Case C-448/26, Rayonen sad – Tutrakan – who decides what a judge is paid?
A judge’s independence is usually tested at the moment of dismissal or discipline. This reference tests it at the moment of payment — and asks whether a judicial council may decide what a judge earns without any rule telling it how.
Facts
The Bulgarian scheme fixes the basic remuneration of the lowest-ranking and the highest-ranking positions in the judiciary. Everything in between — the great majority of judges — is left to the Plenary of the Supreme Judicial Council, the highest administrative body of the judiciary, which sets those salaries with what the referring court calls operational autonomy: discretion unconstrained by any objective, predictable, stable or transparent rules. The dispute reached Luxembourg from an unusual configuration: the appellant is itself a court, the Rayonen sad – Tutrakan (District Court, Tutrakan), acting as employer, with the respondent identified only as O.K.M. The Okrazhen sad – Razgrad (Regional Court, Razgrad) hearing the appeal has referred two questions.
Questions Referred
According to the Official Journal notice, the Okrazhen sad – Razgrad asks:
1. Must Article 2 and the second subparagraph of Article 19(1) of the Treaty on European Union be interpreted as precluding national legislation on the setting of the basic remuneration of members of the judiciary not occupying the lowest-ranking or highest-ranking positions in the judicial system under which the Plenary of the Supreme Judicial Council, in its capacity as the highest administrative body of the judiciary, is empowered to act with operational autonomy that is not restricted by any objective, predictable, stable and transparent rules for the setting of remuneration for positions other than the lowest-ranking and highest-ranking positions in the judicial system?
2. Does national legislation governing the operational autonomy of the highest administrative body of the judiciary, which is not restricted by any objective, predictable, stable and transparent rules for the setting of the remuneration of members of the judiciary not occupying the lowest-ranking or highest-ranking positions in the judicial system, constitute an infringement of the principle of judicial independence as a component of the right to effective legal protection provided for in the second subparagraph of Article 19(1) of the Treaty on European Union?
Sources
OJ notice C/2026/3830 (EUR‑Lex) · Case file on CURIA · Article 19 TEU
Comment
Judicial pay entered EU law through Case C‑64/16, Associação Sindical dos Juízes Portugueses (ECLI:EU:C:2018:117), where the Grand Chamber held that Article 19(1) TEU obliges Member States to guarantee effective judicial protection, independence included, in any court that may rule on EU law — and then found Portugal’s salary cuts compatible with it. The reasoning of that acquittal is what makes Tutrakan interesting. The Portuguese reductions survived because they were general (applied across the public sector), temporary, and tied to an external constraint, the excessive-deficit procedure and an EU assistance programme. In other words, they were not a judgment about judges. The Bulgarian arrangement is the mirror image: nothing external constrains it, the discretion is permanent, and it operates judge by judge.
The second question is the sharper one, because it asks whether the absence of rules is itself the infringement. That framing echoes the Court’s method in Case C‑216/21, Asociaţia “Forumul Judecătorilor din România” (ECLI:EU:C:2023:628), on promotion of judges: national legislation governing judicial careers must comply with independence, but a discretionary assessment is not precluded provided the substantive conditions and procedural rules are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors. Read across to remuneration, that test does not ask whether the Council has abused its power. It asks whether the framework makes abuse structurally imaginable — and the referring court’s own description, autonomy unrestricted by objective, predictable, stable and transparent rules, is close to a confession that it does.
There is a further wrinkle in who is asking. The Supreme Judicial Council is not a ministry; it is the judiciary’s own governing body, and its plenary includes members elected by Parliament. The Court has never accepted that self-governance immunises a body from the independence test — in Joined Cases C‑585/18, C‑624/18 and C‑625/18, A.K. (ECLI:EU:C:2019:982) it set out how to assess whether a judicial council’s own composition and conduct leave a court dependent, and in Case C‑896/19, Repubblika (ECLI:EU:C:2021:311) it added that Member States may not reduce the protection of the rule of law below the level they had on accession. Bulgaria acceded in 2007 with judicial-reform benchmarks attached. If the answer to question 2 is yes, the consequence is not a pay rise for anyone: it is an obligation to legislate the criteria, which is a slower and more awkward remedy than a Member State usually expects from a preliminary reference.