The German Federal Law on Remuneration of Civil Servants set the pay of both federal civil servants until 30 June 2009 and Land Berlin civil servants until 31 July 2011. Salary was calculated by reference to several factors including age. This system was amended so that salary was calculated by reference to experience, though existing civil servants’ salaries were calculated with reference to the pay they had attained through the old system.
Mr Specht and others claimed that they had been discriminated against on account of their age. They argued that the old system was direct age discrimination and that the new system perpetuated the discrimination of the old system.
The ECJ decision
The ECJ’s decision was in two parts. It first assessed whether the old remuneration system (where pay was determined according to age) was discriminatory, before assessing the current remuneration system (where pay was determined by length of service).
The ECJ said that the old remuneration system did give rise to a difference in treatment based on age. The ECJ said it this was direct age discrimination. The German Government argued that this was justified. It stated that its aim was to reward previous professional experience in a standard manner, whilst guaranteeing a uniform administrative practice. The ECJ accepted that aim, but held that determining pay by age went beyond what was necessary for achieving it.
The ECJ then looked at the new system. The ECJ found that the new system perpetuated the discrimination of the old system.
The ECJ noted the established position that protection of the acquired rights of persons is an overriding reason in the public interest. In this case, civil servants had acquired salary rights through the old system. Although these rights came from an age discriminatory system, any new law which did not uphold these rights would have been met with strong opposition from trade unions. The preservation of the existing pay was therefore crucial in enabling the transition.
The ECJ held this to be a legitimate aim. The ECJ looked at whether the new system was a proportionate means of achieving the aim. The ECJ held that it was. It did not go beyond what is necessary. The reform, in the context of Land Berlin’s high indebtedness and budgetary consolidation, had to be made at neutral cost, and without excessive use of administrative resources (that is, without case by case consideration). Notwithstanding the fact that the new system was based on existing discriminatory pay levels, it was justified.
Specht and others v Land Berlin and others, 19 June 2014, cases C-501/14 to C-506/12