Sabine Hennigs (C-297/10) v Eisenbahn-Bundesamt and Land Berlin (C-298/10) v Alexander Mai.
Date: 2011-09-08
47. The Court has recognised the existence of a prohibition of discrimination on grounds of age which must be regarded as a general principle of European Union law and was given specific expression by Directive 2000/78 in the field of employment and occupation (see, to that effect, Case C‑555/07 Kücükdeveci  [2010] ECR I‑0000, paragraph 21). The prohibition of all discrimination inter alia on grounds of age appears in Article 21 of the Charter, which, from 1 December 2009, has the same legal status as the Treaties.
49. It is apparent both from its title and preamble and from its content and purpose that that directive is intended to lay down a general framework in order to guarantee equal treatment ‘in employment and occupation’ to all persons, by offering them effective protection against discrimination on any of the grounds mentioned in Article 1, which include age (see Case C‑499/08 Ingeniørforeningen i Danmark  [2010] ECR I‑0000, paragraph 19).
58. It is thus apparent that the basic pay received by two employees appointed on the same date in the same salary group will differ according to their age at the time of appointment. It follows that those two employees are in a comparable situation and one of them receives lower basic pay than the other. That employee is thus treated less favourably, because of his age, than the other employee.
65. The Court has repeatedly held that the social partners at national level may, on the same basis as the Member States, provide for measures which contain differences of treatment on grounds of age, in accordance with the first subparagraph of Article 6(1) of Directive 2000/78. Like the Member States, they 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 (see Case C‑411/05 Palacios de la Villa  [2007] ECR I‑8531, paragraph 68, and Case C‑45/09 Rosenbladt  [2010] ECR I‑0000, paragraph 41). In the context of that discretion, the difference of treatment on grounds of age must be appropriate and necessary for achieving that aim.
66. The nature of measures adopted by way of a collective agreement differs from the nature of those adopted unilaterally by way of legislation or regulation by the Member States in that the social partners, when exercising their fundamental right to collective bargaining recognised in Article 28 of the Charter, have taken care to strike a balance between their respective interests (see, to that effect, Rosenbladt , paragraph 67 and the case-law cited).
67. Where the right of collective bargaining proclaimed in Article 28 of the Charter is covered by provisions of European Union law, it must, within the scope of that law, be exercised in compliance with that law (see, to that effect, Case C‑438/05 International Transport Workers’ Federation and Finnish Seamen’s Union (‘Viking Line’)  [2007] ECR I‑10779, paragraph 44, and Case C‑341/05 Laval un Partneri  [2007] ECR I‑11767, paragraph 91).
68. Consequently, when they adopt measures falling within the scope of Directive 2000/78, which gives specific expression in the field of employment and occupation to the principle of non-discrimination on grounds of age, the social partners must comply with that directive (see, to that effect, Case C‑127/92 Enderby  [1993] ECR I‑5535, paragraph 22).
72. It follows from those observations that the aim mentioned both by the referring court and by the German Government consists in wishing to establish a pay scale for public sector contractual employees so as to take account of employees’ professional experience. That aim must in principle be regarded as ‘objectively and reasonably’ justifying ‘within the context of national law’ a difference of treatment on grounds of age, within the meaning of the first subparagraph of Article 6(1) of Directive 2000/78. It should be recalled that the Court has acknowledged that rewarding experience that enables a worker to perform his duties better is, as a general rule, a legitimate aim of wages policy (see Case C‑17/05 Cadman  [2006] ECR I‑9583, paragraph 34, and Case C‑88/08 Hütter  [2009] ECR I‑5325, paragraph 47). It follows that that aim is ‘legitimate’ within the meaning of that provision.
74. The Court has accepted that recourse to the criterion of length of service is, as a general rule, appropriate to achieve that aim, since length of service goes hand in hand with professional experience (see, to that effect, Case 109/88 Danfoss  [1989] ECR 3199, paragraphs 24 and 25; Cadman , paragraphs 34 and 35; and Hütter , paragraph 47).
75. While the measure at issue in the main proceedings enables an employee to ascend in step in the salary group to which he belongs as his age advances and hence his length of service increases, it is clear that, on his appointment, the initial classification in a particular step in a particular salary group of an employee with no professional experiences is based purely on his age.
77. It follows that the determination according to age of the basic pay step on appointment of a public sector contractual employee goes beyond what is necessary and appropriate for achieving the legitimate aim, relied on by the German Government, of taking account of the professional experience acquired by the employee before he is appointed. It should be observed that a criterion also based on length of service or professional experience but without resorting to age would, from the point of view of Directive 2000/78, appear better adapted to achieving the legitimate aim mentioned above. The fact that, for a large number of employees appointed at a young age, the step in classification corresponds to their professional experience and that the criterion of age coincides in most cases with their length of service does not alter that assessment.
84. As to whether the TVÜ-Bund introduces a difference of treatment on grounds of age within the meaning of Article 2(1) and (2) of Directive 2000/78, it appears from the referring court’s findings that the classification of employees in an individual intermediate step meant that the employee received reference pay equivalent in amount to what he received under the BAT. However, the pay received under the BAT consisted principally of the basic pay which had been calculated on appointment exclusively by reference to the employee’s age. As the Court stated in paragraph 59 above, the method of calculating basic pay created a difference of treatment based directly on the criterion of age, for the purposes of Article 2(1) and (2)(a) of Directive 2000/78. By taking as the basis for determining the reference amount the pay previously received, the system established by the TVÜ-Bund perpetuated the situation in which some employees receive lower pay than other employees, even though they are in comparable situations, on the sole ground of their age on appointment.
85. That difference of treatment is liable to continue under the TVöD, since, according to the information provided by the referring court, the definitive reclassification took place on the basis of the individual intermediate step assigned to each employee under the TVÜ-Bund.
90. In this respect, in the context of a restriction of freedom of establishment, the Court has held that the protection of the established rights of a category of persons constitutes an overriding reason in the public interest which justifies that restriction, provided that the restrictive measure does not go beyond what is necessary for that protection (see, to that effect, Case C‑456/05 Commission  v Germany  [2007] ECR I‑10517, paragraphs 63 and 65).
92. The Court has held that leaving it to the social partners to strike a balance between their respective interests offers considerable flexibility, as each of the parties may, where appropriate, reject the agreement (see Palacios de la Villa , paragraph 74, and Rosenbladt , paragraph 67). It is thus apparent that the maintenance of earlier pay, and consequently of a system that discriminates according to age, had the aim of avoiding losses of pay and was a decisive factor in enabling the social partners to implement the changeover from the system laid down by the BAT to that under the TVöD. The transitional rules in the TVÜ-Bund must therefore be regarded as pursing a legitimate aim within the meaning of Article 6(1) of Directive 2000/78.