Part-time, fee paid judges could be eligible for pensions if the opinion of Advocate General Kokott is followed in the long-running case of ‘O’Brien v Ministry of Justice’. In July 2010 the Supreme Court referred the matter to the European Court of Justice, asking (i) is it for national law to determine whether or not judges are “workers” who have an employment contract or is there a Community norm to determine the matter; and (ii) if they are “workers” may national law discriminate between full time and part time judges or between different kinds of part time judges in the provision of pensions? Advocate General’s recommendations are not binding on the Court of Justice but are normally followed
Ms Kokott said that judges “appear to enjoy social rights generally associated with workers. If judges are treated in the same way as workers in this respect, even though they cannot, formally, be regarded as workers, this can be seen as an indication that the nature of their office is not substantially different from what is regarded as an employment relationship according to national law”.