As long as the Austrian legislature fails to take measures to re-establish equal treatment with
regard to taking into consideration professional experience acquired before the age of 18, persons
treated unfavourably by the old system are entitled to obtain the same advantages as their
colleagues who are treated favourably by that system and in particular the payment of compensation In Austria, the systems of remuneration and advancement applicable to State officials and
contractual public servants initially excluded the taking into account of professional experience
acquired before the age of 18. Following the finding made by the Court of Justice that such an
exclusion constitutes unjustified discrimination on grounds of age, the Austrian legislator carried
out a first review of those systems in 2010 which however failed to remove their discriminatory
character.
The systems at issue were again reviewed, in 2015 and in 2016, in order to put an end to that
discrimination. That new review provides retroactively that officials and contractual public servants
in service are to be transitioned to a new system of remuneration and advancement in the context
of which their first grading is determined according to their final remuneration received under the
previous system.
The Oberster Gerichtshof (Supreme Court, Austria), ruling on an action brought by the
Österreichischer Gewerkschaftsbund, Gewerkschaft Öffentlicher Dienst (Austrian Confederation of
Trade Unions, Public Service Union), and the Bundesverwaltungsgericht (Federal
Administrative Court, Austria), ruling on an action brought by a policeman, Mr Leitner, ask the
Court of Justice in particular whether those new systems remain contrary to EU law
.
By today’s judgments, the Court replies in the affirmative.
According to the Court, the new systems maintain a difference in treatment between persons
treated unfavourably by the old system (namely, those whose experience was, at least partially,
acquired before the age of 18) and persons treated favourably by that system (those who obtained,
after reaching that age, experience of the same type and of a comparable duration), since the
amount of remuneration received by the former is lower than that paid to the latter solely on
grounds of their age on the date of their recruitment, although they are in comparable situations.
Given that that difference in treatment on grounds of age remains under the new systems, not for a
transitional period but definitively, it cannot be justified by the legitimate objective of respecting
acquired rights and protecting legitimate expectations. It can also not be justified by budgetary or
administrative considerations.
The Court holds therefore that the new systems are not suitable for the purpose of eliminating
all discrimination for officials and contractual public servants who are treated unfavourably
by the old systems of remuneration and advancement. On the contrary, they maintain with
respect to those persons discrimination on grounds of age.
The Court consequently replies to the Oberster Gerichtshof and to the Bundesverwaltungsgericht
that the prohibition of discrimination on grounds of age precludes national legislation, such as that
at issue, which has retroactive effect and which, in order to put an end to discrimination on grounds
of age, provides for a transition of officials or contractual public servants in service to a new system
of remuneration and advancement in the context of which their first grading is determined
according to their final remuneration received under the previous system.
The Court notes that, in the event that national legislation cannot be interpreted in conformity with
the anti-discrimination directive, the national court is required to guarantee the legal protection
resulting for the individuals from that directive and to ensure the full effect thereof, where
necessary by disapplying any incompatible national provision.
Therefore, since discrimination, contrary to EU law, has been established and as long as
measures to re-establish equal treatment have not been adopted, the re-establishment of
equal treatment, in cases such as those at issue, involves granting officials and contractual
public servants who are treated unfavourably by the old systems the same advantages as
those enjoyed by the officials and contractual public servants treated favourably by those
systems, as regards both the taking into account of periods of service completed before the age of
18 and advancement in the remuneration scale.
It follows also that an official or contractual public servant who is discriminated against is
entitled to receive the payment, by his employer, of financial compensation amounting to
the difference between the amount of remuneration he should have received if he had not
been treated in a discriminatory way and the amount of remuneration he actually received.
The Oberster Gerichtshof also questioned the Court concerning the compatibility of the
new rules on taking into account the professional experience of State contractual public
servants with the free movement of workers. According to the new system, in order to
determine the seniority of a contractual public servant in the remuneration scale, it is necessary to
take into account in their entirety previous periods of activity completed in the context of an
employment relationship with a local authority or municipal association of a Member State of the
European Economic Area, Turkey or Switzerland, with an organisation of the EU or an
intergovernmental organisation of which Austria is a member, or with any similar body. By contrast,
any other previous period of activity is taken into account only up to 10 years and in so far as it is
relevant.
According to the Court, EU law precludes such legislation.
It is likely to dissuade migrant workers who have acquired or who are in the process of acquiring
relevant professional experience of more than 10 years with other employers, from exercising their
right to free movement, without that hindrance to the free movement of workers being justified.
Such legislation is not suitable for achieving the legitimate objective of rewarding experience
acquired in the field concerned, which allows the worker to better perform the tasks conferred on
him, given that it takes relevant experience into account only to a limited extent. It is also not
suitable for realising the objective of encouraging workers’ loyalty, since, in light of the large number of employers to be fully taken into account, it is designed to allow maximum mobility within
a group of legally distinct employers and not to reward the loyalty of an employee to a particular employer.
Source: https://curia.europa.eu
