FranklinWillemen/mapa_plus huggingface dataset:
Those circumstances include the fact that EU law was misinterpreted , without a question being referred to the Court for a preliminary ruling , and that the person concerned complained to the administrative body immediately after becoming aware of that decision of the Court . ( 53 ) 100 .
However , leaving aside the question of where exactly the ‘ exceptionality ’ threshold would lie , the common denominator to those few cases where such an obligation was imposed was naturally that the incompatibility alreadyexisted at the moment when the decision was taken at national level .
Thus , the original decision was already in breach of EU law . 101 .
By contrast , in the present case , at the time the relevant decisions were adopted ( both the disciplinary decision and the decision granting a pension to the Appellant ) Austria was not a Member State , and Directive 2000 / 78 had not yet been adopted .
Moreover , according to the Austrian Government , a view which the Appellant does not contradict , the disciplinary decision was compatible with national law when it was adopted in 1974 . 102 .
There are therefore no exceptional circumstances that would justify the reopening of final administrative decisions in this case , let alone anything that would justify a more general and far-reaching rule on temporal application of EU law aimed at achieving the same result . 5 .
Application to the present case 103 .
The main conclusions that can be drawn from the different lines of case-law outlined above are the following . 104 .
First , the Court ’ s case-law on temporal effects of new law and pension rights is very much focused on situations where the pension entitlement was decided after the new law came into force . 105 .
Second , the case-law on ongoing ( employment ) relationships and adjustment of pay grades and monthly salaries cannot be transposed to the payment of pensions , calculated and already paid out ( long ) before the new law came into force . 106 .
Third , there is no solid basis in the Court ’ s case-law for the far-reaching proposal that the ongoing effects on pension payments of administrative decisions , which have become definitive before entry into force of the new law , must be revisited , taking into account the way that the new law would have been applied .
Moreover , such a proposal conflicts with the Court ’ s well established case-law on res judicata . 107 .
I already sought to distinguish the present case and to explain why it falls outside of any of those categories in each of the relevant sections above .
In a nutshell , I consider that in the present case the compulsory retirement and fixing of the reduced pension rights had already become a ‘ definitive situation ’ within the meaning of the case-law cited above in point 46 before the transition period of Directive 2000 / 78 expired .
The ongoing payment of a pension to the Appellant cannot be considered as the ‘ future effects ’ of a situation that arose prior to that directive , within the meaning of the Court ’ s case-law , such that those effects would have to be precluded or modified . 108 .
The disciplinary decision was already unsuccessfully challenged in the 1970s .
The legal question of the Appellant ’ s status as a retired police officer and the reduction of his pension were settled by that time .
The Appellant has been drawing his pension since 1976 .
There is no new decision that was taken or that would have to be taken after expiry of the transposition deadline for Directive 2000 / 78 . 109 .
Moreover , all the relevant facts in the present case , which formed the basis of the disciplinary decision , occurred in the 1970s .
Thus , unlike the Römer case , there are no current facts relating to the Appellant ’ s ongoing personal situation that are subject to reassessment under Directive 2000 / 78 . 110 .
I do not consider that cases such as Brock and P . can serve as a basis for the general proposition that there is a right to review of pension payments , consisting in a retroactive application of new rules to a previously existing decision affecting the entitlement to and level of those payments .
Also , Brock and P . are in my view very different from the present case .
In both those cases the pre-existing administrative decision was taken applying a number of rather specific and objective conditions in relation to the entitlement to and level of the pension .
Subsequent changes to the law modified those conditions .
That contrasts with the present case , where what is being proposed is in fact a rerun of a disciplinary procedure from 40 years ago in the light of new rules on discrimination and a qualitative assessment of whether that decision would have changed and if so , how . 111 .
In his submissions , the Appellant insisted on the ‘ ongoing ’ nature of the discrimination in the form of reduced monthly payments .
However , it is clear from the discussion of the cases on actual ongoing legal relationships and the need for their gradual adaptation in the light of the new rules , such as Österreichischer Gewerkschaftsbund or Römer , that the mere receipt of monthly payments based on final decisions from 1975 and 1976 requires no fresh assessment of any relevant facts . 112 .
What is in fact requested in the present case is a fresh assessment of a final , underlying disciplinary decision , applying new standards of non-discrimination to determine the knock-on effects on monthly pension payments .
The true nature of what is being requested is perhaps best captured by the German wording of the final sentence of the first preliminary question submitted by the referring court , which refers to the adopting of a new type of ‘ gedachte ’ decision that , if it were adopted at the time when Directive 2000 / 78 was in force , would breach that directive .
‘ Gedachte ’ can indeed be translated as ‘ notional ’ , but its true meaning in the present context is rather ( entirely ) ‘ imaginary ’ . 113 .
In my view , in a case such as the present one , EU law clearly does not grant individuals a right to request the review , in the light of any new law , of any administrative decision taken in their regard during their lifetime and which has or might have had a negative impact on their pension ( or other benefits ) .
There is simply no basis in EU law for such a far-reaching proposition . 114 .
Finally , to give full credit to the arguments advanced by the Appellant , there is , partially intertwined but also partially independent from the ‘ technical ’ argument relating to the temporal application of new rules , a much deeper moral argument present in the submissions made by the Appellant .
If looked at separately , as indeed suggested by the Appellant at the hearing , that moral argument becomes largely independent of any revisiting of a disciplinary decision from 1975 .
What Austria would then be reproached for is not the failure to revisit the past , but the failure to actively and prospectively compensate for past wrongdoings , after 2003 , when Directive 2000 / 78 was already in force and judgments by the ECtHR were issued against Austria . ( 54 ) 115 .
In this regard , I would simply restate that I fail to see any such obligation arising as a matter of EU law .
Article 17 of Directive 2000 / 78 , which requires the Member States to adopt effective , proportionate and dissuasive sanctions , is itself logically tied to the temporal applicability of the same directive . 116 .
In addition , administrative decisions are adopted in contexts specific to their time .
The criminal , disciplinary and moral frameworks in Austria , as well as elsewhere in Europe , have shifted considerably since 1975 .
Thus , for example , in Austria , disciplinary sanctions will now only be imposed on police officers whose acts undermine public confidence in the police .
However , criminal convictions will lead to automatic dismissal , I understand without pension rights at all .
The age of consent in Austria is now 14 for homosexuals and heterosexuals alike .
However , there are also explicit exceptions for children under the age of 16 who are considered to be insufficiently mature . 117 .
In sum , morality is a moving target .
In addition , moral arguments are often a double-edged sword .
In factually complex cases , requiring the passing multiple moral judgments , such as in the present one , they may cut both ways .
Thus , apart from extreme situations of obvious and blatant disregard for basic values of humanity , which could be said to trigger the moral duty to remedy past wrongs irrespective of time , ( 55 ) societies and their laws ought to be allowed to gradually evolve , with the past remaining the past . 6 .
Conclusion on Question 1 118 .
In the light of the foregoing , I propose to answer the referring court ’ s first question as follows : Article 2 of Directive 2000 / 78 does not preclude the maintenance in effect of the legal position created by an administrative decision that has become final under national law , in the area of law governing disciplinary action in the civil service ( disciplinary decision ) , compulsorily retiring and reducing the pension benefits of a civil servant , where – that administrative decision was not yet subject to provisions of EU law , in particular the directive , at the time when it was adopted , but – a ( notional ) decision to the same effect would infringe the directive if it were adopted within the temporal scope of the directive .
Questions 2 and 3 119 .
In the light of the reply proposed to the referring court ’ s first question , there is no need to reply to the second and third questions .
Nonetheless , in the event that the Court should come to a different conclusion , I will briefly consider those questions below . 120 .
Were the Court to hold that the effects of the discriminatory disciplinary decision cannot be maintained , the question then becomes precisely what ‘ not maintaining those effects ’ entails in a case such as the present one . 121 .
Unless the answer to that question were to be detached from the decisions taken in 1970s , stating , similarly to what has just been discussed in relation to the active , prospective duty to compensate ( presumably with lump-sum payments ) , the national court would need to consider the content of the disciplinary decision to see whether it had been adopted in a way that was compatible with Directive 2000 / 78 , and the date from which that new imaginary decision would be applicable .
I refer to this below as the ‘ what if ? ’
approach . 122 .
In my view , the reconstruction of a 40 - year old decision and its effects is highly problematic .
However , the referring court is rather specific in questions 2 and 3 about particular ‘ plot lines ’ in such a work of legal fiction .
As a result , unless the Court simply states that ‘ effects cannot be maintained ’ and leaves it to the national court to decide how to identify and ‘ neutralise ’ those effects , the Court will inevitably become its co-author .
I set out below some considerations about how the story might play out . 1 .
Question 2 123 .
The disciplinary decision put the Appellant into early retirement and reduced his pension rights by 25% .
By its second question the national court asks whether , to remedy the discrimination inherent in the administrative decision , it is sufficient to set aside the 25% reduction in the pension or whether the pension should be calculated as if the Appellant had worked in the period since his compulsory retirement .
Is it sufficient to neutralise the future effects of the 25% reduction or is it also necessary to neutralise the future effects of the early compulsory retirement ?
124 .
In his submissions , the Appellant argues that the 25% reduction should be set aside in full and his pension rights calculated as if he had worked during the interim period in the police force .
In other words , to create the situation that would have existed if the disciplinary decision had not been adopted at all ( or no sanction had been imposed ) . 125 .
The Commission argues for a ‘ what if ? ’
approach only in relation to the 25% reduction , acknowledging that even without any homophobic bias , there may have been a reduction in the Appellant ’ s pension to sanction his behaviour .
By contrast , the Commission considers it inappropriate to take a ‘ what if ? ’
approach to the retirement itself .
The reduction in pension resulting from the early retirement is not in fact a ‘ future effect ’ of a situation that arose in the past and to which new rules must apply .
The legal effects of the retirement were , in the Commission ’ s view , exhausted when the employment relationship came to an end .
For that reason , the effects consisting of an absence of increase in pension rights , which resulted from early retirement , can be maintained . 126 .
I note the following observations . 127 .
If the disciplinary decision had , in 1975 , been adopted in a way that was compatible with the prohibition on discrimination on the grounds of sexual orientation introduced in 2000 , it is not clear whether the Appellant would have been forced into retirement at all .
Indeed , the ‘ incomparably milder ’ ( 56 ) nature of the sanction referred to by the referring court could also be understood as suggesting that the Appellant would not have been forced into retirement . 128 .
If that is so , then in accordance with the answer to the first question , the ‘ future effects of early compulsory retirement ’ could not be maintained .
Those effects surely include the fact that the Appellant no longer worked for the police force , no longer accrued pension benefits and did not have those ‘ lost years ’ taken into account in calculating his pension .
In this sense , the effects of that sanction are indeed still ‘ ongoing ’ .
Neutralising the future effects of early compulsory retirement must therefore take those lost years into account ( somehow ) . 129 .
The Commission argues against that conclusion .
It considers that the effects which lead to no increase in pension rights , which resulted from the early retirement , can be maintained . 130 .
I admit that I find the Commission ’ s reasoning on that point impossible to reconcile with its position that the 25% reduction imposed by the disciplinary decision does constitute ‘ future effects ’ in the above sense .
Both sanctions — forced retirement and the 25% reduction — were imposed based on the same set of facts and by the same disciplinary decision .
In both cases the question of principleis what would have been the effects of the disciplinary decision had it been adopted in a way that is compatible with Directive 2000 / 78 . 131 .
Indeed , if the distinction drawn by the Commission between different effects were to be adopted , it would imply that the Appellant could , in fact , have been dismissed from his job and would have had no recourse to any potential challenge .
Unlike retirement , outright dismissal would in principle have brought an end to the legal relationship with no ongoing effects in the form of pension payments . 132 .
In the light of the above , if the Court were to conclude that the effects of the discriminatory disciplinary decision cannot be maintained and the ‘ what if ? ’
approach is adopted , that approach should contemplate an alternative history in which the Appellant does not retire as well as one where the 25% reduction in the Appellant ’ s pension is not ( fully ) applied . 133 .
I note that such a conclusion would obviously raise a series of further tricky questions .
In order to neutralise the ‘ future effects ’ of compulsory retirement in 1976 , should it be assumed that the Appellant worked throughout the interim years since 1976 , or during all the years since expiry of the deadline for transposition of Directive 2000 / 78 ?
Should any corresponding increase in pension be offset by pension income from other sources of work by the Appellant in those years ?
( 57 ) Should any corresponding increase in pension be offset by pension income from the police service which has already been received by the Appellant from the date of his compulsory retirement ( which he would obviously not have received if hehad continued to work ) ?
( 58 ) 134 .
Finally , regarding the 25% reduction specifically , the referring court ’ s second question impliedly takes as a premiss that that reduction is entirely a consequence of the discriminatory nature of the decision . 135 .
However , ‘ what if ? ’
should really mean ‘ what if ? ’ .
Thus , the possibility must be envisaged that , even in the absence of a criminal conviction , the Appellant would still be sanctioned in the disciplinary context based on the same set of facts , ( 59 ) and the Appellant ’ s pension would still have been reduced , but by less than 25% .
That is indeed the approach taken by the Commission in its written pleadings .
Thus , if in the absence of discrimination the Appellant would still have had his pension reduced but by , for example 5% or 10% , then the effects of that 5% or 10% reduction should remain . 136 .
Thus , were the ‘ what if ? ’
approach to be embraced in relation to the 25% reduction , I agree with the Commission that the fiction must be taken to its logical conclusion .
Once again , precisely how different the disciplinary decision would have been if it had been adopted in a non-discriminatory manner would be a ( indeed rather difficult ) question for the national court to deal with . 2 .
Question 3 137 .
By its third question , the referring court asks if the answer to the second question depends on whether the person actively sought employment in the federal civil service before reaching retirement age . 138 .
I must admit that I am puzzled by the relevance of such a question in view of the facts in the main proceedings .
But since we are already engaging in ‘ what if ? ’
scenarios , it is rather difficult to state that such a question is hypothetical . 139 .
The facts of the case are silent on the issue of whether or not the Appellant ever sought ( re ) employment in the federal civil service .
It is perhaps reasonable to assume that if a person had been dismissed from that service in circumstances such as those in the main proceedings , trying to rejoin the same service would be rather futile ( if legally possible to begin with ) .
If that is indeed the case and the Appellant would not have later sought reemployment in the federal civil service , what conclusions can be drawn from that fact ?
Could the Appellant be reproached for not having done so ?
Could he then be put at a potential disadvantage as a result ?
140 .
However , for what it is worth , as noted above in point 133 , to the extent the effects of early compulsory retirement are to be neutralised , that raises a series of questions about how to deal with the interim period .
In constructing its alternative history , it should in my view be left to the national court to determine which specific details to take into account , in order to find a balance between , on the one hand , completely ignoring those interim years and , on the other , fully taking them into account as ifthe Appellant had worked in the public sector in that time .
Questions 4 and 5 141 .
In the light of the proposed response to the referring court ’ s first question , again there is no need to reply to the fourth and fifth questions .
Nonetheless , in the event that the Court should come to a different conclusion , I add some suggestions . 142 .
By its fourth and fifth questions , the referring court asks from what moment in time an eventual ( partial ) setting aside of the 25% reduction should take effect .
Those questions are limited to the moment in time from which the effects of the 25% reduction must be neutralised .
They do not cover the effects of the early compulsory retirement .
However , as stated above in point 133 , I consider that a different approach to the future effects of the 25% reduction and the future effects of the compulsory retirement raises problems of inconsistency . 143 .
In my view , the answer to that question follows from the case-law summarised above in point 44 et seq .
It is hoped that the application of Directive 2000 / 78 would still be — notwithstanding the potentially far-reaching approach to the elimination of future effects discussed above — subject to the principle of non-retroactivity .
Therefore , whatever the answer to the referring court ’ s first question , it can in any case be used as a basis for arguing that the effects of the 25% reduction must be neutralised from the expiry of the directive ’ s transposition deadline , and not any earlier .
Discrimination on the grounds of sex 1 .
Scope of the referring court ’ s questions 144 .
Finally , in its written submissions , the Appellant argued that the sanction imposed by the disciplinary decision ( also ) amounted to discrimination on the grounds of sex , contrary to Article 157 TFEU ( previously Article 119 EEC , and then Article 141 EC ) .
According to the Appellant , that provision , which first came into force in 1979 , can therefore be used to preclude the future effects of the disciplinary decision in a way similar to that envisaged in the national court ’ s first question in relation to Directive 2000 / 78 .
However , it would do so from a much earlier date . 145 .
I would make the following observations in that regard . 146 .
The national court does not refer to Article 157 TFEU ( or its predecessors ) .
Indeed , the Appellant is the only party to raise the issue in written submissions .
It might be argued that addressing the possible application of Article 157 TFEU would prove useful for the national court .
However , in my view the Court should not do so , in particular for the following reasons . 147 .
First , there is a complete lack of reference to that provision in either the referring court ’ s questions or the order for reference more generally .
Had the national court considered it to be relevant , it would in my view at least have mentioned it .
There may be multiple reasons for such an omission and it would be wrong to assume that the lack of reference is an ‘ oversight ’ .
The question here is not whether the Court should point out the details and relevance of an obscure piece of technical legislation that might have been overlooked .
Article 157 TFEU is an important Treaty provision .
Rather , since arguments on Article 157 TFEU are in fact central to the Appellant ’ s written submissions , it is equally plausible that the Appellant proposed to the national court that questions should be put to this Court on that provision , but that that proposal was rejected . 148 .
Second , Article 94 of the Rules of Procedure of the Court of Justice requires the preliminary reference to include , inter alia , relevant facts and national law and the reasons that led the national court to put the specific questions to the Court .
In the present case , the national court has drafted the order for reference without mentioning Article 157 TFEU ( or its predecessors ) , nor indicating the potentially relevant facts or national law relating to that provision .
In such circumstances , it would , in my view , be inconsistent with the case-law ( 60 ) on Article 94 of the Rules of Procedure for the Court to ignore those omissions and , at the behest of one of the parties , proactively provide guidance on a question that has not been asked . 149 .
Nonetheless , should the Court choose to address the arguments raised by the Appellant in relation to Article 157 TFEU , I set out some brief observations in the following section . 2 .
Article 157 TFEU 150 .
I explained in my proposed reply to Question 1 why Directive 2000 / 78 does not preclude the maintenance of the effects of the disciplinary decision .
That decision was outside the temporal scope of the directive .
The directive cannot be used to reopen that decision to neutralise some of its effects .
Those arguments apply mutatis mutandis to Article 157 TFEU . 151 .
To the extent the Court comes to a different conclusion , it would be for the national court to determine the potential existence of such discrimination .