# C_2015107EN.01000502.xml

| 30.3.2015 | EN | Official Journal of the European Union | C 107/5 |
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30.3.2015

EN

Official Journal of the European Union

C 107/5

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Judgment of the Court (Second Chamber) of 28 January 2015 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — ÖBB Personenverkehr AG v Gotthard Starjakob

(Case C-417/13) (1)

((Reference for a preliminary ruling - Social policy - Directive 2000/78/EC - Equal treatment in employment and occupation - Article 2(1) and (2)(a) - Article 6(1) - Discrimination based on age - National legislation under which inclusion of periods of service completed before the age of 18 for the purpose of determining remuneration is subject to an extension of the periods for advancement - Justification - Whether appropriate for the purpose of achieving the objective pursued - Possibility of challenging the extension of the periods for advancement))

(2015/C 107/06)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: ÖBB Personenverkehr AG

Defendant: Gotthard Starjakob

Operative part of the judgment

| 1. | EU law, in particular, Articles 2 and 6(1) 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 such as that at issue in the main proceedings, which, to end discrimination based on age, takes account of periods of service prior to the age of 18, but which, simultaneously, includes a rule, applicable in reality only to employees who are subject to that discrimination, which extends by one year the period required for advancement in each of the three first salary steps and which, in so doing, definitively maintains a difference in treatment based on age; |
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1.

EU law, in particular, Articles 2 and 6(1) 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 such as that at issue in the main proceedings, which, to end discrimination based on age, takes account of periods of service prior to the age of 18, but which, simultaneously, includes a rule, applicable in reality only to employees who are subject to that discrimination, which extends by one year the period required for advancement in each of the three first salary steps and which, in so doing, definitively maintains a difference in treatment based on age;

| 2. | EU law, in particular Article 16 of Directive 2000/78, must be interpreted as meaning that national legislation which seeks to end discrimination based on age does not necessarily have to allow an employee whose periods of service completed before the age of 18 have not been taken into account in calculating his advancement to obtain financial compensation which corresponds to payment of the difference between the remuneration which he would have received in the absence of such discrimination and that which he actually received. Nevertheless, in a case such as that at issue in the main proceedings, as long as a system to abolish discrimination on grounds of age in a way that conforms with the provisions of Directive 2000/78 has not been adopted, re-establishing equal treatment entails granting employees whose experience was, if only in part, acquired before the age of 18 the same benefits as those enjoyed by employees who have obtained, after reaching that age, experience of the same type and comparable duration, as regards the recognition of periods of service completed before the age of 18 but also advancement in the pay scale; |
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2.

EU law, in particular Article 16 of Directive 2000/78, must be interpreted as meaning that national legislation which seeks to end discrimination based on age does not necessarily have to allow an employee whose periods of service completed before the age of 18 have not been taken into account in calculating his advancement to obtain financial compensation which corresponds to payment of the difference between the remuneration which he would have received in the absence of such discrimination and that which he actually received. Nevertheless, in a case such as that at issue in the main proceedings, as long as a system to abolish discrimination on grounds of age in a way that conforms with the provisions of Directive 2000/78 has not been adopted, re-establishing equal treatment entails granting employees whose experience was, if only in part, acquired before the age of 18 the same benefits as those enjoyed by employees who have obtained, after reaching that age, experience of the same type and comparable duration, as regards the recognition of periods of service completed before the age of 18 but also advancement in the pay scale;

| 3. | EU law, in particular Article 16 of Directive 2000/78, must be interpreted as not preventing the national legislature from providing, in order to take into account periods of service completed before the age of 18, for an obligation of cooperation under which the employee must give his employer the evidence relating to those periods. Nevertheless, there is no abuse of law in (i) an employee’s refusal to cooperate for the purpose of the application of national legislation such as that at issue in the main proceedings, which entails discrimination based on age contrary to Directive 2000/78, and (ii) his action seeking to obtain payment intended to re-establish equal treatment with employees who have obtained, after reaching that age, experience of the same type and a duration comparable to his; |
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3.

EU law, in particular Article 16 of Directive 2000/78, must be interpreted as not preventing the national legislature from providing, in order to take into account periods of service completed before the age of 18, for an obligation of cooperation under which the employee must give his employer the evidence relating to those periods. Nevertheless, there is no abuse of law in (i) an employee’s refusal to cooperate for the purpose of the application of national legislation such as that at issue in the main proceedings, which entails discrimination based on age contrary to Directive 2000/78, and (ii) his action seeking to obtain payment intended to re-establish equal treatment with employees who have obtained, after reaching that age, experience of the same type and a duration comparable to his;

| 4. | The principle of effectiveness must be interpreted as meaning that, in a case such as that at issue in the main proceedings, it does not preclude a national limitation period for claims which are founded in EU law from starting to run before the date of delivery of a judgment of the Court which has clarified the legal position on the matter. |
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4.

The principle of effectiveness must be interpreted as meaning that, in a case such as that at issue in the main proceedings, it does not preclude a national limitation period for claims which are founded in EU law from starting to run before the date of delivery of a judgment of the Court which has clarified the legal position on the matter.

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(1)  OJ C 325, 9.11.2013.

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