At the age of 29, Mr Unland was appointed as a Judge in the Land Berlin region of Germany. His appointment was made under the old Federal Law on the remuneration of civil servants.
The old federal law decided the applicable pay level according to an individual’s age. According to the old federal law, if the judge is appointed after reaching the age of 35, basic pay is calculated according to a ‘reference age’, which, for the years up to the age of 35, corresponds to the person’s actual age, to which is added, for the years above 35, half the number of full years attained between the date on which the judge or prosecutor reached the age of 35 and the date of his appointment. Furthermore, judges who have not yet reached the age of 27 receive the initial basic pay for their grade until they reach the age required in order to progress through the age steps.
On 1 August 2011, Mr Unland’s post was reclassified under the new pay scales in accordance with the transitional Federal law.
Mr Unland applied to be remunerated retrospectively at the highest step in his pay grade. This was refused.
Mr Unland argued that not only the old Federal law on the remuneration of civil servants but also the new remuneration system were contrary to EU law. Mr Unland argued that the transitional federal law preserved the age discrimination of the old federal law. Mr Unland claimed payment for the difference in remuneration for the future and also retrospective payment in the form of arrears dating back to at least 2009.
Mr Unland brought a claim before the German labour court. Mr Unland claimed that he was discriminated against on the grounds of age as a result of the rule under which remuneration is geared to age. The German labour court referred the case to the ECJ.
The ECJ did not rule in Mr Unland’s favour.
The ECJ began by looking at the old federal law. The ECJ held that pay conditions for judges fell within article 3(1)(c) of the Framework Directive 2000/78/EC. The ECJ held that articles 2 and 6(1) precluded a provision of national law under which the basic pay of a judge was determined at the time of his appointment solely according to the judge’s age. The ECJ referred to the Specht decision which dealt with essentially the same question.
The ECJ then went on to assess the transitional federal law.
The ECJ acknowledged that, under the transitional federal law, different treatment of judges may be perpetuated. Existing judges are allocated to a particular pay step under the new system solely on the basis of the age band in which they fell under the old federal law.
The ECJ then considered whether the transitional federal law could be justified. It held that it could. The difference in treatment that it caused could be justified by the aim of protecting acquired rights and, as had already been found in Specht it was suited to achieving the aim pursued. It did not go beyond what was necessary to achieve the aim.
The ECJ did not accept Mr Unland’s argument that he should receive retrospective payment. Even if he were successful, any liability would not fall at the hands of Mr Unland’s employer but rather at the hands of the Federal Republic of Germany under a Francovich claim arising from the Government’s failure to implement the Framework Directive 2000/78/EC in time. The ECJ dealt with this issue very briefly.
Daniel Unland v Land Berlin, case C-20/13, 9 September 2015