TK and Others v Land Sachsen-Anhalt.
Date: 2020-02-27
In that regard, it is sufficient to state that, in accordance with the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle required to give a ruling (judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 24 and the case-law cited).
It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to give a ruling on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to enable it to give a useful answer to the questions submitted to it (judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 25 and the case-law cited).
In that regard, it is common ground that the retrospective payment provided for by the Laws of 18 December 2015 and of 8 December 2016 of the Land of Saxony-Anhalt was granted to the judges and civil servants concerned in order to allow them to receive remuneration commensurate with the importance of their functions, as required by the Basic Law, for the period from 1 January 2008 to 31 December 2011, and was calculated as a percentage of the basic pay previously received, with the step determining basic pay itself having been allocated, for each grade, at the time those judges and civil servants were recruited, on the basis of their age, in accordance with the old Federal Law on remuneration of civil servants. However, the Court has ruled that Article 2 and Article 6(1) of Directive 2000/78 preclude a national measure under which, within each service grade, the step determining basic pay is to be allocated, at the time of recruitment, on the basis of the civil servant’s age (judgment of 19 June 2014, Specht and Others, C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 52).
The Court has consistently held that Member States may provide for measures entailing differences of treatment on grounds of age, in accordance with the first subparagraph of Article 6(1) of Directive 2000/78. They enjoy broad discretion in their choice, not only to pursue a particular aim in the field of social and employment policy, but also in determining measures capable of achieving it (judgment of 19 June 2014, Specht and Others, C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 46).
In that regard, the objective of ensuring that the civil servants and judges of that Land receive a level of remuneration commensurate with the importance of their functions must be regarded as  a legitimate aim (see, to that effect, judgment of 7 February 2019, Escribano Vindel, C‑49/18, EU:C:2019:106, paragraph 66).
In that regard, it must be stated that, in paragraphs 63, 72 and 86 of the judgment of 19 June 2014, Specht and Others (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005), the Court held, in essence, that Articles 2 and 6 of Directive 2000/78 do not preclude national legislation aiming to eliminate discrimination on grounds of age which has as its reference point, for a transitional period, the previous remuneration system that was based on a difference in treatment on grounds of age, in so far as that reference point is necessary for the purpose of  ensuring  that acquired rights are protected, and that its effects are intended to diminish and disappear with time.
In that context, the Court stated, in paragraph 81 of that judgment, that the damage that such a transitional system could cause to the civil servants that it concerns is particularly difficult to determine, especially in view of the number of civil servants affected and the lack of a valid point of reference making it possible to compare the situation of civil servants who would benefit with the situation of those who would not.
In paragraph 96 of that judgment, the Court inferred from this, as regards the period before the entry into force of the new national legislation, that retrospective payment calculated on the basis of the highest step in the grade in question could be applied only if there is a valid point of reference and that there was no such point of reference under the old Federal Law on remuneration of civil servants, since the discriminatory aspects of that law potentially affected all civil servants.
Thus, it follows from that provision that the question of time limits for initiating a procedure for the enforcement of obligations under the directive is not governed by EU law (judgment of 8 July 2010, Bulicke, C‑246/09, EU:C:2010:418, paragraph 24).
Therefore, in accordance with settled case-law, it is for the domestic legal system of each Member State to lay down such procedural rules, provided that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and that they do not make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (principle of effectiveness) (see, to that effect, judgment of 8 July 2010, Bulicke, C‑246/09, EU:C:2010:418, paragraph 25).
The Court has previously had the occasion to rule that Article 9 of Directive 2000/78 does not preclude a time limit such as that laid down in Paragraph 15(4) of the AGG, on condition that, first, that time limit is not less favourable than that applicable to similar domestic actions and, secondly, the setting of the point from which that time limit starts to run does not make it in practice impossible or excessively difficult to exercise the rights conferred by that directive (see, to that effect, judgment of 8 July 2010, Bulicke, C‑246/09, EU:C:2010:418, paragraph 42).
As regards the compatibility of Paragraph 15(4) of the AGG with the principle of equivalence, the Court has also held that the possibility of obtaining compensation for pecuniary or non-pecuniary damage resulting from a breach of the prohibition of discrimination on grounds of race, ethnic origin, religion or belief, disability, age or sexual identity was introduced by the AGG and that, strictly speaking, there were no equivalent procedures before the adoption of that law (judgment of 8 July 2010, Bulicke, C‑246/09, EU:C:2010:418, paragraph 30). Such a finding appears to be confirmed by the information contained in the case file before the Court.
In those circumstances, it is for the referring court to verify whether the actions referred to in the third question, all of which appear to relate to monetary claims specific to employment relationships in the civil service, are similar to an action for compensation brought under Paragraph 15 of the AGG and involve more favourable procedural rules, bearing in mind the specific features of the procedures in question (see, to that effect, judgment of 8 July 2010, Bulicke, C‑246/09, EU:C:2010:418, paragraph 29).
The referring court alone has direct knowledge of the procedural rules governing such actions in the field of the law relating to the civil service and thus is best placed to consider both the purpose and the essential characteristics of allegedly similar domestic procedures (see, to that effect, judgment of 8 July 2010, Bulicke, C‑246/09, EU:C:2010:418, paragraph 28).
When considering those issues, it must be borne in mind that compliance with the principle of equivalence requires the rule in question to apply without distinction to procedures based on infringement of EU law and those based on infringement of national law having a similar purpose and cause of action (see, to that effect, judgment of 20 September 2018, Rudigier, C‑518/17, EU:C:2018:757, paragraph 62 and the case-law cited).
With regard to the principle of effectiveness, it must be noted that every case in which the question arises as to whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its conduct, and its special features, viewed as a whole, before the various national bodies. In that context, it is necessary, inter alia, to take into consideration, where relevant, the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the procedure (judgment of 21 December 2016, TDC, C‑327/15, EU:C:2016:974, paragraph 97 and the case-law cited).
It is settled case-law that the setting of time limits must, in principle, satisfy the requirement of effectiveness since it constitutes an application of the fundamental principle of legal certainty which protects both the person and the administration concerned. Such time limits are, in principle, not liable to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law. In respect of national legislation which comes within the scope of EU law, it is for the Member States, however, to establish those periods in the light of, inter alia, the significance for the parties concerned of the decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interests which must be taken into consideration.  Subject to that reservation, the Member States are free to provide for longer or shorter time limits (judgment of 21 December 2016, TDC, C‑327/15, EU:C:2016:974, paragraph 98 and the case-law cited).
As regards, in particular, Paragraph 15(4) of the AGG, which lays down a period of two months for making a complaint to an employer, the Court has held that the length of that time limit  does not appear liable to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (see, to that effect, judgment of 8 July 2010, Bulicke, C‑246/09, EU:C:2010:418, paragraphs 38 and 39).
As regards the starting point of the time limit, the Court has had the occasion to point out that that point cannot be set in such a way that there is a risk that employees will have no way, within that time limit, of determining whether they have been discriminated against, or, if so, to what extent, which would make it impossible for them to enforce their rights (see, to that effect, judgment of 8 July 2010, Bulicke, C‑246/09, EU:C:2010:418, paragraph 40).
In that regard, the Court stated that, provided that the starting point for the time limit laid down in Paragraph 15(4) of the AGG is the point at which the worker has knowledge of the alleged discrimination, that provision is not liable to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (see, to that effect, judgment of 8 July 2010, Bulicke, C‑246/09, EU:C:2010:418, paragraph 41).
The Court does not regard as excessive difficulty the imposition of time limits which start to run only from the date on which the person concerned was aware, or at least ought to have been aware, of the discrimination alleged (see, to that effect, judgment of 7 November 2019, Flausch and Others, C‑280/18, EU:C:2019:928, paragraph 55).
In that regard, the Court has held that the nature and extent of the obligation on Member States under Articles 2(2) and 6(1) of Directive 2000/78 in respect of national legislation such as the old Federal Law on remuneration of civil servants have been clarified and defined from the date on which the judgment in Hennigs and Mai (C‑297/10 and C‑298/10, EU:C:2011:560) was delivered (judgment of 19 June 2014, Specht and Others, C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 104).
Thus, according to the referring court, the matters of law relevant to the main proceedings were clarified only gradually in successive judgments of the Court, and, until the delivery of the judgments of 19 June 2014, Specht and Others (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 51), and of 9 September 2015, Unland (C‑20/13, EU:C:2015:561, paragraphs 33 and 34), those matters were not established sufficiently clearly.
It has been noted in paragraphs 81 to 84 of the present judgment that the judgment of 8 September 2011, Hennigs and Mai (C‑297/10 and C‑298/10, EU:C:2011:560), did not concern the national legislation applicable to the applicants in the main proceedings, that the Land of Saxony-Anhalt and the competent federal authorities considered, following the delivery of the judgment, that the guidance provided in that judgment could not be transposed to the situation of civil servants and judges, and that, until the delivery of the judgments of 19 June 2014, Specht and Others (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 51), and of 9 September 2015, Unland (C‑20/13, EU:C:2015:561, paragraphs 33 and 34), the majority of the German administrative courts shared that view.