Opinion of the Advocate General — ECLI:EU:C:2017:893
Date: 2017-11-23
Language of the case: German
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Austria

Summary — Judgment of the Court (First Chamber), 14 March 2018 Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of age — Breach of the principle of non-discrimination on grounds of age by national legislation governing remuneration — Consequences — National legislation ending such discrimination by abolishing retroactively in respect of all workers the age limit of 18 years for the purpose of the categorisation of the employees of an undertaking within pay scales, but allowing only experience acquired with other undertakings operating in the same economic sector to be taken into account — Whether permissible, including under Article 45 TFEU (Art. 45 TFUE; Council Directive 2000/78, Arts 2, 6 and 16) Article 45 TFEU and Articles 2, 6 and 16 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation are to be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which, in order to end discrimination on grounds of age arising as a result of the application of national law that took into account, for the purpose of the categorisation of the employees of an undertaking within pay scales, only periods of activity completed after the age of 18, retroactively abolishes that age limit in respect of all such workers and allows only experience acquired with other undertakings operating in the same economic sector to be taken into account. In that regard, it should be noted, first, that according to the Court’s established case-law, rewarding experience acquired in a particular field, which enables the worker to perform his duties better, constitutes a legitimate objective of pay policy (see, to that effect, judgment of 3 October 2006, Cadman, C‑17/05, EU:C:2006:633, paragraph 34 et seq., and of 18 June 2009, Hütter, C‑88/08, EU:C:2009:381, paragraph 47 and the case-law cited). The employer is therefore, in principle, free to take into account only such previously completed periods of activity when determining remuneration. Second, the Court has taken the view that while a provision of national law that takes into account only certain previous periods of activity and disregards others is undoubtedly likely to entail a difference in treatment among workers according to the date of their recruitment by the undertaking concerned, such a difference is not, directly or indirectly, based on age or on an event linked to age. It is the experience acquired with other undertakings which is not taken into account, irrespective of the age at which it was acquired and the age at which the worker concerned was recruited (see, to that effect, judgment of 7 June 2012, Tyrolean Airways Tiroler Luftfahrt Gesellschaft, C‑132/11, EU:C:2012:329, paragraph 29). In any event, such a clause is directed only at workers who are no longer able to have their non-relevant experience taken into account. Therefore, the alleged discrimination linked to the consequences of the application of the safeguard clause is not, in any event, based on the criterion of age but on the ways in which account is taken of previous experience. It is apparent from paragraphs 39 and 40 above that such a basis cannot be called into question in this case. Lastly, with regard to Article 45 TFEU, as Paragraph 53a of the 2015 Federal Law on Railways expressly provides that previous periods of activity in the railway sector completed in other Member States are to be taken into account, there is nothing before the Court to justify any finding of infringement of the freedom of movement for workers enshrined in that article. (see paras 39, 40, 42, 46, 47, operative part)