Mr Felber, who was born in 1956, is a professor and has been a federal civil servant since 1991. Under Austrian law, only periods of training and study completed after the age of 18 were taken into account when considering pension rights.
Mr Felber had completed three years of education prior to the age of 18. These were not taken into account. Relying upon the decision in Hütter, Mr Felber brought a claim of age discrimination. He argued that the decision in Hütter in relation to remuneration should be applied to pension rights.
Mr Felber’s claim was referred to the ECJ.
The ECJ began by considering whether a retirement pension falls within the scope of the Framework Directive 2000/78/EC. The ECJ held that it did, because it fell within the definition contain of “pay” contained in Article 157(2) of the Treaty of the Functioning of the European Union (“TFEU”).
The ECJ then went on to consider whether the Austrian law caused a difference in treatment because of age. The ECJ held that it did because it creates a difference in treatment between persons based on the age at which they completed their school education.
The ECJ then determined whether the Austrian law could be objectively justified. The ECJ first looked at the aim of the Austrian law.
The ECJ referred to Specht and the broad discretion that member states enjoy in choice of aim. The ECJ found that the law had been introduced to harmonise the starting date for contributions to the pension scheme and, therefore, the maintenance of the pensionable age. It aimed to ensure that those who entered the civil service in other technical roles which required a higher level of education would not be treated differently to those roles which did not require additional higher education.
The ECJ held that this could be a legitimate aim, so went on to consider whether the Austrian law was an appropriate and necessary (i.e. proportionate) way of achieving that aim. The ECJ held that it was not.
The ECJ differentiated this case from Hütter. In this case, the Austrian law sought to take into account only periods of education completed in an intermediate or secondary school, rather than periods of employment as in Hütter.
The ECJ found it relevant that in order to take periods of study before the age of 18 into, a special contribution can be made by the employee to cover the time period. This special contribution fulfils a compensatory function because compulsory contributions could not be taken from salary. Because of this, the ECJ accordingly held that the Austrian law was objectively justified. It ruled against my Felber.
Georg Felber v Bundesministerin für Unterricht, Kunst und Kultur. Judgment of the Court (Second Chamber)  2 CMLR 39, Case-529/13, 21 January 2015