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CJEU Case C-396/17 / Opinion

Martin Leitner v Landespolizeidirektion Tirol.

Policy area:
Employment and social policy
Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Decision date:

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. 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.