Martin Leitner v Landespolizeidirektion Tirol.
Date: 2019-05-08
38


It must, therefore, be concluded that Paragraph 169c of the amended Law on the remuneration of civil servants maintains a difference in treatment between civil servants disadvantaged by the previous system and those treated more favourably by that system, since the amount of the remuneration received by the former category will be less than that paid to the latter solely on account of their age at the time of recruitment, even though they are in comparable situations (see, to that effect, judgment of 9 September 2015, Unland, C‑20/13, EU:C:2015:561, paragraph 40).
41


The Court has frequently held 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 of 28 January 2015, Starjakob, C‑417/13, EU:C:2015:38, paragraph 34 and the case-law cited).
43


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 can underpin the chosen social policy of a Member State and influence the nature or extent of the measures that the 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. 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 of 28 January 2015, Starjakob, C‑417/13, EU:C:2015:38, paragraph 36).
44


As regards, secondly, respect for the acquired rights and protection of the legitimate expectations of civil servants treated more favourably 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 of 11 November 2014, SchmitzerC‑530/13, EU:C:2014:2359, paragraph 42).
45


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 which that measure forms part is designed to eliminate. Such a measure is not capable of establishing a non-discriminatory system in respect of the category of persons disadvantaged by the previous system (see, to that effect, judgment of 28 January 2015, Starjakob, C‑417/13, EU:C:2015:38, paragraph 39 and the case-law cited).
53


It is clear from the Court’s case-law that the purpose of that article is to require Member States to provide for rules on sanctions in respect of all infringements of national provisions adopted for the purposes of transposing that directive (see, to that effect, judgment of 25 April 2013, Asociația Accept, C‑81/12, EU:C:2013:275, paragraph 61).
56


In accordance with the power, recognised by the Court’s settled case-law and in particular by the judgment of 21 September 2017, Beshkov (C‑171/16, EU:C:2017:710, paragraph 33 and the case-law cited), it is appropriate to reformulate the second question as seeking, in essence, to establish whether Article 47 of the Charter and Article 9 of Directive 2000/78 must be interpreted as precluding national legislation which, in a situation such as that at issue in the main proceedings, reduces the scope of the review which national courts are entitled to conduct, by excluding questions concerning the basis of the ‘transition amount’ calculated according to the rules of the previous remuneration and advancement system.
57


In that connection, it should be borne in mind that it is settled case-law that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law and that the applicability of EU law entails applicability of the fundamental rights guaranteed by the Charter (see, to that effect, judgments of 30 April 2014, Pfleger, C‑390/12, EU:C:2014:281, paragraph 33 and the case-law cited, and of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 49).
58


In the present case, it is apparent from Paragraph 169c(2c) of the amended Law on the remuneration of civil servants that it implements, in Austrian law, Directive 2000/78, for the purposes of Article 51 of the Charter, with the effect that the Austrian legislature was required to respect the fundamental rights guaranteed in Article 47 thereof, and more specifically the right of individuals to enjoy effective judicial protection of the prerogatives which EU law confers on them (see, to that effect, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 49).
61


The right to an effective remedy is reaffirmed by Directive 2000/78 itself, Article 9 of which provides that Member States must ensure that all persons who consider themselves wronged by discrimination are able to assert their rights (see, to that effect, judgment of 11 November 2014, Schmitzer, C‑530/13, EU:C:2014:2359, paragraph 49).
68


In that connection, it should be noted that, according to the Court’s settled case-law, it is for the national courts, taking into account the whole body of rules of national law and applying methods of interpretation recognised by that law, to decide whether and to what extent a national provision can be interpreted in conformity with Directive 2000/78, without having recourse to an interpretation contra legem of the national provision (judgment of 22 January 2019, Cresco Investigation, C‑193/17, EU:C:2019:43, paragraph 74).
69


If it is not possible to construe and apply the national legislation in conformity with the requirements of Directive 2000/78, it should also be borne in mind that, by reason of the principle of the primacy of EU law, which extends also to the principle of non-discrimination on grounds of age, conflicting national legislation which falls within the scope of EU law must be disapplied (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 89).
70


It is also the Court’s settled case-law that, 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. Disadvantaged persons must therefore be placed in the same position as persons enjoying the advantage concerned (see, to that effect, judgment of 22 January 2019, Cresco Investigation, C‑193/17, EU:C:2019:43, paragraph 79 and the case-law cited).
71


In such a situation, a national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by the legislature, and must apply to members of the disadvantaged group the same arrangements as those enjoyed by the persons in the other category. That obligation persists regardless of whether or not the national court has been granted competence under national law to do so (judgment of 22 January 2019, Cresco Investigation, C‑193/17, EU:C:2019:43, paragraph 80 and the case-law cited).
72


Nevertheless, such an approach is intended to apply only if there is a valid point of reference (judgment of 22 January 2019, Cresco Investigation, C‑193/17, EU:C:2019:43, paragraph 81 and the case-law cited).
75


Accordingly, for as long as measures reinstating equal treatment have not been adopted, its reinstatement, in a case such as that at issue in the main proceedings, involves granting civil servants disadvantaged by the previous remuneration and advancement system the same benefits as those enjoyed by the civil servants treated more favourably by that system, both as regards the recognition of periods of service completed before the age of 18 and advancement in the pay scale. (See, to that effect, judgment of 28 January 2015, Starjakob, C‑417/13, EU:C:2015:38, paragraph 48).
77


It should be borne in mind that the considerations set out in paragraphs 75 and 76 of the present judgment are applicable only until measures reinstating equal treatment have been adopted by the national legislature (see, to that effect, judgment of 22 January 2019, Cresco Investigation, C‑193/17, EU:C:2019:43, paragraph 87).
78


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, from among 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 (judgment of 22 January 2019, Cresco Investigation, C‑193/17, EU:C:2019:43, paragraph 88).