Judgment — ECLI:EU:C:2025:926
Date: 2025-11-27
Language of the case: German
Court formation: Tenth Chamber
Procedure: Reference for a preliminary ruling
Origin: Austria

Translation C-356/24 – 1 
Case C-356/24 
Request for a preliminary ruling 
Date lodged: 
16 May 2024 
Referring court: 
Landesverwaltungsgericht Kärnten (Austria) 
Date of the decision to refer: 
16 May 2024 
Appellant: 
A.B. 
Respondent authority: 
Kärntner Landesregierung 
  
[…] 
Case number: KLVwG-2548/10/2023 
O R D E R 
In the appeal brought by A.B., […], Klagenfurt am Wörthersee, against the 
decision of the Kärntner Landesregierung (Government of the Province of 
Carinthia) of 20 September 2023, […], rejecting the application for the 
accreditation of previous periods of equivalent service of 14 November 2022, the 
Landesverwaltungsgericht Kärnten (Regional Administrative Court, Carinthia, 
Austria) refers […] the following questions to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
1.  
Is EU law, in particular Article 45 TFEU and Article 7(1) of Regulation 
No 492/2011, to be interpreted as precluding national legislation under which 
previous periods of relevant service completed in other EU Member States are no 
longer taken into account when setting the advancement reference date where a 
civil servant’s existing remuneration status has been attained by a discretionary 
EN 
REQUEST FOR A PRELIMINARY RULING OF 16.5.2024 – CASE C-356/24 
 
2  
act (promotion) on the part of the employer rather than by periodic advancement, 
and such national legislation provides that the advancement reference date is 
recalculated only where the existing remuneration status is determined on the 
basis of the advancement reference date? 
2.  
Is EU law, in particular Articles 1, 2 and 6 of Directive 2000/78 in conjunction 
with Article 21 of the Charter, to be interpreted as precluding national legislation 
under which previous periods of relevant service completed in other EU Member 
States are no longer taken into account when setting the advancement reference 
date where a civil servant's existing remuneration status has been attained by a 
discretionary act (promotion) on the part of the employer rather than by periodic 
advancement and such national legislation provides that the advancement 
reference date is recalculated only where the existing remuneration status is 
determined on the basis of the advancement reference date, but under the 
employer’s corresponding guidelines such promotion is usually only available 
after 19 and 25 years of service (calculated from the advancement reference date), 
and therefore concerns older civil servants? 
3.  
Do the principles of freedom of movement for workers laid down in Article 45 
TFEU and Article 20 of the Charter preclude national legislation according to 
which periods of equivalent professional activity are taken into account in their 
entirety when setting the advancement reference date where that professional 
activity was carried out outside Austria (in the territory of a Contracting Party to 
the EEA or of an EU Member State, in a State the nationals of which enjoy the 
same rights of access to a profession as Austrian nationals, or at an institution of 
the European Union or another intergovernmental organisation to which Austria 
belongs), whereas equivalent professional activities in the private sector that were 
carried out in Austria are not taken into account? 
A. Subject matter and facts of the case in the main proceedings 
The appellant, an Austrian national, born on xx.xx.1968, started working for the 
local authority (Province of Carinthia) in ‘Specialist Technical Services’, Road 
and Bridge Construction Department, as a contractual public servant (a private-
law employment relationship with the Province) on 3 October 2005. His 
advancement reference date was set at 8 September 2001. 
Prior to starting work for the Province of Carinthia the appellant completed 
previous periods of service with private employers in Austria and in other EU 
Members States (Germany, Poland, Hungary and Croatia) from 1 October 1987 
up to and including 4 April 2003. From 13 October 2003 to 2 October 2005, he 
was employed by the Province of Carinthia on the basis of a service slip. 
KÄRNTNER LANDESREGIERUNG 
 
3 
At the start of his employment relationship with the Province of Carinthia on 
3 October 2005, the appellant was credited with periods between the date on 
which he reached the age of 18 and the date on which he started his employment 
relationship, amounting to 4 years 0 months and 25 days, for the purpose of 
determining his advancement reference date pursuant to Paragraph 41 of the 
Kärntner Landesvertragsbedienstetengesetz of 1994 (Law of the Province of 
Carinthia on contractual public servants 1994; ‘the K-LVBG’). Those periods 
include periods spent in military service, periods working for the Province of 
Carinthia on the basis of the service slip, as well as the accreditation of one year 
and six months. The accreditation of that one year and six months as a maximum 
credit period is provided for by law where periods of private service are not 
particularly important for employment in the civil service of the Province of 
Carinthia and where accreditation is not justified as being in the public interest. 
That provision was applied and one year and six months were taken into account 
when determining his advancement reference date. 
With effect from 1 January 2010, the appellant was appointed as a civil servant (a 
public-law employment relationship with the Province) and was appointed to a 
post in job category B, service class III, salary grade 7, in the ‘Road Maintenance’ 
Department. Since then, the Kärntner Dienstrechtsgesetz of 1994 (Law of the 
Province of Carinthia on the conditions of service of civil servants 1994; ‘the K-
DRG’) has been decisive for determining his remuneration status. Pursuant to 
Paragraph 143 of the K-DRG, advancement is determined on the basis of a 
reference date, in accordance with Paragraph 145 of the K-DRG. 
The advancement reference date determined at the start of his employment 
relationship with the Province of Carinthia (8 September 2001) was also carried 
over to his public-law employment relationship. 
Advancement to the next incremental step was approved on 1 July 2011 and 
advancements were implemented in the following years based thereon. 
On 1 January 2016, the appellant was promoted to the next service class (B/V/02) 
and to the one above that, service class VI (specifically, B/VI/01), in the ‘Road 
Maintenance’ Department on 1 January 2022. 
On the basis of current national law (Paragraph 145(11) of the K-DRG), previous 
periods of service completed abroad which, at the time of entry into service, 
involved equivalent activities, are to be taken into account in their entirety when 
setting the advancement reference date. 
By application of 14 November 2022, the appellant requested that previous 
periods of equivalent service in Austria and in other EU Member States be taken 
into account and also sought the payment in arrears of differences in salary 
resulting from such accreditation. 
By decision of the Government of the Province of Carinthia (‘the respondent 
authority’) of 20 September 2023 that application was rejected pursuant to 
REQUEST FOR A PRELIMINARY RULING OF 16.5.2024 – CASE C-356/24 
 
4  
Paragraph VI(7) of the law in the version published in LGBl. (Provincial Law 
Gazette) No 82/2011. The rejection was based on the fact that the appellant had 
been appointed to service class VI by a discretionary promotion (as opposed to 
periodic advancement) with effect from 1 January 2022. His remuneration status 
is therefore no longer determined on the basis of the advancement reference date, 
since the act of the promotion of a civil servant, which creates rights and is at the 
discretion of the authority, is governed by the provision on advancement set out in 
Paragraph 181 of the K-DRG, which derogates from Paragraph 143 of the K-
DRG, rather than the advancement reference date. 
The first sentence of Paragraph VI(7) assumes, for the purposes of the 
recalculation of the advancement reference date, a case in which ‘the existing 
remuneration status is determined on the basis of the advancement reference date’. 
That transitional provision entered into force on 1 January 2012. 
Paragraph 305b(2) of the K-DRG, which entered into force on 21 December 2019, 
contains the (largely identical) current legal provision. 
The appellant lodged an appeal against that decision with the Regional 
Administrative Court, Carinthia. He claims that previous periods of relevant 
service in Austria and in other EU Member States from 1 October 1987 to 4 April 
2003 should be taken into account when calculating his advancement reference 
date and that his advancement reference date should be determined as 5 July 1988. 
On 5 December 2023, the respondent authority submitted the appeal to the 
Regional Administrative Court, Carinthia for a decision, adding that, on the basis 
of a decision by the Verfassungsgerichtshof (Constitutional Court, Austria) of 
4 October 2023, case number G192/2023, the constitutionality of 
Paragraph 145(11) and(12) of the K-DRG had been confirmed. 
B. The state of national law 
Kärntner Dienstrechtsgesetz of 1994 (Law of the Province of Carinthia on the 
conditions of service of civil servants 1994), LGBl. No 71/1994, as last amended 
by LGBl. No 60/2019 
Paragraph 143 
Advancement 
1. Advancement shall be determined on the basis of a reference date. Unless 
otherwise provided in this paragraph, the period required for advancement to the 
second incremental step in respect of service class III shall be five years and two 
years for other incremental steps. 
2. Advancement shall take place on 1 January or 1 July following completion 
of the period of two or five years (advancement date), unless it is postponed or 
suspended on such date. The period of two or five years shall be deemed to have 
KÄRNTNER LANDESREGIERUNG 
 
5 
elapsed on the advancement date where it is completed before 31 March or 
30 September following the advancement date. 
[…] 
Kärntner Dienstrechtsgesetz of 1994 (Law of the Province of Carinthia on the 
conditions of service of civil servants 1994), LGBl. No 71/1994, as last amended 
by LGBl. No 81/2021 
Paragraph 145 
Reference date 
1. Subject to the restrictions set out in subparagraphs 4 to 8, the reference date 
to be taken into account for the purposes of advancement by an incremental step 
shall be calculated by counting backwards from the date of recruitment in respect 
of periods after 30 June of the year in which nine school years were completed or 
ought to have been completed after admission to the first level of education: 
(1) the periods specified in subparagraph 2 shall be taken into account in 
their entirety; 
(2) other periods 
(a) which fulfil the criteria set out in subparagraph 3 shall be taken 
into account in their entirety, 
(b) which do not fulfil the criteria set out in subparagraph 3 
(aa) shall be taken into account in their entirety for three years and 
(bb) shall be taken into account to the extent of one half for three 
additional years. 
[…] 
11. Periods referred to in subparagraph 2 and subparagraph 1(2) in which 
professional activities were carried out which, with regard to the activities carried 
out at the time of entry into service, involved equivalent activities providing 
equivalent professional experience, are to be taken into account in their entirety 
where those periods were completed outside Austria 
(1) in the territory of a Contracting Party to the Agreement on the 
European Economic Area or of a Member State of the European Union, or 
(2) in a State whose nationals enjoy the same rights of access to a 
profession as Austrian nationals, or 
REQUEST FOR A PRELIMINARY RULING OF 16.5.2024 – CASE C-356/24 
 
6  
(3) at an institution of the European Union or another intergovernmental 
organisation to which Austria belongs. 
 
[…] 
Kärntner Dienstrechtsgesetz of 1994 (Law of the Province of Carinthia on the 
conditions of service of civil servants 1994), LGBl. No 71/1994, as last amended 
by LGBl. No 60/2019 
Paragraph 181 
Promotion 
1. Promotion is the appointment of a civil servant in the general administration 
to the next higher service class in his or her job category. 
[…] 
4. After a promotion civil servants shall advance at the time at which in their 
previous service class they would, under subparagraph 3, have fulfilled the 
condition for attaining the next higher salary grade for their new service class, 
but at the latest after two years. Any period spent at the highest salary grade for a 
service class shall be credited up to a maximum of four years. By way of 
derogation from the above, in cases where promotion to a higher service class is 
subject to the completion of two years at the highest salary grade for the lowest 
service class, the time spent at the highest salary grade for that service class shall 
be credited up to a maximum of four years in so far as it exceeds the time 
completed at that salary grade. Paragraphs 143 and 144 shall apply mutatis 
mutandis. 
[…] 
Kärntner Dienstrechtsgesetz of 1994 (Law of the Province of Carinthia on the 
conditions of service of civil servants 1994), LGBl. No 71/1994, as last amended 
by LGBl. No 81/2021 
[…] 
Paragraph 305b 
Scope of individual provisions 
[…] 
2. The reference date to be taken into account for purposes of advancement by 
an incremental step and the resulting remuneration status are to be recalculated 
ex officio in accordance with Paragraphs 143 and 145 of this Law, in the version 
KÄRNTNER LANDESREGIERUNG 
 
7 
published in LGBl. No 60/2019, without unnecessary delay and only in cases 
where the existing remuneration status is determined on the basis of the 
advancement reference date. […] 
[…] 
4. For persons for whom the advancement reference date does not have to be 
recalculated in accordance with subparagraph 2, 
(1) Paragraphs 143 and 145 of this Law shall continue to apply in the 
version in force on 31 December 2003; where their advancement 
reference date has been set under Paragraph 145 of this Law in the 
version in force on 30 September 1995 they shall continue to apply in 
the version in force on 30 September 1995. 
[…] 
20. Kärntner Dienstrechtsgesetz-Novelle (20th Amendment of the Law of the 
Province of Carinthia on the conditions of service of civil servants), 17. Kärntner 
Landesvertragsbedienstetengesetz-Novelle (17th Amendment of the Law of the 
Province of Carinthia on contractual public servants); Kärntner 
Gemeindebedienstetengesetz (Law of the Province of Carinthia on local authority 
employees), Kärntner Stadtbeamtengesetz (Law of the Province of Carinthia on 
city officials) of 1993 and Kärntner Gemeindevertragsbedienstetengesetz (Law of 
the Province of Carinthia on contractual local authority employees); each as 
amended in LGBl. No 82/2011 
Paragraph VI (7) 
1. The following provisions shall enter into force: 
[…] 
7. The reference date to be taken into account for purposes of advancement by 
an incremental step and the resulting remuneration status may be recalculated in 
accordance with Paragraphs 143 and 145 of the K-DRG, in the version laid down 
by Paragraph I, or Paragraphs 41 and 42 of the K-LVBG, in the version laid 
down by Paragraph II, only on request and only in cases where the existing 
remuneration status is determined on the basis of the advancement reference date. 
[…] 
Guidelines on the Advancement, Periodic Advancement and Promotion of Civil 
Servants of the Province of Carinthia, decision of the Government of the Province 
of Carinthia of 20 October 1998, number LAD-PW-22/1-98 
[…] 
IV 
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PROMOTION 
The promotion of civil servants of the province is at the discretion of the 
Provincial Government. 
Only civil servants who fulfil the following conditions and whose performance and 
skills as well as their on-duty and off-duty conduct warrant promotion shall be 
eligible for promotion, whereby the respective list of posts and the job 
organisation chart shall be taken into account. 
(a) Temporal conditions: 
Job 
category 
Service class V Service class VI Service class 
VII 
Service class 
VIII 
A 9 years 13 years 19 years 30 years 
B 19 years 25 years 31 years  
C 29 years    
 
Those years shall be calculated starting from the advancement reference date. 
[…] 
C. Provisions of EU law 
Article 7(1) of Regulation No 492/2011 
‘A worker who is a national of a Member State may not, in the territory of another 
Member State, be treated differently from national workers by reason of his [or 
her] nationality in respect of any conditions of employment and work, in 
particular as regards remuneration, dismissal, and, should he become unemployed, 
reinstatement or re-employment.’ 
Article 1 of Directive 2000/78 
‘The purpose of this Directive is to lay down a general framework for combating 
discrimination on the grounds of religion or belief, disability, age or sexual 
orientation as regards employment and occupation, with a view to putting into 
effect in the Member States the principle of equal treatment.’ 
Article 2 of Directive 2000/78 
‘1. For the purposes of this Directive, the “principle of equal treatment” shall 
mean that there shall be no direct or indirect discrimination whatsoever on any of 
the grounds referred to in Article 1. 
2. For the purposes of paragraph 1: 
KÄRNTNER LANDESREGIERUNG 
 
9 
(a) direct discrimination shall be taken to occur where one person is treated less 
favourably than another is, has been or would be treated in a comparable 
situation, on any of the grounds referred to in Article 1; 
(b) indirect discrimination shall be taken to occur where an apparently neutral 
provision, criterion or practice would put persons having a particular 
religion or belief, a particular disability, a particular age, or a particular 
sexual orientation at a particular disadvantage compared with other persons 
unless: 
(i) that provision, criterion or practice is objectively justified by a 
legitimate aim and the means of achieving that aim are appropriate and 
necessary …’ 
Article 6 of Directive 2000/78 
‘1. Notwithstanding Article 2(2), Member States may provide that differences of 
treatment on grounds of age shall not constitute discrimination, if, within the 
context of national law, they are objectively and reasonably justified by a 
legitimate aim, including legitimate employment policy, labour market and 
vocational training objectives, and if the means of achieving that aim are 
appropriate and necessary. 
[…] 
2. Notwithstanding Article 2(2), Member States may provide that the fixing for 
occupational social security schemes of ages for admission or entitlement to 
retirement or invalidity benefits, including the fixing under those schemes of 
different ages for employees or groups or categories of employees, and the use, in 
the context of such schemes, of age criteria in actuarial calculations, does not 
constitute discrimination on the grounds of age, provided this does not result in 
discrimination on the grounds of sex.’ 
National case-law on questions 1 and 2 
According to the case-law of the Verwaltungsgerichtshof (Supreme 
Administrative Court, Austria), the discretionary promotion of a civil servant 
means that his or her remuneration status no longer depends on the advancement 
reference date, but on the free exercise of discretion by the administrative 
authority. The fact that, when discretion is exercised in the context of a 
discretionary promotion, the advancement reference date, as a significant factor in 
the discretionary decision on his or her classification, may play a certain role does 
not alter this result in the case of a promotion at the authority’s free discretion. 
Furthermore, it is not possible to infer from the right to freedom of movement for 
workers provided for in Article 45 TFEU and the prohibition of discrimination 
laid down in Articles 1 and 2 of Directive 2000/78 and of Article 7 of Regulation 
(EEC) No 1612/68 an effective principle according to which acts of appointment 
REQUEST FOR A PRELIMINARY RULING OF 16.5.2024 – CASE C-356/24 
 
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at the discretion of the administrative authority should be deemed to have been 
carried out with effect at other times (which are optimal for the civil servant) 
(Supreme Administrative Court, 13.04.2021, case number Ro 2020/12/0001). 
In addition, the Supreme Administrative Court states that the decision on a 
promotion is at the – in principle – unverifiable discretion of the administrative 
authority, which is also not bound by the “Promotion Guidelines’, which by their 
very nature are only a guide for promotion practices (Supreme Administrative 
Court 21.02.2017, case number Ro 2016/12/0019). 
National case-law on question 3 
Due to concerns as to the objective justification of a provision in the K-LVBG 
(Paragraph 41(12) thereof) that is almost identical to Paragraph 145(11) of the K-
DRG, the Oberster Gerichtshof (Supreme Court, Austria) in employment and 
welfare law matters, in a case pending before it, submitted an application to the 
Constitutional Court by decision of 29 March 2023, case number 8 ObA 82/22z, 
to repeal parts of the provision or the provision in Paragraph 41 of the K-LVBG as 
being unconstitutional. That decision was based on doubts as to the objectivity 
required by constitutional law with regard to the different treatment of domestic 
and foreign previous periods of service. The connecting factor of previous periods 
of service ‘outside Austria’ and thus the exclusion of the application of that 
favourable provision to previous periods of service in Austria upon its 
‘adaptation’ to the requirements of EU law arising from the case-law on the right 
to freedom of movement and from the perspective of EU law was also regarded as 
questionable. Moreover, the Supreme Court stated that the objectivity requirement 
of the principle of equality laid down in Article 20 of the Charter also applies to 
such transposition. 
In its ruling of 4 October 2023, case number G 192/2023, the Constitutional Court 
states that it has no reservations about this distinction with regard to the 
requirements of the right to equality in accordance with the principle of equal 
treatment under Paragraph 7 of the Bundes-Verfassungsgesetz (Austrian Federal 
Constitutional Law; ‘the B-VG’) and Paragraph 2 of the Staatsgrundgesetz 
(Austrian Basic Law; ‘the StGG’). In relation to Article 20 of the Charter, it notes 
that Paragraph 41(12) of the K-LVBG was enacted within the competence of the 
national legislature and the Constitutional Court must therefore assess those 
provisions itself against the yardstick of the principle of equality pursuant to 
Paragraph 2 of the StGG and Paragraph 7 of the B-VG. The applications filed 
with the Supreme Court were rejected and dismissed. 
D. Reasons for doubts about the national provisions 
The Regional Administrative Court, Carinthia is a court within the meaning of 
Article 267 TFEU. The decision of the Regional Administrative Court depends on 
the answers to the questions of interpretation of EU law set out in the present 
KÄRNTNER LANDESREGIERUNG 
 
11 
request for a preliminary ruling and discussed in greater detail below. The correct 
application of EU law does not appear to be so obvious that that there is no room 
for reasonable doubt, which is why the request for a preliminary ruling had to be 
made. 
Questions 1 and 2 (Paragraph VI(7) of the law in the version published in LGBl. 
No 82/2011 / Paragraph 305b of the K-DRG) 
The Court of Justice has held that previous periods of equivalent service must 
always be taken into account in their entirety in the existing employment 
relationship where such taking account of previous periods of service is provided 
for (Case C-703/17, ECLI:EU:C:2019:850). 
In the present case, taking previous periods of equivalent service completed 
abroad into account when determining the advancement reference date is provided 
for by law (Paragraph 145(11) of the K-DRG). Previous periods of equivalent 
service completed abroad must therefore be taken into account when setting the 
advancement reference date. 
Paragraph 305b(2) of the K-DRG (as well as Paragraph VI(7) of the law in the 
version published in LGBl. No 82/2011), on the other hand, stipulates that the 
reference date to be taken into account for purposes of advancement by an 
incremental step and the resulting remuneration status are to be recalculated ex 
officio in accordance with Paragraphs 143 and 145 of that Law, in the version 
published in LGBl. No 60/2019, without unnecessary delay and only in cases 
where the existing remuneration status is determined on the basis of the 
advancement reference date. 
Paragraph 305b(4)(1) of the K-DRG provides that for persons for whom the 
advancement reference date does not have to be recalculated in accordance with 
subparagraph 2, Paragraphs 143 and 145 of that Law are to continue to apply in 
the version in force on 31 December 2003. 
It therefore follows from the provision laid down in Paragraph 305b(2) of the K-
DRG (as well as Paragraph VI(7) of the law in the version published in LGBl. 
No 82/2011) that civil servants are excluded from applying to have their 
advancement reference date recalculated if they have been promoted during their 
professional career. 
It is objectively questionable whether the provision laid down in 
Paragraph 305b(2) of the K-DRG precludes the accreditation of previous periods 
of relevant service. That is because failing to take previous periods of relevant 
service into account has the effect of limiting the extent of the accreditable 
previous periods of service at the current employer. That statutory provision 
enshrines the limitation of the accreditation of previous periods of relevant service 
or their non-accreditation, and no longer allows the advancement reference date to 
be recalculated. 
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Since the appellant is being transferred to a new remuneration and advancement 
system as a result of his promotion, the provision in question prevents him from 
being able to recalculate his advancement reference date by accrediting previous 
periods of relevant service completed abroad. The provision laid down in 
Paragraph 305b(2) of the K-DRG does not allow him to do this from the outset. 
He is completely excluded from the system for recalculating and improving the 
advancement reference date. 
In the view of the court, a provision is contrary to Article 45 TFEU and 
Article 7(1) of Regulation (EU) No 492/2011 if previous periods of relevant 
service completed abroad that have not yet been accredited can no longer be 
accredited for the purposes of determining remuneration seniority and as a result 
remuneration seniority can no longer be (re)calculated although, in principle, the 
accreditation of such periods has been provided for by law. 
Since the discretionary act of promotion must be subject to the fulfilment of 
temporal conditions or the attainment of a certain number of years of service (in 
the case at hand, 19 or 25 years according to the Guidelines on the Advancement, 
Periodic Advancement and Promotion of Civil Servants of the Province of 
Carinthia), which, moreover, are calculated starting from the advancement 
reference date, the statutory provision, according to which the advancement 
reference date can no longer be recalculated on the basis of a promotion, concerns 
older employees. The transfer to the new service class takes into account the 
advancement reference date. 
The court is therefore also uncertain whether a new determination of the 
remuneration status, under which previous periods of relevant service are not 
accredited and recalculation is not possible, constitutes discrimination and must, 
against that background, be regarded as contrary to EU law. Since promotion 
depends on the attainment of a certain number of years of service and 
consequently concerns older civil servants in a system with no possibility of 
accrediting previous periods of relevant service and improving their advancement 
reference date, this might constitute indirect discrimination on the grounds of age. 
Question 3 (Paragraph 145(11) of the K-DRG) 
By judgment of 8 May 2019, Case C-24/17, (ECLI:EU:C:2019:373), the Court of 
Justice held that a temporal limitation on the accreditation of previous periods of 
relevant service in the private sector is not compatible with the freedom of 
movement for workers provided for in Article 45 TFEU and Article 7(1) of 
Regulation (EU) No 492/2011 of the European Parliament and of the Council of 
5 April 2011 on freedom of movement for workers. By judgments of 10 October 
2019, Case C-703/17 (ECLI:EU:C:2019:850), and 23 April 2020, Case C-710/18 
(ECLI:EU:C:2020:299), the Court of Justice clarified its case-law to the effect that 
identical or equivalent previous experience must be taken into account under EU 
law in order to ensure the freedom of movement of workers, whereas that is not 
the case for previous experience which is merely beneficial. 
KÄRNTNER LANDESREGIERUNG 
 
13 
That case-law on the restriction of freedom of movement for workers prompted 
the legislature of the Province of Carinthia to amend the provisions on the 
determination of the advancement reference date in Paragraph 145 of the K-DRG 
by means of LGBl. No 81/2021 (cf. the explanatory memorandum to the draft law, 
number 01-VD-LG-370/2020-320). That statutory provision entered into force on 
1 December 2021. 
Now periods of equivalent professional activity are taken into account in their 
entirety where such professional activity was carried out outside Austria (in the 
territory of a Contracting Party to the EEA or of an EU Member State, in a State 
the nationals of which enjoy the same rights of access to a profession as Austrian 
nationals, or at an institution of the European Union or another intergovernmental 
organisation to which Austria belongs), whereas equivalent professional activities 
in the private sector that were carried out in Austria are not taken into account. 
The rationale for not taking into account a professional activity carried out in 
Austria is that it is not covered by the provisions of EU law on freedom of 
movement. 
The present legal situation falls within the scope of EU law since the national 
provision in question (Paragraph 145(11) of the K-DRG) was transposed by the 
provincial legislature in order to comply with the freedom of movement for 
workers provided for in Article 45 TFEU and Article 7(1) of Regulation (EU) 
No 492/2011 of the European Parliament and of the Council of 5 April 2011 and 
on the basis of the aforementioned case-law of the Court of Justice. 
The question concerns the interpretation of EU law since the applicable national 
provisions are measures transposing EU acts. Therefore, the present case concerns 
the implementation of EU law pursuant to Article 51(1) of the Charter and, 
through the transposition of EU law and the adjustment to EU law carried out by 
the legislature by means of Paragraph 145(11) of the K-DRG, concerns Article 20 
of the Charter. Member States are bound by the Charter when transposing EU 
secondary law. 
The connecting factor of previous periods of service ‘outside Austria’ and thus the 
exclusion of the application of that favourable provision to previous periods of 
service in Austria in order to comply with the requirements of EU law arising 
from the case-law on the right to freedom of movement cannot, in the view of the 
court, be justified by the obligation to transpose EU law (cf. CJEU C-290/94 
paragraph 29 [ECLI:EU:C:1996:265]). The objectivity requirement of the 
principle of equality laid down in Article 20 of the Charter also applies in 
particular to transposition and, in the view of the court, Article 20 of the Charter 
precludes such a transposition. 
[…]