Key facts of the case:
Reference for a preliminary ruling — Social policy — Prohibition of all discrimination on grounds of age — Directive 2000/78/EC — Exclusion of professional experience acquired before the age of 18 — New system of remuneration and advancement — Maintaining a difference in treatment — Right to an effective remedy — Article 47 of the Charter of Fundamental Rights of the European Union — Justifications.
Outcome of the case:
In the light of the foregoing considerations, I propose that the Court answer the questions for a preliminary ruling referred by the Bundesverwaltungsgericht (Federal Administrative Court, Austria) as follows:
1) The request for a preliminary ruling made by the Bundesverwaltungsgericht (Federal Administrative Court, Austria) concerns the interpretation of Articles 21 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Articles 1, 2, 6, 9, 16 and 17 of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. ( 2 )
3) In essence, the referring court asks the Court, first of all, whether the procedures whereby civil servants already in service are transferred from the old remuneration and advancement regime to that new regime lead to the maintenance of discrimination on the ground of age which is prohibited by European Union law, in particular by reference to Articles 2 and 6 of Directive 2000/78 in conjunction with Article 21 of the Charter. I consider that that is the case, for the reasons which I shall set out in this Opinion.
4) Next, referring to those provisions and also to Article 47 of the Charter, the referring court has doubts about the compatibility with EU law of the national legislation that is being challenged, which in its view eliminates the discrimination concerned only in a declaratory fashion, and not in a meaningful way, and does not allow a right to an effective remedy. I consider that those considerations should have no repercussions with regard to that dispute.
5) Last, the referring court seeks to ascertain whether EU law, and more specifically Article 17 of Directive 2000/78 and Article 47 of the Charter, preclude the legislation concerned. If so, it asks whether the principle of primacy of EU law requires that the provisions of the old legislation, which were repealed retroactively, nonetheless continue to be applied in order to remedy the defects in the new legislation. I am of the view that a nuanced answer should be given to those two questions, based rather on Article 16 of that directive.
29) In that context, by order of 30 June 2017, received at the Court on 3 July 2017, the Bundesverwaltungsgericht (Federal Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is EU law, in particular Articles 1, 2 and 6 of Directive 2000/78 …, in conjunction with Article 21 of the Charter …, to be interpreted as precluding national legislation that, for the purpose of eliminating discrimination against currently employed civil servants, establishes a transitional rule under which, on the basis of a “transition amount”, which is indeed calculated in money, but nevertheless corresponds to a certain grading that can be specifically allocated, the reclassification is effected from the previous biennial system to a new biennial system (that in and of itself is non-discriminatory for newly hired civil servants), such that age discrimination against currently employed civil servants still continues?
(2) Is EU law, in particular Article 17 of Directive 2000/78 and Article 47 of the Charter …, to be interpreted as precluding national legislation that prevents currently employed civil servants from having –– in accordance with the interpretation of Articles 9 and 16 of [that directive] in the judgment in Schmitzer ( 15 ) –– their remuneration status determined, in reliance on Article 2 of Directive 2000/78, as at the time prior to transition to the new system, in that it declares that the corresponding legal bases are no longer applicable retroactively to the date on which its historical original law entered into force and, in particular, that previous service periods completed before the age of 18 may not be accredited?
(3) If the answer to Question 2 is in the affirmative: does the principle of primacy of EU law, affirmed, inter alia, in the judgment [in Mangold ( 16 )] require that provisions applicable to currently employed civil servants at the time prior to transition, which have been retroactively repealed, continue to be applied so that those civil servants can be retroactively classified in the old system in a non-discriminatory manner and are thus reclassified in the new remuneration system in a non-discriminatory manner?
(4) Is EU law, in particular Articles 1, 2 and 6 of Directive 2000/78, in conjunction with Articles 21 and 47 of the Charter …, to be interpreted as precluding national legislation that eliminates existing age discrimination (with respect to the accreditation of previous service periods completed before the age of 18) in a merely declaratory manner by specifying that the periods actually completed under conditions of discrimination are retroactively to be considered no longer discriminatory even though discrimination in fact still continues?’
37) The referring court wonders, first of all, about the compatibility with EU law of the procedures whereby the transition of civil servants from the old remuneration and advancement regime to the new regime is carried out, with regard, more particularly, to the ‘transition amount’ process chosen and, moreover, to the purely declaratory nature of the elimination of discrimination (Section B). Next, it asks whether it is contrary to EU law, and in particular to Article 17 of Directive 2000/78 and Article 47 of the Charter, that civil servants were unable to rely on that directive in order to determine the ‘transfer amount’, and, if so, whether the principle of the primacy of EU law requires that the repealed regime be applied in order to ensure a non-discriminatory transition to the new system (Section C).
39) By its first question, the referring court asks, in essence, whether EU law, and in particular Articles 1, 2 and 6 of Directive 2000/78 in conjunction with Article 21 of the Charter, must be interpreted as precluding national legislation under which a discriminatory remuneration regime is replaced by a new regime, when the transition to the new regime of all currently employed civil servants ( 26 ) is carried out in such a way that the initial classification in the new regime is made by reference to a salary paid for a given month that was calculated in accordance with the old regime. ( 27 ) I observe at the outset that, by the words used for the purposes of its question, ( 28 ) the referring court explicitly indicates that it considers a priori that the earlier discrimination is perpetuated by the legislation at issue. ( 29 )
41) First of all, as regards the provisions referred to in the present question for a preliminary ruling, I observe that the principle of non-discrimination on the ground of age is enshrined in Article 21 of the Charter and at the same time given material form in Directive 2000/78, but that the question should be examined from the aspect of that directive, in the context of a dispute such as that in the main proceedings, since the national measures at issue fall within the scope of that directive. ( 31 ) Furthermore, since neither the object of Directive 2000/78 nor the factors of discrimination which it prohibits, as defined in Article 1, are directly explored in the present case, it does not seem necessary in my view that the Court should interpret that provision.
63) By its fourth question, the referring court asks the Court to rule on whether Articles 1, 2 and 6 of Directive 2000/78, in conjunction with Article 21 of the Charter, provisions which are all already covered in the first question, and in conjunction with Article 47 of the Charter, a provision also covered elsewhere, ( 60 ) preclude peremptory statements by the national legislature to the effect that the reform complained of would properly put an end to the discrimination caused by the previously applicable regime being taken into account. It is apparent from the grounds of the order for reference that Article 47 is mentioned so that the Court may determine, in addition, whether the right to effective judicial protection enshrined in that provision was breached by the legislature when that reform was adopted.
64) Let me state at the outset that I shall focus here on the interpretation of Article 47 of the Charter, having regard to the considerations developed above ( 61 ) with respect to the other provisions referred to in this question, for the purposes of an application of those provisions in conjunction with Article 47.
68) I essentially share their viewpoint, it being borne in mind that it is the Court’s task, in the preliminary reference procedure, to provide all the guidance as to interpretation to enable the referring court to determine for itself whether national legislation is compatible with the provisions of EU law, including those of the Charter, ( 63 ) notwithstanding any declarations by the national legislature concerning that compatibility.
69) As regards the possible incompatibility with Article 47 of the Charter, ( 64 ) the referring court states that, under the new regime for the remuneration and advancement of civil servants, the ‘transition amount’, fixed on the basis of the old regime, is amenable to only limited review. ( 65 ) It wonders whether those national provisions render ineffective any action based on an incorrect classification that turns out not to be attributable to a mere data inputting error. ( 66 )
70) Mr Leitner claims that Article 47 of the Charter prohibits provisions, such as those of the reform at issue, which provide that the old remuneration and advancement system, which was found to be discriminatory, can no longer be applied in all procedures, both current and future. ( 67 ) The Commission does not express a view on this point. The Austrian Government, on the other hand, maintains that such national provisions satisfy the requirements of Article 47. I also share that view, for the following reasons.
71) First of all, I consider that it is indisputable that the present case concerns a situation in which a Member State has implemented EU law, within the meaning of Article 51(1) of the Charter, and that the federal legislature was therefore required to respect the fundamental rights guaranteed in Article 47 of the Charter, and more specifically the right of individuals to enjoy effective judicial protection of the prerogatives which EU law confers on them. ( 68 ) I note that such protection, moreover, is also expressly provided for in Directive 2000/78, ( 69 ) the transposition of which was explicitly mentioned in the terms of the legislation at issue here. ( 70 )
72) In addition, it should be borne in mind that each Member State has a certain autonomy in that regard, which allows it to define the procedural rules of judicial actions designed to ensure the protection of the rights which individuals derive from EU law, provided that those rules observe the two limits established in the Court’s consistent case-law, namely the principle of equivalence and the principle of effectiveness. ( 71 ) As has already been made clear, the requirements arising from Article 47 of the Charter which have been identified by the Court are both limited and dependent on multiple factors and, in particular, it appears that the right to an effective remedy does not mean that the competent national courts are necessarily in a position, in all circumstances, to vary contested decisions as regards all the factors on which they are based. ( 72 )
73) Furthermore, owing to the links between the first paragraph of Article 47 of the Charter and Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, ( 73 ) it is appropriate to take into account the case-law of the European Court of Human Rights on Article 13 of that Convention. ( 74 ). It is apparent from that case-law that the right to an effective remedy before a tribunal must enable those concerned to rely on the rights and freedoms enshrined in that Convention, it being understood that that right places an obligation on States, the scope of which varies depending on the nature of the applicant’s complaint, and the effectiveness of the remedy does not depend on the certainty of a favourable outcome for the applicant. ( 75 )
75) However, as the Austrian Government observes, all those affected by the reform complained of — namely the civil servants already in service, whether they were treated favourably or unfavourably by the old regime — have remedies that allow them to secure a review of the lawfulness of the system under which they are transferred to the new remuneration and advancement regime. ( 79 ) That judicial review of the validity of the rules in question may be carried out, in particular, by reference to the requirements of EU law, and any incompatibility of the reform with those requirements can thus be identified. The judicial action brought in the main proceedings, which gave rise to the present request for a preliminary ruling, also reveals the existence and the effectiveness of those remedies. The persons concerned are therefore able to bring proceedings before the Austrian courts to enforce the rights which they derive from EU law, in conditions which in my view are compatible with the abovementioned content of the fundamental right to an effective remedy, within the meaning of Article 47 of the Charter, and, more specifically, make it possible to ensure compliance with the obligations arising from Directive 2000/78.
76) Consequently, I propose that the answer to the fourth question should be that Article 47 of the Charter must be interpreted as not precluding national provisions such as those referred to in that question.
78) The second question asks the Court to determine, principally, whether ‘Article 17 of Directive 2000/78 and Article 47 of the Charter’ ( 80 ) must be interpreted as precluding legislation such as that at issue in the main proceedings.
81) As regards the interpretation of Article 47 of the Charter requested here, I refer to the reasoning which I devoted to that issue in the context of the answer to the fourth question, ( 82 ) which also refers to Article 47 but is based on what in my view are clearer and more appropriate considerations than those relating to the present question, since the focal point of the latter question is the provisions of Directive 2000/78 referred to above.
99) In the light of the foregoing considerations, I propose that the Court answer the questions for a preliminary ruling referred by the Bundesverwaltungsgericht (Federal Administrative Court, Austria) as follows:
(1) Articles 2 and 6 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding national legislation which, for the purposes of taking periods of activity before the age of 18 into account, replaces a remuneration system that was found to be discriminatory on the ground of age by a new remuneration system, but provides that the transition to the new system of all the persons already in service is to be carried out by determining their initial classification in the new system on the basis of a salary paid for a specific month and calculated in accordance with the old system, so that the discrimination on the ground of age is maintained in terms of its financial effects.
(2) Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding national legislation which limits the substantive review which the competent national courts are able to carry out with regard to the decisions challenged before them but allows them to review the legality of those decisions and, in that context, to review the compatibility of that legislation with European Union law.
(3) Article 16 of Directive 2000/78 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, where a system which eliminates discrimination on the ground of age in a manner consistent with the requirements of that directive has not yet been adopted, the reinstatement of equal treatment entails granting to those treated unfavourably by the old regime the same advantages as those enjoyed by the persons treated favourably by that regime, as regards not only the taking into account of periods of service completed before the age of 18, but also advancement in the remunerations scale.