Article 21 - Non-discrimination
Article 47 - Right to an effective remedy and to a fair trial
Article 51 - Field of application
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:
On those grounds, the Court (First Chamber) hereby rules:
1) This request for a preliminary ruling 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 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).
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28) In those circumstances, the Bundesverwaltungsgericht (Federal Administrative Court) decided to stay the proceedings and to refer the following questions to the Court 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 of 11 November 2014, Schmitzer (C‑530/13, EU:C:2014:2359) –– 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 Question 2 is answered in the affirmative: Does the principle of primacy of EU law, affirmed, inter alia, in the judgment of the Court of Justice of 22 November 2005, Mangold (C‑144/04, EU:C:2005:709) require that provisions applicable to currently employed civil servants at the time prior to transition, which have been retroactively repealed, must 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?’
29) By its first question, the referring court is asking, in essence, whether Articles 1, 2 and 6 of Directive 2000/78, read in conjunction with Article 21 of the Charter, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which entered into force retroactively and which, for the purposes of putting a stop to discrimination on grounds of age, provides for the transfer of currently employed civil servants to a new remuneration and advancement system under which the initial classification of those civil servants is determined on the basis of the last salary they received under the previous system.
50) It follows from all the foregoing that the answer to the first question is that Articles 1, 2 and 6 of Directive 2000/78, read in conjunction with Article 21 of the Charter, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which entered into force retroactively, and which, for the purpose of putting a stop to discrimination on grounds of age, provides for the transfer of currently employed civil servants to a new remuneration and advancement system under which the initial classification of those civil servants is determined on the basis of the last salary they received under the previous system.
56) In accordance with the power, recognised by the Court’s settled case-law and in particular by the judgment of 21 September 2017, Beshkov (C‑171/16, EU:C:2017:710, paragraph 33 and the case-law cited), it is appropriate to reformulate the second question as seeking, in essence, to establish whether Article 47 of the Charter and Article 9 of Directive 2000/78 must be interpreted as precluding national legislation which, in a situation such as that at issue in the main proceedings, reduces the scope of the review which national courts are entitled to conduct, by excluding questions concerning the basis of the ‘transition amount’ calculated according to the rules of the previous remuneration and advancement system.
57) In that connection, it should be borne in mind that it is settled case-law that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law and that the applicability of EU law entails applicability of the fundamental rights guaranteed by the Charter (see, to that effect, judgments of 30 April 2014, Pfleger, C‑390/12, EU:C:2014:281, paragraph 33 and the case-law cited, and of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 49).
58) In the present case, it is apparent from Paragraph 169c(2c) of the amended Law on the remuneration of civil servants that it implements, in Austrian law, Directive 2000/78, for the purposes of Article 51 of the Charter, with the effect that the Austrian legislature was required to respect the fundamental rights guaranteed in Article 47 thereof, and more specifically the right of individuals to enjoy effective judicial protection of the prerogatives which EU law confers on them (see, to that effect, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 49).
59) That said, it should be observed that, under the first paragraph of Article 47 of the Charter, everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article.
64) In those circumstances, if a civil servant who was disadvantaged by the previous remuneration and advancement system cannot challenge the discriminatory effects of the ‘transition amount’, he will not be in a position to enforce all the rights that he derives from the principle of equal treatment, which is also guaranteed by Directive 2000/78, in breach of Article 47 of the Charter. The fact that he can bring proceedings in respect of the new remuneration and advancement system in its entirety does not invalidate that finding.
66) In the light of the foregoing, the answer to the second question is that Article 47 of the Charter and Article 9 of Directive 2000/78 must be interpreted as precluding national legislation which, in a situation such as that at issue in the main proceedings, reduces the scope of the review which national courts are entitled to conduct, by excluding questions concerning the basis of the ‘transition amount’ calculated according to the rules of the previous remuneration and advancement system.
67) By its third question, the referring court is asking, in essence, whether the principle of the primacy of EU law must be interpreted as meaning that when national legislation, such as that at issue in the main proceedings, disregards the principle of non-discrimination on grounds of age and Article 47 of the Charter, it requires that the situation of currently employed civil servants who have been subjected to such discrimination on grounds of age be examined again, when the mechanism for the transfer to the new remuneration and advancement system is applied, and that those civil servants be transferred to that new system without discrimination.
81) Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
1. Articles 1, 2 and 6 of Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation, read in conjunction with Article 21 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which entered into force retroactively, and which, for the purpose of putting a stop to discrimination on grounds of age, provides for the transfer of currently employed civil servants to a new remuneration and advancement system under which the initial classification of those civil servants is determined on the basis of the last salary they received under the previous system.
2. Article 47 of the Charter of Fundamental Rights of the European Union and Article 9 of Directive 2000/78 must be interpreted as precluding national legislation which, in a situation such as that at issue in the main proceedings, reduces the scope of the review which national courts are entitled to conduct, by excluding questions concerning the basis of the ‘transition amount’ calculated according to the rules of the previous remuneration and advancement system.
3. In a situation where national provisions cannot be interpreted in a manner which is consistent with Directive 2000/78, the national court is obliged, within the scope of its powers, to guarantee the legal protection conferred on individuals by that directive and to guarantee that that protection is fully effective, by disapplying, if need be, any contrary provision of national law. EU law must be interpreted as meaning that where there has been a finding of discrimination which is contrary to EU law, and for as long as measures reinstating equal treatment have not been adopted, the reinstatement of equal treatment, in a case such as that at issue in the main proceedings, involves granting civil servants disadvantaged by the previous remuneration and advancement system the same benefits as those enjoyed by the civil servants treated more favourably by that system, both as regards the recognition of periods of service completed before the age of 18 and advancement in the pay scale and, accordingly, the award of financial compensation to those civil servants discriminated against in the sum of the difference between the amount of remuneration that the civil servant concerned ought to have received had he not been treated in a discriminatory manner and the remuneration which he in fact received.
