E.B. v. Versicherungsanstalt öffentlich Bediensteter BVA, Case C-258/17, CJEU (Grand Chamber), 15 January 2019

Curtailment of a percentage of the pension to a police officer guilty of the crime of attempted sexual harassment (of a homosexual nature) against minors. Discrimination based on sexual orientation.

Council Directive 2000/78 / EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.
 

1. The early retirement of the former police officer falls within the scope of Directive 2000/78 provided that the old-age pension paid falls within the notion of "remuneration" provided for by Community law. Therefore, it is for the referring court to ascertain whether that pension is regarded, in the light of national law, as remuneration which continues to be paid in the context of an employment relationship which continues after the official concerned is granted as benefit of old age.

2. As regards the temporal applicability of Directive 2000/78, it does not apply to legal situations that have arisen and definitively acquired under a previous national law, but only to their future effects, as well as to new legal situations. It follows that the disciplinary sanction that resulted in the early retirement of the police officer, although it is based on unequal treatment based on sexual orientation and involves direct discrimination pursuant to art. 2 of Directive 2000/78, can no longer be questioned on the basis of this directive if it has become definitive before the expiry of the deadline for transposition of the latter and is no longer effective upon entry into force. Therefore, the application of Directive 2000/78 after the expiry of the transposition period requires the national court to reassess, for the period starting from that date, the discriminatory sanction which resulted in the reduction of 25% of the amount of the pension periodically paid to the former official, to determine the amount that would have been due to him in the absence of discrimination based on sexual orientation.