Case C‑530/13

Leopold Schmitzer

Bundesministerin für Inneres

(Request for a preliminary ruling from the Verwaltungsgerichtshof)

‛Reference for a preliminary ruling — Social policy — Directive 2000/78/EC — Equal treatment in employment and occupation — Article 2(1) and (2)(a) — Article 6(1) — Discrimination based on age — National legislation under which inclusion of periods of study and service completed before the age of 18 for the purpose of determining remuneration is subject to an extension of the periods for advancement — Justification — Whether appropriate for the purpose of achieving the objective pursued — Possibility of challenging the extension of the periods for advancement’

Summary — Judgment of the Court (Grand Chamber), 11 November 2014

Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of age — National legislation under which inclusion of periods of study and service completed before the age of 18 for the purpose of determining remuneration is subject to an extension of the periods for advancement — Legislation containing discrimination — Justification based on the pursuit of legitimate aims — Respect of acquired rights and of the protection of legitimate expectations — Proportionality — None

(Council Directive 2000/78, Arts 2(1) and (2) and 6(1))
Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of age — National legislation under which inclusion of periods of study and service completed before the age of 18 for the purpose of determining remuneration is subject to an extension of the periods for advancement — Right to challenge discriminatory effects

(Council Directive 2000/78, Art. 2, 9 and 16)

Article 2(1) and (2)(a) and Article 6(1) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding national legislation which, with a view to ending age-based discrimination, takes into account periods of training and service prior to the age of 18 but which, at the same time, introduces — only for civil servants who suffered that discrimination — a three-year extension of the period required in order to progress from the first to the second incremental step in each job category and each salary group.

To the extent to which the three-year extension to the period required for advancement from the first to the second incremental step applies only to civil servants who completed periods of training and service before reaching the age of 18, such legislation involves a difference in treatment which is directly based on age within the meaning of Article 2(2)(a) of Directive 2000/78.

That difference in treatment cannot be justified only by the objectives of budgetary equilibrium or procedural economy. While budgetary considerations may underpin the chosen social policy of a Member State and influence the nature or extent of the measures that that Member State wishes to adopt, such considerations cannot in themselves constitute a legitimate aim within the meaning of Article 6(1) of Directive 2000/78.

In contrast, respect for the acquired rights and the protection of the legitimate expectations of civil servants favoured by the previous system with regard to their remuneration constitute legitimate employment-policy and labour-market objectives which can justify, for a transitional period, the maintenance of earlier pay and, consequently, the maintenance of a system that discriminates on the basis of age. Such legislation makes it possible to attain those objectives in so far as civil servants favoured by the previous system will not be subject to the retroactive extension of the period for advancement.

However, those objectives cannot justify a measure that maintains definitively, if only for certain persons, the age-based difference in treatment which the reform of a discriminatory system, of which such a measure forms part, is designed to eliminate. Such a measure, even if it is capable of ensuring the protection of acquired rights and legitimate expectations with regard to civil servants favoured by the previous system, is not appropriate for the purpose of establishing a non-discriminatory system for civil servants who were disadvantaged by that previous system.

(see paras 35, 41-45, operative part 1)
Articles 9 and 16 of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that a civil servant who has suffered age-based discrimination — resulting from the method by which the reference date taken into account for the calculation of his advancement was fixed — must be able to rely on Article 2 of that directive in order to challenge the discriminatory effects of the extension of the period for advancement, even though, at his request, that reference date has been revised.

If a civil servant disadvantaged by the previous system were unable to challenge the discriminatory effects of the extension of the period for advancement by reason of the fact that that new discrimination arises solely by reason of the fact that that civil servant requested and obtained the revision of his reference date, whereas civil servants favoured by the previous system decided not to submit such a request, he would not be in a position to enforce all the rights which he derives from the principle of equal treatment guaranteed by Directive 2000/78, a situation which would be contrary to Articles 9 and 16 of that directive.

(see paras 47, 50, 51, operative part 2)

Case C‑530/13

Leopold Schmitzer

Bundesministerin für Inneres

(Request for a preliminary ruling from the Verwaltungsgerichtshof)

Summary — Judgment of the Court (Grand Chamber), 11 November 2014

Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of age — National legislation under which inclusion of periods of study and service completed before the age of 18 for the purpose of determining remuneration is subject to an extension of the periods for advancement — Legislation containing discrimination — Justification based on the pursuit of legitimate aims — Respect of acquired rights and of the protection of legitimate expectations — Proportionality — None

(Council Directive 2000/78, Arts 2(1) and (2) and 6(1))
Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of age — National legislation under which inclusion of periods of study and service completed before the age of 18 for the purpose of determining remuneration is subject to an extension of the periods for advancement — Right to challenge discriminatory effects

(Council Directive 2000/78, Art. 2, 9 and 16)

Article 2(1) and (2)(a) and Article 6(1) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding national legislation which, with a view to ending age-based discrimination, takes into account periods of training and service prior to the age of 18 but which, at the same time, introduces — only for civil servants who suffered that discrimination — a three-year extension of the period required in order to progress from the first to the second incremental step in each job category and each salary group.

To the extent to which the three-year extension to the period required for advancement from the first to the second incremental step applies only to civil servants who completed periods of training and service before reaching the age of 18, such legislation involves a difference in treatment which is directly based on age within the meaning of Article 2(2)(a) of Directive 2000/78.

That difference in treatment cannot be justified only by the objectives of budgetary equilibrium or procedural economy. While budgetary considerations may underpin the chosen social policy of a Member State and influence the nature or extent of the measures that that Member State wishes to adopt, such considerations cannot in themselves constitute a legitimate aim within the meaning of Article 6(1) of Directive 2000/78.

In contrast, respect for the acquired rights and the protection of the legitimate expectations of civil servants favoured by the previous system with regard to their remuneration constitute legitimate employment-policy and labour-market objectives which can justify, for a transitional period, the maintenance of earlier pay and, consequently, the maintenance of a system that discriminates on the basis of age. Such legislation makes it possible to attain those objectives in so far as civil servants favoured by the previous system will not be subject to the retroactive extension of the period for advancement.

However, those objectives cannot justify a measure that maintains definitively, if only for certain persons, the age-based difference in treatment which the reform of a discriminatory system, of which such a measure forms part, is designed to eliminate. Such a measure, even if it is capable of ensuring the protection of acquired rights and legitimate expectations with regard to civil servants favoured by the previous system, is not appropriate for the purpose of establishing a non-discriminatory system for civil servants who were disadvantaged by that previous system.

(see paras 35, 41-45, operative part 1)
Articles 9 and 16 of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that a civil servant who has suffered age-based discrimination — resulting from the method by which the reference date taken into account for the calculation of his advancement was fixed — must be able to rely on Article 2 of that directive in order to challenge the discriminatory effects of the extension of the period for advancement, even though, at his request, that reference date has been revised.

If a civil servant disadvantaged by the previous system were unable to challenge the discriminatory effects of the extension of the period for advancement by reason of the fact that that new discrimination arises solely by reason of the fact that that civil servant requested and obtained the revision of his reference date, whereas civil servants favoured by the previous system decided not to submit such a request, he would not be in a position to enforce all the rights which he derives from the principle of equal treatment guaranteed by Directive 2000/78, a situation which would be contrary to Articles 9 and 16 of that directive.

(see paras 47, 50, 51, operative part 2)