JUDGMENT OF THE COURT (Seventh Chamber)
27 February 2020 (*)
(References for a preliminary ruling – Social policy – Equal treatment in employment and occupation – Directive 2000/78/EC – Articles 2 and 6 – Prohibition of all discrimination on grounds of age – Remuneration of civil servants – Discriminatory system of remuneration – Retrospective payment calculated on the basis of a prior discriminatory classification – New form of discrimination – Article 9 – Compensation as a result of discriminatory legislation – Time limit for making an application for compensation – Principles of equivalence and effectiveness)
In Joined Cases C‑773/18 to C‑775/18,
THREE REQUESTS for a preliminary ruling under Article 267 TFEU from the Verwaltungsgericht Halle (Administrative Court, Halle, Germany), made by decisions of 15 August 2018, received at the Court on 10 December 2018, in the proceedings
TK (C‑773/18),
UL (C‑774/18),
VM (C‑775/18)
v
Land Sachsen-Anhalt,
THE COURT (Seventh Chamber),
composed of A. Arabadjiev (Rapporteur), President of the Second Chamber, acting as President of the Seventh Chamber, T. von Danwitz and A. Kumin, Judges,
Advocate General: M. Campos Sánchez-Bordona,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–        Land Sachsen-Anhalt, by J. Barone, acting as Agent,
–        the European Commission, by C. Valero, B.-R. Killmann and T. Maxian Rusche, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1        These requests for a preliminary ruling concern the interpretation of Articles 2, 6, 9 and 17 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) and of Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2        These requests have been made in three sets of proceedings between (i) TK (C‑773/18), (ii) UL (C‑774/18), and (iii) VM (C‑775/18) and Land Sachsen-Anhalt (Land of Saxony-Anhalt, Germany) concerning applications for payment of compensation for discrimination on grounds of age, allegedly suffered as a result of the applicants’ step classification at the time of their recruitment as judges or civil servants of that Land.
Legal context
European Union law
3        Under 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’.
4        Article 2 of that directive provides:
‘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:
(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, …
…’
5        Article 6 of that directive provides:
‘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.
Such differences of treatment may include, among others:
(a)      the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;
(b)      the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;
(c)      the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.
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.’
6        Article 9 of that directive is worded as follows:
‘1.      Member States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.
…
3.      Paragraphs 1 and 2 shall be without prejudice to national rules on time limits for bringing actions as regards the principle of equal treatment.’
7        Article 17 of Directive 2000/78 states:
‘Member States shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied. The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive. Member States shall notify those provisions to the Commission by 2 December 2003 at the latest and shall notify it without delay of any subsequent amendment affecting them.’
German law
8        In accordance with Paragraph 1 of the Allgemeines Gleichbehandlungsgesetz (General Law on Equal Treatment) of 14 August 2006 (BGBl. I, p. 1897; ‘the AGG’), the objective of that law is to prevent or eliminate discrimination on grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual identity.
9        Paragraph 7(1) of the AGG provides:
‘Workers shall not be discriminated against on any of the grounds mentioned in Paragraph 1 …’
10      Paragraph 15 of the AGG, entitled ‘Compensation and damages’, provides:
‘(1)      Where there is an infringement of the prohibition of discrimination, the employer shall be required to make good the damage caused thereby. This shall not apply where the employer is not responsible for the breach of duty.
(2)      For damage which is not pecuniary in nature, the employee may claim appropriate compensation in money. …
…
(4)      A claim under subparagraph 1 or 2 must be made in writing within two months, except where otherwise agreed by the parties to a collective agreement. In the case of a job application or a promotion, the time limit shall commence on receipt of the rejection, and in other cases of discrimination, at the time when the employee becomes aware of the discrimination.
…’
11      According to Paragraph 24 of the AGG, the provisions of that law are to apply mutatis mutandis, inter alia, to civil servants and judges.
The disputes in the main proceedings and the questions referred for a preliminary ruling
12      The applicant in the main proceedings in Case C‑773/18 has been serving, from 1 January 2010, as a judge of a court in the Land of Saxony-Anhalt. The applicants in the main proceedings in Cases C‑774/18 and C‑775/18 have been civil servants of that Land from 1 August 2006 and 1 January 2009, respectively.
13      Up to and including 31 March 2011, the applicants in the main proceedings were paid in accordance with the Bundesbesoldungsgesetz (Federal Law on remuneration of civil servants) of 6 August 2002 (BGBl. I, p. 3020), as amended by the Law of 12 July 2006 (BGBl. I, p. 1466) (‘the old Federal Law on remuneration of civil servants’). In accordance with that law, the step determining the basic pay of a civil servant or a judge within each service grade was allocated, at the time of recruitment, on the basis of the age of that civil servant or judge.
14      In its judgment of 8 September 2011, Hennigs and Mai (C‑297/10 and C‑298/10, EU:C:2011:560), the Court held that the principle of non-discrimination on grounds of age proclaimed in Article 21 of the Charter and given specific expression in Directive 2000/78, more particularly Article 2 and Article 6(1) of that directive, precludes the basic pay step of a public sector contractual employee from being determined on appointment by reference to the employee’s age.
15      According to the information provided by the referring court, following the delivery of that judgment, the Land of Saxony-Anhalt adopted the same approach as the Bundesministerium des Innern (Federal Ministry of the Interior, Germany), which had instructed the federal administrative bodies, by two circulars of 27 January 2012 and 23 March 2012, to dismiss any complaints brought by civil servants or judges against the determination of their remuneration under the old Federal Law on remuneration of civil servants, on the ground that that judgment concerned contractual employees and could not be transposed to the situation of civil servants and judges.
16      It is also apparent from the information provided by the referring court that the German administrative courts were divided as to whether the principles established in the judgment of 8 September 2011, Hennigs and Mai (C‑297/10 and C‑298/10, EU:C:2011:560), could be transposed to the pay conditions for civil servants and judges.
17      The applicants in the main proceedings lodged complaints with the Land of Saxony-Anhalt, on 16 December 2013 (C‑773/18), 17 February 2012 (C‑774/18) and 21 December 2012 (C‑775/18), respectively, against the determination of their remuneration up to 31 March 2011, alleging discrimination on grounds of age. They claimed, in particular, payment of the compensation provided for by Paragraph 15(2) of the AGG.
18      By judgments of 19 June 2014, Specht and Others (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005), and of 9 September 2015, Unland (C‑20/13, EU:C:2015:561), the Court held that Article 2 and Article 6(1) of Directive 2000/78 preclude a national measure under which, within each service grade, the step determining basic pay is to be allocated, at the time of recruitment, on the basis of the age of the civil servant or judge.
19      By two laws adopted on 18 December 2015 and 8 December 2016, respectively, the Land of Saxony-Anhalt provided for retrospective payment, from 2008, for all civil servants and judges employed in its service. For the period up to and including 31 March 2011, that retrospective payment was calculated as a percentage of the basic pay that the civil servants and judges had actually received, in each relevant year, under the old Federal Law on remuneration of civil servants.
20      The referring court states that that retrospective payment sought to give effect to two judgments of the Bundesverfassungsgericht (Federal Constitutional Court, Germany), by which that court had held that the remuneration of judges and civil servants of the Land of Saxony-Anhalt fell below the legal minimum imposed by the Grundgesetz (Basic Law) and had called on that Land to increase the remuneration of civil servants and judges in its service as from 2008.
21      On 24 March 2016 (C‑773/18), 27 June 2016 (C‑774/18) and 24 February 2016 (C‑775/18), the complaints lodged by the applicants in the main proceedings were dismissed on the ground that they had been made out of time. In that regard, the Land of Saxony-Anhalt stated, inter alia, that the applicants should have claimed payment of the compensation provided for by Paragraph 15(2) of the AGG within the two-month time limit laid down in Paragraph 15(4) of the AGG, which had started to run on 8 September 2011, the date of delivery of the judgment in Hennigs and Mai (C‑297/10 and C‑298/10, EU:C:2011:560).
22      On 18 April 2016 (C‑773/18), 22 July 2016 (C‑774/18) and 23 March 2016 (C‑775/18), each of the applicants in the main proceedings brought an action before the referring court against the Land of Saxony-Anhalt, seeking, inter alia, payment of the compensation referred to in Paragraph 15(2) of the AGG.
23      The referring court is uncertain, first, whether the retroactive increase in the remuneration of judges and civil servants for the period from 1 January 2008 to 31 March 2011 engenders a new form of discrimination on grounds of age, given that that increase amounts to a percentage of the basic pay received on the basis of the discriminatory step classification made under the old Federal Law on remuneration of civil servants.
24      Secondly, the referring court is uncertain whether the delivery of the judgment of 8 September 2011, Hennigs and Mai (C‑297/10 and C‑298/10, EU:C:2011:560), could have had the effect of triggering, for the applicants in the main proceedings, the two-month time limit laid down in Paragraph 15(4) of the AGG for them to assert their rights, in the present case by lodging a complaint. In the light of the fact that over 60% of such complaints made in the Land of Saxony-Anhalt were dismissed on the ground that that time limit was not complied with, the referring court has doubts whether civil servants and judges in situations such as those of the applicants in the main proceedings were able to take cognisance, from the moment the judgment was delivered, of the discriminatory nature of the calculation of their remuneration.
25      In those circumstances, the Verwaltungsgericht Halle (Administrative Court, Halle, Germany) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Is the ex post facto percentage increase within the context of an age-related discriminatory pay system a new form of discrimination if the percentage increase is the same for all stages of a pay grade, the gap between those discriminated against and those not discriminated against therefore remaining unchanged in relative terms, even though it is changed in absolute terms?
(2)      If the answer to Question 1 is in the affirmative, is such a percentage increase across all age brackets justified in cases where the increase is due to the initial payment falling below a minimum set by the constitution of the Member State concerned?
(3)      Does EU law, in particular Article 9 of Directive [2000/78], preclude legislation under which a right to compensation for age-related discriminatory payment is barred after two months if:
–        the time limit starts with the delivery of the judgment of 8 September 2011, Hennigs and Mai, (C‑297/10 and C‑298/10, EU:C:2011:560), even though the person concerned is not covered by the Bundesangestelltentarifvertrag (Collective Agreement for Federal public sector contractual employees), and his personal situation is the same as that in [the case giving rise to the judgment of 19 June 2014, Specht and Others (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005), or in that giving rise to the judgment of 9 September 2015, Unland (C‑20/13, EU:C:2015:561)];
–        the civil servants and judges concerned (employees) can become aware of the aforementioned judgment [of 8 September 2011, Hennigs and Mai (C‑297/10 and C‑298/10, EU:C:2011:560)] only from generally available public sources;
–        after that judgment was adopted, the employers stated that it did not apply to civil servants [or] judges and, in so doing, disputed the existence of age-related discrimination, that legal opinion having been made public, at least in part;
–        the case-law of the administrative courts at first instance has, for the most part, denied the existence of age-related discrimination during the time limit referred to and also subsequently, until delivery [of the judgment of 19 June 2014, Specht and Others (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005)];
–        no decisions were handed down by the higher [national] courts during the time limit, the first decision by a highest instance court in this regard being handed down only after delivery [of the judgment of 19 June 2014, Specht and Others (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005)];
–        as regards the employment relationship of civil servants and judges, time limits apply only to the reimbursement of certain expenditure and such periods are not less than six months;
–        actions relating to remuneration are subject to a three-year limitation period, starting from the end of the year in which entitlement to the right arose and the person concerned was aware of or ought to have been aware of the right, failing which the limitation period is ten years;
–        national actions relating to remuneration, which are not provided for by law, must be brought in a timely manner, that is, during the financial year in respect of which the right is claimed?
(4)      Does it affect the answer to question 3 if the legal position is unclear or confusing?
(5)      Is it sufficient for a time limit to be triggered if the category of disadvantaged persons is aware of the difference in treatment, or must the reason for the unequal treatment, that is the ground for differentiation, also be known?’
Consideration of the questions referred
The first and second questions
Admissibility
26      The Land of Saxony-Anhalt contends that the first and second questions referred are inadmissible, claiming that they are not relevant to the resolution of the dispute in the main proceedings. That Land states that, since the disputes in the main proceedings concern payment of compensation under Paragraph 15(2) of the AGG, it is irrelevant whether the applicants in the main proceedings are entitled to additional pay for an alleged second form of discrimination.
27      In that regard, it is sufficient to state that, in accordance with the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle required to give a ruling (judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 24 and the case-law cited).
28      It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to give a ruling on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to enable it to give a useful answer to the questions submitted to it (judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 25 and the case-law cited).
29      In the present case, it is apparent from the file before the Court that the applicants in the main proceedings have argued before the referring court that the effect of the retroactive increase in the remuneration of judges and civil servants for the period from 1 January 2008 to 31 March 2011 is that a new time limit under Paragraph 15(4) of the AGG began to run, since that increase engendered a new form of discrimination on grounds of age.
30      In those circumstances, the Court cannot accept that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose or that the first and second questions are hypothetical.
31      It follows that those questions are admissible.
Substance
32      By its first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether Articles 2 and 6 of Directive 2000/78 must be interpreted as precluding a measure which, in order to guarantee appropriate remuneration, grants to civil servants and judges retrospective payment calculated as a percentage of the basic pay that they previously received on the basis of, inter alia, a step determining basic pay which was allocated, for each grade, at the time of recruitment, on the basis of their age.
33      It is apparent from Article 2(1) of Directive 2000/78 that the principle of equal treatment is to be understood as meaning 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 that directive states that direct discrimination is to be taken to occur where one person is treated less favourably than another is in a comparable situation, on any of the grounds referred to in Article 1 of that directive.
34      It is thus necessary to determine, first, whether retrospective payment such as that at issue in the main proceedings engenders a difference in treatment for the purpose of Article 2(1) of Directive 2000/78.
35      In that regard, it is common ground that the retrospective payment provided for by the Laws of 18 December 2015 and of 8 December 2016 of the Land of Saxony-Anhalt was granted to the judges and civil servants concerned in order to allow them to receive remuneration commensurate with the importance of their functions, as required by the Basic Law, for the period from 1 January 2008 to 31 December 2011, and was calculated as a percentage of the basic pay previously received, with the step determining basic pay itself having been allocated, for each grade, at the time those judges and civil servants were recruited, on the basis of their age, in accordance with the old Federal Law on remuneration of civil servants. However, the Court has ruled that Article 2 and Article 6(1) of Directive 2000/78 preclude a national measure under which, within each service grade, the step determining basic pay is to be allocated, at the time of recruitment, on the basis of the civil servant’s age (judgment of 19 June 2014, Specht and Others, C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 52).
36      The referring court is therefore uncertain as to whether the fact that the civil servants and judges placed at a disadvantage by the old Federal Law on remuneration of civil servants because of their age receive – as a result of their basic pay being lower than that of civil servants and judges who have equivalent experience but were recruited at a later age – supplementary pay for the period from 1 January 2008 to 31 March 2011 which is less, in absolute terms, than that received by the latter group, engenders a new form of difference in treatment on grounds of age.
37      In that regard, it is true that retrospective payment set at a uniform percentage of the basic pay of a civil servant or a judge is not, as such, intrinsically linked to age and does not make any distinction between the persons concerned other than those arising under the reference framework which determines that basic pay.
38      Nevertheless, as stated by the referring court, given that the reference framework in the present case is the old Federal Law on remuneration of civil servants, which allocated the step determining basic pay, for each grade, at the time those judges and civil servants were recruited, on the basis of their age, it is apparent that that link has as a consequence that the retrospective payment at issue in the main proceedings, provided for by the Laws of 18 December 2015 and of 8 December 2016 of the Land of Saxony-Anhalt, itself again treats those judges and civil servants differently on grounds of age.
39      In those circumstances, it must be held that the retrospective payment at issue in the main proceedings engenders a new form of different treatment for the purpose of Article 2(1) of Directive 2000/78.
40      Secondly, it is necessary to examine whether that difference in treatment may be justified under Article 6(1) of Directive 2000/78.
41      The first subparagraph of that provision states that Member States may provide that differences of treatment on grounds of age are not to 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.
42      The Court has consistently held that Member States may provide for measures entailing differences of treatment on grounds of age, in accordance with the first subparagraph of Article 6(1) of Directive 2000/78. They enjoy broad discretion in their choice, not only to pursue a particular aim in the field of social and employment policy, but also in determining measures capable of achieving it (judgment of 19 June 2014, Specht and Others, C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 46).
43      According to the referring court, the difference in treatment identified in paragraph 39 above results from the pursuit of the objective, arising from the Basic Law, of guaranteeing appropriate remuneration for the civil servants and judges of the Land of Saxony-Anhalt.
44      In that regard, the objective of ensuring that the civil servants and judges of that Land receive a level of remuneration commensurate with the importance of their functions must be regarded as a legitimate aim (see, to that effect, judgment of 7 February 2019, Escribano Vindel, C‑49/18, EU:C:2019:106, paragraph 66).
45      It is still necessary to determine, in the light of the wording of Article 6(1) of Directive 2000/78, whether, in the context of the broad discretion enjoyed by Member States referred to in paragraph 42 of the present judgment, the means of achieving that aim are appropriate and necessary.
46      In that regard, resorting to retrospective payment set according to a uniform percentage of basic pay seems, as a rule, to be appropriate for the purpose of achieving the aim of ensuring that civil servants and judges receive a level of remuneration commensurate with the importance of their functions.
47      As regards the question whether that measure goes beyond what is necessary to achieve that legitimate aim, the referring court is uncertain whether the retrospective payment should not have been set by other methods, in particular by reference to the highest step in the grade in question.
48      In that regard, it must be stated that, in paragraphs 63, 72 and 86 of the judgment of 19 June 2014, Specht and Others (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005), the Court held, in essence, that Articles 2 and 6 of Directive 2000/78 do not preclude national legislation aiming to eliminate discrimination on grounds of age which has as its reference point, for a transitional period, the previous remuneration system that was based on a difference in treatment on grounds of age, in so far as that reference point is necessary for the purpose of ensuring that acquired rights are protected, and that its effects are intended to diminish and disappear with time.
49      In that context, the Court stated, in paragraph 81 of that judgment, that the damage that such a transitional system could cause to the civil servants that it concerns is particularly difficult to determine, especially in view of the number of civil servants affected and the lack of a valid point of reference making it possible to compare the situation of civil servants who would benefit with the situation of those who would not.
50      In paragraph 96 of that judgment, the Court inferred from this, as regards the period before the entry into force of the new national legislation, that retrospective payment calculated on the basis of the highest step in the grade in question could be applied only if there is a valid point of reference and that there was no such point of reference under the old Federal Law on remuneration of civil servants, since the discriminatory aspects of that law potentially affected all civil servants.
51      In the light of that case-law, it must be concluded that, provided that a measure such as that at issue in the main proceedings responds to the need to protect acquired rights in a context characterised in particular by the high number of civil servants and judges affected as well as by a lack of a valid point of reference, and does not result in a difference in treatment on grounds of age being perpetuated, Articles 2 and 6 of Directive 2000/78 do not preclude retrospective payment, aimed at ensuring that the civil servants and judges receive, for a short period prior to the entry into force of the new legislation intended to eliminate discrimination on grounds of age, a level of remuneration commensurate with the importance of the functions carried out by such persons, being made by reference to an earlier system of remuneration.
52      In those circumstances, and subject to verifications which it therefore falls to the referring court to make, it does not appear that the measure at issue in the main proceedings goes beyond what is necessary to achieve the aim of guaranteeing appropriate remuneration for the civil servants and judges of the Land of Saxony-Anhalt, as required by the Basic Law.
53      It follows that the answer to the first and second questions is that Articles 2 and 6 of Directive 2000/78 must be interpreted as meaning that, provided that it responds to the need to protect acquired rights in a context characterised in particular by the high number of civil servants and judges affected as well as by a lack of a valid point of reference, and does not result in a difference in treatment on grounds of age being perpetuated, they do not preclude a measure which, in order to guarantee appropriate remuneration, grants to civil servants and judges retrospective payment calculated as a percentage of the basic pay that they previously received in accordance with, inter alia, a step determining basic pay which was allocated, for each grade, at the time of recruitment, on the basis of their age.
The third to fifth questions
54      By its third to fifth questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 9 of Directive 2000/78 and the principles of equivalence and effectiveness must be interpreted as precluding a Member State from setting the starting point of a two-month time limit for making an application for compensation for damage resulting from a measure constituting discrimination on grounds of age as the date of delivery of a judgment by the Court establishing that a similar measure was discriminatory, in particular where there is disagreement in that Member State as to whether it is possible to transpose the guidance provided by that judgment to the measure in question.
55      As a preliminary point, it must be noted that it is common ground that the AGG transposes Directive 2000/78 into German law, that Paragraph 15(2) of the AGG is intended to ensure that the Federal Republic of Germany complies with its obligations under Article 17 of that directive and that that provision of the AGG provides, in that regard, for compensation for non-material damage caused by discrimination on grounds of age.
56      It is apparent from the case file before the Court that in order to receive such compensation it is simply necessary to show discrimination, that the damage is assessed, in accordance with settled national case-law, at a fixed rate of EUR 100 per month for the period during which the discrimination continued, and that the rights based on Paragraph 15(2) of the AGG must be asserted, in accordance with Paragraph 15(4) of the AGG, in writing vis-à-vis the employer within two months from the time the employee had knowledge of the discrimination.
57      The starting point of that period was set, for situations such as those in the main proceedings, in accordance with the case-law of the Bundesverwaltungsgericht (Federal Administrative Court, Germany), as the day of delivery of the judgment of 8 September 2011, Hennigs and Mai (C‑297/10 and C‑298/10, EU:C:2011:560).
58      In those circumstances, it is necessary to ascertain whether the duration of that time limit and the setting of its starting point at 8 September 2011 meet the requirements arising from Article 9 of Directive 2000/78 and the principles of equivalence and effectiveness.
59      In accordance with that provision, it is the responsibility of the Member States to ensure, inter alia, that administrative procedures for the enforcement of obligations under Directive 2000/78 are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them.
60      Thus, it follows from that provision that the question of time limits for initiating a procedure for the enforcement of obligations under the directive is not governed by EU law (judgment of 8 July 2010, Bulicke, C‑246/09, EU:C:2010:418, paragraph 24).
61      Therefore, in accordance with settled case-law, it is for the domestic legal system of each Member State to lay down such procedural rules, provided that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and that they do not make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (principle of effectiveness) (see, to that effect, judgment of 8 July 2010, Bulicke, C‑246/09, EU:C:2010:418, paragraph 25).
62      The Court has previously had the occasion to rule that Article 9 of Directive 2000/78 does not preclude a time limit such as that laid down in Paragraph 15(4) of the AGG, on condition that, first, that time limit is not less favourable than that applicable to similar domestic actions and, secondly, the setting of the point from which that time limit starts to run does not make it in practice impossible or excessively difficult to exercise the rights conferred by that directive (see, to that effect, judgment of 8 July 2010, Bulicke, C‑246/09, EU:C:2010:418, paragraph 42).
63      As regards the compatibility of Paragraph 15(4) of the AGG with the principle of equivalence, the Court has also held that the possibility of obtaining compensation for pecuniary or non-pecuniary damage resulting from a breach of the prohibition of discrimination on grounds of race, ethnic origin, religion or belief, disability, age or sexual identity was introduced by the AGG and that, strictly speaking, there were no equivalent procedures before the adoption of that law (judgment of 8 July 2010, Bulicke, C‑246/09, EU:C:2010:418, paragraph 30). Such a finding appears to be confirmed by the information contained in the case file before the Court.
64      Furthermore, it is apparent from that file that the rights conferred by Paragraph 15(2) of the AGG can be invoked irrespective of whether the employment relationship is public or private and whether those relationships are covered by a collective agreement.
65      In those circumstances, it is for the referring court to verify whether the actions referred to in the third question, all of which appear to relate to monetary claims specific to employment relationships in the civil service, are similar to an action for compensation brought under Paragraph 15 of the AGG and involve more favourable procedural rules, bearing in mind the specific features of the procedures in question (see, to that effect, judgment of 8 July 2010, Bulicke, C‑246/09, EU:C:2010:418, paragraph 29).
66      The referring court alone has direct knowledge of the procedural rules governing such actions in the field of the law relating to the civil service and thus is best placed to consider both the purpose and the essential characteristics of allegedly similar domestic procedures (see, to that effect, judgment of 8 July 2010, Bulicke, C‑246/09, EU:C:2010:418, paragraph 28).
67      When considering those issues, it must be borne in mind that compliance with the principle of equivalence requires the rule in question to apply without distinction to procedures based on infringement of EU law and those based on infringement of national law having a similar purpose and cause of action (see, to that effect, judgment of 20 September 2018, Rudigier, C‑518/17, EU:C:2018:757, paragraph 62 and the case-law cited).
68      With regard to the principle of effectiveness, it must be noted that every case in which the question arises as to whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its conduct, and its special features, viewed as a whole, before the various national bodies. In that context, it is necessary, inter alia, to take into consideration, where relevant, the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the procedure (judgment of 21 December 2016, TDC, C‑327/15, EU:C:2016:974, paragraph 97 and the case-law cited).
69      It is settled case-law that the setting of time limits must, in principle, satisfy the requirement of effectiveness since it constitutes an application of the fundamental principle of legal certainty which protects both the person and the administration concerned. Such time limits are, in principle, not liable to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law. In respect of national legislation which comes within the scope of EU law, it is for the Member States, however, to establish those periods in the light of, inter alia, the significance for the parties concerned of the decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interests which must be taken into consideration. Subject to that reservation, the Member States are free to provide for longer or shorter time limits (judgment of 21 December 2016, TDC, C‑327/15, EU:C:2016:974, paragraph 98 and the case-law cited).
70      As regards, in particular, Paragraph 15(4) of the AGG, which lays down a period of two months for making a complaint to an employer, the Court has held that the length of that time limit does not appear liable to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (see, to that effect, judgment of 8 July 2010, Bulicke, C‑246/09, EU:C:2010:418, paragraphs 38 and 39).
71      As regards the starting point of the time limit, the Court has had the occasion to point out that that point cannot be set in such a way that there is a risk that employees will have no way, within that time limit, of determining whether they have been discriminated against, or, if so, to what extent, which would make it impossible for them to enforce their rights (see, to that effect, judgment of 8 July 2010, Bulicke, C‑246/09, EU:C:2010:418, paragraph 40).
72      In that regard, the Court stated that, provided that the starting point for the time limit laid down in Paragraph 15(4) of the AGG is the point at which the worker has knowledge of the alleged discrimination, that provision is not liable to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (see, to that effect, judgment of 8 July 2010, Bulicke, C‑246/09, EU:C:2010:418, paragraph 41).
73      The Court does not regard as excessive difficulty the imposition of time limits which start to run only from the date on which the person concerned was aware, or at least ought to have been aware, of the discrimination alleged (see, to that effect, judgment of 7 November 2019, Flausch and Others, C‑280/18, EU:C:2019:928, paragraph 55).
74      It follows from the case-law referred to in paragraphs 71 to 73 of the present judgment that, for a person to be in a position of determining whether they have been discriminated against, or, if so, to what extent, that person must have the ability to know, at the same time, the difference in treatment to which he or she is subject, the ground for that difference in treatment and the discriminatory nature of the difference in treatment on the basis of that ground.
75      In the present case, as it was the old Federal Law on remuneration of civil servants that provided that the step determining the basic pay of a civil servant or a judge within each service grade, at the time of recruitment, was allocated on the basis of the age of that civil servant or judge, the applicants in the main proceedings were in a position to be aware, from the time of their recruitment, of both the difference in treatment that they were subject to and the ground for it.
76      However, it does not appear to be contested in the disputes in the main proceedings that the applicants were not aware and were not in a position to be aware, at the time of their recruitment, of the discriminatory nature of the treatment to which they were subject on the basis of that ground. It is apparent from the orders for reference that they became aware of that a very short time before they lodged their complaints.
77      The question thus arises whether the applicants in the main proceedings were in a position to be aware of the discriminatory nature of the difference in treatment from the date of delivery of the judgment of 8 September 2011, Hennigs and Mai (C‑297/10 and C‑298/10, EU:C:2011:560), as ruled by the Bundesverwaltungsgericht (Federal Administrative Court), on the ground that the relevant matters of law were established with sufficient clarity by that judgment.
78      In that regard, the Court has held that the nature and extent of the obligation on Member States under Articles 2(2) and 6(1) of Directive 2000/78 in respect of national legislation such as the old Federal Law on remuneration of civil servants have been clarified and defined from the date on which the judgment in Hennigs and Mai (C‑297/10 and C‑298/10, EU:C:2011:560) was delivered (judgment of 19 June 2014, Specht and Others, C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 104).
79      It is common ground that the Land of Saxony-Anhalt did not, at that time, inform its employees of the delivery of that judgment but that the judgment was available on the Court’s website on the day on which it was delivered. Furthermore, it is apparent from the orders for reference that that judgment was disseminated to both the general public, via the German media, and the members of a trade union representing the civil servants of that Land.
80      The referring court states that, of 10 667 applications for compensation under Paragraph 15(2) of the AGG lodged with the authorities of that Land, 7 071 were dismissed, 6 516 of which as a result of their being time-barred in view of the time limit laid down in Paragraph 15(4) of the AGG. Therefore, 4 151 of those applications, of which more than 700 were lodged by a trade union acting on behalf of its members, were brought within that time limit.
81      The referring court states that the civil servants and judges in the service of the Land of Saxony-Anhalt did not fall, during the period relevant to the main proceedings, within the scope of the legislation at issue in the case giving rise to the judgment of 8 September 2011, Hennigs and Mai (C‑297/10 and C‑298/10, EU:C:2011:560), but within that of the legislation at issue in the cases giving rise to the judgments of 19 June 2014, Specht and Others (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005), and of 9 September 2015, Unland (C‑20/13, EU:C:2015:561).
82      It states that, following the delivery of the judgment of 8 September 2011, Hennigs and Mai (C‑297/10 and C‑298/10, EU:C:2011:560), the Land of Saxony-Anhalt considered, like the Federal Ministry of the Interior in the circulars of 27 January 2012 and 23 March 2012, that the guidance provided by that judgment could not be transposed to the situation of civil servants and judges in its service since that guidance only concerned contractual employees.
83      The referring court observes that that view was shared, until the delivery of the judgments of 19 June 2014, Specht and Others (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005), and of 9 September 2015, Unland (C‑20/13, EU:C:2015:561), by the majority of the German administrative courts, and the clarification provided by the Bundesverwaltungsgericht (Federal Administrative Court, Germany) was given only following the delivery of the judgment of 19 June 2014, Specht and Others (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005).
84      Thus, according to the referring court, the matters of law relevant to the main proceedings were clarified only gradually in successive judgments of the Court, and, until the delivery of the judgments of 19 June 2014, Specht and Others (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 51), and of 9 September 2015, Unland (C‑20/13, EU:C:2015:561, paragraphs 33 and 34), those matters were not established sufficiently clearly.
85      Finally, it is apparent from the orders for reference that the applicants in the main proceedings neither learned quickly of the judgment of 8 September 2011, Hennigs and Mai (C‑297/10 and C‑298/10, EU:C:2011:560), nor gauged its importance for their own remuneration.
86      It is clear from the above, in particular the fact that several thousand civil servants and judges of the Land of Saxony-Anhalt lodged their applications within the time limit laid down in Paragraph 15(4) of the AGG, that the starting point of that time limit, as set in the present case, did not make it in practice impossible or excessively difficult to exercise the rights conferred by Paragraph 15(2) of the AGG.
87      However, as the referring court seems to believe, other aspects suggest that, in the particular circumstances described by that court, the exercise of those rights by the civil servants and judges of the Land of Saxony-Anhalt was rendered excessively difficult, the starting point being set in such a way that there was a risk that they would have no way of determining, within that two-month time limit, whether they had been discriminated against, or, if so, to what extent.
88      It has been noted in paragraphs 81 to 84 of the present judgment that the judgment of 8 September 2011, Hennigs and Mai (C‑297/10 and C‑298/10, EU:C:2011:560), did not concern the national legislation applicable to the applicants in the main proceedings, that the Land of Saxony-Anhalt and the competent federal authorities considered, following the delivery of the judgment, that the guidance provided in that judgment could not be transposed to the situation of civil servants and judges, and that, until the delivery of the judgments of 19 June 2014, Specht and Others (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 51), and of 9 September 2015, Unland (C‑20/13, EU:C:2015:561, paragraphs 33 and 34), the majority of the German administrative courts shared that view.
89      In those circumstances, the referring court appears to take the view, correctly, that, notwithstanding the clarifications and further details provided by the judgment of 8 September 2011, Hennigs and Mai (C‑297/10 and C‑298/10, EU:C:2011:560), in respect of the nature and extent of the obligation on the Member States under Articles 2(2) and 6(1) of Directive 2000/78, the matters of law relevant to the assessment of the compatibility of the rules on remuneration of the civil servants and judges of the Land of Saxony-Anhalt with those provisions were not sufficiently clarified by the delivery of the judgment, either for the competent authorities of the Land of Saxony-Anhalt, the competent federal authorities, or the majority of the German administrative courts.
90      In those circumstances, it is apparent that there was a risk that the civil servants, and indeed the judges, of the Land of Saxony-Anhalt were not in a position to determine, within two months from the delivery of the judgment of 8 September 2011, Hennigs and Mai (C‑297/10 and C‑298/10, EU:C:2011:560), whether they had been discriminated against, or, if so, to what extent.
91      The fact that there was such a risk seems to be corroborated both by the fact that, according to the findings of the referring court, the applicants in the main proceedings did not immediately gauge the importance of that judgment as regards their own remuneration and the fact that over 60% of the complaints brought by civil servants and judges of the Land of Saxony-Anhalt were dismissed for being out of time.
92      Those aspects of the case thus raise doubts as to whether the setting of the starting point of the time limit laid down in Paragraph 15(4) of the AGG as the date of delivery of the judgment of 8 September 2011, Hennigs and Mai (C‑297/10 and C‑298/10, EU:C:2011:560), took sufficient account of the criteria referred to in paragraph 69 of the present judgment, in particular those concerning the complexity of the legislation to be applied and the number of people likely to be concerned.
93      It is, however, for the referring court, which alone has direct knowledge of the disputes in the main proceedings, to carry out, in the light of all the relevant factual and legal circumstances, the necessary verifications in order to determine whether the starting point of the time limit laid down in Paragraph 15(4) of the AGG was set in such a way that it was excessively difficult for the civil servants and judges of the Land of Saxony-Anhalt to exercise the rights conferred on them by Paragraph 15(2) of the AGG.
94      In view of all the foregoing considerations, the answer to the third to fifth questions referred is that the principle of effectiveness must be interpreted as precluding a Member State from setting the starting point of a two-month time period for making an application for compensation for damage resulting from a measure constituting discrimination on grounds of age as the date of delivery of a judgment by the Court establishing that a similar measure was discriminatory, where there is a risk that the persons concerned will not be in a position, within that period, to determine whether they have been discriminated against, or, if so, to what extent. That may be the case in particular where there is disagreement in that Member State as to whether it is possible to transpose the guidance provided by that judgment to the measure in question.
Costs
95      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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 (Seventh Chamber) hereby rules:
1.      Articles 2 and 6 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that, provided that it responds to the need to protect acquired rights in a context characterised in particular by the high number of civil servants and judges affected as well as by a lack of a valid point of reference, and does not result in a difference in treatment on grounds of age being perpetuated, they do not preclude a measure which, in order to guarantee appropriate remuneration, grants to civil servants and judges retrospective payment calculated as a percentage of the basic pay that they previously received in accordance with, inter alia, a step determining basic pay which was allocated, for each grade, at the time of recruitment, on the basis of their age.
2.      The principle of effectiveness must be interpreted as precluding a Member State from setting the starting point of a two-month time period for making an application for compensation for damage resulting from a measure constituting discrimination on grounds of age as the date of delivery of a judgment by the Court establishing that a similar measure was discriminatory, where there is a risk that the persons concerned will not be in a position, within that period, to determine whether they have been discriminated against, or, if so, to what extent. That may be the case in particular where there is disagreement in that Member State as to whether it is possible to transpose the guidance provided by that judgment to the measure in question.
[Signatures]
*      Language of the case: German.