# C_2014015EN.01000301.xml

| 18.1.2014 | EN | Official Journal of the European Union | C 15/3 |
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18.1.2014

EN

Official Journal of the European Union

C 15/3

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Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 8 October 2013 — Georg Felber v Bundesministerin für Unterricht, Kunst und Kultur

(Case C-529/13)

2014/C 15/03

Language of the case: German

Referring court

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Parties to the main proceedings

Applicant: Georg Felber

Applicant:

Defendant: Bundesministerin für Unterricht, Kunst und Kultur

Defendant:

Questions referred

Questions referred

| 1. | Does it constitute — for the moment notwithstanding Article 52(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 6 of Council Directive 2000/78/EC (1) of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (‘the directive’) — (direct) unequal treatment on grounds of age for the purposes of Article 21(1) of the Charter and Article 2(1) and (2)(a) of the directive if periods of study at an intermediate or secondary school are credited as pensionable previous periods only if they were completed after the civil servant reached the age of 18, where those pensionable previous periods are important not only for the pension entitlement but also for the amount of that pension and that pension (total pension) is regarded in national law as the continued payment of remuneration in the context of a public-law employment relationship which still exists even after the civil servant has retired? |
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1.

Does it constitute — for the moment notwithstanding Article 52(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 6 of Council Directive 2000/78/EC (1) of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (‘the directive’) — (direct) unequal treatment on grounds of age for the purposes of Article 21(1) of the Charter and Article 2(1) and (2)(a) of the directive if periods of study at an intermediate or secondary school are credited as pensionable previous periods only if they were completed after the civil servant reached the age of 18, where those pensionable previous periods are important not only for the pension entitlement but also for the amount of that pension and that pension (total pension) is regarded in national law as the continued payment of remuneration in the context of a public-law employment relationship which still exists even after the civil servant has retired?

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| 2. | If so, may a civil servant — in the absence of a justification in accordance with Article 52(1) of the Charter and Article 6 of the directive (see question 3 below) — rely on the direct applicability of Article 21 of the Charter and Article 2 of the directive in proceedings concerning an application for the crediting of pensionable previous periods even if he is not yet retired at that time, especially since under national law — if the legal position has not changed upon his retirement — the legal force of the rejection of such an application could be held against him in a pension assessment procedure or in the case of a fresh application for the crediting of those periods? |
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2.

If so, may a civil servant — in the absence of a justification in accordance with Article 52(1) of the Charter and Article 6 of the directive (see question 3 below) — rely on the direct applicability of Article 21 of the Charter and Article 2 of the directive in proceedings concerning an application for the crediting of pensionable previous periods even if he is not yet retired at that time, especially since under national law — if the legal position has not changed upon his retirement — the legal force of the rejection of such an application could be held against him in a pension assessment procedure or in the case of a fresh application for the crediting of those periods?

| 3. | If so, is this unequal treatment for the purposes of Article 52(1) of the Charter and Article 6(1) and (2) of the directive






  (a) | justified in order to accord to persons whose date of birth lies after the date on which school began in the year they started school or to persons who attend a type of school with an extended upper stage and, for that reason, have to attend school after the age of 18 in order to complete their studies the same conditions as to persons who complete intermediate or secondary school before the age of 18, even if the eligibility of periods of school attendance after the age of 18 are not restricted to the abovementioned cases; |
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3.

If so, is this unequal treatment for the purposes of Article 52(1) of the Charter and Article 6(1) and (2) of the directive

(a)

justified in order to accord to persons whose date of birth lies after the date on which school began in the year they started school or to persons who attend a type of school with an extended upper stage and, for that reason, have to attend school after the age of 18 in order to complete their studies the same conditions as to persons who complete intermediate or secondary school before the age of 18, even if the eligibility of periods of school attendance after the age of 18 are not restricted to the abovementioned cases;

| (b) | justified in order to exclude from the entitlement periods in which, in general, no gainful activity takes place and accordingly no contributions are paid? Does such a justification exist irrespective of the fact that at first no contributions are payable also in respect of periods of attendance of intermediate or secondary schools after the age of 18 and in the event of the subsequent crediting of such periods of school attendance a special pension contribution is payable in any case? |
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(b)

justified in order to exclude from the entitlement periods in which, in general, no gainful activity takes place and accordingly no contributions are paid? Does such a justification exist irrespective of the fact that at first no contributions are payable also in respect of periods of attendance of intermediate or secondary schools after the age of 18 and in the event of the subsequent crediting of such periods of school attendance a special pension contribution is payable in any case?

| (c) | justified because the exclusion of the crediting of pensionable previous periods completed before the age of 18 is to be regarded as equivalent to setting an ‘age for admission to an occupational social security scheme’ within the meaning of Article 6(2) of the directive? |
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(c)

justified because the exclusion of the crediting of pensionable previous periods completed before the age of 18 is to be regarded as equivalent to setting an ‘age for admission to an occupational social security scheme’ within the meaning of Article 6(2) of the directive?

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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 L 303, p. 16.

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