BF v Versicherungsanstalt öffentlich Bediensteter, Eisenbahnen und Bergbau (BVAEB).

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:309
• Date: 20 April 2023
• Docket Number: C-52/22
• Celex Number: 62022CJ0052
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Seventh Chamber)

20 April 2023 (*)

(Reference for a preliminary ruling – Social policy – Equal treatment in employment and occupation – Directive 2000/78/EC – Prohibition of discrimination on grounds of age – Article 2(1) and (2)(a) – Article 6(1) – Retirement pension – National legislation providing for a gradual alignment of the pension scheme for civil servants with the general pension scheme – First adjustment of the amount of the pension being made more quickly for one category of civil servants than for another – Justification)

In Case C‑52/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesverwaltungsgericht (Federal Administrative Court, Austria), made by decision of 17 January 2022, received at the Court on 26 January 2022, in the proceedings

BF

v

Versicherungsanstalt öffentlich Bediensteter, Eisenbahnen und Bergbau (BVAEB),

THE COURT (Seventh Chamber),

composed of M.L. Arastey Sahún (Rapporteur), President of the Chamber, N. Wahl and J. Passer, Judges,

Advocate General: T. Ćapeta,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– BF, by M. Riedl, Rechtsanwalt,

– the Austrian Government, by A. Posch, J. Schmoll and F. Werni, acting as Agents,

– the European Commission, by B.‑R. Killmann and D. Martin, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 2(1) and (2)(a) and Article 6(1) of 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), and of the principles of legal certainty, maintenance of established rights and effectiveness of EU law.

2 The request has been made in proceedings between BF and the Versicherungsanstalt öffentlich Bediensteter, Eisenbahnen und Bergbau (BVAEB) (Insurance fund for civil servants and officials of the public authorities, the railways and the mining sector, Austria) concerning the amount of BF’s retirement pension.

Legal context

European Union law

3 Article 1 of Directive 2000/78, headed ‘Purpose’, provides:

‘The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.’

4 Article 2 of that directive, headed ‘Concept of discrimination’, provides:

‘1. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.

2. For the purposes of paragraph 1:

(a) 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;

(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:

(i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, …

…’

5 Article 3 of that directive, headed ‘Scope’, states, in paragraph 1(c):

‘Within the limits of the areas of competence conferred on the [European] Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:

…

(c) employment and working conditions, including dismissals and pay;

…’

6 As provided in Article 6 of the directive, headed ‘Justification of differences of treatment on grounds of age’:

‘1. 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.

…

2. Notwithstanding Article 2(2), Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.’

7 Article 9 of Directive 2000/78, headed ‘Defence of rights’, provides, in paragraph 1:

‘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.’

Austrian law

8 The Pensionsharmonisierungsgesetz (Law on the harmonisation of pensions) of 15 December 2004 (BGBl. I, 142/2004) introduced the Allgemeines Pensionsgesetz (General Law on pensions; ‘the APG’), which entered into force on 1 January 2005, providing for a new uniform pension scheme for anyone born after 1 January 1955, including, in principle, federal civil servants.

9 Before the entry into force of the APG, federal civil servants were exclusively covered by the pension schemes of the Bundesgesetz über die Pensionsansprüche der Bundesbeamten, ihrer Hinterbliebenen und Angehörigen (Pensionsgesetz 1965) (Federal Law on the pension rights of federal civil servants, their survivors and members of their families (Law on pensions 1965)) of 18 November 1965 (BGBl. 340/1965; ‘the PG 1965’).

10 Paragraph 41 of the PG 1965, as amended by the Law of 15 December 2020 (BGBl. I, 135/2020) (‘the PG 2020’), was worded as follows:

‘1. Amendments to this Federal Law which do not alter the amount of the benefits under this Federal Law or the conditions for entitlement to such benefits shall also apply to persons who, on the date of its entry into force, are entitled to monthly cash payments under this Federal Law. Amendments to the rules of calculation or the conditions for entitlement to benefits shall not apply to persons who, on the date of its entry into force, are entitled to benefits under this Federal Law unless expressly provided for.

2. Retirement pensions and survivors’ pensions payable under this Federal Law, with the exception of the supplementary premium under Paragraph 26, shall be adjusted at the same time and in the same proportion as pensions covered by the statutory pension insurance scheme, where

(1) the pension entitlement has already been established prior to 1 January of the year in question, or

(2) they are derived from retirement pensions to which an entitlement was established prior to 1 January of the year in question.

By way of derogation from the first sentence, the first adjustment of a retirement pension shall be made with effect only from 1 January of the second calendar year following the commencement of entitlement to the retirement pension.

…

7. The pension adjustment procedure provided for in Paragraph 744(1) and (2) of the [Allgemeines Sozialversicherungsgesetz (General Law on social security) of 9 September 1955 (BGBl. 189/1955; ‘the ASVG’)] for the 2021 calendar year shall apply by analogy, it being understood that a person’s total pension income includes the sum of all retirement and survivors’ pensions payable in December 2020

– under this Federal Law on the basis of a public-law employment relationship with the Federal State,

– …

and subject to the adjustment of pensions on 1 January 2021. When adjusting the pensions of civil servants of the Länder to which this Federal Law applies, no total pension income shall be established. In the event of an increase pursuant to Paragraph 744(1)(4) of the ASVG, the total amount of the increase shall be applied in full to the retirement or survivor’s pension. Where a person receives two or more retirement or survivors’ pensions, Paragraph 744(3) of the ASVG shall apply mutatis mutandis.’

11 Paragraph 41 of the PG 1965, as amended by the Pensionsanpassungsgesetz 2022 (2022 Law on the adjustment of pensions) of 13 December 2021 (BGBl. I, 210/2021) (‘the PG 2022’), provides:

‘1. Amendments to this Federal Law which do not alter the amount of the benefits under this Federal Law or the conditions for entitlement to such benefits shall also apply to persons who, on the date of its entry into force, are entitled to monthly cash payments under this Federal Law. Amendments to the rules of calculation or the conditions for entitlement to benefits shall not apply to persons who, on the date of its entry into force, are entitled to benefits under this Federal Law unless expressly provided for.

2. Retirement pensions and survivors’ pensions payable under this Federal Law, with the exception of the supplementary premium under Paragraph 26, shall be adjusted at the same time and in the same proportion as pensions covered by the statutory pension insurance scheme, where

(1) the pension entitlement has already been established prior to 1 January of the year in question, or

(2) they are derived from retirement pensions to which an entitlement was established prior to 1 January of the year in question.

By way of...