35.

The Verwaltungsgericht Berlin decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘1. Is primary and/or secondary EU law — specifically, in this context, Directive [2000/78] — to be interpreted, for the purposes of applying fully the prohibition of unjustified discrimination on grounds of age, to the effect that that directive also covers national rules on the remuneration of … civil servants? 2. If Question 1 is answered in the affirmative: does that interpretation of primary and/or secondary EU law mean that a provision of national law under which the basic pay of a civil servant, upon his entry into the public service, is to be decisively determined by reference to his age, and thereafter to rise primarily on the basis of his length of public service constitutes direct or indirect discrimination on grounds of age? 3. If Question 2 is answered in the affirmative: does that interpretation of primary and/or secondary EU law preclude the possibility of justifying such a provision of national law in terms of the legislative aim of rewarding professional experience? 4. If Question 3 is answered in the affirmative: does that interpretation of primary and/or secondary EU law permit — pending the introduction of a non-discriminatory remuneration system — a legal consequence other than the retrospective grant to those discriminated against of the remuneration corresponding to the highest step in their grade? Does the legal consequence of breach of the prohibition of discrimination flow in that case directly from primary and/or secondary EU law itself — specifically, in this context, from Directive [2000/78] — or is the sole basis for a claim on the part of the victim of discrimination the application of the principle of EU law that Member States incur liability if provisions of EU law are incorrectly transposed into national law? 5. Does that interpretation of primary and/or secondary EU law preclude a national measure which makes the right to (retrospective) payment or to compensation conditional upon that right being asserted by the civil servants concerned within relatively narrow time-limits? 6. If Questions 1, 2 and 3 are answered in the affirmative, does it follow from that interpretation of primary and/or secondary EU law that a law laying down the rules governing the reclassification under the new system of [established] civil servants — under which the step in the new system to which they are allocated is to be determined solely on the basis of the amount of basic pay that they received under the old (discriminatory) remuneration system on the date set for transition to the new system, and further advancement to higher steps is thereafter to be based solely on the periods of experience completed after the entry into force of that law, irrespective of the overall length of experience of the civil servant concerned — perpetuates the existing discrimination on grounds of age, until such time as the civil servant has reached the highest pay step? 7. If Question 6 is answered in the affirmative: does that interpretation of primary and/or secondary EU law preclude the possibility that the perpetuation of discrimination can be justified in terms of the legislative aim of protecting not (only) the acquired rights existing on the transition date but (also) the expectations of [established] civil servants regarding the prospects of increased income within the relevant grade, as guaranteed under the old system? Can the perpetuation of discrimination against [established] civil servants be justified by the fact that the alternative approach (consisting in the individual reclassification of [established] civil servants on the basis of their seniority) would be relatively expensive to implement in administrative terms? 8. In the event that the Court rejects the reasons suggested as justification in Question 7: does that interpretation of primary and/or secondary EU law permit — pending the introduction of a non-discriminatory remuneration system — a legal consequence other than the retrospective and ongoing grant to [established] civil servants of the remuneration corresponding to the highest step in their grade? Does the legal consequence of breach of the prohibition of discrimination flow in that case directly from primary and/or secondary EU law itself — specifically, in this context, from Directive [2000/78] — or is the sole basis for a claim on the part of the victim of discrimination the application of the principle of EU law that Member States incur liability if provisions of EU law are incorrectly transposed into national law?’