Österreichischer Gewerkschaftsbund, Gewerkschaft Öffentlicher Dienst v Republik Österreich.
Date: 2019-05-08
35


It is necessary, therefore, to consider that Paragraph 169c of the amended Law on remuneration maintains a difference in treatment between the contractual public servant treated unfavourably by the old system and the contractual public servants treated favourably by that system, since the amount of remuneration that will be received by the former will be less than that that will be paid to the latter solely on the ground of the age they were at the time of their recruitment, although they are in comparable situations (see, to that effect, judgment of 9 September 2015, Unland, C‑20/13, EU:C:2015:561, paragraph 40).
38


The Court has held on numerous occasions 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).
40


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 may underpin the chosen social policy of a Member State and influence the nature or extent of the measures that that 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).
41


As regards, secondly, respect for the acquired rights and the protection of the legitimate expectations of contractual public servants treated favourably by the old system with regard to their remuneration, it should be noted that these constitute legitimate employment-policy and labour-market objectives that can justify, for a transitional period, the maintenance of earlier pay and, consequently, the maintenance of different treatment based on age (see, to that effect, judgment of 11 November 2014, Schmitzer, C‑530/13, EU:C:2014:2359, paragraph 42).
42


Those objectives cannot, however, justify a measure that maintains definitively, if only for certain persons, the age-based difference in treatment that the reform, of which such a measure forms part, is designed to eliminate. Such a measure is not appropriate for the purpose of establishing a non-discriminatory system for persons who are treated unfavourably (see, to that effect, judgment of 28 January 2015, Starjakob, C‑417/13, EU:C:2015:38, paragraph 39 and the case-law cited).
50


It is apparent from the Court’s case-law that that article requires the Member States to apply sanctions to any infringements of national provisions adopted in order to implement that directive (see, to that effect, judgment of 25 April 2013, Asociația Accept, C‑81/12, EU:C:2013:275, paragraph 61).
53


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 necessary to reformulate Question 1(b) as seeking in essence to ascertain whether EU law must be interpreted as meaning that, where discrimination, contrary to EU law, has been established, as long as measures reinstating equal treatment have not been adopted, the restoration of equal treatment, in a case such as that at issue in the main proceedings, involves granting contractual public servants treated unfavourably by the old system of remuneration and advancement the same benefits as those enjoyed by the contractual public servants treated favourably by that system, both as regards the recognition of periods of service completed before the age of 18 and advancement in the salary scale and, consequently, granting financial compensation to contractual public servants discriminated against.
54


In that regard, 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).
55


If it is not possible to construe and apply the national legislation in conformity with that directive, it should also be borne in mind that, by reason of the principle of primacy of EU law, which extends also to the principle of non-discrimination on grounds of age, conflicting national legislation that 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).
56


It is also apparent from 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. Persons treated unfavourably 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).
57


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 persons within the disadvantaged category 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).
58


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).
61


Therefore, as long as measures reinstating equal treatment have not been adopted, the reinstating thereof, in a case such as that at issue in the main proceedings, involves granting contractual public servants treated unfavourably by the old remuneration and advancement system the same benefits as those enjoyed by the contractual public servants treated favourably by that system, both as regards the recognition of periods of service completed before the age of 18 and advancement in the salary scale (see, to that effect, judgment of 28 January 2015, Starjakob, C‑417/13, EU:C:2015:38, paragraph 48).
63


It should be noted that the considerations in paragraphs 61 and 62 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).
64


It must be noted that, although the 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 them 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 purpose, the one that appears to them to be the most appropriate for that purpose, depending on the situations that may arise (judgment of 22 January 2019, Cresco Investigation, C‑193/17, EU:C:2019:43, paragraph 88).
68


In that regard, it should be noted that Article 45(2) TFEU provides that freedom of movement for workers entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
69


The Court has held that Article 7(1) of Regulation No 492/2011 constitutes merely the specific expression of the principle of non-discrimination laid down in Article 45(2) TFEU within the specific field of conditions of employment and work and must therefore be interpreted in the same way as the latter article (judgment of 5 December 2013, Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken, C‑514/12, EU:C:2013:799, paragraph 23).
70


In that context, it should be noted that the principle of equal treatment laid down in both Article 45 TFEU and in Article 7 of Regulation No 492/2011 prohibits not only direct discrimination on the ground of nationality but also all indirect forms of discrimination that, by the application of other criteria of differentiation, lead in fact to the same result (judgment of 2 March 2017, Eschenbrenner, C‑496/15, EU:C:2017:152, paragraph 35).
71


Therefore, a provision of national law — even if it applies regardless of nationality — must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the migrant worker at a particular disadvantage, unless objectively justified and proportionate to the aim pursued (judgment of 2 March 2017, Eschenbrenner, C‑496/15, EU:C:2017:152, paragraph 36).
76


However, it should be noted that, according to the Court’s case-law, provisions of national legislation that preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement constitute obstacles to that freedom even if they apply without regard to the nationality of the workers concerned (judgment of 5 December 2013, Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken, C‑514/12, EU:C:2013:799, paragraph 30).
77


It should be added in that regard that all the provisions of the TFEU relating to freedom of movement for persons are intended, as are those of Regulation No 492/2011, to facilitate the pursuit by nationals of the Member States of occupational activities of all kinds throughout the European Union, and preclude measures that might place nationals of Member States at a disadvantage if they wish to pursue an economic activity in the territory of another Member State (judgment of 5 December 2013, Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken, C‑514/12, EU:C:2013:799, paragraph 32).
84


A measure of that kind cannot be accepted unless it pursues one of the legitimate aims listed in the TFEU or is justified by overriding reasons in the public interest. Even so, application of that measure still has to be such as to ensure achievement of the objective in question and must not go beyond what is necessary for that purpose (see, to that effect, inter alia, judgment of 5 December 2013, Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken, C‑514/12, EU:C:2013:799, paragraph 36).
86


As regards the first ground put forward as justification by the Austrian Government, it should be noted that, according to the Court’s settled case-law, rewarding experience acquired in a particular field, which enables the worker to perform the tasks conferred on him, constitutes a legitimate objective of pay policy (judgment of 14 March 2018, Stollwitzer, C‑482/16, EU:C:2018:180, paragraph 39).
89


As regards the second ground put forward as justification by the Austrian Government, it should be noted that, even assuming that the legislation at issue in the main proceedings indeed pursues the objective of rewarding workers’ loyalty to their employers, if such an objective can constitute an overriding reason of public interest (judgment of 5 December 2013, Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken, C‑514/12, EU:C:2013:799, paragraph 38), it must be stated that, given the characteristics of that legislation, the obstacle that it entails is not such as to ensure achievement of that objective.
90


It should be noted that, given the large number of employers covered by Article 26(2) of the amended Law on contractual public servants, the new system of remuneration and advancement is intended to allow the greatest possible mobility within a group of legally distinct employers and not to reward the loyalty of an employee to a particular employer (see, by analogy, judgment of 30 November 2000, Österreichischer Gewerkschaftsbund, C‑195/98, EU:C:2000:655, paragraph 49).