Opinion of the Advocate General — ECLI:EU:C:2018:993
Date: 2018-12-06
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
Origin: Austria

Request for a preliminary ruling from the Bundesverwaltungsgericht (Austria) lodged on 3 July 2017 — Martin Leitner v Landespolizeidirektion Tirol (Case C-396/17) Language of the case: German Referring court Bundesverwaltungsgericht Parties to the main proceedings Applicant: Martin Leitner Defendant: Landespolizeidirektion Tirol Questions referred 1.1. Is EU law, in particular Articles 1, 2 and 6 of Directive 2000/78/EC, 1 in conjunction with Article 21 of the Charter of Fundamental Rights of the European Union, to be interpreted as precluding national legislation that, for the purpose of eliminating discrimination against currently employed civil servants, establishes a transitional rule under which reclassification from the previous biennial system to a new biennial system, on the basis of a ‘transition amount’, which, while calculated in money, nevertheless corresponds to a certain grading that can be specifically allocated, that in and of itself is non-discriminatory for newly hired civil servants, such that age discrimination against currently employed civil servants still continues? 1.2. Is EU law, in particular Article 17 of Directive 2000/78/EC and Article 47 of the Charter of Fundamental Rights of the European Union, to be interpreted as precluding national legislation that, in accordance with the interpretation of the Court of Justice of Articles 9 and 16 of Directive 2000/78 in its judgment of 11 November 2014 in Schmitzer (C-530/13, EU:C:2014:2359), prevents currently employed civil servants from having their remuneration status determined, in reliance on Article 2 of Directive 2000/78, as at the time prior to transition to the new system by declaring that the corresponding legal bases are no longer applicable retroactively to the date on which its historical original law entered into force and, in particular, that previous service periods completed before the age of 18 may not be accredited? 1.3. If the answer to Question 1.2. is in the affirmative: Does the judgment of the Court of Justice of 22 November 2005 in Mangold (C-144/04, EU:C:2005:709) and in other cases specifying that EU law takes precedence over national legislation mandate that provisions applicable to currently employed civil servants at the time prior to transition, which had been retroactively repealed, must continue to be applied so that those civil servants can be retroactively classified in the old system in a non-discriminatory manner and are thus reclassified in the new remuneration system in a non-discriminatory manner? 1.4. Is EU law, in particular Articles 1, 2 and 6 of Directive 2000/78, in conjunction with Articles 21 and 47 of the Charter of Fundamental Rights of the European Union, to be interpreted as precluding national legislation that eliminates existing age discrimination (with respect to the accreditation of previous service periods completed before the age of 18) in a merely declaratory manner by specifying that the periods actually completed under conditions of discrimination are retroactively to be considered no longer discriminatory even though discrimination in fact still continues? ____________ 1 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ 2000 L 303, p. 16.