Georg Stollwitzer v ÖBB Personenverkehr AG.
Date: 2018-03-14
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First of all, it should be noted that, according to the Court’s settled case-law, it is clear from the title of, and preamble to, Directive 2000/78, as well as from its content and purpose, that that directive is intended to establish a general framework for ensuring that everyone benefits from equal treatment in matters of employment and occupation by providing effective protection against discrimination based on any of the grounds referred to in Article 1 thereof, which include age (see, inter alia, judgment of 10 November 2016, de Lange, C‑548/15, EU:C:2016:850, paragraph 16 and the case-law cited).
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Article 2(2)(a) of that directive provides that direct discrimination is taken to occur where a person, on the basis of his age, is treated less favourably than another is, has been or would be treated in a comparable situation. Under Article 2(2)(b) of Directive 2000/78, indirect discrimination is taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular age at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
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In the first place, it should be noted that the referring court’s premiss is based on a misreading of those judgments. The effect of ensuring that national legislation complies with the judgment of 28 January 2015, ÖBB Personenverkehr (C‑417/13, EU:C:2015:38) is not necessarily to confer the right to a salary increase on workers who have been the subject of the discrimination identified by the Court. As the Court stated in paragraphs 43 to 45 of that judgment, although Member States are obliged, in accordance with Article 16 of Directive 2000/78, to ensure that any laws, regulations or administrative provisions contrary to the principle of equal treatment are abolished, that article does not require Member States to adopt specific measures to be taken in the event of a breach of the prohibition of discrimination but leaves them free to choose, between the different solutions suitable for achieving its intended objective, the one which appears to them to be the most appropriate for that purpose, depending on the situations which may arise.
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In other words, the elimination of discrimination does not, in any event, mean that the person discriminated against under the previous legal scheme will automatically enjoy the right to receive, with retroactive effect, that difference in salary or future increases in salary. That will be the case only if, and as long as, measures to restore equal treatment have not been adopted by the national legislature. In that case, 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 (judgment of 28 January 2015, ÖBB Personenverkehr, C‑417/13, EU:C:2015:38, paragraph 46 and the case-law cited).
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In that regard, it should be noted, first, that according to the Court’s established case-law, rewarding experience acquired in a particular field, which enables the worker to perform his duties better, constitutes a legitimate objective of pay policy (see, to that effect, judgment of 3 October 2006, Cadman, C‑17/05, EU:C:2006:633, paragraph 34 et seq., and of 18 June 2009, Hütter, C‑88/08, EU:C:2009:381, paragraph 47 and the case-law cited). The employer is therefore, in principle, free to take into account only such previously completed periods of activity when determining remuneration.
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Second, the Court has taken the view that while a provision of national law that takes into account only certain previous periods of activity and disregards others is undoubtedly likely to entail a difference in treatment among workers according to the date of their recruitment by the undertaking concerned, such a difference is not, directly or indirectly, based on age or on an event linked to age. It is the experience acquired with other undertakings which is not taken into account, irrespective of the age at which it was acquired and the age at which the worker concerned was recruited (see, to that effect, judgment of 7 June 2012, Tyrolean Airways Tiroler Luftfahrt Gesellschaft, C‑132/11, EU:C:2012:329, paragraph 29).