Judges’ remuneration P 35/12
A freeze in the remuneration of judges in 2012 did not infringe the Constitution.
At the hearing on 13 June 2013 at 1.00 p.m., the Constitutional Tribunal considered joined questions of law, referred by the District Court for the Districts of Poznań-Grunwald and Jeżyce in Poznań (the 5th Labour Division) and the District Court in Gliwice (the 6th Labour and Social Insurance Division), concerning judges’ remuneration.
The Constitutional Tribunal adjudicated that Article 22 of the Act of 22 December 2011 amending certain acts related to the implementation of the Budget Act:
- was consistent with Article 7, Article 32(1) and (2) as well as Article 186(1) of the Constitution,
- was not inconsistent with Article 10(1) and (2), Article 21(1), Article 64(3), Article 110(3), Article 112, Article 123(1) and (2), Article 173, Article 183(2) and Article 187(4) of the Constitution,
As to the remainder, the Tribunal discontinued the proceedings on the grounds that issuing a judgment was useless.
Article 22 of the Act of 22 December 2011 amending certain acts related to the implementation of the Budget Act (hereinafter: the said Act) stipulated that in 2012 the basis for determining the amount of the remuneration of common court judges (and indirectly: administrative court judges) was the average wage in 2010 (PLN 3197.85), and not the one in 2011 (PLN 3366.11). This entailed that judges’ remuneration was lower by an amount ranging from PLN 344.93 (in the case of a judge beginning his/her career in a district court ) to PLN 543.47 a month (in the case of a long-term judge in a court of appeal).
The Constitutional Tribunal pointed out that the issue of “freezing” judges’ remuneration in 2012 had also been the subject of the judgment issued by the Tribunal (full bench) on 12 December 2012, in the case K 1/12, which implied that, in the current case, the proceedings would need to be discontinued, insofar as the said judgment dispelled doubts raised by the courts referring the questions.
Within the scope that fell within the jurisdiction of the Tribunal in the current case, the courts referring the questions made the following allegations with regard to the challenged regulation:
The first allegation concerned the non-conformity of the challenged provision to Article 10(1) (the tri-division of powers) and Article 173 of the Constitution (the autonomy and independence of judges with regard to other authorities). The Constitutional Tribunal stated that the indicated higher-level norms for the review were inadequate for the examination of the issue of “a freeze” in the remuneration of judges. Indeed, there was no substantive relation between the autonomy and independence of the judiciary on the one hand, which functioned within the realm of the tri-division of powers, and the said “freeze” in the remuneration of judges on the other. The lack of a rise in judges’ remuneration in 2012 in no way affected the position of the judiciary and its place within the state. Nor did it result in a situation that courts became dependent on other authorities.
The second allegation concerned the non-conformity of the challenged provision to Article 32 of the Constitution (equality), i.e. discriminatory treatment of judges in comparison with other employees of state-run institutions (e.g. police officers and teachers). The Constitutional Tribunal stated that the principle of equality required that there should be identical treatment of subjects which are in the same, or similar, situation that is legally significant. The Tribunal pointed out that the remuneration of all employees and functionaries of state-run institutions had been “frozen” for several years (since 2008), which it juxtaposed with a regular increase in judges’ remuneration, whose salaries had only been “frozen”, by way of exception, in 2012.
The third allegation concerned the non-conformity of the challenged provision to Article 21(1) (the protection of ownership and succession) and Article 64(3) (the principle of restriction of ownership) of the Constitution. The Constitutional Tribunal deemed that the indicated higher-level norms for the review were inadequate (regardless of the fact that they had been mentioned in the context of Article 2 of the Constitution), as the challenged regulation had deprived judges of maximally formed legitimate expectations as regards the right to remuneration calculated with reference to a higher amount as a basis, but such a right is not the right of ownership. Therefore, the challenged regulation might not be considered in the context of the restriction of ownership, and at the same time it was irrelevant from the point of view of the right of succession.
The fourth allegation concerned the non-conformity of the challenged provision to Article 7, Article 10(2), Article 186(1) and Article 187(4) of the Constitution, due to the fact that the final version of the bill which was to become the said Act was not referred to the National Council of the Judiciary of Poland for it to present its opinion. The Constitutional Tribunal thoroughly analysed matters related to issuing opinions on the drafts of legal acts by the National Council of the Judiciary of Poland as well as the procedure for legislative work on the said bill. The Tribunal stated that “the 2012 freeze” in the remuneration of judges had been announced in April 2011 by the government, and even then the National Council of the Judiciary of Poland had strongly opposed it.
In the bill of 3 November 2011, the author of the said bill assumed that the amount of a basis for calculating judges’ remuneration would be directly specified in the Act on the Organisational Structure of Common Courts as the amount of PLN 3197.85 (which constituted the amount of average remuneration in the second quarter of 2010). As regards that proposal, the National Council of the Judiciary of Poland expressed a clearly negative opinion, in the form of a resolution, as provided by the law, (No. WOK-020-101/11). The final version of the bill (referred to the Sejm on 24 November 2011) differed in a way that it did not indicate a specific amount in the Polish currency, but it made reference to a relevant statement by the President of the Central Statistical Office on the average remuneration in the second quarter of 2010 (which mentioned the same amount of PLN 3197.85). The Constitutional Tribunal stated that at each stage of the government’s legislative process ‑ and then the parliamentary one‑ the essential elements of the regulation concerning judges’ remuneration in 2012 had remained the same, and only the wording of the regulation as well as its placement had changed.
The Constitutional Tribunal stated that the opinion of the National Council of the Judiciary of Poland had concerned the essence of the regulation and that it had been acknowledged by the author of the bill. The Tribunal deemed that the requirement to provide an opinion on the regulation by the National Council of the Judiciary had been fulfilled, since the Council had presented its opinion ‑ in the form provided by the law - at the stage of government’s legislative work, and the vital elements of the regulation had not changed in a way that would render the substance of the opinion outdated. The Tribunal concluded that declaring the challenged provision to be unconstitutional only due to the fact that the National Council of the Judiciary had not expressed the same opinion for the second time, with reference to the regulation which had not been changed within the scope of its substance, would manifest excessive formalism. The Tribunal pointed out that the Parliament’s wait for an opinion of the National Council of the Judiciary that would be identical in respect of its substance would have made it impossible to enact the said bill within the admissible time-limit, and thus would have hindered the introduction of a series of savings measures, which in turn would have resulted in a rapid increase in state expenditure, significantly depleting Polish public funds and making it impossible to enact an adequate budget bill for the year 2012. In those circumstances, the Constitutional Tribunal stated that the provision under review was consistent with Article 7 and Article 186(1) of the Constitution.
The Constitutional Tribunal deemed that Article 10(2) of the Constitution was an inadequate higher-level norm for the review, as there was no substantive relation between specifying subjects that exercised particular powers, on the one hand, and the procedure for presenting opinions on draft legislative provisions concerning judges’ remuneration, on the other. Also, the Tribunal stated that Article 187(4) of the Constitution - as one providing constitutional authorisation for the statutory determination of the organisational structure, the scope of activity, the manner of operating as well as a procedure for electing members in the case of the National Council of the Judiciary of Poland, i.e. issues that are unrelated to the assessment of the challenged provision - was also an inadequate higher-level norm for the review.
The fifth allegation concerned the non-conformity of the challenged provision to Article 10(2) and Article 183(2) of the Constitution, due to the lack of an opinion of the Supreme Court on the said bill.The Constitutional Tribunal stated that the assessment of possible negligence as regards providing opinions on normative acts was affected by the character of the power to issue opinions - the fact that the power arises from the Constitution (as in the case of the National Council of the Judiciary of Poland) or only from a statute (as in the case of the Supreme Court).
The Tribunal deemed that the indicated higher-level norms for the review were inadequate, for there was no substantive relation between providing an opinion on the challenged regulation and the constitutional determination which authorities exercised given powers (Article 10(2) of the Constitution) or a norm governing competence which concerned the exercise of other powers than judicial ones (Article 183(2) of the Constitution).
As a side remark, the Constitutional Tribunal pointed out that the Supreme Court had issued a negative opinion on the said bill both at the stage of the government’s work (Opinion No. BSA III-021-198/11), as well as in the course of the parliamentary work (the opinion of the First President of the Supreme Court presented at a sitting of the committee).
The sixth allegation concerned the non-conformity of the challenged provision to Article 110(3) and Article 112 of the Constitution, due to the fact that it had not been submitted to the Sejm Committee on Justice and Human Rights. The Constitutional Tribunal deemed that the indicated higher-level norms for the review were inadequate, as there was no link between the issue under examination and the Sejm’s obligation to establish standing committees (or the possibility of establishing ad hoc committees) as well as with the requirement that the Sejm itself should issue its own rules of procedure, as referred to in the indicated provisions of the Constitution.
The seventh allegation concerned the non-conformity of the challenged provision to Article 123(1) and (2) of the Constitution, due to the enactment of the said Act in accordance with the procedure for urgent bills, without classifying the bill as urgent. The Constitutional Tribunal stated that Article 123(1) and Article 123(2) were not adequate higher-level norms for the review, since the Council of Ministers had not classified the said bill as urgent. The Tribunal emphasised that the expeditious examination of the bill (not classified as urgent) by the Parliament was admissible, and at times - even necessary and was not tantamount to classifying such a bill as urgent.
The hearing was presided over by Judge Marek Kotlinowski, and the Judge Rapporteur was Judge Teresa Liszcz.
The judgment is final and its operative part shall be published in the Journal of Laws.