Case C-501/12, Specht – comprehensively prohibiting unjustified age discrimination [judgment 2014, ECLI:EU:C:2014:2005]

Does the EU’s Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, and which bans age discrimination, apply to Berlin’s civil servants? And if there was age discrimination in this case, then does the employee have the right to backpay or compensation?

Facts
Mr Specht became a German civil servant in 1995. As a civil servant, his seniority pay was determined from the day he turned 21. However, the effect of the seniority rule across the workforce meant that a civil servant who started a particular job at the same time as another civil servant could be paid differently – older employees would receive a higher salary.

In 2010, Mr Specht requested his employer to increase his salary in order to reflect two circumstances. First, he believed that his remuneration should increase to the maximum spinal point on the pay column. Second, he said this higher rate of pay should have been paid for the last four years, and so he claimed backpay. Both circumstances and consequences flowed from the age discrimination inherent in the way his pay had been calculated.

His employer, the Berlin police force, rejected Mr Specht’s request. The claimant’s pay complied with German law.

After various appeals, Mr Specht took his case to the administrative court in Berlin, the Verwaltungsgericht. He cited a raft of case law including the 2011 judgments of the CJEU in Case C-297/10 Sabine Hennigs and C-298/10 Alexander Mai.

His employer stated that the EU’s Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, did not have direct effect and did not apply to civil servants so the claimant could not rely on it. The Directive had been implemented into the German Equality Code. There was no discrimination: the criterion of seniority was only a permitted factor when calculating the overall package.

If in so far there could be said to be a difference in treatment on the basis of age, then that would be justified because the remuneration rules pursued a legitimate aim and they were objectively appropriate. That is to say, the tradition of working out basic salary according to tables was premised on the belief that the longer an employee worked, the better an employee performed. Furthermore, it was a recognised part of the employer’s duty to maintain its employees that an employee’s increased age entailed increased needs relating to the quality of life and life’s comforts.

Back pay was out of the question. The mutual duty of loyalty, which is inherent in the labour relationship between a civil servant and their employer, precluded the employee from asking for compensation for past injustices and it did not matter that the principles at stake were equivalence or the effectiveness of EU law.

Questions Referred
According to the Curia website, the Verwaltungsgericht Berlin has asked:

1. Is European primary and/or secondary law, here in particular Directive 2000/78/EC, to be interpreted as a comprehensive prohibition of unjustified age discrimination, such that it also covers national rules on the remuneration of Land civil servants?

2. If Question 1 is answered in the affirmative: does the interpretation of this European primary and/or secondary law mean that a national provision under which the level of the basic pay of a civil servant on establishment of the status of civil servant is substantially dependent on his age and also, in particular, rises according to the duration of civil servant status constitutes direct or indirect age discrimination?

3. If Question 2 is also answered in the affirmative: does the interpretation of this European primary and/or secondary law preclude the justification of such a national provision by the legislative aim of making payment for professional experience?

4. If Question 3 is also answered in the affirmative: does the interpretation of European primary and/or secondary law, where a non-discriminatory right to remuneration has not been implemented, permit a legal consequence other than retrospective remuneration of those discriminated against at the highest pay step in their pay grade?

5. Does the legal consequence of infringement of the prohibition of discrimination in that case follow from European primary and/or secondary law itself, here in particular Directive 2000/78/EC, or does the claim follow only from the point of view of failure to implement the rules of European law in accordance with the claim to State liability under European Union law?

6. Does the interpretation of European primary and/or secondary law preclude a national measure which makes the claim to (retrospective) payment or compensation dependent on the civil servants’ having enforced that claim in good time?

7. If Questions 1 to 3 are answered in the affirmative: does it follow from the interpretation of European primary and/or secondary law that a transitional law – under which existing civil servants are placed on a step of the new system solely according to the amount of the basic pay they attained under the old (discriminatory) law on remuneration on the transition date, and according to which further progression to higher steps is thereupon calculated solely according to the periods of experience attained since the entry into force of the transitional law, irrespective of the civil servant’s absolute period of experience – constitutes a perpetuation of the existing age discrimination, continuing until the highest pay step is reached in each case?

8. If Question 6 is also answered in the affirmative: does the interpretation of European primary and/or secondary law preclude a justification of this unrestricted, continuing unequal treatment by the legislative aim whereby the transitional law is to protect not (only) the acquired rights existing on the transition date but (also) the expectation of the lifetime income in the respective pay grade that was forecast to be paid under the old law on remuneration?

9. Can the continuing discrimination against existing civil servants be justified by the fact that the regulatory alternative (individual placement also of existing civil servants according to periods of experience) would involve increased administrative expenditure?

10. If such justification is rejected in Question 7: does the interpretation of European primary and/or secondary law, until a non-discriminatory right to remuneration has been implemented also for existing civil servants, permit a legal consequence other than retrospective and continuing remuneration of existing civil servants at the highest pay step in their pay grade?

11. Does the legal consequence of infringement of the prohibition of discrimination in that case follow from European primary and/or secondary law itself, here in particular Directive 2000/78/EC, or does the claim follow only from the point of view of failure to implement the rules of European law in accordance with the claim to State liability under European Union law?