# C_2013086EN.01001102.xml

| 23.3.2013 | EN | Official Journal of the European Union | C 86/11 |
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23.3.2013

EN

Official Journal of the European Union

C 86/11

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Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 15 January 2013 — Daniel Unland v Land Berlin

(Case C-20/13)

2013/C 86/19

Language of the case: German

Referring court

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Parties to the main proceedings

Applicant: Daniel Unland

Applicant:

Defendant: Land Berlin

Defendant:

Questions referred

Questions referred

| 1. | Is European primary and/or secondary law, here in particular Directive 2000/78/EC, (1) to be interpreted as a comprehensive prohibition of unjustified age discrimination, such that it also covers national rules on the remuneration of Land judges? |
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1.

Is European primary and/or secondary law, here in particular Directive 2000/78/EC, (1) to be interpreted as a comprehensive prohibition of unjustified age discrimination, such that it also covers national rules on the remuneration of Land judges?

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Land

| 2. | If Question 1 is answered in the affirmative: does the interpretation of this European primary and/or secondary law mean that a national provision under which the level of the basic pay of a judge on establishment of the status of judge, and the subsequent rise in that basic pay, is dependent on his age constitutes direct or indirect age discrimination? |
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2.

If Question 1 is answered in the affirmative: does the interpretation of this European primary and/or secondary law mean that a national provision under which the level of the basic pay of a judge on establishment of the status of judge, and the subsequent rise in that basic pay, is dependent on his age constitutes direct or indirect age discrimination?

| 3. | If Question 2 is also answered in the affirmative: does the interpretation of this European primary and/or secondary law preclude the justification of such a national provision by the legislative aim of making payment for professional experience and/or interpersonal skills? |
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3.

If Question 2 is also answered in the affirmative: does the interpretation of this European primary and/or secondary law preclude the justification of such a national provision by the legislative aim of making payment for professional experience and/or interpersonal skills?

| 4. | If Question 3 is also answered in the affirmative: does the interpretation of European primary and/or secondary law, where a non-discriminatory right to remuneration has not been implemented, permit a legal consequence other than retrospective remuneration of those discriminated against at the highest pay step in their pay grade?
  Does the legal consequence of infringement of the prohibition of discrimination in that case follow from European primary and/or secondary law itself, here in particular Directive 2000/78/EC, or does the claim follow only from the point of view of failure to implement the rules of European law in accordance with the claim to State liability under European Union law? |
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4.

If Question 3 is also answered in the affirmative: does the interpretation of European primary and/or secondary law, where a non-discriminatory right to remuneration has not been implemented, permit a legal consequence other than retrospective remuneration of those discriminated against at the highest pay step in their pay grade?

Does the legal consequence of infringement of the prohibition of discrimination in that case follow from European primary and/or secondary law itself, here in particular Directive 2000/78/EC, or does the claim follow only from the point of view of failure to implement the rules of European law in accordance with the claim to State liability under European Union law?

| 5. | Does the interpretation of European primary and/or secondary law preclude a national measure which makes the claim to (retrospective) payment or compensation dependent on the judges’ having enforced that claim in good time? |
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5.

Does the interpretation of European primary and/or secondary law preclude a national measure which makes the claim to (retrospective) payment or compensation dependent on the judges’ having enforced that claim in good time?

| 6. | If Questions 1 to 3 are answered in the affirmative: does it follow from the interpretation of European primary and/or secondary law that a transitional law — under which existing judges are placed on a step of the new system solely according to the amount of the basic pay they attained under the old (discriminatory) law on remuneration on the transition date, and according to which further progression to higher steps is thereupon calculated essentially according to the periods of experience attained since the entry into force of the transitional law, irrespective of the judge’s absolute period of experience — constitutes a perpetuation of the existing age discrimination, continuing until the highest pay step is reached in each case? |
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6.

If Questions 1 to 3 are answered in the affirmative: does it follow from the interpretation of European primary and/or secondary law that a transitional law — under which existing judges are placed on a step of the new system solely according to the amount of the basic pay they attained under the old (discriminatory) law on remuneration on the transition date, and according to which further progression to higher steps is thereupon calculated essentially according to the periods of experience attained since the entry into force of the transitional law, irrespective of the judge’s absolute period of experience — constitutes a perpetuation of the existing age discrimination, continuing until the highest pay step is reached in each case?

| 7. | If Question 6 is also answered in the affirmative: does the interpretation of European primary and/or secondary law conflict with a justification of this unrestricted, continuing difference in treatment by the legislative aim whereby the transitional law is to protect not (only) the acquired rights of existing judges existing on the transition date but (also) the expectation of the lifetime income in the respective pay grade that was forecast to be paid under the old law on remuneration, and new judges are to be paid better than existing judges?
  Can the continuing discrimination against existing judges be justified by the fact that the regulatory alternative (individual placement also of existing judges according to periods of experience) would involve increased administrative expenditure? |
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7.

If Question 6 is also answered in the affirmative: does the interpretation of European primary and/or secondary law conflict with a justification of this unrestricted, continuing difference in treatment by the legislative aim whereby the transitional law is to protect not (only) the acquired rights of existing judges existing on the transition date but (also) the expectation of the lifetime income in the respective pay grade that was forecast to be paid under the old law on remuneration, and new judges are to be paid better than existing judges?

Can the continuing discrimination against existing judges be justified by the fact that the regulatory alternative (individual placement also of existing judges according to periods of experience) would involve increased administrative expenditure?

| 8. | If such justification is rejected in Question 7: does the interpretation of European primary and/or secondary law, until a non-discriminatory right to remuneration has been implemented also for existing judges, permit a legal consequence other than retrospective and continuing remuneration of existing judges at the highest pay step in their pay grade? |
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8.

If such justification is rejected in Question 7: does the interpretation of European primary and/or secondary law, until a non-discriminatory right to remuneration has been implemented also for existing judges, permit a legal consequence other than retrospective and continuing remuneration of existing judges at the highest pay step in their pay grade?

| 9. | If Questions 1 to 3 are answered in the affirmative and Question 6 is answered in the negative: does it follow from the interpretation of European primary and/or secondary law that a provision of a transitional law which secures faster pay progression from a certain pay step onwards for existing judges who had reached a certain age at the time of transition than for existing judges who were younger on the transition date constitutes direct or indirect age discrimination? |
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9.

If Questions 1 to 3 are answered in the affirmative and Question 6 is answered in the negative: does it follow from the interpretation of European primary and/or secondary law that a provision of a transitional law which secures faster pay progression from a certain pay step onwards for existing judges who had reached a certain age at the time of transition than for existing judges who were younger on the transition date constitutes direct or indirect age discrimination?

| 10. | If Question 9 is answered in the affirmative: does the interpretation of European primary and/or secondary law conflict with a justification of this difference in treatment by the legislative aim of protecting not the acquired rights existing on the transition date but only the expectation of the lifetime income in the respective pay grade that was forecast to be paid under the old law on remuneration? |
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10.

If Question 9 is answered in the affirmative: does the interpretation of European primary and/or secondary law conflict with a justification of this difference in treatment by the legislative aim of protecting not the acquired rights existing on the transition date but only the expectation of the lifetime income in the respective pay grade that was forecast to be paid under the old law on remuneration?

| 11. | If such justification is rejected in Question 10: does the interpretation of European primary and/or secondary law, until a non-discriminatory right to remuneration has been implemented also for existing judges, permit a legal consequence other than that of securing — retrospectively and on a continuing basis — the same pay progression for all existing judges as the favoured judges referred to in Question 9? |
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11.

If such justification is rejected in Question 10: does the interpretation of European primary and/or secondary law, until a non-discriminatory right to remuneration has been implemented also for existing judges, permit a legal consequence other than that of securing — retrospectively and on a continuing basis — the same pay progression for all existing judges as the favoured judges referred to in Question 9?

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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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