ÖBB Personenverkehr AG v Gotthard Starjakob.
Date: 2015-01-28
30. In so doing, the national legislation at issue in the main proceedings not only neutralises the advantage resulting from the inclusion of periods of service completed before the age of 18, as follows from paragraph 27 of the present judgment, but also places at a disadvantage only the employees 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 employees, the adverse effects of that system have not ceased entirely (judgment in Schmitzer , C‑530/13, EU:C:2014:2359, paragraph 34).
31. To the extent to which the one-year extension to each period required for advancement in each of the three first incremental steps is applicable only to employees who completed periods of service 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 (see, to that effect, judgment in Schmitzer , EU:C:2014:2359, paragraph 35).
33. 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 (judgment in Schmitzer , EU:C:2014:2359, paragraph 37).
34. 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 Schmitzer , EU:C:2014:2359, paragraph 38 and the case-law cited).
36. As regards, first, the objective of financial neutrality 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 and by the Austrian Government (see, to that effect, judgment in Schmitzer , EU:C:2014:2359, paragraph 41 and the case-law cited).
37. As regards, second, respect for the acquired rights and the protection of the legitimate expectations of employees 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 (judgment in Schmitzer , EU:C:2014:2359, paragraph 42 and the case-law cited).
39. 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 employees favoured by the previous system, is not appropriate for the purpose of establishing a non-discriminatory system for employees who were disadvantaged by that previous system (judgment in Schmitzer , EU:C:2014:2359, paragraph 44).
46. That being said, according to settled case-law, where discrimination contrary to EU law has been established, as long as measures reinstating equal treatment have not been adopted, 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 (see judgments in Jonkman and Others , C‑231/06 to C‑233/06, EU:C:2007:373, paragraph 39, and in Landtová , C‑399/09, EU:C:2011:415, paragraph 51).
47. The Court has stated that that approach is intended to apply only if there is a valid point of reference (see judgment in Specht and Others , C‑501/12 to C‑506/12, EU:C:2014:2005, paragraph 96). That is so in the case in the main proceedings.
48. As is clear from the answer to Question 1(b) and Question 4, EU law, in particular Directive 2000/78, is still not being correctly applied after adoption of the national legislation at issue. The system applicable to the employees favoured by the previous system therefore remains the only valid point of reference. Therefore re-establishing equal treatment, in a case such as that at issue in the main proceedings, involves granting employees disadvantaged by the previous system the same benefits as those enjoyed by the employees favoured by that system, both as regards the recognition of periods of service completed before the age of 18 and advancement in the pay scale.
55. As regards whether there is any abuse of law, it must be recalled that, in accordance with settled case-law of the Court, EU law cannot be relied on for abusive or fraudulent ends (see, inter alia, judgments in Halifax and Others , C‑255/02, EU:C:2006:121, paragraph 68; in SICES and Others , C‑155/13, EU:C:2014:145, paragraph 29; and in Torresi , C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 42).
56. A finding of abuse requires a combination of objective and subjective elements. With regard to the objective element, it must be apparent from a combination of objective circumstances that, despite formal observance of the conditions laid down by EU rules, the purpose of those rules has not been achieved. As regards the subjective element, it must be apparent that there is an intention to obtain an improper advantage from the EU rules by artificially creating the conditions laid down for obtaining it (see judgment in Torresi , EU:C:2014:2088, paragraphs 44 to 46 and the case-law cited).
61. In that regard it should be borne in mind that according to settled case-law, in the absence of EU rules in the field, it is for the national legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, provided that such rules are not less favourable than those governing similar national actions (principle of equivalence) and that they do not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (see, inter alia, judgment in Fiamingo and Others , C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 63 and the case-law cited).
62. As regards the principle of effectiveness, the Court has stated that it is compatible with EU law to lay down reasonable time-limits for bringing proceedings in the interests of legal certainty to the extent that such time-limits are not liable to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (judgment in Pohl , C‑429/12, EU:C:2014:12, paragraph 29 and the case-law cited).
63. With regard to the question whether the date of delivery of the judgment in Hütter  (EU:C:2009:381) affects the determination of the starting point of a limitation period fixed by national law, it should be noted that the interpretation which, in the exercise of the jurisdiction conferred on it by Article 267 TFEU, the Court gives to a rule of EU law clarifies and defines, where required, the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the time of its entry into force. In other words, a preliminary ruling does not create or alter the law, but is purely declaratory, with the consequence that in principle it takes effect from the date on which the rule interpreted entered into force (judgment in Pohl , C‑429/12, EU:C:2014:12, paragraph 30 and the case-law cited).
64. So far as concerns the starting point of the limitation period, the Court has pointed out that this, in principle, is a matter for national law and that the fact that the Court may have ruled that the breach of EU law has occurred generally does not affect the point at which that period starts to run (judgment in Pohl , EU:C:2014:12, paragraph 31 and the case-law cited).
65. Consequently, it is appropriate to note that the date of delivery of the judgment in Hütter  (EU:C:2009:381) does not affect the starting point of the limitation period at issue in the case in the main proceedings and is therefore irrelevant for the purposes of determining whether, in the main proceedings, the principle of effectiveness has been respected (see, to that effect, judgment in Pohl , EU:C:2014:12, paragraph 32).
71. It should be borne in mind, in addition to the case-law cited in paragraph 61 of the present judgment, that the principle of equivalence requires that all the rules applicable to actions apply without distinction to actions alleging infringement of EU law and to similar actions alleging infringement of national law (judgments in Transportes Urbanos y Servicios Generales , C‑118/08, EU:C:2010:39, paragraph 33, and in Barth , C‑542/08, EU:C:2010:193, paragraph 19).
74. It follows that, since observance of the principle of equivalence requires the application without distinction of a national rule to actions based on infringement of EU law and those based on infringements of national law, that principle is not relevant to a situation such as that at issue in the main proceedings, which concerns two types of actions, both based on an infringement of EU law.