FranklinWillemen/mapa_plus huggingface dataset:
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OPINION OF ADVOCATE GENERAL BOBEK delivered on 5 September 2018 ( 1 ) Case C ‑ 258 / 17 Versicherungsanstalt öffentlich Bediensteter BVA ( Request for a preliminary ruling from the Verwaltungsgerichtshof ( Higher Administrative Court , Austria ) ) ( Reference for a preliminary ruling — Social policy — Equal treatment — Prohibition on discrimination on grounds of sexual orientation — Homosexual relations with minors — Disciplinary sanctions taken against civil servant employed by the police following criminal conviction — Maintenance of the effects of the disciplinary decision ) I .
Introduction 1 .
E.B .
( ‘ the Appellant ’ ) was born in 1942 .
In 1974 , while employed in the Austrian police force , he was criminally convicted for attempted homosexual acts with persons who were 14 and 15 years old .
In 1975 , the Appellant received a disciplinary sanction in relation to the same acts , consisting in compulsory early retirement from the police force with a 25% reduction to his pension entitlement . 2 .
At that time , Austrian law provided for two separate criminal offences : ‘ defilement ’ ( sexual acts with persons under the age of 14 ) ; and ‘ indecency ’ ( male homosexual acts with persons under the age of 18 ) .
In 2002 , the latter offence was held to amount to unjustified discrimination on the grounds of sexual orientation .
It was repealed . 3 .
In the main action , the Appellant essentially challenges the fact that he continues to receive a reduced pension , on the basis that the criminal offence and disciplinary sanction imposed on him were discriminatory , on the grounds of sexual orientation . 4 .
It is against such legal and factual background that the Verwaltungsgerichtshof ( Higher Administrative Court , Austria ) asks whether the reduction to the Appellant ’ s pension entitlement is compatible with the prohibition on discrimination on the grounds of sexual orientation , under Article 2 of Directive 2000 / 78 / EC , ( 2 ) even if the original disciplinary decision became final before that directive entered into force .
The referring court also asks a series of questions on how and from what point in time the discrimination would potentially have to be remedied .
EU law 5 .
Article 1 of Directive 2000 / 78 mentions , inter alia , sexual orientation as an unacceptable ground for discrimination . 6 .
Article 2 ( 1 ) and ( 2 ) ( a ) , Article 3 ( 1 ) ( c ) and Article 17 of Directive 2000 / 78 read as follows : ‘ Article 2 Concept of discrimination 1 .
For the purposes of this Directive , the “ principle of equal treatment ” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1 . 2 .
For the purposes of paragraph 1 : ( a ) direct discrimination shall be taken to occur where one person is treated less favourably than another is , has been or would be treated in a comparable situation , on any of the grounds referred to in Article 1 ; Article 3 Scope 1 .
Within the limits of the areas of competence conferred on the Community , this Directive shall apply to all persons , as regards both the public and private sectors , including public bodies , in relation to : ( c ) employment and working conditions , including dismissals and pay ; Article 17 Sanctions Member States shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied .
The sanctions , which may comprise the payment of compensation to the victim , must be effective , proportionate and dissuasive .
Member States shall notify those provisions to the Commission by 2 December 2003 at the latest and shall notify it without delay of any subsequent amendment affecting them . ’ 7 .
The first sentence of Article 18 requires that the directive , in principle , be transposed by 2 December 2003 .
Criminal law 8 .
As at 25 February 1974 , Paragraphs 128 and 129 of the Strafgesetz ( Criminal Law ) ( ‘ the StG ’ ) were applicable in the version brought into force by the Bundesgesetz published in BGBl .
No 273 / 1971 ( ‘ 1971 Federal Law ’ ) .
They provided as follows : ‘ Defilement Paragraph 128 Any person who , … for the purposes of sexual gratification , sexually abuses a boy or girl under the age of 14 in a manner other than that referred to in Paragraph 127 commits the offence of defilement , which shall be punishable by a custodial sentence of 1 to 5 years , of up to 10 years in the event of serious aggravating circumstances , and of up to 20 years in the event of any of the consequences mentioned in Paragraph 126 .
Offence of indecency Paragraph 129 The following forms of indecency shall also be punishable as a criminal offence : I .
Same-sex indecency perpetrated by any person of the male sex who has reached the age of eighteen with a person who has not yet reached the age of eighteen . ’ 9 .
The aforementioned provisions thus provided for different ages of consent for male homosexual relations ( 18 years ) and for heterosexual or lesbian relations ( 14 years ) respectively . 10 .
The same was true of the legal position under Paragraphs 207 and 209 of the Strafgesetzbuch ( Criminal Code ) ( ‘ the StGB ’ ) , which entered into force on 1 January 1975 . 11 .
By judgment of 21 June 2002 , ( 3 ) the Verfassungsgerichtshof ( Constitutional Court , Austria ) , declared Paragraph 209 of the StGB ( corresponding to Paragraph 129 I of the StG ) to be unconstitutional .
It was repealed , with effect from 28 February 2003 . 12 .
By the version of the StGB brought into force by the Bundesgesetz published in BGBl I No 134 / 2002 ( ‘ Federal Law No 134 / 2002 ’ ) , effective from 13 August 2002 , the Austrian legislature repealed Paragraph 209 of the StGB before the repeal ordered by the Verfassungsgerichtshof ( Constitutional Court ) became effective . 13 .
Austria was the subject of adverse judgments of the European Court of Human Rights ( ECtHR ) relating to the application of Paragraph 209 of the StGB .
In L . and V . v .
Austria , the ECtHR took the view , in essence , that Paragraph 209 of the StGB violated Articles 8 and 14 of the European Convention on Human Rights ( ‘ ECHR ’ ) because the legislature had failed to provide adequate justification for the different ages of consent applicable to male homosexual relations with adults , on the one hand , and heterosexual or lesbian relations with adults , on the other . ( 4 ) 2 .
Civil servant law 14 .
Under Paragraph 13 ( 1 ) of the Beamten-Dienstrechtsgesetz 1979 ( 1979 Law on the conditions of service of civil servants ) ( ‘ BDG 1979 ’ ) , in the version of those paragraphs brought into force by the Bundesgesetz published in BGBl .
I No 119 / 2002 ( ‘ Federal Law No 119 / 2002 ’ ) , it was the case until 30 December 2016 that civil servants were to take retirement at the end of their 65th year . 15 .
For the Appellant , who was born in 1942 , this — had it not been for the disciplinary decision taken against him — would have been 1 January 2008 .
At that time , the main provisions applicable to the assessment of pensions were contained in the Pensionsgesetz ( PG ) 1965 ( 1965 Law on pensions ) in the version brought into force by the Bundesgesetz published in BGBl .
I No 53 / 2007 ( ‘ 2007 Federal Law ’ ) .
Those provisions laid down rules on how pensions should be calculated including the taking into account of the date of entry into service and length of service . 3 .
Police Service Regulation 16 .
The disciplinary decision against the Appellant of 10 June 1975 was taken on the basis of the then applicable Dienstpragmatik ( Police Service Regulations , RGBl .
No 15 / 1914 ) ( ‘ the DP ’ ) .
Article 24 and Article 87 of the DP stated as follows : ‘ Behaviour Article 24 ( 1 ) A civil servant must , within and outside of his service , maintain the reputation of the profession , behave at all times in accordance with the rules of conduct requirements and avoid anything likely to undermine the esteem and confidence that his position requires .
Disciplinary sanctions Article 87 Civil servants who fail to comply with their professional and official obligations shall be subject , without prejudice to their criminal responsibility , to administrative or disciplinary sanctions , depending on whether the breach of duty constitutes a mere breach of the administrative rules or that , in view of the prejudice or infringement of the interests of the State , the nature or seriousness of the breach , recidivism or other aggravating circumstances , this breach is considered a breach of service obligations . ’
Facts , procedure and questions referred 17 .
The Appellant , who was born on 1 January 1942 , is retired . 18 .
By judgment of 10 September 1974 , the Appellant , at that time a serving police officer , was convicted of an attempted offence of same-sex indecency under Paragraph 129 I of the StG .
He was sentenced to three months ’ custodial sentence suspended for three years .
An appeal brought by the Appellant against that first-instance decision was unsuccessful . 19 .
By decision of 10 June 1975 of the Disciplinary Committee of the Bundespolizeidirektion Wien ( Federal Police Headquarters , Vienna , Austria ) ( ‘ BPD-Wien ’ ) , the Appellant was found guilty of : ‘ having acted in breach of his professional duties ( Paragraph 24 ( 1 ) ) of the Dienstpragmatik ( Police Service Regulations , “ DP ” ) inasmuch as , on the evening of 25 February 1974 , while off-duty , he did , in Vienna ’ s Prater park , ask the 15 - year-old W and the 14 - year-old H to perform on him an act of manual sexual release , for which he was convicted of an attempted act of same-sex indecency with young persons within the meaning of Paragraphs 8 and 129 I of the StG .
He thereby committed a disciplinary offence ( Paragraph 87 of the DP ) .
This Committee therefore imposes on him the disciplinary penalty of compulsory permanent retirement on a reduced pension , the deduction from the standard pension entitlement being set at 25% ( Paragraph 93 ( 1 ) ( d ) in conjunction with Paragraph 97 ( 1 ) of the DP ) . ’ 20 .
An appeal by the Appellant was dismissed by decision of 24 March 1976 .
Accordingly , the Appellant was forced to retire with effect from 1 April 1976 . 21 .
By decision of 17 May 1976 , the pension to which the Appellant was entitled was calculated on the basis of his retirement taking effect from 1 April 1976 , and taking into account the 25% deduction imposed by the disciplinary authority . 22 .
It was confirmed at the oral hearing that the Appellant began to receive a reduced pension from that date . 23 .
As outlined above in points 11 and 12 , by decision of the Verfassungsgerichtshof ( Constitutional Court ) of 21 June 2002 , Paragraph 209 of the StGB ( corresponding to Paragraph 129 I of the StG ) was held to be unconstitutional and was repealed by the Austrian legislature later that year . 24 .
By letter of 2 June 2008 , the Appellant submitted to the disciplinary authority , inter alia , applications for the disciplinary decision of 10 June 1975 to be annulled , the disciplinary proceedings against him to be discontinued and , in the alternative , the legal effects of that disciplinary decision to be declared to be extinguished as from 21 June 2002 .
He also sought the payment of salary for specified periods of service and , in the alternative , claimed that the reduction in his pension should not have occurred from 21 June 2002 onwards . 25 .
Those applications were dismissed . 26 .
On 11 February 2009 , the Appellant submitted to the civil service and pensions authority an application for the assessment and back payment of salary and higher pension benefits .
He expressed the view , primarily , that , in order to avoid ( ongoing ) discrimination , he should be treated , from the point of view of pay and pension entitlement , as if he had been in active employment until reaching statutory retirement age .
In the alternative , he argued that he was entitled , at least , to his pension without the 25% reduction . 27 .
Those applications were dismissed .
A challenge against that dismissal before the Bundesverwaltungsgericht ( Federal Administrative Court , Austria ) was rejected .
An extraordinary appeal on a point of law against that judgment was brought before the Verwaltungsgerichtshof ( Higher Administrative Court ) , the referring court in this case . 28 .
In its request for a preliminary ruling , the referring court assumes that , after Directive 2000 / 78 became effective in Austrian law , an adverse disciplinary decision such as that made in relation to the Appellant would no longer have been allowed .
In the absence of any ( new ) grounds of justification for different ages of consent for male homosexual relations with adults , on the one hand , and for heterosexual and lesbian relations with adults , on the other , it would be impermissible to differentiate , even for the purposes of disciplinary action , between the incitement of a minor by an adult to perform male homosexual acts , on the one hand , and the incitement by an adult to perform heterosexual or lesbian acts , on the other . 29 .
According to the referring court , there is ‘ absolutely no doubt ’ that the disciplinary decision at issue was made on the basis of such a differentiation , its central foundation having been that the conduct with which the Appellant was charged was ( at that time ) a criminal offence punishable by law .
Even though it is not inconceivable that such an incitement to perform heterosexual or lesbian acts would have been interpreted as a dereliction of duty , any disciplinary adjudication made in the absence of the constituent elements of the offence provided for in Paragraph 129 I of the StG would have been ‘ incomparably milder ’ . 30 .
In the light of those considerations , the referring court wonders what the effects of the entry into force of Directive 2000 / 78 and the prohibition of discrimination on grounds of sexual orientation are for the ongoing pension payments to the Appellant .
The Verwaltungsgerichtshof ( Higher Administrative Court , ) decided to stay proceedings and refer the following questions to the Court : ‘ ( 1 ) Does Article 2 of [ Directive 2000 / 78 ( “ the Directive ” ) preclude the maintenance in being of the new 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 ?
( 2 ) If the first question is answered in the affirmative , is it , for the purposes of creating a non-discriminatory situation , ( a ) necessary under EU law , for the purposes of determining the civil servant ’ s pension , to treat him as if , in the period between the entry into force of the administrative decision and his reaching statutory pensionable age , he had not been retired but working , or is it ( b ) sufficient for these purposes to recognise as due the unreduced pension accruing in consequence of compulsory retirement at the time specified in the administrative decision ?
( 3 ) Does the answer to Question 2 depend on whether the civil servant did in fact proactively seek active employment in the federal civil service before reaching retirement age ?
( 4 ) If it is considered sufficient to annul the percentage reduction of pension entitlement ( and depending also , if necessary , on the circumstances referred to in Question 3 ) : Can the principle of non-discrimination contained in the Directive support a primacy of application over conflicting national law which a national court must observe , when calculating pension entitlement , even in respect of periods before the Directive became directly applicable in national law ?
( 5 ) If Question 4 is answered in the affirmative , to which point in time does such “ retroactive effect ” extend ? ’
Written submissions were lodged by the Appellant , the Italian and Austrian Governments and the European Commission .
With the exception of the Italian Government , those interested parties also presented oral argument at the hearing held on 29 May 2018 .
Assessment 32 .
Can a new rule of law be invoked to challenge the ongoing repercussions of an administrative decision that was adopted and became final before that new rule became applicable ?
That is the fundamental question raised by the referring court ’ s first question . 33 .
In circumstances such as those in the main case , I consider that the answer is no . 34 .
Given my proposed answer to that first question ( Section A below ) , the remaining questions do not require an answer .
Nevertheless , in the event that the Court should come to a different conclusion , I will also briefly discuss the issues that those questions raise ( Sections B and C ) , as well as the relevance of Article 157 TFEU ( ex Article 141 EC ) for the present case .
The latter provision does not figure in the referring court ’ s questions , but has been raised by the Appellant ( Section D ) .
Question 1 35 .
Where an administrative decision , involving discrimination on the grounds of sexual orientation and leading to a reduction in pension rights , became final before such discrimination was prohibited under Directive 2000 / 78 , is the maintenance of that reduction in pension rights precluded now that the directive is in force ?
That is the crux of the referring court ’ s first question . 36 .
According to the order for reference , the first question does not relate to the validity of the decision to impose compulsory retirement and reduce the Appellant ’ s pension rights .
That was challenged in the 1970s and the Appellant sought again to challenge it ( unsuccessfully ) after the offending provision of the criminal law was repealed . 37 .
Rather , to the extent that the administrative decision involved discrimination , the referring court ’ s first question asks whether it is contrary to Directive 2000 / 78 to maintain the effects of that decision in terms of ongoing reduced pension rights . 38 .
In addressing that question , I will begin by recalling the Court ’ s general approach to the temporal application of new rules to ongoing effects of pre-existing situations ( Section 1 ) .
I will then turn to the Court ’ s approach specifically in cases involving pensions ( Section 2 ) .
Next , I will outline the case-law on ongoing relations ( Section 3 ) and the extent of the duty to reopen past decisions ( Section 4 ) .
Finally , I will apply those findings to the present case ( Section 5 ) . 39 .
However , before turning to those issues , two preliminary remarks are called for . 40 .
First , there seems to be an agreement on the fact that the difference in criminal treatment of sexual relations with minors depending on the homosexual or heterosexual nature of those relations , which applied under Austrian law in 1974 , would not be acceptable today .
Logically the same would then also be true of the references to the Appellant ’ s sexuality in the reasoning contained in the disciplinary decision .
None of those statements were in fact disputed by the Austrian Government .
Nonetheless , and without being contradicted on that point , the Austrian Government stated that both the criminal and disciplinary sanctions were entirely legal under Austrian law in 1974 and 1975 .
That government also suggested that they were compliant with the then prevailing European standards , which have evolved since then . 41 .
Second , what is much less clear in the context of the present case is the exact relationship between the criminal and disciplinary sanctions in the main proceedings .
In particular , there have been rather extensive discussions , both in the written submissions and at the oral hearing , as to whether or not a disciplinary sanction ( of certain severity ) was a necessary consequence of the criminal conviction .
On the one hand , unlike the criminal code , the ( rather generally framed ( 5 ) ) disciplinary rules applicable to civil servants made no formal distinction between behaviour depending on its homosexual or heterosexual nature .
On the other hand , in its order for reference , the referring court stated that , if there had been no criminal conviction , the disciplinary measures imposed would have been ‘ incomparably milder ’ . 42 .
In response to questions about the exact relationship between the criminal and disciplinary sanctions , the Austrian Government stated that in 1974 the existence of a definitive criminal sanction against a police officer was not necessarily sufficient for automatic dismissal . ( 6 ) Nor , however , was such a conviction necessary to impose disciplinary sanctions .
Austrian police officers were required in 1974 to behave in line with the highest standards both on and off duty .
Thus , the fact that certain behaviour was not the subject of a criminal conviction ( or criminalised at all ) did not mean that it posed no problems under the disciplinary rules .
In that regard , the Austrian Government , without being challenged on the point , posited that , completely irrespective of sexual orientation , the solicitation by a 32 - year-old police officer of 14 - and 15 - year-olds in a public park was unlikely to be viewed as upstanding behaviour .
It is indeed confirmed by the referring court that the equivalent heterosexual soliciting of minors in public parks could have been interpreted as a dereliction of duty , punishable at that time by disciplinary action . 43 .
I draw a twofold conclusion from those statements .
First , I understand that the mere existence of a final criminal conviction against a police officer had by definition to be seen as a failure in terms of his professional obligations .
It is rather clear that the standards of behaviour for police officers are set at a higher level than merely ‘ not committing criminal offences ’ . In this sense , it is therefore quite logical that the existence of a criminal conviction had by definition direct repercussions on the range of conceivable sanctions , making them ‘ ( in ) comparably harder ’ than in cases in which no criminal conviction were issued . ( 7 ) Second , I also understand that beyond this one-sided implication ( from the existence of the criminal conviction to the disciplinary sanction ) in terms of severity of the disciplinary sanction , a criminal conviction was not a necessary precondition for the adoption of that disciplinary sanction . 1 .
Temporal applicability of new rules ( a ) The general approach 44 .
According to settled case-law of the Court , new rules apply as a matter of principle immediately to the ‘ future effects of a situation which arose under the old rule ’ and the principle of legitimate expectations cannot be extended to the point of ‘ generally preventing a new rule from applying to the future effects of situations which arose under the earlier rule ’ . ( 8 ) 45 .
However , in order to ensure observance of the principles of legal certainty and the protection of legitimate expectations , the substantive rules of EU law must be interpreted as applying to ‘ situations existing before their entry into force ’ only in so far as it ‘ clearly follows from their terms , their objectives or their general scheme that such effect must be given to them ’ . ( 9 ) 46 .
According to another formula used by the Court , a new rule of law ‘ does not apply to legal situations that have arisen and become definitive under the old law [ but ] it does apply to their future effects , and to new legal situations .
It is otherwise , subject to the principle of the non-retroactivity of legal acts , only if the new rule is accompanied by special provisions which specifically lay down its conditions of temporal application ’ . ( 10 ) 47 .