Paying Judges Properly

On 22 February, several thousand marched in downtown Budapest for an independent judiciary, including fair pay for judges. Three days later, the CJEU issued an important decision in Joined Cases C‑146/23 and C‑374/23, setting out the EU law criteria governing judges’ remuneration. The decision sets general minimum criteria for the remuneration of judges to guarantee their independence. While the preliminary reference proceedings were issued in Lithuania and Poland, the decision, applicable in all Member States, is highly relevant for the current Hungarian remuneration system. In Hungary, the salary pathway for judges is not set by law, it is not judicially enforceable, and the entire system lacks foreseeability. Accordingly, the decision should inevitably prompt the Commission to launch an infringement procedure. Furthermore, the set criteria enable the Hungarian judges to directly challenge their arbitrary domestic system of remuneration.

The Court’s judgment

In Joined Cases C-146/23 and C-374/23, Lithuanian and Polish judges sued over alleged unpaid wages, giving the Court an opportunity to clarify criteria on economic independence – an important aspect of judicial independence. Notably, the Court’s entire rule of law case law began with judicial salaries in Associação Sindical dos Juízes Portugueses.

In their 2023 preliminary questions, Lithuanian and Polish judges asked about two different aspects of economic independence. Lithuanian judges referred to the general rules determining their salaries, while Polish judges inquired about a temporary derogation from a general law. Two Lithuanian judges sought compensation because their remuneration depended on the political will of other branches of government, without a mechanism to ensure that it was commensurate with their judicial responsibilities. They also claimed that their salaries have lost its value due to a lack of adequate increase in the last decade. Finally, they argued that average judicial salary was nearing the national average wage and that judicial pay was lower than lawyers’ fees. The Polish case centred around a temporary suspension of the calculation of judicial pay due to budget constraints caused by the Covid-19 pandemic and Russia’s war against Ukraine. This led to a freeze on the increase of Polish judges’ salaries.

The Court answered the two sets of questions separately by applying a somewhat customized proportionality test. As to Lithuanian question, the Court made clear that it does not violate the separation of powers if the executive and the legislative branches decide on judicial pay. However, to avoid arbitrary intervention into judicial independence, the Court has set three procedural and one content-based criteria. It required that judicial remuneration (1) should be provided for by law, whereas the lawmaking process must remain (2) objective, foreseeable, stable and transparent, and including consultations with the relevant actors. Furthermore, the Court demanded the possibility of a (3) judicial review. In the specific case, the Court was satisfied with the Lithuanian law prohibiting a reduction – unless in exceptional circumstances – and prescribed that judicial wage should be set by considering several factors, such as inflation, increase of the minimum wage, and the average salary in the public sector. Content-wise, (4) the Court determined that the pay should be sufficiently high when compared with the domestic average salary and considering the general socio-economic circumstances in the specific Member State.

In its answer to the Polish preliminary question, the Court ruled the following. A derogation from established laws determining judicial pay, resulting in a freeze or even a reduction, must meet the requirements of legality, objectivity, foreseeability, and transparency, with the necessary judicial review. Finally, any derogation should be necessary to achieve a duly justified objective without singling out the judiciary compared to the public service in general; it must be proportional to the anticipated aim; and determined strictly temporary.

The Hungarian system of judicial remunerations

Among a long list of concerns regarding judicial independence, the low salaries of Hungarian judges have been identified as a severe rule of law issue by the European Commission, the European Parliament, civil society and the judges themselves. According to critics, these wages are not proportionate to judicial responsibilities and do not ensure judges can make decisions independently. A Hungarian judge – followed by more than a hundred others – submitted a complaint to the European Commission last summer, arguing that Hungarian judges’ and other judicial employees’ salaries jeopardise the rule of law.

The Hungarian law concerning judicial pay has two main elements. The first one guarantees that judicial salaries may not fall below the level of the previous year. However, there are no further criteria to determine its calculations. The second one foresees the preparation of the budget for general courts by the National Office for the Judiciary (NOJ, a central administrative body responsible for managing and overseeing lower courts in Hungary) and the budget for the Supreme Court by the NOJ’s president. The government should submit the suggested budget without modification to Parliament for a vote. However, this provision was violated last year. The NOJ president’s proposal budgeted for a 35% raise and suggested linking judicial pay to the national average salary. The government, however, submitted the budget bill to Parliament with a 0% raise.

Then, in November 2024, the Hungarian Ministry of Justice concluded an Agreement of dubious legal value with the presidents of three highest judicial administration bodies: the Supreme Court (the Kúria), the NOJ, and the National Judicial Council (NJC). Under the Agreement (which is more similar to a memorandum of understanding), the government promised a salary increase for judges – a total of 48% over three years, by 2027 – in exchange for support by the three judicial bodies for certain judicial reforms, which could arguably undermine judicial independence. These reforms, formulated in very broad terms, included addressing the high caseload of certain courts, expanding the use of video links for court hearings, redirecting specific tasks from the courts to administrative bodies, and raising the minimum age for judges from 30 to 35, among other measures. The government’s aim in involving the three judicial bodies might have been to lend legitimacy to judicial reforms.

The signing of this Agreement resulted in unprecedented blowback: several hundred judges, a sizable portion of the three thousand Hungarian judges, expressed their condemnation of the Agreement in open letters, and the outrage also led to the resignation of the NJC president. Despite the criticism and without consultation with the NJC on the draft bill, which is required by the law, the Parliament amended the Fundamental Law and other laws on the judiciary, granting a one-time 15% raise for judges in general and a significantly higher raise for Supreme Court judges. This fell short of the 35% raise deemed necessary by the judiciary, considering an inflation rate of around 40% since the last judicial pay raise in 2022.

According to civil society organisations, the changes may undermine judicial independence. Moreover, experts argue that the lack of consultation with the NJC violated one of the conditions based on which € 10.2 billion in EU funds was released a year ago.

On 22 February 2025, marking the fifth anniversary of the Polish March of a Thousand Robes, the Association of Hungarian Judges (MABIE) organised a protest, with several thousand people marching through downtown Budapest. Duro Sessa, president of the International Association of Judges and Mikael Sjoeberg, president of the European Association of Judges, delivered messages of solidarity. In a highly symbolic manner, András Baka, the former president of the Supreme Court and the protagonist of Baka v. Hungary – a seminal case on judicial freedom of expression – also delivered a speech alongside several other junior and senior judges and non-judge judicial employees. The difference between the earnings of lower court judges and Supreme Court judges was a recurring theme at last week’s protest.

Concerning the development of judicial salaries in the last decade, different analyses diverge. A common method, also used by the Court in its judgment, is the comparison of judicial salaries to the national average wage. The Court accepted a ratio of 2,1 for Lithuanian judges at the beginning of their career. As for Hungary, an analysis by MABIE found that this ratio in Hungary fell from 2,3 in 2005 to 1,3 in 2018. The complaint to the Commission claims the same ratio of 1,3 for 2024, which remained the same for this year, according to another study. However, according to the European Commission for the Efficiency of Justice (CEPEJ), which is a trusted source of comparative data on Europe’s judiciaries, this ratio fluctuated between 1,6 and 2 between 2010 and 2022.

Hungarian judicial pay contravenes CJEU criteria

The Hungarian system of judicial remunerations violates three of the Court’s criteria established in the Lithuanian case, with a possible violation of the fourth. Based on these arguments, I believe the European Commission should answer Hungarian judges’ requests for an infringement procedure and take action against the Hungarian government.

First, the Court requires the determination of judicial pay by law. In Hungary, the current three-year salary pathway is determined only by an agreement between the judiciary and the government with only this year’s moderate increase being codified into law. This seriously undermines legal certainty. Second, this agreement is not binding and is judicially unenforceable. As a result, it effectively removes judicial review, preventing judges from seeking enforcement if the promised raise does not materialize. In my opinion, these two points clearly violate the Court’s fundamental requirements of legal certainty and effective judicial review, two basic bulwarks against arbitrariness.

Third, the Hungarian system violates the Court’s second criteria on objectivity, foreseeability, stability and transparency. Hungarian law only requires that judicial pay may not decrease from year to year but lacks any provision on how that salary should be calculated. The Court was satisfied with the Lithuanian system, where judicial salaries are taking into account criteria such as inflation, the minimum monthly salary, and the average salary in the public sector. On the contrary, in Hungary, the adoption of this year’s judicial pay raise highlights the consequences of the absence of a foreseeable and stable system. As mentioned above, the NOJ president submitted a proposal for a 35% raise, which was unlawfully changed by the government and submitted to Parliament with a proposal for a 0% raise. Finally, an amendment for a 15% raise was adopted. A possible remedy for this situation would be the adoption of the NOJ president’s proposal to link judicial pay to the average national wage of the previous year.

Finally, while the exact amount of the judicial wages might violate the Court’s standards, this is much murkier territory. Research suggests that the Court is not particularly adept in using economic analysis and usually leaves it for the national court in preliminary ruling cases. As I mentioned above, analyses differ in the ratio of judicial pay to the national average. Nevertheless, the current starting monthly net salary for judges is around €1.560, and the average net judicial pay is around €2.700, which is at the lower end of the EU spectrum.

A worrying sign is that the European Commission was not particularly enthusiastic about the judges’ case. As one can tell from the judgment, the Commission emphasised the Member States’ wide margin of appreciation in budgetary matters and supported government arguments. This raises questions whether the Commission is ready to start an infringement procedure against Hungary on fair judicial remuneration. As the above analysis shows, strong arguments are certainly there.

Alternatively, Hungarian judges may try to directly remedy their situation. Two impediments stand in their way: the almost complete lack of practice for state liability in Hungary for violating EU law; and longstanding attempts to dissuade Hungarian judges from submitting preliminary questions in high-profile cases. The Lithuanian case shows that the Court sees no problem with a state liability case based on Articles 2 and 19 TEU for higher judicial pay. The Lithuanian government challenged the Court’s jurisdiction by claiming that there was no national measure aimed at reducing the remuneration of judges, and therefore, the preliminary question lacks relevance. The Court overruled this argument.

The Court’s judgment should encourage Hungarian judges to directly sue for higher pay to remedy the faulty system of their salaries’ determination. Such litigation might be much quicker than waiting for the Commission to launch an infringement procedure.