Article 21 - Non-discrimination
Key facts of the case:
Reference for a preliminary ruling — Social policy — Directive 2000/78 — Equal treatment in employment and occupation — Discrimination on grounds of age — Exclusion of practical experience acquired before the age of 18 — Reform of the system of remuneration for contractual employees of the Austrian Federal railways — Transitional arrangements — Perpetuation of the difference in treatment.
Outcome of the case:
On the basis of all of the foregoing considerations, I suggest that the Court declare the second question referred inadmissible and answer the first question to the effect that Articles 2 and 6(1) 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, such as that at issue in the main proceedings, which, for the purpose of abolishing the discrimination on grounds of age identified by the Court in two successive judgments, provides for contractual employees in the public service to be regraded under a new remuneration scheme that is based on non-discriminatory criteria for the accreditation of previous periods of activity, but which, in applying a rule designed to protect the acquired rights of the regraded employees by freezing the pay they received at a certain date prior to the entry into force of the legislation, makes that rate of pay contingent on the application of the discriminatory accreditation criteria that existed under the previous accreditation system.
24) It is against that background that, by decision of 2 September 2016, the Oberlandesgericht Innsbruck (Higher Regional Court, Innsbruck) stayed the proceedings before it and referred the following questions to the Court for a preliminary ruling:
‘(1) Is EU law as it currently stands, in particular the general principle in EU law of equal treatment, the general principle of the prohibition of discrimination on grounds of age within the meaning of Article 6(3) TEU and Article 21 of the Charter of Fundamental Rights and the prohibition of discrimination in connection with freedom of movement for workers under Article 45 TFEU and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, to be interpreted as precluding a national rule, such as that at issue in the main proceedings, which, for the removal of discrimination on grounds of age identified by the Court of Justice of the European Union in the judgment [of 28 January 2015, ÖBB Personenverkehr (C‑417/13, EU:C:2015:38)] (namely the failure to take into account previous periods of service completed before the age of 18 for ÖBB (Austrian Federal Railways) employees takes into account a small number of ÖBB employees discriminated against under the old rules with a period of service completed before the age of 18 (but only those employees who actually worked for the ÖBB or for similar public railway infrastructure undertakings or railway undertakings in the EU, in the EEA and in those countries connected with the EU by association or free movement arrangements), but does not take into account, for the vast majority of ÖBB employees originally discriminated against, all other periods of service occurring before the age of 18, including in particular those not taken into account which enabled the ÖBB employees concerned better to perform their duties, such as, for example, previous periods of service with private and other public transport companies or infrastructure companies by which the infrastructure used by the employer (rolling stock, rail construction, line construction, electrical and electronic equipment, signal boxes, station construction and the like) is produced, distributed or maintained, or similar undertakings, and therefore in reality ultimately maintains a difference in treatment based on age for the vast majority of the ÖBB employees discriminated against under the old rules?
(2) Does the conduct of a Member State, which is the sole shareholder of a rail transport undertaking and the de facto employer of persons employed by that undertaking, where the rights of those employees founded on EU law to additional pay on account of discrimination, inter alia, on the basis of age, which has been recognised by several judgments of the Court of Justice of the European Union (David Hütter, Siegfried Pohl, Gotthard Starjakob), as well as by a number of national court rulings, including a decision of the Oberster Gerichtshof (Supreme Court, Austria) (Case 8 ObA 11/15y) and which the Member State sought to remove for purely fiscal reasons through retroactive changes to the law in the years 2011 and 2015, meet the conditions recognised in the case-law of the Court of Justice for that Member State to incur liability under EU law, in particular the condition that there be a sufficiently serious breach of EU law, in particular of Article 2(1), read in conjunction with Article 1, of Directive 2000/78/EC as interpreted in a number of judgments of the Court of Justice [judgments of 18 June 2009, Hütter (C‑88/08, EU:C:2009:381) of 16 January 2014, Pohl (C‑429/12, EU:C:2014:12) and of 28 January 2015, ÖBB Personenverkehr (C‑417/13, EU:C:2015:38)]?