Case C-229/08: Reference for a preliminary ruling from the Verwaltungsgericht Frankfurt am Main (Germany) lodged on 28 May 2008 — Colin Wolf v Stadt Frankfurt am Main
Date: 2008-05-28
Institutions: Court of Justice
Subjects: civil servant, interpretation of the law, pension scheme, recruitment, regulations for civil servants, social-security benefit

30.8.2008

EN

Official Journal of the European Union

C 223/21

for

Reference
from the
preliminary
Verwaltungsgericht Frankfurt am Main (Germany) lodged
on 28 May 2008 — Colin Wolf v Stadt Frankfurt am Main

ruling

a

(Case C-229/08)

(2008/C 223/33)

Language of the case: German

Referring court

Verwaltungsgericht Frankfurt am Main

Parties to the main proceedings

Applicant: Colin Wolf

Defendant: Stadt Frankfurt am Main

Questions referred

1. Does the national legislature enjoy a wide general margin of
discretion to exploit the room for manoeuvre in Article 6(1)
of Directive 2000/78/EC, (1) or is the discretion limited to
what is needed, at any rate when it comes to setting an
upper age limit for recruitment with a view to a minimum
period of service before retirement
in accordance with
point (c) of the second subparagraph of Article 6(1) of
Directive 2000/78/EC?

2. Does the criterion of need in point (c) of the second sub-
paragraph of Article 6(1) of Directive 2000/78/EC express
the appropriateness of the means mentioned in the first
subparagraph of Article 6(1) of Directive 2000/78/EC in
more concrete terms, thereby restricting the scope of that
general provision?

3.

(a) Does pursuing the interest in recruiting officials who
will remain in active service for as long as possible by
having a maximum recruitment age constitute a legiti-
mate aim for a public employer to pursue in the
context of
the first subparagraph of Article 6(1) of
Directive 2000/78/EC?

(b) Is the implementation of such an aim inappropriate as
soon as it results in officials serving for longer than the
5 years necessary to obtain the minimum pension guar-
anteed by law in the case of early retirement?

(c) Is the implementation of such an aim inappropriate
only once it results in officials serving for longer than
the time necessary — at present 19.51 years — to earn
in full the minimum pension guaranteed by law in the
case of early retirement?

4.

(a) Is it a legitimate aim within the meaning of the first
subparagraph of Article 6(1) of Directive 2000/78/EC
to keep the total number of officials to be recruited to a
minimum by means of a maximum recruitment age
which is as low as possible,
in order to keep to a
minimum the amount of individual benefits such as

provision for accidents or sickness (assistance which
also covers family members)?

(b) In that respect, what significance can be accorded to
the fact that, as officials grow older, provisions for acci-
dents or
family
members) are higher than for younger officials, so that
the recruitment of older officials could increase the
overall cost of such provision?

sickness benefits

(including

for

(c) In that respect, must firm forecasts or statistics be avail-
able, or are general assumptions based on probability
sufficient?

5.

(a) If a public employer wants

to apply a particular
to ensure a
maximum recruitment age in order
‘balanced age structure in the particular career’, is that
aim legitimate within the meaning of
the first sub-
paragraph of Article 6(1) of Directive 2000/78/EC?

(b) If so, what requirements must the criteria for creating
such an age structure satisfy in order to meet the condi-
tions for a ground of justification (appropriateness and
necessity, need)?

6. If

in respect of a maximum recruitment age a public
employer refers to the fact that, until that age is reached,
there are regular opportunities to acquire the relevant quali-
fications for recruitment on a training programme for
middle-ranking officers in the fire service, in the form of
appropriate school education and technical training, does
that
consideration within the
meaning of the first subparagraph of Article 6(1) of Direc-
tive 2000/78/EC?

constitute

legitimate

a

7. What criteria should be used to assess whether a minimum
period of service before retirement is appropriate or neces-
sary?

(a) Is the need for a minimum period of service justified
solely as a form of compensation for having acquired,
exclusively at the employer's expense, a qualification
with the employer
(professional qualification for a
middle-ranking post in the fire service), in the interests
of ensuring, with regard to such a qualification, an
service with that
adequate
employer, so that the costs of training the officer are
thus gradually worked off?

subsequent period of

(b) What is the maximum permissible length of the service
period phase that follows the period of training? Can it
exceed five years? If so, under what conditions?

(c) Irrespective of question 7(a), can the appropriateness or
necessity of a minimum period of service be justified by
the consideration that,
in the case of officials whose
pensions are financed solely by the employer, the esti-
to
mated period of active service from recruitment
likely retirement date must suffice to earn in full the
minimum pension guaranteed by law by serving for a
period which is at present 19.51 years?

C 223/22

EN

Official Journal of the European Union

30.8.2008

(d) Conversely,

is a refusal

to recruit someone justified
under Article 6(1) of Directive 2000/78/EC only if the
person would be recruited at an age which, given his
likely retirement date, would result in the minimum
pension being payable although it had not yet been
fully earned?

8.

(a) Should the date of retirement for the purposes of point
(c) of the second subparagraph of Article 6(1) of Direc-
tive 2000/78/EC be determined on the basis of the age
limit fixed by law for retirement and subsequent receipt
of a pension, or must it be based on statistical calcula-
the average retirement age of a particular
tions of
group of officials or employees?

(b) Where applicable, to what extent should it be taken
into consideration that in individual cases the normal
date of an official's retirement can be postponed by up
to two years? Does that circumstance lead to a corre-
sponding increase in the maximum recruitment age?

9. Can the initial

in-service training to be completed be
included in the calculation of
the minimum period of
service under Article 6(1) of Directive 2000/78/EC? In that
respect, is it relevant whether the training period has to be
fully accounted for as pensionable service for the purpose
of obtaining the pension, or should the period of training
be excluded from the time period for which an employer
may require a minimum length of service under point (c) of
the second subparagraph of Article 6(1) of Directive
2000/78/EC?

10. Are

the

provisions

of
Paragraph 15(1) and in Paragraph 15(3) of the General Law
on Equal Treatment compatible with Article 17 of Directive
2000/78/EC?

sentence

second

the

in

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— Annulment of the judgment of the Court of First Instance of
the European Communities of 12 March 2008 in Case
T-100/04;

— Grant of the appellant's claims in the forms of order sought

at first instance and consequently,

— annulment of

the decision of

the selection board in
competition COM/A/9/01 not to include the appellant's
name on the competition reserve list, a decision notified
to the appellant by letter of 11 June 2003, and so far as
necessary, annulment of the decision refusing the appel-
lant's application for review, a decision notified to the
appellant by letter of 8 July 2003, and annulment of the
decision rejecting the appellant's complaint, a decision
notified to the appellant by letter of 2 December 2003;

— award of damages in respect of material damage assessed
(i) on the difference between the unemployment benefit
received on conclusion of a temporary staff contract and
the salary of an official graded A7 step 4 and (ii) after
the period of unemployment, on the amount of salary
paid to an official graded A7 step 5, and in respect of
non-material damage, assessed at EUR 1;

— order that the Commission pay all of

the costs at first

instance and on appeal.

(1) OJ 2000 L 303, p. 16.

Pleas in law and main arguments

Appeal brought on 29 May 2008 by Massimo Giannini
against the judgment delivered on 12 March 2008 in Case
T-100/04 Massimo Giannini v Commission

(Case C-231/08 P)

(2008/C 223/34)

Language of the case: French

Parties

Appellant: Massimo Giannini
C. Ronzi, lawyers)

(represented by: L. Levi and

The appellant relies in essence on three principal grounds in
support of his appeal.

In his first ground of appeal, the appellant complains that the
Court of First Instance infringed his right to a fair trial and,
more particularly, the right to have his case determined within a
reasonable time. Four years elapsed between the date of the case
being brought before the Court of First Instance and the date of
delivery of the contested judgment. According to the appellant,
there was no exceptional circumstance which in this case justi-
fied such a length of time. The documents before the Court
were neither particularly voluminous nor legally complex and
the proceedings had real importance for the appellant.

In his second ground of appeal, the appellant claims that the
Court of First Instance infringed Articles 4, 27 and 29 of the
Staff Regulations and misinterpreted both the concept of the
interests of the service and the duty of the Community institu-
tions to have regard for the welfare of their servants and offi-
cials. According to the appellant, the Court of First Instance
confused in that regard entry into the Community civil service,
by means of an open competition intended to establish a
recruitment reserve, and the career development of persons
already employed by means of the mechanisms, provided for by
the Staff Regulations, of transfers and promotions.