Judgment;Summary — ECLI:EU:C:2023:349
Date: 2023-04-27
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Austria

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: 
11 November 2021 
Referring court: 
Verwaltungsgerichtshof (Austria) 
Date of the decision to refer: 
11 October 2021 
Authority bringing the appeal on a point of law: 
Versicherungsanstalt öffentlich Bediensteter, Eisenbahnen und 
Bergbau 
Interested party: 
B 
  
Subject matter of the main proceedings 
Retirement pensions – Pension adjustment – Discrimination on grounds of age  
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Question referred for a preliminary ruling 
Are Article 2(1) and 2(2)(a) and Article 6(1) of Council Directive 2000/78/EC of 
27 November 2000 establishing a general framework for equal treatment in 
employment and occupation and the principles of legal certainty, maintenance of 
established rights and effectiveness of EU law to be interpreted as precluding 
national legislation – such as that at issue in the main proceedings – under which a 
previously advantaged category of civil servants is retroactively no longer entitled 
to pension benefits accruing on the basis of a pension adjustment, and which, in 
EN 
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that way (retroactive removal of the previously advantaged category by now 
placing it on an equal footing with the previously disadvantaged category), has the 
effect that the previously disadvantaged category of civil servants is also not/no 
longer entitled to pension benefits accruing on the basis of the pension adjustment 
to which the latter category would have been entitled because of discrimination on 
grounds of age which has already been (on several occasions) judicially 
established – as a result of the non-application of a national provision which is 
contrary to EU law for the purpose of establishing equal treatment with the 
previously advantaged category? 
Provisions of EU law cited 
Council Directive 2000/78/EC of 27 November 2000 establishing a general 
framework for equal treatment in employment and occupation 
Provisions of national law cited 
Bundesgesetz über die Pensionsansprüche der Bundesbeamten, ihrer 
Hinterbliebenen und Angehörigen (Pensionsgesetz 1965 – PG 1965) (Federal Law 
on the pension rights of federal civil servants, their survivors and the members of 
their families (1965 Law on pensions – ‘the 1965 PG’) of 18 November 1965, 
Paragraph 41(1) to (3) 
Paragraph 41 of the 1965 PG in the version of the Federal Law as published in 
BGBl. I No 111/2010 provides/provided as follows: 
‘Effects of future amendments to this Federal Law and adjustment of recurring 
benefits 
… 
(3) The pension adjustment method laid down in Paragraph 634(12) of the 
ASVG [Allgemeines Sozialversicherungsgesetz – General Law on social security] 
for the 2010 calendar year shall, in the case of civil servants who were born before 
1 January 1955 and were in service on 31 December 2006, be applied in the first 
three adjustments of their retirement pensions or of reversionary pensions derived 
from them, unless, for the calendar year concerned, a provision derogating from 
Paragraph 108h(1) of the ASVG applies’. 
Paragraph 41(3) of the 1965 PG, in the version of the 2. Dienstrechts-Novelle 
2018 (2nd Law amending the rules relating to public servants 2018; ‘the 2018 
Amending Law’), BGBl. I No 102/2018, now reads as follows: 
‘(3) The pension adjustment method laid down in Paragraph 634(12) of the 
ASVG for the 2010 calendar year shall, in the case of civil servants who were 
born before 1 January 1955 and were in service on 31 December 2006 and in the 
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case of those to whom Paragraph 99(6) is applicable, be applied in the first three 
adjustments of their retirement pensions or of reversionary pensions derived from 
them, unless, for the calendar year concerned, a provision derogating from 
Paragraph 108h(1) of the ASVG applies.’ (Change made by the 2018 Amending 
Law underlined by the Verwaltungsgerichtshof (Supreme Administrative Court)) 
In the travaux préparatoires relating to the 2018 Amending Law, the following 
was stated in relation to Paragraph 41(3) of the 1965 PG: 
‘In Case No Ro 2016/12/0027 of 25 October 2017, the Verwaltungsgerichtshof 
(VwGH) stated that, with regard to the application of Paragraph 41(3), the age 
group of civil servants born before 1955 would be discriminated against in 
relation to civil servants born after 1954, to whom Paragraph 99(6) was 
applicable. In order to eliminate that discrimination, those civil servants to whom 
Paragraph 99(6) was applicable are retroactively brought within the scope of 
Paragraph 41(3).’ 
Paragraph 99 of the 1965 PG, in the version of the Federal Law as published in 
BGBl. I No 210/2013, provided as follows: 
‘SECTION XIII 
Special provisions for civil servants born after 31 December 1954 – Parallel 
calculation (‘Parallelrechnung’) 
Paragraph 99. (6) A parallel calculation is not to be carried out if the ratio of 
the total pensionable period of service completed as at 1 January 2005 to the total 
pensionable period of service is less than 5% or if the first-mentioned period of 
service is less than 36 months. In that case, the pension is to be calculated in 
accordance with the provisions of this Federal Law, with the exception of the 
present Section.’ 
Bundesgesetz über die Allgemeine Sozialversicherung (Federal Law on social 
security – ‘the ASVG’) of 9 September 1955 
Succinct presentation of the facts and procedure in the main proceedings 
1 The interested party was born on 10 November 1946 and retired on 31 December 
2011. 
2 By administrative decision of 9 May 2012, the authority bringing the appeal on a 
point of law (‘the appellant authority’) determined that the interested party was 
entitled to a monthly retirement pension of EUR 2 438.87 gross and a net 
emolument supplement of EUR 595.70 as of 1 January 2012. 
3 With effect from 1 January 2015, the interested party’s retirement pension benefits 
were adjusted. By letter of 20 May 2015, she submitted that the application of 
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Paragraph 41(3) of the 1965 PG constitutes an infringement of Council Directive 
2000/78/EC in that connection. According to the interested party, Paragraph 41(3) 
of the 1965 PG discriminates against older civil servants (those born before 
1 January 1955) in comparison with younger civil servants. The interested party 
therefore requested that the civil service pension to which she had been entitled as 
from 1 January 2015 be fixed by administrative decision and that she be 
retroactively paid the difference in benefits. 
4 By administrative decision of the appellant authority of 24 June 2015, the 
interested party’s monthly retirement pension was fixed at EUR 3 176.27 in 
application of Paragraph 41(3) of the 1965 PG. 
5 An appeal on the merits brought against that administrative decision was 
dismissed as unfounded by the Bundesverwaltungsgericht (Federal Administrative 
Court) by judgment of 19 August 2016. It stated that the direct discrimination on 
grounds of age at issue (capping of the pension adjustment under Paragraph 41(3) 
of the 1965 PG for civil servants born before 1 January 1955) did not run counter 
to the directive. The unequal treatment, it found, was justified by the fact that, for 
civil servants born on or after 1 January 1955, a parallel calculation, which was 
less favourable to them, was applied when determining the pension. 
6 By judgment of 25 October 2017, the Supreme Administrative Court set aside the 
judgment of the Federal Administrative Court on appeal on a point of law by the 
interested party on the ground of illegality of its content. The Supreme 
Administrative Court held that the justifying circumstance cited by the Federal 
Administrative Court did not apply, as the parallel calculation was not applicable 
to all younger civil servants, and the application of Paragraph 41(3) of the 1965 
PG therefore discriminated against the interested party in relation to a specific 
category of younger civil servants. 
7 By (replacement) judgment of 9 October 2018, the Federal Administrative Court 
fixed the interested party’s monthly pension at EUR 3 182.03 gross (retirement 
pension plus emolument supplement), and ruled that she was entitled to 
retroactive payment of the corresponding difference. It stated that Article 2 of 
Directive 2000/78/EC precluded the application of Paragraph 41(3) of the 1965 
PG on account of primacy of application. 
8 The appellant authority brought an appeal on a point of law against that 
(replacement) judgment, which the Supreme Administrative Court dismissed as 
inadmissible by decision of 30 April 2019. It stated that there was in fact a (small) 
category of persons who were treated favourably in relation to the interested party 
on account of their age, and that the cap provided for in Paragraph 41(3) of the 
1965 PG had in fact had a detrimental effect on the adjustment of the interested 
party’s retirement pension. 
9 By administrative decision of 25 July 2019, the appellant authority fixed the 
amount of the interested party’s pension benefits as from 1 January of the years 
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2015, 2016, 2017, 2018 and 2019 in response to her request of 17 July 2019 
(made on a precautionary basis). It was also found that there had been an 
overpayment of EUR 84.24 gross for the period from January to August 2019, 
which had to be reimbursed to the Federal Government. 
10 In issuing that administrative decision, the appellant authority proceeded on the 
assumption that the discrimination on grounds of age had been retroactively 
eliminated by amending legislation in 2018, to the effect that Paragraph 41(3) of 
the 1965 PG was now also applicable to the small category of persons in relation 
to whom the interested party had previously been the subject of discrimination. 
The decision of the Federal Administrative Court of 9 October 2018 therefore did 
not preclude the appellant authority from issuing a new decision. 
11 The appellant authority calculated the interested party’s retirement pension for 
2015 in the same way as it had done in its administrative decision of 24 June 
2015. The benefits which had been paid for the period from January 2015 to 
December 2018 in the amount fixed by the Federal Administrative Court in its 
judgment of 9 October [2018] had been received in good faith and were therefore 
not being recovered. However, due to the entry into force of the abovementioned 
amending law, receipt in good faith could no longer be assumed as of 1 January 
2019, with the result that the overpaid benefits had to be withheld from the 
interested party’s retirement pension benefits. 
12 The Federal Administrative Court, which had once again been seised of the 
matter, held that the request to fix the amount of the retirement pension for 2015 
was precluded on the ground of res judicata and had therefore to be refused. It 
also fixed the amount of the pension benefits for the years 2016 to 2020 and held 
that there had been no overpayment. 
13 In its reasoning, the Federal Administrative Court stated that, although the age-
related discrimination at issue had been removed from the legislative text by the 
amending law, it does not follow from that alone that the interested party was no 
longer discriminated against. The calculation method had not been changed in the 
slightest; the amounts that had been declared inapplicable had simply been 
reapplied retroactively. Therefore, the amending law did not bring about a 
significant change in the legal situation, and Paragraph 41(3) of the 1965 PG still 
could not be applied, due to an infringement of EU law. 
14 In the appeal on a point of law brought against that judgment, the appellant 
authority stated that, as a result of the retroactive change in the legal situation, the 
principle of res judicata does not apply. According to the appellant authority, 
there are no express higher-ranking provisions that would prohibit the legislature 
from interfering with existing legal positions. There are no fundamental social 
rights in Austria, and the European Social Charter does not have constitutional 
status and is also subject to the requirement of enactment of primary legislation by 
parliament, with the result that the ordinary legislature may in principle change 
legal positions under social law to the detriment of those concerned. Although 
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legitimate expectations in acquired rights must be taken into account, and 
retirement pensioners are particularly worthy of protection, what is at issue is 
merely a retroactive extension of the scope of an existing rule, and the intensity of 
the interference is relatively minor. In addition, the legislature intended to 
eliminate the established discrimination by means of the abovementioned 
amending law. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
15 In accordance with settled case-law of the Court of Justice of the European Union 
(‘the Court’), if there has been discrimination contrary to EU law, observance of 
the principle of equality can be ensured only by granting to persons within the 
disadvantaged category the same advantages as those enjoyed by persons within 
the favoured category. In the present case, the discriminatory provision must be 
disregarded by the national court, and the difference in benefits must be paid to 
the civil servant who was the subject of discrimination. That continues to be the 
case until the discrimination has been effectively eliminated. 
16 According to the legal situation prior to the 2018 Amending Law, there were three 
categories of civil servants in respect of whom the annual pension adjustment was 
made in different ways. For the first category, a capped pension adjustment was to 
be made in the first three years; for the second category, the parallel calculation 
was to be applied; and, for the third category, neither one nor the other of those 
approaches was taken. By judgment of 25 October 2017, the Supreme 
Administrative Court held that the interested party, as a member of the first 
category, had suffered discrimination on the basis of her age in comparison with 
members of the third category. 
17 By means of the 2018 Amending Law, the third (favoured) category was 
retroactively removed by virtue of the fact that the application of Paragraph 41(3) 
of the 1965 PG was extended to cover that category, and the discrimination was 
eliminated as a result of the fact that the third category and the (previously 
disadvantaged) first category are now retroactively treated equally badly. 
18 Following that amending law, the appellant authority established the interested 
party’s entitlements in the same way as it had done in its administrative decision 
of 24 June 2015, even though entitlements which had already been established by 
a final judicial decision – disapplying the national law which is contrary to EU 
law – existed for that period. Therefore, the 2018 Amending Law might run 
counter to the principle of legal certainty. 
19 In addition, under EU law, there is an obligation to eliminate discrimination 
immediately and in full, and a prohibition on removing, with retroactive effect, the 
advantages of the previously favoured category. However, the 2018 Amending 
Law removes, with retroactive effect, the advantages to which the previously 
favoured category was entitled. It is also unclear whether that case-law, which is 
based on discrimination on grounds of gender, which is prohibited under primary 
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and secondary law, is also applicable to discrimination on grounds of age, which 
is prohibited only under secondary law. 
20 According to the case-law of the Court, it is possible that measures seeking to end 
discrimination contrary to EU law may, exceptionally, be adopted with retroactive 
effect provided that, in addition to respecting the legitimate expectations of the 
persons concerned, those measures are in fact warranted by an overriding reason 
in the public interest. Although a significant threat to the financial equilibrium of 
the pension scheme in question may constitute an overriding reason in the public 
interest, in Austria the retirement pensions of civil servants are paid from the State 
budget, not from a pension scheme. 
21 In relation to discrimination on grounds of age, the Court has hitherto ruled, in 
principle, that the established rights of the favoured category must be maintained. 
That is precisely not the case in the main proceedings. In accordance with the 
case-law, financial compensation (of the difference in relation to the amount that 
would be due without discrimination) is not obligatory in cases of discrimination 
on grounds of age, but on the presumption that the established rights of the 
favoured category are maintained. There has hitherto not been a ruling 
establishing the cases in which, the circumstances under which, and the extent to 
which it is permissible to fall short of that difference. In any event, it has never yet 
been held – so far as can be seen – that it would be in conformity with EU law to 
place the previously favoured category on an equal footing with the previously 
disadvantaged category with regard to their entitlements by means of a new 
statutory regime which enters into force with retroactive effect, with the result that 
a person who has previously suffered discrimination on the basis of age has no 
financial entitlements whatsoever. 
22 Under the 2018 Amending Law, the interested party would also suffer a not 
insignificant loss of pension income in comparison with a non-application of the 
discriminatory provisions. 
23 Moreover, according to settled case-law of the Court, Member States are obliged 
to provide remedies sufficient to ensure effective legal protection in the fields 
covered by EU law. However, the effectiveness of the remedies would appear to 
be undermined by the retroactive worsening of the legal position of the previously 
favoured category if a statutory regime which can retroactively eliminate 
judicially established discrimination without guaranteeing the resulting difference 
in benefits for those discriminated against were to be regarded as being EU-law 
compliant. 
24 Moreover, if the 2018 Amending Law were regarded as being EU-law compliant, 
the civil servants who had asserted discrimination claims would have to bear 
financial expenses as a result of the dispute without having ultimately received 
any advantage from the successful discrimination claims. 
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25 Moreover, within the category of civil servants who have availed themselves of 
remedies to enforce their claims under EU law, there is, on the one hand, a sub-
category who have already received payments on the basis of a non-
discriminatory calculation of their pensions and are allowed to keep that 
additional amount, and, on the other hand, a sub-category to whom no such 
payments have been made thus far, with the result that they have not received any 
financial advantage. The sub-category to which a civil servant belongs depends, in 
essence, on circumstances over which he or she could not have any influence, 
namely whether and how the competent authorities and administrative courts ruled 
or took action in the individual case, with the result that both the effectiveness of 
the remedies of which the civil servants concerned availed themselves in order to 
enforce their claims under EU law and the general principle of equal treatment 
appear to be called into question.