Pay and promotions for civil servants in Austria were determined according to a specific reference period set by Austrian law. The length of the reference period was set by taking prior service into account. Various periods of service and other specific times were taken into account, but any service that took place before 18 years of age was ignored.

After the ECJ’s decision in Hütter, the Austrian law was changed with retroactive effect. All periods worked prior to the age of 18 were taken into account. However, a very large number would potentially be affected by this change so the Austrian Government made further changes in order to mitigate the financial impact. A three year extension of the reference period required to progress from the first to second incremental step in each job category was brought in.

Those who had not suffered discrimination under the previous system could continue to be paid according to that. Those who felt that they had suffered discrimination under the previous system could make an application to switch to the new system. For these people, service before 18 would now be taken into account, but the effect of the additional three year extension meant that they would be no better off.

Mr Schmitzer worked as a civil servant at the Bundesministerin für Inneres (Austrian Federal Ministry of the Interior, “BfI”). He had service before 18. Mr Schmitzer brought a claim in the Austrian courts. He claimed that the new amended law was contrary to the Framework Directive 2000/78/EC as it ingrained the effect of the original law. The Austrian court made a reference to the ECJ.


The ECJ was asked to rule whether the legislative amendment which introduced the new non-discriminatory method of determining the reference date to be taken into account for the advancement of civil servants may, concurrently, provide for an extension of the periods which must be completed in order to move from one incremental step to the next.

The ECJ held that the changes to the system ingrained age discrimination rather than abolished it, by treating people who gained experience before 18 at a disadvantage.

The ECJ went on to consider whether this difference in treatment could be justified. The ECJ looked at the legitimate aims of the amended law. The Austrian government stated the amendment was “motivated by budgetary consideration”. The ECJ referred to Fuchs, and stated that Framework Directive 2000/78/EC does not preclude a Member State from taking budgetary constraints into account.

The ECJ reiterated the established position that, whilst budgetary considerations may underpin the chosen social policy of a Member State and influence the nature or extent of the measures that that Member State wishes to adopt, costs alone cannot in themselves constitute a legitimate aim within the meaning of Article 6 and must be accompanied by political, social or demographic objectives.

However, the ECJ held that these objectives cannot justify a measure that maintains indefinitely an age-based difference in treatment that it was designed to eliminate. For this reason, it could not be objectively justified as being appropriate and necessary (i.e. a proportionate means of achieving a legitimate aim).

The ECJ held further that it did not matter that the discriminatory reference date was fixed at the request of Mr Schmitzer. This did not affect the ECJ’s decision that the amended law was unlawful age discrimination.

The judgment is available here.

Leopold Schmitzer v Bundesministerin für Inneres, 11 November 2014, Case C-530/13