Input: "As" "outlined" "above" "in" "points" "11" "and" "12" "," "by" "decision" "of" "the" "Verfassungsgerichtshof" "(" "Constitutional" "Court" ")" "of" "21" "June" "2002" "," "Paragraph" "209" "of" "the" "StGB" "(" "corresponding" "to" "Paragraph" "129" "I" "of" "the" "StG" ")" "was" "held" "to" "be" "unconstitutional" "and" "was" "repealed" "by" "the" "Austrian" "legislature" "later" "that" "year" "." "24" "."


Input: "By" "letter" "of" "2" "June" "2008" "," "the" "Appellant" "submitted" "to" "the" "disciplinary" "authority" "," "inter" "alia" "," "applications" "for" "the" "disciplinary" "decision" "of" "10" "June" "1975" "to" "be" "annulled" "," "the" "disciplinary" "proceedings" "against" "him" "to" "be" "discontinued" "and" "," "in" "the" "alternative" "," "the" "legal" "effects" "of" "that" "disciplinary" "decision" "to" "be" "declared" "to" "be" "extinguished" "as" "from" "21" "June" "2002" "."

"O" "O" "O" "I-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "I-ORGANISATION" "I-ORGANISATION" "I-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "I-ORGANISATION" "I-ORGANISATION" "I-ORGANISATION" "O"

"O" "O" "O" "B-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "B-ORGANISATION" "B-ORGANISATION" "B-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "B-ORGANISATION" "B-ORGANISATION" "B-ORGANISATION" "O"


Input: "He" "also" "sought" "the" "payment" "of" "salary" "for" "specified" "periods" "of" "service" "and" "," "in" "the" "alternative" "," "claimed" "that" "the" "reduction" "in" "his" "pension" "should" "not" "have" "occurred" "from" "21" "June" "2002" "onwards" "." "25" "."


Input: "Those" "applications" "were" "dismissed" "." "26" "."


Input: "On" "11" "February" "2009" "," "the" "Appellant" "submitted" "to" "the" "civil" "service" "and" "pensions" "authority" "an" "application" "for" "the" "assessment" "and" "back" "payment" "of" "salary" "and" "higher" "pension" "benefits" "."

"O" "I-ORGANISATION" "I-ORGANISATION" "I-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O"

"O" "B-ORGANISATION" "B-ORGANISATION" "B-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O"


Input: "He" "expressed" "the" "view" "," "primarily" "," "that" "," "in" "order" "to" "avoid" "(" "ongoing" ")" "discrimination" "," "he" "should" "be" "treated" "," "from" "the" "point" "of" "view" "of" "pay" "and" "pension" "entitlement" "," "as" "if" "he" "had" "been" "in" "active" "employment" "until" "reaching" "statutory" "retirement" "age" "."


Input: "In" "the" "alternative" "," "he" "argued" "that" "he" "was" "entitled" "," "at" "least" "," "to" "his" "pension" "without" "the" "25%" "reduction" "." "27" "."


Input: "Those" "applications" "were" "dismissed" "."


Input: "A" "challenge" "against" "that" "dismissal" "before" "the" "Bundesverwaltungsgericht" "(" "Federal" "Administrative" "Court" "," "Austria" ")" "was" "rejected" "."


Input: "An" "extraordinary" "appeal" "on" "a" "point" "of" "law" "against" "that" "judgment" "was" "brought" "before" "the" "Verwaltungsgerichtshof" "(" "Higher" "Administrative" "Court" ")" "," "the" "referring" "court" "in" "this" "case" "." "28" "."


Input: "In" "its" "request" "for" "a" "preliminary" "ruling" "," "the" "referring" "court" "assumes" "that" "," "after" "Directive" "2000" "/" "78" "became" "effective" "in" "Austrian" "law" "," "an" "adverse" "disciplinary" "decision" "such" "as" "that" "made" "in" "relation" "to" "the" "Appellant" "would" "no" "longer" "have" "been" "allowed" "."


Input: "In" "the" "absence" "of" "any" "(" "new" ")" "grounds" "of" "justification" "for" "different" "ages" "of" "consent" "for" "male" "homosexual" "relations" "with" "adults" "," "on" "the" "one" "hand" "," "and" "for" "heterosexual" "and" "lesbian" "relations" "with" "adults" "," "on" "the" "other" "," "it" "would" "be" "impermissible" "to" "differentiate" "," "even" "for" "the" "purposes" "of" "disciplinary" "action" "," "between" "the" "incitement" "of" "a" "minor" "by" "an" "adult" "to" "perform" "male" "homosexual" "acts" "," "on" "the" "one" "hand" "," "and" "the" "incitement" "by" "an" "adult" "to" "perform" "heterosexual" "or" "lesbian" "acts" "," "on" "the" "other" "." "29" "."


Input: "According" "to" "the" "referring" "court" "," "there" "is" "‘" "absolutely" "no" "doubt" "’" "that" "the" "disciplinary" "decision" "at" "issue" "was" "made" "on" "the" "basis" "of" "such" "a" "differentiation" "," "its" "central" "foundation" "having" "been" "that" "the" "conduct" "with" "which" "the" "Appellant" "was" "charged" "was" "(" "at" "that" "time" ")" "a" "criminal" "offence" "punishable" "by" "law" "."


Input: "Even" "though" "it" "is" "not" "inconceivable" "that" "such" "an" "incitement" "to" "perform" "heterosexual" "or" "lesbian" "acts" "would" "have" "been" "interpreted" "as" "a" "dereliction" "of" "duty" "," "any" "disciplinary" "adjudication" "made" "in" "the" "absence" "of" "the" "constituent" "elements" "of" "the" "offence" "provided" "for" "in" "Paragraph" "129" "I" "of" "the" "StG" "would" "have" "been" "‘" "incomparably" "milder" "’" "." "30" "."


Input: "In" "the" "light" "of" "those" "considerations" "," "the" "referring" "court" "wonders" "what" "the" "effects" "of" "the" "entry" "into" "force" "of" "Directive" "2000" "/" "78" "and" "the" "prohibition" "of" "discrimination" "on" "grounds" "of" "sexual" "orientation" "are" "for" "the" "ongoing" "pension" "payments" "to" "the" "Appellant" "."


Input: "The" "Verwaltungsgerichtshof" "(" "Higher" "Administrative" "Court" "," ")" "decided" "to" "stay" "proceedings" "and" "refer" "the" "following" "questions" "to" "the" "Court" ":" "‘" "(" "1" ")" "Does" "Article" "2" "of" "[" "Directive" "2000" "/" "78" "(" "“" "the" "Directive" "”" ")" "preclude" "the" "maintenance" "in" "being" "of" "the" "new" "legal" "position" "created" "by" "an" "administrative" "decision" "that" "has" "become" "final" "under" "national" "law" "," "in" "the" "area" "of" "law" "governing" "disciplinary" "action" "in" "the" "civil" "service" "(" "disciplinary" "decision" ")" "," "compulsorily" "retiring" "and" "reducing" "the" "pension" "benefits" "of" "a" "civil" "servant" "," "where" "that" "administrative" "decision" "was" "not" "yet" "subject" "to" "provisions" "of" "EU" "law" "," "in" "particular" "the" "Directive" "," "at" "the" "time" "when" "it" "was" "adopted" "," "but" "a" "(" "notional" ")" "decision" "to" "the" "same" "effect" "would" "infringe" "the" "Directive" "if" "it" "were" "adopted" "within" "the" "temporal" "scope" "of" "the" "Directive" "?"


Input: "(" "2" ")" "If" "the" "first" "question" "is" "answered" "in" "the" "affirmative" "," "is" "it" "," "for" "the" "purposes" "of" "creating" "a" "non-discriminatory" "situation" "," "(" "a" ")" "necessary" "under" "EU" "law" "," "for" "the" "purposes" "of" "determining" "the" "civil" "servant" "’" "s" "pension" "," "to" "treat" "him" "as" "if" "," "in" "the" "period" "between" "the" "entry" "into" "force" "of" "the" "administrative" "decision" "and" "his" "reaching" "statutory" "pensionable" "age" "," "he" "had" "not" "been" "retired" "but" "working" "," "or" "is" "it" "(" "b" ")" "sufficient" "for" "these" "purposes" "to" "recognise" "as" "due" "the" "unreduced" "pension" "accruing" "in" "consequence" "of" "compulsory" "retirement" "at" "the" "time" "specified" "in" "the" "administrative" "decision" "?"


Input: "(" "3" ")" "Does" "the" "answer" "to" "Question" "2" "depend" "on" "whether" "the" "civil" "servant" "did" "in" "fact" "proactively" "seek" "active" "employment" "in" "the" "federal" "civil" "service" "before" "reaching" "retirement" "age" "?"


Input: "(" "4" ")" "If" "it" "is" "considered" "sufficient" "to" "annul" "the" "percentage" "reduction" "of" "pension" "entitlement" "(" "and" "depending" "also" "," "if" "necessary" "," "on" "the" "circumstances" "referred" "to" "in" "Question" "3" ")" ":" "Can" "the" "principle" "of" "non-discrimination" "contained" "in" "the" "Directive" "support" "a" "primacy" "of" "application" "over" "conflicting" "national" "law" "which" "a" "national" "court" "must" "observe" "," "when" "calculating" "pension" "entitlement" "," "even" "in" "respect" "of" "periods" "before" "the" "Directive" "became" "directly" "applicable" "in" "national" "law" "?"


Input: "(" "5" ")" "If" "Question" "4" "is" "answered" "in" "the" "affirmative" "," "to" "which" "point" "in" "time" "does" "such" "“" "retroactive" "effect" "”" "extend" "?" "’"


Input: "31" "."


Input: "Written" "submissions" "were" "lodged" "by" "the" "Appellant" "," "the" "Italian" "and" "Austrian" "Governments" "and" "the" "European" "Commission" "."


Input: "With" "the" "exception" "of" "the" "Italian" "Government" "," "those" "interested" "parties" "also" "presented" "oral" "argument" "at" "the" "hearing" "held" "on" "29" "May" "2018" "."

"O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "I-ORGANISATION" "I-ORGANISATION" "I-ORGANISATION" "O"

"O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "B-ORGANISATION" "B-ORGANISATION" "B-ORGANISATION" "O"


Input: "IV" "."


Input: "Assessment" "32" "."


Input: "Can" "a" "new" "rule" "of" "law" "be" "invoked" "to" "challenge" "the" "ongoing" "repercussions" "of" "an" "administrative" "decision" "that" "was" "adopted" "and" "became" "final" "before" "that" "new" "rule" "became" "applicable" "?"


Input: "That" "is" "the" "fundamental" "question" "raised" "by" "the" "referring" "court" "’" "s" "first" "question" "." "33" "."


Input: "In" "circumstances" "such" "as" "those" "in" "the" "main" "case" "," "I" "consider" "that" "the" "answer" "is" "no" "." "34" "."


Input: "Given" "my" "proposed" "answer" "to" "that" "first" "question" "(" "Section" "A" "below" ")" "," "the" "remaining" "questions" "do" "not" "require" "an" "answer" "."


Input: "Nevertheless" "," "in" "the" "event" "that" "the" "Court" "should" "come" "to" "a" "different" "conclusion" "," "I" "will" "also" "briefly" "discuss" "the" "issues" "that" "those" "questions" "raise" "(" "Sections" "B" "and" "C" ")" "," "as" "well" "as" "the" "relevance" "of" "Article" "157" "TFEU" "(" "ex" "Article" "141" "EC" ")" "for" "the" "present" "case" "."


Input: "The" "latter" "provision" "does" "not" "figure" "in" "the" "referring" "court" "’" "s" "questions" "," "but" "has" "been" "raised" "by" "the" "Appellant" "(" "Section" "D" ")" "."


Input: "A" "."


Input: "Question" "1" "35" "."


Input: "Where" "an" "administrative" "decision" "," "involving" "discrimination" "on" "the" "grounds" "of" "sexual" "orientation" "and" "leading" "to" "a" "reduction" "in" "pension" "rights" "," "became" "final" "before" "such" "discrimination" "was" "prohibited" "under" "Directive" "2000" "/" "78" "," "is" "the" "maintenance" "of" "that" "reduction" "in" "pension" "rights" "precluded" "now" "that" "the" "directive" "is" "in" "force" "?"


Input: "That" "is" "the" "crux" "of" "the" "referring" "court" "’" "s" "first" "question" "." "36" "."


Input: "According" "to" "the" "order" "for" "reference" "," "the" "first" "question" "does" "not" "relate" "to" "the" "validity" "of" "the" "decision" "to" "impose" "compulsory" "retirement" "and" "reduce" "the" "Appellant" "’" "s" "pension" "rights" "."


Input: "That" "was" "challenged" "in" "the" "1970s" "and" "the" "Appellant" "sought" "again" "to" "challenge" "it" "(" "unsuccessfully" ")" "after" "the" "offending" "provision" "of" "the" "criminal" "law" "was" "repealed" "." "37" "."


Input: "Rather" "," "to" "the" "extent" "that" "the" "administrative" "decision" "involved" "discrimination" "," "the" "referring" "court" "’" "s" "first" "question" "asks" "whether" "it" "is" "contrary" "to" "Directive" "2000" "/" "78" "to" "maintain" "the" "effects" "of" "that" "decision" "in" "terms" "of" "ongoing" "reduced" "pension" "rights" "." "38" "."


Input: "In" "addressing" "that" "question" "," "I" "will" "begin" "by" "recalling" "the" "Court" "’" "s" "general" "approach" "to" "the" "temporal" "application" "of" "new" "rules" "to" "ongoing" "effects" "of" "pre-existing" "situations" "(" "Section" "1" ")" "."


Input: "I" "will" "then" "turn" "to" "the" "Court" "’" "s" "approach" "specifically" "in" "cases" "involving" "pensions" "(" "Section" "2" ")" "."


Input: "Next" "," "I" "will" "outline" "the" "case-law" "on" "ongoing" "relations" "(" "Section" "3" ")" "and" "the" "extent" "of" "the" "duty" "to" "reopen" "past" "decisions" "(" "Section" "4" ")" "."


Input: "Finally" "," "I" "will" "apply" "those" "findings" "to" "the" "present" "case" "(" "Section" "5" ")" "." "39" "."


Input: "However" "," "before" "turning" "to" "those" "issues" "," "two" "preliminary" "remarks" "are" "called" "for" "." "40" "."


Input: "First" "," "there" "seems" "to" "be" "an" "agreement" "on" "the" "fact" "that" "the" "difference" "in" "criminal" "treatment" "of" "sexual" "relations" "with" "minors" "depending" "on" "the" "homosexual" "or" "heterosexual" "nature" "of" "those" "relations" "," "which" "applied" "under" "Austrian" "law" "in" "1974" "," "would" "not" "be" "acceptable" "today" "."


Input: "Logically" "the" "same" "would" "then" "also" "be" "true" "of" "the" "references" "to" "the" "Appellant" "’" "s" "sexuality" "in" "the" "reasoning" "contained" "in" "the" "disciplinary" "decision" "."


Input: "None" "of" "those" "statements" "were" "in" "fact" "disputed" "by" "the" "Austrian" "Government" "."


Input: "Nonetheless" "," "and" "without" "being" "contradicted" "on" "that" "point" "," "the" "Austrian" "Government" "stated" "that" "both" "the" "criminal" "and" "disciplinary" "sanctions" "were" "entirely" "legal" "under" "Austrian" "law" "in" "1974" "and" "1975" "."


Input: "That" "government" "also" "suggested" "that" "they" "were" "compliant" "with" "the" "then" "prevailing" "European" "standards" "," "which" "have" "evolved" "since" "then" "." "41" "."


Input: "Second" "," "what" "is" "much" "less" "clear" "in" "the" "context" "of" "the" "present" "case" "is" "the" "exact" "relationship" "between" "the" "criminal" "and" "disciplinary" "sanctions" "in" "the" "main" "proceedings" "."


Input: "In" "particular" "," "there" "have" "been" "rather" "extensive" "discussions" "," "both" "in" "the" "written" "submissions" "and" "at" "the" "oral" "hearing" "," "as" "to" "whether" "or" "not" "a" "disciplinary" "sanction" "(" "of" "certain" "severity" ")" "was" "a" "necessary" "consequence" "of" "the" "criminal" "conviction" "."


Input: "On" "the" "one" "hand" "," "unlike" "the" "criminal" "code" "," "the" "(" "rather" "generally" "framed" "(" "5" ")" ")" "disciplinary" "rules" "applicable" "to" "civil" "servants" "made" "no" "formal" "distinction" "between" "behaviour" "depending" "on" "its" "homosexual" "or" "heterosexual" "nature" "."


Input: "On" "the" "other" "hand" "," "in" "its" "order" "for" "reference" "," "the" "referring" "court" "stated" "that" "," "if" "there" "had" "been" "no" "criminal" "conviction" "," "the" "disciplinary" "measures" "imposed" "would" "have" "been" "‘" "incomparably" "milder" "’" "." "42" "."


Input: "In" "response" "to" "questions" "about" "the" "exact" "relationship" "between" "the" "criminal" "and" "disciplinary" "sanctions" "," "the" "Austrian" "Government" "stated" "that" "in" "1974" "the" "existence" "of" "a" "definitive" "criminal" "sanction" "against" "a" "police" "officer" "was" "not" "necessarily" "sufficient" "for" "automatic" "dismissal" "." "(" "6" ")" "Nor" "," "however" "," "was" "such" "a" "conviction" "necessary" "to" "impose" "disciplinary" "sanctions" "."


Input: "Austrian" "police" "officers" "were" "required" "in" "1974" "to" "behave" "in" "line" "with" "the" "highest" "standards" "both" "on" "and" "off" "duty" "."


Input: "Thus" "," "the" "fact" "that" "certain" "behaviour" "was" "not" "the" "subject" "of" "a" "criminal" "conviction" "(" "or" "criminalised" "at" "all" ")" "did" "not" "mean" "that" "it" "posed" "no" "problems" "under" "the" "disciplinary" "rules" "."


Input: "In" "that" "regard" "," "the" "Austrian" "Government" "," "without" "being" "challenged" "on" "the" "point" "," "posited" "that" "," "completely" "irrespective" "of" "sexual" "orientation" "," "the" "solicitation" "by" "a" "32" "-" "year-old" "police" "officer" "of" "14" "-" "and" "15" "-" "year-olds" "in" "a" "public" "park" "was" "unlikely" "to" "be" "viewed" "as" "upstanding" "behaviour" "."


Input: "It" "is" "indeed" "confirmed" "by" "the" "referring" "court" "that" "the" "equivalent" "heterosexual" "soliciting" "of" "minors" "in" "public" "parks" "could" "have" "been" "interpreted" "as" "a" "dereliction" "of" "duty" "," "punishable" "at" "that" "time" "by" "disciplinary" "action" "." "43" "."


Input: "I" "draw" "a" "twofold" "conclusion" "from" "those" "statements" "."


Input: "First" "," "I" "understand" "that" "the" "mere" "existence" "of" "a" "final" "criminal" "conviction" "against" "a" "police" "officer" "had" "by" "definition" "to" "be" "seen" "as" "a" "failure" "in" "terms" "of" "his" "professional" "obligations" "."


Input: "It" "is" "rather" "clear" "that" "the" "standards" "of" "behaviour" "for" "police" "officers" "are" "set" "at" "a" "higher" "level" "than" "merely" "‘" "not" "committing" "criminal" "offences" "’" "." "In" "this" "sense" "," "it" "is" "therefore" "quite" "logical" "that" "the" "existence" "of" "a" "criminal" "conviction" "had" "by" "definition" "direct" "repercussions" "on" "the" "range" "of" "conceivable" "sanctions" "," "making" "them" "‘" "(" "in" ")" "comparably" "harder" "’" "than" "in" "cases" "in" "which" "no" "criminal" "conviction" "were" "issued" "." "(" "7" ")" "Second" "," "I" "also" "understand" "that" "beyond" "this" "one-sided" "implication" "(" "from" "the" "existence" "of" "the" "criminal" "conviction" "to" "the" "disciplinary" "sanction" ")" "in" "terms" "of" "severity" "of" "the" "disciplinary" "sanction" "," "a" "criminal" "conviction" "was" "not" "a" "necessary" "precondition" "for" "the" "adoption" "of" "that" "disciplinary" "sanction" "." "1" "."


Input: "Temporal" "applicability" "of" "new" "rules" "(" "a" ")" "The" "general" "approach" "44" "."


Input: "According" "to" "settled" "case-law" "of" "the" "Court" "," "new" "rules" "apply" "as" "a" "matter" "of" "principle" "immediately" "to" "the" "‘" "future" "effects" "of" "a" "situation" "which" "arose" "under" "the" "old" "rule" "’" "and" "the" "principle" "of" "legitimate" "expectations" "cannot" "be" "extended" "to" "the" "point" "of" "‘" "generally" "preventing" "a" "new" "rule" "from" "applying" "to" "the" "future" "effects" "of" "situations" "which" "arose" "under" "the" "earlier" "rule" "’" "." "(" "8" ")" "45" "."


Input: "However" "," "in" "order" "to" "ensure" "observance" "of" "the" "principles" "of" "legal" "certainty" "and" "the" "protection" "of" "legitimate" "expectations" "," "the" "substantive" "rules" "of" "EU" "law" "must" "be" "interpreted" "as" "applying" "to" "‘" "situations" "existing" "before" "their" "entry" "into" "force" "’" "only" "in" "so" "far" "as" "it" "‘" "clearly" "follows" "from" "their" "terms" "," "their" "objectives" "or" "their" "general" "scheme" "that" "such" "effect" "must" "be" "given" "to" "them" "’" "." "(" "9" ")" "46" "."


Input: "According" "to" "another" "formula" "used" "by" "the" "Court" "," "a" "new" "rule" "of" "law" "‘" "does" "not" "apply" "to" "legal" "situations" "that" "have" "arisen" "and" "become" "definitive" "under" "the" "old" "law" "[" "but" "]" "it" "does" "apply" "to" "their" "future" "effects" "," "and" "to" "new" "legal" "situations" "."


Input: "It" "is" "otherwise" "," "subject" "to" "the" "principle" "of" "the" "non-retroactivity" "of" "legal" "acts" "," "only" "if" "the" "new" "rule" "is" "accompanied" "by" "special" "provisions" "which" "specifically" "lay" "down" "its" "conditions" "of" "temporal" "application" "’" "." "(" "10" ")" "47" "."


Input: "The" "general" "rules" "emerging" "from" "those" "cases" "could" "thus" "be" "described" "as" "follows" ":" "(" "i" ")" "non-application" "of" "new" "rules" "to" "‘" "definitive" "situations" "’" "," "which" "arose" "and" "were" "adjudicated" "upon" "under" "the" "old" "rules" "," "and" "(" "ii" ")" "application" "of" "new" "rules" "to" "future" "effects" "of" "‘" "existing" "situations" "’" "," "which" "produce" "ongoing" "effects" "."


Input: "The" "taking" "into" "account" "of" "older" "facts" "for" "a" "fresh" "legal" "assessment" "under" "the" "new" "rules" "will" "," "furthermore" "," "be" "carried" "out" "only" "if" "such" "an" "assessment" "is" "provided" "for" "or" "necessary" "by" "the" "nature" "or" "structure" "of" "the" "new" "rules" "." "48" "."


Input: "The" "same" "approach" "is" "also" "reflected" "in" "the" "context" "of" "an" "accession" "of" "a" "new" "Member" "State" "to" "the" "European" "Union" "," "(" "11" ")" "both" "with" "regard" "to" "the" "national" "application" "of" "(" "new" ")" "EU" "rules" "as" "well" "as" "the" "jurisdiction" "of" "the" "Court" "on" "preliminary" "rulings" "to" "answer" "questions" "relating" "to" "such" "situations" "."


Input: "Past" "facts" "(" "that" "is" "," "facts" "pre-dating" "accession" ")" "may" "be" "taken" "into" "account" "if" "they" "are" "relevant" "and" "need" "to" "be" "(" "freshly" ")" "assessed" "in" "the" "process" "of" "the" "application" "of" "the" "new" "law" "(" "s" ")" "post-accession" "." "(" "12" ")" "Thus" "," "for" "example" "," "it" "was" "not" "for" "the" "Court" "to" "essentially" "start" "substantively" "re-assessing" "," "post-accession" "," "whether" "or" "not" "some" "terms" "in" "a" "consumer" "contract" "concluded" "prior" "to" "accession" "were" "unfair" "," "even" "if" "that" "contract" "is" "effectively" "being" "enforced" "after" "accession" "." "(" "13" ")" "By" "contrast" "," "the" "Court" "was" "competent" "to" "assess" "whether" "or" "not" "national" "legislation" "capping" "interest" "for" "late" "payments" "that" "related" "to" "a" "legal" "transaction" "concluded" "well" "before" "accession" "," "but" "with" "ongoing" "effects" "(" "and" "their" "ultimate" "calculation" ")" "after" "accession" "," "was" "compatible" "with" "EU" "law" "." "(" "14" ")" "(" "b" ")" "Ciola" "49" "."


Input: "In" "their" "written" "as" "well" "as" "oral" "submissions" "," "both" "the" "Appellant" "and" "the" "Commission" "relied" "extensively" "on" "the" "decision" "of" "this" "Court" "in" "Ciola" "." "(" "15" ")" "That" "decision" "should" "indeed" "be" "looked" "at" "in" "detail" "," "because" "it" "demonstrates" "how" "the" "general" "guidance" "outlined" "in" "the" "previous" "section" "is" "applied" "in" "the" "context" "of" "a" "specific" "case" "." "50" "."


Input: "The" "magic" "date" "in" "Ciola" "was" "1" "January" "1995" "," "when" "Austria" "acceded" "to" "the" "European" "Communities" "."

"O" "O" "O" "O" "B-ORGANISATION" "O" "B-ORGANISATION" "B-ORGANISATION" "B-ORGANISATION" "O" "O" "B-ORGANISATION" "O" "O" "O" "O" "O" "O"

"O" "O" "O" "O" "I-PERSON" "O" "I-PERSON" "I-PERSON" "I-PERSON" "O" "O" "I-PERSON" "O" "O" "O" "O" "O" "O"

"O" "O" "O" "O" "I-ADDRESS" "O" "I-ADDRESS" "I-ADDRESS" "I-ADDRESS" "O" "O" "I-ADDRESS" "O" "O" "O" "O" "O" "O"

"O" "O" "O" "O" "I-AMOUNT" "O" "I-AMOUNT" "I-AMOUNT" "I-AMOUNT" "O" "O" "I-AMOUNT" "O" "O" "O" "O" "O" "O"

"O" "O" "O" "O" "B-AMOUNT" "O" "B-AMOUNT" "B-AMOUNT" "B-AMOUNT" "O" "O" "B-AMOUNT" "O" "O" "O" "O" "O" "O"

"O" "O" "O" "O" "I-ORGANISATION" "O" "I-ORGANISATION" "I-ORGANISATION" "I-ORGANISATION" "O" "O" "I-ORGANISATION" "O" "O" "O" "O" "O" "O"

"O" "O" "O" "O" "B-PERSON" "O" "B-DATE" "I-DATE" "I-DATE" "O" "O" "B-ADDRESS" "O" "O" "O" "O" "O" "O"


Input: "At" "that" "date" "," "of" "course" "besides" "any" "explicit" "derogations" "," "EC" "law" "," "including" "free" "movement" "rules" "," "entered" "into" "force" "in" "full" "and" "became" "applicable" "immediately" "in" "that" "new" "Member" "State" "." "51" "."


Input: "Mr" "Ciola" "’" "s" "company" "owned" "and" "rented" "200" "moorings" "for" "pleasure" "boats" "," "situated" "in" "the" "Austrian" "part" "of" "Lake" "Constance" "."

"B-ORGANISATION" "B-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "B-ORGANISATION" "B-ORGANISATION" "O"

"I-ORGANISATION" "I-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "I-ORGANISATION" "I-ORGANISATION" "O"


Input: "An" "administrative" "decision" "from" "1990" "stated" "that" "a" "maximum" "of" "60" "moorings" "could" "be" "rented" "to" "foreign" "residents" "." "(" "16" ")" "A" "list" "of" "the" "moorings" "granted" "to" "foreign" "residents" "was" "to" "be" "provided" "on" "an" "annual" "basis" "." "(" "17" ")" "52" "."


Input: "On" "10" "July" "1996" "(" "18" "months" "after" "accession" ")" "," "a" "new" "individual" "administrative" "decision" "was" "adopted" "," "finding" "the" "company" "guilty" "of" "renting" "two" "moorings" "to" "foreign" "residents" "in" "January" "and" "May" "1995" "," "in" "excess" "of" "the" "quota" "of" "60" "."

"O" "I-ORGANISATION" "I-ORGANISATION" "I-ORGANISATION" "O" "I-ORGANISATION" "I-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "I-ORGANISATION" "O" "I-ORGANISATION" "I-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O"

"O" "B-ORGANISATION" "B-ORGANISATION" "B-ORGANISATION" "O" "B-ORGANISATION" "B-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "B-ORGANISATION" "O" "B-ORGANISATION" "B-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O"

"O" "B-ADDRESS" "B-ADDRESS" "B-ADDRESS" "O" "B-ADDRESS" "B-ADDRESS" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "B-ADDRESS" "O" "B-ADDRESS" "B-ADDRESS" "O" "O" "O" "O" "O" "O" "O" "O" "O"

"O" "I-ADDRESS" "I-ADDRESS" "I-ADDRESS" "O" "I-ADDRESS" "I-ADDRESS" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "I-ADDRESS" "O" "I-ADDRESS" "I-ADDRESS" "O" "O" "O" "O" "O" "O" "O" "O" "O"


Input: "Mr" "Ciola" "was" "fined" "for" "each" "of" "these" "infringements" "of" "the" "administrative" "decision" "of" "1990" "." "(" "18" ")" "Mr" "Ciola" "appealed" "against" "the" "decision" "of" "1996" "to" "impose" "a" "penalty" "."

"I-ORGANISATION" "I-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "I-ORGANISATION" "O" "O" "O" "O" "I-ORGANISATION" "I-ORGANISATION" "O" "O" "O" "O" "O" "I-ORGANISATION" "O" "O" "O" "O" "O"

"I-ADDRESS" "I-ADDRESS" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "I-ADDRESS" "O" "O" "O" "O" "I-ADDRESS" "I-ADDRESS" "O" "O" "O" "O" "O" "I-ADDRESS" "O" "O" "O" "O" "O"

"B-ORGANISATION" "B-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "B-ORGANISATION" "O" "O" "O" "O" "B-ORGANISATION" "B-ORGANISATION" "O" "O" "O" "O" "O" "B-ORGANISATION" "O" "O" "O" "O" "O"

"B-ADDRESS" "B-ADDRESS" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "B-ADDRESS" "O" "O" "O" "O" "B-ADDRESS" "B-ADDRESS" "O" "O" "O" "O" "O" "B-ADDRESS" "O" "O" "O" "O" "O"


Input: "The" "case" "was" "referred" "to" "this" "Court" "," "with" "the" "second" "question" "raised" "by" "the" "referring" "court" "explicitly" "asking" "about" "the" "temporal" "scope" "of" "application" "of" "that" "preclusion" "," "given" "that" "the" "original" "administrative" "decision" "became" "final" "prior" "to" "accession" "." "53" "."


Input: "The" "Court" "began" "its" "reasoning" "by" "confirming" "that" "the" "foreign" "resident" "mooring" "quota" "was" "precluded" "by" "the" "rules" "on" "free" "movement" "of" "services" "."


Input: "However" "," "the" "Court" "added" "that" "‘" "the" "dispute" "concerns" "not" "the" "fate" "of" "the" "administrative" "act" "itself" "," "in" "this" "case" "the" "decision" "of" "9" "August" "1990" "," "but" "the" "question" "of" "whether" "such" "an" "act" "must" "be" "disregarded" "when" "assessing" "the" "validity" "of" "a" "penalty" "imposed" "[" "after" "the" "date" "of" "accession" "]" "for" "failure" "to" "comply" "with" "an" "obligation" "thereunder" "," "because" "of" "its" "incompatibility" "with" "the" "principle" "of" "freedom" "to" "provide" "services" "’" "." "(" "19" ")" "The" "Court" "concluded" "that" "such" "an" "act" "must" "be" "disregarded" "." "54" "."


Input: "In" "the" "present" "case" "," "the" "Appellant" "cites" "Ciola" "as" "holding" "effectively" "that" "a" "person" "suffering" "the" "negative" "effects" "of" "an" "administrative" "decision" "has" "a" "right" "to" "have" "those" "effects" "neutralised" "if" "," "hypothetically" "," "the" "administrative" "decision" "would" "have" "been" "incompatible" "with" "new" "legal" "rules" "if" "it" "had" "been" "adopted" "after" "the" "entry" "into" "force" "of" "those" "new" "rules" "." "55" "."


Input: "Yet" "such" "a" "conclusion" "does" "not" "follow" "from" "the" "Ciola" "judgment" "."


Input: "In" "Ciola" "the" "applicant" "was" "challenging" "the" "validity" "of" "a" "fine" "that" "was" "imposed" "by" "a" "decision" "post-dating" "the" "entry" "into" "force" "of" "the" "free" "movement" "rules" "in" "Austria" "."


Input: "Moreover" "," "the" "fine" "was" "imposed" "for" "actions" "carried" "out" "by" "Mr" "Ciola" "’" "s" "company" "—" "the" "rental" "of" "moorings" "in" "January" "and" "May" "1995" "—" "which" "themselves" "post-dated" "accession" "." "56" "."

"O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "B-ORGANISATION" "B-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "B-ORGANISATION" "O" "B-ORGANISATION" "B-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O"

"O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "I-ORGANISATION" "I-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "I-ORGANISATION" "O" "I-ORGANISATION" "I-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O"


Input: "Thus" "," "it" "is" "therefore" "rather" "clear" "that" "in" "Ciola" "," "there" "was" "a" "new" "application" "of" "the" "new" "law" "post-dating" "accession" "," "which" "was" "logically" "necessary" "in" "order" "to" "assess" "a" "new" "situation" "."


Input: "Post-accession" "facts" "(" "rental" "of" "moorings" ")" "were" "to" "be" "evaluated" "and" "matched" "with" "new" "post-accession" "law" "(" "national" "law" "prospectively" "adapted" "to" "be" "compliant" "with" "newly" "applicable" "EU" "rules" ")" "."


Input: "Moreover" "," "there" "was" "clearly" "no" "‘" "neutralisation" "’" "of" "(" "past" ")" "effects" "of" "the" "1990" "decision" "in" "the" "sense" "suggested" "by" "the" "Appellant" "."


Input: "The" "Court" "did" "not" "state" "that" "that" "decision" "had" "to" "be" "revisited" "or" "that" "any" "compensation" "for" "its" "previous" "existence" "had" "to" "be" "paid" "."


Input: "Instead" "," "what" "was" "required" "was" "simply" "that" "that" "old" "decision" "," "which" "became" "incompatible" "with" "the" "new" "laws" "post" "-" "1995" "," "could" "no" "longer" "be" "applied" "in" "a" "new" "," "fresh" "application" "of" "the" "law" "in" "the" "context" "of" "imposing" "administrative" "penalties" "post-accession" "." "2" "."


Input: "Specific" "case-law" "on" "pensions" "57" "."


Input: "The" "general" "approach" "outlined" "in" "the" "previous" "section" "also" "applies" "in" "the" "context" "of" "Directive" "2000" "/" "78" "and" "pension" "schemes" "." "(" "20" ")" "However" "," "precisely" "how" "those" "rules" "apply" "in" "individual" "cases" "is" "not" "necessarily" "self-evident" "."


Input: "The" "particularities" "of" "pension" "schemes" "cannot" "be" "ignored" "."


Input: "Rights" "are" "accrued" "and" "pensions" "are" "paid" "out" "for" "decades" "," "during" "which" "laws" "can" "change" "significantly" "."


Input: "The" "fact" "that" "pension-related" "disputes" "can" "involve" "such" "significant" "sums" "of" "money" "for" "the" "individual" "and" "," "in" "aggregate" "," "the" "state" "and" "private" "pension" "funds" "," "makes" "it" "more" "sensitive" "." "58" "."


Input: "That" "is" "indeed" "a" "significant" "feature" "that" "can" "be" "seen" "running" "through" "the" "judgments" "that" "will" "be" "discussed" "in" "this" "section" "in" "relation" "to" "pensions" "."


Input: "The" "large" "majority" "of" "those" "cases" "involve" "decisions" "on" "pensions" "that" "have" "been" "adopted" "after" "the" "new" "rules" "have" "come" "into" "force" "."


Input: "(" "a" ")" "Old" "facts" "," "new" "law" "and" "the" "need" "for" "a" "new" "decision" "59" "."


Input: "There" "are" "many" "judgments" "relating" "specifically" "to" "pensions" "where" "the" "Court" "has" "confirmed" "that" "," "in" "establishing" "the" "right" "to" "a" "pension" "," "facts" "predating" "the" "entry" "into" "force" "of" "new" "rules" "prohibiting" "discrimination" "(" "in" "particular" "," "periods" "of" "service" ")" "must" "be" "considered" "." "60" "."


Input: "Thus" "," "for" "example" "," "the" "Bruno" "and" "O" "’" "Brien" "cases" "(" "21" ")" "concerned" "equal" "treatment" "of" "part-time" "and" "full-time" "workers" "," "which" "is" "provided" "for" "in" "Directive" "97" "/" "81" "/" "EC" "." "(" "22" ")" "The" "Court" "held" "in" "those" "cases" "that" "," "in" "establishing" "whether" "an" "individual" "qualifies" "for" "a" "pension" "," "periods" "of" "part-time" "service" "predating" "the" "entry" "into" "force" "of" "that" "directive" "needed" "to" "be" "considered" "." "(" "23" ")" "In" "both" "Bruno" "and" "O" "’" "Brien" "the" "entitlement" "to" "a" "pension" "was" "to" "be" "determined" "after" "the" "entry" "into" "force" "of" "the" "directive" "." "(" "24" ")" "61" "."


Input: "That" "was" "also" "true" "of" "the" "Barber" "(" "25" ")" "and" "Ten" "Oever" "(" "26" ")" "cases" "," "where" "alleged" "sex" "discrimination" "in" "breach" "of" "Article" "119" "EC" "was" "at" "issue" "."

"O" "O" "O" "O" "O" "O" "I-ORGANISATION" "O" "O" "O" "O" "I-ORGANISATION" "I-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O"

"O" "O" "O" "O" "O" "O" "B-ORGANISATION" "O" "O" "O" "O" "B-ORGANISATION" "B-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O"


Input: "In" "those" "cases" "," "the" "entitlement" "to" "a" "pension" "was" "determined" "after" "the" "entry" "into" "force" "of" "Article" "119" "EEC" "." "(" "27" ")" "62" "."


Input: "In" "Maruko" "(" "28" ")" "the" "issue" "was" "refusal" "of" "a" "right" "to" "a" "survivor" "’" "s" "pension" "resulting" "from" "alleged" "discrimination" "on" "grounds" "of" "sexual" "orientation" "in" "breach" "of" "Directive" "2000" "/" "78" "."


Input: "As" "in" "Ten" "Oever" "," "(" "29" ")" "the" "relevant" "event" "occurred" "," "and" "new" "decision" "was" "made" "(" "death" "of" "a" "partner" "and" "decision" "to" "refuse" "a" "survivor" "’" "s" "pension" ")" "after" "the" "deadline" "for" "transposition" "had" "expired" "." "(" "30" ")" "63" "."


Input: "The" "Kauer" "and" "Duchon" "cases" "effectively" "involved" "discrimination" "on" "grounds" "of" "nationality" "." "(" "31" ")" "In" "those" "cases" "the" "applicants" "applied" "for" "a" "pension" "in" "Austria" "after" "accession" "and" "requested" "that" "certain" "facts" "occurring" "in" "other" "Member" "States" "and" "before" "accession" "be" "taken" "into" "account" "(" "in" "the" "case" "of" "Kauer" "," "child-rearing" "periods" "in" "Belgium" "and" "in" "the" "case" "of" "Duchon" "," "a" "work-related" "accident" "in" "Germany" "leading" "to" "incapacity" ")" "." "64" "."

"O" "I-ORGANISATION" "O" "I-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "I-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "I-ORGANISATION" "O" "O" "O" "O" "I-ORGANISATION" "O" "O" "O" "O" "O" "I-ORGANISATION" "O" "O" "O" "O" "O" "I-ORGANISATION" "O" "O" "O" "O" "O" "O" "O"

"O" "B-ORGANISATION" "O" "B-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "B-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "B-ORGANISATION" "O" "O" "O" "O" "B-ORGANISATION" "O" "O" "O" "O" "O" "B-ORGANISATION" "O" "O" "O" "O" "O" "B-ORGANISATION" "O" "O" "O" "O" "O" "O" "O"


Input: "To" "summarise" "," "the" "above" "cases" "on" "pensions" "all" "involve" "situations" "where" "facts" "pre-dating" "new" "law" "are" "taken" "into" "account" "when" "adopting" "a" "decision" "post-dating" "the" "new" "law" "."


Input: "That" "fits" "the" "pattern" "of" "the" "general" "case-law" "cited" "above" "perfectly" ":" "there" "is" "an" "ongoing" "factual" "situation" "in" "relation" "to" "which" "a" "fresh" "legal" "assessment" "has" "to" "be" "carried" "out" "following" "the" "entry" "into" "force" "of" "a" "new" "law" "."


Input: "In" "such" "situations" "," "it" "is" "entirely" "logical" "," "in" "particular" "in" "the" "social" "security" "context" "," "that" "all" "the" "relevant" "factual" "elements" "pre-dating" "the" "new" "law" "are" "to" "be" "taken" "into" "account" "." "65" "."


Input: "For" "that" "reason" "," "that" "case-law" "is" "in" "my" "view" "not" "transposable" "to" "the" "present" "case" "," "where" "the" "facts" "," "the" "applicable" "law" "," "as" "well" "as" "the" "administrative" "decision" "itself" "pre-date" "the" "new" "law" "."


Input: "The" "only" "facts" "post-dating" "the" "new" "law" "are" "the" "pension" "payments" "made" "to" "the" "Appellant" "." "66" "."


Input: "That" "is" "all" "the" "more" "so" "since" "the" "alleged" "discriminatory" "decision" "in" "the" "present" "case" "involves" "the" "assessment" "and" "application" "of" "law" "to" "facts" "that" "in" "themselves" "are" "not" "directly" "related" "to" "pension" "entitlement" "or" "calculation" "."


Input: "The" "alleged" "discrimination" "relates" "to" "a" "disciplinary" "decision" "which" "," "having" "confirmed" "the" "guilt" "of" "the" "Appellant" "," "has" "imposed" "a" "twofold" "disciplinary" "sanction" "on" "him" "." "(" "32" ")" "There" "is" "of" "course" "no" "denying" "that" "that" "decision" "has" "had" "repercussions" "on" "the" "Appellant" "’" "s" "pension" "." "(" "33" ")" "However" "," "unlike" "the" "cases" "discussed" "in" "this" "section" "," "the" "present" "case" "does" "not" "involve" "," "for" "example" "," "objective" "conditions" "of" "entitlement" "pertaining" "to" "personal" "situations" "or" "periods" "of" "service" "."


Input: "Instead" "," "it" "concerns" "an" "underlying" "and" "separate" "disciplinary" "decision" "relating" "to" "a" "specific" "set" "of" "facts" "."


Input: "(" "b" ")" "Existing" "pensions" "," "new" "law" "and" "current" "situations" "67" "."


Input: "The" "judgment" "in" "Römer" "," "(" "34" ")" "which" "has" "been" "cited" "by" "all" "parties" "," "does" "not" "fit" "the" "above" "pattern" "quite" "so" "well" "."


Input: "It" "therefore" "deserves" "to" "be" "considered" "in" "more" "detail" "." "68" "."


Input: "In" "that" "case" "," "the" "applicant" "was" "in" "fact" "already" "retired" "and" "drawing" "his" "pension" "when" "in" "2001" "(" "so" "prior" "to" "the" "expiry" "of" "the" "deadline" "for" "transposing" "Directive" "2000" "/" "78" ")" "he" "entered" "into" "a" "life" "partnership" "with" "his" "male" "companion" "."


Input: "Mr" "Römer" "was" "denied" "the" "tax" "classification" "which" "would" "normally" "have" "been" "applied" "in" "case" "of" "a" "(" "heterosexual" ")" "marriage" "," "(" "35" ")" "and" "would" "have" "given" "him" "higher" "pension" "payments" "." "69" "."


Input: "The" "Court" "in" "substance" "held" "that" "," "to" "the" "extent" "there" "was" "discrimination" "," "Mr" "Römer" "could" "claim" "equal" "tax" "treatment" "as" "from" "the" "expiry" "of" "the" "deadline" "for" "transposition" "of" "Directive" "2000" "/" "78" "."


Input: "Unlike" "the" "other" "cases" "cited" "above" "," "however" "," "in" "Römer" "the" "applicant" "’" "s" "entitlement" "to" "a" "pension" "was" "decided" "before" "the" "new" "rules" "entered" "into" "force" "."


Input: "The" "issue" "was" "about" "ongoing" "discrimination" "in" "relation" "to" "subsequent" "payments" "and" "the" "applicant" "’" "s" "tax" "position" "." "70" "."


Input: "However" "," "that" "case" "is" "different" "from" "the" "present" "one" "," "for" "two" "reasons" "in" "particular" "." "71" "."


Input: "First" "," "it" "is" "true" "that" "Mr" "Römer" "’" "s" "tax" "position" "had" "been" "determined" "prior" "to" "the" "expiry" "of" "the" "transposition" "period" "of" "Directive" "2000" "/" "78" "," "so" "in" "that" "sense" "it" "was" "a" "‘" "final" "’" "decision" "."


Input: "However" "," "it" "is" "also" "the" "case" "that" "relevant" "national" "law" "provided" "for" "a" "review" "of" "tax" "treatment" "in" "case" "of" "a" "change" "in" "personal" "circumstances" "."


Input: "Thus" "," "as" "confirmed" "by" "the" "Court" "," "under" "the" "applicable" "national" "law" "‘" "if" "the" "conditions" "[" "for" "more" "favourable" "tax" "classification" "]" "are" "not" "satisfied" "until" "after" "payment" "of" "the" "retirement" "pension" "has" "commenced" "," "the" "latter" "provision" "has" "to" "be" "applied" "from" "that" "date" "if" "the" "party" "concerned" "so" "requests" "’" "." "(" "36" ")" "72" "."


Input: "In" "Römer" "there" "was" "therefore" "a" "mechanism" "for" "adopting" "fresh" "decisions" "," "taking" "new" "," "and" "for" "the" "purposes" "of" "social" "security" "calculations" "," "relevant" "changes" "in" "personal" "circumstances" "into" "account" "." "73" "."


Input: "Secondly" "," "and" "more" "fundamentally" "," "leaving" "aside" "the" "aforementioned" "review" "clause" "," "the" "judgment" "in" "Römer" "concerns" "the" "way" "in" "which" "new" "rules" "(" "Directive" "2000" "/" "78" ")" "might" "apply" "to" "the" "current" "personal" "situation" "of" "an" "individual" "," "in" "order" "to" "review" "a" "decision" "on" "their" "pension" "rights" "." "74" "."


Input: "That" "is" "," "in" "my" "opinion" "," "completely" "different" "from" "the" "type" "of" "temporal" "application" "argued" "for" "by" "the" "Appellant" "in" "the" "present" "case" "."


Input: "In" "the" "present" "case" "," "what" "is" "proposed" "is" "not" "the" "(" "legally" "provided" "for" ")" "taking" "into" "account" "of" "personal" "circumstances" "for" "a" "future" "adjustment" "," "but" "a" "review" "in" "the" "light" "of" "new" "rules" "of" "law" "of" "a" "closed" "set" "of" "facts" "taking" "place" "many" "years" "ago" "and" "a" "disciplinarydecision" "adopted" "in" "relation" "to" "them" "," "with" "the" "purpose" "of" "altering" "knock-on" "effects" "for" "pension" "rights" "."


Input: "(" "c" ")" "Exceptions" "to" "the" "rule" "?"


Input: "75" "."


Input: "It" "is" "true" "that" "there" "are" "isolated" "judgments" "of" "the" "Court" "where" "the" "decision" "on" "granting" "a" "pension" "and" "all" "relevant" "facts" "appear" "to" "predate" "the" "new" "rules" "."


Input: "In" "other" "words" "," "a" "decision" "has" "been" "taken" "to" "grant" "(" "or" "not" ")" "a" "pension" "and" "concerning" "the" "level" "of" "entitlement" "," "but" "new" "rules" "are" "apparently" "invoked" "to" "reopen" "that" "decision" "," "without" "there" "being" "any" "new" "facts" "or" "any" "change" "to" "personal" "circumstances" "." "76" "."


Input: "However" "," "such" "judgments" "are" "in" "practice" "rare" "and" "," "on" "a" "closer" "inspection" "," "they" "can" "easily" "be" "distinguished" "."


Input: "In" "P" "." "(" "37" ")" "the" "applicant" "was" "the" "divorcee" "of" "a" "Commission" "official" "."

"O" "I-ORGANISATION" "I-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O"

"O" "B-ORGANISATION" "B-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O"


Input: "At" "the" "time" "the" "official" "died" "," "P" "." "had" "no" "right" "to" "a" "survivor" "’" "s" "pension" "because" "‘" "fault" "’" "for" "the" "divorce" "had" "not" "been" "placed" "solely" "on" "the" "deceased" "husband" "."


Input: "Only" "a" "few" "months" "after" "the" "death" "," "new" "rules" "entered" "into" "force" "," "under" "which" "P" "." "would" "have" "had" "a" "right" "to" "a" "survivor" "’" "s" "pension" "." "(" "38" ")" "The" "Court" "effectively" "applied" "the" "new" "rules" "," "which" "created" "a" "right" "for" "P" "." "to" "a" "pension" "from" "the" "date" "of" "entry" "into" "force" "of" "those" "new" "rules" "." "77" "."


Input: "In" "the" "P" "." "case" "," "there" "were" "nonetheless" "some" "peculiar" "features" "."

"O" "O" "B-ORGANISATION" "B-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O"

"O" "O" "I-ORGANISATION" "I-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O"


Input: "The" "Commission" "in" "fact" "argued" "strongly" "in" "favour" "of" "application" "of" "the" "new" "rules" "(" "it" "contested" "the" "payment" "of" "a" "pension" "on" "other" "grounds" ")" "."


Input: "Other" "institutions" "applied" "the" "rules" "with" "immediate" "effect" "," "and" "failure" "to" "do" "so" "would" "," "according" "to" "the" "Commission" "," "result" "in" "discrimination" "between" "officials" "."


Input: "Moreover" "," "the" "original" "decision" "refusing" "the" "pension" "to" "P" "." "was" "in" "practice" "taken" "some" "days" "after" "the" "new" "rules" "entered" "into" "force" "(" "even" "though" "the" "death" "of" "the" "ex-husband" "’" "s" "death" "was" "prior" "to" "this" ")" "." "78" "."


Input: "In" "the" "case" "of" "Brock" "," "the" "applicant" "had" "been" "granted" "an" "invalidity" "pension" "in" "1958" "."

"O" "O" "O" "O" "I-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "I-ORGANISATION" "O"

"O" "O" "O" "O" "B-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "B-ORGANISATION" "O"


Input: "In" "1961" "that" "was" "transformed" "into" "an" "old" "age" "pension" "." "(" "39" ")" "The" "question" "was" "essentially" "whether" "new" "rules" "requiring" "the" "taking" "into" "account" "of" "contributions" "in" "other" "Member" "States" "and" "entering" "into" "force" "on" "1" "January" "1964" "applied" "."

"O" "I-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "I-ORGANISATION" "I-ORGANISATION" "I-ORGANISATION" "O" "O"

"O" "B-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "B-ORGANISATION" "B-ORGANISATION" "B-ORGANISATION" "O" "O"


Input: "The" "Court" "held" "that" "they" "did" "." "79" "."


Input: "It" "is" "in" "my" "view" "significant" "that" "in" "that" "case" "the" "relevant" "legislation" "included" "a" "provision" "that" "explicitly" "provided" "for" "review" "of" "pensions" "that" "were" "calculated" "before" "entry" "into" "force" "of" "that" "legislation" "." "80" "."


Input: "However" "," "the" "most" "important" "element" "distinguishing" "P" "." "and" "Brock" "from" "the" "present" "case" "is" "that" "the" "relevant" "decisions" "in" "those" "casesconcerned" "the" "assessment" "of" "the" "conditions" "for" "granting" "the" "pension" "under" "new" "rules" "of" "law" "." "81" "."


Input: "That" "is" "obviously" "different" "from" "the" "assessment" "of" "past" "behaviour" "under" "new" "rules" "of" "law" "," "for" "the" "purposes" "of" "determining" "how" "different" "a" "(" "disciplinary" ")" "decision" "would" "have" "been" "," "and" "its" "knock-on" "effects" "on" "subsequent" "pension" "rights" "." "82" "."


Input: "Thus" "," "for" "example" "," "in" "P" "." "the" "divorcee" "did" "not" "request" "the" "reassessment" "of" "her" "divorce" "," "to" "determine" "whether" "her" "ex-husband" "was" "solely" "responsible" "."


Input: "In" "Brock" "," "the" "incapacitated" "party" "did" "not" "request" "a" "reassessment" "of" "the" "circumstances" "of" "his" "accident" "to" "determine" "whether" "it" "could" "be" "classed" "as" "an" "accident" "at" "work" "."


Input: "Any" "decisions" "on" "responsibility" "for" "the" "divorce" "or" "the" "accident" "were" "final" "," "just" "as" "the" "disciplinary" "decision" "in" "the" "present" "case" "is" "also" "final" "." "83" "."


Input: "In" "sum" "," "judgments" "such" "as" "P" "." "and" "Brock" "do" "have" "a" "‘" "more" "strongly" "retroactive" "flavour" "’" "to" "them" "at" "first" "sight" "than" "other" "cases" "," "such" "as" "those" "discussed" "above" "."


Input: "However" "," "apart" "from" "the" "fact" "that" "they" "are" "relatively" "old" "and" "isolated" "cases" "," "they" "can" "clearly" "be" "distinguished" "from" "the" "present" "case" "."


Input: "In" "any" "event" "," "it" "is" "," "in" "my" "view" "," "clear" "that" "such" "judgments" "cannot" "be" "read" "as" "meaning" "that" "the" "adoption" "of" "any" "new" "rules" "gives" "rise" "to" "an" "absolute" "right" "to" "have" "any" "underlying" "and" "previous" "administrative" "decisions" "," "which" "have" "otherwise" "become" "definitive" "," "reviewed" "in" "the" "light" "of" "those" "new" "rules" "and" "for" "corresponding" "adjustments" "to" "be" "made" "to" "pension" "payments" "."


Input: "(" "d" ")" "Transitional" "provisions" "84" "."


Input: "Finally" "," "another" "line" "of" "case-law" "in" "the" "pension" "context" "worth" "addressing" "relates" "to" "Directive" "79" "/" "7" "/" "EEC" "." "(" "40" ")" "That" "directive" "required" "Member" "States" "to" "implement" "the" "principle" "of" "equal" "treatment" "of" "men" "and" "women" "in" "matters" "of" "social" "security" "."


Input: "As" "part" "of" "that" "process" "," "Member" "States" "changed" "national" "rules" "on" "benefits" "to" "remove" "discrimination" "on" "grounds" "of" "sex" "." "85" "."


Input: "Those" "legislative" "changes" "led" "to" "a" "number" "of" "references" "to" "this" "Court" "."


Input: "To" "the" "extent" "relevant" "here" "," "the" "cases" "concerned" "female" "claimants" "who" "," "on" "the" "basis" "of" "discriminatory" "national" "rules" "," "had" "been" "refused" "social" "security" "benefits" "by" "a" "decision" "adopted" "prior" "to" "the" "deadline" "for" "transposition" "of" "the" "directive" "."


Input: "They" "sought" "," "in" "effect" "," "to" "obtain" "those" "benefits" "after" "the" "transposition" "deadline" "by" "application" "of" "the" "new" "non-discriminatory" "rules" "." "86" "."


Input: "The" "judgments" "adopted" "by" "the" "Court" "repeatedly" "confirmed" "that" "the" "effects" "of" "the" "discrimination" "had" "to" "be" "removed" "after" "expiry" "of" "the" "transposition" "deadline" "."


Input: "However" "," "on" "closer" "inspection" "," "those" "cases" "are" "again" "very" "different" "from" "the" "present" "one" "." "87" "."


Input: "For" "example" "," "in" "the" "Borrie" "Clarke" "case" "," "(" "41" ")" "national" "law" "imposed" "an" "additional" "condition" "on" "women" "applying" "for" "an" "invalidity" "pension" "," "as" "compared" "with" "men" "(" "the" "inability" "to" "do" "housework" ")" "."


Input: "The" "claimant" "did" "not" "meet" "that" "additional" "condition" "and" "her" "request" "for" "a" "pension" "was" "rejected" "in" "1983" "."

"O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "B-ORGANISATION" "B-ORGANISATION"

"O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "I-ORGANISATION" "I-ORGANISATION"


Input: "To" "comply" "with" "the" "directive" "," "national" "law" "was" "subsequently" "changed" "."


Input: "The" "invalidity" "pension" "was" "replaced" "with" "disability" "allowance" "and" "new" "conditions" "were" "imposed" "," "which" "were" "the" "same" "for" "both" "sexes" "."


Input: "However" "," "as" "part" "of" "the" "transition" "," "people" "who" "had" "been" "granted" "invalidity" "pensions" "prior" "to" "the" "new" "law" "automatically" "received" "disability" "allowance" "without" "needing" "to" "meet" "the" "new" "conditions" "."


Input: "The" "transitional" "provisions" "thus" "effectively" "reaffirmed" "and" "perpetuated" "the" "discrimination" "." "88" "."


Input: "The" "Court" "held" "that" "‘" "if" "," "as" "from" "[" "the" "transposition" "deadline" "]" "," "a" "man" "in" "the" "same" "position" "as" "a" "woman" "was" "automatically" "entitled" "to" "the" "new" "severe" "disability" "allowance" "under" "the" "aforesaid" "transitional" "provisions" "without" "having" "to" "re-establish" "his" "rights" "," "a" "woman" "was" "also" "entitled" "to" "that" "allowance" "without" "having" "to" "satisfy" "an" "additional" "condition" "applicable" "before" "that" "date" "exclusively" "to" "married" "women" "’" "." "(" "42" ")" "89" "."


Input: "In" "my" "view" "," "the" "situation" "in" "Borrie" "Clarke" "is" "similar" "to" "the" "other" "pensions" "cases" "already" "discussed" "above" "in" "Section" "(" "a" ")" "."


Input: "The" "transitional" "provisions" "effectively" "constituted" "a" "new" "application" "(" "or" "at" "the" "least" "a" "renewal" "of" "the" "past" "decision" "under" "the" "new" "law" ")" "of" "the" "discriminatory" "rules" "for" "the" "future" "."


Input: "As" "a" "result" "," "that" "line" "of" "case-law" "can" "again" "clearly" "be" "distinguished" "from" "the" "present" "case" "." "90" "."


Input: "The" "same" "type" "of" "situation" "can" "be" "seen" "in" "other" "judgments" "," "albeit" "relating" "to" "different" "kinds" "of" "benefits" "." "(" "43" ")" "3" "."


Input: "Ongoing" "relations" "91" "."


Input: "In" "its" "written" "submissions" "," "the" "Commission" "also" "referred" "to" "the" "Österreichischer" "Gewerkschaftsbund" "case" "," "(" "44" ")" "drawing" "a" "parallel" "with" "ongoing" "discrimination" "regarding" "the" "payment" "of" "monthly" "salaries" "."


Input: "That" "chimes" "with" "the" "Appellant" "’" "s" "arguments" "," "which" "repeatedly" "refer" "to" "the" "ongoing" "discrimination" "in" "the" "form" "of" "reduced" "pension" "payments" "," "which" "are" "made" "on" "a" "regular" "basis" "." "92" "."


Input: "To" "the" "extent" "that" "the" "reference" "to" "this" "line" "of" "case-law" "could" "be" "seen" "as" "supporting" "an" "argument" "different" "to" "the" "one" "explored" "in" "the" "previous" "section" "," "I" "do" "not" "see" "how" "it" "could" "help" "the" "claims" "made" "by" "the" "Appellant" "."


Input: "In" "my" "view" "," "that" "case-law" "is" "again" "simply" "different" "." "93" "."


Input: "In" "Österreichischer" "Gewerkschaftsbund" "," "(" "45" ")" "for" "the" "purposes" "of" "calculating" "pay" "for" "contracted" "teachers" "," "Austrian" "law" "fully" "took" "into" "account" "previous" "teaching" "experience" "gained" "in" "Austria" "."


Input: "Teaching" "experience" "in" "other" "Member" "States" "was" "only" "taken" "into" "account" "to" "a" "limited" "extent" "."


Input: "The" "Court" "held" "that" "limitation" "to" "be" "contrary" "to" "the" "free" "movement" "of" "workers" "."


Input: "It" "also" "held" "that" "," "to" "remedy" "the" "discrimination" "," "teaching" "experience" "in" "other" "Member" "States" "had" "to" "be" "taken" "into" "account" "fully" "," "even" "if" "it" "was" "acquired" "before" "Austrian" "accession" "." "94" "."


Input: "Österreichischer" "Gewerkschaftsbund" "is" "in" "fact" "one" "of" "a" "number" "of" "judgments" "where" "the" "Court" "has" "essentially" "held" "that" "," "in" "employment" "relationships" "," "facts" "predating" "the" "entry" "into" "force" "of" "new" "rules" "may" "need" "to" "be" "taken" "into" "account" "in" "determining" "pay" "for" "employees" "if" "they" "are" "relevant" "for" "that" "assessment" "under" "the" "new" "legal" "regime" "." "(" "46" ")" "Thus" "," "for" "example" "," "in" "a" "series" "of" "cases" "beginning" "with" "Hütter" "," "the" "Court" "held" "that" "Austrian" "rules" "taking" "into" "account" "professional" "experience" "obtained" "before" "the" "age" "of" "18" "in" "fixing" "civil" "servants" "’" "pay" "grades" "were" "contrary" "to" "the" "prohibition" "on" "discrimination" "on" "grounds" "of" "age" "under" "Directive" "2000" "/" "78" "." "(" "47" ")" "Pay" "grades" "had" "to" "be" "adjusted" "to" "remove" "the" "discrimination" "," "including" "where" "the" "relevant" "experience" "was" "acquired" "before" "expiry" "of" "the" "deadline" "for" "transposing" "that" "directive" "." "95" "."


Input: "In" "my" "view" "it" "is" "not" "possible" "to" "draw" "direct" "parallels" "between" "such" "cases" "," "involving" "adjustments" "of" "salaries" "to" "remedy" "discrimination" "and" "," "cases" "like" "the" "present" "one" "for" "a" "simple" "reason" ":" "the" "employment" "relationship" "in" "cases" "such" "as" "Österreichischer" "Gewerkschaftsbund" "was" "an" "ongoing" "one" "," "with" "current" "reciprocal" "rights" "and" "obligations" "."


Input: "The" "employee" "has" "a" "grade" "or" "rank" "and" "a" "specific" "number" "of" "years" "of" "relevant" "experience" "," "which" "is" "used" "each" "month" "as" "a" "basis" "to" "calculate" "his" "salary" "."


Input: "Thus" "," "there" "is" "a" "‘" "renewal" "’" "each" "month" "," "a" "renewed" "application" "of" "the" "extant" "laws" "for" "the" "purposes" "of" "the" "appropriate" "salary" "calculations" "," "necessitating" "ongoing" "adjustments" "in" "the" "light" "of" "new" "law" "and" "changes" "to" "personal" "situation" "." "(" "48" ")" "That" "is" "indeed" "similar" "in" "some" "ways" "to" "the" "scenario" "in" "Römer" "," "where" "specific" "legislative" "provisions" "relating" "to" "a" "change" "in" "the" "personal" "situation" "of" "the" "claimant" "allowed" "for" "a" "similar" "‘" "renewal" "’" "." "(" "49" ")" "96" "."


Input: "By" "contrast" "," "in" "cases" "such" "as" "the" "present" "one" "," "the" "employment" "relationship" "had" "come" "to" "an" "end" "(" "50" ")" "," "all" "pension" "rights" "were" "accumulated" "well" "before" "that" "time" "and" "a" "disciplinary" "decision" "on" "the" "25%" "reduction" "had" "been" "taken" "in" "1975" "on" "the" "basis" "of" "past" "events" "and" "become" "definitive" "."


Input: "The" "practical" "effects" "of" "that" "decision" "continue" "to" "be" "felt" "," "as" "may" "be" "the" "situation" "with" "any" "and" "every" "past" "event" "," "but" "there" "is" "no" "longer" "any" "ongoing" "relationship" "that" "would" "require" "a" "fresh" "(" "re" ")" "assessment" "under" "the" "new" "law" "."


Input: "There" "are" "no" "continuously" "relevant" "past" "facts" "."


Input: "In" "this" "sense" "," "legal" "effects" "of" "the" "past" "facts" "have" "indeed" "been" "exhausted" "." "4" "."


Input: "Reopening" "past" "decisions" "97" "."


Input: "Finally" "," "to" "provide" "a" "complete" "overview" "," "it" "ought" "to" "be" "added" "that" "there" "also" "exists" "," "under" "EU" "law" "," "in" "addition" "to" "the" "rules" "concerning" "temporal" "applicability" "of" "new" "rules" "to" "past" "facts" "and" "/" "or" "ongoing" "legal" "relationships" "," "the" "limited" "duty" "to" "reopen" "past" "decisions" "if" "they" "are" "incompatible" "with" "EU" "law" "." "98" "."


Input: "The" "Court" "’" "s" "case-law" "underlines" "the" "importance" "of" "the" "principle" "of" "res" "judicata" "for" "reasons" "of" "stability" "of" "the" "law" "and" "legal" "relations" "," "as" "well" "as" "the" "sound" "administration" "of" "justice" "."


Input: "Decisions" "which" "have" "become" "final" "after" "all" "rights" "of" "appeal" "have" "been" "exhausted" "or" "after" "expiry" "of" "the" "time" "limits" "provided" "for" "in" "that" "regard" "can" "no" "longer" "be" "called" "into" "question" "." "(" "51" ")" "That" "is" "so" "even" "if" "to" "do" "so" "would" "enable" "a" "national" "court" "to" "remedy" "an" "infringement" "of" "EU" "law" "by" "the" "decision" "at" "issue" "." "(" "52" ")" "99" "."


Input: "It" "is" "true" "that" "final" "decisions" "may" "be" "reopened" "," "but" "that" "is" "only" "the" "case" "if" "there" "are" "truly" "exceptional" "circumstances" "."


Input: "Those" "circumstances" "include" "the" "fact" "that" "EU" "law" "was" "misinterpreted" "," "without" "a" "question" "being" "referred" "to" "the" "Court" "for" "a" "preliminary" "ruling" "," "and" "that" "the" "person" "concerned" "complained" "to" "the" "administrative" "body" "immediately" "after" "becoming" "aware" "of" "that" "decision" "of" "the" "Court" "." "(" "53" ")" "100" "."


Input: "However" "," "leaving" "aside" "the" "question" "of" "where" "exactly" "the" "‘" "exceptionality" "’" "threshold" "would" "lie" "," "the" "common" "denominator" "to" "those" "few" "cases" "where" "such" "an" "obligation" "was" "imposed" "was" "naturally" "that" "the" "incompatibility" "alreadyexisted" "at" "the" "moment" "when" "the" "decision" "was" "taken" "at" "national" "level" "."


Input: "Thus" "," "the" "original" "decision" "was" "already" "in" "breach" "of" "EU" "law" "." "101" "."


Input: "By" "contrast" "," "in" "the" "present" "case" "," "at" "the" "time" "the" "relevant" "decisions" "were" "adopted" "(" "both" "the" "disciplinary" "decision" "and" "the" "decision" "granting" "a" "pension" "to" "the" "Appellant" ")" "Austria" "was" "not" "a" "Member" "State" "," "and" "Directive" "2000" "/" "78" "had" "not" "yet" "been" "adopted" "."


Input: "Moreover" "," "according" "to" "the" "Austrian" "Government" "," "a" "view" "which" "the" "Appellant" "does" "not" "contradict" "," "the" "disciplinary" "decision" "was" "compatible" "with" "national" "law" "when" "it" "was" "adopted" "in" "1974" "." "102" "."


Input: "There" "are" "therefore" "no" "exceptional" "circumstances" "that" "would" "justify" "the" "reopening" "of" "final" "administrative" "decisions" "in" "this" "case" "," "let" "alone" "anything" "that" "would" "justify" "a" "more" "general" "and" "far-reaching" "rule" "on" "temporal" "application" "of" "EU" "law" "aimed" "at" "achieving" "the" "same" "result" "." "5" "."


Input: "Application" "to" "the" "present" "case" "103" "."


Input: "The" "main" "conclusions" "that" "can" "be" "drawn" "from" "the" "different" "lines" "of" "case-law" "outlined" "above" "are" "the" "following" "." "104" "."


Input: "First" "," "the" "Court" "’" "s" "case-law" "on" "temporal" "effects" "of" "new" "law" "and" "pension" "rights" "is" "very" "much" "focused" "on" "situations" "where" "the" "pension" "entitlement" "was" "decided" "after" "the" "new" "law" "came" "into" "force" "." "105" "."


Input: "Second" "," "the" "case-law" "on" "ongoing" "(" "employment" ")" "relationships" "and" "adjustment" "of" "pay" "grades" "and" "monthly" "salaries" "cannot" "be" "transposed" "to" "the" "payment" "of" "pensions" "," "calculated" "and" "already" "paid" "out" "(" "long" ")" "before" "the" "new" "law" "came" "into" "force" "." "106" "."


Input: "Third" "," "there" "is" "no" "solid" "basis" "in" "the" "Court" "’" "s" "case-law" "for" "the" "far-reaching" "proposal" "that" "the" "ongoing" "effects" "on" "pension" "payments" "of" "administrative" "decisions" "," "which" "have" "become" "definitive" "before" "entry" "into" "force" "of" "the" "new" "law" "," "must" "be" "revisited" "," "taking" "into" "account" "the" "way" "that" "the" "new" "law" "would" "have" "been" "applied" "."


Input: "Moreover" "," "such" "a" "proposal" "conflicts" "with" "the" "Court" "’" "s" "well" "established" "case-law" "on" "res" "judicata" "." "107" "."


Input: "I" "already" "sought" "to" "distinguish" "the" "present" "case" "and" "to" "explain" "why" "it" "falls" "outside" "of" "any" "of" "those" "categories" "in" "each" "of" "the" "relevant" "sections" "above" "."


Input: "In" "a" "nutshell" "," "I" "consider" "that" "in" "the" "present" "case" "the" "compulsory" "retirement" "and" "fixing" "of" "the" "reduced" "pension" "rights" "had" "already" "become" "a" "‘" "definitive" "situation" "’" "within" "the" "meaning" "of" "the" "case-law" "cited" "above" "in" "point" "46" "before" "the" "transition" "period" "of" "Directive" "2000" "/" "78" "expired" "."


Input: "The" "ongoing" "payment" "of" "a" "pension" "to" "the" "Appellant" "cannot" "be" "considered" "as" "the" "‘" "future" "effects" "’" "of" "a" "situation" "that" "arose" "prior" "to" "that" "directive" "," "within" "the" "meaning" "of" "the" "Court" "’" "s" "case-law" "," "such" "that" "those" "effects" "would" "have" "to" "be" "precluded" "or" "modified" "." "108" "."


Input: "The" "disciplinary" "decision" "was" "already" "unsuccessfully" "challenged" "in" "the" "1970s" "."


Input: "The" "legal" "question" "of" "the" "Appellant" "’" "s" "status" "as" "a" "retired" "police" "officer" "and" "the" "reduction" "of" "his" "pension" "were" "settled" "by" "that" "time" "."


Input: "The" "Appellant" "has" "been" "drawing" "his" "pension" "since" "1976" "."

"O" "O" "O" "O" "O" "O" "O" "O" "I-ORGANISATION" "O"

"O" "O" "O" "O" "O" "O" "O" "O" "B-ORGANISATION" "O"


Input: "There" "is" "no" "new" "decision" "that" "was" "taken" "or" "that" "would" "have" "to" "be" "taken" "after" "expiry" "of" "the" "transposition" "deadline" "for" "Directive" "2000" "/" "78" "." "109" "."


Input: "Moreover" "," "all" "the" "relevant" "facts" "in" "the" "present" "case" "," "which" "formed" "the" "basis" "of" "the" "disciplinary" "decision" "," "occurred" "in" "the" "1970s" "."


Input: "Thus" "," "unlike" "the" "Römer" "case" "," "there" "are" "no" "current" "facts" "relating" "to" "the" "Appellant" "’" "s" "ongoing" "personal" "situation" "that" "are" "subject" "to" "reassessment" "under" "Directive" "2000" "/" "78" "." "110" "."


Input: "I" "do" "not" "consider" "that" "cases" "such" "as" "Brock" "and" "P" "." "can" "serve" "as" "a" "basis" "for" "the" "general" "proposition" "that" "there" "is" "a" "right" "to" "review" "of" "pension" "payments" "," "consisting" "in" "a" "retroactive" "application" "of" "new" "rules" "to" "a" "previously" "existing" "decision" "affecting" "the" "entitlement" "to" "and" "level" "of" "those" "payments" "."


Input: "Also" "," "Brock" "and" "P" "." "are" "in" "my" "view" "very" "different" "from" "the" "present" "case" "."

"O" "O" "I-ADDRESS" "O" "I-ADDRESS" "I-ADDRESS" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O"

"O" "O" "B-ORGANISATION" "O" "B-ORGANISATION" "B-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O"

"O" "O" "I-ORGANISATION" "O" "I-ORGANISATION" "I-ORGANISATION" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O"

"O" "O" "B-ADDRESS" "O" "B-ADDRESS" "B-ADDRESS" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O"


Input: "In" "both" "those" "cases" "the" "pre-existing" "administrative" "decision" "was" "taken" "applying" "a" "number" "of" "rather" "specific" "and" "objective" "conditions" "in" "relation" "to" "the" "entitlement" "to" "and" "level" "of" "the" "pension" "."


Input: "Subsequent" "changes" "to" "the" "law" "modified" "those" "conditions" "."


Input: "That" "contrasts" "with" "the" "present" "case" "," "where" "what" "is" "being" "proposed" "is" "in" "fact" "a" "rerun" "of" "a" "disciplinary" "procedure" "from" "40" "years" "ago" "in" "the" "light" "of" "new" "rules" "on" "discrimination" "and" "a" "qualitative" "assessment" "of" "whether" "that" "decision" "would" "have" "changed" "and" "if" "so" "," "how" "." "111" "."


Input: "In" "his" "submissions" "," "the" "Appellant" "insisted" "on" "the" "‘" "ongoing" "’" "nature" "of" "the" "discrimination" "in" "the" "form" "of" "reduced" "monthly" "payments" "."


Input: "However" "," "it" "is" "clear" "from" "the" "discussion" "of" "the" "cases" "on" "actual" "ongoing" "legal" "relationships" "and" "the" "need" "for" "their" "gradual" "adaptation" "in" "the" "light" "of" "the" "new" "rules" "," "such" "as" "Österreichischer" "Gewerkschaftsbund" "or" "Römer" "," "that" "the" "mere" "receipt" "of" "monthly" "payments" "based" "on" "final" "decisions" "from" "1975" "and" "1976" "requires" "no" "fresh" "assessment" "of" "any" "relevant" "facts" "." "112" "."


Input: "What" "is" "in" "fact" "requested" "in" "the" "present" "case" "is" "a" "fresh" "assessment" "of" "a" "final" "," "underlying" "disciplinary" "decision" "," "applying" "new" "standards" "of" "non-discrimination" "to" "determine" "the" "knock-on" "effects" "on" "monthly" "pension" "payments" "."


Input: "The" "true" "nature" "of" "what" "is" "being" "requested" "is" "perhaps" "best" "captured" "by" "the" "German" "wording" "of" "the" "final" "sentence" "of" "the" "first" "preliminary" "question" "submitted" "by" "the" "referring" "court" "," "which" "refers" "to" "the" "adopting" "of" "a" "new" "type" "of" "‘" "gedachte" "’" "decision" "that" "," "if" "it" "were" "adopted" "at" "the" "time" "when" "Directive" "2000" "/" "78" "was" "in" "force" "," "would" "breach" "that" "directive" "."


Input: "‘" "Gedachte" "’" "can" "indeed" "be" "translated" "as" "‘" "notional" "’" "," "but" "its" "true" "meaning" "in" "the" "present" "context" "is" "rather" "(" "entirely" ")" "‘" "imaginary" "’" "." "113" "."


Input: "In" "my" "view" "," "in" "a" "case" "such" "as" "the" "present" "one" "," "EU" "law" "clearly" "does" "not" "grant" "individuals" "a" "right" "to" "request" "the" "review" "," "in" "the" "light" "of" "any" "new" "law" "," "of" "any" "administrative" "decision" "taken" "in" "their" "regard" "during" "their" "lifetime" "and" "which" "has" "or" "might" "have" "had" "a" "negative" "impact" "on" "their" "pension" "(" "or" "other" "benefits" ")" "."


Input: "There" "is" "simply" "no" "basis" "in" "EU" "law" "for" "such" "a" "far-reaching" "proposition" "." "114" "."


Input: "Finally" "," "to" "give" "full" "credit" "to" "the" "arguments" "advanced" "by" "the" "Appellant" "," "there" "is" "," "partially" "intertwined" "but" "also" "partially" "independent" "from" "the" "‘" "technical" "’" "argument" "relating" "to" "the" "temporal" "application" "of" "new" "rules" "," "a" "much" "deeper" "moral" "argument" "present" "in" "the" "submissions" "made" "by" "the" "Appellant" "."


Input: "If" "looked" "at" "separately" "," "as" "indeed" "suggested" "by" "the" "Appellant" "at" "the" "hearing" "," "that" "moral" "argument" "becomes" "largely" "independent" "of" "any" "revisiting" "of" "a" "disciplinary" "decision" "from" "1975" "."


Input: "What" "Austria" "would" "then" "be" "reproached" "for" "is" "not" "the" "failure" "to" "revisit" "the" "past" "," "but" "the" "failure" "to" "actively" "and" "prospectively" "compensate" "for" "past" "wrongdoings" "," "after" "2003" "," "when" "Directive" "2000" "/" "78" "was" "already" "in" "force" "and" "judgments" "by" "the" "ECtHR" "were" "issued" "against" "Austria" "." "(" "54" ")" "115" "."


Input: "In" "this" "regard" "," "I" "would" "simply" "restate" "that" "I" "fail" "to" "see" "any" "such" "obligation" "arising" "as" "a" "matter" "of" "EU" "law" "."


Input: "Article" "17" "of" "Directive" "2000" "/" "78" "," "which" "requires" "the" "Member" "States" "to" "adopt" "effective" "," "proportionate" "and" "dissuasive" "sanctions" "," "is" "itself" "logically" "tied" "to" "the" "temporal" "applicability" "of" "the" "same" "directive" "." "116" "."


Input: "In" "addition" "," "administrative" "decisions" "are" "adopted" "in" "contexts" "specific" "to" "their" "time" "."


Input: "The" "criminal" "," "disciplinary" "and" "moral" "frameworks" "in" "Austria" "," "as" "well" "as" "elsewhere" "in" "Europe" "," "have" "shifted" "considerably" "since" "1975" "."

"O" "O" "O" "O" "O" "O" "O" "O" "I-ORGANISATION" "O" "O" "O" "O" "O" "O" "I-ORGANISATION" "O" "O" "O" "O" "O" "I-ORGANISATION" "O"

"O" "O" "O" "O" "O" "O" "O" "O" "B-ORGANISATION" "O" "O" "O" "O" "O" "O" "B-ORGANISATION" "O" "O" "O" "O" "O" "B-ORGANISATION" "O"


Input: "Thus" "," "for" "example" "," "in" "Austria" "," "disciplinary" "sanctions" "will" "now" "only" "be" "imposed" "on" "police" "officers" "whose" "acts" "undermine" "public" "confidence" "in" "the" "police" "."


Input: "However" "," "criminal" "convictions" "will" "lead" "to" "automatic" "dismissal" "," "I" "understand" "without" "pension" "rights" "at" "all" "."


Input: "The" "age" "of" "consent" "in" "Austria" "is" "now" "14" "for" "homosexuals" "and" "heterosexuals" "alike" "."


Input: "However" "," "there" "are" "also" "explicit" "exceptions" "for" "children" "under" "the" "age" "of" "16" "who" "are" "considered" "to" "be" "insufficiently" "mature" "." "117" "."


Input: "In" "sum" "," "morality" "is" "a" "moving" "target" "."


Input: "In" "addition" "," "moral" "arguments" "are" "often" "a" "double-edged" "sword" "."


Input: "In" "factually" "complex" "cases" "," "requiring" "the" "passing" "multiple" "moral" "judgments" "," "such" "as" "in" "the" "present" "one" "," "they" "may" "cut" "both" "ways" "."


Input: "Thus" "," "apart" "from" "extreme" "situations" "of" "obvious" "and" "blatant" "disregard" "for" "basic" "values" "of" "humanity" "," "which" "could" "be" "said" "to" "trigger" "the" "moral" "duty" "to" "remedy" "past" "wrongs" "irrespective" "of" "time" "," "(" "55" ")" "societies" "and" "their" "laws" "ought" "to" "be" "allowed" "to" "gradually" "evolve" "," "with" "the" "past" "remaining" "the" "past" "." "6" "."


Input: "Conclusion" "on" "Question" "1" "118" "."


Input: "In" "the" "light" "of" "the" "foregoing" "," "I" "propose" "to" "answer" "the" "referring" "court" "’" "s" "first" "question" "as" "follows" ":" "Article" "2" "of" "Directive" "2000" "/" "78" "does" "not" "preclude" "the" "maintenance" "in" "effect" "of" "the" "legal" "position" "created" "by" "an" "administrative" "decision" "that" "has" "become" "final" "under" "national" "law" "," "in" "the" "area" "of" "law" "governing" "disciplinary" "action" "in" "the" "civil" "service" "(" "disciplinary" "decision" ")" "," "compulsorily" "retiring" "and" "reducing" "the" "pension" "benefits" "of" "a" "civil" "servant" "," "where" "–" "that" "administrative" "decision" "was" "not" "yet" "subject" "to" "provisions" "of" "EU" "law" "," "in" "particular" "the" "directive" "," "at" "the" "time" "when" "it" "was" "adopted" "," "but" "–" "a" "(" "notional" ")" "decision" "to" "the" "same" "effect" "would" "infringe" "the" "directive" "if" "it" "were" "adopted" "within" "the" "temporal" "scope" "of" "the" "directive" "."


Input: "B" "."


Input: "Questions" "2" "and" "3" "119" "."


Input: "In" "the" "light" "of" "the" "reply" "proposed" "to" "the" "referring" "court" "’" "s" "first" "question" "," "there" "is" "no" "need" "to" "reply" "to" "the" "second" "and" "third" "questions" "."


Input: "Nonetheless" "," "in" "the" "event" "that" "the" "Court" "should" "come" "to" "a" "different" "conclusion" "," "I" "will" "briefly" "consider" "those" "questions" "below" "." "120" "."


Input: "Were" "the" "Court" "to" "hold" "that" "the" "effects" "of" "the" "discriminatory" "disciplinary" "decision" "cannot" "be" "maintained" "," "the" "question" "then" "becomes" "precisely" "what" "‘" "not" "maintaining" "those" "effects" "’" "entails" "in" "a" "case" "such" "as" "the" "present" "one" "." "121" "."


Input: "Unless" "the" "answer" "to" "that" "question" "were" "to" "be" "detached" "from" "the" "decisions" "taken" "in" "1970s" "," "stating" "," "similarly" "to" "what" "has" "just" "been" "discussed" "in" "relation" "to" "the" "active" "," "prospective" "duty" "to" "compensate" "(" "presumably" "with" "lump-sum" "payments" ")" "," "the" "national" "court" "would" "need" "to" "consider" "the" "content" "of" "the" "disciplinary" "decision" "to" "see" "whether" "it" "had" "been" "adopted" "in" "a" "way" "that" "was" "compatible" "with" "Directive" "2000" "/" "78" "," "and" "the" "date" "from" "which" "that" "new" "imaginary" "decision" "would" "be" "applicable" "."


Input: "I" "refer" "to" "this" "below" "as" "the" "‘" "what" "if" "?" "’"


Input: "approach" "." "122" "."


Input: "In" "my" "view" "," "the" "reconstruction" "of" "a" "40" "-" "year" "old" "decision" "and" "its" "effects" "is" "highly" "problematic" "."


Input: "However" "," "the" "referring" "court" "is" "rather" "specific" "in" "questions" "2" "and" "3" "about" "particular" "‘" "plot" "lines" "’" "in" "such" "a" "work" "of" "legal" "fiction" "."


Input: "As" "a" "result" "," "unless" "the" "Court" "simply" "states" "that" "‘" "effects" "cannot" "be" "maintained" "’" "and" "leaves" "it" "to" "the" "national" "court" "to" "decide" "how" "to" "identify" "and" "‘" "neutralise" "’" "those" "effects" "," "the" "Court" "will" "inevitably" "become" "its" "co-author" "."


Input: "I" "set" "out" "below" "some" "considerations" "about" "how" "the" "story" "might" "play" "out" "." "1" "."


Input: "Question" "2" "123" "."


Input: "The" "disciplinary" "decision" "put" "the" "Appellant" "into" "early" "retirement" "and" "reduced" "his" "pension" "rights" "by" "25%" "."


Input: "By" "its" "second" "question" "the" "national" "court" "asks" "whether" "," "to" "remedy" "the" "discrimination" "inherent" "in" "the" "administrative" "decision" "," "it" "is" "sufficient" "to" "set" "aside" "the" "25%" "reduction" "in" "the" "pension" "or" "whether" "the" "pension" "should" "be" "calculated" "as" "if" "the" "Appellant" "had" "worked" "in" "the" "period" "since" "his" "compulsory" "retirement" "."


Input: "Is" "it" "sufficient" "to" "neutralise" "the" "future" "effects" "of" "the" "25%" "reduction" "or" "is" "it" "also" "necessary" "to" "neutralise" "the" "future" "effects" "of" "the" "early" "compulsory" "retirement" "?"


Input: "124" "."


Input: "In" "his" "submissions" "," "the" "Appellant" "argues" "that" "the" "25%" "reduction" "should" "be" "set" "aside" "in" "full" "and" "his" "pension" "rights" "calculated" "as" "if" "he" "had" "worked" "during" "the" "interim" "period" "in" "the" "police" "force" "."


Input: "In" "other" "words" "," "to" "create" "the" "situation" "that" "would" "have" "existed" "if" "the" "disciplinary" "decision" "had" "not" "been" "adopted" "at" "all" "(" "or" "no" "sanction" "had" "been" "imposed" ")" "." "125" "."


Input: "The" "Commission" "argues" "for" "a" "‘" "what" "if" "?" "’"


Input: "approach" "only" "in" "relation" "to" "the" "25%" "reduction" "," "acknowledging" "that" "even" "without" "any" "homophobic" "bias" "," "there" "may" "have" "been" "a" "reduction" "in" "the" "Appellant" "’" "s" "pension" "to" "sanction" "his" "behaviour" "."


Input: "By" "contrast" "," "the" "Commission" "considers" "it" "inappropriate" "to" "take" "a" "‘" "what" "if" "?" "’"


Input: "approach" "to" "the" "retirement" "itself" "."


Input: "The" "reduction" "in" "pension" "resulting" "from" "the" "early" "retirement" "is" "not" "in" "fact" "a" "‘" "future" "effect" "’" "of" "a" "situation" "that" "arose" "in" "the" "past" "and" "to" "which" "new" "rules" "must" "apply" "."


Input: "The" "legal" "effects" "of" "the" "retirement" "were" "," "in" "the" "Commission" "’" "s" "view" "," "exhausted" "when" "the" "employment" "relationship" "came" "to" "an" "end" "."


Input: "For" "that" "reason" "," "the" "effects" "consisting" "of" "an" "absence" "of" "increase" "in" "pension" "rights" "," "which" "resulted" "from" "early" "retirement" "," "can" "be" "maintained" "." "126" "."


Input: "I" "note" "the" "following" "observations" "." "127" "."


Input: "If" "the" "disciplinary" "decision" "had" "," "in" "1975" "," "been" "adopted" "in" "a" "way" "that" "was" "compatible" "with" "the" "prohibition" "on" "discrimination" "on" "the" "grounds" "of" "sexual" "orientation" "introduced" "in" "2000" "," "it" "is" "not" "clear" "whether" "the" "Appellant" "would" "have" "been" "forced" "into" "retirement" "at" "all" "."


Input: "Indeed" "," "the" "‘" "incomparably" "milder" "’" "(" "56" ")" "nature" "of" "the" "sanction" "referred" "to" "by" "the" "referring" "court" "could" "also" "be" "understood" "as" "suggesting" "that" "the" "Appellant" "would" "not" "have" "been" "forced" "into" "retirement" "." "128" "."


Input: "If" "that" "is" "so" "," "then" "in" "accordance" "with" "the" "answer" "to" "the" "first" "question" "," "the" "‘" "future" "effects" "of" "early" "compulsory" "retirement" "’" "could" "not" "be" "maintained" "."


Input: "Those" "effects" "surely" "include" "the" "fact" "that" "the" "Appellant" "no" "longer" "worked" "for" "the" "police" "force" "," "no" "longer" "accrued" "pension" "benefits" "and" "did" "not" "have" "those" "‘" "lost" "years" "’" "taken" "into" "account" "in" "calculating" "his" "pension" "."


Input: "In" "this" "sense" "," "the" "effects" "of" "that" "sanction" "are" "indeed" "still" "‘" "ongoing" "’" "."


Input: "Neutralising" "the" "future" "effects" "of" "early" "compulsory" "retirement" "must" "therefore" "take" "those" "lost" "years" "into" "account" "(" "somehow" ")" "." "129" "."


Input: "The" "Commission" "argues" "against" "that" "conclusion" "."


Input: "It" "considers" "that" "the" "effects" "which" "lead" "to" "no" "increase" "in" "pension" "rights" "," "which" "resulted" "from" "the" "early" "retirement" "," "can" "be" "maintained" "." "130" "."


Input: "I" "admit" "that" "I" "find" "the" "Commission" "’" "s" "reasoning" "on" "that" "point" "impossible" "to" "reconcile" "with" "its" "position" "that" "the" "25%" "reduction" "imposed" "by" "the" "disciplinary" "decision" "does" "constitute" "‘" "future" "effects" "’" "in" "the" "above" "sense" "."


Input: "Both" "sanctions" "—" "forced" "retirement" "and" "the" "25%" "reduction" "—" "were" "imposed" "based" "on" "the" "same" "set" "of" "facts" "and" "by" "the" "same" "disciplinary" "decision" "."


Input: "In" "both" "cases" "the" "question" "of" "principleis" "what" "would" "have" "been" "the" "effects" "of" "the" "disciplinary" "decision" "had" "it" "been" "adopted" "in" "a" "way" "that" "is" "compatible" "with" "Directive" "2000" "/" "78" "." "131" "."


Input: "Indeed" "," "if" "the" "distinction" "drawn" "by" "the" "Commission" "between" "different" "effects" "were" "to" "be" "adopted" "," "it" "would" "imply" "that" "the" "Appellant" "could" "," "in" "fact" "," "have" "been" "dismissed" "from" "his" "job" "and" "would" "have" "had" "no" "recourse" "to" "any" "potential" "challenge" "."


Input: "Unlike" "retirement" "," "outright" "dismissal" "would" "in" "principle" "have" "brought" "an" "end" "to" "the" "legal" "relationship" "with" "no" "ongoing" "effects" "in" "the" "form" "of" "pension" "payments" "." "132" "."


Input: "In" "the" "light" "of" "the" "above" "," "if" "the" "Court" "were" "to" "conclude" "that" "the" "effects" "of" "the" "discriminatory" "disciplinary" "decision" "cannot" "be" "maintained" "and" "the" "‘" "what" "if" "?" "’"


Input: "approach" "is" "adopted" "," "that" "approach" "should" "contemplate" "an" "alternative" "history" "in" "which" "the" "Appellant" "does" "not" "retire" "as" "well" "as" "one" "where" "the" "25%" "reduction" "in" "the" "Appellant" "’" "s" "pension" "is" "not" "(" "fully" ")" "applied" "." "133" "."


Input: "I" "note" "that" "such" "a" "conclusion" "would" "obviously" "raise" "a" "series" "of" "further" "tricky" "questions" "."


Input: "In" "order" "to" "neutralise" "the" "‘" "future" "effects" "’" "of" "compulsory" "retirement" "in" "1976" "," "should" "it" "be" "assumed" "that" "the" "Appellant" "worked" "throughout" "the" "interim" "years" "since" "1976" "," "or" "during" "all" "the" "years" "since" "expiry" "of" "the" "deadline" "for" "transposition" "of" "Directive" "2000" "/" "78" "?"


Input: "Should" "any" "corresponding" "increase" "in" "pension" "be" "offset" "by" "pension" "income" "from" "other" "sources" "of" "work" "by" "the" "Appellant" "in" "those" "years" "?"


Input: "(" "57" ")" "Should" "any" "corresponding" "increase" "in" "pension" "be" "offset" "by" "pension" "income" "from" "the" "police" "service" "which" "has" "already" "been" "received" "by" "the" "Appellant" "from" "the" "date" "of" "his" "compulsory" "retirement" "(" "which" "he" "would" "obviously" "not" "have" "received" "if" "hehad" "continued" "to" "work" ")" "?"


Input: "(" "58" ")" "134" "."


Input: "Finally" "," "regarding" "the" "25%" "reduction" "specifically" "," "the" "referring" "court" "’" "s" "second" "question" "impliedly" "takes" "as" "a" "premiss" "that" "that" "reduction" "is" "entirely" "a" "consequence" "of" "the" "discriminatory" "nature" "of" "the" "decision" "." "135" "."


Input: "However" "," "‘" "what" "if" "?" "’"


Input: "should" "really" "mean" "‘" "what" "if" "?" "’" "."


Input: "Thus" "," "the" "possibility" "must" "be" "envisaged" "that" "," "even" "in" "the" "absence" "of" "a" "criminal" "conviction" "," "the" "Appellant" "would" "still" "be" "sanctioned" "in" "the" "disciplinary" "context" "based" "on" "the" "same" "set" "of" "facts" "," "(" "59" ")" "and" "the" "Appellant" "’" "s" "pension" "would" "still" "have" "been" "reduced" "," "but" "by" "less" "than" "25%" "."


Input: "That" "is" "indeed" "the" "approach" "taken" "by" "the" "Commission" "in" "its" "written" "pleadings" "."


Input: "Thus" "," "if" "in" "the" "absence" "of" "discrimination" "the" "Appellant" "would" "still" "have" "had" "his" "pension" "reduced" "but" "by" "," "for" "example" "5%" "or" "10%" "," "then" "the" "effects" "of" "that" "5%" "or" "10%" "reduction" "should" "remain" "." "136" "."


Input: "Thus" "," "were" "the" "‘" "what" "if" "?" "’"


Input: "approach" "to" "be" "embraced" "in" "relation" "to" "the" "25%" "reduction" "," "I" "agree" "with" "the" "Commission" "that" "the" "fiction" "must" "be" "taken" "to" "its" "logical" "conclusion" "."


Input: "Once" "again" "," "precisely" "how" "different" "the" "disciplinary" "decision" "would" "have" "been" "if" "it" "had" "been" "adopted" "in" "a" "non-discriminatory" "manner" "would" "be" "a" "(" "indeed" "rather" "difficult" ")" "question" "for" "the" "national" "court" "to" "deal" "with" "." "2" "."


Input: "Question" "3" "137" "."


Input: "By" "its" "third" "question" "," "the" "referring" "court" "asks" "if" "the" "answer" "to" "the" "second" "question" "depends" "on" "whether" "the" "person" "actively" "sought" "employment" "in" "the" "federal" "civil" "service" "before" "reaching" "retirement" "age" "." "138" "."


Input: "I" "must" "admit" "that" "I" "am" "puzzled" "by" "the" "relevance" "of" "such" "a" "question" "in" "view" "of" "the" "facts" "in" "the" "main" "proceedings" "."


Input: "But" "since" "we" "are" "already" "engaging" "in" "‘" "what" "if" "?" "’"


Input: "scenarios" "," "it" "is" "rather" "difficult" "to" "state" "that" "such" "a" "question" "is" "hypothetical" "." "139" "."


Input: "The" "facts" "of" "the" "case" "are" "silent" "on" "the" "issue" "of" "whether" "or" "not" "the" "Appellant" "ever" "sought" "(" "re" ")" "employment" "in" "the" "federal" "civil" "service" "."


Input: "It" "is" "perhaps" "reasonable" "to" "assume" "that" "if" "a" "person" "had" "been" "dismissed" "from" "that" "service" "in" "circumstances" "such" "as" "those" "in" "the" "main" "proceedings" "," "trying" "to" "rejoin" "the" "same" "service" "would" "be" "rather" "futile" "(" "if" "legally" "possible" "to" "begin" "with" ")" "."


Input: "If" "that" "is" "indeed" "the" "case" "and" "the" "Appellant" "would" "not" "have" "later" "sought" "reemployment" "in" "the" "federal" "civil" "service" "," "what" "conclusions" "can" "be" "drawn" "from" "that" "fact" "?"


Input: "Could" "the" "Appellant" "be" "reproached" "for" "not" "having" "done" "so" "?"


Input: "Could" "he" "then" "be" "put" "at" "a" "potential" "disadvantage" "as" "a" "result" "?"


Input: "140" "."


Input: "However" "," "for" "what" "it" "is" "worth" "," "as" "noted" "above" "in" "point" "133" "," "to" "the" "extent" "the" "effects" "of" "early" "compulsory" "retirement" "are" "to" "be" "neutralised" "," "that" "raises" "a" "series" "of" "questions" "about" "how" "to" "deal" "with" "the" "interim" "period" "."


Input: "In" "constructing" "its" "alternative" "history" "," "it" "should" "in" "my" "view" "be" "left" "to" "the" "national" "court" "to" "determine" "which" "specific" "details" "to" "take" "into" "account" "," "in" "order" "to" "find" "a" "balance" "between" "," "on" "the" "one" "hand" "," "completely" "ignoring" "those" "interim" "years" "and" "," "on" "the" "other" "," "fully" "taking" "them" "into" "account" "as" "ifthe" "Appellant" "had" "worked" "in" "the" "public" "sector" "in" "that" "time" "."


Input: "C" "."


Input: "Questions" "4" "and" "5" "141" "."


Input: "In" "the" "light" "of" "the" "proposed" "response" "to" "the" "referring" "court" "’" "s" "first" "question" "," "again" "there" "is" "no" "need" "to" "reply" "to" "the" "fourth" "and" "fifth" "questions" "."


Input: "Nonetheless" "," "in" "the" "event" "that" "the" "Court" "should" "come" "to" "a" "different" "conclusion" "," "I" "add" "some" "suggestions" "." "142" "."


Input: "By" "its" "fourth" "and" "fifth" "questions" "," "the" "referring" "court" "asks" "from" "what" "moment" "in" "time" "an" "eventual" "(" "partial" ")" "setting" "aside" "of" "the" "25%" "reduction" "should" "take" "effect" "."


Input: "Those" "questions" "are" "limited" "to" "the" "moment" "in" "time" "from" "which" "the" "effects" "of" "the" "25%" "reduction" "must" "be" "neutralised" "."


Input: "They" "do" "not" "cover" "the" "effects" "of" "the" "early" "compulsory" "retirement" "."


Input: "However" "," "as" "stated" "above" "in" "point" "133" "," "I" "consider" "that" "a" "different" "approach" "to" "the" "future" "effects" "of" "the" "25%" "reduction" "and" "the" "future" "effects" "of" "the" "compulsory" "retirement" "raises" "problems" "of" "inconsistency" "." "143" "."


Input: "In" "my" "view" "," "the" "answer" "to" "that" "question" "follows" "from" "the" "case-law" "summarised" "above" "in" "point" "44" "et" "seq" "."


Input: "It" "is" "hoped" "that" "the" "application" "of" "Directive" "2000" "/" "78" "would" "still" "be" "—" "notwithstanding" "the" "potentially" "far-reaching" "approach" "to" "the" "elimination" "of" "future" "effects" "discussed" "above" "—" "subject" "to" "the" "principle" "of" "non-retroactivity" "."


Input: "Therefore" "," "whatever" "the" "answer" "to" "the" "referring" "court" "’" "s" "first" "question" "," "it" "can" "in" "any" "case" "be" "used" "as" "a" "basis" "for" "arguing" "that" "the" "effects" "of" "the" "25%" "reduction" "must" "be" "neutralised" "from" "the" "expiry" "of" "the" "directive" "’" "s" "transposition" "deadline" "," "and" "not" "any" "earlier" "."


Input: "D" "."


Input: "Discrimination" "on" "the" "grounds" "of" "sex" "1" "."


Input: "Scope" "of" "the" "referring" "court" "’" "s" "questions" "144" "."


Input: "Finally" "," "in" "its" "written" "submissions" "," "the" "Appellant" "argued" "that" "the" "sanction" "imposed" "by" "the" "disciplinary" "decision" "(" "also" ")" "amounted" "to" "discrimination" "on" "the" "grounds" "of" "sex" "," "contrary" "to" "Article" "157" "TFEU" "(" "previously" "Article" "119" "EEC" "," "and" "then" "Article" "141" "EC" ")" "."


Input: "According" "to" "the" "Appellant" "," "that" "provision" "," "which" "first" "came" "into" "force" "in" "1979" "," "can" "therefore" "be" "used" "to" "preclude" "the" "future" "effects" "of" "the" "disciplinary" "decision" "in" "a" "way" "similar" "to" "that" "envisaged" "in" "the" "national" "court" "’" "s" "first" "question" "in" "relation" "to" "Directive" "2000" "/" "78" "."


Input: "However" "," "it" "would" "do" "so" "from" "a" "much" "earlier" "date" "." "145" "."


Input: "I" "would" "make" "the" "following" "observations" "in" "that" "regard" "." "146" "."


Input: "The" "national" "court" "does" "not" "refer" "to" "Article" "157" "TFEU" "(" "or" "its" "predecessors" ")" "."


Input: "Indeed" "," "the" "Appellant" "is" "the" "only" "party" "to" "raise" "the" "issue" "in" "written" "submissions" "."


Input: "It" "might" "be" "argued" "that" "addressing" "the" "possible" "application" "of" "Article" "157" "TFEU" "would" "prove" "useful" "for" "the" "national" "court" "."


Input: "However" "," "in" "my" "view" "the" "Court" "should" "not" "do" "so" "," "in" "particular" "for" "the" "following" "reasons" "." "147" "."


Input: "First" "," "there" "is" "a" "complete" "lack" "of" "reference" "to" "that" "provision" "in" "either" "the" "referring" "court" "’" "s" "questions" "or" "the" "order" "for" "reference" "more" "generally" "."


Input: "Had" "the" "national" "court" "considered" "it" "to" "be" "relevant" "," "it" "would" "in" "my" "view" "at" "least" "have" "mentioned" "it" "."


Input: "There" "may" "be" "multiple" "reasons" "for" "such" "an" "omission" "and" "it" "would" "be" "wrong" "to" "assume" "that" "the" "lack" "of" "reference" "is" "an" "‘" "oversight" "’" "."


Input: "The" "question" "here" "is" "not" "whether" "the" "Court" "should" "point" "out" "the" "details" "and" "relevance" "of" "an" "obscure" "piece" "of" "technical" "legislation" "that" "might" "have" "been" "overlooked" "."


Input: "Article" "157" "TFEU" "is" "an" "important" "Treaty" "provision" "."


Input: "Rather" "," "since" "arguments" "on" "Article" "157" "TFEU" "are" "in" "fact" "central" "to" "the" "Appellant" "’" "s" "written" "submissions" "," "it" "is" "equally" "plausible" "that" "the" "Appellant" "proposed" "to" "the" "national" "court" "that" "questions" "should" "be" "put" "to" "this" "Court" "on" "that" "provision" "," "but" "that" "that" "proposal" "was" "rejected" "." "148" "."


Input: "Second" "," "Article" "94" "of" "the" "Rules" "of" "Procedure" "of" "the" "Court" "of" "Justice" "requires" "the" "preliminary" "reference" "to" "include" "," "inter" "alia" "," "relevant" "facts" "and" "national" "law" "and" "the" "reasons" "that" "led" "the" "national" "court" "to" "put" "the" "specific" "questions" "to" "the" "Court" "."


Input: "In" "the" "present" "case" "," "the" "national" "court" "has" "drafted" "the" "order" "for" "reference" "without" "mentioning" "Article" "157" "TFEU" "(" "or" "its" "predecessors" ")" "," "nor" "indicating" "the" "potentially" "relevant" "facts" "or" "national" "law" "relating" "to" "that" "provision" "."


Input: "In" "such" "circumstances" "," "it" "would" "," "in" "my" "view" "," "be" "inconsistent" "with" "the" "case-law" "(" "60" ")" "on" "Article" "94" "of" "the" "Rules" "of" "Procedure" "for" "the" "Court" "to" "ignore" "those" "omissions" "and" "," "at" "the" "behest" "of" "one" "of" "the" "parties" "," "proactively" "provide" "guidance" "on" "a" "question" "that" "has" "not" "been" "asked" "." "149" "."


Input: "Nonetheless" "," "should" "the" "Court" "choose" "to" "address" "the" "arguments" "raised" "by" "the" "Appellant" "in" "relation" "to" "Article" "157" "TFEU" "," "I" "set" "out" "some" "brief" "observations" "in" "the" "following" "section" "." "2" "."


Input: "Article" "157" "TFEU" "150" "."


Input: "I" "explained" "in" "my" "proposed" "reply" "to" "Question" "1" "why" "Directive" "2000" "/" "78" "does" "not" "preclude" "the" "maintenance" "of" "the" "effects" "of" "the" "disciplinary" "decision" "."


Input: "That" "decision" "was" "outside" "the" "temporal" "scope" "of" "the" "directive" "."


Input: "The" "directive" "cannot" "be" "used" "to" "reopen" "that" "decision" "to" "neutralise" "some" "of" "its" "effects" "."


Input: "Those" "arguments" "apply" "mutatis" "mutandis" "to" "Article" "157" "TFEU" "." "151" "."


Input: "To" "the" "extent" "the" "Court" "comes" "to" "a" "different" "conclusion" "," "it" "would" "be" "for" "the" "national" "court" "to" "determine" "the" "potential" "existence" "of" "such" "discrimination" "."


Input: "However" "," "I" "understand" "the" "basic" "argument" "is" "that" "male" "homosexuals" "were" "treated" "less" "favourably" "than" "female" "homosexuals" "." "(" "61" ")" "It" "was" "suggested" "by" "the" "Appellant" "that" "a" "female" "police" "officer" "engaging" "in" "homosexual" "acts" "with" "a" "minor" "over" "the" "age" "of" "14" "would" "receive" "no" "(" "or" "in" "any" "event" "a" "milder" ")" "disciplinary" "sanction" "in" "comparison" "to" "a" "male" "homosexual" "police" "officer" "engaging" "in" "comparable" "acts" "." "152" "."


Input: "To" "the" "extent" "that" "such" "a" "proposition" "were" "to" "be" "factually" "accurate" "(" "in" "view" "of" "the" "disciplinary" "practice" "in" "the" "Austrian" "police" "force" "in" "the" "1970s" ")" "," "which" "would" "be" "for" "the" "national" "court" "to" "ascertain" "," "Article" "157" "TFEU" "prohibits" "sex" "discrimination" "in" "relation" "to" "‘" "pay" "’" "."


Input: "According" "to" "established" "case-law" "," "‘" "pay" "’" "in" "that" "sense" "does" "not" "include" "payments" "made" "in" "application" "of" "statutory" "pension" "schemes" "," "which" "are" "rather" "classed" "as" "social" "security" "benefits" "." "(" "62" ")" "At" "the" "hearing" "," "the" "Austrian" "Government" "stated" "that" "the" "pension" "scheme" "in" "this" "case" "is" "statutory" "."


Input: "Whether" "that" "is" "indeed" "the" "case" "(" "within" "the" "meaning" "given" "to" "the" "Court" "’" "s" "case-law" "(" "63" ")" ")" "would" "again" "be" "subject" "to" "verification" "by" "the" "national" "court" "."


Input: "However" "," "on" "the" "basis" "of" "the" "statement" "provided" "by" "the" "Austrian" "Government" "on" "that" "point" "," "those" "types" "of" "payments" "would" "in" "principle" "fall" "outside" "Article" "157" "TFEU" "," "rendering" "that" "provision" "inapplicable" "to" "the" "present" "case" "." "153" "."


Input: "If" "," "however" "," "that" "were" "not" "the" "case" "," "temporal" "application" "of" "Article" "157" "TFEU" "(" "and" "its" "predecessors" ")" "would" "have" "to" "be" "considered" "."


Input: "I" "refer" "in" "that" "regard" "to" "my" "observations" "under" "Questions" "4" "and" "5" "which" "apply" "mutatis" "mutandis" "."


Input: "In" "addition" "," "in" "accordance" "with" "the" "Barber" "(" "64" ")" "and" "Ten" "Oever" "(" "65" ")" "judgments" "," "‘" "the" "direct" "effect" "of" "Article" "119" "of" "the" "EEC" "Treaty" "may" "be" "relied" "upon" "," "for" "the" "purpose" "of" "claiming" "equal" "treatment" "in" "the" "matter" "of" "occupational" "pensions" "," "only" "in" "relation" "to" "benefits" "payable" "in" "respect" "of" "periods" "of" "employment" "subsequent" "to" "17" "May" "1990" "[" "date" "of" "the" "Barber" "judgment" "]" "," "subject" "to" "the" "exception" "in" "favour" "of" "workers" "or" "those" "claiming" "under" "them" "who" "have" "," "before" "that" "date" "," "initiated" "legal" "proceedings" "or" "raised" "an" "equivalent" "claim" "under" "the" "applicable" "national" "law" "’" "." "(" "66" ")" "154" "."


Input: "However" "," "it" "follows" "from" "the" "facts" "as" "set" "out" "in" "the" "referring" "court" "’" "s" "request" "that" "none" "of" "the" "relevant" "periods" "of" "employment" "are" "subsequent" "to" "17" "May" "1990" "."

"O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "B-ORGANISATION" "B-ORGANISATION" "B-ORGANISATION" "O"

"O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "O" "I-ORGANISATION" "I-ORGANISATION" "I-ORGANISATION" "O"


Input: "V" "."


Input: "Conclusion" "155" "."