Contents
Judgment of the Court (Fifth Chamber)6 October 2021note(Appeal — Civil service — European Central Bank (ECB) staff members — Remuneration — Competitions — Equality of treatment between internal and external candidates — Classification in step)In Case C‑272/20 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 19 June 2020,Sebastian Veit, residing in Frankfurt am Main (Germany), represented by K. Kujath, Rechtsanwalt,the other party to the proceedings being:European Central Bank (ECB), represented by F. von Lindeiner and M. Rötting, acting as Agents, and by B. Wägenbaur, Rechtsanwalt,THE COURT (Fifth Chamber),composed of E. Regan (Rapporteur), President of the Chamber, M. Ilešič, E. Juhász, C. Lycourgos and I. Jarukaitis, Judges,Advocate General: J. Richard de la Tour,Registrar: A. Calot Escobar,having regard to the written procedure,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following
Judgment
1By his appeal, Mr Sebastian Veit seeks to have set aside the judgment of the General Court of the European Union of 2 April 2020, Veit v ECB (T‑474/18, not published, EU:T:2020:140; ‘the judgment under appeal’), by which the General Court rejected his claim based on Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union seeking annulment, first, of the decision of the European Central Bank (ECB) of 3 January 2018 (‘the decision at issue’), in so far as it classifies him only in step 17 of F/G salary band and, second, the decision of the ECB of 25 May 2018 rejecting his complaint (‘the decision of 25 May 2018’).
Background to the dispute and the contested decision
2The background to the dispute, as set out in paragraphs 1 to 11 of the judgment under appeal, is as follows.
3On 1 October 2015, following a competition, the ECB recruited Mr Veit for the period from 1 October 2015 to 30 September 2018 as a supervision analyst within the Directorate-General (DG) for Micro-Prudential Supervision IV. The appellant’s contract was a fixed-term contract that, on expiry, could be converted into a contract of indefinite duration.
4At the time of his recruitment, the appellant was classified, in accordance with the vacancy notice, in the E/F salary band according to the ECB salary structure. Within that band, the ECB granted him step 70 in respect of his previous professional experience of approximately eleven and a half years at the Deutsche Bundesbank (Federal Bank of Germany), which, according to a consistent administrative practice, as codified in a document entitled ‘Salary Proposal Guidelines’ adopted by the DG for Human Resources of the ECB on 30 April 2012 (‘the consistent administrative practice for calculating the salaries of new members of staff’), was calculated at six steps for each year of previous professional experience acquired at an equivalent or higher level to that of the post to be filled, namely 6 × 11.5 = 69 steps, which were added to the first step of the E/F salary band, which resulted in step 70.
5In the context of the annual salary and bonus review for the period from 1 September 2015 to 31 August 2016, the appellant was awarded four additional steps and thus advanced to step 74 of the E/F salary band.
6On 27 February 2017, following a competition, the ECB temporarily promoted the appellant to a higher salary band for the period 1 March 2017 to 30 September 2018, as a supervisor within the division for the supervision of significant banks IX, of the DG Micro-Prudential Supervision II, classifying him at step 17 of the F/G salary band. The appellant’s contract for that purpose was a fixed-term contract which could not be converted into a contract of indefinite duration.
7On 2 June 2017, the ECB published two vacancy notices, one addressed to internal candidates and the other to external candidates, the content of which was similar, for bank supervisor positions within the DG Micro-Prudential Supervision I, within the F/G salary band. In the context of the competition organised in that respect (‘the competition concerned’), the internal and external candidates participated in the same selection procedure.
8As the appellant’s application was successful, on 3 January 2018, the ECB adopted the decision at issue, by which it transferred the appellant, with effect from 1 January 2018, to a post of supervisor within the division for the supervision of significant banks I of DG Micro-Prudential Supervision I, promoting him to the F/G salary band and classifying him in step 17 thereof.
9The appellant’s classification in step 17 of the F/G salary band in the contested decision was based on Article 5(1) of Administrative Circular 2/2011 of 19 July 2011 on promotion (‘Circular 2/2011’), according to which the basic salary of an internal candidate promoted to a higher salary band is, when a promotion takes effect, to be increased to the first step of the salary band to which the new post is attached or increased by 3%, whichever is the higher. In the present case, the appellant’s basic salary corresponding to his post as a supervision analyst, classified in step 74 of the E/F salary band, was increased by 3%, that level corresponding to step 17 of the F/G salary band.
10By an email of 8 February 2018, the appellant requested a pre-litigation review of the contested decision. He requested, in essence, that he be classified in step 83 of the F/G salary band.
11The Deputy Director-General of DG Human Resources of the ECB rejected that request by decision of 27 February 2018.
12By an email of 6 April 2018, the appellant lodged a complaint. That complaint was rejected by decision of the President of the ECB, received by the appellant on 6 June 2018, namely the decision of 25 May 2018.
The procedure before the General Court and the judgment under appeal
13By application lodged at the Registry of the General Court on 6 August 2018, the appellant brought an action for annulment of both the contested decision and the decision of 25 May 2018.
14By the judgment under appeal, the General Court dismissed that action. In particular, the General Court found that internal candidates and external candidates who passed the competition concerned are in comparable situations for the purposes of their classification in step. It also pointed out that the application of different rules for those purposes – Article 5(1) of Circular 2/2011 having been applied to internal candidates such as the appellant, and the consistent administrative practice for calculating the salaries of new members of staff having been applied to external candidates – could lead to different results, even where the relevant previous professional experience of internal and external candidates was the same. The General Court held, however, that that difference in treatment was justified and proportionate.
Forms of order sought
15By his appeal, the appellant claims that the Court of Justice should:– set aside the judgment under appeal and annul the contested decision as clarified by the decision of 25 May 2018; and– order the ECB to pay the costs.
16The ECB contends that the Court should:– dismiss the appeal; and– order the appellant to pay the costs.
The appeal
Admissibility
Arguments of the parties
17The ECB contends, as a preliminary point, that the appeal is inadmissible in its entirety on the ground that the appellant does not have an interest in bringing proceedings, since setting aside the judgment under appeal cannot result in his being reclassified in step 83 of his F/G salary band.
18In that regard, the ECB contends that the appellant’s argument that the ECB was required to classify him in step 83 and not step 17 of the F/G salary band is based on an erroneous assumption. The appellant argues that both the work he previously did at the Deutsche Bundesbank, which fell within the medium category (gehobener Dienst) of employees, corresponding to the level of analyst and which was taken into account for his classification in the E/F salary band when he was recruited by the ECB as a Supervision Analyst in 2015, and the professional experience acquired at the ECB in his activity as a Supervision Analyst in the E/F salary band, fully correspond to the level of activity he would perform as a Banking Supervisor in the F/G salary band following the competition concerned. The appellant thus considers that that professional experience, although acquired exclusively in a lower salary band, must, because of his promotion, be taken into account once again in the calculation of his salary.
19According to the ECB, that assumption is incorrect. It is clear from the case file, without a material finding or an assessment of the facts being necessary in that regard, that professional experience acquired before entry into post and relevant for a classification within the E/F salary band is not, in principle, equivalent to relevant professional experience for classification in the F/G salary band. It is for that reason alone that professional experience acquired as a Supervision Analyst at the ECB could not be taken into account once again for the classification of the appellant within the F/G salary band. In that context, the ECB referred to the basic concept of its consistent administrative practice for calculating the salaries of new members of staff, set out in the Salary Proposal Guidelines, according to which ‘as a general rule, the experience that is relevant for, and at the level of, the function to be performed is considered’.
20More specifically, the ECB submits, in the first place, as regards the alleged lack of justification for the unequal treatment claimed, that the reference made by the appellant in his appeal to paragraph 61 et seq. of the judgment under appeal does not comply with the requirements under Article 169(2) of the Rules of Procedure of the Court of Justice, according to which the pleas in law and legal arguments relied on must identify precisely those points in the grounds of the decision of the General Court which are contested.
21In the second place, by his argument that the General Court disregarded the value of the professional experience which the appellant had acquired before he took up his post at the ECB, the appellant makes allegations of fact which are manifestly inadmissible at the appeal stage. In particular, the argument that the professional experience acquired with the Deutsche Bundesbank is also ‘relevant’ for the classification of the person concerned following his successful application for the post of supervisor in the F/G salary band requires that experience to be regarded as ‘relevant’, within the meaning of the consistent administrative practice for calculating the salaries of new members of staff. However, to make such a qualification would amount to an assessment of fact which does not fall within the jurisdiction of the Court of Justice in an appeal.
22In the third place, the appellant’s argument criticising the General Court for finding, in paragraph 73 of the judgment under appeal, that the application to the present case of the consistent administrative practice for the calculation of the salaries of new members of staff would create a risk of the same professional experience being taken into account twice. The appellant thus alleges that the General Court failed to have regard to the fact that his professional experience acquired with the Deutsche Bundesbank should have been counted twice, on the ground that it was ‘relevant’, both in the context of his recruitment to the E/F salary band and, following the competition concerned, in the F/G salary band.
Findings of the Court
23In the first place, in so far as the ECB claims that the appellant has no interest in bringing proceedings on the ground that the setting aside of the judgment under appeal cannot lead to his classification in step 83 of the F/G salary band, its contention must be rejected.
24In that regard, it should be noted that, in order to dismiss the appeal as inadmissible on the ground relied on by the ECB, it must be shown that the appellant would not have been placed at a higher step if, following the competition concerned, the consistent administrative practice for calculating the salaries of new members of staff had been applied to him. As the ECB itself submits, in essence, the question whether the appellant’s previous professional experience may qualify as ‘relevant’, within the meaning of that practice, which provides that candidates are to be awarded six steps per year of relevant previous professional experience acquired at a level equivalent to or higher than that of the position to be filled, is a question of fact which was not assessed by the General Court in the judgment under appeal and which cannot be examined by the Court of Justice in the context of the appeal.
25As is apparent from paragraph 71 of the contested judgment, the General Court merely found that it ‘cannot be ruled out’ that the application to internal candidates, such as the appellant, of the consistent administrative practice for calculating the salaries of new members of staff could have led to a higher step classification.
26According to well-established case-law, under Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts. The appraisal of those facts does not therefore, save where they are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 97 and the case-law cited).
27It is therefore not for the Court of Justice to determine whether, if the consistent administrative practice for calculating the salaries of new members of staff had been applied to the appellant, he would in fact have been graded at step 83 instead of being classified at step 17 of the F/G salary band.
28Furthermore, while a request of the appellant that the Court of Justice make a finding to that effect or order the ECB to take a decision classifying him in step 83 would have been inadmissible (see, by analogy, judgment of 12 July 1984, Angelidis v Commission, 17/83, EU:C:1984:267, paragraphs 14 to 17), by his arguments on that point, the appellant does not make such a request, but merely draws attention to the consequences which, in his view, arise from the infringement of the principle of equal treatment committed by the ECB and, in turn, by the General Court. Such an argument is not capable of rendering the appeal inadmissible, since the appeal is based on that general principle and thus raises a point of law.
29In the second place, as regards, first of all, the ECB’s argument set out in paragraph 20 of the present judgment, it should be noted that the paragraph of the appeal in which a general reference is made to paragraph 61 et seq. of the judgment under appeal merely seeks to recall part of the content of that judgment. In the remainder of his appeal, the appellant identifies the specific paragraphs of that judgment in the context of the arguments he puts forward against paragraph 61 et seq., namely paragraphs 63 to 66, 68, 72, 73 and 75 of that judgment. It should also be added that the part of the judgment under appeal concerned in the present case, namely the assessment by the General Court relating to the issue of justification for the difference in treatment at issue, contains only about 20 paragraphs, so that, with the help of the specific paragraphs of that judgment identified by the appellant in his appeal, no ambiguity can be observed as regards the identification of the paragraphs of that judgment to which it refers.
30Next, in so far as the appellant complains that the General Court failed to have regard to the value of the professional experience he acquired before his entry into service at the ECB, he seeks to demonstrate that, in view of the long periods of relevant employment before the ECB and his brief period of employment at the ECB, the principle that participants in an open competition merit equal treatment, as interpreted by the Court of Justice in the judgment of 15 January 1985, Samara v Commission (266/83, EU:C:1985:9), should have been applied to him.
31By that line of argument, the appellant is not therefore asking the Court of Justice to carry out a fresh assessment of the facts, but challenges the General Court’s interpretation of the relevant case-law of the Court of Justice on the matter. That line of argument is therefore admissible.
32Finally, in so far as he criticises the General Court for having considered, in paragraph 73 of the judgment under appeal, that applying to the present case the consistent administrative practice for calculating the salaries of new members of staff gives rise to a risk of taking the same professional experience into account twice, the appellant does not call into question the assessment of those facts by the General Court as such. However, he challenges the assessment by the General Court that the principle of equal treatment does not require that the same professional experience of an internal candidate be taken into account a second time, even though, depending on the case, the initial taking into account of that experience does not allow that candidate to be classified in a step as favourable as that which would have resulted from the application of the rules applicable to external candidates. Therefore, the line of argument advanced by the appellant in that regard is admissible.
Substance
Arguments of the parties
33By his single ground of appeal, the appellant submits that the General Court infringed the principle of equal treatment, as enshrined in Article 20 of the Charter of Fundamental Rights of the European Union (‘the Charter’), by finding that the difference in treatment which it had rightly pointed out in paragraphs 52 to 55 of the judgment under appeal was justified on the basis of an objective and reasonable criterion and was proportionate to the aim pursued by that difference in treatment.
34In the first place, as regards the General Court’s assessment of the existence of justification, the appellant submits that, in paragraph 61 et seq. of the judgment under appeal, the General Court failed to have regard to a significant difference between Article 32 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and the consistent administrative practice for calculating the salaries of new members of staff. The relevant previous professional experience of external candidates who pass the competition could be taken into account in the salary band to an almost unlimited extent and lead to classification in a step well above the step granted to internal candidates such as the appellant. That significant difference makes it necessary, in situations such as that of the appellant, for the consistent administrative practice for calculating the salaries of new members of staff to be applied. The General Court’s assessment, in paragraph 66 of the judgment under appeal, as regards the comparability of Article 32 of the Staff Regulations and of that practice, is not convincing in the present case.
35According to the appellant, contrary to what the General Court held, the case-law relating to the Staff Regulations should not be applied to situations such as those at issue in the present case, in particular in the light of the fact that EU officials have a different status from that of EU staff members who do not have the status of official. In the appellant’s case, that difference in status is clear from the fact that, initially, he was recruited only for fixed periods. The application of the legal logic of Article 46 of the Staff Regulations, which is intended to ensure the greatest possible continuity in the evolution of seniority and salary, is not appropriate for members of staff who are not officials because they are covered by different regulations. That purpose of the provision constitutes, for the members of staff concerned, a purely economic consideration. It is not, in any event, an adequate justification for the purposes of Article 52(2) of the Charter.
36Since the situation of staff members who have the status of official and that of staff members who do not have that status are not comparable, it is to no avail that, in paragraphs 64, 65 and 68 et seq. of the contested judgment, the General Court held that taking into account training and professional experience would permit internal candidates to be treated less favourably than external candidates.
37The appellant submits furthermore that the General Court disregarded the relevant professional experience of eleven and a half years he had acquired before he took up his post at the ECB, and the fact that he was promoted to a new post after only two years of service. In view of the long periods of relevant employment outside the ECB and the appellant’s brief period of employment at the ECB, his situation was more comparable to that of external candidates than to that of internal candidates. It follows from the case-law resulting from the judgment of 15 January 1985, Samara v Commission (266/83, EU:C:1985:9, paragraph 15), that, in such a case, the principle that participants in an open competition merit equal treatment must prevail.
38The case-law of the Court of Justice resulting from the judgment of 29 January 1985, Michel v Commission (273/83, EU:C:1985:31, paragraph 25), which the General Court refers to in paragraph 72 of the judgment under appeal, according to which the fact that account was taken of the professional experience of internal candidates and external candidates who had passed the same competition by means of two separate systems was not contrary to the principle of equal treatment if the two groups differed objectively and if the two systems were adapted to the particular needs of each of them, is not applicable in the present case. In paragraphs 40, 45 and 51 of that judgment, the General Court concluded that internal and external candidates who passed the same competition are in comparable situations, in any event as regards their classification in step. It is contradictory to consider that there are objective differences between the two groups concerned.
39Similarly, the appellant argues that the General Court was wrong to find, in paragraph 73 of the judgment under appeal, that, by applying in the present case the consistent administrative practice for the calculation of the salary of new members of staff there was a risk of the appellant’s same professional experience being taken into account twice. It is true that, when initially recruited into salary band E/F, the appellant’s relevant professional experience was taken into account in order to classify him in step 70. However, in the context of the higher salary band F/G, corresponding to the post to which the appellant was promoted, taking his professional experience into account would have led to a classification in a much higher step. The relevant previous professional experience was taken into account only to a limited extent, in the classification to a lower level, in step 17.
40In the second place, the appellant disputes the General Court’s conclusion, in paragraph 75 of the judgment under appeal, that the contested decision was not only justified, but also proportionate.
41The General Court mentioned, in that regard, the objective pursued by the difference in treatment at issue, which is to ensure the greatest possible continuity in the career and salary progression of ECB staff members. It stated that the appellant’s relevant previous professional experience had been converted into his step in the F/G salary band, resulting from the application of Article 5(1) of Circular 2/2011.
42However, the fact that, contrary to what is provided for in Article 32 of the Staff Regulations, relevant previous professional experience is taken into account to a practically unlimited extent for external candidates, in accordance with the consistent administrative practice for calculating the salaries of new members of staff, but is taken into account only to a much lesser extent for internal candidates, in accordance with Article 5(1) of Circular 2/2011, runs counter to the proportionality of the measure at issue. The unfavourable treatment allegedly applied to the appellant when he was classified in the F/G salary band represents a loss of income of approximately 15% as compared with the income to which he would have been entitled if he had had the status of an external candidate at the time of his recruitment.
43The ECB contends that the appeal is unfounded.
Findings of the Court
44It should be noted at the outset that, by his appeal, the appellant does not dispute the findings made by the General Court that, first, internal candidates and external candidates who passed the competition concerned are in comparable situations for the purposes of their classification in step and, second, the application of different rules for those purposes – Article 5(1) of Circular 2/2011 having been applied to internal candidates such as the appellant, and the consistent administrative practice for the calculation of the salaries of new staff members having been applied to external candidates – may lead to different results, even where the relevant previous professional experience of internal candidates and external candidates is identical.
45By contrast, the appellant submits, on the basis of the case-law arising from the judgments of the Court of Justice of 15 January 1985, Samara v Commission (266/83, EU:C:1985:9), and of 29 January 1985, Michel v Commission (273/83, EU:C:1985:31), and of the General Court of 28 September 1993, Baiwir and Others v Commission (T‑103/92 to T‑105/92, EU:T:1993:79), and of 14 December 2011, De Luca v Commission (T‑563/10 P, EU:T:2011:746), relating to the Staff Regulations, that the General Court was wrong to hold that that difference in treatment was justified and proportionate.
46As the Court of Justice has held, there is a breach of the principle of equal treatment, applicable to EU civil service law, when two categories of person whose factual and legal circumstances disclose no essential difference are treated differently at the time of their recruitment, and that difference in treatment is not objectively justified (judgment of 4 March 2010, Angé Serrano and Others v Parliament, C‑496/08 P, EU:C:2010:116, paragraph 99 and the case-law cited).
47In interpreting the provisions of the Staff Regulations relating to the classification in step of an official in post who is appointed to a new post following an open competition, the Court has held that the Staff Regulations do not specifically contain provisions governing that classification. According to a purely textual interpretation, first, the transfer of an official in post from one category to another does not constitute a ‘recruitment’ for the purposes of Article 32 of the Staff Regulations, since that official has already been recruited, and, second, that transfer does not constitute a ‘promotion’ for the purposes of Article 46 of the Staff Regulations, since such an appointment is not made in accordance with the procedures laid down in the Staff Regulations governing the promotion of officials. The Court of Justice has therefore interpreted those provisions having regard to their context and purpose (see to that effect, the judgments of 15 January 1985, Samara v Commission, 266/83, EU:C:1985:9, paragraph 13, and of 29 January 1985, Michel v Commission, 273/83, EU:C:1985:31, paragraph 18).
48The Court has observed, in particular, that Article 32 of the Staff Regulations is intended to give the appointing authority the possibility of taking into account, albeit within rather strict limits, training and professional experience acquired by a candidate before he or she takes up his or her duties as an official (judgment of 29 January 1985, Michel v Commission, 273/83, EU:C:1985:31, paragraph 20).
49On the other hand, the purpose of Article 46 of the Staff Regulations is, inter alia, to ensure the greatest possible continuity regarding an official’s seniority and salary as his or her career develops. The need for such a provision derives in particular from the fact that, according to the table of basic salaries, the salaries for the highest steps in a grade and those for the lower steps in the grade above partially overlap. The same partial overlap exists between the various categories. In order to ensure that an official in one of the highest grades in a category does not suffer a loss, which might in some cases be substantial, of seniority and salary by comparison with his or her colleagues on being transferred to the category above, it is therefore necessary to apply to him or her the principles laid down in Article 46 of the Staff Regulations (judgment of 29 January 1985, Michel v Commission, 273/83, EU:C:1985:31, paragraphs 21 and 22).
50The Court has thus laid down the principle that the classification in step of an official moving from one category to another following an open competition must be based on the principles set out in Article 46 of the Staff Regulations and not on those laid down in the second paragraph of Article 32 thereof (judgment of 29 January 1985, Michel v Commission, 273/83, EU:C:1985:31, paragraph 23).
51The Court has nevertheless accepted that there are derogations from that principle, in so far as the factual circumstances of the case justify treating the appointment of the official concerned as equivalent to recruitment under Article 32 of the Staff Regulations. The Court thus held that, in such circumstances, the principle that candidates in an open competition merit equal treatment must be given precedence over the need to respect equality between an official who has been successful in an open competition and the other officials already recruited (see, to that effect, the judgments of 15 January 1985, Samara v Commission, 266/83, EU:C:1985:9, paragraphs 12 and 15, and of 14 June 1988, Lucas v Commission, 47/87, EU:C:1988:301, paragraph 14).
52In so far as the appellant complains that the General Court applied the case-law of the Court of Justice and that of the General Court concerning the Staff Regulations to his situation, it should be noted, first, that, in paragraph 59 of the judgment under appeal, the General Court recognised that the provisions of the Staff Regulations are not directly applicable to the staff of the ECB. It nevertheless was held, correctly, in paragraph 66 of that judgment, that the considerations underlying the relationship between Articles 32 and 46 of the Staff Regulations are comparable to those underlying the relationship between the consistent administrative practice for the calculation of the salaries of new members of staff and Article 5(1) of Circular 2/2011.
53As the General Court pointed out in paragraph 66 of that judgment, in the case of both the Staff Regulations and the provisions concerned in this case, it is necessary to determine whether the classification in step of a member of staff in active service appointed to a new post following an open competition must be governed by the provisions on recruitment, namely Article 32 of the Staff Regulations, or, as in the present case, the consistent administrative practice for calculating the salaries of new members of staff, or by the provisions relating to promotion, namely Article 46 of the Staff Regulations, or, as in the present case, Article 5(1) of Circular 2/2011.
54Furthermore, the General Court found in paragraph 57 of the judgment under appeal, without the appellant having demonstrated an error of law or a distortion of the facts or evidence in that regard, that the underlying objective of Article 5(1) of Circular 2/2011 is to ensure, during the normal career progression of a member of staff in active service with the ECB, the greatest possible continuity in the evolution of his or her salary, an objective which is therefore comparable to that of Article 46 of the Staff Regulations.
55Furthermore, as the General Court was fully entitled to observe, in paragraph 59 of the judgment under appeal, the lessons drawn from the case-law of the Court of Justice and of the General Court relating to the Staff Regulations are relevant in the present case in so far as they concern the general principle of equal treatment enshrined in Article 20 of the Charter and applicable, pursuant to Article 51(1) thereof, to all EU institutions, bodies, offices and agencies, including the ECB.
56Secondly, the fact that the appellant did not already have a contract of indefinite duration concluded with the ECB when he passed the competition concerned does not alter the fact that, first, as has been stated in paragraph 54 of the present judgment, the objective underlying Article 5(1) of Circular 2/2011, which was taken into account in the decision at issue for the purposes of the appellant’s classification in step in the F/G salary band, is to ensure, during the normal career progression of a member of staff in active service with the ECB, the greatest possible continuity in the evolution of his or her salary and, second, that that objective is comparable to that of Article 46 of the Staff Regulations applicable to officials working for the EU institutions.
57Thirdly, it is true that Article 32 of the Staff Regulations limits to two years the previous experience of new recruits that is to be taken into account, whereas the consistent administrative practice for calculating the salaries of new members of staff does not appear to impose such a limit on the relevant previous experience of new members of staff of the ECB that is taken into account. However, the differences in the procedures for taking into account previous professional experience under Article 32 of the Staff Regulations and under that practice result from the particularities of each of those schemes, which are not required to be identical in every respect in order for the legal logic stemming from the Court’s case-law relating to one of those schemes to be considered applicable, by analogy, to the other regime.
58As regards the way in which the General Court applied, in the present case, the case-law of the Court of Justice and that of the General Court relating to the Staff Regulations, it follows from the assessment of the information in the file made by the General Court, in particular in paragraphs 67, 69 and 70 of the judgment under appeal, without any distortion of the facts having been demonstrated by the appellant in that regard, that the entirety of the previous professional experience which he submitted at first instance, namely both his relevant previous professional experience and that following his entry into service at the ECB, was taken into account for the purposes of his classification in step in the F/G salary band as a result of the application of Article 5(1) of Circular 2/2011.
59Admittedly, as is apparent from paragraph 25 of the present judgment, the General Court acknowledged, in paragraph 71 of the judgment under appeal, that it cannot be ruled out that the application to internal candidates, such as the appellant, of the consistent administrative practice for calculating the salaries of new members of staff, instead of Article 5(1) of Circular 2/2011, could have resulted in a higher step classification.
60However, as the General Court correctly recalled in paragraph 72 of the judgment under appeal, the fact that account is taken of the professional experience of internal candidates and external candidates who have passed the same competition by means of two separate systems is not contrary to the principle of equal treatment if the two groups differ objectively and if the two systems are adapted to the particular needs of each of them (judgment of 29 January 1985, Michel v Commission, 273/83, EU:C:1985:31, paragraph 25).
61That is the case, in particular, where the professional experience acquired by internal candidates before they entered the service of the European Union institution, body, office or agency concerned has already been taken into account at the time of their recruitment, their professional experience acquired within that institution, body, office or agency having, moreover, also been taken into account at the time of their advancement in step or promotions. In such a case, it is in no way discriminatory to accord weight to the professional experience acquired by external candidates by applying the recruitment rules, whereas the professional experience acquired by internal candidates remains recognised by applying the provisions which ensure continuity in salary progression (see, to that effect, judgment of 29 January 1985, Michel v Commission, 273/83, EU:C:1985:31, paragraphs 24 to 26).
62Consequently, the General Court was fully entitled to find, in paragraph 75 of the judgment under appeal, that the difference in treatment at issue in the present case between, on the one hand, the appellant, as an internal candidate who passed the competition concerned, and, on the other hand, the external candidates who passed it, for the purposes of their classification in step, is justified on the basis of the objective pursued by Article 5(1) of Circular 2/2011, which is to ensure, during the normal progression of the career of a member of staff of the ECB, the greatest possible continuity in the evolution of his or her career and salary, and is proportionate to that objective, in so far as the relevant previous professional experience that the appellant submits in the present case has been taken into account for the purposes of his classification in step in the F/G salary band resulting from the application of Article 5(1) of Circular 2/2011.
63The arguments put forward by the appellant in the present appeal are not capable of calling that finding into question.
64In the first place, the appellant is wrong to claim that it follows from the case-law stemming from the judgment of 15 January 1985, Samara v Commission (266/83, EU:C:1985:9), that, in a case such as his, the principle that the candidates in an open competition merit equal treatment must prevail. First, the appellant cannot properly rely, for that purpose, on the argument that the eleven and a half years of professional experience acquired before he took up his post at the ECB had to be regarded as ‘relevant’ for the purposes of the consistent administrative practice for calculating the salaries of new members of staff, since such a factual assessment falls within the ECB’s discretion in the event that it is held that it was in fact required to apply that practice for the purposes of the classification in step of the appellant following the competition concerned.
65Second, assuming that the relevant experience relied on by the appellant before entering the service of the ECB must be regarded as ‘relevant’ for the purposes of the consistent administrative practice for calculating the salaries of new members of staff, the situation of the person concerned is different from that of the appellant in the case that gave rise to the judgment of 15 January 1985, Samara v Commission (266/83, EU:C:1985:9). In particular, as is apparent from paragraph 15 of that judgment, the appointment of that appellant to the new post was not part of her normal career progress, so that the differences between the post of typist that she previously occupied as an official and that of secretary/shorthand typist to which she was appointed were such as to justify, for her, reliance on her previous experience in that field.
66It follows that the brief nature of the period spent by the appellant at the ECB before he passed the competition concerned, by comparison with the periods of employment which he had completed before his recruitment by the ECB, would only be relevant where no account at all was taken of his professional experience preceding his entry into service, which is not the case.
67In the second place, it is true that, in paragraph 51 of the judgment under appeal, the General Court concluded that the situation of internal candidates and that of external candidates participating in the competition concerned were comparable, whereas it subsequently observed, in paragraph 72 of that judgment, in its assessment of the justification for the difference in treatment, and referring to the case-law resulting from the judgment of 29 January 1985, Michel v Commission (273/83, EU:C:1985:31), that those two groups are objectively different.
68However, it follows from a reading of the judgment under appeal as a whole, in particular paragraphs 50, 51, 57 and 66 to 72 thereof, that the General Court held that those groups are comparable in so far as their relevant previous professional experience had to be taken into account for the purposes of their classification in step in the same salary band, but that, having regard in particular to the different objectives pursued by the rules applied to each of those groups, the difference in the way in which their previous professional experience is taken into account is justified.
69In the third place, in so far as the appellant criticises the General Court for having found, in paragraph 73 of the judgment under appeal, that the application, in the present case, of the consistent administrative practice for the calculation of the salary of new members of staff risks leading to the taking into account twice of the same professional experience of the appellant, it is sufficient to point out that it follows from the considerations set out in paragraphs 60 and 66 of this judgment, first, that it is only an absence of account being taken of previous professional experience which justifies the application, by analogy, of Article 32 of the Staff Regulations, and, second, a taking into account of that experience which is, depending on the case, less favourable for the person concerned than if that exercise were carried out under Article 32 of the Staff Regulations does not, in itself, constitute a breach of the principle of equal treatment.
70Fourthly and lastly, the appellant submits that the principle of proportionality has not been observed, since the previous professional experience of external candidates participating in the competition concerned is taken into account to a practically unlimited extent, but is taken into account only to a much lesser extent for internal candidates participating in that competition.
71In that regard, it is sufficient to note that that argument is not capable of calling into question the assessment made by the General Court and is therefore ineffective, since it is clear from the foregoing that the General Court was entitled, without erring in law, to consider, first, that the different procedures for taking into account the previous professional experience of internal candidates and external candidates participating in the competition concerned were justified by the different objectives pursued by the provisions applied to each of those groups and, second, that the fact that, depending on the case, the application of the consistent administrative practice for calculating the salaries of new members of staff could lead to a classification in a higher step does not mean, in itself, that there was a breach of the principle of equal treatment.
72Having regard to all the foregoing considerations, the single ground of appeal raised by the appellant must be rejected and, therefore, the appeal must be dismissed in its entirety.
Costs
73In accordance with Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to costs.
74Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
75Since the ECB has applied for the appellant to be ordered to pay the costs and the latter has been unsuccessful, he must be ordered to bear his own costs and to pay those incurred by the ECB.
Operative part
On those grounds, the Court (Fifth Chamber) hereby:
1.Dismisses the appeal.
2.Orders the Mr Sebastian Veit to pay, in addition to his own costs, those incurred by the European Central Bank.
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