Judgment of the Court (Ninth Chamber) of 5 March 2026

Uitspraak

Provisional text

JUDGMENT OF THE COURT (Ninth Chamber)

5 March 2026 (^*)

( Reference for a preliminary ruling – Social policy – Equal treatment in employment and occupation – Directive 2000/78/EC – Prohibition of discrimination on grounds of age – Regional legislation on the remuneration of contract staff members – Periods of employment completed before the age of 18 taken into account – New remuneration system replacing previous legislation found to be discriminatory )

In Case C‑757/24,

REQUEST for a preliminary ruling under Article 267 TFEU from the Arbeits- und Sozialgericht Wien (Labour and Social Court, Vienna, Austria), made by decision of 12 September 2024, received at the Court on 4 November 2024, in the proceedings

SG

v

Gemeinde Wien,

THE COURT (Ninth Chamber),

composed of M. Condinanzi, President of the Chamber, R. Frendo and A. Kornezov (Rapporteur), Judges,

Advocate General: R. Norkus,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        SG, by A. Obereder, Rechtsanwalt,

–        the Gemeinde Wien, by C. Gamauf, Rechtsanwalt,

–        the Austrian Government, by A. Posch, J. Schmoll and C. Leeb, acting as Agents,

–        the European Commission, by B.-R. Killmann and E. Schmidt, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Articles 1, 2 and 6 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16), read in conjunction with Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2        The request has been made in proceedings between SG (‘the applicant’) and the Gemeinde Wien (Municipality of Vienna, Austria) concerning the determination of the reference date for SG’s advancement in the remuneration scale applicable to the Municipality of Vienna.

 Legal context

 European Union law

3        Article 1 of Directive 2000/78, entitled ‘Purpose’, provides:

‘The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.’

4        Article 2 of that directive, entitled ‘Concept of discrimination’, provides:

‘1.      For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.

2.      For the purposes of paragraph 1:

(a)      direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;

(b)      indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:

(i)      that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, …

…’

5        Article 3 of that directive, entitled ‘Scope’, provides, in paragraph 1(c) thereof:

‘Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:

…

(c)      employment and working conditions, including dismissals and pay’.

6        Article 6 of that directive, entitled ‘Justification of differences of treatment on grounds of age’, is worded as follows:

‘1.      Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.

…

2.      Notwithstanding Article 2(2), Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.’

 Austrian law

 The BO 1994

7        Paragraph 49v of the Besoldungsordnung 1994 (Law on remuneration 1994) (LGBl. No 55/1995; ‘the BO 1994’), in the version published in LGBl. No 38/2023, entitled ‘Comparison reference date’, provides:

‘(1)      The comparison reference date shall be calculated in such a way that previous periods which were to be accredited as preceding the date of recruitment when calculating the advancement reference date or which should have been accredited as such by disregarding the age limit of 18 years, or the restriction provided for in point 1(b) of Paragraph 15a(1) of the Dienstordnung 1994 [(Service Regulations 1994) (LGBl. No 56/1994; ‘the DO 1994’), in the version published in LGBl. No 38/2023], are accredited by counting backwards from the date of recruitment in accordance with subparagraphs 2 to 7.

(2)      The following provisions relating to the advancement reference date shall be applied when calculating the comparison reference date in accordance with subparagraphs 3 to 6:

1      Paragraph 14 of the [DO 1994, in the version resulting from the 28. Novelle (28^th Reform Law) (LGBl. No 42/2010)],

2.      Paragraph 15 of the [DO 1994, in the version resulting from the 20. Novelle (20^th Reform Law) (LGBl. No 36/2005)],

3.      Paragraph 112 of the [DO 1994],

4.      Paragraph 114 of the [DO 1994, in the version resulting from the 8. Novelle (8^th Reform Law) (LGBl. No 47/1999)],

5.      Paragraph 115f of the [DO 1994, in the version resulting from the 20. Novelle (20^th Reform Law) (LGBl. No 36/2005)], and

6.      the annex to the [DO 1994, in the version resulting from the 23. Novelle (23^rd Reform Law) (LGBl. No 42/2006)].

The relevant provisions are those relating to the job category to which the civil servant belonged at the time when the advancement reference date referred to in the last sentence of Paragraph 15a(4) of the [DO 1994, in the version applicable to the facts in the main proceedings] was determined.

(3)      By way of derogation from the provisions referred to in points 1 to 6 of subparagraph 2

…

3.      other periods to be accredited at a rate of 50% prior to the day of recruitment shall be taken into account only in so far as they were completed after 30 June of the calendar year in which the nine years of compulsory schooling were completed; if the civil servant completed less than nine years of schooling, 30 June of the calendar year in which he or she would have completed nine years of schooling under the Austrian regulations on general compulsory schooling is the relevant date;

…’

 The DO 1994

8        Paragraph 15a of the DO 1994, in the version published in LGBl. No 38/2023, entitled ‘Transposition of Directive 2000/78/EC’, provides, in subparagraphs 1, 4 and 5:

‘(1)      The position in the remuneration scale of the civil servant who is in service on the day of the announcement of the [4. Dienstrechts-Novelle 2019 (Fourth Law amending the rules relating to the civil service 2019) (LGBl. No 63/2019)], must be recalculated automatically if … he or she is transferred to the remuneration system of the [Dienstrechts-Novelle 2015 (Law amending the rules relating to the civil service 2015 (LGBl. No 28/2015)], and

1.      the advancement reference date for the current employment has been determined excluding the periods completed

(a)      before the age of 18, or

(b)      before 1 July of the year in which twelve school years were completed or ought to have been completed after admission to the first year of schooling, or

2.      the inclusion of the periods referred to in point 1(b) has led to an extension of the first advancement period …

…

…

(4)      The position in the remuneration scale shall be recalculated in accordance with subparagraphs 1 to 3, after having determined the comparison reference date (Paragraph 49v of the [BO 1994, in the version published in LGBl. No 38/2023]) and revised under the resulting decision on remuneration seniority, as at 31 July 2015, whereby the remuneration seniority determined in accordance with Paragraph 49l of the [BO 1994, in the version applicable to the facts in the main proceedings] is increased by the period between the comparison reference date and the advancement reference date if the comparison reference date is before the advancement reference date, and reduced by that period in the contrary case. The last advancement reference date determined, excluding periods completed before the age of 18 or before 1 July of the year during which twelve school years were or would have been completed after admission to the first year of schooling, shall be decisive for the purposes of the comparison.

(5)      For (former) civil servants referred to in subparagraphs 1 to 3, remuneration entitlements shall be recalculated retroactively (for periods prior to 1 August 2015 in application of Paragraph 49l(6b) of the [BO 1994], in the version applicable to the facts in the main proceedings and Paragraph 11 of the [BO 1994], in the version resulting from the Dienstrechts-Novelle 2015 [(Law amending the rules relating to the civil service 2015)]) by taking into account the period of service prior to recruitment which has an effect on advancement in accordance with the newly determined remuneration seniority. Where appropriate, a subsequent payment resulting from this for the period from 1 May 2016 must be made automatically. The period from 1 May 2019 to the conclusion of the proceedings under subparagraphs 1 to 3 is not to be included in the calculation of the limitation period provided for in Paragraph 10(1) of the [BO 1994, in the version applicable to the facts in the main proceedings] with regard to entitlements to remuneration giving rise to additional payments. Remuneration entitlements relating to periods prior to 1 May 2016 shall be time-barred. This also applies to [remuneration] entitlements in proceedings under subparagraphs 7 and 8.’

 The VBO 1995

9        Paragraph 18 of the Vertragsbedienstetenordnung (Contract Staff Regulations) (LGBl. No 50/1995), in the version published in LGBl. No 11/2021 (‘the VBO 1995’) entitled ‘Recognition of periods for advancement’, provides, in subparagraphs 1, 2 and 5:

‘(1)      Paragraphs 14 and 15 of the [DO 1994, in the version applicable to the facts in the main proceedings], shall apply mutatis mutandis to the contract staff member …

(2)      Paragraphs 15a to 15c of the [DO 1994, in the version published in LGBl. No 38/2023] and Paragraph 49v of the [BO 1994, in the version published in LGBl. No 38/2023] shall apply mutatis mutandis to the contract staff member with the proviso that

1.      the provisions of the [DO 1994, in the version published in LGBl. No 38/3023] referred to in points 1 to 6 of Paragraph 49v(2) of the [BO 1994, in the version published in LGBl. No 38/2023] shall be used to determine the reference date, applying the following provisions of that law:

(a)      Paragraph 18 in the version of the [10. Novelle (10th Reform Law) (LGBl. No 22/2001)], and

(b)      Paragraph 57 in the original version …;

2.      the official redetermination of seniority in the remuneration scale shall be replaced by a redetermination by the employer, which must be notified to the contract staff member in writing and in a verifiable manner;

3.      when applying Paragraph 15a(5), Paragraph 15b(5) and Paragraph 15c(5) and (6) of the [DO 1994, in the version published in LGBl. No 38/2023], the employer’s notification of the redetermination of seniority in the remuneration scale (point 2) shall replace the final conclusion of the procedure;

4.      the provisions of Paragraph 15a(7) and (8) of the [DO 1994, in the version published in LGBl. No 38/2023], where applicable in conjunction with the last sentence of Paragraph 15b(5) or Paragraph 15c(7) of the [DO 1994, in the version published in LGBl. No 38/2023] shall be replaced by the provisions of subparagraphs 3 and 4.

…

(5)      The contract staff member must bring legal proceedings against incorrect non-crediting of service periods prior to recruitment no later than six months after the date of notification pursuant to point 2 of subparagraph 2, failing which a further recalculation of the position in the remuneration scale will be excluded, apart from the correction of obvious clerical and calculation errors. The notification pursuant to point 2 of subparagraph 2 must expressly refer to this legal consequence.’

 The dispute in the main proceedings and the question referred for a preliminary ruling

10      The applicant was born in 1969. On 1 August 2002, the Municipality of Vienna employed him as a contract staff member. From the age of 14 until his entry into employment with the Municipality of Vienna, the applicant carried out other professional activities than those completed for that municipality.

11      By final decision of 16 September 2022, concerning the review of the applicant’s seniority in the remuneration scale applicable to the Municipality of Vienna (‘the decision at issue’), that municipality informed the applicant that, for the purposes of the determination of the reference date for his advancement on the remuneration scale, a total period of one year and six months had to be taken into account in respect of periods of training or professional activities completed before the applicant entered into service in that municipality (‘prior periods of activity’) and that, therefore, that date was to be fixed as 1 February 2001.

12      It is apparent from the order for reference that the decision at issue was based on legislation of the Land Wien (Province of Vienna, Austria), similar to the Federal Austrian legislation reviewed by the Court in the judgment of 20 April 2023, Landespolizeidirektion Niederösterreich and Finanzamt Österreich (C‑650/21, EU:C:2023:300).

13      Pursuant to that legislation, a civil servant’s grade was fixed on the basis of his or her seniority in the remuneration scale of a previous remuneration scheme, then corrected by means of a ‘comparison reference date’. For the purposes of calculating that date, certain precisely defined prior periods of activity, including those considered relevant to the post to which the contract staff member was recruited, were to be taken into account in their entirety. All other accreditable prior periods of service (‘other periods’), including those completed before the age of 18, were taken into account at half their value and subject to a ceiling of seven years, four of which were deducted on a flat-rate basis.

14      The applicant brought an action against the decision at issue before the Arbeits- und Sozialgericht Wien (Labour and Social Court, Vienna), which is the referring court.

15      In the course of the main proceedings, the Court of Justice held, in essence, in its judgment of 20 April 2023, Landespolizeidirektion Niederösterreich and Finanzamt Österreich (C‑650/21, EU:C:2023:300), that Articles 1, 2 and 6 of Directive 2000/78, read in conjunction with Article 21 of the Charter, must be interpreted as precluding national legislation under which the grading of a civil servant is fixed on the basis of his or her seniority in the remuneration scale of a previous remuneration system found to be discriminatory, then corrected by means of a ‘comparison reference date’, for the purposes of which all ‘other periods’ which are accreditable, including those completed before the age of 18, are to be taken into account at half their value but subject to a ceiling of seven years and only in so far as they exceed a period of four years.

16      The referring court notes that, as a consequence, in 2023, the Province of Vienna amended Paragraph 15a of the DO 1994 and Paragraph 49v of the BO 1994, applicable to contract staff members under Paragraph 18(1) and (2) of the VBO 1995 (‘the 2023 legislation’), by repealing the provision which provided for a flat-rate reduction of four years applicable to ‘other periods’ and by reducing the applicable ceiling for the purpose of taking into account those ‘other periods’, from seven to three years, while maintaining that those periods at half their value must be taken into account.

17      As regards that 2023 legislation, the applicant submits before the referring court that point 3 of Paragraph 49v(3) of the BO 1994 constitutes discrimination on grounds of age, in so far as the effect of that provision is that workers who have completed ‘other periods’ before the age of 18 are entitled to have those periods taken into account only to a limited extent, whereas those who have completed such periods after the age of 18 are entitled to have those periods taken into account in their entirety. The applicant therefore requests that all of his prior periods of activity are taken into account so that the length of his total seniority is determined, as at 31 July 2015, for the purpose of taking it into account in the remuneration scale of the Municipality of Vienna, at 32 years, 5 months and 3 days and allowing him therefore to be graded at the higher incremental steps of remuneration with effect from 1 May 2016.

18      In the light of the amendments introduced by the 2023 legislation and the submissions made by the applicant, the referring court asks whether Articles 1, 2 and 6 of Directive 2000/78, read in the light of Article 21 of the Charter, must be interpreted as also precluding the 2023 legislation, pursuant to which periods of service completed before the age of 18 are only taken into account at half their value when calculating seniority.

19      In those circumstances, the Arbeits- und Sozialgericht Wien (Labour and Social Court, Vienna) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is European Union law, in particular Articles 1, 2 and 6 of Directive 2000/78 [read] in conjunction with Article 21 of [the Charter], to be interpreted as precluding a national provision (in particular [point 3 of] Paragraph 49v(3) of the [BO 1994, in the version published in LGBl. No 38/2023]) which, for the purpose of eliminating existing discrimination on grounds of age [see, as regards the previous identical provision in federal law, judgment of 8 May 2019, Leitner, C‑396/17, EU:C:2019:375], [introduces a system in which periods of previous service completed before the age of 18 are taken into account but only at half their value when accrediting previous periods of service and compensating for age discrimination, even though the complete neutralisation of periods of service before the age of 18 has been removed by means of a flat-rate deduction]?’

 Admissibility of the request for a preliminary ruling

20      The Austrian Government disputes the admissibility of the request for a preliminary ruling on the ground that it does not satisfy the requirements of Article 94 of the Rules of Procedure of the Court of Justice. In particular, the referring court: (i) provides only a superficial and incomplete summary of the facts in the main proceedings; (ii) merely refers to certain provisions of national law, without however setting out the context in which they occur; and (iii) has not sufficiently explained the doubts that it has as regards the interpretation of the provisions of EU law cited in the question referred for a preliminary ruling.

21      Under Article 94 of the Rules of Procedure, any request for a preliminary ruling shall contain (i) ‘a summary of the subject matter of the dispute and the relevant findings of fact as determined by the referring court or tribunal, or, at least, an account of the facts on which the questions are based’, (ii) ‘the tenor of any national provisions applicable in the case and, where appropriate, the relevant national case-law’ and (iii) ‘a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation or validity of certain provisions of European Union law, and the relationship between those provisions and the national legislation applicable to the main proceedings.’

22      In the present case, the request for a preliminary ruling contains a sufficient description of the factual and legal context of the dispute in the main proceedings to satisfy those requirements and states the reasons which prompted the referring court to inquire about the interpretation of the provisions of EU law cited in the question referred for a preliminary ruling. First, that request sets out the tenor of the national provisions applicable in the present case. Next, the description by the referring court of the circumstances of the dispute in the main proceedings and the evolution of the applicable national legislation is sufficient to understand the reasons which underpin the choice of the provisions of EU law which that court seeks to have interpreted. Lastly, the referring court explains the relationship between those provisions and the national legislation applicable to the main proceedings.

23      It follows that the reference for a preliminary ruling is admissible.

 Consideration of the question referred

24      By its question, the referring court asks, in essence, whether Articles 1, 2 and 6 of Directive 2000/78, read in conjunction with Article 21 of the Charter, must be interpreted as precluding national legislation pursuant to which a contract staff member’s grade is fixed on the basis of his or her seniority in the remuneration scale, where that seniority is determined, in order to put an end to existing discrimination on grounds of age, by taking into account at half their value and subject to a ceiling of three years certain accreditable periods prior to the recruitment of that staff member completed before his or her 18^th birthday.

25      As a preliminary point, it should be noted that it is common ground that the Province of Vienna decided to align the rules applicable to the Municipality of Vienna which preceded the 2023 legislation, which currently applies to the main proceedings, with the respective Austrian federal legislation which was the subject, inter alia, of the judgments of 18 June 2009, Hütter (C‑88/08, EU:C:2009:381); of 11 November 2014, Schmitzer (C‑530/13, EU:C:2014:2359); of 8 May 2019, Österreichischer Gewerkschaftsbund (C‑24/17, EU:C:2019:373); of 8 May 2019, Leitner (C‑396/17, EU:C:2019:375); and of 20 April 2023, Landespolizeidirektion Niederösterreich and Finanzamt Österreich (C‑650/21, EU:C:2023:300).

26      It should further be noted that the Austrian federal legislation applicable on the date that the applicant was recruited by the Municipality of Vienna excluded professional experience acquired before the age of 18 from being taken into account for the purpose of determining the incremental step at which the contractual public servants are graded.

27      In its judgment of 18 June 2009, Hütter (C‑88/08, EU:C:2009:381), the Court held, in essence, that Articles 1, 2 and 6 of Directive 2000/78 preclude national legislation which excludes periods of employment completed before the age of 18 from being taken into account for the purpose of determining the incremental step at which contractual public servants of a Member State are graded. In its judgment of 11 November 2014, Schmitzer (C‑530/13, EU:C:2014:2359), the Court clarified that those provisions preclude national legislation which, with a view to ending age-based discrimination, takes into account periods of training and service carried out before the age of 18, but which, at the same time, provides – only for civil servants who suffered that discrimination – a three-year extension of the period required in order to progress from the first to the second incremental step in each job category and each salary group.

28      Consequently, the Austrian federal civil service legislation was amended in 2015 and contract staff members recruited under the legislation prior to that amendment were transferred to a new remuneration system based on seniority. Following that amendment, the first grading in the new remuneration system of the transferred contract staff members was fixed by taking into account their last remuneration received under the previous system.

29      In its judgments of 8 May 2019, Österreichischer Gewerkschaftsbund (C‑24/17, EU:C:2019:373), and of 8 May 2019, Leitner (C‑396/17, EU:C:2019:375), the Court held, inter alia, in essence, that Articles 1, 2 and 6 of Directive 2000/78, read in conjunction with Article 21 of the Charter, preclude national legislation that, for the purposes of putting an end to discrimination on grounds of age, provides for the transfer of active contractual public servants to a new system of remuneration in the context of which the initial grading of those contractual public servants is determined according to their last remuneration paid under the previous system.

30      As a consequence of those judgments, the Austrian federal civil service legislation was amended so that the grading of contract staff members recruited under the previous legislation had to be reassessed by determining a ‘comparison reference date’ which takes into account prior periods of activity carried out by contract staff members before their 18^th birthday. However, the ‘other periods’ could be taken into account at half their value only and subject to a ceiling of seven years, four of which were deducted on a flat-rate basis.

31      In that regard, as is apparent from paragraph 15 above, the Court held, in essence, in its judgment of 20 April 2023, Landespolizeidirektion Niederösterreich and Finanzamt Österreich (C‑650/21, EU:C:2023:300), that Articles 1, 2 and 6 of Directive 2000/78, read in conjunction with Article 21 of the Charter, must be interpreted as precluding national legislation under which the grading of a civil servant is fixed on the basis of his or her seniority in the remuneration scale of a previous remuneration system found to be discriminatory, then corrected by means of a ‘comparison reference date’, for the purposes of which all ‘other periods’ which are accreditable, including those completed before the age of 18, are to be taken into account at half their value, subject to a ceiling of seven years and only in so far as they exceed a period of four years.

32      Accordingly, it is necessary to assess, in the present case, whether the amendments introduced by the 2023 legislation actually brought a definitive end to the discrimination on grounds of age last identified by the Court in the judgment of 20 April 2023, Landespolizeidirektion Niederösterreich and Finanzamt Österreich (C‑650/21, EU:C:2023:300).

33      In that regard, it should be borne in mind that the prohibition of discrimination based on, inter alia, age is incorporated in Article 21 of the Charter and that that prohibition was given specific expression by Directive 2000/78 in the field of employment and occupation (judgment of 20 April 2023, Landespolizeidirektion Niederösterreich and Finanzamt Österreich, C‑650/21, EU:C:2023:300, paragraph 45).

34      Thus, it is necessary to examine whether the 2023 legislation introduces a difference in treatment within the meaning of Article 2(1) of Directive 2000/78.

35      Under that provision, the ‘principle of equal treatment’ means that there is to be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1 of that directive. Article 2(2)(a) of Directive 2000/78 states that, for the purposes of Article 2(1) thereof, direct discrimination is to be taken to occur where one person is treated less favourably than another is treated in a comparable situation, on any of the grounds referred to in Article 1 of that directive.

36      In the present case, the categories of persons relevant for the purposes of that comparison are, on the one hand, contract staff members who completed accreditable prior periods of activity, if only in part, before reaching their 18^th birthday and, on the other hand, contract staff members who completed such periods of the same nature and of a comparable duration after reaching that age.

37      In that regard, in the first place, as the Municipality of Vienna, the Austrian Government and the European Commission submit, under Paragraph 49v of the BO 1994, in the version published in LGBl. No 38/2023, accreditable prior periods of service, whether they are completed before or after the 18^th birthday of the contract staff member concerned, are taken into account for the purpose of determining his or her seniority.

38      In the second place, it is apparent from the summary of the legislation of the Province of Vienna, applicable to contract staff members of the Municipality of Vienna, provided by the referring court, that certain precisely defined prior periods of service, including those considered to be relevant to the post to which the contract staff member is recruited, are taken into account in their entirety, whereas the ‘other periods’ are taken into account at half their value only, subject to a ceiling of three years.

39      In that regard, it must be borne in mind that, according to settled case-law, the employer is, in principle, free to take into account only the experience acquired in a particular field which enables the worker to better perform the duties conferred on him (judgment of 14 March 2018, Stollwitzer, C‑482/16, EU:C:2018:180, paragraph 39). It follows that EU law does not require account to be taken of the entirety of ‘other periods’ which, according to the Municipality of Vienna and the Austrian Government, are included in the calculation of seniority, within the limits provided for, only on the basis of purely social considerations.

40      Accordingly, the fact that only half of the duration of those ‘other periods’ is to be taken into account and subject to a ceiling of three years cannot, in itself, constitute discrimination on grounds of age. In that case, it is the experience acquired with other undertakings which is not taken into account, irrespective of the age at which it was acquired and the age at which the worker concerned was recruited (judgment of 14 March 2018, Stollwitzer, C‑482/16, EU:C:2018:180, paragraph 40 and the case-law cited). In the present case, there is nothing in the file before the Court to suggest that the distinction made by the legislation of the Province of Vienna applicable to contract staff members of the Municipality of Vienna between the precisely defined prior periods of service, including those considered to be relevant to the post to which the contract staff member is recruited, and ‘other periods’ is based on any consideration of the age of the person concerned.

41      In the third place, the continuing discrimination on grounds of age identified by the Court in paragraphs 64 to 66 of the judgment of 20 April 2023, Landespolizeidirektion Niederösterreich and Finanzamt Österreich (C‑650/21, EU:C:2023:300), arose specifically from the flat-rate deduction of the first four years of experience acquired before recruitment, which prevented, in reality, persons who had acquired such experience, primarily between their 14^th and 18^th birthdays – since the minimum age required to work was set at 14 – from being entitled to have any of that experience taken into account. Since that flat-rate deduction was abolished by the 2023 legislation, that experience may now be taken into account on the same basis as that acquired by those persons after their 18^th birthday, that is, as regards ‘other periods’, at half their value and subject to a ceiling of three years.

42      In particular, the reduction to three years, by the 2023 legislation, of the seven-year ceiling provided for by the 2019 legislation does not perpetuate the discrimination previously found or constitute new indirect discrimination on grounds of age, since that new ceiling applies irrespective of the age at which the experience was acquired.

43      In the fourth place, it is apparent from the summary of the 2023 legislation provided by the referring court that the seniority in the remuneration scale applicable to the Municipality of Vienna is, in essence, determined in two stages.

44      First, under Paragraph 15a(1), (4) and (5) of the DO 1994, in the version published in LGBl. No 38/2023, applicable to contract staff members pursuant to Paragraph 18(1) and (2) of the VBO 1995, the seniority applied in the remuneration scale results from the transfer of the contract staff member to the remuneration system provided for by the Law amending the rules relating to the civil service 2015, which excluded experience acquired before the contract staff member’s 18^th birthday from being taken into account.

45      Second, the seniority thus determined is subject to a correction to take into account the difference between the advancement reference date applied under the regime prior to the Law amending the rules relating to the civil service 2015 and the ‘comparison reference date’. The latter date is determined in accordance with the detailed rules laid down in Paragraph 49v of the BO 1994, in the version published in LGBl. No 38/2023, taking into account accreditable prior periods of service completed by the contract staff member after he or she has reached the age of 14, thus allowing ‘other periods’ also to be taken into account where they are completed before the contract staff member’s 18^th birthday. If the ‘comparison reference date’ thus determined is before the advancement reference date initially applied, the seniority of the staff member is increased by that difference.

46      It follows that, although the inclusion of the level of seniority in the remuneration scale, which results from the transfer of the contract staff member to the remuneration system provided for by the Law amending the rules relating to the civil service 2015, is liable to maintain the discriminatory effects produced by the regulations predating that law, in that its determination did not take into account the experience acquired before the 18^th birthday of the contract staff member concerned, it appears, subject to verification by the referring court, that the correction made by means of the ‘comparison reference date’ now allows the accreditable periods completed before the contract staff member’s 18^th birthday to be taken into account (see, by analogy, judgment of 20 April 2023, Landespolizeidirektion Niederösterreich and Finanzamt Österreich, C‑650/21, EU:C:2023:300, paragraphs 55 to 59).

47      In those circumstances, it does not appear that the contract staff members who completed prior periods of activity before reaching their 18^th birthday are treated less favourably than those who completed such periods of the same nature and of comparable duration after reaching the age of 18.

48      In the fifth and last place, the mere fact that the 2023 legislation did not result in any additional advancement for the contract staff member concerned in the course of fixing the reference date for advancement in the remuneration scale applicable to the Municipality of Vienna does not mean that that legislation introduces or perpetuates discrimination based on age, whether direct or indirect.

49      That there is no additional advancement does not result from the fact that part of the ‘other periods’ prior to recruitment was completed before the applicant’s 18^th birthday, but from the fact that, as the Municipality of Vienna and the Austrian Government submit, the duration of those ‘other periods’ – of which half was taken into account – had already reached the three-year ceiling.

50      It should also be noted that, in so far as the applicant argues in his submissions that persons recruited before 6 April 2001 are entitled to have half of all previous experience falling within the scope of ‘other periods’ taken into account, without any ceiling being applied, that difference in treatment compared with persons recruited after that date, assuming it is established, results from the date of recruitment of the contract staff member concerned. It is on the basis of that date that the former or new rules on the determination of seniority apply. Such a criterion, based on an objective and neutral factor, namely the date of recruitment, is manifestly unconnected to any taking into account of the age of the persons recruited (see, to that effect, judgment of 14 February 2019, Horgan and Keegan, C‑154/18, EU:C:2019:113, paragraphs 24 and 25). Consequently, a rule based on a reference date cannot constitute discrimination on grounds of age, since the only relevant criterion for its application is whether the person concerned is a contract staff member recruited before or after that date.

51      In the light of all the foregoing considerations, the answer to the question referred is that Articles 1, 2 and 6 of Directive 2000/78, read in conjunction with Article 21 of the Charter, must be interpreted as not precluding national legislation pursuant to which a contract staff member’s grade is fixed on the basis of his or her seniority in the remuneration scale, where that seniority is determined, in order to put an end to existing discrimination on grounds of age, by taking into account at half their value certain accreditable periods prior to the recruitment of that staff member completed before his or her 18^th birthday, subject to a ceiling of three years, provided that that ceiling applies irrespective of the age at which the experience was acquired.

 Costs

52      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Ninth Chamber) hereby rules:

Articles 1, 2 and 6 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, read in conjunction with Article 21 of the Charter of Fundamental Rights of the European Union

must be interpreted as not precluding national legislation pursuant to which a contract staff member’s grade is fixed on the basis of his or her seniority in the remuneration scale, where that seniority is determined, in order to put an end to existing discrimination on grounds of age, by taking into account at half their value certain accreditable periods prior to the recruitment of that staff member completed before his or her 18^th birthday, subject to a ceiling of three years, provided that that ceiling applies irrespective of the age at which the experience was acquired.

[Signatures]