Request for a preliminary ruling from the Verwaltungsgericht Halle (Germany) lodged on 10 December 2018 — TK v Land Sachsen-Anhalt

(Case C-773/18)

Language of the case: German

Referring court

Verwaltungsgericht Halle

Parties to the main proceedings

Applicant: TK

Defendant: Land Sachsen-Anhalt

Questions referred

Is the ex post facto percentage increase within the context of an age-related discriminatory pay system a new form of discrimination if the percentage increase is the same for all stages of a pay grade and therefore the absolute, but not the relative gap between those discriminated against and those not discriminated against varies?

If the answer to Question 1 is in the affirmative, is such a percentage increase over all age brackets justified in cases where the increase is due to the initial payment falling below a minimum set by the constitution of a Member State?

Does EU law, in particular Article 9 of Directive 2000/78/EC, 1 preclude an arrangement which cancels a right to compensation for age-related discriminatory payment after two months if:

–    the time limit starts with the delivery of the judgment of 8 September 2011, Hennigs and Mai, C-297/10 and C-298/10, EU:C:2011:560 although the person concerned is not covered by the Bundesangestelltentarifvertrag (Federal Collective Agreement for contractual employees), but his personal situation is the same as in the judgment of 9 September 2015, Unland (C-20/13, EU:C:2015:561);

–    the aforementioned judgment can be obtained from the officials and judges concerned (employees) only from general public sources;

–    the employers have denied transferability to officials following the delivery of the abovementioned judgment, thereby denying the existence of age discrimination, whereby that legal opinion has also been communicated externally, at least partially;

–    the case-law of the administrative courts at first instance has, for the most part, denied the existence of age discrimination within the time limit referred to and also subsequently, until delivery of the 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;

–    the case-law of the higher courts did not exist within the time limit and the first decision at highest instance was only taken following the delivery of the judgment in Specht and Others;

–    in the civil service or judicial relationship (employment relationship) exclusion periods apply only to the reimbursement of special costs and such periods are not shorter than six months;

–    Rights to salary (remuneration) are subject to a three-year limitation period, starting from the end of the year in which the right has become due and the beneficiary is aware of or ought to be aware of the right, or a limitation period of ten years runs;

–    national rights to salary (remuneration), which are not legally fixed in a timely manner, i.e. within the financial year for which it is sought, are to be asserted?

Does it affect the answer to question 3 if the legal position is unclear or confusing?

Is it sufficient for the commencement of an exclusion period if the disadvantaged category of persons is aware of the difference in treatment, or must the reason for the unequal treatment, i.e. the differentiation criterion, also be known?

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1 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).