Judgment;Summary — ECLI:EU:C:2023:300
Date: 2023-04-20
Language of the case: German
Court formation: Second Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-650/21 – 1 
Case C-650/21 
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: 
27 October 2021 
Referring court: 
Verwaltungsgerichtshof (Austria) 
Date of the decision to refer: 
18 October 2021 
Appellants on a point of law: 
FW 
CE 
  
Subject matter of the main proceedings 
Recalculation of remuneration seniority; accreditation of previous periods of 
service; equal treatment 
Subject matter and legal basis of the request 
Compatibility of a new remuneration system with Directive 2000/78/EC and with 
the Charter of Fundamental Rights of the European Union; Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Is EU law, in particular Articles 1, 2 and 6 of Directive 2000/78/EC, in 
conjunction with Article 21 of the Charter of Fundamental Rights, to be 
interpreted as precluding national legislation under which a remuneration system 
which discriminates on grounds of age is replaced by a remuneration system, 
under which the classification of a civil servant continues to be determined on the 
basis of the remuneration seniority determined with effect from a particular 
transition month (February 2015) in a discriminatory manner under the old 
remuneration system and, in that context, is subject to a correction in respect of 
EN 
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the initially determined previous periods of service through the determination of a 
comparison reference date, but under which, with regard to the periods completed 
after the civil servant’s 18th birthday, only the other periods, of which half must be 
taken into account, are subject to review, and under which the four-year extension 
of the period in which previous periods of service must be taken into account is 
juxtaposed with the fact that the other periods, of which half must be taken into 
account, must be accredited as periods preceding the date of appointment in the 
determination of the comparison reference date only in so far as they exceed the 
total amount of four years, of which half must be taken into account (flat-rate 
deduction of four years, of which half must be taken into account)? 
2. Is Question 1 to be answered differently in respect of proceedings in which, 
although a new advancement reference date was already definitively determined 
before the entry into force of the 2. Dienstrechts-Novelle 2019 (2nd Law amending 
the rules relating to public servants 2019), that date still had no effect on the civil 
servant’s remuneration status because the authority had not yet taken a decision in 
direct application of EU law, and in which the comparison reference date must 
now once again be redetermined by reference to the advancement reference date 
determined in an age-discriminatory manner without taking into account the 
advancement reference date determined in the meantime, and the other periods, of 
which half must be taken into account, are subject to the flat-rate deduction? 
3. Is EU law, in particular Articles 1, 2 and 6 of Directive 2000/78/EC, in 
conjunction with Article 21 of the Charter of Fundamental Rights, to be 
interpreted as precluding national legislation under which, despite the 
redetermination of remuneration seniority and remuneration status, periods in a 
training relationship with a domestic local or regional authority must be accredited 
as periods preceding the date of appointment in the determination of the 
comparison reference date only if the civil servant entered the employment 
relationship after 31 March 2000 and, otherwise, those periods are accredited only 
as other periods, of which half must be taken into account, and are thus subject to 
the flat-rate deduction, with the result that that legislation tends to disadvantage 
longer-serving civil servants? 
Provisions of European Union law relied on 
Treaty on the Functioning of the European Union, Article 45 
Charter of Fundamental Rights of the European Union, Articles 21 and 52 
Regulation (EU) No 492/2011 of the European Parliament and of the Council of 
5 April 2011 on freedom of movement for workers within the Union, Article 7 
Council Directive 2000/78/EC of 27 November 2000 establishing a general 
framework for equal treatment in employment and occupation, Articles 1, 2, 3, 6, 
16 and 17 
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Provisions of national law relied on 
Gehaltsgesetz 1956 (1956 Law on salaries) (GehG) in the version in force on 
31 December 2003, Paragraphs 8 and 12 
Gehaltsgesetz 1956 (1956 Law on salaries) (GehG) in the version in force 
following the Besoldungsreform 2010 (2010 Remuneration Reform), 
Paragraphs 8, 12 and 169f(4) 
Gehaltsgesetz 1956 (1956 Law on salaries) (GehG) in the version in force 
following the Besoldungsreform 2015 (2015 Remuneration Reform), 
Paragraphs 8, 12, 169c, 169d and 175 
Gehaltsgesetz 1956 (1956 Law on salaries) (GehG) in the version in force 
following the Besoldungsreformanpassungsgesetz (Law adapting remuneration 
reform), BGBl. I No 104/2016, Paragraphs 169c and 175 
Gehaltsgesetz 1956 (1956 Law on salaries) (GehG) in the version of the 1. 
Dienstrechts-Novelle 2019 (1st Law amending the rules relating to public servants 
2019), BGBl. I No 58, as well as the further Amending Law published in BGBl. I 
No 153/2020, Paragraphs 169f and 169g 
Succinct presentation of the facts and procedure in the main proceedings 
1 The appellants on a point of law are civil servants in public-law employment 
relationships with the Federal Government and receive salaries under the 
Gehaltsgesetz 1956 (1956 Law on salaries) (GehG). 
2 The appellant on a point of law who was born in 1970 (‘the first appellant’) was 
initially an apprentice from 1 September 1985 to 1 August 1988 at what was then 
a state-owned company. He entered the Federal civil service on 1 July 1991. He is 
currently employed as a group inspector at a regional police directorate. With 
effect from that date (1 July 1991), his advancement reference date (the date 
which, until the Bundesbesoldungsreform 2015 (Federal Law on Remuneration 
Reform 2015), was decisive for advancement and thus for the remuneration of 
civil servants) was fixed at 17 September 1989, whereby periods completed before 
the age of 18 were disregarded. 
3 The appellant on a point of law who was born in 1972 (‘the second appellant’) 
completed an apprenticeship with a regional authority (Province of Salzburg) from 
1 September 1987 to 31 August 1990 and entered the Federal civil service on 
1 November 1995. With effect from the date of appointment, his advancement 
reference date was fixed at 23 September 1990, whereby the previous periods of 
service completed before the age of 18 were likewise disregarded. He is currently 
employed as an office director in a tax office. 
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4 In 2010, the appellants each requested that their advancement reference date and 
the resulting remuneration status be redetermined, with accreditable periods 
completed before the age of 18 being taken into account. In both cases, the 
authorities did fix new advancement reference dates (1 September 1986 for the 
first appellant and 1 July 1987 for the second appellant). However, referring to the 
national legal situation, they stated that the appellants’ remuneration status did not 
change as a result. 
5 In 2013, referring to a judgment of the Verwaltungsgerichtshof (Supreme 
Administrative Court), the first appellant then submitted a new application for 
recalculation of his advancement reference date and the resulting remuneration 
status, and requested the retroactive payment of any remuneration arising from the 
taking into account of accreditable periods completed before the age of 18. 
6 In 2015, the second appellant applied for retroactive payment of the difference in 
salary based on his recalculated advancement reference date and for the correction 
of the transition amount. 
7 By administrative decision of 12 January 2017, the authority competent for 
matters concerning civil service refused the first appellant’s application. 
8 In the judgment on which the proceedings relating to the appeal on a point of law 
are based, the Bundesverwaltungsgericht (Federal Administrative Court) found, in 
accordance with Paragraph 169f(4) of the GehG, that the first appellant’s 
remuneration seniority as of 28 February 2015 improved by one day (compared to 
the advancement reference date originally determined). It refused the request for 
retroactive payment of remuneration. 
9 In the judgment on which the proceedings relating to the appeal on a point of law 
are based, the Federal Administrative Court ruled on the second appellant’s 
application by fixing the appellant’s remuneration seniority with effect from 
28 February 2015, which improved his originally determined advancement 
reference date by four days. 
The essential arguments of the parties in the main proceedings 
10 The Austrian legal situation regarding the recalculation of remuneration seniority 
and the accreditation of previous periods of service is contrary to EU law. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
11 The development of the law can be briefly summarised at the outset as follows: 
Austrian law on remuneration originally provided for the principle that previous 
periods of service which a civil servant had completed before the age of 18 were 
not to be taken into account in the determination of the advancement reference 
date. 
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12 As a result of the legislature’s response to the decision of the Court of Justice of 
the European Union (‘the Court’) of 18 June 2009, Hütter, C-88/08, such previous 
periods of service became accreditable with the 2010 Remuneration Reform. 
However, such accreditation took place only on application and was accompanied 
by a three-year extension of the period required for advancement from the first to 
the second incremental step. 
13 In its judgment of 11 November 2014, Schmitzer, C-530/13, the Court declared 
that legal situation to be contrary to EU law. 
14 The legislature responded to that with the Federal Law on Remuneration Reform 
2015, by which the previous system based on the advancement reference date was 
replaced with a new remuneration seniority system. An ex officio reclassification 
of employment relationships took place by law, without the need for an 
application, on the basis of the last salary received under the old system. A review 
of the ‘transition amount’ determined on that basis was excluded by law. 
15 By judgment of 8 May 2019, Leitner, C-396/17, the Court acknowledged that 
such provisions are also precluded by EU law. 
16 The amendment now at issue, which was implemented by the 2. Dienstrechts-
Novelle 2019 (2nd Law amending the rules relating to public servants 2019), was 
justified on the ground that it complies with the requirements of Directive 
2000/78/EC and the case-law of the Court by virtue of the fact that it determines a 
new classification (comparison reference date) for existing employment 
relationships without the need for an application and transfers the difference thus 
determined to the remuneration seniority determined as a result of the transition 
brought about by the 2015 Remuneration Reform and the resulting ‘transition 
amount’. 
17 The question that arises for the Supreme Administrative Court is whether the rules 
at issue have eliminated the discrimination established by the Court in that 
connection and whether sufficient measures to restore equal treatment have been 
adopted: 
IV.1. Transition to the new remuneration system (Question 1): 
IV.1.1. Preliminary remarks 
18 Following the most recent decisions of the Court concerning the law on public 
servants, in the judgments of 8 May 2019, Leitner, C-396/17, and 
Österreichischer Gewerkschaftsbund, C-24/17, and of 10 October 2019, Krah, 
C-703/17, the Austrian legislature opted not to create an entirely new 
remuneration system for all civil services. Rather, it has attempted to find a non-
discriminatory solution on the basis of the existing pay system, by using the 
‘historical’ advancement reference date, and on the basis of the transition to the 
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remuneration seniority system brought about by the Federal Law on Remuneration 
Reform 2015. 
19 Already with the Federal Law on Remuneration Reform 2015, civil servants who 
were in service on the date of enactment of that law (11 February 2015) were 
transferred from the advancement reference date system to the remuneration 
seniority system, which was accompanied by a transition – governed by 
Paragraph 169c et seq. of the GehG – of the employment relationships to the new 
remuneration system. In that respect, the classification in the new remuneration 
seniority system was, in short, determined on the basis of the transition amount 
calculated by reference to the last salary received under the old system (which was 
calculated on the basis of the advancement reference date determined in a 
discriminatory manner – see judgment of the Court of 18 June 2009, Hütter, 
C-88/08). The basis for the transition was therefore the transition amount, that is 
to say, the full salary that was taken as the basis for the calculation of the monthly 
salary of a civil servant for February 2015 (transition month). The transition 
occurred through an overall determination of the remuneration seniority 
(Paragraph 169c(2) of the GehG). A review of the advancement reference date 
and the resulting transition amount was expressly excluded by law. That approach 
was found to be incompatible with EU law by the Court in its judgment of 8 May 
2019, Leitner, C-396/17. 
20 Now (that is to say, since the 2nd Law amending the rules relating to public 
servants 2019), the remuneration seniority is recalculated ex officio 
(Paragraph 169f(1) of the GehG) for all older civil servants who were in service 
on the date of enactment of the 2nd Law amending the rules relating to public 
servants 2019, that is say, 8 July 2019 (point 1 of Paragraph 169f(1) of the GehG) 
and have been transferred pursuant to Paragraph 169c(1) of the GehG (point 2 of 
Paragraph 169f(1) of the GehG) and in respect of whom the initial determination 
of the advancement reference date for the current employment relationship was 
made without taking into account periods completed before the age of 18 (point 3 
of Paragraph 169f(1) of the GehG). 
21 For that purpose, a comparison reference date is determined, which is compared to 
the historical advancement reference date. In accordance with Paragraph 169g(1) 
of the GehG, for the purpose of determining the comparison reference date, the 
periods which were to be accredited as preceding the date of appointment in the 
determination of the advancement reference date or which would have had to have 
been accredited as such if the age limit of 18 years (the age limit which had to be 
observed in the accreditation of previous periods of service prior to the 2010 
Remuneration Reform) had been disregarded, are to be accredited as preceding the 
date of appointment to an extent defined in greater detail. The age limit for 
accreditation is now set at the minimum age for employment under a combined 
work/training scheme pursuant to Article 4(2)(b) of Directive 94/33/EC (point 1 
of Paragraph 169g(2) of the GehG, in conjunction with point 1 of 
Paragraph 169g(3) thereof), that is to say, at the age of 14. 
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22 In view of the concerns set out below, the Supreme Administrative Court takes the 
view that it is not unequivocally clear that the discrimination on grounds of age 
established by the Court in the judgments cited has been completely eliminated by 
the amending law at issue. 
IV.1.2. Maintenance of remuneration seniority: 
23 The transition of older civil servants on the basis of the Federal Law on 
Remuneration Reform 2015 by virtue of a provision entering into force with 
retroactive effect (see point 3 of Paragraph 175(79) of the GehG, in the version 
published in BGBl. I No 104/2016) to the new remuneration system solely on the 
basis of their previous salaries through an overall determination of their 
remuneration seniority was found to be contrary to EU law by the Court in its 
judgment of 8 May 2019, Leitner, C-396/17 (see, in relation to the parallel 
provisions applicable to contractual public servants, the decision of the Court of 
8 May 2019, Österreichischer Gewerkschaftsbund, C-24/17). 
24 The provisions now in force maintain, in principle, that transition on the basis of 
the previous salaries (determined in a discriminatory manner). Accordingly, after 
the comparison reference date has been determined (Paragraph 169g of the 
GehG), the remuneration status is recalculated directly by determining the 
remuneration seniority at the end of 28 February 2015 (Paragraph 169f(4) of the 
GehG). The remuneration seniority determined through an overall determination 
on the basis of the transition amount – that is to say, the full salary on which the 
calculation of the monthly pay of a civil servant for February 2015 (transition 
month) was based – in accordance with Paragraph 169c of the GehG is now 
corrected by the difference between the historical advancement reference date and 
the comparison reference date. 
25 In its decision of 8 May 2019, Leitner, C-396/17, paragraphs 46 to 49, the Court 
explained the difference between the transition mechanisms in German law, which 
had formed the basis of the decisions of 19 June 2014, Specht and Others, 
C-501/12, EU:C:2014:2005, and of 9 September 2015, Unland, C-20/13, 
EU:C:2015:561, and the transition mechanisms provided for in Austrian law 
following the Federal Law on Remuneration Reform 2015. 
26 Even under the system now in force, the transition is carried out on the basis of 
the historical advancement reference date (which was not determined in a non-
discriminatory manner) and the resulting historical transition amount, even if the 
remuneration seniority is now corrected by means of the comparison reference 
date. The transition took place for all civil servants without distinction, 
irrespective of whether or not they were disadvantaged by the old system of 
remuneration and advancement (see CJEU, 8 May 2019, Leitner, C-396/17). 
Similarly, the rules for determining the comparison reference date and applying it 
to remuneration seniority apply equally to all civil servants. There are therefore 
doubts as to whether this will lead to less discrimination as a civil servant 
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progresses through his or her career; compensation for the past is provided only to 
a very limited extent, if at all. 
27 Therefore, the question that arises for the Supreme Administrative Court is 
whether the present means of recalculating the remuneration status in existing 
employment relationships – still – constitutes a perpetuation of the discrimination 
already established by the Court in its judgments of 10 November 2014, 
Schmitzer, C-530/13, and of 8 May 2019, Leitner, C-396/17, and, against that 
background, is to be regarded as being contrary to EU law. 
IV.1.3. Re-adjustment only in respect of ‘other periods’: 
28 Not all periods are reassessed in the determination of the comparison reference 
date, but, rather, in accordance with Paragraph 169g(6) of the GehG – with the 
exception of, inter alia, any upper limits for accreditable periods that may have to 
be observed pursuant to Paragraph 169g(5) of the GehG – res judicata is to be 
assumed with regard to the accreditation of the periods that an older civil servant 
completed after the age of 18 and which were thus already included in the 
determination of the advancement reference date. 
29 This means that there is not a complete adjustment of all accreditable periods in 
the sense of a full reclassification of all older civil servants in the new 
remuneration system (unlike under Paragraph 53a of the Bundesbahngesetz (Law 
on Federal railways), BGBl. No 825/1992, in the version published in BGBl. I 
No 64/2015, which was amended as a result of the decision of the Court of 
28 January 2015, Starjakob, C-417/13, and provides for a complete 
reclassification taking into account all previous periods of service). 
30 After the comparison reference date has been determined, the remuneration 
seniority is recalculated with effect from 28 February 2015 in accordance with 
Paragraph 169f(4) of the GehG – without the intervening periods of service 
having been adjusted. 
31 The fact that periods already accredited are not readjusted means that periods 
already accredited (after the age of 18) are not subject to a new assessment. The 
periods between the ages of 14 and 18 that are to be taken into account for the first 
time as a result of the amending law are subject to the restrictions described 
below – in particular with regard to the ‘other periods’. Therefore, there appear to 
be doubts as to whether the discrimination of the previously disadvantaged 
category of civil servants on grounds of age compared to the group of civil 
servants not disadvantaged by the old remuneration system, in particular with 
regard to training periods, has now been eliminated. 
IV.1.4. ‘Flat-rate deduction’: 
32 It is true that the other periods, of which half must be taken into account 
(Paragraph 12(1), point 2(b), of the GehG) are adjusted in respect of the entire 
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career of service in the determination of the comparison reference date, that is to 
say, irrespective of whether they were completed before or after the age of 18 (see 
OGH, 25 November 2020, 9 ObA 94/20v, concerning Paragraph 94b(4) of the 
VBG, in which it was therefore found that there was no discrimination on grounds 
of age). However, it appears that the flat-rate deduction under Paragraph 169g(4) 
of the GehG ultimately achieves the same effect as that previously achieved by the 
extension of the first advancement by means of the 2010 Remuneration Reform. 
33 The periods to be taken into account in the period between the ages of 14 and 18 
are likely to be school and training periods for the most part, of which half are to 
be accredited as preceding the date of appointment, as ‘other periods’. 
34 It is true that the maximum total amount of other periods to be taken into account 
under point 2(b) of Paragraph 12(1) of the GehG has now been increased from 
three to seven years (point 4 of Paragraph 169g(3) of the GehG). At the same 
time, however, it was determined that the other periods, of which half must be 
taken into account, must be accredited, in accordance with Paragraph 169g(4) of 
the GehG, as preceding the date of appointment only in so far as they exceed the 
total amount of four years, of which half must be taken into account (flat-rate 
deduction). 
35 That flat-rate deduction was introduced by the 2nd Law amending the rules relating 
to public servants 2019. Prior to that, half of the other periods up to the amount of 
three years had to be taken into account, without any deduction, in the 
determination of the advancement reference date (see point 2(b) of 
Paragraph 12(1) of the GehG, in the version published in BGBl. I No 96/2007). At 
the same time as the reduction of the age limit from 18 to 14 years – resulting in 
four additional years that could potentially be accredited as preceding the date of 
appointment – the upper limit was raised to seven years, of which half must be 
taken into account. However, the additional four years that could potentially be 
accredited as preceding the date of appointment are accompanied by the flat-rate 
deduction of four years which was introduced at the same time. 
36 This ultimately means that – with regard to the upper limit of seven years, of 
which half must be taken into account – only a maximum of three years, of which 
half must be taken into account, can be accredited, as was previously the case. In 
other words, that provision (Paragraph 169g(4) of the GehG) has the effect that, 
despite an extension of the total amount of possible accreditable periods by four 
years, an extension of accreditable periods is ruled out due to the flat-rate 
deduction of four years. On that basis, it is also not apparent how the (possible) 
accreditation of up to four years and the simultaneous deduction of four years is 
supposed to eliminate discrimination in terms of remuneration status. 
37 With regard to the legal situation after the 2010 Remuneration Reform, BGBl. I 
No 82/2010, the Court found in its decision of 11 November 2014, Schmitzer, 
C-530/13 (and, comparably in that respect, in its decision of 28 January 2015, 
Starjakob, C-417/13), that the extension of the required length of service in the 
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first salary step from two to five years for the civil servants previously 
discriminated against had the effect of perpetuating discrimination on grounds of 
age, for which reason it was found to be contrary to EU law. 
38 By contrast to the provisions of Paragraph 113(10) and (11) of the GehG, in the 
version published in BGBl. I No 82/2010 – on which the judgment of 
11 November 2014, Schmitzer, C-530/13 was based, and in accordance with 
which the recalculation of the advancement reference date and thus the associated 
extension of the length of service in the first salary step under Paragraph 8 of the 
GehG, in the version published in BGBl. I No 82/2010, was dependent on the 
submission of an application by the older civil servant – the transition under 
Paragraph 169f of the GehG, in the version published in BGBl. I No 153/2020, 
now takes place ex officio as a general rule. Moreover, it is not only the older civil 
servants previously discriminated against, that is to say, those for whom previous 
periods of service completed before the age of 18 were excluded from 
accreditation, but in principle all older civil servants who were transferred to the 
remuneration seniority system. 
39 However, Paragraph 169g(4) of the GehG, in the version published in BGBl. I 
No 153/2020, which is now applicable, has the same effect as the provision of 
Paragraph 8 of the GehG, in the version published in BGBl. I No 82/2010, in so 
far as the possible effect on the previous periods of service resulting from the 
extension of the accreditation possibilities to include periods between the ages of 
14 and 18 is neutralised by the introduction of a form of curtailment of four years, 
with the result that the older civil servants who – only – have additional (training) 
periods which were completed before the age of 18 and of which half would have 
to be accredited as other periods are potentially unable to improve their 
remuneration status. An – appreciable – improvement of their remuneration status 
is therefore not possible. 
40 However, in accordance with the case-law of the Court, the budgetary 
considerations behind the flat-rate deduction – just like considerations of an 
administrative nature – cannot in themselves constitute a legitimate aim within the 
meaning of Article 6(1) of Directive 2000/78 (see, CJEU, 8 May 2019, Leitner, 
C-396/17, paragraph 43; 28 January 2015, Starjakob, C-417/13, paragraph 36). 
41 It is precisely in view of the fact that, according to the competent Federal 
Minister, a decline in remuneration status is not to be expected for any civil 
servant, that is to say, those who were not previously disadvantaged in the old 
system do not have to expect any loss, and, on the other hand, the possible 
accreditation of further ‘other periods’ up to the amount of four years is to be 
‘neutralised’ by the introduced deduction of a period of the same length, that it 
appears to be questionable whether the discrimination on grounds of age 
previously established has now been eliminated, or whether that legal situation is 
also contrary to EU law. 
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42 Amongst other things, the accreditation of training periods as other periods, of 
which half must be taken into account, is in dispute in the two sets of main 
proceedings. Due to the flat-rate deduction of four years, those periods of training 
do not have an appreciable effect on the determination of the comparison 
reference date and therefore also on the determination of the remuneration status 
for the appellants on a point of law, despite the extension of the relevant period by 
four years. 
IV.2. Pending proceedings initiated on application (Question 2): 
43 The determination – which, in principle, relates to all civil servants – of the 
comparison reference date does not take place in the case of the civil servants for 
whom, after the initial determination of the advancement reference date without 
taking into account the periods completed before the age of 18, the periods 
completed before the age of 18 have already been accredited as preceding the date 
of appointment in accordance with the provisions of Federal Law published in 
BGBl. I No 82/2010 and have become effective in full for the purposes of 
classification by virtue of the disregarding (as a result of the primacy of EU law) 
of the extension, implemented by that Federal Law (points 3 and 4 of 
Paragraph 169f(1) of the GehG), of the period required for the first advancement. 
44 In other words, civil servants for whom, due to the disregarding of age-
discriminatory provisions as a result of the direct application of EU law, the 
advancement reference date was recalculated by the authority or the 
administrative court, usually on the basis of an application, before the entry into 
force of the 2nd Law amending the rules relating to public servants 2019, with 
accreditable periods accrued before the age of 18 being taken into account (in 
full), and for whom that recalculation had also already been taken into account in 
their remuneration status, are excluded from the determination of a comparison 
reference date and a re-adjustment of the determination of their remuneration 
status. 
45 By contrast, in the case of proceedings (initiated upon application) that were 
pending on the date of enactment of the 2nd Law amending the rules relating to 
public servants 2019, the recalculation (via the determination of the comparison 
reference date) is carried out in those proceedings (Paragraph 169f(3) of the 
GehG). 
46 This means that the civil servants whose advancement reference date has already 
been improved by the authority or the administrative court as a result of the fact 
that age-discriminatory rules are not applied to them, but for whom, in view of the 
national legal situation, this has not yet had any effect on their remuneration 
status, are treated as though an improvement of the advancement reference date 
has not yet taken place. For those civil servants, a comparison reference date is 
determined, which is compared to the original, historical advancement reference 
date determined in a discriminatory manner. 
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47 In the case of the appellants in the main proceedings, the authorities competent for 
matters concerning civil service had already determined an advancement reference 
date that constituted an improvement of approximately three years over the 
historical advancement reference date. However, as this still did not lead to any 
improvement in their remuneration status – and the proceedings were still pending 
in that respect – the comparison reference date is now once again based on the 
historical advancement reference date (determined in an age-discriminatory 
manner). In the case of the appellants on a point of law, this leads to the outcome 
that the advancement reference date is not improved by approximately three years, 
as was previously the case, but merely by a few days. 
48 Since a failure to improve remuneration status, as required by EU law, is primarily 
attributable to the duration of the administrative proceedings and the conduct of 
the authorities, it appears to be at least doubtful whether sufficient compensation 
is provided for civil servants who have actively asserted claims based on 
discrimination on grounds of age, but whose proceedings had not yet been fully 
concluded. 
49 Accordingly, the Court has already stated, in any event in a different context, that 
it is not consistent with the principles of equal treatment and legal certainty, for 
the purposes of equal and foreseeable treatment of all applicants who are in the 
same situation chronologically, if the success of an application depends on how 
quickly or slowly the application is processed or the decision on an appeal is 
taken, and thus on circumstances not attributable to the applicant (see CJEU, 
17 July 2014, Noorzia, C-338/13, EU:C:2014:2092; 12 April 2018, A and S, 
C-550/16, EU:C:2018:248; 16 July 2020, B.M.M. and Others, Joined Cases 
C-133/19, C-136/19 and C-137/19, EU:C:2020:577, concerning Directive 
2003/86/EC; and CJEU, 9 September 2021, Bundesrepublik Deutschland, 
C-768/19, EU:C:2021:709, concerning Directive 2011/95/EU). The fact that that 
group of persons, whose advancement reference date has been improved but for 
whom this has not yet had any effect on their remuneration status, consists of a not 
insignificant number of civil servants is already clear from the fact that a special 
statutory provision has been made for them. 
IV.3. Accreditation of apprenticeship periods (Question 3): 
50 The Dienstrechts-Novelle 2000 (Law amending the rules relating to public 
servants 2000), BGBl. I No 94, created the possibility, in point 4(d) of 
Paragraph 12(2) of the GehG (with effect from 1 April 2000), for periods worked 
as an apprentice in a training relationship with a domestic local or regional 
authority (apprenticeship periods) to be accredited as previous periods of service. 
However, this applied only to periods completed after the age of 18. These periods 
were to be accredited in full as preceding the date of appointment (and not merely 
as other periods, of which half were to be so accredited). 
51 It is only since the 2010 Remuneration Reform, as a reaction by the Austrian 
legislature to the decision of the Court of 18 June 2009, Hütter, C-88/08, that 
LANDESPOLIZEIDIREKTION NIEDERÖSTERREICH AND FINANZAMT ÖSTERREICH 
 
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apprenticeship periods completed by a civil servant before the age of 18 have been 
taken into account (up to a maximum total amount of three years). That 
accreditation, which was possible only on request, was independent of the date of 
appointment, but was accompanied by a three-year extension of the period 
required for advancement from the first to the second incremental step (see CJEU, 
11 November 2014, Schmitzer, C-530/13). 
52 Since the 2nd Law amending the rules relating to public servants 2019, 
apprenticeship periods with a domestic local or regional authority must be taken 
into account (in full) in accordance with point 5 of Paragraph 169g(3) of the 
GehG, but only if the civil servant entered into the public-law employment 
relationship after 31 March 2000 (thus after the entry into force of the Law 
amending the rules relating to public servants 2000, when the accreditation of 
apprenticeship periods was introduced). In the case where a person enters into the 
public-law employment relationship before 1 April 2000, the accreditation, in full, 
of apprenticeship periods completed before the age of 18 as periods preceding the 
date of appointment is once again excluded. Where applicable, those periods must 
be accredited as other periods, of which half must be accredited. 
53 In the cases of the appellants on a point of law, this means that their 
apprenticeship periods are not taken into account in full in the determination of 
the reference date, due to the fact that they entered into their current employment 
relationship before 1 April 2000. As stated in point IV.1.4., the taking into account 
of other periods does not lead to a (significant) improvement of remuneration 
seniority, in view of the flat-rate deduction. 
54 In that connection, the question that therefore arises for the Supreme 
Administrative Court is whether the transfer of such a reference date, from which 
apprenticeship periods are accredited in full, from a system that was not 
previously non-discriminatory to a remuneration system that was intended to 
eliminate the previous discrimination is compatible with the abovementioned 
provisions of EU law. Accordingly, precisely in the case of the appellants on a 
point of law, the apprenticeship periods had since been taken into account in the 
determination of their advancement reference date, in view of the provisions of 
the 2010 Remuneration Reform, BGBl. I No 82, but this did not (yet) have any 
effect on their remuneration status. 
55 In that connection, it now appears that the salary of civil servants appointed before 
1 April 2000 – if they have apprenticeship periods that they completed before 
their 18th birthday – is lower than that of those appointed since that date and who 
have the same apprenticeship periods, solely on account of their age at the time of 
appointment (see the judgments of the Court of 8 May 2019, Leitner, C-396/17, 
paragraph 38; 9 September 2015, Unland, C-20/13, paragraph 40). 
56 Since the non-accreditability of apprenticeship periods for civil servants who 
entered into the employment relationship before 31 March 2000 now tends to 
affect older civil servants, this could constitute indirect discrimination on grounds 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-650/21 
 
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of age. This is not least because the legislature states in the explanatory notes that 
the aim of the measures taken is to ensure that all civil servants are reclassified 
according to a ‘uniform set of rules that is no longer linked to the 18th birthday’.