Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 23 July 2013 – ÖBB Personenverkehr AG v Gotthard Starjakob

(Case C-417/13)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Defendant and appellant on a point of law: ÖBB Personenverkehr AG

Applicant and respondent in the appeal on a point of law: Gotthard Starjakob

Questions referred

Is Article 21 of the Charter of Fundamental Rights, in conjunction with Articles 7(1), 16 and 17 of Directive 2000/78/EC, ¹ to be interpreted as meaning:

(a)    that an employee for whom the employer initially sets an incorrect increment reference date based on an age-discriminatory accreditation of previous periods of service as prescribed by law is in any event entitled to payment of the difference in salary based on the non-discriminatory increment reference date,

(b)    or that the Member State has the option of eliminating the age-based discrimination by way of a non-discriminatory accreditation of previous periods of service even without financial compensation (by setting a new increment reference date and at the same time extending the period for advancement to the next salary step), in particular where such a solution, having a neutral effect on pay, is intended to preserve the employer’s liquidity and avoid unreasonable expense resulting from recalculation?

If Question 1(b) is answered in the affirmative:

May the legislature:

(a)    also introduce such non-discriminatory accreditation of previous periods of service retroactively (specifically by way of the promulgated Law of 27 December 2011, BGBl I 2011/129, retroactive as from 1 January 2004) or

(b)    does such accreditation take effect only from the point in time at which the new accreditation and incremental advancement rules are enacted or promulgated?

If Question 1(b) is answered in the affirmative:

Is Article 21 of the Charter of Fundamental Rights, in conjunction with Article 2(1) and (2) and Article 6(1) of Directive 2000/78/EC, to be interpreted as meaning:

(a)    that a legislative rule which provides for a longer period for incremental advancement for employment at the start of a career, thereby making it more difficult to advance to the next salary step, constitutes an indirect difference in treatment based on age,

(b)    and, if such is the case, that such a rule is appropriate and necessary in the light of the limited professional experience at the start of a career?

If Question 1(b) is answered in the affirmative:

Are Article 7(1) and Article 8(1), in conjunction with Article 6(1), of Directive 2000/78/EC to be interpreted as meaning that the maintenance of an old, age-discriminatory rule simply in order to protect an employee from being disadvantaged in terms of income by a new, non-discriminatory rule (salary safeguard clause) is permissible and justified in order to preserve existing rights and legitimate expectations?

If Question 1(b) and Question 3(b) are answered in the affirmative:

(a)    May the legislature provide that the employee has a duty (or obligation) to cooperate for the purpose of establishing the accreditable previous periods of service and make transfer to the new accreditation and incremental advancement system dependent on fulfilment of that obligation?

(b)    Can an employee who fails to cooperate as may reasonably be expected in setting the new increment reference date under the new, non-discriminatory accreditation and incremental advancement system, and who therefore deliberately does not avail himself of the non-discriminatory rule (remaining of his own volition under the old, age-discriminatory accreditation and advancement system), invoke age discrimination under the old system, or does his remaining under the old, discriminatory system simply in order to be able to bring monetary claims constitute an abuse of rights?

If Question 1(a) or Questions 1(b) and 2(b) are answered in the affirmative:

Does the EU-law principle of effectiveness under the first paragraph of Article 47 of the Charter of Fundamental Rights und Article 19(1) TEU require that the period of limitation for claims founded in EU law cannot start to run until the legal position has been conclusively clarified by the pronouncement of a relevant decision by the Court of Justice of the European Union?

If Question 1(a) or Questions 1(b) and 2(b) are answered in the affirmative:

Does the EU-law principle of equivalence require that a restriction, provided for in national law, of the period of limitation for bringing claims under a new accreditation and incremental advancement system (Paragraph 53a(5) of the Bundesbahngesetz (Austrian Law on Federal Railways)) must be extended to claims for differences in pay resulting from an old system involving age discrimination?

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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).