ECJ rules ex-policeman to be compensated for loss of pension based on outdated discriminatory sanctions

A former Austrian policeman who was dismissed from his position and saw his pension reduced following a conviction for engaging in a homosexual encounter with minors, is to be awarded compensation by the Austrian government, the European Court of Justice (ECJ) has decided.

The applicant, EB, had committed the offences with two young men aged 14 and 15 in 1976. At this time, the legal age for participating in homosexual acts was 18, compared to 14 for heterosexual acts. He received a three-month suspended prison sentence and was also issued with compulsory permanent retirement and a reduced pension. The deduction was set at 25%. This was unsuccessfully appealed to the Higher Disciplinary Committee at the Federal Ministry of the Interior.

Following the implementation of Council Directive 2000/78/EC, which aimed to eradicate discrimination in employment, in 2002 the Austrian Constitutional Court also annulled the provision which criminalised the acts for which EB was convicted, and saw the age of consent for homosexual acts lowered to 14, in line with that of heterosexual acts.

In light of this, EB brought an action before the Disciplinary Committee in 2008, which marked the beginning of 10 years of litigation. He argued that the continued deduction of his pension was discriminatory and in contradiction with Austria’s current laws and EU anti-discrimination policy.

He contended that he should be in receipt of the pension that he would have been entitled to had he remained in active employment up until the statutory retirement age, or at the very least, he should be entitled to his full pension without any reductions backdating to 2003 and the lowering of the homosexual age of consent.

His case ended up in Austria’s Upper Administrative Court on appeal on a point of law. The Court acknowledged that there no longer existed a comparable disciplinary sanction that could be imposed on EB, and that the sanctions that were enforced on him did not equate to the acts he committed.

However, the matter was referred to the ECJ for a preliminary hearing in order to determine how EB’s pension should be calculated. The ECJ stated that the anti-discrimination Council Directive 2000/78/EC should be applied to the future effects of disciplinary decisions that were carried out prior to the entry into force of the directive.

It was ruled that Austria was obliged to review the disciplinary decision reducing EB’s pension and that he was to be compensated for the amount he should have received through his pension had he not been subjected to discriminatory laws on account of his sexual orientation.

Click here for the full ECJ judgement.

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