The disputes in the main proceedings and the questions referred for a preliminary ruling.
Compilations
The facts of the various cases before the referring court, joined before the Court, are similar or even the same. They can be summarised as follows. They were all recruited under the old version of the BbesG and initially remunerated on the basis of that Law, before being reclassified in accordance with the new remuneration system applicable in each case.
By means of an administrative complaint, the applicants in the main proceedings challenged the method of calculating their pay, arguing that, as that method took account of their age, they are or have been discriminated against on grounds of age. As that complaint was unsuccessful, they brought proceedings before the Verwaltungsgericht Berlin Administrative Court of Berlin.
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In that regard, they claim in particular that they should be paid, with retrospective effect, the difference between, on the one hand, the remuneration that they would have received if they had been allocated the highest pay step in their function grade and, on the other, the remuneration actually received. If Question 1 is answered in the affirmative: If Question 2 is answered in the affirmative: If Question 3 is answered in the affirmative: If Question 6 is answered in the affirmative: Can the perpetuation of discrimination against [established] civil servants be justified by the fact that the alternative approach consisting in the individual reclassification of [established] civil servants on the basis of their experience would be relatively expensive to implement in administrative terms?
In the event that the Court rejects the reasons suggested as justification in Question 7: Consideration of the questions referred. In the case of the German civil service, the amount of pay for each grade and step is determined by the competent national courts and the European Union has no competence in that regard. Seniority is calculated from the first day of the month in which the civil servant reached the age of That starting point differs by the effect of taking account of a period calculated according to the length of time, after reaching the age of 31, during which the person concerned had no claim to remuneration as a civil servant, that is to say, it is deferred by one quarter of that length of time until the person reaches the age of 35 and by one half thereafter.
The civil servant receives at least the initial basic pay for the grade allocated to him. Subsequent step progression depends on length of service and on performance. Basic pay rises at intervals of two years up to the fifth pay step, then at intervals of three years up to the ninth step and at intervals of four years thereafter. Civil servants who stand out because of consistent and sustainable exceptional performance may be allocated in advance the basic pay corresponding to the next step. It follows that those two civil servants are in a comparable situation, but that one of them receives less by way of basic pay than the other.
In that regard, the Court has held that, as a general rule, the aim of rewarding experience that enables a worker to perform his duties better is a legitimate aim of wages policy Hennigs and Mai , EU: In that connection, the Court has accepted that, as a general rule, recourse to the criterion of length of service is an appropriate means of achieving that aim, since length of service goes hand in hand with professional experience.
Although the measure at issue in the main proceedings enables a civil servant to move up the steps of his grade as his age advances and his length of service accordingly increases, it is clear that, at the time of appointment, the sole criterion on the basis of which a particular step in a particular grade is initially allocated to a person with no professional experience is age see, to that effect, Hennigs and Mai , EU: The referring court seeks to ascertain whether the effect of such legislation is to perpetuate discrimination on grounds of age and, if so, whether that may be justified by the aim of protecting the acquired rights and the legitimate expectations of civil servants as to the future progression of their remuneration.
It should be borne in mind that, as is clear from the orders for reference, the old version of the BbesG was superseded in Land Berlin by the new Law on the remuneration of Land Berlin civil servants and the Law establishing the Land Berlin transitional system. He is to be allocated the step or transitional step that corresponds to the amount received by way of basic pay, rounded up to the next unit.
Accordingly, by determining the basic pay on the basis of the pay previously received by established civil servants, which depended on seniority, the scheme put in place by the Law establishing the Land Berlin transitional system perpetuated a discriminatory situation whereby some civil servants receive lower pay than other civil servants, even though they are in comparable situations, solely on account of their age at the time of appointment see, by analogy, Hennigs and Mai , EU: That difference in treatment is liable to be perpetuated by the new Law on the remuneration of Land Berlin civil servants, since the definitive reclassification of established civil servants took place on the basis of the step or of the transitional step allocated to each civil servant see, by analogy, Hennigs and Mai , EU: According to the orders for reference and the observations of the German Government, the Law establishing the Land Berlin transitional system pursues the aim of protecting the acquired rights and the legitimate expectations of civil servants as to the future progression of their remuneration.
The German Government argues in particular that, as part of the participation procedure related to the adoption of the Law reforming the remuneration of Land Berlin civil servants, the unions insisted on the preservation of acquired rights and demanded supplementary provisions to guarantee this. According to the German Government, a draft law that would not have ensured the preservation of those rights would have met with opposition from unions, which would have seriously compromised its prospects of adoption.
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As regards, next, the appropriateness of the Law establishing the Land Berlin transitional system, it should be observed that the German Government has argued that the old version of the BbesG was, for most established civil servants, given the typical career paths of that time, more favourable than the new Law on the remuneration of Land Berlin civil servants.
A law such as the Law establishing the Land Berlin transitional system thus appears suited to achieving the aim pursued, that is to say, to ensure the preservation of acquired rights. Lastly, it remains necessary to determine whether or not such a law goes beyond what is necessary to achieve that aim. The referring court notes in this respect that it would have been preferable either to apply the new scheme retroactively to all established civil servants or to apply a transitional system guaranteeing an established civil servant and in a favoured position the same level of pay as he received previously until he has gained the experience required to qualify for higher pay under the new scheme.
As regards, in the first place, the context in which the Law establishing the Land Berlin transitional system was adopted, it should be noted that, according to the requests for a preliminary ruling, even before the judgment in Hennigs and Mai EU: The allocation of steps or transitional steps to those civil servants was immediate and, following their definitive reclassification under the new Law on the remuneration of Land Berlin civil servants, their pay progression depends exclusively on the criteria specified in that law, that is to say, on professional experience and on performance, which means that age is no longer a factor.
Moreover, owing to the high number of civil servants to be reclassified, the transition to the new system had to take place without excessive use of administrative resources, that is to say, as far as possible, without requiring case-by-case consideration. It would therefore have been necessary, depending on the circumstances, either wholly to discount such periods or to recognise them without proof, which, depending on the case, would have either penalised the civil servants outright or afforded them an outright advantage.
That would have led in turn to an outcome that was arbitrary and, as such, unacceptable.
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That finding is necessary in view of the particularly high number of civil servants, the length of the period concerned, the diversity of their respective backgrounds and the difficulties that may have arisen in connection with the determination of earlier periods of activity that those civil servants could validly have claimed. It can therefore be accepted that the method entailing examination of the individual case of each established civil servant would have been excessively complex and would have involved a high risk of error.
In those circumstances, it must be held that the domestic legislature did not exceed the limits of its discretion by taking the view that it was neither realistic nor desirable to apply the new classification system retroactively to all established civil servants or to apply a transitional system guaranteeing an established civil servant and in a favoured position the same level of pay as he received previously until he has gained the experience required to qualify for higher pay under the new scheme.
It has also been argued before the Court that the difference in remuneration is contained owing to the limits, specific to German civil service law, placed on the age at which civil servants can be appointed. It accordingly emerges from the observations of the German Government that, in the cases before the referring court, an age limit of 35 years applied and that, accordingly, any disparities in pay would not be as wide as the difference between the first and the last step in a grade.
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Moreover, although it can be seen from the orders for reference that the effect of the Law establishing the Land Berlin transitional system is that the difference in remuneration is maintained at almost the same level until the established civil servants reach the highest step in their respective grades, those orders for reference nevertheless do not contain more precise or specific information in that regard.
According to the German Government, reducing the number of steps and reallocating civil servants a step corresponding to the previous basic salary, rounded up to the next unit, would have the effect that the difference in pay would diminish, and, in some cases, fade away after a few years. In view of the information provided in the orders for reference and in the documents produced before the Court, such a possibility cannot be discounted.
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In those circumstances, it does not appear that, by adopting the transitional derogation measures put in place by the Law establishing the Land Berlin transitional system, the domestic legislature went beyond what was necessary to achieve the aim pursued. By its fourth question, the referring court asks the Court about the legal implications in the event that the old version of the BbesG is in breach of the principle of non-discrimination on grounds of age.
The referring court also notes that, by applying the interpretative methods recognised under German law, it is unable to close the gap created by the non-application of national provisions that are contrary to the principle of non-discrimination. That court also notes that, unlike the situation in the case that gave rise to the judgment in Hennigs and Mai EU: In addition, it is not possible for the referring court to allocate a lower step retroactively to the oldest civil servants because of considerations relating to the protection of legitimate expectations and acquired rights.
In the second place, as regards Terhoeve EU: The Court also stated, in the context of those cases, that the arrangements applicable to members of the favoured group remained, for want of the correct application of EU law, the only valid point of reference. It should be noted that that approach is intended to apply only if there is such a valid point of reference. However, it should be noted that there is no such valid point of reference in the context of legislation such as that at issue in the main proceedings, under which it is not possible to identify a category of favoured civil servants.
In the third place, it should be borne in mind that, according to settled case-law, the principle of State liability for loss and damage caused to individuals as a result of infringements of EU law for which the State can be held responsible is inherent in the system of the treaties on which the European Union is based see, to that effect, Francovich and Others , EU: In that connection, the Court has held that the individuals harmed have a right to reparation where three conditions are met: Global website Practices Sectors.
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