CELEX: 62008CJ0088
Directive 2000/78/EC
Equal treatment in employment and occupation
Age discrimination
Determining the pay of contractual employees of the State
Exclusion of professional experience acquired before the age of 18

This reference for a preliminary ruling concerns the interpretation 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).
The reference was made in the course of proceedings between Mr Hütter and Technische Universität Graz (‘TUG’) concerning his
grading within the scale for contractual public servants at the time of his recruitment.

Legal context

Community legislation
Recital 25 in the preamble to Directive 2000/78 reads:
‘The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging
diversity in the workforce. However, differences in treatment in connection with age may be justified under certain circumstances
and therefore require specific provisions which may vary in accordance with the situation in Member States. It is therefore
essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy,
labour market and vocational training objectives, and discrimination which must be prohibited.’
Article 1 of Directive 2000/78 provides that the purpose of that directive is ‘to lay down a general framework for combating
discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation,
with a view to putting into effect in the Member States the principle of equal treatment’.
Article 2 of Directive 2000/78, headed ‘Concept of discrimination’, provides:
‘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;
(b)      indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons
having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a
particular disadvantage compared with other persons unless:
(i)      that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are
appropriate and necessary, or
(ii)      as regards persons with a particular disability, the employer or any person or organisation to whom this directive applies
is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in
order to eliminate disadvantages entailed by such provision, criterion or practice.
…’
Article 3(1) of Directive 2000/78, headed ‘Scope’, provides:
‘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:
(a)      conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions,
whatever the branch of activity and at all levels of the professional hierarchy, including promotion;
…
(c)      employment and working conditions, including dismissals and pay;
…’
Article 6(1) of Directive 2000/78, headed ‘Justification of differences of treatment on grounds of age’, provides:
‘Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute
discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim,
including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that
aim are appropriate and necessary.
Such differences of treatment may include, among others:
(a)      the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal
and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote
their vocational integration or ensure their protection;
(b)      the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain
advantages linked to employment;
(c)      the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need
for a reasonable period of employment before retirement.’
Under the first paragraph of Article 18 of Directive 2000/78, the Republic of Austria was required to adopt the laws, regulations
and administrative provisions necessary to comply with that directive by 2 December 2003 at the latest.

National legislation
As explained in the order for reference, Paragraph 128 of the Federal Law of 2002 on the organisation of universities and
university studies (Universitätsgesetz 2002, BGBl. I, 120/2002) provides that the terms of contracts of employment concluded
between a university and its employees after the entry into force of that law, on 1 January 2004, and until the entry into
force of a collective agreement are to be determined by the Law on contractual public servants 1948 (Vertragsbedienstetengesetz
1948, BGBl., 86/1948), as amended by the Law of 2004 (BGBl. I, 176/2004) (‘VBG’).
Paragraph 3(1)(a) of the VBG sets out the rules governing the grading of contractual public servants. Persons must be 15 years
of age or older to be recruited as public servants.
As regards entitlements dependent on the length of the employment relationship or professional experience, the VBG does not
allow any period of service completed before the age of 18 to be taken into account, except in certain specific circumstances
that are not relevant to the case in the main proceedings. Thus, when determining the increment reference date, Paragraph
26(1) of the VBG excludes accreditation of periods of service completed before the person concerned attained the age of 18.
Periods of service completed ‘by way of vocational training … in a … university or college …’, as referred to in Paragraph
26(2)(1)(b) of the VBG, are to be accredited for the purposes of determining the incremental step only where they were completed
after the person concerned attained the age of 18.
Directive 2000/78 was transposed in Austria by the Federal Law on equal treatment 1993 (Bundes-Gleichbehandlungsgesetz 1993,
BGBl., 100/1993), as amended by the Law of 2004 (BGBl. I, 65/2004) (the ‘B‑GIBG’). That law governs contracts of employment
with universities. However, according to the national court, the B-GIBG did not make any amendment to Paragraph 26(1) of the
VBG, which therefore remains applicable to the facts at issue in the main proceedings.

The dispute in the main proceedings and the question referred for a preliminary ruling
Mr Hütter, the claimant in the main proceedings, was born in 1986. Together with a female colleague, he completed a period
of apprenticeship, from 3 September 2001 to 2 March 2005, as a laboratory technician with TUG, a public body coming under
the Federal Law of 2002 on the organisation of universities and university studies.
Mr Hütter and his colleague were then recruited by TUG, from 3 March 2005 to 2 June 2005, that is to say, for three months.
As Mr Hütter’s colleague was 22 months older than him, she was recruited at a higher incremental step, which translated into
a difference in monthly salary of EUR 23.20. That difference stems from the fact that the period of apprenticeship completed
by Mr Hütter after attaining his majority was only approximately 6.5 months, as contrasted with 28.5 months in the case of
his colleague.
Mr Hütter brought an action before the Landesgericht für Zivilrechtssachen Graz (Graz Regional Court for Civil Matters). He
sought payment of compensation equivalent to the difference in treatment he received due to his age and which he considers
to be unjustified and in breach of both the B-GIBG and Directive 2000/78. That difference in treatment corresponds to the
sum of EUR 69.60.
Mr Hütter was successful at first instance and on appeal and so TUG brought an appeal before the court making the present
reference. That court wishes to ascertain in particular whether Article 6 of Directive 2000/78 precludes a national measure
that allows employers not to take into account periods of professional experience acquired before attaining majority in order
to avoid placing persons who have obtained a secondary education at a disadvantage, to avoid encouraging pupils not to pursue
that type of education and, more generally, to avoid making apprenticeship costly for the public sector and to promote the
integration of young apprentices into the labour market.
It is in those circumstances that the Oberster Gerichtshof (Supreme Court) decided to stay proceedings and refer the following
question to the Court for a preliminary ruling:
‘Are Articles 1, 2 and 6 of [Directive 2000/78] to be understood as precluding national legislation … which excludes accreditable
previous service from being taken into account in the determination of the reference date for salary increments in so far
as such service was completed before the person concerned reached the age of 18?’

The question referred for a preliminary ruling

Observations submitted to the Court
Mr Hütter considers that, where professional experience is equal, there is no justification, under Article 6(1) of Directive
2000/78, to support a difference in treatment based exclusively on the age at which that experience was acquired. A rule such
as that at issue in the main proceedings provides a disincentive to pursue an occupation before attaining the age of 18. It
constitutes discrimination prohibited under Directive 2000/78.
TUG denies the existence of discrimination. It contends that Paragraph 26(1) of the VBG applies without distinction to all
persons, irrespective of their age. Consequently, there can be no question of any discrimination based on the criterion of
age. That provision can be examined only in the light of Article 2(2)(b) of Directive 2000/78, which concerns indirect discrimination
based on apparently neutral criteria.
TUG contends, in the alternative, that the measure at issue in the main proceedings pursues a legitimate aim and is appropriate
and necessary within the meaning of Article 6(1) of Directive 2000/78.
In fact, it gives the public services a clear and uniform structure for determining the pay of contractual public servants.
That is a legitimate aim within the meaning of Articles 2(2) and 6(1) of Directive 2000/78.
During 2000, approximately 0.03% of apprentices completed their training after attaining the age of 18. The fact that apprentices
must provide evidence of periods of professional experience acquired before the age of 18, periods that are not taken into
account in the calculation of their remuneration, promotes their integration into the workforce. According to TUG, that thereby
enables employers to reduce the costs associated with the recruitment of young apprentices.
Furthermore, accreditation of periods of employment prior to attaining the age of 18 places persons with a general education
at an undue disadvantage. In a Member State such as the Republic of Austria, where the labour market suffers from a lack of
people with higher-education qualifications, a measure such as that at issue in the main proceedings also prevents persons
from being deterred from a general education.
The Danish Government considers that Article 6(1) of Directive 2000/78 must be interpreted as not precluding a measure such
as that at issue in the main proceedings where it pursues a legitimate vocational training and youth employment policy objective,
and is appropriate and necessary.
That government points to the broad discretion enjoyed by Member States with regard to measures based on the criterion of
age (see, to that effect, Case C‑144/04
Mangold
[2005] ECR I‑9981, paragraphs 62 and 63, and Case C‑411/05
Palacios de la Villa
[2007] ECR I‑8531, paragraph 68).
The Danish Government considers that making provision for persons under 18 years of age to be paid less than adults encourages
the former to undertake further training that will enable them to obtain higher pay. Furthermore, if employers were required
to remunerate persons under 18 years of age on the same terms as adult workers, they would naturally be inclined to recruit
older, more experienced workers. Lastly, persons under 18 years of age are generally not able to carry out the same tasks
as adults. That is why a number of collective agreements in Denmark contain provisions relating to pay that are less favourable
towards workers in that age category.
The Commission of the European Communities considers that the rule at issue in the main proceedings concerns an employment
and working condition within the meaning of Article 3(1)(c) of Directive 2000/78, namely pay. The situation at issue in the
main proceedings therefore falls within the scope of that directive.
According to the Commission, the rule excluding periods of service completed under the age of 18 establishes discrimination
directly based on age. The fact that the measure at issue in the main proceedings applies without discrimination to any person
over 18 years of age is irrelevant in that regard. Discrimination lies in the fact that the rule is more favourable to persons
who acquire professional experience after they attain 18 years of age. The circumstances at issue in the main proceedings
show the discriminatory effect of that rule, since the claimant in the main proceedings has an equal level of experience but
is treated less favourably than one of his work colleagues solely on the ground of the difference in their ages.
Regarding the justification based on the need to have a uniform system for accrediting periods of professional experience
for all employees, the Commission accepts that it may be a legitimate aim within the meaning of Article 6(1) of Directive
2000/78. It considers, however, that the rule at issue is neither appropriate nor necessary in order to achieve that aim.
The system of calculating periods of seniority would be just as uniform and logical if periods of employment before the age
of 18 were not excluded.
As regards the justification relating to the equal treatment of apprentices, on the one hand, and pupils in general education,
on the other hand, the Commission acknowledges that this may be covered by the vocational training objective referred to in
Article 6(1) of Directive 2000/78. It doubts none the less whether the measure at issue in the main proceedings is appropriate
or necessary, since that measure places pupils in general education at an advantage as compared with apprentices, since the
latter are generally able to acquire professional experience before they attain majority.
As regards, lastly, the justification based on integration of young people into the labour market, the Commission doubts whether
the measure at issue in the main proceedings has such an effect. The difference in treatment introduced by that measure constitutes
a disadvantage which will stay with an employee who suffers it throughout his career. The exclusion of periods of employment
completed before the age of 18 does not concern young people exclusively but also, according to the Commission, all contractual
public servants covered by the VBG, irrespective of their age at the time of recruitment. The Commission is of the view that
there are other less restrictive means of promoting youth employment.

The Court’s reply
It falls to be ascertained whether national legislation such as that at issue in the main proceedings falls within the scope
of Directive 2000/78 and, if so, whether it is a discriminatory measure based on age that might be considered justified with
regard to that directive.
As is apparent both from its title and preamble and its content and purpose, Directive 2000/78 is designed to lay down a general
framework in order to guarantee equal treatment ‘in employment and occupation’ to all persons, by offering them effective
protection against discrimination on one of the grounds covered by Article 1, which includes age.
More particularly, it follows from Article 3(1)(a) and (c) of Directive 2000/78 that the directive applies, within the framework
of the areas of competence conferred on the Community, ‘to all persons, as regards both the public and private sectors, including
public bodies’, on the one hand, in relation to ‘conditions for access to employment, … including selection criteria and recruitment
conditions, whatever the branch of activity and at all levels of the professional hierarchy’ and, on the other hand, in relation
to ‘employment and working conditions, including dismissals and pay’.
Paragraph 26 of the VBG excludes, generally, accreditation of any professional experience acquired before the age of 18 for
the purposes of grading contractual staff within the scale for the Austrian public service. That provision thus affects the
determination of the incremental step at which such persons will be graded. It also has a consequential effect on their pay.
Legislation of that nature must therefore be regarded as establishing rules relating to the conditions for access to employment,
recruitment and pay, within the meaning of Article 3(1)(a) and (c) of Directive 2000/78.
In those circumstances, Directive 2000/78 is applicable to a situation such as that giving rise to the dispute before the
national court.
Article 2(1) of Directive 2000/78 defines the ‘principle of equal treatment’ that it seeks to implement as meaning that there
is to be ‘no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1’ of that directive.
Article 2(2)(a) of the directive states that, for the purposes of paragraph 1, direct discrimination is to be taken to occur
where one person is treated less favourably than another person in a comparable situation, on any of the grounds referred
to in Article 1.
National legislation such as that at issue in the main proceedings imposes less favourable treatment for persons whose professional
experience has, albeit only in part, been acquired before the age of 18 as compared with those who have acquired experience
of the same nature and of comparable length after attaining that age. Such legislation establishes a difference in treatment
between persons based on the age at which they acquired their professional experience. As is demonstrated by the facts at
issue in the main proceedings, that criterion may even lead to a difference in treatment between two persons who have pursued
the same studies and acquired the same professional experience, exclusively on the basis of their respective ages. Such a
provision thus establishes a difference in treatment directly based on the criterion of age, within the meaning of Article
2(1) and (2)(a) of Directive 2000/78.
It is apparent from Article 6(1) of Directive 2000/78, however, that such differences of treatment on grounds of age do not
‘constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate
aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving
that aim are appropriate and necessary’.
As regards the legitimacy of the aim pursued by the legislation at issue in the main proceedings, it is apparent from the
explanations given by the national court that the Austrian legislature intended to exclude accreditation of professional experience
acquired before full legal capacity has been attained, at the age of 18, in order not to place persons who have pursued a
general secondary education at a disadvantage as compared with persons with a vocational education. Besides this incentive
to pursue secondary studies, the national court also mentions the desire of the legislature to avoid making apprenticeship
more costly for the public sector and thereby promote the integration of young people who have pursued that type of training
into the labour market. It is therefore appropriate to examine whether those aims may be considered legitimate within the
meaning of Article 6(1) of Directive 2000/78.
In that regard, it should be observed that aims that may be considered ‘legitimate’ within the meaning of Article 6(1) of
Directive 2000/78 and, consequently, appropriate for the purposes of justifying derogation from the principle prohibiting
discrimination on grounds of age are social policy objectives, such as those related to employment policy, the labour market
or vocational training (Case C‑388/07
Age Concern England
[2009] ECR I‑0000, paragraph 46).
The aims mentioned by the national court come within that category of legitimate aims and may justify differences in treatment
associated with ‘the setting of special conditions on access to employment …, including … remuneration conditions, for young
people … in order to promote their vocational integration’ and ‘the fixing of minimum conditions of age, professional experience
or seniority in service for access to employment or to certain advantages linked to employment’ referred to in Article 6(1)(a)
and (b), respectively, of Directive 2000/78.
Consequently, aims of the kind mentioned by the national court must, in principle, be considered to justify ‘objectively and
reasonably’, ‘within the context of national law’, as provided in the first subparagraph of Article 6(1) of Directive 2000/78,
a difference in treatment on the ground of age prescribed by Member States.
It is also necessary to ascertain, according to the actual wording of that provision, whether the means used to achieve that
aim are ‘appropriate and necessary’.
In this respect, the Member States unarguably enjoy broad discretion in their choice of the measures capable of attaining
their objectives in the field of social and employment policy (
Mangold
, paragraph 63).
Notwithstanding that discretion allowed to the Member States, it should be pointed out that the aims mentioned by the national
court may, at first sight, appear contradictory. One of those aims is to encourage pupils to pursue a general secondary education
rather than vocational education. Another aim is to promote the recruitment of persons who have had a vocational education
rather than of persons with a general education, as can be seen from paragraph 40 above. Therefore, in the first case, it
is a matter of not placing persons with a general secondary education at a disadvantage as compared with those who have had
vocational training and, in the second case, the reverse. It is therefore difficult, at first sight, to accept that national
legislation such as that at issue in the main proceedings can, simultaneously, be of advantage to each of those two groups
at the expense of the other.
Besides that lack of internal consistency, it must also be observed that the national legislation at issue in the main proceedings
relies on the criterion of previous professional experience for the purposes of determining grading within the scale and,
consequently, the pay of contractual public servants. Rewarding experience that enables the worker to perform his duties better
is, as a general rule, acknowledged to be a legitimate aim. That is why the employer is free to reward such experience (see
Case C‑17/05
Cadman
[2006] ECR I‑9583, paragraphs 35 and 36). The fact remains, however, that national legislation such as that at issue in the
main proceedings does not merely reward experience but also establishes, where experience is equal, a difference in treatment
on the basis of the age at which that experience was acquired. In those circumstances, such an age-related criterion therefore
has no direct relationship with the aim, so far as the employer is concerned, of rewarding professional experience.
As regards the aim of not treating a general secondary education less favourably than a vocational education, it should be
noted that the criterion of the age at which previous experience was acquired applies irrespective of the type of education
pursued. It excludes accreditation both of experience acquired before the age of 18 by a person who has pursued a general
education and of that acquired by a person with a vocational education. That criterion may therefore lead to a difference
in treatment between two persons with a vocational education or between two persons with a general education based solely
on the criterion of the age at which they acquired their professional experience. In those circumstances, the criterion of
the age at which the vocational experience was acquired does not appear appropriate for achieving the aim of not treating
general education less favourably than vocational education. In that regard, it is clear that a criterion based directly on
the type of studies pursued without reference to the age of the persons concerned would, so far Directive 2000/78 is concerned,
be better suited to achieving the aim of not treating general education less favourably.
As regards the aim of promoting integration into the labour market of young people who have pursued a vocational education,
it should be pointed out that non‑accreditation of experience acquired before the age of 18 applies without distinction to
all contractual public servants, whatever the age at which they are recruited. Thus, that criterion of the age at which professional
experience was acquired does not single out a group of persons defined by their youth in order to give them special conditions
of recruitment intended to promote their integration into the labour market. A rule such as that at issue in the main proceedings
can be distinguished from measures such as those mentioned by the Danish Government that are designed to promote the integration
of young people below the age of 18 into the labour market, in so far as those measures provide minimum conditions of pay
for such young people that are below those for older workers. Since it does not take into account people’s age at the time
of their recruitment, a rule such as that at issue in the main proceedings is not therefore appropriate for the purposes of
promoting the entry into the labour market of a category of workers defined by their youth.
Consequently, legislation with the characteristics at issue in the main proceedings cannot be regarded as appropriate within
the meaning of Article 6(1) of Directive 2000/78.
Therefore, the reply to be given to the national court is that Articles 1, 2 and 6 of Directive 2000/78 must be interpreted
as precluding national legislation which, in order not to treat general education less favourably than vocational education
and to promote the integration of young apprentices into the labour market, excludes periods of employment completed before
the age of 18 from being taken into account for the purpose of determining the incremental step at which contractual public
servants of a Member State are graded.

Costs
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.
On those grounds, the Court (Third Chamber) hereby rules:
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 must be interpreted as precluding national legislation which, in order not to treat general education
less favourably than vocational education and to promote the integration of young apprentices into the labour market, excludes
periods of employment completed before the age of 18 from being taken into account for the purpose of determining the incremental
step at which contractual public servants of a Member State are graded.
[Signatures]
*
Language of the case: German.