulated “provisional requirements” that must not be breached for judges’ remuneration to be consistent with the dignity of judges’ office and the scope of their duties. The terms of remuneration for judges must jointly meet all the “provisional requirements” to be deemed constitutional. One of the said requirements provides that the amounts of judges’ remuneration should be determined in a way that would exclude all discretion. As the Tribunal held, that requirement was not met. The solutions regulated in Article 7, Article 8, and Article 9 of the 2023 State Budget Implementation Act are not congruent with the solutions set out in the Act on the Organisational Structure of Common Courts, the Supreme Court Act, and the Act on the Status of the Judges of the Constitutional Tribunal. Nor are they congruent even in respect of the level of increase in, and the nature of, the remuneration base when juxtaposed with analogous provisions of the 2021 State Budget Implementation Act and the 2022 State Budget Implementation Act. Indeed, in the 2023 State Budget Implementation Act, the reference to the average remuneration in the second quarter of the previous year was dispensed with completely, and the remuneration base was determined as a set amount of money. This entails that, in that respect, the legislature resorted to far-reaching discretion. The said discretion does not provide judges with the constitutional guarantees of the amounts of their future remuneration; nor does it protect judges against potential manipulation on the part of the legislature.
The adjudicating bench of the Constitutional Tribunal in the case was composed of: Judge Bartłomiej Sochański – Presiding Judge; Judge Rafał Wojciechowski – Judge Rapporteur; Judge Stanisław Piotrowicz; Judge Piotr Pszczółkowski; Judge Michał Warciński.