The working conditions of non-professional magistrates and the European concept of ‘worker’

Abstract

This article provides an overview of the legislation on the status and working conditions of the different categories of non-professional magistrates, as utilised by the judiciary administration of European Member States. In this regard, a distinction is made between ‘lay judges’, non-professional judges cooperating in a judicial process on the basis of their perspective as normal citizens, and ‘honorary judges’, who cooperate in the adjudication with their specialist knowledge and experiences. Through the lens of the CJEU's ruling in UX, the article also provides an insight into whether, on the basis of the reported legislation, any particular category of honorary judges is susceptible of falling within the European concept of ‘worker’.

1. Introduction

Non-professional magistrates contributing to the administration of justice are a common feature across the European Member States. However, there is no universal approach to their selection and regulation, which heavily depend on the juridical traditions of the Member States, and on the choices of legislators. ¹ On the one hand, non-professional judges can take part in criminal procedures, more commonly as lay judges; ² on the other hand, they can also be found in administrative and especially civil courts, where they may be entrusted with cases relating to family law, commercial law, and also cases in the field labour and social law. ³ While the presence of non-professional judges is generally limited to courts of first instance, they may also sit at second instance in some jurisdictions. ⁴ In certain Member States, they may even contribute to the functioning of last instance courts. This is the case in Poland, for example, where, according to the Supreme Court Act, they may participate in disciplinary proceedings for which the Supreme Court is the competent organ. ⁵

As their work in the judiciary is usually regarded as being on a voluntary basis, and given that they do not receive a fully-fledged salary for their contribution, non-professional magistrates are not deemed to perform their functions in the context of an employment relationship and are therefore mostly excluded from the scope of national labour law. In particular, non-professional judges are not covered by national working time legislation. While some Member States introduced some provisions on the working time of professional magistrates, these do not appear to apply to non-professional judges unless explicitly stated. ⁶

The Court of Justice of the European Union (CJEU) has twice been concerned with the working conditions of non-professional judges, especially in relation to the applicability of Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC (the Part-time Work Directive), Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (the Working Time Directive), and Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (the Fixed-term Work Directive). In O’Brien, ⁷ the CJEU examined the status of the recorders, a category of part-time judges usually appointed for five years in the United Kingdom, where judges are considered office holders and work outside the framework of an employment contract. This notwithstanding, the Court highlighted that Member States may not apply rules which are liable to jeopardise the achievement of the objectives pursued by a Directive and, therefore, deprive it of its effectiveness. ⁸ As a consequence, an exclusion from the protection afforded by the Part-time Work Directive will only be allowed if the relationship between judges and the Ministry of Justice is, by its nature, substantially different from that falling, according to national law, under the category of workers. Similarly, in UX, ⁹ the Court focused on the role and functions of the Italian justices of the peace, classified as ‘honorary magistrates’ but performing functions comparable to ordinary magistrates, for the purposes of applying the Working Time Directive and the Fixed-term Work Directive. In this regard, the Court relied on its previous case law ¹⁰ to determine that a magistrate who, in the context of his or her duties, performs real and genuine services which are neither purely marginal nor ancillary, and for which he or she receives compensation representing remuneration, may fall within the autonomous European concept of ‘worker’.

While the UX ruling specifically concerned the Italian legal system, the implications of this judgment for other European Member States using non-professional judges in the administration of justice are still unclear: in fact, to the knowledge of the author of this article, this category of magistrates has not been explored from a comparative labour law perspective before. Therefore, based on a comparative study concerning all EU Member States, ¹¹ this article serves a twofold purpose:

To provide an overview of the working conditions of the various categories of non-professional judges across the European Union, by analysing the different kinds of applicable legal provisions; and

To predict the likelihood that more non-professional judges with working conditions comparable to those of ordinary magistrates exist across the Member States.

To this aim, the article will adopt the lens of the European concept of ‘worker’ elaborated by the CJEU since Lawrie Blum. While this approach might be limited by the fact that the application of the concept of ‘worker’ can only follow an assessment of the concrete circumstances of the case, ¹² such an analysis of the relevant legislation may nonetheless offer new clues as to whether the application of the CJEU acquis could potentially lead to the classification of more categories of non-professional magistrates as ‘workers’ under European labour law.

2. Non-professional judges across the EU Member States

2.1 Defining non-professional magistrates

Given the significant national variety in the regulatory frameworks across the Member States, the category of non-professional judges captures a wide variety of individuals: lay judges and jurors, volunteer labour, social, agricultural and commercial judges, substitute judges and justices of the peace. While such a diversity entails unavoidable definitory uncertainties, some common elements defining non-professional judges across the different European Member States can be identified. In this regard, the European Charter of Lay Judges drafted by the European Network Association of Lay Judges (ENALJ) highlighted the following aspects:

The non-professional nature of the performance of work, meaning that the non-professional judges do not make a career as judges;

The awarding of compensation aimed at avoiding non-professional judges suffering any financial disadvantage from the office held, coupled with the lack of salary; and

The temporary nature of the office covered. ¹³

Therefore, when using the term ‘non-professional judges’, this article will refer to non-career judges temporarily participating in the administration of justice and receiving monetary compensation for the expenses sustained during the performance of the duties connected to the office held.

2.2 Categories of non-professional judges

Specific legal training is not a necessary characteristic of non-professional judges: they may exercise their duties either with prior training or as juridical lay persons, based on specialist knowledge or as general representative of the public. This difference plays a role in the distinction made between ‘lay’ and ‘honorary’ judges. In this regard, this article will adopt the further distinction made by the Council of Europe European Commission for the Efficiency of Justice (CEPEJ). ¹⁴ The latter differentiates between non-professional judges participating in a judicial process on the basis of their ‘good human judgment’ and bringing the perspective of the normal citizen into the jurisdiction (‘lay judges’), and those who participate in the adjudication with their specialist knowledge and experiences, e.g., in labour, commercial or agricultural matters (‘honorary judges’). ¹⁵ In fact, the ‘honorariness’ of the office is generally based on the recognition of professional experience and integrity. ¹⁶ Honorary judges can make a significant contribution to relieving professional judges of their caseload, ¹⁷ and complement the juristic competence of career judges with specialist expertise. ¹⁸

A further distinction between non-professional judges that can be recognised across the EU Member States concerns their voting rights. In fact, non-professional judges may either make independent adjudications without any involvement of a career magistrate, or may alternatively sit together with one or several career magistrates. The most common legislative approach to the involvement of non-professional judges in the administration of justice is the latter, which entails their participation in a collegial court made up of several individuals. This configuration is a regular feature in both civil and criminal courts: in this case, the panel is invariably presided over by the non-professional judge, while lay judges do not wield full judicial powers and do not issue court rulings, but only participate and vote in court hearings. A mixed panel with two lay judges and a professional judge is, for example, used for labour and social security matters in Austria, ¹⁹ the Czech Republic, ²⁰ France, ²¹ Germany, ²² Luxembourg ²³ and Slovenia. ²⁴ In Germany, mixed courts may also be used in chambers for commercial cases in regional courts and for agricultural disputes in the county and province courts. ²⁵ On the other hand, non-professional judges also participate in mixed collegial courts for criminal matters in countries such as Finland, ²⁶ Croatia, ²⁷ Poland, ²⁸ Sweden ²⁹ and Slovakia. ³⁰ Lay judges can also join criminal trials as jury members, and their participation is even based on a Constitutional provision, such as Article 91 of the Austrian Constitution, Article 121 of the Croatian Constitution, Article 27 of the Hungarian Constitution, Article 182 of the Polish Constitution, and Article 142 of the Slovakian Constitution. In this regard, the Consultative Council of European Judges (CCJE) ³¹ noted how non-judicial members participating to the administration of justice ensure a diverse representation of society, reducing the risk of corporatism and fighting the perception of the judiciary as a ‘lawyers only affair’, while providing a helpful link between the judiciary and the public. ³² Similarly, the ENALJ stressed how the right of participation by the people in dispensing justice is an element of civil emancipation and a fundamental principle in a democratic society, which helps to increase plausibility and comprehensibility in proceedings and judgments, and thus enhance confidence in the legal system. ³³

Non-professional judges may also sit without the aid of professional judges. This appears to be more common in Napoleonic-influenced states such as Belgium, Italy, the Netherlands and Spain. ³⁴ For example, the judgment board of the French conseil de prud’ hommes is exclusively made up of four honorary judges who are appointed jointly by the Minister of Justice and the Labour Minister on the basis of proposals from representative trade unions and professional organisations. ³⁵

Another relevant example is that of substitute judges, who may be appointed as a temporary replacement for judges who are unable to perform their duties, or in case of a shortage of professional magistrates in a particular college. In Belgium, substitute judges (juges suppléants) in the lower courts and substitute counsels in the courts of appeal (conseillers suppléants) are appointed by the King to temporarily replace absent judges or members of the public prosecutor's office, or when there are insufficient numbers for the court to sit. When they act as substitutes, both categories enjoy the same powers as professional magistrates and decide equally independently. ³⁶ Similarly, in Spain, if there are vacancies to be filled or where personnel are required in the courts, the General Council of the Judiciary may exceptionally and temporarily hire non-professional judges (magistrados suplentes), who take on the same tasks and duties of the substituted judge. ³⁷ In the Netherlands also, deputy judges (rechters-plaatsvervangers) can be appointed in courts of first instance or courts of appeal. Until 2002, deputy judges could only be deployed by exception and only to replace a regular judge who was ill or otherwise not in a position to attend, ³⁸ but it is now up to the court to choose when to deploy them, including in cases where their specific expertise is required. Two kinds of deputy judges may therefore be identified in the Netherlands. First, paid deputy judges are designated to work for an average of working hours per week. However, this category is not problematic from a European perspective, as their remuneration and working conditions are arranged in the same way as for regular judges, meaning that they are covered by European labour legislation. ³⁹ Unpaid deputy judges, on the other hand, work on call and receive a fixed compensation per hearing. ⁴⁰ They are only covered by health and safety legislation, as the latter applies to those who do not have an employment contract but work under the instruction of the ‘employer’. ⁴¹

One final category of honorary magistrate, scrutinised by the CJEU in UX, is that of the justices of the peace, who deal with cases at the lowest level of the courts system. This category is also common to the Napoleonic-influenced countries, but the legal status of these magistrates has a variable geometry. The concept of justice de paix existed in France, but was abolished in 1959. ⁴² In Luxembourg, this category is composed of professional judges; similarly, in Portugal, the juízes de paz were created in 2001 and are part of the broader category of alternative means of dispute resolution. They have been defined as ‘qualified civil servants’ by the Supreme Court, ⁴³ and are qualified as ‘workers’ for the purposes of Portuguese law, being bound by a public employment relationship under Law no 12-A/2008 of 27 February 2008. ⁴⁴

Conversely, the situation in Spain appears to be the more similar to the Italian one. There, the jueces de paz are magistrates that the law qualifies as exercising jurisdictional functions, even if they do not belong to the judicial profession. ⁴⁵ They can be appointed in municipalities where there are no courts of first instance and are competent to resolve small civil disputes or to adjudge minor crimes, being entrusted with the functions and competences of the courts of first instance. They are not considered to be employees or civil servants, but have a special administrative relationship regulated by a regulation of the General Council of the Judiciary. As such, they are excluded from working time, health and safety regulations and social security schemes. ⁴⁶

3. Non-professional judges and the EU concept of ‘worker’

The application of the European concept of ‘worker’ must be based on objective criteria, and must follow an overall assessment of all the circumstances of the case, having regard both to the nature of the activities concerned and the relationship of the parties involved. ⁴⁷ This notwithstanding, an examination of national regulatory frameworks may offer some clues as to whether the legislation of other European Member States - besides Italy - envisages the participation in the judiciary of non-professional judges that could be subsumed under the European concept of ‘worker’. The following analysis will therefore focus on the relevant criteria adopted by the CJEU in its long-standing case law on the subject.

3.1 Judicial independence and subordination

One of the core elements characterising an employment relationship is that for a certain period of time a person performs services for and ‘under the direction of another person’. ⁴⁸ At the same time, however, the CJEU has highlighted that independence is an essential constitutive element of a ‘court or tribunal’ within the meaning of Article 267 TFEU. This means that judges must be safeguarded from external intervention or pressure liable to impair their judgment and to influence their decisions. ⁴⁹ In its case law, ⁵⁰ the Court has noted how the external independence of a judge entails the lack of any hierarchical constraint or subordination to any other body, and the absence of orders or instructions from any source whatsoever. ⁵¹

The requirement of judicial independence is reflected by legislation across the Member States, where non-professional magistrates are equated to professional judges, deciding on the basis of the law, who cannot be influenced with regards to their judicial authority. For example, in Germany, Article 97(1) of the Constitution establishes that judges are independent and subject only to the law. This also applies to honorary judges, as the honorary judge is independent to the same extent as a professional judge. ⁵² In Poland, just like a professional judge, a lay assessor is only subject to the Constitution and the laws when making adjudications, being subordinate neither to judges nor to any officials. ⁵³

The guarantees of independence and impartiality require a variety of rules, particularly as regards the composition of the relevant body and the appointment, length of service and the grounds for abstention, rejection and dismissal of its members. ⁵⁴ An essential element to judicial independence is the irremovability of the members of the body concerned, which requires that judges remain in their post until their mandate expires. The only exceptions to this principle may be warranted by legitimate and compelling grounds, subject to the principle of proportionality: judges may only be dismissed on the basis of express legislative provisions offering safeguards that go beyond those provided for by the general rules of administrative and employment law which apply in the event of an unlawful dismissal, and only if they are deemed unfit for purposes of carrying out their duties on account of incapacity or a serious breach of their obligations, provided that the appropriate procedures are followed. ⁵⁵

Accordingly, Member States may only require the removal from office of a non-professional judge in exceptional cases. This may be in the case of a sentence being imposed following the commission of a criminal offence, ⁵⁶ while, in case of an ongoing investigation against an honorary magistrate, courts may temporarily prohibit the exercise of their judiciary duties. ⁵⁷ Removal from office can also be caused by a breach or neglect of duties by the non-professional judge. ⁵⁸ It must be noted, however, that the removal of the non-professional judge is not the only possible remedy in the case of unreliability of the judge, as this category is not immune to being subject to disciplinary sanctions. In Austria, for lay judges serving in criminal courts, an administrative fine can be imposed if they fail to attend a hearing or otherwise breach their duties without providing evidence of an unavoidable impediment, and a lay judge may also be ordered to pay the costs of a trial that was thwarted or inconclusive due to his or her conduct. In all other cases, repeated breaches of obligations on the part of lay judges will result in their removal from the relevant list of lay judges. ⁵⁹ Similarly, in Luxembourg, the tribunal can decide to call in other assessors in to replace an unreliable one, while in Hungary, in case of inappropriate attitude of a lay judge, the professional judge may remove the latter from the panel. In France, any breach of the duties by judges in the conseil de prud’hommes may constitute a disciplinary offence, punishable by reprimand, suspension for up to six months, disqualification from holding office as a member of a tribunal for up to ten years, or disqualification from holding office as a member of a tribunal for good. ⁶⁰ For the tribunal de commerce, sanctions may be imposed by the national disciplinary committee. In Spain, according to the Supreme Court, the disciplinary measures applicable to honorary magistrates are the based on the same provisions that apply to professional judges. ⁶¹ Conversely, in Slovakia, lay judges are not subject to disciplinary measures under the third part of the Act on judges and lay judges. However, a lay judge who has been notified at least ten days in advance of the obligation to attend a sitting of the senate and has not justified an absence in time and for good reason is obliged to compensate the state for damages caused by the failure of the jury. ⁶² Finally, the removal from office can also happen for reasons relating to the age of the judge, when they have reached the mandatory retirement age. This is the case when a non-professional magistrate reaches the age of 67 in Belgium, 68 in Finland, or 70 in Estonia, Croatia, Hungary, the Netherlands and Slovakia. Legislation often also explicitly provides for the removal from office of honorary magistrates when their health is preventing them from performing their duties properly. ⁶³

While it appears that non-professional magistrates enjoy the same guarantees of independence as their professional counterparts, this characteristic does not preclude them from being classified as ‘workers’: as noted by the CJEU, their independence while adjudicating is not undermined by the performance of their duties in a legal relationship of subordination. ⁶⁴ One can therefore look at the rules for selecting and appointing magistrates, and the way in which their work is organised, as relevant factors to take into account in determining whether non-professional judges may be considered as performing their duties under a relationship of subordination.

Non-professional magistrates are selected differently according to the legislation of the Member State in question, and they only serve for what is generally a renewable term. Stakeholders such as representative trade unions may play a role in the identification of suitable candidates for the role of non-professional judges. This is the case, for example, in Germany, where lists of nominees for lay judges sitting in labour courts are drawn up by trade unions and employers associations; or in France, where representative trade unions may nominate the lay judges sitting in the social security courts, in the conseil de prud’ hommes, or in the tribunal paritaire des baux ruraux. ⁶⁵ Stakeholders can furthermore play a role in the choice of honorary judges serving in labour and social courts, even where they do cannot determine them autonomously. This is the case, for example, in Slovenia, where honorary judges are elected by the National Assembly from a list of candidates of workers or insurees, and a list of candidates of employers or institutions; ⁶⁶ or in Austria, where they are elected by statutory representative bodies of employers and employees. ⁶⁷ Differently, in several Member States these judges may be appointed by bodies of the judiciary or by the relevant Minister; they may also be elected by the municipal councils in the district of the competent court. ⁶⁸ In any event, the fact that employment relationships are not established by contract but by decree due to the public nature of the employer is not decisive to exclude the status of worker under CJEU law. ⁶⁹

Given their independence, non-professional judges do not perform their work according to instructions. However, the President of the court generally holds the organisational power within a court, overseeing the running of the court in accordance with its workload. ⁷⁰ Accordingly, the President may assign non-professional magistrates to a panel of judges or summon them to the hearings. This, of course, limits their freedom of choice with regard to the exact activity performed, and their choice in scheduling. For example, in the Czech Republic, the Act on Courts and Judges obliges chief justices to create a ‘schedule of work’ so that each case before the court has a designated judge; ⁷¹ similarly, in Slovakia, the President of the District Court issues a work schedule for the relevant calendar year. ⁷² In Germany also, the President of the court determines the required number of non-professional judges in such a way that each of them is expected to be called upon to sit at a maximum of 12 ordinary sessions per year.

As a consequence of this category of provisions, and as also noted by the CJEU in UX, the organisation of the work of magistrates is determined by the charts indicating the composition of the court to which they belong, and establishing how case files are assigned and the dates and times of hearings. Even though they can organise their work in a more flexible manner than members of other professions, magistrates must comply with the instructions of the chief magistrate, and are generally subject to the disciplinary authority of the supreme authorities of the judiciary. Therefore, they can be deemed to perform their duties in a legal relationship of subordination that does not affect their independence when adjudicating. ⁷³

Conversely, the discretion as to whether to accept or decline the various tasks offered by a putative employer, or to unilaterally set a maximum number of such tasks, together with the ability to set one’s own hours of ‘work’ within certain parameters, may be taken as indicators of the lack of a relationship of subordination. ⁷⁴ While this criterion was not examined by the CJEU in UX, it could be discussed for those non-professional judges that can set the time of the hearings freely, as is the case for the Spanish justices of the peace, ⁷⁵ or for those who may choose whether to accept an assignment, like the Belgian substitute judges.

3.2. Real and genuine activity

The CJEU has already observed that the fact that an individual only works for a very limited number of hours may be an indication that the activities performed cannot be defined as ‘real and genuine’, but rather as ‘marginal and ancillary’ ⁷⁶ - an important criterion in order to distinguish between the two is, of course, represented by the extent of the activity performed. ⁷⁷

In UX, the Court noted that it was apparent from the order for reference that services performed by the applicant as an honorary judge were carried out as a principal activity, which was thus recognised as ‘real and genuine’. However, non-professional judges may perform their jurisdictional activities while being engaged in a separate, unrelated employment relationship as their main profession.

In this regard, in Slovenia, an employer is obliged to enable an employee to exercise their function as a lay judge, with the latter enjoying a corresponding right to be absent from work for this reason. ⁷⁸ Similarly, in Luxembourg, after informing their employer, lay judges are entitled to be absent from their place of work and to continue to receive their normal salary and the benefits related to their professional activity at the same time. ⁷⁹ Furthermore, a lay judge who is also an employee may be specifically protected against dismissal by his/her employer. This is the case in Germany, where according to the Federal Labour Court the protection against dismissal results from the prohibition of discrimination against honorary judges. ⁸⁰

Another category of provisions specifically limits the working time of lay magistrates, only allowing them to perform their judiciary function for a small number of days per year. In the Czech Republic, for example, a lay judge cannot sit on a mixed panel for more than 20 days per calendar year; ⁸¹ the same limit applies in Finland, where lay magistrates are expected to serve in court for 10 to 20 days per year. ⁸² Lower limits apply in Poland, where a lay assessor may only participate in hearings for 12 days per year. ⁸³ Similarly, in Slovakia, lay judges may perform their function for a maximum of 12 working days in a calendar year, unless required by the nature of the case. ⁸⁴ Conversely, in Austria, lay judges in criminal courts may only be called in for five days per year. ⁸⁵ This category of provisions appears to directly and legally qualify the judicial activities of lay judges as ‘marginal and ancillary’. In fact, it seems unlikely that the activities of a lay judge working for a maximum of 20 days per year could be considered ‘real and genuine’.

On the contrary, it appears that there are no rules limiting the working time of those non-professional judges wielding full judicial powers. This applies, for example, to substitute judges in Spain, who do the same duties and volume of work as professional judges in the performance of their tasks, ⁸⁶ while Spanish justices of the peace are entrusted with the same functions and competences as the courts of first instance. In the Netherlands, there are no provisions establishing a maximum working time for deputy judges. As a result, the activities of deputy judges may surpass the limits of ‘marginal and ancillary’, depending on the concrete volume of their workload.

3.3 Remuneration

In UX, the court noted that the fact that the duties of a magistrate are classified as honorary by the national legislation does not mean that the financial benefits that a magistrate receives must be regarded as not representing remuneration for the purposes of the European notion of ‘worker’. In fact, according to CJEU case law, neither the origin of the funds from which that remuneration is paid, nor the limited amount of that remuneration have any consequence for the purposes of the notion of ‘worker’. ⁸⁷

In this regard, in the majority of Member States the law provides for compensation which aims to prevent non-professional judges from suffering any financial disadvantage as a result of their participation in judicial administration, only providing reimbursement for travel and subsistence expenses, or additional costs arising in connection to their office.

For non-professional magistrates whose main profession is performed within an employment relationship, national legislation provides for two different solutions as regards their financial compensation. On the one hand, these judges may be entitled to the continued payment of their salary by their employer, who may in turn receive compensation from the State. This is the case, for example, for Luxembourg, where the employer is reimbursed from public funds, ⁸⁸ and for Slovenia, where the employer is reimbursed by the Court, ⁸⁹ but not for Austria, where the employer does not receive any additional compensation. On the other hand, non-professional judges may only receive compensation of salary for the duration of performance of their duties as honorary judges, which may amount to either their average earnings or some other form of average wage. ⁹⁰ Differently, for non-professional magistrates that are otherwise self-employed, the national legislation of Member States usually provides for compensation for the actual loss of earnings, which has to be proven. ⁹¹

The fact that non-professional judges do not undertake the jurisdictional activity for financial reward would point towards their qualification as ‘volunteers’, rather than ‘workers’. However, the CJEU has never, to date, negated the qualification of an employment relationship solely on the basis of the lack of the element of remuneration. ⁹² On the contrary, as apparent from the ruling in UX, even the fact that the sums paid as compensation are aimed at reimbursing costs experienced during the performance of ‘honorary’ duties is not sufficient to exclude these sums from the notion of ‘remuneration’. ⁹³ This is because, depending on the concrete volume of work, these might nonetheless prove to be significant. This even more so in those Member States that also provide non-professional judges with an additional periodic allowance or honorarium, which can either consist in a pre-determined lump sum, or can be determined otherwise. In Hungary, it amounts to 25% of a professional judge's salary base calculated for each working day in service as a lay judge, ⁹⁴ while in Finland, the compensation is based on the length on the session. ⁹⁵ In Belgium, substitute judges only receive monetary compensation if they perform ‘high tasks’ or ‘high duties’, but are entitled to a monthly indemnity that is proportional to the services rendered. ⁹⁶ Finally, Spanish substitute judges have the right to the same financial compensation as professional judges. ⁹⁷

Conversely, it has to be pointed out that Spanish justices of the peace earn a financial compensation established in the Budget Law every year, depending on the population of the municipality. Differently from the Italian case, this sum is independent from their concrete volume of work, an element which may thus point towards the qualification as ‘worker’.

3.4 Conclusions

The template adopted by the CJEU in UX provides for a useful instrument when analysing the working conditions of all categories of non-professional magistrates with a view to their qualification as ‘workers’ for the application of the national legislation implementing the EU Directives. Through the application of such a framework, this article offers an overview of the working conditions of non-professional magistrates across the EU Member States, and a discussion of the possibility to them being subsumed under the European notion of ‘worker’.

The Court has noted how the guarantee of judicial independence enjoyed by jurisdictional authorities, including non-professional judges, does not exclude the existence of a relationship of subordination. As most magistrates are obliged to comply with administrative regulations governing, in detail, the organisation of their work, and are subject to the disciplinary power of higher judicial authorities, this seems to be the case in most instances. However, the relationship of subordination is not necessarily implied for the totality of non-professional judges, and needs to be assessed on a case-by-case basis, taking into account the discretion in terms of choice of the type of work and tasks to be executed, the manner in which that work or those tasks are to be performed, and the time and place of work.

Similarly, given the broad interpretation adopted by the CJEU, ⁹⁸ it seems that the compensation received by honorary judges would be easily subsumable under the notion of ‘remuneration’ for the purposes of the qualification as ‘worker’. This, however, may depend on the concrete volume of work performed by the non-professional magistrate. Such an element would also be fundamental in assessing the ‘real and genuine’ nature of the activities performed. As a consequence, while the CJEU has not yet been concerned with the employment status of lay judges, it appears that their activity could only be considered as ‘marginal and ancillary’ in the vast majority of cases. This seems to be implied by the relevant legislative frameworks themselves, as these relegate lay judges to a role lacking full jurisdictional powers, often limiting the performance of their functions to only a certain number of days per year, and aim at protecting their primary occupation during their participation in the judiciary administration.

Conversely, the legislative framework for non-professional judges wielding full judicial powers in Spain and the Netherlands appears to allow for a volume of work that may concretely result in a ‘real and genuine activity’.

In the Netherlands, the activities of deputy judges may surpass the limits of ‘marginal and ancillary’, depending on the concrete volume of their workload. While paid deputy judges are already covered by European labour legislation, unpaid deputy judges being called upon enough to be deemed to exercise ‘real and genuine’ activities could see their working conditions improved by being subsumed under the European notion of ‘worker’, as only health and safety legislation is currently applicable to their position.

The case of the Spanish jueces de paz, whose volume of work is equated by legislation to that of professional judges, appears to be similar to the Italian one examined by the CJEU in UX. However, differently from the Italian situation, it should be noted that justices of the peace enjoy the same leaves as professional judges. ⁹⁹ Furthermore, the remuneration received by these magistrates is not dependent on the volume of work performed, as it is set in the Budget Law every year and depends on the population size in the municipality. It remains to be seen whether this could prevent their qualification as ‘worker’ for the application of European Labour Law. However, some litigation on the employment status of this category of magistrates for retirement purposes has been reported. In these cases, the High Courts have ruled that there was no employment relationship, and the justices of the peace were not included in any social security scheme. ¹⁰⁰

In conclusion, the variety of legislative frameworks regulating the working conditions of non-professional magistrates does not allow for a ‘one-size-fits-all’ approach in respect of their qualification as ‘workers’ under European labour law. Instead, in line with the CJEU's judgement in UX, the criterion concerning the volume of jurisdictional activity exercised appears to be the most relevant for determining whether a non-professional judge could be considered as enjoying employee status, on a case-by-case basis. While the volume of work of lay judges sitting in mixed panels appears to be legislatively limited in most instances, thus likely excluding their qualification as ‘worker’, non-professional magistrates exercising full jurisdictional powers appear to be more likely to be subsumed under this notion, which, however, depends on the concrete circumstances of the case.