In these joined decisions, the ECJ has held that a term in a collective agreement which provides that the pay of a public sector employee is determined by reference to their age is unlawful.
Mr Mai was employed by Land of Berlin and Ms Hennigs was employed by Eisenbahn-Bundesamt, a German federal authority. Both were employed under a collective agreement, the “Bundes-Angestelltentarifvertrag” (or “BAT”).
The BAT determined the salary of public sector employees according to age categories. The BAT was replaced for federal employees in 2005 with the Tarifvertrag für den öffentlichen Dienst (“the TVöD”) and this removed the age categories, though it did this via a transitional scheme involving pay protection.
Mr Mai and Ms Hennigs both brought age discrimination claims against their employers in the in relation to the categories in the BAT. They both alleged that the categories were age discriminatory. Ms Hennigs also argued that the TVöD continued the discrimination of the BAT.
In Mr Mai’s case, the Bundesarbeitsgericht referred a single issue to the ECJ:
- whether rules on pay in a collective agreement for public sector employees which determine pay according to age infringe the Equal Treatment Framework Directive 2000/78 (the “Directive”)?
Additional questions were referred to the ECJ in Ms Hennigs’s case, including:
- whether age discrimination is justified by the fact that preserving established social rights is a legitimate aim and temporarily continuing to treat employees differently under transitional rules is an appropriate and necessary means of achieving that aim if that difference of treatment is gradually phased out and the only alternative would be to reduce the pay of older employees?
The ECJ first looked at whether the BAT was age discriminatory. It assessed whether the BAT created a difference in treatment on grounds of age and, having quickly found that it did, the ECJ moved onto justification.
The German government had suggested that the BAT could potentially be justified as it aimed to take into account employees’ professional experience when remunerating employees. The ECJ said that although this was a legitimate aim, the BAT went beyond what was necessary and appropriate, and therefore ruled that it constituted unlawful age discrimination.
The ECJ then looked at the TVöD and transitional measures. It found that both perpetuated the discrimination of the BAT and caused a difference in treatment on grounds of age. However, the ECJ held that the TVöD and transitional measures pursued a legitimate aim – maintaining employees pay (see Commission v Germany C-456/05). The ECJ held that the transitional measures were not unreasonable, were appropriate to avoid existing employees losing income, and did not go beyond what is necessary to achieve the aim pursued. Weight was also given to the fact that the effect of the measures was temporary; future pay would not be age related and would progress in line with the TVöD.
Hennigs (Social policy)  EUECJ C-298/10 (08 September 2011)