Opinion of the Advocate General — ECLI:EU:C:2022:61
Date: 2022-01-27
Language of the case: German
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-405/20 – 1 
Case C-405/20 
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: 
28 August 2020 
Referring court: 
Verwaltungsgerichtshof (Austria) 
Date of the decision to refer: 
31 July 2020 
Appellants on a point of law: 
EB 
JS 
DP 
Respondent authority: 
Versicherungsanstalt öffentlich Bediensteter, Eisenbahnen und 
Bergbau (BVAEB) 
  
Subject matter of the main proceedings 
Challenge to the determination of the retirement pension payable under an 
allegedly discriminatory pension adjustment scheme 
Subject matter and legal basis of the reference for a preliminary ruling 
Interpretation of EU law; Article 267 TFEU 
Questions referred 
1. Must the limitation of the scope ratione temporis of the requirement of equal 
treatment for men and women laid down in the judgment in Case C-262/88, 
EN 
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Barber, as well as in Protocol No 33 concerning Article 157 TFEU and Article 12 
of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 
2006 on the implementation of the principle of equal opportunities and equal 
treatment of men and women in matters of employment and occupation 
(‘Directive 2006/54/EC’), be interpreted as meaning that an (Austrian) pensioner 
cannot lawfully rely on the requirement of equal treatment for men and women, or 
can do so only (in part) in respect of that part of his entitlement that relates to 
periods of employment after 1 January 1994, in order to claim that he has been 
discriminated against by rules on an adjustment of civil servants’ pensions laid 
down for 2018 such as that which was applied in the main proceedings? 
2. Must the requirement of equal treatment for men and women (pursuant to 
Article 157 TFEU in conjunction with Article 5 of Directive 2006/54/EC) be 
interpreted as meaning that indirect discrimination such as that which – in some 
cases – results from the rules, at issue in the main proceedings, concerning the 
2018 pension adjustment, even in the light of similar measures adopted previously 
and the considerable loss caused by the cumulative effect of those measures as 
compared with an adjustment of the actual value of pensions to take into account 
inflation (in this instance, a loss of 25%), is justified in particular 
– in order to avoid a ‘divide’ between higher and lower pensions (caused by 
periodic adjustment at a single rate), even though this would be purely nominal 
and would leave the differential between the two unchanged, 
– in order to put in place a general ‘social component’ in the form of steps to 
increase the purchasing power of those on lower pensions, even though (a) that 
objective could be attained even without limiting the adjustment of higher 
pensions and (b) the legislature does not also provide for the same type of 
measure to increase purchasing power when it comes to adjusting for inflation 
the salaries of lower-paid civil servants (to the detriment of the adjustment 
applied to the salaries of higher-paid civil servants), and has also not laid down 
rules for a comparable intervention in the adjustment applied to the value of 
pensions under other occupational social security schemes (in which the State 
does not participate) in order to increase the purchasing power of lower 
pensions (to the detriment of the adjustment of higher pensions), 
– in order to maintain and finance ‘the scheme’, even though civil service 
pensions are payable not by an insurer-operated scheme organised in the form 
of insurance and financed from contributions, but by the Federal Government 
as employer of retired civil servants and in consideration for work performed, 
so that the maintenance or financing of a scheme is not decisive, the only 
relevant considerations, ultimately, being budgetary, 
– because the fact that the statistically much higher representation of men among 
recipients of higher pensions is to be regarded as the consequence of the lack of 
equal opportunities for women in matters of employment and occupation that 
was typical in the past in particular, constitutes an independent ground of 
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3 
justification or (upstream of that) rules out from the outset any assumption of 
indirect discrimination on grounds of sex, within the meaning of Directive 
2006/54/EC, to the detriment of men, or 
– because the scheme is permissible as positive action for the purposes of 
Article 157(4) TFEU. 
Provisions of EU law cited 
Article 157 TFEU 
Protocol (No 33) concerning Article 157 of the Treaty on the Functioning of the 
European Union 
Agreement on the European Economic Area, Articles 6 and 69 
Directive 2006/54/EC of the European Parliament and of the Council of 5 July 
2006 on the implementation of the principle of equal opportunities and equal 
treatment of men and women in matters of employment and occupation, 
Articles 1, 2, 3, 4, 5, 6, 7 and 12; recitals 14, 17 and 18 
Provisions of national law cited and parliamentary documents cited 
Pensionsgesetz 1965 (Law on Pensions 1965), Paragraph 41 
Allgemeines Sozialversicherungsgesetz (General Law on Social Insurance), 
Paragraphs 108f, 108h and 711 
Pensionsharmonisierungsgesetz 2004 (2004 Law on the Harmonisation of 
Pensions) and parliamentary documents (RV 653 BlgNR 22. GP) 
Pensionsanpassungsgesetz 2018 (2018 Law on the Adjustment of Pensions) and 
parliamentary documents (RV 1767 BlgNR 25. GP) 
Brief summary of the facts and procedure 
1 The appellants on a point of law each have a relationship with the Federal 
Government that is governed by public law and receive pensions under the Law 
on Pensions 1965 (‘PG 1965’). 
2 The appellant on a point of law in the appeal proceedings registered under number 
Ro 2019/12/0005 was born on 5 February 1940 and retired on 31 August 2000. In 
2017, he received a gross pension of EUR 6 872.43 per month. The appellant on a 
point of law in the appeal proceedings registered under number Ra 2019/12/0006 
was born on 28 July 1948 and retired on 30 November 2013. In 2017, he received 
a gross pension of EUR 4 676.48 per month. The appellant on a point of law in the 
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appeal proceedings registered under number Ra 2019/12/0054 was born on 
11 January 1941 and retired on 1 March 2006. In 2017, he received a gross 
pension of EUR 5 713.22 per month. 
3 The appellants on a point of law each requested that the amount of their pension 
be determined by decision with effect from 1 January 2018. The decisions taken in 
respect of the appellants on a point of law in cases Ro 2019/12/0005 and Ra 
2019/12/0054 found in this regard that there was no need to adjust the amount of 
their pensions for 2018, since their pensions exceeded the upper limit of 
EUR 4 980 per month that had been set for adjustments. The decision taken in 
respect of the appellant on a point of law in case Ra 2019/12/0006 increased his 
pension by 0.2989%. 
4 The appellants on a point of law challenged those decisions on the ground that the 
2018 pension adjustment rules applicable to them were contrary to EU law 
because they gave rise to indirect discrimination on grounds of sex. Appeals on a 
point of law against the judgments of the Bundesverwaltungsgericht (Federal 
Administrative Court, Austria) (‘BVwG’) in those three cases are now pending 
before the referring court. 
5 The background to the case is the change of law which the referring court 
describes as follows. As part of the 2004 Law on the Harmonisation of Pension, 
Austrian social insurance law (and the law governing civil service pensions) was 
the subject of new rules on the arrangements applicable to the annual adjustment 
of pension values. In the general provision contained in Paragraph 108h of the 
Allgemeines Sozialversicherungsgesetz (General Law on Social Insurance) (‘the 
ASVG’), the legislature stipulated that pensions must be annually adjusted to the 
rate of inflation. The aim of that rule was to peg pensions to changes in consumer 
prices and thus to ensure that pensioners retained their purchasing power 
throughout the reference period. 
6 The appellants on a point of law draw their pensions not under the ASVG but 
under the PG 1965, which governs the pensions of civil servants who were born 
before 1955, had entered into an employment relationship governed by public law 
by 2005 at the latest and have subsequently retired. 
7 Up until the entry into force of the first Budgetbegleitgesetz 1997 (Law 
accompanying the budget of 1997), the PG 1965 provided for (civil servants’) 
pensions to be periodically adjusted by means of increases in pensions to bring 
them into line with increases in the salaries of working civil servants. Since the 
first Law accompanying the budget of 1997, the adjustment of civil servants’ 
pensions has been provided for in the form of the reference in Paragraph 41 of the 
PG 1965 to provisions of the ASVG. In the current version of Paragraph 41(2) of 
the PG 1965, that reference to the ASVG is worded in such a way as to stipulate 
that pensions under the PG 1965 ‘shall be adjusted at the same time and in the 
same proportion as pensions covered by the statutory pension insurance scheme’. 
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5 
Paragraph 41(4) of the PG 1965 states that the special provision concerning the 
2018 pension adjustment is applicable. 
8 It follows from the parliamentary documents relating to the rules in the 2004 Law 
on the Harmonisation of Pensions concerning periodic pension adjustment under 
the ASVG that the intention was to introduce a scheme based on the principle that 
the value adjustment provided for to take account of inflation would automatically 
be applied to all pensions every year in an amount in line with the increase in 
consumer prices. It is also apparent from those documents that, although this was 
intended to be a general, long-term scheme, the legislature nonetheless had the 
option of derogating from it by providing for limited exceptions in specific years. 
In the years since then, the legislature has repeatedly derogated from the 
aforementioned general scheme of rules governing pension adjustments laid down 
in the ASVG in 2004, and has created in respect of the general regime of pegging 
pension adjustments to the rate of inflation individual exceptions the effect of 
which has been: in some years, to lower the pension increase (by calibrating it 
according to the amount of the pension); in many years, to reduce it in percentage 
terms (without distinction as to the amount of the pension); and, in many years, to 
eliminate it altogether. 
9 For 2018, the legislature created such an ad hoc derogation in the 2018 Law on the 
Adjustment of Pensions (‘PAG 2018’), determined the level of pension 
adjustment according to a scale decreasing in proportion to the level of pension 
benefit, excluded from any adjustment at all pensions of EUR 4 980 per month or 
more and fixed the adjustment applicable to pensions corresponding to a level of 
benefit of between EUR 3 355 to EUR 4 989 according to a percentage decreasing 
on a linear basis from 1.6% to 0% (Paragraph 711 of the ASVG). 
Main arguments of the parties to the main proceedings 
10 In their appeals before the BVwG, the appellants on a point of law submitted that, 
from 1995, the salary and pension law applicable to them had continuously 
changed for the worse. Since 31 December 1998, the level of pension benefit is no 
longer adjusted in line with salary trends (as had been provided for in the version 
of Paragraph 41(2) of the PG 1965 applicable hitherto), but according to an 
adjustment factor which essentially reflects changes in purchasing power. 
11 To illustrate the disadvantages they have experienced in recent years as a result of 
the periodic adjustment of the level of their pension benefit, the appellants on a 
point of law listed the adjustment schemes adopted each year between 2001 and 
2017. According to that list, the pension adjustments applied each year between 
2001 and 2012 were such that higher levels of pension benefit (as compared with 
lower levels of pension benefit) were adjusted to a lesser extent or by only a fixed 
amount, and, even in those years in which pensions were adjusted without 
distinction according to the level of pension benefit, the increase was well below 
the adjustment factor laid down in principle. 
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12 In 2018, the scheme at issue in the present case came into force. As a result of that 
scheme, two of the appellants on a point of law were excluded from the pension 
adjustment and the third received a substantially reduced pension adjustment. 
13 According to the appellants on a point of law, the scheme adopted under the 
PAG 2018 gives rise to indirect discrimination on grounds of sex which is 
contrary to EU law. To demonstrate that the scheme has those effects, the 
appellants on a point of law submitted a statistical analysis which breaks down the 
recipients of retirement pensions and welfare benefits under the PG 1965 
according to sex and level of benefit. This shows that those in receipt of a level of 
benefit in excess of EUR 4 980 comprise a total of 8 417 men and only 1 086 
women (an overall ratio of 1:7.7). If account is taken only of retirement pensions 
(to the exclusion, that is to say, of welfare benefits), men account for 8 417 of the 
beneficiaries and women 1 040 (a ratio of 1:8). 
14 On the claim of discrimination of grounds of sex that is contrary to EU law, the 
BVwG held that there were grounds of justification in all three cases, stating in 
this regard that the findings of the Court of Justice in the judgment of 20 October 
2011, Brachner (C-123/10, EU:C:2011:675), could not be transposed to the 
situation in this instance, since this case concerned not with discrimination in 
relation to ‘minimum pensions’ but with a disadvantage based on sex suffered by 
recipients of ‘higher pensions’, in respect of which ‘a different standard’ had to be 
applied. It further held that the ‘better position of a group’ is not capable of 
constituting discrimination if it is linked to a disadvantage in connection with the 
increase of benefit. 
15 The respondent authority contends that there is also a ‘social component’ to the 
objectives pursued by the scheme provided for in the PAG 2018. 
16 This is demonstrated by the fact that, in recent decades, there have been hardly 
any linear pension adjustments which have increased pensions to the same extent 
in percentage terms. Since 2006, pensions have been increased by the same 
percentage in only 2013, 2014, 2015 and 2017. In all other years, pension 
adjustments have been socially calibrated in favour of lower pensions. If the 
principle of adjusting pensions by the same percentage without distinction as to 
the level of benefit were adopted every year, this would very quickly give rise to 
an unjustifiable divide. 
17 It is therefore reasonable, from the point of view of both maintaining purchasing 
power and achieving a social balance, that the legislature should intervene by 
legislating to support those on low incomes while viewing those on higher 
incomes as not needing to have their purchasing power increased. It is clearly 
possible to apply a lesser adjustment to very high pensions than to small pensions 
without jeopardising the value of a (still well above average) pension or a standard 
of living already attained. The discretion to take into account social considerations 
is particularly extensive in this instance because very high pensions are still much 
less contributions-based than low pensions, with the result that, in the case of the 
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latter, regard is to be had ‘less to the principle of adequacy than to the principle of 
welfare’. However, a person in receipt of a pension may in any event be ‘regarded 
as enjoying an adequate level of benefit even if’ his pension, ‘which exceeds by 
150% the maximum pension available under the ASVG’, is not adjusted to the 
same extent as small and medium-sized pensions. 
18 In the case of high pensions, a smaller adjustment is not only reasonable, but also, 
as a social solidarity measure aimed at offsetting the receipt of a particularly high 
pension benefit, positively required. The choice made by the legislature to 
calibrate the 2018 pension adjustment to take into account social considerations is 
justified by the fact that small and medium-sized pensions are particularly affected 
by above-average rises in food prices and the cost of living. 
Succinct presentation of the reasons for the request for a preliminary ruling 
The first question 
19 The fact that (for retired civil servants, at least) the pension adjustment at issue 
must be classified as ‘pay’ and constitutes a benefit under an ‘occupational social 
security scheme’ within the meaning ascribed to those terms under EU law is of 
relevance to the cases in the main proceedings, inasmuch as the application 
ratione temporae of the principle of equal treatment for men and women to 
benefits under occupational social security schemes was limited by the judgment 
of 7 May 1990, Barber (C-262/88, EU:C:1990:209). In that connection, it is 
important to clarify whether that limitation is applicable to the pension adjustment 
scheme at issue in the main proceedings (and, if so, what kind of impact this will 
have). 
20 The Court of Justice has classified civil servants’ pensions as provided for in the 
legislation of individual Member States as ‘pay’ within the meaning of Article 157 
TFEU and as ‘benefits under an occupational social security scheme’ within the 
meaning of Directive 2006/54/EC (or its predecessor, Directive 86/378/EEC). 
21 The Court of Justice has already, in its judgment of 21 January 2015, Felber 
(C-529/13, EU:C:2015:20, paragraph 23), classified the pensions of Austrian 
federal civil servants as provided for in the PG 1965 as pay within the meaning of 
Article 157 TFEU. In its judgment of 16 June 2016, Lesar (C-159/15, 
EU:C:2016:451, paragraphs 27 to 29), the Court of Justice also held in that regard 
that those pensions were to be classified as benefits under an occupational social 
security scheme within the meaning of the definitions contained in Directive 
2006/54/EC. It follows that the pensions drawn by the appellants on a point of law 
fall within the concept of pay as provided for in Article 157 TFEU and must be 
regarded as benefits under an occupational social security schemes within the 
meaning of Protocol No 33 concerning Article 157 TFEU and Chapter 2 of 
Directive 2006/54/EC. 
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22 In the case of benefits under occupational social security schemes, Protocol No 33 
concerning Article 157 TFEU and Article 12 of Directive 2006/54/EC attach a 
time limitation to the requirement of equal treatment for men and women. That 
limitation can be traced back to the restriction laid down in the judgment in 
Barber (C-262/88, EU:C:1990:209) with respect to the temporal effects of that 
judgment. 
23 In the case of those Member States which – like Austria – acceded to the 
European Economic Area on 1 January 1994, the Court of Justice has further held 
that, in accordance with Articles 6 and 69 of the EEA Agreement, that agreement, 
so far as its applicability ratione temporae to pensions under an occupational 
social security scheme is concerned, must be interpreted in the light of the 
judgment in Barber (C-262/88, EU:C:1990:209). The consequence of this is that 
the principle of equal pay for men and women ‘cannot be invoked in respect of 
pension benefits relating to periods of work prior to 1 January 1994’ (judgment of 
12 September 2002, Niemi, C-351/00, EU:C:2002:480, paragraph 55). The same 
now follows from Article 12(3) of Directive 2006/54/EC too. 
24 In the view of the referring court, there is therefore no doubt, at least so far as 
pension entitlement in principle and the initial level of that entitlement (also 
indirectly dependent on periods of employment) are concerned, that pension 
beneficiaries may in principle rely on the requirement of equal treatment for men 
and women only in so far as they claim benefits arising from periods of 
employment after 1 January 1994. 
25 It falls to be clarified, however, whether and, if so, to what extent that temporal 
limitation also affects the ability of the appellants on a point of law to rely on the 
requirement of equal treatment for men and women in relation to the 2018 pension 
adjustment. 
26 There are three possible answers to that question. First, the pension adjustment 
may be regarded as a benefit component attributable to periods of employment 
prior to 1 January 1994, in which case the appellants on a point of law are 
precluded outright from relying on the principle of equal treatment laid down in 
Article 157 TFEU and Directive 2006/54/EC. Militating against that 
interpretation, however, are not only the clarifications contained in the judgments 
in Ten Oever (C-109/91, EU:C:1993:833) and Neath (C-152/91, EU:C:1993:949) 
but also the formulation ‘if and in so far as’ contained in Protocol No 33, which 
appears to limit any effect of the temporal limitation to the extent to which the 
periods of employment predate the deadline. 
27 This would support a second possible interpretation, to the effect that reliance on 
the requirement of equal treatment in connection with pension entitlement is 
excluded only in so far as the completed periods of employment predate the 
aforementioned deadline. The effect of this second possible interpretation might 
be to make it necessary, in the case of the pension adjustment applicable to the 
appellants on a point of law, to determine the periods of employment they each 
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completed after 1 January 1994 as a share of their entire employment history and 
to ensure that that pension adjustment is applied in a non-discriminatory manner 
in respect of that share alone. 
28 A third possible interpretation could be that the temporal limitation of Protocol 
No 33 that flows from the judgment in Barber (C-262/88, EU:C:1990:209) (and 
Article 12 of Directive 2006/54/EC) is inapplicable from the outset to benefit 
components such as those forming part of an annual pension adjustment. In the 
view of the referring court, the following reasons militate in favour of this 
interpretation: 
29 The appellants on a point of law do not rely on the principle of equal treatment in 
relation to the commencement of the payment of benefit – which is dictated by the 
periods of employment completed – or the calculation of the original level of the 
pension itself, but, rather, seek equal treatment in relation to an adjustment of their 
entitlement that is to be carried out (anew) every year. Domestic law does not 
determine the annual pension adjustment by reference to certain periods of 
employment; the adjustment must be made without distinction as to whether it 
concerns pension beneficiaries having completed periods of employment before or 
after 1994. 
30 The referring court is uncertain not least as to whether, for the purposes of 
Protocol No 33, payment of the pension adjustment is to be regarded as a benefit 
that may be ‘attributed’ to certain periods of employment. 
31 Also likely to militate against the applicability of the temporal limitation 
introduced by the judgment in Barber (C-262/88, EU:C:1990:209) and endorsed 
by Protocol No 33 (and Article 12 of Directive 2006/54/EC) is its purpose. That 
temporal limitation was imposed by the Court of Justice in the interests of the 
protection of legitimate expectations. The Court’s previous case-law is also 
unlikely to support the inference that the temporal limitation of the requirement of 
equal treatment is applicable to the pension adjustment at issue in the main 
proceedings. The particular judgments in which the temporal limitation laid down 
in the judgment in Barber and in the Protocol concerning Article 157 TFEU was 
applicable concerned situations involving claims under national schemes the rules 
of which linked entitlement to the completion of periods of employment or 
qualifying periods, which is to say that they made receipt of a benefit conditional 
upon specified periods of service (see, inter alia, judgments of 6 October 1993, 
Ten Oever, C-109/91, EU:C:1993:833, paragraph 3, of 22 December 1993, Neath, 
C-152/91, EU:C:1993:949, paragraphs 3 to 5, of 12 September 2002, Niemi, 
C-351/00, EU:C:2002:480, paragraph 13; and of 23 October 2003, Schönheit and 
Becker, C-4/01 and C-5/02, EU:C:2003:583, paragraphs 17 and 20).  
32 In the judgment of 28 September 1994, Coloroll Pension Trustees (C-200/91, 
EU:C:1994:348), the Court of Justice was called upon to rule on the extent to 
which the temporal limit laid down in the judgment in Barber (C-262/88, 
EU:C:1990:209) is applicable to benefits ‘not linked to the length of actual 
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service’. In that regard, it held that, in the case of a benefit which ‘is payable 
solely by reason of an employment relationship existing at the time of the event 
triggering payment of the benefit’, and is payable ‘irrespective of the length of 
previous periods of service’, the limitation of the temporal effects of the judgment 
in Barber applies ‘only where that operative event occurred before 17 May 1990’ 
(see paragraphs 57 to 60 of that judgment). 
33 The referring court takes the view, on the basis of that case-law, that there are 
indications to support the assumption that that temporal limitation is not 
applicable to the 2018 pension adjustment either. 
The second question 
34 According to the settled case-law of the Court of Justice, indirect discrimination 
on grounds of sex arises inter alia where a national measure, albeit formulated in 
neutral terms, puts considerably more workers of one sex at a disadvantage than 
the other. Such a measure is compatible with the principle of equal treatment only 
if the difference in treatment between the two categories of persons to which it 
gives rise is justified by objective factors unrelated to any discrimination on 
grounds of sex (see judgments in Brachner, C-123/10, EU:C:2011:675, 
paragraph 56, and of 17 July 2014, Leone, C-173/13, EU:C:2014:2090, 
paragraph 41).  
35 It follows from Paragraph 41(1) of the PG 1965 (in conjunction with 
Paragraphs 108h and 711 of the ASVG) that retired civil servants in receipt of a 
gross monthly pension in excess of a certain amount are, by comparison with 
those on a lower pension, placed at a disadvantage in relation to the annual 
adjustment of pensions for inflation, since, unlike beneficiaries of lower pensions, 
they are (either entirely or almost entirely) excluded from such an enhancement 
for 2018. 
36 In the light of the case-law cited above, that disadvantage may give rise to 
discrimination on grounds of sex if it affects significantly more men than women. 
That is the position which the BVwG has taken in the judgments under appeal. 
The referring court is therefore faced with the question as to whether any indirect 
discrimination on grounds of sex to which the 2018 pension adjustment gives rise 
may be regarded as justified in the light of EU law. 
37 The social component to which the respondent authority in particular has referred 
raises questions as to whether the objectives of Paragraph 41 of the PG 1965 are 
achieved not only proportionately but also in a sufficiently consistent and 
systematic fashion to meet the requirements applicable to the justification of 
discrimination under EU law. 
38 It is true that the Member States enjoy a broad discretion in the area of social 
policy. However, that discretion must not have the effect of frustrating the 
implementation of a fundamental principle of EU law such as equal pay for men 
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and women. For, any reliance by way of justification for the adjustment scheme 
on the notion of social balance between recipients of higher benefits and recipients 
of lower benefits runs into uncertainties as to whether that measure is manifestly 
necessary, suitable and, in particular, coherent. 
39 With regard to the aforementioned social considerations, those uncertainties stem 
from the fact that that measure is limited to pension beneficiaries (and, moreover, 
to only certain categories of pension beneficiary). Social policy measures thus 
exist in the form of appropriate instruments the scope of which is defined by the 
subject matter of the instrument in question (progressive income tax rates, 
transfers and other tax-funded assistance). In so far as social balance is relied on 
as a justification for the scheme at issue, there are therefore clear discrepancies 
with general social policy instruments, inasmuch as intervention in the adjustment 
of pension values warrants the adoption of measures aimed (only) at a certain 
section of the population (certain pension beneficiaries) and, for that group of 
persons, those measures come on top of the social policy instruments in place in 
any case, while other sections of the population remain excluded from any such 
additional measure. 
40 The special nature of pensions under the PG 1965 is a further cause for 
uncertainty as to the coherence of that measure. Under national law, the persons 
affected by the scheme provided for in Paragraph 41 of the PG 1965 (retired civil 
servants), at issue here, are in a special position which sets them fundamentally 
apart from recipients of pensions under schemes governed by social insurance 
law: even though, for the purposes of the adjustment of pensions, the PG 1965 
refers to specific provisions of the ASVG, the pension law laid down in the PG 
1965 is, in terms of its purpose, financing and legal nature, based on a concept 
different from that which underpins pensions under schemes governed by social 
insurance law (such as the ASVG). 
41 The special feature of the status of civil servant lies first in the fact that 
appointment as a civil servant creates an employment relationship for life. As a 
result of its lifelong nature, the employment relationship of civil servants is 
maintained even in retirement; the obligations by which civil servants are bound 
in employment continue to apply to them in retirement; and they remain subject to 
the service’s disciplinary code. Entitlement to a pension is linked to the 
continuation of the employment relationship; it lapses if a civil servant comes out 
of retirement, is dismissed (on disciplinary grounds) or terminates his employment 
relationship ex lege. A civil servant’s pension is pay disbursed by the employer for 
services rendered. According to the case-law of the Verfassungsgerichtshof 
(Constitutional Court, Austria) and the Verwaltungsgerichtshof (Upper 
Administrative Court, Austria), civil servants’ pensions are not in the nature of an 
insurance benefit or a welfare benefit. The essential characteristic of civil 
servants’ pensions lies, inter alia, in the fact that a civil servant’s employment 
relationship is a lifelong legal relationship within the framework of which even 
the pension constitutes a benefit paid exclusively by the employer. As a payment 
made exclusively by the employer, that benefit is therefore different in nature 
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from the benefits which are paid to insured persons under the statutory pension 
insurance scheme. 
42 Liability to pay pension benefits under the PG 1965 lies with the Federal 
Government; the contributions to be made by working civil servants are paid not 
to an institution under a pension insurance scheme but to the federal budget. By 
extension, therefore, the Federal Government does not pay an ‘employer’s 
contribution’ for civil servants under the pension insurance scheme, as employers 
do for their employees. It follows by extension that the pensions which civil 
servants receive under the PG 1965 do not constitute benefits under a 
contributions-based system that groups civil servants together within a risk-
sharing community. 
43 That difference appears to be significant when it comes to examining whether the 
measure at issue is necessary, suitable and coherent. Whereas, in the context of a 
social insurance scheme (financed from contributions and based on the concept of 
covering social risks, such as age, for persons grouped together within a risk-
sharing community), considerations of social balance within the community of 
risk sharing among recipients of higher pensions and recipients of lower pensions 
may already be built into the scheme, the same is not necessarily true of a scheme 
such as that provided for in the PG 1965 for retired civil servants, which is based 
on the concept of a lifelong employment relationship in which benefits are 
disbursed as ‘pay’ for work performed even in retirement. 
44 The fact that civil servants’ income constitutes pay both in active employment and 
in retirement raises a number of uncertainties with respect to the coherence of the 
measure at issue. 
45 While the legislature made a significant intervention in the 2018 annual pension 
adjustment for retired civil servants (such as those at issue here), it refrained from 
adopting a ‘social balancing’ measure of this kind in respect of civil servants in 
active employment. The value adjustment applied to the pay of those in active 
employment was not calibrated; instead, active employees received a flat-rate pay 
rise of 2.33% which did not differentiate according to level of income and, 
moreover, included not only an adjustment for inflation but also an additional 
increase justified on the ground that civil servants should enjoy a share of the 
economic recovery. 
46 An analysis of coherence which – in a manner at odds with the aforementioned 
domestic conception of the nature of pensions – looked at the scheme at issue 
from the point of view primarily of the welfare function of an ‘occupational social 
security scheme’ would bring to light inconsistencies with other such schemes that 
exist under national law. In the measure at issue, which does not include an 
adjustment for inflation for higher pensions but at the same time increases the 
adjustment for inflation for lower pensions, the legislature has intervened only in 
the occupational social security scheme for civil servants, but has refrained from 
similar interventions in any other occupational social security scheme.  
BVAEB 
 
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47 Generally speaking, the fact that, while the 2018 pension adjustment carried out 
within the context of the PG 1965 took the form of an intervention with a ‘social 
component’ that operated to the detriment of those on higher incomes and in 
favour of those on lower incomes, the legislature generally refrained from 
adopting such a social balancing measure in respect of recipients of pensions paid 
directly by the employer under private law, does not appear to be manifestly 
coherent. 
48 For the referring court, this raises the further question as to whether it is 
permissible for the examination of the proportionality and coherence of the 
disadvantages resulting from the 2018 pension adjustment to focus on 2018 in 
isolation, or whether, rather, account must also be taken of the fact that that 
measure is not the only one of its kind, the long-term adjustment scheme 
introduced in principle in 2004 having repeatedly been the subject of year-specific 
derogations whereby the adjustments applied to recipients of higher pensions have 
been lower or non-existent. In this connection, the appellants on a point of law 
submit that the effects of the foregoing on those concerned (particularly the 
longer-term retired) have been cumulative and have gone beyond what is 
acceptable. 
49 In so far as the respondent authority notes that those on higher pensions are better 
able to cope with an intervention in connection with their pension adjustment 
because it has less of an adverse impact on their lifestyles, this view seems to the 
referring court to leave out of account – not only any cumulative effects but also – 
the fact that it must be assumed, in the case of recipients of civil service pensions 
in particular, that the State, when providing for a pension that is pegged to the 
level of the previous salary in active employment, creates legitimate expectations 
on the part of those civil servants to whom it awards correspondingly higher pay 
during active service (who may, in addition, be prompted, in the light in particular 
of those expectations, to enter into onerous financial arrangements even in 
retirement). If the legislature later adopts measures which attempt to eliminate at 
the stage of paying pension benefits differences that were – intentionally – 
brought about by the system of remuneration itself, this may create a tension with 
the coherence of that system. 
50 The referring court has already stated that the law governing civil service pensions 
that falls to be assessed here is fundamentally different from the law governing 
pensions under social insurance schemes. It may be that, in the field of social 
insurance schemes which – unlike the PG 1965 – are based on the concept of a 
risk-sharing community and benefits financed from contributions, the legislature 
may pursue the regulatory objective of maintaining the functionality and ensuring 
the financial viability of the scheme (see, in this regard, Opinion of Advocate 
General Kokott in NK, C-223/19, EU:C:2020:356, point 77). 
51 The decisions of the BVwG that are under appeal also state that the discriminatory 
treatment experienced by the – mostly male – recipients of higher pensions is a 
reflection of the ‘previous discrimination against women’. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-405/20 
 
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52 According to the case-law of the Court of Justice, ‘the application of the principle 
of equal pay must be ensured in respect of each element of remuneration and not 
only on the basis of a comprehensive assessment of the consideration paid to 
workers’ and the national courts are not required to ‘make an assessment and a 
comparison of all the various types of consideration granted, according to the 
circumstances, to men and women’ (judgments in Barber, C-262/88, 
EU:C:1990:209, paragraphs 34 to 35, and of 30 March 2000, JämO, C-236/98, 
EU:C:2000:173, paragraph 43). It falls to be clarified whether the fact that what 
characterises the group of persons affected by the scheme at issue is that it 
receives higher pensions and is made up of a considerably greater proportion of 
men because – typically as a result of the discrimination previously suffered by 
women in professional life – men have more commonly reached positions 
attracting higher pensions, constitutes a ground of justification in itself or 
otherwise precludes from the outset the existence of any claim of discrimination. 
53 The BVwG’s comment could also be construed as a reference to the possibility, 
provided for in Article 157(4) TFEU and Article 3 of Directive 2006/54/EC, for 
Member States to take ‘positive action’. That action must contribute to helping 
women to conduct their professional life on an equal footing with men. The Court 
of Justice has thus held, with regard to sex-specific retirement ages, that these are 
not capable of ‘offset[ting] the disadvantages to which the careers of female 
public servants are exposed by helping those women in their professional life and 
by providing a remedy for the problems which they may encounter in the course 
of their professional career’ (see judgments of 29 November 2001, Griesmar, 
C-366/99, EU:C:2001:648, paragraph 64 et seq., and Leone, C-173/13, 
EU:C:2014:2090, paragraph 101, of 5 November 2019, Commission v Poland 
[independence of the ordinary courts], C-192/18, EU:C:2019:924, paragraph 80 et 
seq., of 12 December 2019, Instituto Nacional de la Seguridad Social [pension 
supplement for mothers], C-450/18, EU:C:2019:1075, paragraphs 64 to 65). The 
suitability of the scheme at issue for this purpose seems questionable. 
54 Since the interpretation of EU law is not so obvious as to leave no scope for any 
reasonable doubt (see judgment of 6 October 1982, Cilfit and Others, 
EU:C:1982:335), the questions set out above are referred for a preliminary ruling.