Leopold Schmitzer v Bundesministerin für Inneres.
Date: 2014-11-11
23. In accordance with the Court’s case-law, where they adopt measures which come 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, the Member States must respect that directive (see, to that effect, judgments in Prigge and Others , C‑447/09, EU:C:2011:573, paragraph 48, and in Tyrolean Airways Tiroler Luftfahrt , C‑132/11, EU:C:2012:329, paragraph 22).
34. In so doing, the national legislation at issue in the main proceedings not only neutralises the advantage resulting from the inclusion of periods of training and service completed before the age of 18, but also places at a disadvantage only the civil servants disadvantaged by the previous system in so far as the extension to the periods for advancement is likely to apply to them alone. Consequently, with regard to those civil servants, the adverse effects of the system existing prior to the Amending Law have not ceased entirely.
35. To the extent to which the three-year extension to the period required for advancement from the first to the second incremental step applies only to civil servants who completed periods before reaching the age of 18, it must be held that the national legislation at issue in the main proceedings involves a difference in treatment which is directly based on age within the meaning of Article 2(2)(a) of Directive 2000/78.
37. The first subparagraph of Article 6(1) of Directive 2000/78 states that Member States may provide that a difference in treatment on grounds of age is not to constitute discrimination if, within the context of national law, it is objectively and reasonably justified by a legitimate aim, including legitimate employment-policy, labour-market and vocational-training objectives, and if the means of achieving that aim are appropriate and necessary.
38. The Court has held on numerous occasions that Member States enjoy a 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 (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).
41. With regard to the objective of budgetary equilibrium pursued by the national legislation at issue in the main proceedings, it must be borne in mind that EU law does not preclude Member States from taking account of budgetary considerations at the same time as political, social or demographic considerations, provided that in so doing they observe, in particular, the general principle of the prohibition of age discrimination. In that regard, while budgetary considerations may underpin the chosen social policy of a Member State and influence the nature or extent of the measures that that Member State wishes to adopt, such considerations cannot in themselves constitute a legitimate aim within the meaning of Article 6(1) of Directive 2000/78 (judgment in Fuchs and Köhler , C‑159/10 and C‑160/10, EU:C:2011:508, paragraphs 73 and 74). This also applies to the considerations of an administrative nature mentioned by the referring court.
42. With regard to respect for the acquired rights and the protection of the legitimate expectations of civil servants 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 (see, to that effect, judgment in Hennigs and Mai , C‑297/10 and C‑298/10, EU:C:2011:560, paragraphs 90 and 92).
44. 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 civil servants favoured by the previous system, is not appropriate for the purpose of establishing a non-discriminatory system for civil servants who were disadvantaged by that previous system.
48. It must be borne in mind that the Court has held that the right to equal treatment, which flows from the principle of non-discrimination on grounds of age within the meaning of Article 2 of Directive 2000/78, constitutes a right which is capable of being relied on by an individual against a public authority (see, to that effect, judgment in Römer , C‑147/08, EU:C:2011:286, paragraph 56 and the case-law cited).
49. In that regard, Article 9 of Directive 2000/78 provides that Member States must ensure that all persons who consider themselves wronged by discrimination are able to assert their rights. Article 16 of that directive requires Member States to take the necessary measures to ensure that any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements are, or may be, declared null and void or are amended.