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24 May 2012

Access to administrative justice in order to seek for fundamental rights

Access to administrative justice in order to seek for fundamental rights


Case 2


I./ Legal framework :

1./ National law

In Austria civil servants have to retire at the age of 65.

Until October 2000 each civil servant was entitled to choose the date of his retirement between his 60th and 65th birthday (retirement by declaration). The “Pensionsreformgesetz 2000”, issued in August 2000 that turned into force in October 2000, changed this by increasing the minimum age for retirement by declaration. For civil servants born in 1941 it was changed to 60,5, for those born in 1942 it was changed to 61,5.

Moreover, for civil servants who retire after the 31st of December 2002, new regulations for figuring out the amount of the pension turned into force. These new regulations were less favourable for the civil servant. The consequence was that civil servants born in 1941 had to stay longer, but still had the possibility to retire by declaration in 2002 and to profit from the more favourable conditions of “old law”. This was not true for a part of civil servants born in 1942.

Art. 96 para 4 of the Pensionsgesetz rules that the more favourable old law for figuring out the pensions stays applicable even for retirements after the 31st of December 2002, if

  • the civil servant was already 55 on 1st of December 1997 and
  • the civil servant is not older than 61,5 when he retires.

Please note that in the understanding of Austrian law, the relationship between the state and its civil servants is not dissolved when they retire, but continues with modified mutual rights and duties (f.e. the civil servant stays disciplinary liable for his behaviour). Therefore, pensions for civil servants are not seen as a part of a state system of social security but more like the continuous payment of a (reduced) salary.

The Administrative Court has only the power to control the legality of an administrative decision. Therefore, it is relevant whether this decision is in compliance with the legal situation that existed when the administrative decision was taken.

2./ Community Law

The Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, based on Art. 13 (now Art. 19) of Treaty, contains following provisions :



Article 1


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.

Article 2

Concept of discrimination

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, or

Article 3


1. 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 ;

3. This Directive does not apply to payments of any kind made by state schemes or similar, including state social security or social protection schemes.

4. Member States may provide that this Directive, in so far as it relates to discrimination on the grounds of disability and age, shall not apply to the armed forces.

Article 6

Justification of differences of treatment on grounds of age

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.

Such differences of treatment may include, among others :

(a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection ;

(c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.

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.

Article 18
Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive by 2 December 2003 at the latest or may entrust the social partners, at their joint request, with the implementation of this Directive as regards provisions concerning collective agreements. In such cases, Member States shall ensure that, no later than 2 December 2003, the social partners introduce the necessary measures by agreement, the Member States concerned being required to take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by this Directive. They shall forthwith inform the Commission thereof.”

Art. 13 para 1 TEC rules :
“Article 19
(ex Article 13 TEC)
Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.”

II./ The case :

The applicant, an Austrian civil servant, was born in 1939. He retired by declaration on 1st of January 2003 (this date seemed to have been chosen by the applicant erroneously ; he would not have had any problems if he had retired one month earlier), when he was older than 63. On 3rd of July 2003 the Federal Minister of Finances decided on the amount of pension to be granted to the applicant (from 1st of January 2003 until 1st of June 2003). He applied the new (less favorable) rules that have turned into force on 1st of January 2003. He argued that Art. 96 para 4 of the Pensionsgesetz were not applicable because the applicant was older than 61,5 years when he retired.

The applicant appealed against this decision first before the Austrian Constitutional Court, arguing that Art. 96 para 4 of the Pensionsgesetz violates the principle of equal treatment of all citizens laid down in Art. 7 of the Federal Constitution. The Constitutional Court did not see a problem of Constitutional law and therefore refused to deal with the case. The applicant appealed then – which is possible in Austria – to the Austrian Administrative Court.

Later on, the applicant asked the administration to meet a new decision on his pensions from 1st of January 2004 onwards. The Federal Minister of Finances decides on 26th of February 2007. In this decision he also applies the new, less favorable rules of the Pensionsgesetz 2000 to figure out these pensions.

The applicant appealed against this decision to the Austrian Administrative Court.

In both appeals he argued as follows :

Art. 96 para 4, even though it might be in compliance with the Austrian Constitution, brings about discrimination by age. Civil servants who retire at the same time (after the end of 2002) are treated unequally, even though all other relevant parameters for figuring out the pensions are identical. Those who are younger (born in 1941 or 1942) get higher pensions than him (born in 1939).
Art. 96 para 4 of the Pensionsgesetz therefore violates Art. 6 of the above mentioned directive as well as basic principles of Community Law.

The Federal Minister of Finances argued as follows :
"His first decision concerned periods of time where the directive was not immediately applicable because the timeframe for its implementation has not expired.
Moreover, there is no discrimination by age, because the applicant had the possibility to retire by declaration under the more favorable conditions of the old law when he was younger than 61,5 years, and – even later – until the 1st of December 2002.
Finally, Art. 96 Para 4 pursues a legitimate aim, namely to avoid a violation of legitimate expectations. Civil servants born in 1942 expected to be entitled to retire at the age of 60 (that means before 2003) by declaration and would therefore benefit from the more favorable conditions of the former law. They were surprised by the new law in August 2000, because they had to stay until the age of 61,5 (and therefore some of them longer than the end of 2002) now. Therefore it was necessary to grant them the benefit to figure out their rents according to the old rules when they retire after 2002."

Case 3


According to the Austrian legal situation university professors retire by force of law shortly after they have become 65. In our applicant’s case this date was the

30th September 2010. According to his opinion the relevant Austrian legal situation – concerning substantial law – is in conflict with the EU Anti -Discrimination directive, because the fix threshold creates discrimination on the ground of age.

Therefore he applied on 8th December 2009 before the administration for a declaratory decision with the content that – as a consequence of the precedence of EU-law - he has to be treated as an active professor also for the time after the 30th September 2010. The first instance authority refused the application with decision from 15th of March 2010. The applicant then appealed to the supreme administrative authority at the end of March. The time limit for the decision upon this appeal is - according to Austrian law - 6 months. If the supreme administrative authority fails to decide within this period of time, a so called “Säumnisbeschwerde” (concerning the breach of the duty to reach a decision in time) is foreseen. The party can then apply for a decision on the merits of the administrative dispute by the Administrative Court.

That means that the appellant would not be able to reach the Administrative Court before the end of September 2010. Nonetheless he lodged a claim concerning the breach of the duty to reach a decision by the supreme authority before the Administrative Court already in July 2010 arguing that – as a consequence of the prevailing EU-law, in particular of its principle of effective legal protection - it were necessary to have access to a Court already now, because he would suffer irretrievable damages if he won’t be treated as an active professor after the end of September (f.e. he would lose his function as a dean). In order to achieve an interim relief from a Court it is necessary to accept his appeal even though it would not be admissible from the point of view of Austrian law.

Swedish case

The facts

The applicant is a transsexual who was registered at birth as being of male sex. under the name of John. As a male he married Lucy. He felt a growing desire to live as a woman and got the diagnosis gender dysforia. He underwent gender reassignment surgery and hormone replacement treatment and became eventually a woman. He/she changed her name to June and is still living in her marriage with Lucy.

In order to be legally recognized as of female sex – which was necessary before she could obtain a passport in her female name, among other things – June requested to the National Board of Health to determine that she is of female sex.

The National Board of Health dismissed her request. The reason for its decision was the following. According to the 1972 Act on the determination of Sex in Special Circumstances a request could never be granted if the applicant is married. Therefore June must divorce Lucy before her request could be granted.

The appeal

Lucy appealed to the Administrative Court in Stockholm and claimed that the decision of the National Board was contrary the article 8 ECHR. She underlined that since 2009 same-sex marriages are allowed in the Marriage Code in Sweden. The 1972 act is based on the old legislation and is now obsolete. If she was forced to divorce her wife it would mean legal and economic consequences, regarding pension, insurance benefit, etc as well as emotional trauma. It was also discrimination of her and her wife as nobody else could be forced to divorce.

The National Board of Health objected to the appeal and said. According to the Swedish constitution the wording of a legal act is legally binding. The National Board therefore has to follow the 1972 act even if it is obvious that this act is obsolete now when same-sex marriages are allowed. It is the legislator that has to decide to adapt the 1972 act to the new Marriage Code.

The ECHR is legally binding in Sweden according to a special law from 1994. The ECHR and the national Swedish legislation are on the same level in the law hierarchy. According to the Swedish legal doctrine the ECHR can be applied before the national legislation only if there is a very clear support either in the convention itself or in the case law from the European Court of Human Rights.

Case law : Parry against the United Kingdom and R. and F. against the United Kingdom, the 28 November 2006. The Court decided that there was not a breach of Article 8 to require that the applicant divorce before he or she could obtain a legal recognition of his or her new gender. The Court took into account that according to the national law in the cases (English respectively Scottish law) same-sex marriages are not permitted. The Court thus took into account that the national legal system was “coherent”.

Case 5


The EC established a scheme for greenhouse gas emission allowance trading by the Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003. This Directive was implemented by the federal law from 8 July 2004 (Treibhausgas-Emissionshandelsgesetz).

An enterprise from the cement industry lodged an appeal with the Administrative Court of Würzburg and wanted a declaration that it has no obligation pursuant the law from 8 July 2004 because of violation of fundamental rights provided in Article 14 and 12 of the German Constitution (Basic Law).

This case raises the following questions :

The scope of judicial review.

concerning a national legal act of parliament

Is a national court empowered or obliged to review a legal act of parliament in the light of national fundamental rights ?

If so, is a national court empowered to such a review even if the law is implementing an EC directive ?

If so, how broad is the control in the light of national fundamental rights in this case ?

Is a national court empowered or obliged to review national legislation in the light of European law ?

concerning EC law

Is a national court empowered or obliged to review an European legal act, like a directive ?

If so, which rules are relevant ?

Must a national court review the case in the light of EC law even if a violation of EC law is not invoked by the plaintiff ?

Does the directive 2003/87/EC violate European fundamental rights ?

2. The power of the judge

Is a national court empowered to quash a national legal act of parliament,

aa) because of violation of national fundamental rights ?

bb) because of violation of EC law ?

b) Is a national court empowered to quash a European legal act ?

National legal framework :

Basic Law

Article 12 (Professional freedom)

(1) All Germans have the right freely to choose their trade or profession their place of work and their place of training. The practice of trades and professions may be regulated by law.

Article 14 (Property, right of inheritance)

(1) Property and the rights of inheritance are guaranteed. Their content and limits are determined by the laws.

(2) Property imposes duties. Its use should also serve the public weal.

(3) Expropriation is permitted only in the public weal. It may take place only by or pursuant to law which provides for kind and extent of the compensation. The compensation shall be determined upon just consideration of the public interest and of the interests of the persons affected. In case of dispute regarding the amount of compensation, recourse may be had to the ordinary courts.

Article 19 (Restriction of fundamental rights).

(1) Insofar as under this Basic Law a basic right may be restricted by or pursuant to a law, the law must apply generally and not solely to an individual case. Furthermore the law must name the basic right, indicating the Article.
(2) In no case may a basic right be infringed upon in its essential content.
(3) The basic rights apply also to corporations established under German Public law to the extent that the nature of such rights permits.
(4) Should any person’s right be violated by public authority, recourse to the court shall be open to him. If no other court has jurisdiction, recourse shall be to the ordinary courts.

Article 93 (Federal Constitutional Court, jurisdiction)
(1) The Federal Constitutional Court decides :
4a. on complaints of unconstitutionality, which may be entered by any person who claims that one of his basic rights or one of his rights under paragraph (4) of Article 20 or under Article 33, 38, 101, 103, or 104 has been violated by public authority ;

Article 100 (Unconstitutionality of legislation)

(1) Where a court considers a law unconstitutional, the validity of which is relevant to its decision, the proceedings shall be stayed, and a decision shall be obtained from the Land court competent for constitutional disputes if the matter concerns the violation of the constitution of a Land, or from the Federal Constitutional Court if the matter concerns the violation of the Basic Law. This also applies if the matter concerns the violation of this Basic Law by Land law or the incompatibility of a Land law with a Federal law. (2) If, in the course of litigation doubt exists whether a rule of public international law forms part of the Federal law and whether such rule directly creates rights and duties for the individual (Article 25), the court shall obtain the decision of the Federal Constitutional Court.