Joined Cases C‑501/12 to C‑506/12, C‑540/12 and C‑541/12

Thomas Specht and Others

v

Land Berlin

and

Bundesrepublik Deutschland

(Requests for a preliminary ruling from the Verwaltungsgericht Berlin)

‛Reference for a preliminary ruling — Social policy — Directive 2000/78/EC — Equal treatment ‘in employment and occupation’ — Articles 2, 3(1)(c) and 6(1) — Direct discrimination on grounds of age — Basic pay for civil servants dependent upon age — Transitional system — Perpetuation of the difference in treatment — Justifications — Right to compensation — Liability of the Member State — Principles of equivalence and of effectiveness’

Summary — Judgment of the Court (Second Chamber), 19 June 2014

EU law — Rights conferred on individuals — National rules of procedure — National legislation requiring the civil servant to take steps before the end of the financial year then in course to assert a claim to financial payments that do not arise directly from the law — Lawfulness — Conditions — Respect for the principles of equivalence and effectiveness

Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of age — Breach of the principle of non-discrimination on grounds of age by the national legislation on the remuneration of civil servants — Consequences — Obligation to retrospectively grant civil servants who have been discriminated against an amount equal to the difference between the pay actually received and that corresponding to the highest step in their grade — None — Obligations and powers of a national court — Obligation to make good damage caused to individuals — Conditions — Determination by the referring court

Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of age — Transitional system on the remuneration of civil servants who were established before the entry into force of new legislation replacing the old system based on age — Preservation for a transitional period of some of the discriminatory effects to ensure the preservation of acquired rights — Lawfulness

Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of age — National legislation under which, at the time of recruitment, the step determining basic pay is to be allocated, within each service grade, on the basis of the civil servant’s age — Not permissible — Justification — Proportionality — Absence of proportionality

Article 3(1)(c) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that pay conditions for civil servants fall within the scope of that directive. Although Article 153(5) TFEU, under which, by way of an exception to its powers in relation to social policy, the European Union is not entitled to intervene in matters of pay, it is necessary to draw a distinction between the term ‘pay’ as used in that article and the expression ‘conditions, including … pay’ as used in Article 3(1)(c) of Directive 2000/78. ‘Conditions, including … pay’ form part of the employment conditions and do not relate directly to the setting of a level of pay. (see paras 32, 34, 37, operative part 1)

Articles 2 and 6(1) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding 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. Although, as a general rule, recourse to the criterion of length of service is an appropriate means of achieving the aim of rewarding a civil servant’s experience, the sole criterion on the basis of which a particular step in a particular grade is initially allocated to a person with no professional experience is age. Accordingly, the allocation, on the basis of age, of a basic pay step to a civil servant upon his appointment goes beyond what is necessary for achieving that aim. (see paras 48, 50-52, operative part 2)

Articles 2 and 6(1) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding domestic legislation, laying down the detailed rules governing the reclassification within a new remuneration system of civil servants who were established before that legislation entered into force, under which the pay step that they are now allocated is to be determined solely on the basis of the amount received by way of basic pay under the old system, notwithstanding the fact that that amount depended on discrimination based on the civil servant’s age, and advancement to the next step is now to depend exclusively on the experience acquired after that legislation entered into force. The domestic legislature did not exceed the limits of its discretion by taking the view that it was neither realistic nor desirable to apply the new classification system retroactively to all established civil servants or to apply a transitional system guaranteeing an established civil servant and in a favoured position the same level of pay as he received previously until he has gained the experience required to qualify for higher pay under the new scheme. In those circumstances, an individual examination of each particular case cannot be insisted on in order to establish, a posteriori and individually, previous periods of activity, since the management of the scheme concerned must remain technically and economically viable. (see paras 78-80, 86, operative part 3)

It is for the national court to determine the legal implications of the finding that national legislation laying down the detailed rules governing the reclassification within a new remuneration system of civil servants who were established before that legislation entered into force does not comply with Directive 2000/78 establishing a general framework for equal treatment in employment and occupation. It is true that observance of the principle of equality can be ensured only by granting to the persons within the disadvantaged category the same advantages as those enjoyed by the persons within the favoured category. However, since there is no valid point of reference in the context of national legislation, it is not possible to identify a category of favoured civil servants. In those circumstances, in the event of breach of the principle of non-discrimination on grounds of age by the national legislation on the remuneration of civil servants, EU law — and, in particular, Article 17 of Directive 2000/78 — does not require civil servants who have been discriminated against to be retrospectively granted an amount equal to the difference between the pay actually received and that corresponding to the highest step in their grade. It is for the referring court to ascertain whether all the conditions, laid down by the case-law of the Court of Justice, are met for the Member State to have incurred liability under EU law. (see paras 94-96, 107, 108, operative part 4)