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judicial pension rights - O’Brien and the Advocate General’s opinion

29 November 2011

Whilst the final judgement is not anticipated until early 2012, Advocate General Kokott has now delivered her opinion.

Mr O’Brien, represented by Browne Jacobson LLP and Cloisters Chambers, brought a claim because, as a part-time, fee-paid judge, he was excluded from the judicial pension scheme. In July 2010 the Supreme Court sought ECJ input on:-

  • Can national law determine whether or not judges are “workers who have an employment contract or employment relationship”?
  • Can national law discriminate (a) between full time and part-time judges or (b) between different kinds of part-time judges in the provision of pensions?

The Advocate General considers that it is for national law to decide if a part-time judge is a worker, but there were limits to this discretion. Member States are not allowed to exclude complete categories of part-time worker.

The court does not need to follow the Advocate General’s opinion, but it unusual not to do so.

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