Daniel Unland v Land Berlin.
Date: 2015-09-09
21. By letter of 25 June 2014, the Court Registry provided the referring court with a copy of the judgment in Specht and Others  (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005) and invited it to indicate whether, in the light of that judgment, it wished to continue with its reference for a preliminary ruling.
27. As the Court stated in Specht and Others  (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraphs 34 and 35), it is necessary to draw a distinction between the term ‘pay’ as used in Article 153(5) TFEU and the same term as used in the phrase ‘conditions, including … pay’ in Article 3(1)(c) of Directive 2000/78, the latter term forming part of employment conditions and not relating directly to the setting of the level of pay. Accordingly, the national rules governing the methods of allocating the amount of pay for each grade and step cannot be severed from the material scope of Directive 2000/78.
29. In those circumstances, the answer to Question 1 is that Article 3(1)(c) of Directive 2000/78 must be interpreted as meaning that pay conditions for judges fall within the scope of that directive.
Questions 2 and 3
33. It its judgment in Specht and Others  (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005), the Court was required to consider questions which are, for all essential purposes, the same as Questions 2 and 3 in the present case and, as a consequence, the reply given by the Court in that judgment may be fully transposed to the questions referred by the national court in the main proceedings.
34. At paragraphs 39 to 51 of that judgment, the Court considered whether the old Federal Law on the remuneration of civil servants engendered discrimination within the meaning of Articles 2 and 6(1) of Directive 2000/78 and concluded that it did, on the ground that the allocation of a basic pay step to civil servants upon recruitment according to their age went beyond what was necessary to attain the legitimate aim pursued by that law.
40. The reclassification measures introduced by a provision such as Paragraph 5 of BerlBesÜG, under which reclassification is based on the pay previously received by civil servants who are already established, which was itself based on age, perpetuate a discriminatory situation whereby some judges receive lower pay than other judges, even though they are in comparable situations, solely on account of their age at the time of appointment (see, to that effect, judgment in Specht and Others , C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraphs 56 to 58).
42. As regards, first, the aim of protecting acquired rights alluded to by the referring court, protection of the acquired rights of a category of persons constitutes an overriding reason in the public interest (judgment in Specht and Others , C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 64 and the case-law cited).
43. Second, the Court has already held that a law such as the BerlBesÜG appears suited to achieving the aim pursued, that is to say, to ensure the preservation of acquired rights (judgment in Specht and Others , C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraphs 65 to 68). It went on to state that the national legislature did not go beyond what was necessary to achieve the aim pursued by adopting the transitional derogation measures put in place by the BerlBesÜG (judgment in Specht and Others , C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraphs 69 to 85).
46. Thus, by adopting the BerlBesÜG, the national legislature reformed the system for the remuneration of Land  Berlin civil servants and judges. That law provided, in order to ensure that the acquired rights of existing judges are maintained, a transitional derogation in their regard, whereby a step or transitional step was immediately allocated to such judges (see, to that effect, judgment in Specht and Others , C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraphs 72 and 73).
47. Furthermore, as Paragraph 38 of the old Federal Law on the remuneration of civil servants applied to all Land Berlin judges at the time of their appointment, any discriminatory aspects arising from those provisions potentially affect all such judges (see, to that effect, judgment in Specht and Others , C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 96). Accordingly, it must be concluded that there is no valid point of reference under the old Federal Law on the remuneration of civil servants and, contrary to the argument put forward by the applicant in the main proceedings, there is neither a category of ‘young judges’ who are at a disadvantage as a result of that law and the BerlBesÜG, or a category of ‘older judges’ who are placed in a more favourable position as a result of those laws.
57. It should be noted that, under EU law as it currently stands, the Member States and, where appropriate, the social partners at national level enjoy 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, inter alia, judgment in Palacios de la Villa , C‑411/05, EU:C:2007:604, paragraph 68).
68. The Court has already ruled on that question in the judgment in Specht and Others  (C–501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005) and the answer it gave may be fully transposed to the present case.
69. In those circumstances, on the same grounds as those given in paragraphs 88 to 107 of the judgment in Specht and Others  (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005), the answer to Question 4 is as follows:
– in circumstances such as those of the case before the referring court, EU law does not require judges who have been discriminated against to be retrospectively granted an amount equal to the difference between the pay actually received and that corresponding to the highest step in their grade;
– it is for the referring court to ascertain whether all the conditions laid down by the case-law of the Court are met for the Federal Republic of Germany to have incurred liability under EU law.
Question 5
71. The Court has already ruled on that question in the judgment in Specht and Others  (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005) and the answer it gave may be fully transposed to the present case.
72. In those circumstances, on the same grounds as those given in paragraphs 111 to 114 of the judgment in Specht and Others  (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005), the answer to Question 5 is that EU law must be interpreted as not precluding a national rule, such as the rule at issue in the main proceedings, which requires national judges to take steps, within relatively narrow time-limits — that is to say, before the end of the financial year then in course — to assert a claim to financial payments that do not arise directly from the law, where that rule does not conflict with the principle of equivalence or the principle of effectiveness. It is for the referring court to determine whether those conditions are satisfied in the main proceedings.
Questions 8 and 11