It was for the member states to define the concept of “workers who have an employment contract or an employment relationship” within the meaning of clause 2.1 of the Framework Agreement on part-time work, provided that this did not lead to arbitrary exclusion from protection offered by Directive 97/81/EC.

The Court of Justice of the European Union (Second Chamber) so held on a reference for a preliminary ruling from the Supreme Court of the United Kingdom [2010] UKSC 34, in proceedings between the applicant, Dermond Patrick O’Brien and the respondent, the Ministry of Justice.

Prior to his retirement the applicant worked as a recorder. As an “office holder” he had worked outside the framework of an employment contract and had been remunerated on a fee-paid basis. Unlike full-time judges and part-time salaried judges he had not been entitled by law to a retirement pension. The applicant challenged the failure to award him a pension and the Supreme Court of the United Kingdom asked the Court of Justice of the European Union: (1) whether it was for national law to determine whether or not judges as a whole were workers who had an employment contract or employment relationship within the meaning of clause 2.1 of the Framework Agreement on part-time work concluded on 6 June 1997, annexed to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC (OJ 1998 L14, p 9), as amended by Council Directive 98/23/EC of 7 April 1998 (OJ 1998 L131, p 10) or whether there was a Community norm; and (2) whether, if judges were workers who had an employment contract or employment relationship within the meaning of clause 2.1 of the Framework Agreement, it was permissible for national law to discriminate (a) between full-time and part-time judges or (b) between different kinds of part-time judges in the provision of pensions?

THE COURT gave the following ruling. (1) It was for the member states to define the concept of “workers who have an employment contract or an employment relationship” within the meaning of clause 2.1 of the Framework Agreement, and, in particular, to determine whether judges fell within that concept, subject to the condition that that did not lead to the arbitrary exclusion of that category of persons from the protection offered by the Directive and the Framework Agreement. An exclusion from that protection could be allowed only if the relationship between judges and the Ministry of Justice was, by its nature, substantially different from that between employers and their employees falling, according to national law, under the category of workers. (2) Clause 4 of the Framework Agreement precluded, for the purpose of access to the retirement pension scheme, national law from establishing a distinction between full-time judges and part-time judges remunerated on a daily fee paid basis, unless such a difference in treatment was justified by objective reasons, which was a matter for the referring court to determine.