# C_2013009EN.01002802.xml

| 12.1.2013 | EN | Official Journal of the European Union | C 9/28 |
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12.1.2013

EN

Official Journal of the European Union

C 9/28

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Reference for a preliminary ruling from the Oberlandesgericht Innsbruck (Austria) lodged on 21 September 2012 — Siegfried Pohl v ÖBB-Infrastruktur AG

(Case C-429/12)

2013/C 9/47

Language of the case: German

Referring court

Referring court

Oberlandesgericht Innsbruck

Parties to the main proceedings

Parties to the main proceedings

Applicant: Siegfried Pohl

Applicant:

Defendant: ÖBB-Infrastruktur AG

Defendant:

Questions referred

Questions referred

| 1. | Does European Union law as it stands at present, in particular






  1. | the general principle in European Union law of equal treatment, |
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1.

Does European Union law as it stands at present, in particular

1.

the general principle in European Union law of equal treatment,

| 2. | 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, |
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2.

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,

| 3. | the prohibition of discrimination in connection with freedom of movement for workers in Article 45 TFEU, |
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3.

the prohibition of discrimination in connection with freedom of movement for workers in Article 45 TFEU,

| 4. | Directive 2000/78/EC, (1) |
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4.

Directive 2000/78/EC, (1)

1

preclude national rules — partly legislative, partly in collective agreements — which by agreement are incorporated into an individual contract of employment, and under which previous periods of service of employees in the rail transport sector are not taken into account at all if they were acquired before reaching the age of 18, and if they were acquired after reaching the age of 18, where they were not completed with a ‘quasi-public’ undertaking in national territory or with the defendant national employer itself, are taken into account only to the extent of one half, regardless of the skills and knowledge acquired by the employee in the particular case?

| 2. | If the answer to Question 1 is in the affirmative: It is relevant in calculating the pay outstanding, taking account of previously disregarded previous periods of service (in full up to reaching the age of 18 and as regards the second half from reaching the age of 18 to the claimant’s entry into the service of the defendant) in conformity with European Union law, that the previous periods of service in the calculation were acquired in the period from 1 December 1965 to 24 November 1974, in other words long before Austria’s accession to the EU/EEA and before the first judgment on the principle of equal treatment in European Union law? |
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2.

If the answer to Question 1 is in the affirmative: It is relevant in calculating the pay outstanding, taking account of previously disregarded previous periods of service (in full up to reaching the age of 18 and as regards the second half from reaching the age of 18 to the claimant’s entry into the service of the defendant) in conformity with European Union law, that the previous periods of service in the calculation were acquired in the period from 1 December 1965 to 24 November 1974, in other words long before Austria’s accession to the EU/EEA and before the first judgment on the principle of equal treatment in European Union law?

| 3. | If the answer to Question 1 is in the affirmative: Does European Union law as it stands at present, in particular the principle of effectiveness, preclude national limitation provisions under which the claim of an employee, subsequently a pensioner, against his employer for payment of additional pay, and subsequently payment of additional pension sums, deriving from the taking into account in conformity with European Union law within the meaning of Question 1 of previous periods of service abroad and of those acquired before reaching the age of 18 — a claim which he did not have under national law and objectively could not bring until delivery of the judgments in Case C-195/98 Österreichischer Gewerkschaftsburnd — Gewerkschaft öffentlicher Dienst on 30 November 2000 and Case C-88/08 Hütter on 16 June 2009 — would be time-barred in its entirety? |
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3.

If the answer to Question 1 is in the affirmative: Does European Union law as it stands at present, in particular the principle of effectiveness, preclude national limitation provisions under which the claim of an employee, subsequently a pensioner, against his employer for payment of additional pay, and subsequently payment of additional pension sums, deriving from the taking into account in conformity with European Union law within the meaning of Question 1 of previous periods of service abroad and of those acquired before reaching the age of 18 — a claim which he did not have under national law and objectively could not bring until delivery of the judgments in Case C-195/98 Österreichischer Gewerkschaftsburnd — Gewerkschaft öffentlicher Dienst on 30 November 2000 and Case C-88/08 Hütter on 16 June 2009 — would be time-barred in its entirety?

Österreichischer Gewerkschaftsburnd — Gewerkschaft öffentlicher Dienst

Hütter

| 4. | If the answer to Question 1 is in the affirmative: Is an employer in the rail transport sector with approximately 40 000 employees and a multi-level hierarchically articulated and territorially comprehensive organisation, under European Union law as it stands at present, in particular the horizontal effect of the general European Union law principle of equal treatment and/or the prohibition of discrimination in connection with freedom of movement for workers, under a duty of care to inform his employees and employees’ representatives of judgments of the Court of Justice, also published in the daily press, which make it appear that a system of accrediting previous periods of service hitherto practised by the employer is contrary to European Union law, a duty which may lead inter alia to payment of additional pay? |
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4.

If the answer to Question 1 is in the affirmative: Is an employer in the rail transport sector with approximately 40 000 employees and a multi-level hierarchically articulated and territorially comprehensive organisation, under European Union law as it stands at present, in particular the horizontal effect of the general European Union law principle of equal treatment and/or the prohibition of discrimination in connection with freedom of movement for workers, under a duty of care to inform his employees and employees’ representatives of judgments of the Court of Justice, also published in the daily press, which make it appear that a system of accrediting previous periods of service hitherto practised by the employer is contrary to European Union law, a duty which may lead inter alia to payment of additional pay?

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(1)  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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