Judgment;Summary — ECLI:EU:C:2020:125
Date: 2020-02-27
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
10 December 2018 
Referring court: 
Verwaltungsgericht Halle (Germany) 
Date of the decision to refer: 
15 August 2018 
Applicant: 
TK 
Defendant: 
Land Sachsen-Anhalt 
  
Subject-matter of the case in the main proceedings 
Compensation for age-related discriminatory remuneration  
Subject-matter and legal basis of the reference 
Interpretation of EU law, Article 267 TFEU 
Questions referred 
1. Is the ex post facto percentage increase within the context of an age-related 
discriminatory pay system a new form of discrimination if the percentage 
increase is the same for all stages of a pay grade and therefore the absolute, 
but not the relative gap between those discriminated against and those not 
discriminated against varies? 
2. If the answer to Question 1 is in the affirmative, is such a percentage 
increase over all age brackets justified in cases where the increase is due to 
EN 
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the initial payment falling below a minimum set by the constitution of a 
Member State? 
3. Does EU law, in particular Article 9 of Directive 2000/78/EC, preclude an 
arrangement which cancels a right to compensation for age-related 
discriminatory payment after two months if: 
– the time limit starts with the delivery of the judgment of 8 September 
2011, Hennigs and Mai, C-297/10 and C-298/10, EU:C:2011:560 
although the person concerned is not covered by the 
Bundesangestelltentarifvertrag (Federal Collective Agreement for 
contractual employees), but his personal situation is the same as in the 
judgment of 9 September 2015, Unland (C-20/13, EU:C:2015:561); 
– the aforementioned judgment can be obtained from the officials and 
judges concerned (employees) only from general public sources; 
– the employers have denied transferability to officials following the 
delivery of the abovementioned judgment, thereby denying the 
existence of age discrimination, whereby that legal opinion has also 
been communicated externally, at least partially; 
– the case-law of the administrative courts at first instance has, for the 
most part, denied the existence of age discrimination within the time 
limit referred to and also subsequently, until delivery of the judgment 
of 19 June 2014, Specht and Others, C-501/12 to C-506/12, C-540/12 
and C-541/12, EU:C:2014:2005; 
– the case-law of the higher courts did not exist within the time limit and 
the first decision at highest instance was only taken following the 
delivery of the judgment in Specht and Others; 
– in the civil service or judicial relationship (employment relationship) 
exclusion periods apply only to the reimbursement of special costs and 
such periods are not shorter than six months; 
– Rights to salary (remuneration) are subject to a three-year limitation 
period, starting from the end of the year in which the right has become 
due and the beneficiary is aware of or ought to be aware of the right, or 
a limitation period of ten years runs; 
– national rights to salary (remuneration), which are not legally fixed in 
a timely manner, i.e. within the financial year for which it is sought, 
are to be asserted? 
4. Does it affect the answer to question 3 if the legal position is unclear or 
confusing? 
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5. Is it sufficient for the commencement of an exclusion period if the 
disadvantaged category of persons is aware of the difference in treatment, or 
must the reason for the unequal treatment, i.e. the differentiation criterion, 
also be known? 
Provisions of EU law cited 
Council Directive 2000/78/EC of 27 November 2000 establishing a general 
framework for equal treatment in employment and occupation, in particular 
Articles 2, 6, 9 and 17 
Charter of Fundamental Rights of the European Union, in particular Article 21 
National legislation cited 
The Allgemeines Gleichbehandlungsgesetz (General Law on equal treatment; 
‘AGG’), in particular Paragraph 15 
Besoldungs- und Versorgungsrechtsergänzungsgesetz des Landes Sachsen-Anhalt 
(Salary and pension rights supplement law of the federal state of Saxony-Anhalt; 
‘BesVersEG LSA’), in particular Paragraph 23b 
Brief summary of the facts and procedure 
1 The applicant is a judge of the civil service of the defendant. Upon recruitment her 
salary was based on her age. 
2 By judgment of 8 September 2011, Hennigs and Mai (C-297/10 and C-298/10, 
EU:C:2011:560), the Court of Justice held that the prohibition of discrimination 
on grounds of age precludes an arrangement in a collective agreement according 
to which, within each pay grade, the basic wage of public sector contractual 
employees is calculated according to their age upon their recruitment. 
3 In the view of the Bundesministerium des Innern (Federal Ministry of the Interior) 
and, following it, the federal state of Saxony-Anhalt and the applicant’s employer, 
the judgment could not, however, be transferred to the remuneration of officials. 
The case-law of the administrative courts was divided on this issue, but for the 
most part denied age discrimination. 
4 In a letter dated 16 December 2013, the applicant objected to her salary from 2010 
and claimed that remuneration according to age bracket constitutes an 
infringement of the prohibition of discrimination on grounds of age. 
5 By judgment of the Court of Justice of 19 June 2014, Specht and Others 
(C-501/12 to C-506/12, C-540/12 and C-541/12, EU:C:2014:2005), it was 
established that Article 3(1)(c) of Directive 2000/78 is also applicable to salary 
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conditions for civil servants and that the provision of basic pay scale upon 
recruitment according to age, which was provided for at that time, infringes the 
prohibition of discrimination on grounds of age. By judgment of 9 September 
2015, Unland (C-20/13, EU:C:2015:561), this was also transferred to the 
remuneration of judges. 
6 After the Bundesverfassungsgericht (Federal Constitutional Court) ruled by 
judgment of 5 May 2015 that the remuneration of judges of the federal state of 
Saxony-Anhalt fell below the minimum prescribed by the Grundgesetz (Basic 
Law), an additional payment in the amount of a percentage of their respective 
basic salaries and allowances granted during that period, which varied between 
0.1% and 2.7% for the individual years, was provided for in Paragraph 23b of the 
BesVersEG LSA for the period from 1 January 2008 to 31 December 2014. The 
applicant subsequently received an additional payment. 
7 By decision of 24 March 2016, her objection dated 16 December 2013 was 
rejected. The applicant was indeed remunerated in a manner which discriminates 
on grounds of age, which in principle could trigger a compensation payment claim 
under Paragraph 15(2) of the AGG. However, such a claim must be asserted 
within the two-month period laid down by Paragraph 15(4) of the AGG, with the 
time period having commenced with the delivery of the judgment in Hennigs and 
Mai of 8 September 2011. 
8 The applicant brought an action on 18 April 2016, seeking payment of reasonable 
compensation on the basis of remuneration which is discriminatory on the grounds 
of age for the period from 1 January 2010 to 31 March 2011. 
9 By law of 8 December 2016, Paragraph 23b of the BesVersEG LSA was amended 
so that the remuneration for individual years in the period from 2008 to 2014 was 
increased by a further 0.1% per annum. 
10 In the course of the judicial proceedings, it was ascertained that the defendant had 
received 10,667 applications due to remuneration which is discriminatory on the 
grounds of age, of which 7,071 applications were declined. 6,516 of these were 
rejected on the ground that the time-period referred to in Paragraph 15(4) of the 
AGG had not been observed. 
Brief summary of the basis for the reference 
Question 1 
11 It is now common ground between the parties that the remuneration system of the 
federal state of Saxony-Anhalt during the period at issue was discriminatory on 
the grounds of age. 
12 It is, however, necessary to clarify whether discrimination within the meaning of 
Article 2(1) of Directive 2000/78 exists where a subsequent percentage advantage 
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as in this case is linked to the existing, discriminatory state. The additional 
payment amount which a judge discriminated against on the grounds of age 
receives is however lower than in the case of older judges with the same work 
experience, and the gap of the total remuneration received for the period at issue 
between those discriminated against and those not discriminated against increases, 
which is indicative of further discrimination. 
13 However, this would be viewed differently if the ratio between the salary to be 
granted and not the gap of the payment amount were taken into account. This is 
because the ratio remains the same. This is the consequence when a neutral 
measure is applied to a state produced by previous discrimination. 
Question 2 
14 The introduction and subsequent amendment of Paragraph 23b of the BesVersEG 
LSA, by which the salary was raised, was solely due to constitutional concerns 
regarding the level of amounts. 
15 A change of the remuneration system is not effected by that provision. The ground 
of justification, recognised by the Court of Justice, for maintained discrimination 
in the case of transition to a non-discriminatory remuneration system (judgments 
in Hennigs and Mai, Specht and Others and Unland) does not exist in this case. 
However, it is doubtful whether the elimination of an infringement 
(unconstitutionality of the too low salary) can justify discrimination in the past. In 
any event, an increase by the same gross amount at all levels would put much 
more strain on the state’s public purse. For constitutional reasons, only the 
increase amount of the highest level 12 thereby comes into question. During the 
period at issue, there is a claim for further salary of EUR 1 106.00 in level 1, and 
of EUR 1,794.10 in level 12. That is EUR 688.10 more. 
Question 3 
16 Article 17 of Directive 2000/78 has been transposed into national law by 
Paragraph 15 of the AGG. 
17 The time period of Paragraph 15(4) of the AGG was the subject of the judgment 
of the Court of Justice of 8 July 2010, Bulicke (C-246/09, EU:C:2010:418). By 
way of derogation from the case to be decided by the referring court, it was a 
question of compensation for discrimination in the recruitment and not of 
discrimination during the term as a judge. The questions of equivalence and 
effectiveness examined there are presented here in a different context. 
a. Equivalence 
18 In the employment of judges in the Federal Republic of Germany there are no 
exclusion periods, neither in the Law on judges nor in the partially applicable Law 
on civil servants or in the salary legislation. In secondary regulations claims such 
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as, for example, the claim for the replacement of sickness or travel expenses are 
subject to significantly longer periods than two months (six months or one year). 
Moreover, salary claims become statute-barred within three years, the regular 
limitation period (Paragraph 195 of the BGB). In accordance with 
Paragraph 199(1) of the BGB, the regular period of limitation begins at the end of 
the year in which 1. the claim arose and 2. the creditor becomes aware or ought to 
have become aware, without gross negligence, of the circumstances justifying the 
claim and the person of the debtor. 
19 Added to this is the requirement of timely assertion derived by courts from the 
duty of allegiance of the official. In the case of salary payments which are not 
provided for by law, the requirement is satisfied if the claim was asserted by 
objection in the financial year, that is by 31 December of each year at the latest. 
20 Apart from in the law on limitation, the issue of actual knowledge, presumed 
knowledge or clarification of an unclear legal situation is irrelevant. 
b. Effectiveness 
21 The arrangements for the procedure in relation to a system of penalties is a matter 
for the internal legal order of each Member State. The arrangements must not 
make the exercise of the rights conferred by the EU legal order practically 
impossible or excessively difficult, as is clear from paragraph 25 of the judgment 
in Bulicke and the case-law cited in that judgment. 
22 The arrangement of Paragraph 15(4) of the AGG was reviewed by the Court of 
Justice and in principle not objected to. The referring chamber infers from 
paragraph 41 of the judgment in Bulicke, however, that the standard withstands an 
examination of the principle of effectiveness only if the period commences with 
the date on which the employee becomes aware of the alleged discrimination. 
23 However, the statements made in the judgment in Bulicke cannot simply be 
transferred to the case submitted before the court. This leads to the need for 
further clarification by the Court of Justice. 
24 The increase in remuneration with age was known to the applicant. The 
determination of a different ‘salary age’ also resulted from the legal regulations, 
where an appointment to the judicial service took place at an older age. That was 
and is a rare and exceptional case in the Federal Republic of Germany. 
25 The scheme was considered to be valid, in principle, and a breach of the 
prohibition of discrimination on grounds of age was not accepted. Payment in the 
civil service came into focus only with the judgment in Hennigs and Mai. The 
decision concerned a collective agreement and not the remuneration of judges. 
The applicant neither took note of the decision in a timely manner nor realised its 
importance for her remuneration. 
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26 The processing of the judgment in Hennigs and Mai in the German case-law and 
administrative practice is apparent from the factual part of the order. The applicant 
herself realised her discrimination only shortly before the opposition was filed. 
27 According to the now settled case-law in Germany at the highest instance, the 
exclusion period in the case of the remuneration of civil servants is to commence 
with the date of delivery of the judgment in Hennigs and Mai. The central point of 
the argument is the observation that that judgment clarified an unclear legal 
situation. 
28 This raises the question whether the establishment of the date on which that period 
begins to run, as determined by the case-law at the highest instance, does not 
render impossible or excessively difficult the exercise of the rights conferred by 
the directive. In this case, the figures determined by the court could also be 
significant, according to which more than 60% of the applications in the federal 
state of Saxony-Anhalt were rejected because of missing the deadline. 
Question 4 
29 The legal situation has been clarified by several judgments of the Court of Justice. 
The legal situation was therefore unclear. However, the Chamber cannot infer 
from the previous case-law whether that is an issue of the compensation obligation 
as a sanction and, if so, what legal consequences arise from this. 
Question 5 
30 The purpose of this question is to clarify whether the requirement for 
effectiveness, from which it follows that a procedural rule — such as the 
limitation period of Paragraph 15(4) of the AGG to be examined here — does not 
render impossible or excessively difficult the exercise of the rights conferred by 
EU law, in any case also requires, in the case of short time periods, knowledge of 
the differentiation criterion of a different treatment. It simply arises from 
Articles 1 and 2 of Directive 2000/78 that a difference in treatment falls within the 
scope of the directive only if it is attributable to one of the reasons listed in 
Article 1 of the directive.