Opinion of the Advocate General — ECLI:EU:C:2020:356
Date: 2020-05-07
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

Summary C-223/19 — 1 
Case C-223/19 
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: 
13 March 2019 
Referring court: 
Landesgericht Wiener Neustadt (Austria) 
Date of the decision to refer: 
11 March 2019 
Applicant: 
YS 
Defendant: 
NK AG 
  
Subject matter of the main proceedings 
Payment of EUR 7 096.09 and establishment of future rights on the basis of a 
pension contract 
Subject matter and legal basis of the reference 
Interpretation of EU law, in particular the prohibitions of discrimination, 
Article 267 TFEU 
Questions referred 
1. Does the scope of Directive 79/7/EEC of 19 December 1978 on the 
progressive implementation of the principle of equal treatment for men and 
women in matters of social security, and/or of Directive 2006/54/EC 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, include 
legislation of a Member State if the effect of that legislation is that the former 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-223/19 
 
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employer is to withhold sums of money from a considerably higher proportion of 
men entitled to an occupational pension than from women entitled to an 
occupational pension when those occupational pensions are paid out and those 
sums may be freely used by the former employer, and are such provisions 
discriminatory within the meaning of those directives? 
2. Does the scope of Directive 2000/78/EC of 27 November 2000 establishing 
a general framework for equal treatment in employment and occupation include 
legislation of a Member State that discriminates on the ground of age because the 
financial burden is borne exclusively by older people who are entitled under 
private law to the benefits of an occupational pension that was agreed as a direct 
defined benefit pension, whereas young and relatively young people who have 
entered into occupational pension contracts are not financially burdened? 
3. Are the provisions of the Charter of Fundamental Rights (‘the Charter’), in 
particular the prohibitions of discrimination laid down in Articles 20 and 21 of the 
Charter, to be applied to occupational pensions even if the Member State’s 
legislation does not cover forms of discrimination as prohibited pursuant to 
Directive 79/7/EEC, Directive 2000/78/EC and Directive 2006/54/EC? 
4. Is Article 20 et seq. of the Charter to be interpreted as precluding legislation 
of a Member State that implements Union law within the meaning of Article 51 of 
the Charter and that discriminates, on grounds of sex, age, property or on other 
grounds, such as, for example, on the basis of the former employer’s current 
ownership, against persons entitled under private law to an occupational pension 
as compared with other persons entitled to an occupational pension, and does the 
Charter prohibit such forms of discrimination? 
5. Are national rules that place only a small group of people who are 
contractually entitled to an occupational pension in the form of a direct defined 
benefit pension under an obligation to make financial payments to their former 
employer also discriminatory on the basis of property within the meaning of 
Article 21 of the Charter if they cover only people with relatively large 
occupational pensions? 
6. Is Article 17 of the Charter to be interpreted as precluding legislation of a 
Member State that provides for expropriatory intervention, directly by law and 
without compensation, in an agreement relating to an occupational pension in the 
form of a direct defined benefit pension entered into between two private parties 
to the detriment of a former employee of a company that has made provision for 
the payment of the occupational pension and is not experiencing financial 
difficulties? 
7. Does a statutory obligation on the part of the former employer of a person 
entitled to an occupational pension not to pay out parts of the agreed remuneration 
(of the agreed occupational pension) represent, as an infringement of freedom of 
contract, an interference with the employer’s right to property? 
YS 
 
3 
8. Is Article 47 of the Charter to be interpreted as precluding legislation of a 
Member State that expropriates directly by law and makes no provision for any 
challenge to the expropriation other than by way of a claim against the beneficiary 
of the expropriation (the former employer and the debtor under the pension 
contract) for damages and reimbursement of the expropriated sum of money? 
Provisions of [EU] law cited 
TFEU, specifically Article 157 
TEU, specifically Articles 2 and 3 
Charter of Fundamental Rights of the European Union, specifically Articles 17, 20 
et seq., 47 and 51 
Council Directive 79/7/EEC of 19 December 1978 on the progressive 
implementation of the principle of equal treatment for men and women in matters 
of social security, specifically Article 4(1) and Article 7 
Council Directive 2000/78/EC of 27 November 2000 establishing a general 
framework for equal treatment in employment and occupation, specifically 
Article 6 
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 
Provisions of national law cited 
Niederösterreichisches Landes- und Gemeindebezügegesetz (Lower Austrian Law 
on provincial and municipal remuneration), specifically Paragraph 24a 
Allgemeines Sozialversicherungsgesetz (General Law on social security, 
‘ASVG’), specifically Paragraph 711  
Sonderpensionenbegrenzungsgesetz (Law on the limitation of special pension 
arrangements, ‘the SpBegrG’), specifically Article 1 
Bundesverfassungsgesetz über die Begrenzung von Bezügen öffentlicher 
Funktionäre (Federal constitutional law on the limitation of remuneration of 
holders of public office, ‘the BezBegrBVG’), specifically Paragraphs 1, 10 
Pensionsanpassungsgesetz 2018 (Law on pension adjustment 2018, ‘the PAG 
2018’) 
Betriebspensionsgesetz (Law on occupational pensions, ‘the BPG’), specifically 
Paragraph 2 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-223/19 
 
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Brief summary of the facts and procedure 
In addition to a statutory pension, the applicant receives an occupational pension 
from his former employer, NK AG. The pension contract concluded between the 
applicant and NK AG on 2 March 1992 contains a direct defined benefit promise 
by NK AG and an index-linking clause. 
The applicant’s employment contract with NK AG was terminated by mutual 
agreement with effect from 1 April 2010. 
Since 17 December 2010, the applicant has received, in addition to his statutory 
pension and an occupational pension from a pension fund, an occupational 
pension on the basis of the direct defined benefit commitment given by NK AG on 
2 March 1992. 
Since 1 January 2015, NK AG has withheld a certain amount from that part of the 
applicant’s occupational pension that it was agreed would be in the form of a 
direct defined benefit. However, the part of the occupational pension that comes 
from the pension fund is paid out without any deduction. 
On 23 April 2018, NK AG informed the applicant in writing that his company 
pension was affected by the provisions of the PAG 2018 and therefore no 
adjustment was being made to his occupational pension in 2018. The increase in 
the part of the occupational pension to be paid out directly should have been 3% 
as from 1 February 2018. 
Principal arguments of the parties in the main proceedings 
1 According to the applicant, he is the subject of discrimination based primarily on 
his sex, or on account of his age and his property. In addition, the applicant’s 
fundamental right to property has been infringed by an expropriation for no good 
reason and without compensation and the defendant’s fundamental right to 
property has been infringed through interference with its freedom of contract. 
Moreover, the applicant does not have recourse to an effective remedy against the 
provision in question. 
2 According to the defendant, it is obliged to withhold the amounts in dispute on the 
basis of Paragraph 24a of the Lower Austrian Law on provincial and municipal 
remuneration and was obliged not to increase the applicant’s occupational pension 
in 2018 on the basis of Paragraph 711 ASVG. The aforementioned provisions are 
not contrary to EU law. The applicant’s arguments in relation to discrimination 
based on sex or age are ineffective. 
YS 
 
5 
Brief summary of the basis for the reference 
3 Both Paragraph 24a of the Lower Austrian Law on provincial and municipal 
remuneration and Paragraph 711 of the General Law on social security (ASVG) 
were adopted as a result of the SpBegrG. This law amended the Federal 
constitutional law on the limitation of the remuneration of holders of public office 
(the BezBegrBVG), which is intended to limit high levels of remuneration of 
holders of public office. In particular, the personal scope of the BezBegrBVG was 
extended to include ‘former servants of legal entities that are subject to scrutiny 
by the Rechnungshof (Austrian Court of Auditors)’. As companies governed by 
private law over which the Federal Government or individual Austrian provinces 
have a controlling influence are also subject to scrutiny by the Court of Auditors, 
this law impinges, inter alia, on individual contracts in which employees have 
agreed an occupational pension with their employer. These rules were enacted as 
constitutional provisions in order to restrict the possibility of their being legally 
challenged before the Verfassungsgerichtshof (Constitutional Court, Austria). 
4 The division of powers of the Austrian Federal State means that the SpBegrG, as a 
Federal law, may not directly impinge on the contracts of employees of companies 
which, owing to the controlling influence of Austrian provinces over those 
companies, are subject to scrutiny by the Court of Auditors. Therefore, it was 
provided in Paragraph 10(6) BezBegrBVG that the provincial legislature is 
authorised to enact provisions comparable to the Federal provisions in respect of 
employees and former employees of legal entities in which a province holds a 
certain amount of share capital. Not every province has made use of this 
possibility. As shown by the underlying dispute, a corresponding provincial law 
was enacted in Lower Austria, but not in Vienna, for example. 
5 The result of these statutory provisions is now shown by the case in dispute. A 
former manager of a listed public company (Aktiengesellschaft) in which the 
province of Lower Austria holds an approximately 51% interest has for the first 
time — and to his surprise — come within the scope of the Lower Austrian Law 
on provincial and municipal remuneration. Before being amended, this law 
governed only the remuneration of public officeholders of the province, whereas it 
now also impinges on private employment and pension contracts. Pursuant to 
Paragraph 24a of the Lower Austrian Law on provincial and municipal 
remuneration, beneficiaries of pensions and civil servants’ pensions from defined 
benefit schemes of legal entities that are subject to scrutiny by the Court of 
Auditors on account of a majority shareholding or effective control due to 
financial, economic or organisational measures of the province of Lower Austria 
must pay a pension security contribution. The pension security contribution is to 
be withheld by the paying body and paid to the legal entity set up under provincial 
law or the company from which the pension or civil servants’ pension is received. 
Pursuant to Paragraph 711 ASVG, the pension increase for the 2018 calendar year 
is not to be determined by reference to the adjustment factor, but rather as 
specified in that paragraph. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-223/19 
 
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6 Paragraph 24a of the Lower Austrian law on provincial and municipal 
remuneration and Paragraph 711 ASVG contain legal provisions that directly 
interfere with the arrangements and requirements for establishing the amount of 
the occupational pension to which the applicant is entitled on the basis of a 
contract with his former employer. They therefore fall within the scope of EU law. 
7 The view that these provisions are implementing EU law within the meaning of 
Article 51 of the Charter is supported primarily by the fact that the following 
provisions of primary and secondary EU law would cover the legislative content 
of Paragraph 24a of the Lower Austrian law on provincial and municipal 
remuneration and Paragraph 711 ASVG: 
• Articles 2 and 3 TEU, as well as Article 157 TFEU, which, according to the 
case-law of the Court of Justice, also applies to remuneration from an 
occupational pension scheme. 
• Directive 79/7/EEC on the progressive implementation of the principle of 
equal treatment for men and women in matters of social security. 
• Directive 2000/78/EC establishing a general framework for equal treatment 
in employment and occupation. 
• The revised equal treatment directive 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). 
8 Reference can be made to the judgment of the Court of Justice of 2 June 2016, 
Case C-122/15, in which it was found, inter alia, that benefits granted under a 
pension scheme which essentially relates to the employment of the person 
concerned form part of the pay received by that person and therefore come within 
the scope of the equal treatment directives (see also judgment of the Court of 
Justice of 1 April 2008 in Case C-267/06 — Maruko). 
9 As the Austrian provisions specified above belong directly to the Austrian 
statutory system of old-age pensions, because they impinge by law on privately 
agreed pension contracts, they would come within the scope of Directive 
79/7/EEC. Pursuant to the judgment of the Court of Justice of 20 October 2011, 
Case C-123/10 (Brachner case), a Member State’s annual pension adjustment 
scheme is also subject to Directive 79/7/EEC. 
10 Paragraph 24a of the Lower Austrian law on provincial and municipal 
remuneration and Paragraph 711 ASVG separate groups of people with a 
contractually agreed occupational pension from each other and treat these groups 
differently. This takes place in such a way that a distinction is primarily made 
between people who have agreed occupational pensions in the form of a direct 
defined benefit pension and people who have agreed an occupational pension in 
another form (e.g. pension fund, insurance).  
YS 
 
7 
11 In relation to the people who have entered into an occupational pension in the 
form of a direct defined benefit pension, a further distinction is then made as to 
whether they did so with a company that is currently subject to scrutiny by the 
Court of Auditors or whether the contract was entered into with another company. 
In this context, it is irrelevant whether or not the company was being scrutinised 
by the Court of Auditors at the time when the occupational pension agreement 
was entered into. 
12 The provisions specified above give rise to the following differences of treatment: 
• Anyone who receives an occupational pension in the form of a pension fund 
model or life insurance model is not covered by the Austrian laws specified above. 
For these people, it is irrelevant whether or not the former employer is currently 
subject to scrutiny by the Court of Auditors. 
• Anyone who had agreed an occupational pension in the form of a direct 
defined benefit pension with a legal entity but whose entitlement was settled 
before 1 January 2015 is not covered by the Austrian laws specified above. For 
these people, it is likewise irrelevant whether or not the former employer is 
currently subject to scrutiny by the Court of Auditors. 
• Anyone who has agreed a direct defined benefit pension with a company 
that is subject to scrutiny by the Court of Auditors is covered by the legislation. 
Anyone who has agreed an occupational pension in the form of a direct defined 
benefit pension with a company that is not currently subject to scrutiny by the 
Court of Auditors is not covered. 
• Anyone who has agreed a direct defined benefit pension with a company 
that is subject to scrutiny by the Court of Auditors, but whose shareholder is an 
Austrian province that has not adopted a statutory provision such as Paragraph 24a 
of the Lower Austrian law on provincial and municipal remuneration, for example 
Vienna, is not covered. 
• All young and relatively young persons are not covered by the legislation, as 
no occupational pensions in the form of direct defined benefit pensions have been 
concluded in Austria since approximately 2000. Paragraph 24a of the Lower 
Austrian law on provincial and municipal remuneration and Paragraph 711 ASVG 
therefore cover only people whose pension contracts were entered into before the 
year 2000. Since, in the past, such pension contracts were generally only entered 
into after the employee had worked at the company for a relatively long period 
and had reached a certain management level (it can be assumed that, on average, 
the employee will have been older than 40 years of age when entering into such a 
contract), these people are therefore old to very old today. By contrast, relatively 
young people are not covered by the provisions specified above, because 
employers agree pension fund models or insurance models with them when 
pension contracts are entered into. In this way, the provisions specified above 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-223/19 
 
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distinguish people who are over the age of around 60 from people who are under 
the age of around 60. 
13 It was also explained in the proceedings, in detail and with reference to official 
Austrian statistics, that both Paragraph 24a of the Lower Austrian law on 
provincial and municipal remuneration and Paragraph 711 ASVG predominantly 
impinge on the occupational pensions of men. For this reason, Paragraph 711 
ASVG was not applied in parallel proceedings before a different labour and social 
security court, on account of incompatibility with EU law. 
14 These differences of treatment could discriminate against the applicant, on the 
ground, primarily, of his sex, or of his age and his property. They would therefore 
conflict not only with the equal treatment directives, but also with the general 
prohibitions of discrimination in primary law, in particular Article 20 et seq. of the 
Charter. 
15 The withholding of so-called ‘pension security contributions’ to the benefit of the 
defendant should not and cannot serve to balance out the economic and/or legal 
situation as between the sexes. Nor can failing to increase the applicant’s 
occupational pension in 2018, which likewise benefits only the defendant, serve to 
improve the situation of women. Moreover, such measures are neither appropriate 
nor necessary for achieving the objective of gender equality. 
16 The conditions for the exclusions pursuant to Article 7 of Directive 79/7/EEC in 
respect of Paragraph 24a of the Lower Austrian law on provincial and municipal 
remuneration or the fundamental provisions of the SpBegrG or of Paragraph 711 
ASVG do not appear to be met either. 
17 In its judgment in Case C-123/10 (Brachner), the Court of Justice ruled that an 
annual pension adjustment scheme indirectly discriminated against women and 
therefore infringed Article 4(1) of Directive 79/7/EEC if in fact a significantly 
higher percentage of female pensioners than male pensioners was affected and 
was also disadvantaged. 
18 If this interpretation of Directive 79/7/EEC also applies to the opposite case, in 
which men are considerably more affected by a specific provision than women, 
the applicant, as a man, would be indirectly discriminated against by 
Paragraph 24a of the Lower Austrian law on provincial and municipal 
remuneration and Paragraph 711 ASVG. 
19 In its judgment in Case C-123/10 (Brachner), the Court of Justice expressly stated 
that a pension adjustment scheme was designed to ensure that the purchasing 
power of all pensions was at least maintained in the light of consumer price 
developments. The adjustment clause in the applicant’s pension contract is also 
intended to serve the same purpose. On the other hand, Paragraph 711 ASVG 
prohibits the defendant from adjusting the applicant’s occupational pension in 
accordance with the contract in 2018. 
YS 
 
9 
20 The distinguishing criterion ‘scrutiny of the applicant’s former employer by the 
Court of Auditors’ is not suitable for distinguishing between groups of people 
with occupational pensions. The reason for this is that, in fact, the purpose of 
scrutiny by the Court of Auditors is to scrutinise the shareholdings of the province 
of Lower Austria in a company operating in the private sector and listed on the 
stock exchange and has nothing to do with the contractual relationship between 
the applicant and NK AG. This is apparent in particular from the fact that 
commercially identical occupational pension contracts in the form of pension fund 
models or insurance models are not covered by the provisions specified above, 
even though the position as regards scrutiny of the employer by the Court of 
Auditors is no different. The use of this criterion in the laws specified above to 
distinguish between groups of people who are entitled to an occupational pension 
is therefore discriminatory per se and must not be used to differentiate salaries or 
occupational pensions. 
21 The SpBegrG and, in its wake, Paragraph 24a of the Lower Austrian law on 
provincial and municipal remuneration and Paragraph 711 ASVG, were adopted 
solely to impinge on so-called ‘old contracts’, which did not appear to the current 
members of the Austrian Parliament to be politically justifiable. As occupational 
pension contracts in the form of direct defined benefit pensions are held only by 
old or very old people, whereas younger people generally receive occupational 
pensions in the form of pension fund models, this potentially constitutes indirect 
discrimination based on age.  
22 The Austrian provisions specified above relate solely to people with relatively 
large contractual pension entitlements. The reduction of relatively large 
occupational pensions without a justifiable public interest in such a provision 
could therefore also be discriminatory on the ground of property. 
23 The differences of treatment caused by Paragraph 24a of the Lower Austrian law 
on provincial and municipal remuneration and Paragraph 711 ASVG are not 
justified in those laws. Only the explanatory notes on the government’s bill for the 
SpBegrG cite, as objectives, the ‘Remedying of imbalances that have arisen in 
connection with special pensions’ and the ‘Sustainable securing of financing for 
pension benefits’.  
24 In this regard, the applicant stated that he did not receive a ‘special pension’, but 
rather an occupational pension. It is not clear from the provisions specified above 
which imbalances were supposed to be remedied by Paragraph 24a of the Lower 
Austrian law on provincial and municipal remuneration and Paragraph 711 
ASVG. Neither in those laws nor in the explanatory notes relating to them was 
there a definition as to what an ‘imbalance’ was supposed to be, or how long it 
could be assumed to have existed for. It was in the very nature of occupational 
pensions that the amounts to which beneficiaries are entitled could vary. The 
applicant’s pension contract was with a listed public company; this contract must 
now be performed. The fact that there are people who receive smaller 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-223/19 
 
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occupational pensions cannot justify the discriminatory measures of the laws 
specified above. 
25 ‘Sustainable securing of financing for pension benefits’ is guaranteed in the case 
of the defendant even without the discriminatory laws, as the defendant has 
already built up sufficient pension reserves on account of Austrian laws of general 
application. NK AG operates successfully and has never asked the provincial or 
Federal legislature for support in the fulfilment of its contractual obligations to 
pay an occupational pension. In addition, ‘sustainable securing of financing’ 
would also be de facto impossible due to the forms of discrimination brought 
about by the law. 
26 The differences of treatment brought about by Paragraph 24a of the Lower 
Austrian law on provincial and municipal remuneration and Paragraph 711 ASVG 
cannot be justified by Article 6(1) or (2) of Directive 2000/78/EC. Neither 
Paragraph 24a of the Lower Austrian law on provincial and municipal 
remuneration nor Paragraph 711 ASVG has any effect whatsoever on employment 
policy, the labour market or vocational training. 
27 National provisions that are contrary to EU law should not be applied, even 
between two or more private contracting parties (see judgment of the Court of 
Justice of 19 January 2010, Case C-555/07, [Kücükdeveci], and of 22 November 
2005, Case C-144/04, [Mangold]). 
28 Paragraph 24a of the Lower Austrian law on provincial and municipal 
remuneration and Paragraph 711 ASVG could infringe the following fundamental 
rights of the Charter: 
• Article 17 of the Charter — Right to property: The laws specified above 
expropriate for no good reason and without compensation. Pursuant to 
Paragraph 24a of the Lower Austrian law on provincial and municipal 
remuneration, the debtor in an agreement relating to an occupational pension in 
the form of a direct defined benefit pension is obliged to withhold a sum of money 
to which the creditor of that agreement is contractually entitled, and may use that 
sum for any purposes. Paragraph 711 ASVG prohibits the debtor in a pension 
agreement from adjusting the value of a pension in accordance with the contract. 
No compensation for these expropriations is paid to the affected pensioners by the 
Federal Government or by the provinces. In addition to the expropriation of the 
applicant, the effect of these provisions is that the defendant’s own fundamental 
right to property is infringed through interference with its freedom of contract. 
• Article 20 et seq. of the Charter — Non-discrimination: The Austrian laws 
specified above infringe the prohibitions of discrimination contained in Title III of 
the Charter. The differences of treatment described are neither in the public 
interest nor objectively justified or appropriate. They serve only the debtor of a 
pension contract, being NK AG in this case — a commercially successful, listed 
public company in the energy and environment sector. 
YS 
 
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• Article 47 of the Charter — Right to an effective remedy: Neither 
Paragraph 24a of the Lower Austrian law on provincial and municipal 
remuneration nor Paragraph 711 ASVG makes provision for an effective remedy 
for directly challenging the withheld parts of a contractually agreed occupational 
pension. The expropriation takes place directly by law, without a more specific 
legal act that could be challenged. The only option is to bring an action against the 
contracting partner of the occupational pension under private law. 
29 The question whether Paragraph 24a of the Lower Austrian law on provincial and 
municipal remuneration and Paragraph 711 ASVG must be disapplied on account 
of its incompatibility with EU law is of decisive importance for the further 
progress of the proceedings and should be clarified in advance.