Case C‑417/13

ÖBB Personenverkehr AG

v

Gotthard Starjakob

(Request for a preliminary ruling from the Oberster Gerichtshof)

‛Reference for a preliminary ruling — Social policy — Directive 2000/78/EC — Equal treatment in employment and occupation — Article 2(1) and (2)(a) — Article 6(1) — Discrimination based on age — National legislation under which inclusion of periods of service completed before the age of 18 for the purpose of determining remuneration is subject to an extension of the periods for advancement — Justification — Whether appropriate for the purpose of achieving the objective pursued — Possibility of challenging the extension of the periods for advancement’

Summary — Judgment of the Court (Second Chamber), 28 January 2015

EU law — Rights conferred on individuals — National rules of procedure — Observance of the principle of effectiveness — National provision laying down a limitation period — Period starting to run before the date of delivery of the judgment of the Court which has clarified the legal position on the matter — Lawfulness

Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of age — Infringement of the principle of non-discrimination based on age by the national legislation on remuneration — Consequences — National legislation providing for an obligation for an employee discriminated against to give his employer the evidence relating to the periods of service prior to the age of 18, so that they can be taken into account — Lawfulness — Refusal to cooperate and bringing an action seeking to obtain payment intended to re-establish equal treatment — No abuse of law

Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of age — Infringement of the principle of non-discrimination based on age by the national legislation on remuneration — Consequences — Obligation to grant retroactively to the employees discriminated against an amount corresponding to the difference between the remuneration actually received and that obtained by the favoured employees — None — Right of the employees discriminated against to the advantages granted to the favoured employees

Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of age — National legislation under which inclusion of periods of service completed before the age of 18 for the purpose of determining remuneration is subject to an extension of the periods for advancement — Legislation containing discrimination — Justification based on the pursuit of legitimate aims — Preservation of existing rights and legitimate expectations — Proportionality — None

EU law, in particular, 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 national legislation, which, to end discrimination based on age, takes account of periods of service prior to the age of 18, but which, simultaneously, includes a rule, applicable in reality only to employees who are subject to that discrimination, which extends by one year the period required for advancement in each of the three first salary steps and which, in so doing, definitively maintains a difference in treatment based on age. In so far as that one-year extension is applicable only to employees who completed periods of service before reaching the age of 18, it must be held that the national legislation cited above involves a difference in treatment which is directly based on age within the meaning of Article 2(2)(a) of Directive 2000/78. As regards the justification for such a difference in treatment, it must be noted, first, that budgetary considerations cannot in themselves constitute a legitimate aim within the meaning of Article 6(1) of Directive 2000/78. As regards, second, respect for the acquired rights and the protection of the legitimate expectations of employees favoured by the previous system with regard to their remuneration, it should be noted that these constitute legitimate employment-policy and labour-market objectives which can justify, for a transitional period, the maintenance of earlier pay and, consequently, the maintenance of a system that discriminates on the basis of age. Those objectives cannot, however, justify a measure that maintains definitively, if only for certain persons, the age-based difference in treatment which the reform of a discriminatory system, of which such a measure forms part, is designed to eliminate. Such a measure, even if it is capable of ensuring the protection of acquired rights and legitimate expectations with regard to employees favoured by the previous system, is not appropriate for the purpose of establishing a non-discriminatory system for employees who were disadvantaged by that previous system. (see paras 31, 36, 37, 39, 40, operative part 1)

EU law, in particular Article 16 of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, must be interpreted as meaning that national legislation which seeks to end discrimination based on age does not necessarily have to allow an employee whose periods of service completed before the age of 18 have not been taken into account in calculating his advancement to obtain financial compensation which corresponds to payment of the difference between the remuneration which he would have received in the absence of such discrimination and that which he actually received. That being said, where discrimination contrary to EU law has been established, as long as measures reinstating equal treatment have not been adopted, 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, the latter arrangements, for want of the correct application of EU law, being the only valid point of reference remaining. That approach is intended to apply only if there is a valid point of reference. Therefore, in the case at issue and as long as a system to abolish discrimination on grounds of age in a way that conforms with the provisions of Directive 2000/78 has not been adopted, re-establishing equal treatment entails granting employees disadvantaged by the previous system the same benefits as those enjoyed by the employees favoured by that system, as regards the recognition of periods of service completed before the age of 18 but also advancement in the pay scale. (see paras 45-47, 49, operative part 2)

EU law, in particular Article 16 of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, must be interpreted as not preventing the national legislature from providing, in order to take into account periods of service completed before the age of 18, for an obligation of cooperation under which the employee must give his employer the evidence relating to those periods. Neither Article 16 of Directive 2000/78 nor any other provision of that directive precludes a national provision from providing for an obligation of cooperation under which the employee must give his employer the evidence relating to the periods of service prior to the age of 18 so that they can be taken into account. A finding of abuse requires a combination of objective and subjective elements. With regard to the objective element, it must be apparent from a combination of objective circumstances that, despite formal observance of the conditions laid down by EU rules, the purpose of those rules has not been achieved. As regards the subjective element, it must be apparent that there is an intention to obtain an improper advantage from the EU rules by artificially creating the conditions laid down for obtaining it. There is no abuse of law in (i) an employee’s refusal to cooperate for the purpose of the application of national legislation which involves discrimination based on age contrary to Directive 2000/78, and (ii) his action seeking to obtain payment intended to re-establish equal treatment with employees favoured by the previous system. (see paras 54, 56, 58, operative part 3)