David Hütter v Technische Universität Graz.
Date: 2009-06-18
33. As is apparent both from its title and preamble and its content and purpose, Directive 2000/78 is designed 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 one of the grounds covered by Article 1, which includes age.
34. More particularly, it follows from Article 3(1)(a) and (c) of Directive 2000/78 that the directive applies, within the framework of the areas of competence conferred on the Community, ‘to all persons, as regards both the public and private sectors, including public bodies’, on the one hand, in relation to ‘conditions for access to employment, … including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy’ and, on the other hand, in relation to ‘employment and working conditions, including dismissals and pay’.
38. National legislation such as that at issue in the main proceedings imposes less favourable treatment for persons whose professional experience has, albeit only in part, been acquired before the age of 18 as compared with those who have acquired experience of the same nature and of comparable length after attaining that age. Such legislation establishes a difference in treatment between persons based on the age at which they acquired their professional experience. As is demonstrated by the facts at issue in the main proceedings, 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 thus establishes a difference in treatment directly based on the criterion of age, within the meaning of Article 2(1) and (2)(a) of Directive 2000/78.
41. In that regard, it should be observed that aims that may be considered ‘legitimate’ within the meaning of Article 6(1) of Directive 2000/78 and, consequently, appropriate for the purposes of justifying derogation from the principle prohibiting discrimination on grounds of age are social policy objectives, such as those related to employment policy, the labour market or vocational training (Case C‑388/07 Age Concern England [2009] ECR I‑0000, paragraph 46).
45. In this respect, the Member States unarguably enjoy broad discretion in their choice of the measures capable of attaining their objectives in the field of social and employment policy ( Mangold , paragraph 63).
47. Besides that lack of internal consistency, it must also be observed that the national legislation at issue in the main proceedings relies on the criterion of previous professional experience for the purposes of determining grading within the scale and, consequently, the pay of contractual public servants. Rewarding experience that enables the worker to perform his duties better is, as a general rule, acknowledged to be a legitimate aim. That is why the employer is free to reward such experience (see Case C‑17/05 Cadman [2006] ECR I‑9583, paragraphs 35 and 36). The fact remains, however, that national legislation such as that at issue in the main proceedings does not merely reward experience but also establishes, where experience is equal, a difference in treatment on the basis of the age at which that experience was acquired. In those circumstances, such an age-related criterion therefore has no direct relationship with the aim, so far as the employer is concerned, of rewarding professional experience.