OPINION OF ADVOCATE GENERAL
SAUGMANDSGAARD ØE
delivered on 6 December 2018 (1)
Case C‑396/17
Martin Leitner
v
Landespolizeidirektion Tirol
(Request for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court, Austria))
(Reference for a preliminary ruling — Social policy — Directive 2000/78/EC — Prohibition of discrimination on the ground of age — National system for the remuneration and advancement of public servants — Legislation of a Member State found to be discriminatory — Adoption of new legislation to remedy that discrimination — Procedures for the transition of the persons concerned to the new system — Perpetuation of the difference in treatment — Justifications — Right to effective judicial protection — Right to compensation — Principle of primacy)
I. Introduction
1. The request for a preliminary ruling made by the Bundesverwaltungsgericht (Federal Administrative Court, Austria) concerns the interpretation of Articles 21 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Articles 1, 2, 6, 9, 16 and 17 of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. (2)
2. This request was submitted in the context of a dispute between a civil servant and the Austrian administration by which he is employed concerning a decision taken by that administration under the federal regime for the remuneration and advancement of civil servants which was adopted in Austria at the beginning of 2015 in order to put an end to discrimination on the ground of age, following the judgment in Schmitzer. (3)
3. In essence, the referring court asks the Court, first of all, whether the procedures whereby civil servants already in service are transferred from the old remuneration and advancement regime to that new regime lead to the maintenance of discrimination on the ground of age which is prohibited by European Union law, in particular by reference to Articles 2 and 6 of Directive 2000/78 in conjunction with Article 21 of the Charter. I consider that that is the case, for the reasons which I shall set out in this Opinion.
4. Next, referring to those provisions and also to Article 47 of the Charter, the referring court has doubts about the compatibility with EU law of the national legislation that is being challenged, which in its view eliminates the discrimination concerned only in a declaratory fashion, and not in a meaningful way, and does not allow a right to an effective remedy. I consider that those considerations should have no repercussions with regard to that dispute.
5. Last, the referring court seeks to ascertain whether EU law, and more specifically Article 17 of Directive 2000/78 and Article 47 of the Charter, preclude the legislation concerned. If so, it asks whether the principle of primacy of EU law requires that the provisions of the old legislation, which were repealed retroactively, nonetheless continue to be applied in order to remedy the defects in the new legislation. I am of the view that a nuanced answer should be given to those two questions, based rather on Article 16 of that directive.
6. I would emphasise that there are close links between this case and Case C‑24/17, Österreichischer Gewerkschaftsbund, which forms the subject of a separate Opinion which, however, bears the same date as this one. (4)
II. Legal framework
A. European Union law
7. Article 1 of Directive 2000/78 states that the purpose of that directive is ‘to lay down a general framework for combating discrimination on the grounds of … age … as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment’.
8. Article 2 of that directive, entitled ‘Concept of discrimination’, defines, in paragraph 1, the ‘principle of equal treatment’ as meaning that there ‘shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1’. Article 2(2)(a) states that ‘direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1’.
9. Article 6 of that directive, entitled ‘Justification of differences of treatment on grounds of age’, provides in the first subparagraph of paragraph 1 that ‘notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary’. The second subparagraph of paragraph 1 states that ‘such differences of treatment may include … the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment …’.
10. Article 9 of that directive, entitled ‘Defence of rights’, provides in paragraph 1 that ‘Member States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended’.
11. Article 16 of Directive 2000/78, entitled ‘Compliance’, provides in point (a) that ‘Member States shall take the necessary steps to ensure that … any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished’.
12. Article 17 of that directive, entitled ‘Sanctions’, states that ‘Member States shall lay down the rules on sanctions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied. The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive …’.
B. Austrian law
1. The GehG 2010
13. The classification of civil servants in the salary scale and their advancement, which as a general rule takes place every two years, are governed by the Gehaltsgesetz 1956 (5) (Law on salaries 1956, ‘the GehG 1956’), as adapted on several occasions, in particular to take account of judgments of the Court delivered in disputes relating to the pertinent provisions of Austrian law.
14. Following the judgment in Hütter, (6) the GehG 1956 was amended by a federal law published on 30 August 2010 (7) (the GehG 1956 resulting from that law, ‘the GehG 2010’).
15. Paragraph 8(1) of the GehG 2010 stated that ‘advancement shall be determined on the basis of a reference date’ and that ‘unless otherwise provided in this paragraph, the period required for advancement to the second salary grade for each job category shall be five years and two years for other salary grades’.
16. Paragraph 12(1) of the GehG 2010 provided that ‘subject to the restrictions set out in subparagraphs 4 to 8, the advancement reference date shall be determined by counting backwards from the date of appointment for periods after 30 June of the year in which nine school years were completed or ought to have been completed after admission to the first year of education …’.
2. The amended GehG
17. Following the judgment in Schmitzer, (8) the terms of paragraphs 8 and 12 of the GehG 1956 were again reformed, with retroactive effect, under a federal law published on 11 February 2015 (9) (the GehG 1956 in the version resulting from that law, ‘the GehG 2015’).
18. Furthermore, in order to comply with a judgment of the Verwaltungsgerichtshof (Administrative Court, Austria), (10) a federal law published on 6 December 2016 (11) further amended the GehG 1956 (in the version resulting from that law, ‘the GehG 2016’ and, taken together with the GehG 2015, ‘the amended GehG’), as regards the date of entry into force of Paragraphs 8 and 12 of the GehG 2015.
19. Under the heading ‘Grading and advancement’, Paragraph 8(1) of the GehG 2015 provides that ‘grading and further advancement shall be determined on the basis of remuneration seniority’.
20. Under the heading ‘Remuneration seniority (Reference age)’, Paragraph 12 of the GehG 2015 states:
‘1. Remuneration seniority comprises the length of the periods effective for advancement that are spent in the employment relationship, plus the length of the accreditable previous service periods.
2. Periods shall be added to remuneration seniority as previous service periods which are completed
(1) in an employment relationship with a local authority or municipal association of a Member State of the European Economic Area, the Turkish Republic or the Swiss Confederation;
(2) in an employment relationship with an organisation of the European Union or with an intergovernmental organisation of which [the Republic of] Austria is a member;
(3) in which the civil servant was entitled to a pension for injury on the basis of the Heeresversorgungsgesetz (Law on protection of the armed forces) … and
(4) for service in … basic military service …, training service …, civilian service …, obligatory military service …
3. Apart from the periods listed in subparagraph 2, periods of exercising a relevant occupation or relevant administrative traineeship up to a maximum of 10 years in total shall also be accredited as previous service periods. …’
21. Under the heading ‘Transition of existing employment relationships’, Paragraph 169c of the amended GehG states, in subparagraphs 1 to 9:
‘1. All civil servants in the job categories and salary groups specified in Paragraph 169d who were employed on 11 February 2015 shall be reclassified in the new remuneration system created by this Federal Act in accordance with the following provisions solely on the basis of their previous salaries. Civil servants shall initially be ranked in a salary grade in the new remuneration system based on their previous salary in which that previous salary is preserved. …
2. The transition of the civil servant to the new remuneration system shall occur through a fixed determination of his or her remuneration seniority. The fixed determination shall be based on the transition amount. The transition amount is the full salary excluding any extraordinary advancements, which was calculated based on the monthly pay of the civil servant for February 2015 (transition month). …
2a The base salary for that salary grade which was actually applied to the salaries paid for the transition month shall be used as the transition amount (grading according to the payslip). There shall be no assessment of whether the reason for and amount of the salary payments were correct. A subsequent correction of the salary payments shall be taken into account only in so far as when calculating the transition amount
(1) actual errors are corrected which occurred during inputting in an automated data processing system, and
(2) erroneous inputting clearly departs from the intended inputting as shown by the documents already existing at the time of the inputting.
…
2c Subparagraphs 2a and 2b transpose into Austrian law, in the field of the Staff Regulations of federal employees and teaching personnel of the Länder, Articles 2 and 6 of Directive 2000/78 … as interpreted in the judgment [in Specht and Others]. (12) The procedures for the transition of civil servants appointed before the entry into force of the federal reform of remuneration in 2015 were therefore fixed in the new remuneration regime and provide that the salary grade on which they are now placed is to be determined solely on the basis of the salary acquired under the old remuneration regime, although that regime was based on discrimination on the ground of the age of the civil servant and although that subsequent advancement to a higher salary grade is now calculated solely on the basis of professional experience since the entry into force of the reform of remunerations in 2015.
3. The remuneration seniority of reclassified civil servants shall be fixed in line with the period of time required for advancement from the first salary grade (from the first day) to that salary grade within the same job category for which the next lower salary is cited as an amount to the transition amount in the version applicable on 12 February 2015. If the transition amount is the same as the lowest amount cited for a salary grade within the same job category, this salary grade shall be the determining one. All comparable amounts shall be rounded to full euros.
…
6. … If the civil servant’s new salary is below the transition amount, a maintenance premium equal to the difference in the amount, taken into consideration for the calculation of the retirement pension, shall be paid to him as a supplementary premium … until he reaches a salary level higher than the transition amount. The comparison of the amounts shall include any seniority premiums or exceptional advancements.
…
9. In order to maintain expectations connected with a future advancement, the exceptional advancement or the seniority premium in the old remuneration regime, a maintenance premium, taken into consideration for the calculation of the retirement pension, shall be payable to the civil servant as a supplementary premium …, as soon as he reaches the transitional grade …’
22. According to Paragraph 175(79)(3) of the GehG 2016, ‘in the version of the federal law published in BGBl. I, 32/2015, the following shall enter into force … Paragraphs 8 and 12, including their headings, on 1 February 1956; all previous versions of these provisions shall cease to apply in current and future procedures …’.
III. The dispute in the main proceedings, the questions for a preliminary ruling and the procedure before the Court
23. Mr Martin Leitner was subject to the rules of the old Austrian remuneration and advancement regime for civil servants until February 2015 and was then reclassified in the context of the new regime adopted by the Austrian legislature.
24. On 27 January 2015, he requested the Landespolizeidirektion Tirol (Regional Police Directorate, Tyrol, Austria, ‘the regional directorate’) to recalculate his advancement reference date and his remuneration status and, if necessary, to pay the remuneration owing to him, having regard to the experience which he had acquired before reaching the age of 18.
25. On 30 April 2015, the regional directorate rejected Mr Leitner’s request as inadmissible, on the ground that, by the reform of the GehG 1956 at the beginning of 2015, (13) the legislature had repealed all of the provisions relating to the old advancement reference date, making clear that the provisions thus far relevant were no longer applicable, with retroactive effect also with respect to current or future procedures.
26. Mr Leitner brought an action before the Bundesverwaltungsgericht (Federal Administrative Court), claiming that that rejection decision was not consistent with the provisions of EU law on discrimination, as interpreted by the Court. (14) On 7 November 2016, that court annulled the contested decision and requested the regional directorate make a determination on the substance of the request at issue.
27. On 9 January 2017, the regional directorate again considered that request and rejected it, on the ground that Mr Leitner could not derive rights from the old remuneration and advancement regime, since that regime could not be applied in any proceedings following the abovementioned reform.
28. On 8 February 2017, Mr Leitner brought an action against that decision, before the same court, claiming that his classification and the resulting remuneration should be fixed in accordance with his request of 27 January 2015.
29. In that context, by order of 30 June 2017, received at the Court on 3 July 2017, the Bundesverwaltungsgericht (Federal Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is EU law, in particular Articles 1, 2 and 6 of Directive 2000/78 …, in conjunction with Article 21 of the Charter …, to be interpreted as precluding national legislation that, for the purpose of eliminating discrimination against currently employed civil servants, establishes a transitional rule under which, on the basis of a “transition amount”, which is indeed calculated in money, but nevertheless corresponds to a certain grading that can be specifically allocated, the reclassification is effected from the previous biennial system to a new biennial system (that in and of itself is non-discriminatory for newly hired civil servants), such that age discrimination against currently employed civil servants still continues?
(2) Is EU law, in particular Article 17 of Directive 2000/78 and Article 47 of the Charter …, to be interpreted as precluding national legislation that prevents currently employed civil servants from having –– in accordance with the interpretation of Articles 9 and 16 of [that directive] in the judgment in Schmitzer (15) –– their remuneration status determined, in reliance on Article 2 of Directive 2000/78, as at the time prior to transition to the new system, in that it declares that the corresponding legal bases are no longer applicable retroactively to the date on which its historical original law entered into force and, in particular, that previous service periods completed before the age of 18 may not be accredited?
(3) If the answer to Question 2 is in the affirmative: does the principle of primacy of EU law, affirmed, inter alia, in the judgment [in Mangold (16)] require that provisions applicable to currently employed civil servants at the time prior to transition, which have been retroactively repealed, continue to be applied so that those civil servants can be retroactively classified in the old system in a non-discriminatory manner and are thus reclassified in the new remuneration system in a non-discriminatory manner?
(4) Is EU law, in particular Articles 1, 2 and 6 of Directive 2000/78, in conjunction with Articles 21 and 47 of the Charter …, to be interpreted as precluding national legislation that eliminates existing age discrimination (with respect to the accreditation of previous service periods completed before the age of 18) in a merely declaratory manner by specifying that the periods actually completed under conditions of discrimination are retroactively to be considered no longer discriminatory even though discrimination in fact still continues?’
30. Written observations were lodged before the Court by Mr Leitner, the Austrian Government and the Commission.
31. By letters transmitted on 14 June 2018, the Court sent a request for clarification, with which the referring court complied, and put a question for a written answer, to which Mr Leitner, the Austrian Government and the Commission replied.
32. At the hearing on 12 September 2018, those parties and interested persons submitted their oral observations.
IV. Analysis
A. Preliminary observations
33. The present case concerns the new Austrian legislation on the procedure whereby experience acquired before entering the service is taken into consideration for the purposes of the classification and advancement of civil servants. That remuneration system, resulting from the reform of the GehG 1956 at the beginning of 2015, is comparable to that introduced at the same time with respect to contractual public servants. (17)
34. Under that new system, the classification of a civil servant in the salary scale and his subsequent promotion in grade are no longer determined according to a ‘reference date’, a fictional starting point, but according to ‘seniority’ in that scale. (18) The calculation of that seniority takes into account not only the duration of the current working relationship but also the duration of activities prior to entering the service, provided that they are expressly considered to be relevant, and to a variable degree depending on the type of employer: they are taken into account in full when the activities were carried out with designated public bodies, but only up to a maximum of 10 years in other cases. (19)
35. Civil servants who were in service at the time of the entry into force of the reform, (20) which is applicable retroactively, (21) are transferred to the new remuneration system by means of a reclassification which operates schematically in the following way. (22) First of all, all the civil servants concerned are classified in a grade of the new system on the basis of their previous remuneration. Next, their seniority is determined on a fixed basis in the remuneration scale, according to a ‘transition amount’ which corresponds to the salary grade that actually determined the remuneration paid by the employer for February 2015, known as the ‘transition month’, and the regularity of that remuneration can be reviewed only in the case of substantive and manifest errors. (23)
36. The questions referred by the Bundesverwaltungsgericht (Federal Administrative Court) ask the Court, in essence, to determine whether the new legislation at issue perpetuates the discrimination on the ground of age contrary to EU law that was found to exist in the judgment in Schmitzer, (24) as Mr Leitner claims, or whether that is not in fact the case, as the defendant in the main proceedings contends. In the grounds for its request for a preliminary ruling, the referring court explains that the opinions on the matter delivered by Austrian higher courts are not consistent. (25)
37. The referring court wonders, first of all, about the compatibility with EU law of the procedures whereby the transition of civil servants from the old remuneration and advancement regime to the new regime is carried out, with regard, more particularly, to the ‘transition amount’ process chosen and, moreover, to the purely declaratory nature of the elimination of discrimination (Section B). Next, it asks whether it is contrary to EU law, and in particular to Article 17 of Directive 2000/78 and Article 47 of the Charter, that civil servants were unable to rely on that directive in order to determine the ‘transfer amount’, and, if so, whether the principle of the primacy of EU law requires that the repealed regime be applied in order to ensure a non-discriminatory transition to the new system (Section C).
B. The procedures for the transition of civil servants from the old remuneration and advancement regime to the new regime (Questions 1 and 4)
38. Given the common points between the referring court’s first and fourth questions, it is appropriate in my view to examine them together, even though separate answers appear to be necessary.
1. The perpetuation of the discrimination caused by the transition system chosen (Question 1)
39. By its first question, the referring court asks, in essence, whether EU law, and in particular Articles 1, 2 and 6 of Directive 2000/78 in conjunction with Article 21 of the Charter, must be interpreted as precluding national legislation under which a discriminatory remuneration regime is replaced by a new regime, when the transition to the new regime of all currently employed civil servants (26) is carried out in such a way that the initial classification in the new regime is made by reference to a salary paid for a given month that was calculated in accordance with the old regime. (27) I observe at the outset that, by the words used for the purposes of its question, (28) the referring court explicitly indicates that it considers a priori that the earlier discrimination is perpetuated by the legislation at issue. (29)
40. On that point, Mr Leitner submits that, since the legislation at issue in the main proceedings provides that the reclassification of the civil servants already in service is to be made on the basis of the remuneration paid in February 2015, fixed in a discriminatory manner, the discrimination on the ground of age originating under the old remuneration regime continues because of that link (30) and that the grounds relied on in support of that legislation are not consistent with EU law. The Austrian Government does not deny that the effects of the discrimination created by the old regime might thus endure, but it asserts that the procedures chosen to put the transition of those servants to the new remuneration regime into effect are not only justified by legitimate objectives but also appropriate and necessary in order to achieve those objectives. On the other hand, the Commission maintains that such legislation is not compatible with the requirements arising under Articles 2 and 6 of Directive 2000/78, since it maintains a difference in treatment on the ground of age that is not duly justified. I am also of that view, for the reasons set out below.
41. First of all, as regards the provisions referred to in the present question for a preliminary ruling, I observe that the principle of non-discrimination on the ground of age is enshrined in Article 21 of the Charter and at the same time given material form in Directive 2000/78, but that the question should be examined from the aspect of that directive, in the context of a dispute such as that in the main proceedings, since the national measures at issue fall within the scope of that directive. (31) Furthermore, since neither the object of Directive 2000/78 nor the factors of discrimination which it prohibits, as defined in Article 1, are directly explored in the present case, it does not seem necessary in my view that the Court should interpret that provision.
42. Next, as regards the complaints formulated with respect to the national legislation at issue in the main proceedings, it seems to me that that legislation is disputed from the aspect of the procedures whereby civil servants who were in service when the 2015 reform was adopted are transferred from the old remuneration regime, which was found to be discriminatory, (32) to the new regime. In other words, it falls to be determined whether the provisions in question are liable to perpetuate the discrimination on the ground of age that derived from the old regime, before considering whether those provisions are objectively and reasonably justified and thus escape the prohibition laid down in Directive 2000/78.
43. First, as regards the existence of discrimination on the ground of age, I note that in the words of Article 2(2)(a) of Directive 2000/78, direct discrimination is to be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on the ground of, inter alia, age.
44. In addition, I recall that in the judgment in Schmitzer, (33) which gave rise to the reform at issue here, (34) the Court considered that the Austrian legislation that preceded that reform involved a difference in treatment which was directly based on age within the meaning of that provision and that that difference was not properly justified by legitimate objectives and was therefore caught by the prohibition laid down in Article 2(2)(a).
45. Furthermore, the Court has repeatedly held that where the reclassification of a category of persons in a new remuneration system is made solely by reference to an age-related parameter derived from the old system, national provisions of that type may perpetuate the difference in treatment on the ground of age within the new system. (35)
46. In the present case, Paragraph 169c of the amended GehG provides that the reclassification of civil servants in service is to be carried out ‘solely on the basis of their previous salaries, (36) which were themselves based on age. Those provisions thus perpetuate a discriminatory situation in which civil servants who were treated unfavourably by the old system receive less remuneration than that received by other civil servants, although their situations are comparable, solely on the ground of their age when they completed the earlier activities to be taken into account.
47. The referring court expresses the same view. Referring to the case-law of the Court referred to above, the Austrian Government acknowledges, moreover, that those provisions of the new remuneration system are apt to prolong the discriminatory effects of the old system. (37) In addition, the Commission maintains that it is clear from the national travaux préparatoires that the Austrian legislature quite deliberately chose a method having such consequences. (38)
48. It is therefore in my view undeniable that legislation such as that at issue perpetuates a discriminatory situation, namely the difference in treatment directly based on age within the meaning of Article 2(2)(a) of Directive 2000/78 found by the Court in the judgment in Schmitzer. (39) The forms of discrimination that existed before the reform in question will thus inevitably continue, and will do so not merely on a temporary, but on a lasting and indeed permanent basis. (40)
49. Second, as regards the possible justification for the difference in treatment which thus persists, it should be borne in mind that Article 6 of Directive 2000/78 allows the characterisation as direct discrimination within the meaning of Article 2, and therefore the resulting prohibition, to be disregarded if the differences in treatment on the ground of age are ‘objectively and reasonably justified by a legitimate aim’, of the type listed in Article 6, (41) and if ‘the means of achieving that aim are appropriate and necessary’.
50. In accordance with settled case-law, in the context of a reference for a preliminary ruling, although it is ultimately for the national court, which has sole jurisdiction to assess the facts and to determine whether and to what extent the internal legislation at issue in the main proceedings meets those requirements, the Court of Justice, which is called on to provide answers that are of use to the national court, may provide guidance, based on the file in the main proceedings and on the written and oral observations which have been submitted to it, that are likely to enable the national court to give judgment in the particular case pending before it. (42)
51. As concerns the aims that are likely to justify the content of the legislation at issue, the referring court (43) and the Austrian Government submit that the transition procedures adopted in the 2015 reform were designed to avoid the overwhelming difficulties that would have been caused if each of the numerous civil servants concerned had been assessed individually; (44) to ensure, moreover, that the operation remains cost-neutral for the State; and, last, to prevent significant reductions in income for those civil servants.
52. It follows from the Court’s case-law that justifications based on possible administrative difficulties and an increase in financial burdens cannot in principle be a legitimate ground for non-compliance with obligations arising from the prohibition of discrimination by reason of age laid down in Directive 2000/78. However, the Court has accepted that an individual examination of each particular case cannot be insisted on in order to establish individually previous periods of activity, since the management of the scheme concerned must remain technically and economically viable. (45)
53. Furthermore, it is common ground that the intention, explicitly expressed by the Austrian legislature, (46) to provide a category of persons with a guarantee that they will be transferred to the new system without any financial loss, in accordance with their acquired rights and with the protection of legitimate expectations, constitutes a legitimate employment policy and labour market aim, (47) which can justify, for a transitional period, the maintenance of earlier pay and, consequently, the maintenance of a system that discriminates on the ground of age. (48)
54. Since the national legislation at issue in the main proceedings does in fact pursue a legitimate aim within the meaning of Article 6 of Directive 2000/78, it is appropriate, next, to consider whether the means employed to that end are appropriate and necessary in order to achieve that aim, in accordance with that provision.
55. As regards the appropriateness of such provisions, I seriously doubt, as do the referring court and the Commission, that the disputed element of the 2015 reform, namely the reclassification of all civil servants in service ‘solely on the basis of their previous salaries’, (49) may be considered appropriate in order to achieve the aim of protecting both the acquired rights and the legitimate expectations of all those concerned by that mechanism.
56. In fact, it is apparent from the information provided by the referring court that the Austrian legislature adopted various measures designed to ensure that all those persons, whether or not they were treated favourably by the old regime, did not suffer a significant loss of salary on account of that reform. (50) The very fact that such measures had to be adopted, in addition to the mechanism based on the previous remuneration which is being challenged, suggests that that mechanism is not alone, and therefore in itself, capable of preserving the acquired rights and the legitimate expectations of those concerned.
57. In addition, as regards the necessity of provisions such as those at issue in the main proceedings, I consider that the mechanism adopted in 2015 goes beyond what is necessary in order to achieve the abovementioned objective. As the Commission submits, (51) and notwithstanding the Austrian Government’s opinion to the contrary, other types of measures, less punishing for the persons who were treated unfavourably by the old system, (52) might have been implemented in order to preserve the acquired rights and the legitimate expectations of all the civil servants concerned, (53) without, in my view, the new regime becoming technically and economically unmanageable. (54)
58. That observation is in my view necessary, especially, in the light of the unlimited duration of the new mechanism, which makes no provision for a gradual convergence of the treatment given to servants treated unfavourably by the old regime with the treatment given to those treated favourably, so that in the medium or indeed the short term, and in any event following a foreseeable period, the former will ‘catch up’ and enjoy the advantages granted to the latter. (55)
59. In that regard, I recall that the Court has already held that the aim in question cannot justify a measure that, as in the present case, maintains definitively the age-based difference in treatment which the reform of a discriminatory regime is designed to eliminate. Such a measure, even if it is capable of ensuring the protection of acquired rights and legitimate expectations with regard to civil servants who were treated favourably by the previous regime, is not appropriate for the purpose of establishing a non-discriminatory regime for civil servants who were treated unfavourably by that previous regime. (56)
60. Last, it should be noted that the argument put forward by the Austrian Government that the Gewerkschaft Öffentlicher Dienst (Civil Service Union, Austria) gave its consent with respect to the procedures of the reform in question cannot call the foregoing analysis in question. Just like the Member States, the social partners must comply with the obligations arising under Directive 2000/78, (57) even though their role may be central when certain rules are being drawn up. (58)
61. Accordingly, I consider that, in spite of the wide discretion recognised to the Member States and social partners in the choice not only of the pursuit of a given social policy and employment policy objective, but also in the definition of the measures apt to achieve that objective, (59) the Austrian legislature could not reasonably consider it appropriate and necessary to adopt national provisions such as Paragraph 169c of the amended GehG.
62. In the light of all of those considerations, I am of the view that Articles 2 and 6 of Directive 2000/78 must be interpreted as precluding procedures whereby civil servants in service are transferred from an old discriminatory remuneration regime to a new regime, such as those laid down by the national legislation at issue in the main proceedings.
2. The impact of the statements made by the national legislature and the right to effective judicial protection (Question 4)
63. By its fourth question, the referring court asks the Court to rule on whether Articles 1, 2 and 6 of Directive 2000/78, in conjunction with Article 21 of the Charter, provisions which are all already covered in the first question, and in conjunction with Article 47 of the Charter, a provision also covered elsewhere, (60) preclude peremptory statements by the national legislature to the effect that the reform complained of would properly put an end to the discrimination caused by the previously applicable regime being taken into account. It is apparent from the grounds of the order for reference that Article 47 is mentioned so that the Court may determine, in addition, whether the right to effective judicial protection enshrined in that provision was breached by the legislature when that reform was adopted.
64. Let me state at the outset that I shall focus here on the interpretation of Article 47 of the Charter, having regard to the considerations developed above (61) with respect to the other provisions referred to in this question, for the purposes of an application of those provisions in conjunction with Article 47.
65. Before doing so, as regards the legal value to be ascribed to the fact that the Austrian legislature claimed to have eliminated discrimination on the ground of age ‘in a declaratory manner’, I note that the referring court asserts that the model chosen does not eliminate that discrimination by measures that would permit a specific remedy to that discrimination, but attempts to eliminate it retroactively by mere declarations, (62) which are contradicted by a comparison of the old and the new regimes, which shows that the reclassification constitutes a ‘parallel shifting’ of the discrimination in question from the old regime to the new regime.
66. Mr Leitner has not submitted specific observations on whether it is permissible, in the light of the abovementioned provisions of EU law, for national legislation merely to declare that it eliminates prohibited legislation while maintaining it intact in practice.
67. The Austrian Government submits that the decisive point is not whether discrimination is eliminated in what is — allegedly — a merely declaratory manner, but whether the applicable national provisions are consistent with EU law, as discussed in the context of the preceding questions. In a similar vein, the Commission considers that expressions in the national legislation, such as those mentioned by the referring court, do not alter the fact that it is necessary to ascertain whether that legislation is actually applied in a manner consistent with EU law.
68. I essentially share their viewpoint, it being borne in mind that it is the Court’s task, in the preliminary reference procedure, to provide all the guidance as to interpretation to enable the referring court to determine for itself whether national legislation is compatible with the provisions of EU law, including those of the Charter, (63) notwithstanding any declarations by the national legislature concerning that compatibility.
69. As regards the possible incompatibility with Article 47 of the Charter, (64) the referring court states that, under the new regime for the remuneration and advancement of civil servants, the ‘transition amount’, fixed on the basis of the old regime, is amenable to only limited review. (65) It wonders whether those national provisions render ineffective any action based on an incorrect classification that turns out not to be attributable to a mere data inputting error. (66)
70. Mr Leitner claims that Article 47 of the Charter prohibits provisions, such as those of the reform at issue, which provide that the old remuneration and advancement system, which was found to be discriminatory, can no longer be applied in all procedures, both current and future. (67) The Commission does not express a view on this point. The Austrian Government, on the other hand, maintains that such national provisions satisfy the requirements of Article 47. I also share that view, for the following reasons.
71. First of all, I consider that it is indisputable that the present case concerns a situation in which a Member State has implemented EU law, within the meaning of Article 51(1) of the Charter, and that the federal legislature was therefore required to respect the fundamental rights guaranteed in Article 47 of the Charter, and more specifically the right of individuals to enjoy effective judicial protection of the prerogatives which EU law confers on them. (68) I note that such protection, moreover, is also expressly provided for in Directive 2000/78, (69) the transposition of which was explicitly mentioned in the terms of the legislation at issue here. (70)
72. In addition, it should be borne in mind that each Member State has a certain autonomy in that regard, which allows it to define the procedural rules of judicial actions designed to ensure the protection of the rights which individuals derive from EU law, provided that those rules observe the two limits established in the Court’s consistent case-law, namely the principle of equivalence and the principle of effectiveness. (71) As has already been made clear, the requirements arising from Article 47 of the Charter which have been identified by the Court are both limited and dependent on multiple factors and, in particular, it appears that the right to an effective remedy does not mean that the competent national courts are necessarily in a position, in all circumstances, to vary contested decisions as regards all the factors on which they are based. (72)
73. Furthermore, owing to the links between the first paragraph of Article 47 of the Charter and Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, (73) it is appropriate to take into account the case-law of the European Court of Human Rights on Article 13 of that Convention. (74). It is apparent from that case-law that the right to an effective remedy before a tribunal must enable those concerned to rely on the rights and freedoms enshrined in that Convention, it being understood that that right places an obligation on States, the scope of which varies depending on the nature of the applicant’s complaint, and the effectiveness of the remedy does not depend on the certainty of a favourable outcome for the applicant. (75)
74. In this instance, I note that, in the context of the new Austrian remuneration and advancement regime, the scope of the substantive review which the national courts have jurisdiction to carry out with respect to the ‘transition amount’, which determines the reclassification of the civil servants concerned, (76) is narrow. (77) That review may cover only inaccuracies resulting from the incorrect inputting of the relevant data, (78) and not any irregularity in the calculation of the salary on which that amount is based, which is carried out on the basis of the old remuneration regime.
75. However, as the Austrian Government observes, all those affected by the reform complained of — namely the civil servants already in service, whether they were treated favourably or unfavourably by the old regime — have remedies that allow them to secure a review of the lawfulness of the system under which they are transferred to the new remuneration and advancement regime. (79) That judicial review of the validity of the rules in question may be carried out, in particular, by reference to the requirements of EU law, and any incompatibility of the reform with those requirements can thus be identified. The judicial action brought in the main proceedings, which gave rise to the present request for a preliminary ruling, also reveals the existence and the effectiveness of those remedies. The persons concerned are therefore able to bring proceedings before the Austrian courts to enforce the rights which they derive from EU law, in conditions which in my view are compatible with the abovementioned content of the fundamental right to an effective remedy, within the meaning of Article 47 of the Charter, and, more specifically, make it possible to ensure compliance with the obligations arising from Directive 2000/78.
76. Consequently, I propose that the answer to the fourth question should be that Article 47 of the Charter must be interpreted as not precluding national provisions such as those referred to in that question.
C. The possible incompatibility with Article 17 of Directive 2000/78 and its potential consequences for the principle of primacy of EU law (Questions 2 and 3)
77. In view of the link which the referring court draws between the second and third questions which it has referred to the Court, they should in my view be answered together.
1. The impact of Article 17 of Directive 2000/78 (Question 2)
78. The second question asks the Court to determine, principally, whether ‘Article 17 of Directive 2000/78 and Article 47 of the Charter’ (80) must be interpreted as precluding legislation such as that at issue in the main proceedings.
79. More specifically, the referring court asks the Court whether it is permissible, in the light of either of those provisions, for national legislation to prevent currently employed civil servants from relying on Article 2 of that directive, in conjunction with Articles 9 and 16 in accordance with the judgment in Schmitzer, (81) in order to ‘[have] their remuneration status determined [in reliance on Article 2] as at the time prior to transition to the new system’, in that that legislation provides that the provisions of the old regime are no longer applicable retroactively.
80. Although the order for reference does not expressly say so, to my mind it is logical to consider that the problem raised by this question should be addressed only if, in answer to the first question, the Court should rule, as I propose, that the impugned legislation is not consistent with the requirements laid down in Articles 2 and 6 of Directive 2000/78.
81. As regards the interpretation of Article 47 of the Charter requested here, I refer to the reasoning which I devoted to that issue in the context of the answer to the fourth question, (82) which also refers to Article 47 but is based on what in my view are clearer and more appropriate considerations than those relating to the present question, since the focal point of the latter question is the provisions of Directive 2000/78 referred to above.
82. As regards the interpretation of Article 17 of Directive 2000/78, in my view it follows from the grounds of its order for reference that the referring court asks, in essence, whether that article requires the grant of financial compensation (83) to the civil servants in service who suffered discrimination on the ground of age by the effect of the old remuneration and advancement regime, in the light of previous judgments of the Court. (84) In its answer to the request for clarification, the referring court states that it infers from the judgment in Schmitzer (85) that such a civil servant ‘must have the opportunity, in reliance on Article 2 of that directive, to challenge the discriminatory effect of the legislation in order to put an end to it, independently of the fact that financial compensation is payable to him in that regard for the past’. It adds that in its view the Austrian legislature did not take the requirements of Article 17 sufficiently into account, since it opted for measures aimed solely at ensuring cost neutrality and not for measures appropriate for effectively eliminating the discrimination on the ground of age.
83. Without referring expressly to Article 17 of Directive 2000/78, Mr Leitner maintains that, until EU law is correctly implemented, the persons treated unfavourably should enjoy the same advantages as those treated favourably. Conversely, the Austrian Government claims that, in adopting the reform at issue in the main proceedings, the Austrian legislature fulfilled the obligations arising under Article 16 of Directive 2000/78. The Commission, for its part, after making special reference to Article 17 in its observations and considering that financial compensation might be payable in the present case, finally suggests that the answer should be that in the absence of a system consistent with that directive, the civil servants treated unfavourably by the previous regime should be granted the same advantages as those enjoyed by the civil servants treated favourably by that regime, as regards the periods of service completed before the age of 18 that are taken into account, and also advancement in the remuneration scale.
84. Although my view is essentially similar to the Commission’s final proposal, I nonetheless consider that Article 17 of Directive 2000/78, which is mentioned in the present question in connection with other provisions of that directive, is not the appropriate legal basis on which to decide whether or not it is necessary to grant financial compensation to the persons discriminated against in such circumstances. (86)
85. In fact, I would observe that Article 17, which concerns the sanctions that Member States must impose on those responsible for infringements of the national provisions adopted in order to transpose that directive, (87) does not cover the present situation, which concerns the way in which a Member State must where appropriate provide a remedy (88) for discrimination arising not from an infringement of those national provisions which should attract an appropriate sanction, (89) but from failure by those national provisions themselves to comply with the requirements of EU law.
86. I consider it more appropriate to refer, in this situation, to the provisions of Article 16 of Directive 2000/78, which concerns the Member States’ obligation to amend their national rules in order to ensure that they comply with the principle of non-discrimination, as the Court has done on several occasions, including quite recently in similar contexts where national remuneration regimes have been recast because of discrimination. (90) I therefore propose to answer the present question by taking the provisions of Article 16 of that directive into account. (91)
87. In that regard, the Court has already held that while Article 16 requires Member States to ensure that their national legislation is consistent with EU law, it leaves them free to choose, among the various measures capable of putting an end to prohibited discrimination, the one that in their view is the most appropriate for that purpose. In accordance with that case-law, the elimination of discrimination on the ground of age, such as that at issue in the main proceedings, does not necessarily mean that the worker who suffered discrimination under the previous statutory regime will automatically enjoy the right to receive, with retroactive effect, financial compensation consisting in the difference between the salary which he would have received in the absence of discrimination and that which he actually received, or future increases in salary. That will be the case only if, and as long as, measures to restore equal treatment have not been adopted by the national legislature. In that case, observance of the principle of equality can be ensured only by granting to persons in the disadvantaged category the same advantages as those enjoyed by persons within the favoured category, the latter regime being, for want of the correct application of EU law, the only valid point of reference remaining. (92)
88. To my mind, the legislation at issue corresponds to the latter situation, since I consider, for the reasons set out in the context of Question 1, (93) that the measures adopted by the Austrian legislature with a view to the transition of the civil servants in service to the new remuneration and advancement regime do not allow equal treatment to be restored for servants who were treated unfavourably by the old regime. (94) Since the new legislation maintains the discriminatory effects of the previous legislation, (95) respect for the principle of equal treatment means that those persons should be granted the same advantages as those enjoyed by the civil servants who were treated favourably by the old regime, as regards both the periods of service completed before the age of 18 that are taken into account and advancement in the remuneration scale. (96) More specifically, I understand the case-law referred to above as meaning that the reinstatement of equal treatment may go as far as requiring that financial compensation be granted to the disadvantaged servants if a re-balancing in their favour is not achieved, as soon as possible, (97) by any other means appropriate to ensure the convergence required under EU law.
89. It is in that sense that, in my view, Article 16 of Directive 2000/78 must be interpreted in order to provide a helpful answer to the second question.
2. The impact of the principle of primacy of EU law (Question 3)
90. First of all, it should be emphasised that, as the referring court states, the third question is submitted in case the Court should answer the second question in the affirmative.
91. By its third question, the referring court asks the Court, in essence, to what extent an application of the principle of primacy of EU law (98) might make it possible to remedy the incompatibility of the legislation at issue in the main proceedings with EU law that results, in particular, from a contradiction with Article 17 of Directive 2000/78, referred to in the preceding question. However, it will be recalled that I propose to reformulate the second question in order to provide a helpful reply on the basis, rather, of Article 16 of that directive. (99)
92. More particularly, the referring court asks whether, by virtue of the primacy of EU law, the provisions of the old remuneration regime that were retroactively repealed (100) should nonetheless continue to be applied to civil servants who were already in service when the reform was adopted, so that they should be classified retroactively and in a non-discriminatory manner in that old regime, and might therefore be transferred without discrimination to the new remuneration regime.
93. Mr Leitner does not express a view on this third question for a preliminary ruling. The Austrian Government maintains that there is no need to examine it, on the ground that the second question should be answered in the negative, as the legislation in question is compatible with EU law, but it nonetheless provides subsidiary observations, referring to the Court’s case-law on the principle of primacy. (101) In the Commission’s submission, the second and third questions should be answered together, since they seek in essence to determine whether it is necessary to grant, either on the basis of the primacy of EU law or by virtue of Article 17 of Directive 2000/78, financial compensation to civil servants treated unfavourably by the old regime that was found to be discriminatory.
94. For my part, I consider that respect for the primacy of EU law, as regards the elimination of discrimination prohibited by EU law, may already be ensured by an application of the case-law on the interpretation of Article 16 of Directive 2000/78, on which I relied in connection with the second question and from which it follows that the persons treated unfavourably by a discriminatory regime must enjoy the same advantages as those afforded to the persons treated favourably by that regime. (102) In fact, it appears to me that the principle of primacy of EU law is given material form by the provisions of Directive 2000/78, in the field which it covers, and in particular by the obligations set out in Article 16. There is thus in my view no need to respond specifically to the third question. Nonetheless, in the interest of completeness, I shall present the following observations.
95. In a situation such as this, where an action is brought against an administrative authority of a Member State, it follows from settled case-law that, if the national court dealing with the matter finds it impossible to arrive at an interpretation and application of the national legislation that is consistent with Directive 2000/78 without acting contra legem, the principle of primacy of EU law requires that it disapply the legislation that is incompatible with the requirements of EU law. (103) In this instance, respect for that principle entails, in order to ensure the full effect of EU law, disregarding the provisions of the new remuneration regime that do not comply with the obligations arising under that directive, more particularly as regards the prohibition of discrimination on the ground of age.
96. According to the subsidiary observations provided by the Austrian Government, that would make it necessary to disapply the rule whereby the transition to that regime must be carried out on a fixed basis, (104) and therefore to determine seniority on an individual basis for each servant already in service, by recalculating his previous periods of activity and his resulting classification on the remuneration scale. (105)
97. To my mind, the national court has a broad discretion as regards the means to be employed in that context, provided that they make it possible to provide an effective remedy for the discrimination on the ground of age at issue in the main proceedings. The most appropriate process would in my view be to disregard the element of the legislation concerned that gives rise to the perpetuation of that discrimination, namely the mechanism whereby the transition is carried out on the basis of a salary fixed in accordance with the old remuneration regime that was found to be discriminatory. Next, it would be appropriate to identify the advantages enjoyed by civil servants who were treated favourably by the old regime, in order to afford the same treatment of civil servants who were treated unfavourably, as I have indicated in connection with the interpretation of Article 16 of Directive 2000/78. (106)
98. I would make clear that, contrary to what the third question may suggest, the application of the case-law on the principle of primacy should not result in the old remuneration being applied, by a kind of regeneration of the provisions repealed with retroactive effect. (107) In fact, respect for the primacy of EU law does not go as far as to require a national court to apply legislation which has ceased to exist as a result of the intention of the legislature of a Member State. In addition, the old regime contains provisions which have been held by the Court to give rise to discrimination on the ground of age (108) and it cannot therefore be applied as such for the specific purpose of putting an end to that discrimination.
V. Conclusion
99. In the light of the foregoing considerations, I propose that the Court answer the questions for a preliminary ruling referred by the Bundesverwaltungsgericht (Federal Administrative Court, Austria) as follows:
(1) Articles 2 and 6 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding national legislation which, for the purposes of taking periods of activity before the age of 18 into account, replaces a remuneration system that was found to be discriminatory on the ground of age by a new remuneration system, but provides that the transition to the new system of all the persons already in service is to be carried out by determining their initial classification in the new system on the basis of a salary paid for a specific month and calculated in accordance with the old system, so that the discrimination on the ground of age is maintained in terms of its financial effects.
(2) Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding national legislation which limits the substantive review which the competent national courts are able to carry out with regard to the decisions challenged before them but allows them to review the legality of those decisions and, in that context, to review the compatibility of that legislation with European Union law.
(3) Article 16 of Directive 2000/78 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, where a system which eliminates discrimination on the ground of age in a manner consistent with the requirements of that directive has not yet been adopted, the reinstatement of equal treatment entails granting to those treated unfavourably by the old regime the same advantages as those enjoyed by the persons treated favourably by that regime, as regards not only the taking into account of periods of service completed before the age of 18, but also advancement in the remunerations scale.