Judgment — ECLI:EU:C:2026:159
Date: 2026-03-05
Language of the case: German
Court formation: Ninth Chamber
Procedure: Reference for a preliminary ruling
Origin: Austria

summary of the facts in the main proceedings; (ii) merely refers to certain provisions of national law, without however setting out the context in which they occur; and (iii) has not sufficiently explained the doubts that it has as regards the interpretation of the provisions of EU law cited in the question referred for a preliminary ruling. 21 Under Article 94 of the Rules of Procedure, any request for a preliminary ruling shall contain (i) ‘a summary of the subject matter of the dispute and the relevant findings of fact as determined by the referring court or tribunal, or, at least, an account of the facts on which the questions are based’, (ii) ‘the tenor of any national provisions applicable in the case and, where appropriate, the relevant national case-law’ and (iii) ‘a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation or validity of certain provisions of European Union law, and the relationship between those provisions and the national legislation applicable to the main proceedings.’ 22 In the present case, the request for a preliminary ruling contains a sufficient description of the factual and legal context of the dispute in the main proceedings to satisfy those requirements and states the reasons which prompted the referring court to inquire about the interpretation of the provisions of EU law cited in the question referred for a preliminary ruling. First, that request sets out the tenor of the national provisions applicable in the present case. Next, the description by the referring court of the circumstances of the dispute in the main proceedings and the evolution of the applicable national legislation is sufficient to understand the reasons which underpin the choice of the provisions of EU law which that court seeks to have interpreted. Lastly, the referring court explains the relationship between those provisions and the national legislation applicable to the main proceedings. 23 It follows that the reference for a preliminary ruling is admissible. Consideration of the question referred 24 By its question, the referring court asks, in essence, whether Articles 1, 2 and 6 of Directive 2000/78, read in conjunction with Article 21 of the Charter, must be interpreted as precluding national legislation pursuant to which a contract staff member’s grade is fixed on the basis of his or her seniority in the remuneration scale, where that seniority is determined, in order to put an end to existing discrimination on grounds of age, by taking into account at half their value and subject to a ceiling of three years certain accreditable periods prior to the recruitment of that staff member completed before his or her 18th birthday. 25 As a preliminary point, it should be noted that it is common ground that the Province of Vienna decided to align the rules applicable to the Municipality of Vienna which preceded the 2023 legislation, which currently applies to the main proceedings, with the respective Austrian federal legislation which was the subject, inter alia, of the judgments of 18 June 2009, Hütter (C‑88/08, EU:C:2009:381); of 11 November 2014, Schmitzer (C‑530/13, EU:C:2014:2359); of 8 May 2019, Österreichischer Gewerkschaftsbund (C‑24/17, EU:C:2019:373); of 8 May 2019, Leitner (C‑396/17, EU:C:2019:375); and of 20 April 2023, Landespolizeidirektion Niederösterreich and Finanzamt Österreich (C‑650/21, EU:C:2023:300). 26 It should further be noted that the Austrian federal legislation applicable on the date that the applicant was recruited by the Municipality of Vienna excluded professional experience acquired before the age of 18 from being taken into account for the purpose of determining the incremental step at which the contractual public servants are graded. 27 In its judgment of 18 June 2009, Hütter (C‑88/08, EU:C:2009:381), the Court held, in essence, that Articles 1, 2 and 6 of Directive 2000/78 preclude national legislation which excludes periods of employment completed before the age of 18 from being taken into account for the purpose of determining the incremental step at which contractual public servants of a Member State are graded. In its judgment of 11 November 2014, Schmitzer (C‑530/13, EU:C:2014:2359), the Court clarified that those provisions preclude national legislation which, with a view to ending age-based discrimination, takes into account periods of training and service carried out before the age of 18, but which, at the same time, provides – only for civil servants who suffered that discrimination – a three-year extension of the period required in order to progress from the first to the second incremental step in each job category and each salary group. 28 Consequently, the Austrian federal civil service legislation was amended in 2015 and contract staff members recruited under the legislation prior to that amendment were transferred to a new remuneration system based on seniority. Following that amendment, the first grading in the new remuneration system of the transferred contract staff members was fixed by taking into account their last remuneration received under the previous system. 29 In its judgments of 8 May 2019, Österreichischer Gewerkschaftsbund (C‑24/17, EU:C:2019:373), and of 8 May 2019, Leitner (C‑396/17, EU:C:2019:375), the Court held, inter alia, in essence, that Articles 1, 2 and 6 of Directive 2000/78, read in conjunction with Article 21 of the Charter, preclude national legislation that, for the purposes of putting an end to discrimination on grounds of age, provides for the transfer of active contractual public servants to a new system of remuneration in the context of which the initial grading of those contractual public servants is determined according to their last remuneration paid under the previous system. 30 As a consequence of those judgments, the Austrian federal civil service legislation was amended so that the grading of contract staff members recruited under the previous legislation had to be reassessed by determining a ‘comparison reference date’ which takes into account prior periods of activity carried out by contract staff members before their 18th birthday. However, the ‘other periods’ could be taken into account at half their value only and subject to a ceiling of seven years, four of which were deducted on a flat-rate basis. 31 In that regard, as is apparent from paragraph 15 above, the Court held, in essence, in its judgment of 20 April 2023, Landespolizeidirektion Niederösterreich and Finanzamt Österreich (C‑650/21, EU:C:2023:300), that Articles 1, 2 and 6 of Directive 2000/78, read in conjunction with Article 21 of the Charter, must be interpreted as precluding national legislation under which the grading of a civil servant is fixed on the basis of his or her seniority in the remuneration scale of a previous remuneration system found to be discriminatory, then corrected by means of a ‘comparison reference date’, for the purposes of which all ‘other periods’ which are accreditable, including those completed before the age of 18, are to be taken into account at half their value, subject to a ceiling of seven years and only in so far as they exceed a period of four years. 32 Accordingly, it is necessary to assess, in the present case, whether the amendments introduced by the 2023 legislation actually brought a definitive end to the discrimination on grounds of age last identified by the Court in the judgment of 20 April 2023, Landespolizeidirektion Niederösterreich and Finanzamt Österreich (C‑650/21, EU:C:2023:300). 33 In that regard, it should be borne in mind that the prohibition of discrimination based on, inter alia, age is incorporated in Article 21 of the Charter and that that prohibition was given specific expression by Directive 2000/78 in the field of employment and occupation (judgment of 20 April 2023, Landespolizeidirektion Niederösterreich and Finanzamt Österreich, C‑650/21, EU:C:2023:300, paragraph 45). 34 Thus, it is necessary to examine whether the 2023 legislation introduces a difference in treatment within the meaning of Article 2(1) of Directive 2000/78. 35 Under that provision, the ‘principle of equal treatment’ means that there is to be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1 of that directive. Article 2(2)(a) of Directive 2000/78 states that, for the purposes of Article 2(1) thereof, direct discrimination is to be taken to occur where one person is treated less favourably than another is treated in a comparable situation, on any of the grounds referred to in Article 1 of that directive. 36 In the present case, the categories of persons relevant for the purposes of that comparison are, on the one hand, contract staff members who completed accreditable prior periods of activity, if only in part, before reaching their 18th birthday and, on the other hand, contract staff members who completed such periods of the same nature and of a comparable duration after reaching that age. 37 In that regard, in the first place, as the Municipality of Vienna, the Austrian Government and the European Commission submit, under Paragraph 49v of the BO 1994, in the version published in LGBl. No 38/2023, accreditable prior periods of service, whether they are completed before or after the 18th birthday of the contract staff member concerned, are taken into account for the purpose of determining his or her seniority. 38 In the second place, it is apparent from the summary of the legislation of the Province of Vienna, applicable to contract staff members of the Municipality of Vienna, provided by the referring court, that certain precisely defined prior periods of service, including those considered to be relevant to the post to which the contract staff member is recruited, are taken into account in their entirety, whereas the ‘other periods’ are taken into account at half their value only, subject to a ceiling of three years. 39 In that regard, it must be borne in mind that, according to settled case-law, the employer is, in principle, free to take into account only the experience acquired in a particular field which enables the worker to better perform the duties conferred on him (judgment of 14 March 2018, Stollwitzer, C‑482/16, EU:C:2018:180, paragraph 39). It follows that EU law does not require account to be taken of the entirety of ‘other periods’ which, according to the Municipality of Vienna and the Austrian Government, are included in the calculation of seniority, within the limits provided for, only on the basis of purely social considerations. 40 Accordingly, the fact that only half of the duration of those ‘other periods’ is to be taken into account and subject to a ceiling of three years cannot, in itself, constitute discrimination on grounds of age. In that case, it is the experience acquired with other undertakings which is not taken into account, irrespective of the age at which it was acquired and the age at which the worker concerned was recruited (judgment of 14 March 2018, Stollwitzer, C‑482/16, EU:C:2018:180, paragraph 40 and the case-law cited). In the present case, there is nothing in the file before the Court to suggest that the distinction made by the legislation of the Province of Vienna applicable to contract staff members of the Municipality of Vienna between the precisely defined prior periods of service, including those considered to be relevant to the post to which the contract staff member is recruited, and ‘other periods’ is based on any consideration of the age of the person concerned. 41 In the third place, the continuing discrimination on grounds of age identified by the Court in paragraphs 64 to 66 of the judgment of 20 April 2023, Landespolizeidirektion Niederösterreich and Finanzamt Österreich (C‑650/21, EU:C:2023:300), arose specifically from the flat-rate deduction of the first four years of experience acquired before recruitment, which prevented, in reality, persons who had acquired such experience, primarily between their 14th and 18th birthdays – since the minimum age required to work was set at 14 – from being entitled to have any of that experience taken into account. Since that flat-rate deduction was abolished by the 2023 legislation, that experience may now be taken into account on the same basis as that acquired by those persons after their 18th birthday, that is, as regards ‘other periods’, at half their value and subject to a ceiling of three years. 42 In particular, the reduction to three years, by the 2023 legislation, of the seven-year ceiling provided for by the 2019 legislation does not perpetuate the discrimination previously found or constitute new indirect discrimination on grounds of age, since that new ceiling applies irrespective of the age at which the experience was acquired. 43 In the fourth place, it is apparent from the summary of the 2023 legislation provided by the referring court that the seniority in the remuneration scale applicable to the Municipality of Vienna is, in essence, determined in two stages. 44 First, under Paragraph 15a(1), (4) and (5) of the DO 1994, in the version published in LGBl. No 38/2023, applicable to contract staff members pursuant to Paragraph 18(1) and (2) of the VBO 1995, the seniority applied in the remuneration scale results from the transfer of the contract staff member to the remuneration system provided for by the Law amending the rules relating to the civil service 2015, which excluded experience acquired before the contract staff member’s 18th birthday from being taken into account. 45 Second, the seniority thus determined is subject to a correction to take into account the difference between the advancement reference date applied under the regime prior to the Law amending the rules relating to the civil service 2015 and the ‘comparison reference date’. The latter date is determined in accordance with the detailed rules laid down in Paragraph 49v of the BO 1994, in the version published in LGBl. No 38/2023, taking into account accreditable prior periods of service completed by the contract staff member after he or she has reached the age of 14, thus allowing ‘other periods’ also to be taken into account where they are completed before the contract staff member’s 18th birthday. If the ‘comparison reference date’ thus determined is before the advancement reference date initially applied, the seniority of the staff member is increased by that difference. 46 It follows that, although the inclusion of the level of seniority in the remuneration scale, which results from the transfer of the contract staff member to the remuneration system provided for by the Law amending the rules relating to the civil service 2015, is liable to maintain the discriminatory effects produced by the regulations predating that law, in that its determination did not take into account the experience acquired before the 18th birthday of the contract staff member concerned, it appears, subject to verification by the referring court, that the correction made by means of the ‘comparison reference date’ now allows the accreditable periods completed before the contract staff member’s 18th birthday to be taken into account (see, by analogy, judgment of 20 April 2023, Landespolizeidirektion Niederösterreich and Finanzamt Österreich, C‑650/21, EU:C:2023:300, paragraphs 55 to 59). 47 In those circumstances, it does not appear that the contract staff members who completed prior periods of activity before reaching their 18th birthday are treated less favourably than those who completed such periods of the same nature and of comparable duration after reaching the age of 18. 48 In the fifth and last place, the mere fact that the 2023 legislation did not result in any additional advancement for the contract staff member concerned in the course of fixing the reference date for advancement in the remuneration scale applicable to the Municipality of Vienna does not mean that that legislation introduces or perpetuates discrimination based on age, whether direct or indirect. 49 That there is no additional advancement does not result from the fact that part of the ‘other periods’ prior to recruitment was completed before the applicant’s 18th birthday, but from the fact that, as the Municipality of Vienna and the Austrian Government submit, the duration of those ‘other periods’ – of which half was taken into account – had already reached the three-year ceiling. 50 It should also be noted that, in so far as the applicant argues in his submissions that persons recruited before 6 April 2001 are entitled to have half of all previous experience falling within the scope of ‘other periods’ taken into account, without any ceiling being applied, that difference in treatment compared with persons recruited after that date, assuming it is established, results from the date of recruitment of the contract staff member concerned. It is on the basis of that date that the former or new rules on the determination of seniority apply. Such a criterion, based on an objective and neutral factor, namely the date of recruitment, is manifestly unconnected to any taking into account of the age of the persons recruited (see, to that effect, judgment of 14 February 2019, Horgan and Keegan, C‑154/18, EU:C:2019:113, paragraphs 24 and 25). Consequently, a rule based on a reference date cannot constitute discrimination on grounds of age, since the only relevant criterion for its application is whether the person concerned is a contract staff member recruited before or after that date. 51 In the light of all the foregoing considerations, the answer to the question referred is that Articles 1, 2 and 6 of Directive 2000/78, read in conjunction with Article 21 of the Charter, must be interpreted as not precluding national legislation pursuant to which a contract staff member’s grade is fixed on the basis of his or her seniority in the remuneration scale, where that seniority is determined, in order to put an end to existing discrimination on grounds of age, by taking into account at half their value certain accreditable periods prior to the recruitment of that staff member completed before his or her 18th birthday, subject to a ceiling of three years, provided that that ceiling applies irrespective of the age at which the experience was acquired. Costs 52 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Ninth Chamber) hereby rules: Articles 1, 2 and 6 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, read in conjunction with Article 21 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding national legislation pursuant to which a contract staff member’s grade is fixed on the basis of his or her seniority in the remuneration scale, where that seniority is determined, in order to put an end to existing discrimination on grounds of age, by taking into account at half their value certain accreditable periods prior to the recruitment of that staff member completed before his or her 18th birthday, subject to a ceiling of three years, provided that that ceiling applies irrespective of the age at which the experience was acquired. [Signatures] * Language of the case: German.