The ECJ rule that an Austrian law which mandated lower pay for younger civil servants was not proportionate and therefore not justified under the Framework Directive.


Mr Hütter worked as a public servant and was subject to the Austrian laws governing the grading of public servants – the “VBG”. Under the VBG, entitlements are paid to public servants depending upon their length of service. Periods of time spent in apprenticeships or training are used in determining an employee’s grading and the incremental pay point they are put on, however any time spent working or training before the age of 18 does not count at all.

Mr Hütter was born in 1986. Together with a female colleague, he completed a period of apprenticeship, from 3 September 2001 to 2 March 2005, as a laboratory technician with TUG. Mr Hütter finished his apprenticeship and recruited to the TUG, but was recruited at a lower incremental pay point compared to the female colleague he trained and worked with. His female colleague was 22 months older than him, so a greater period of her apprenticeship was counted in determining her incremental pay point as more had been completed when she was over 18.

Mr Hütter brought a claim for the difference between what he was paid and what his colleague was. This amounted to €69.60.

Mr Hütter was successful at first instance, but TUG appealed and as an interim step in these proceedings sought clarification from the ECJ. The question referred to the ECJ was whether Articles 1, 2 and 6 of the Framework Directive 2000/78 could be understood as precluding national legislation which excludes accreditable previous service from being taken into account in the determination of the reference date for salary increments in so far as such service was completed before the person concerned reached the age of 18?

Mr Hütter argued that the VBG was discriminatory under Directive 2000/78 and, where professional experience is equal, there is no justification under Article 6(1) of Directive 2000/78 to support a difference in treatment based exclusively on age.

TUG argued that the VBG was justified as it pursues legitimate aims and is appropriate and necessary. The legitimate aims are:

  • to ensure that those who had pursued a general secondary education would not be treated less favourably than those who had pursued vocational qualifications; and,
  • to promote entry into the labour market for young people.


The ECJ held that, in principle, these aims did justify objectively and reasonably within the context of national law a difference in treatment on the ground of age. The court then went on to look at whether the VBG was an appropriate means of achieving these aims. In other words: was it proportionate?

In relation to the first aim, the court found that the VBG was not an appropriate way to achieve this because it refers to age. A rule which referred to the type of studies pursued would have been more appropriate.

In relation to the second aim, the ECJ found that again the VBG was not an appropriate means of pursuing the aim. The ECJ stated that the VBG does not single out a group of people defined by their youth. They said it cannot therefore be said to be a measure to promote the integration of youth workers into the workforce in the same way that, for example, a rule setting down minimum conditions of pay for younger workers would. As the VBG does not take into account people’s age when they are recruited, it is not an appropriate means of achieving the aim pursued.

The judgment is available here.

Hütter -v- Technische Universität Graz (C-88/08). Judgment of June 18, 2009.