Franz Lesar v Beim Vorstand der Telekom Austria AG eingerichtetes Personalamt.
Date: 2016-06-16
18


It should be noted at the outset that it is common ground that, by excluding, for the purposes of calculating such a retirement pension, some civil servants from the benefit of having the periods of apprenticeship and work completed before the age of 18 taken into account, Paragraph 54(2)(a) of the PG 1965 affects the conditions of pay of those civil servants within the meaning of Article 3(1)(c) of Directive 2000/78 (judgment of 21 January 2015 in Felber, C‑529/13, EU:C:2015:20, paragraph 24). Accordingly, Directive 2000/78 applies to situations such as that at issue in the main proceedings.
21


Thus, national legislation such as that at issue in the main proceedings provides for less favourable treatment for persons whose professional experience has, albeit only in part, been acquired before reaching the age of 18 as compared with those who have acquired experience of the same nature and of comparable length after reaching that age. Such legislation establishes a difference in treatment between persons that is based on the age at which they acquired their professional experience. That criterion may even lead to a difference in treatment between two persons who have pursued the same studies and acquired the same professional experience, exclusively on the basis of their respective ages. Such a provision therefore establishes a difference in treatment that is based directly on the criterion of age, within the meaning of Article 2(1) and Article 2(2)(a) of Directive 2000/78 (see, to that effect, judgments of 18 June 2009 in Hütter, C‑88/08, EU:C:2009:381, paragraph 38, and of 21 January 2015 in Felber, C‑529/13, EU:C:2015:20, paragraph 27).
22


It is, nevertheless, necessary to examine whether that difference in treatment may be justified under Article 6(2) of Directive 2000/78. In that regard, it must be recalled that, even if, formally, the referring court has limited its question to the interpretation of Articles 2(1), 2(2)(a) and 6(1) of that directive, that does not prevent the Court from providing the referring court with a ruling on the interpretation of all EU law which may be of assistance to the referring court in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of that question (judgments of 26 September 2013 in HK Danmark, C‑476/11, EU:C:2013:590, paragraph 56, and of 29 October 2015 in Nagy, C‑583/14, EU:C:2015:737, paragraph 20).
24


Since Article 6(2) of Directive 2000/78 allows Member States to provide for an exception to the principle of non-discrimination on grounds of age, that provision must be interpreted restrictively (judgment of 26 September 2013 in HK Danmark, C‑476/11, EU:C:2013:590, paragraph 46 and the case-law cited).
25


The Court has, in that regard, held that Article 6(2) of Directive 2000/78 applies only to occupational social security schemes that cover the risks of old age and invalidity (judgment of 26 September 2013 in HK Danmark, C‑476/11, EU:C:2013:590, paragraph 48 and the case-law cited). Similarly, not all aspects of an occupational social security scheme covering such risks come within the scope of that provision, but only those that are expressly referred to therein (see, to that effect, judgment of 26 September 2013 in HK Danmark, C‑476/11, EU:C:2013:590, paragraph 52).