Georg Felber v Bundesministerin für Unterricht, Kunst und Kultur.
Date: 2015-01-21
15. By its questions, the referring court asks the Court to interpret the principle of non-discrimination on grounds of age, as enshrined in Article 21 of the Charter and given expression in Directive 2000/78.
16. As is apparent from the case-law of the Court, where they adopt measures which fall within the scope of Directive 2000/78, which gives specific expression, in the domain of employment and occupation, to the principle of non-discrimination on grounds of age, Member States must respect the directive (see, to that effect, judgments in Prigge and Others , C‑447/09, EU:C:2011:573, paragraph 48, and Tyrolean Airways Tiroler Luftfahrt , C‑132/11, EU:C:2012:329, paragraph 22).
20. The scope of Directive 2000/78 must therefore be understood, in the light of Article 3(1)(c) and (3), read in conjunction with recital 13 in the preamble to that directive, as excluding social security or social protection schemes, the benefits of which are not equivalent to ‘pay’ within the meaning given to that term for the application of Article 157(2) TFEU (see, that that effect, judgments in HK Danmark , C‑476/11, EU:C:2013:590, paragraph 25, and Dansk Jurist- og Økonomforbund , C‑546/11, EU:C:2013:603, paragraph 25).
21. The concept of pay, within the meaning of Article 157(2) TFEU, comprises any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer (judgments in HK Danmark , EU:C:2013:590, paragraph 26, and Dansk Jurist- og Økonomforbund , EU:C:2013:603, paragraph 26).
24. It follows that, by excluding, for the purposes of calculating such a retirement pension, some civil servants from the benefit of having the periods of study they completed before the age of 18 taken into account, Paragraph 54(2)(a) of the PG 1965 affects the conditions of pay of those civil servants within the meaning of Article 3(1)(c) of Directive 2000/78. Accordingly, Directive 2000/78 applies to situations such as that at issue in the main proceedings.
27. As noted by the referring court, national legislation such as that at issue in the main proceedings favours persons who undertake or finish such studies after their 18th birthday in so far as only those persons will benefit from the crediting of the periods of study they completed in an intermediate or secondary school before their entry into the federal civil service. Such legislation establishes a difference in treatment between persons based on the age at which they completed their school education. That criterion may even lead to a difference in treatment between two persons who have pursued the same studies, exclusively on the basis of their respective ages. Such a provision thus establishes a difference in treatment directly based on the criterion of age, within the meaning of Article 2(1) and (2)(a) of Directive 2000/78 (see, by analogy, judgment in Hütter , EU:C:2009:381, paragraph 38).
30. As regards, first, the question whether the aim pursued by the national legislation at issue is legitimate, the Court has consistently held that Member States enjoy broad discretion in their choice, not only to pursue a particular aim in the field of social and employment policy, but also in the definition of measures capable of achieving it (see the judgment in Specht and Others , C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 46 and the case-law cited).
32. In so far as the pursuit of such an aim ensures observance of the principle of equal treatment for all persons in a specific sector and relates to an essential element of their employment relationship, such as the time of retirement, that aim constitutes a legitimate employment policy objective (see, by analogy, judgment in Commission  v Hungary , C‑286/12, EU:C:2012:687, paragraph 61).