OPINION OF ADVOCATE GENERAL
NORKUS
delivered on 30 January 2025 (1)
Case C‑364/23 P
ZR
v
European Union Intellectual Property Office
( Appeal – Civil service – Interinstitutional transfer – Transfer application made on the basis of Article 8 of the Staff Regulations of Officials of the European Union, submitted in response to a vacancy notice – Rejection of that application – Effect of the order of priority laid down in Article 29(1) of those regulations – Error of law )
1.        The present case provides an opportunity to analyse the issue of interinstitutional mobility, which is at the heart of the appeal brought against the judgment of the General Court of 29 March 2023, ZR v EUIPO (T‑400/21, ‘the judgment under appeal’, EU:T:2023:169), and, in particular, the interaction of the provisions relating, on the one hand, to a transfer application made by an official following secondment to another EU institution (2) and, on the other, to the procedure to be followed to fill vacant posts within that institution.
I.      Legal framework
2.        The legal framework of the present appeal is defined by the following provisions of the Staff Regulations of Officials of the European Union, as amended by Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 (OJ 2013 L 287, p. 15; ‘the Staff Regulations’), in the version applicable to the dispute in the main proceedings.
3.        Under Article 4 of the Staff Regulations:
‘No appointment or promotion shall be made for any purpose other than that of filling a vacant post as provided in these Staff Regulations.
Vacant posts in an institution shall be notified to the staff of that institution once the appointing authority decides that the vacancy is to be filled.
If the vacancy cannot be filled by transfer, appointment to a post in accordance with Article 45a or promotion, it shall be notified to the staff of the other institutions, and/or an internal competition shall be organised.’
4.        Article 8 of the Staff Regulations provides:
‘An official seconded to another institution of the European Union may, after a period of six months apply to be transferred to that institution.
If the parent institution of the official and the institution to which he has been seconded both consent, to the transfer, the official shall be deemed to have served his entire service career in the Union in the latter institution. He shall not receive by virtue of such transfer any of the financial benefits which an official is entitled to receive under these Staff Regulations on termination of service with one of the institutions of the Union.
…’.
5.        Article 29(1) of the Staff Regulations states:
‘Before filling a vacant post in an institution, the appointing authority shall first consider:
(a)      whether the post can be filled by:
(i)      transfer, or
(ii)      appointment in accordance with Article 45a, or
(iii)      promotion
within the institution;
(b)      whether requests for transfer have been received from officials of the same grade in other institutions, and/or
(c)      if it was not possible to fill the vacant post through the possibilities mentioned in points (a) and (b), whether to consider lists of suitable candidates within the meaning of Article 30, where appropriate, taking into account the relevant provisions concerning suitable candidates in Annex III and/or
(d)      whether to hold a competition internal to the institution, which shall be open only to officials and temporary staff as defined in Article 2 of the Conditions of Employment of Other Servants of the European Union;
or follow the procedure for competitions on the basis either of qualifications or of tests, or of both qualifications and tests. …
…’.
6.        Article 110(1) of the Staff Regulations provides:
‘The general provisions implementing these Staff Regulations shall be adopted by the appointing authority of each institution after consulting the Staff Committee and the Staff Regulations Committee.’
II.    Background to the dispute
7.        The background to the dispute, as set out by the General Court in paragraphs 2 to 13 of the judgment under appeal, can be summarised, in essence, as follows.
8.        The appellant, an official of the European Commission in grade AD 5, was, at her request, seconded to the European Union Intellectual Property Office (EUIPO), in accordance with Article 39 of the Staff Regulations, with effect from 16 September 2013. Initially, she held the post of intellectual property assistant as a temporary agent under Article 2(a) of the Conditions of Employment of Other Servants of the European Union, then, from 1 March 2019, she continued to work at EUIPO as a temporary agent in grade AD 6 as an intellectual property specialist.
9.        On 10 March 2020, EUIPO published an internal call for expressions of interest which aimed at appointing as officials of EUIPO a number of agents seconded to it (‘the call for expressions of interest’) in the context of the annual transfer exercise (‘the annual transfer exercise’). That call specified that it was open to all job profiles, including those related to intellectual property. EUIPO stated therein that the Appointing Authority would analyse applications submitted in the light of the interest of the service and take into account criteria such as (i) key positions or key knowledge within EUIPO, (ii) career and performance within EUIPO, (iii) existing opportunities in the establishment plan, (iv) budgetary impact, and (v) remaining duration of the contract or remaining period of validity of reserve lists.
10.      The appellant responded to the call for expressions of interest within the prescribed time limit, namely 31 March 2020, applying to be transferred to EUIPO in accordance with Article 8 of the Staff Regulations. She stated that she met those criteria and that it would be in the interest of the service of EUIPO for her to be transferred.
11.      On 28 April 2020, EUIPO published vacancy notice IM/FT&TA/20/47/AD/OD, addressed to officials and temporary agents in grades AD 5 to AD 8, with a view to filling the post of intellectual property specialist (‘the vacant post’).
12.      On 12 May 2020, the appellant submitted her application in response to that vacancy notice. By an email of the same day, sent to the Appointing Authority, the appellant referred to that vacancy notice and, on the basis of Article 90(1) of the Staff Regulations, applied to be transferred to EUIPO, in accordance with Articles 8 and 29 of the Staff Regulations (‘the application at issue’).
13.      By decision of 8 September 2020, the Appointing Authority rejected the transfer application (‘the decision at issue’).
14.      On 5 November 2020, EUIPO appointed a temporary agent, who was selected following the publication of an external recruitment notice with a view to drawing up a reserve list of candidates, and entered into service on 1 December 2020.
15.      On 8 December 2020, the appellant lodged a complaint under Article 90(2) of the Staff Regulations against the decision at issue, which was rejected by a decision of 22 March 2021 (‘the decision rejecting the complaint’).
III. The procedure before the General Court and the judgment under appeal
16.      By application lodged at the Registry of the General Court on 2 July 2021, the appellant brought an action for the annulment of the decision at issue and, so far as necessary, the decision rejecting the complaint.
17.      In support of her action, she put forward three pleas in law, the first alleging infringement of Articles 4, 8, 27, 29 and 110 of the Staff Regulations and of the principles of career continuity, consideration of the comparative merits of EU officials and transparency, the second alleging infringement of the principle of equal treatment, and the third alleging a breach of the obligation to state reasons and of the duty to have regard for the welfare of officials, resulting in a manifest error of assessment of the balance of interests at stake.
18.      By the judgment under appeal, the General Court rejected those three pleas and, consequently, dismissed the action in its entirety. In particular, in relation to the first plea, the General Court held, first of all, as regards the application at issue, that, having regard to the wording, content and context of that application, it was to be characterised as a ‘transfer application’ for the purposes of the first paragraph of Article 8 of the Staff Regulations. It then held, in essence, that, by its very nature, such an interinstitutional transfer application could not be regarded as seeking to fill a vacant post which is the subject of a vacancy notice. Last, the General Court held that, in examining the application at issue, EUIPO was not required to take into consideration either Article 29(1)(b) of the Staff Regulations or Article 4 thereof, in so far as – according to the General Court – those two provisions only concern bringing vacant posts to the attention of staff from other institutions. The General Court held that the appellant’s first plea was unfounded and in part ineffective, to the extent that she sought to challenge the annual transfer exercise.
19.      As regards the second and third pleas, the General Court held, in essence, first, that the appellant’s situation was either not comparable to or different from those referred to in her arguments. In any event, the fact that her transfer application, made outside the framework of the annual transfer exercise, was examined, did not mean that the administration would grant that application. Second, the decision at issue included an adequate statement of reasons, did not contain any manifest errors of assessment and had been adopted in accordance with the duty to have regard for the welfare of officials.
IV.    Procedure before the Court of Justice and forms of order sought
20.      By her appeal, the appellant claims that the Court should:
–        set aside the judgment under appeal, declare her claims in Case T‑400/21 to be admissible and well founded and, consequently,
–        annul, in essence, the decision at issue, or if that is not possible, refer the case back to the General Court for it to give judgment, and
–        order EUIPO to pay the costs.
21.      EUIPO contends that the Court should:
–        dismiss the appeal in its entirety as manifestly inadmissible and, in the alternative, unfounded, and
–        order the appellant to pay the costs of the proceedings before the General Court and of the present proceedings.
22.      In accordance with Article 76(2) of its Rules of Procedure, the Court decided to proceed without a hearing.
V.      Legal analysis
23.      In support of her appeal, the appellant puts forward three grounds of appeal. In accordance with the Court’s request, this Opinion will concentrate on the first two of those grounds. Nevertheless, before analysing those grounds on their merits, it is necessary to address the doubts raised by EUIPO as to the admissibility of the present appeal.
A.      Admissibility
24.      EUIPO disputes the admissibility of the present appeal on the basis that it does not identify precisely the contested elements of the judgment, does not contain any legal arguments in support of the grounds of appeal, is not sufficiently consistent and intelligible, and thus amounts to no more than a request for re-examination of the application submitted to the General Court. It submits that the entire appeal is based on the alleged misinterpretation of the application at issue. By such a line of argument, the appellant intends to change the subject matter of the proceedings by seeking to raise, for the first time before the Court of Justice, arguments that were not put forward before the General Court.
25.      The appellant submits that her appeal is admissible.
26.      In that regard, I do not share EUIPO’s view that, in essence, the present appeal is inadmissible in its entirety. This appeal seeks to challenge the position taken by the General Court in the judgment under appeal, setting out the grounds and legal arguments by which the appellant intends to call that position into question. In particular, the appellant submits, by reference to specific aspects and paragraphs of that judgment, that the General Court made errors of law and distorted the facts. It should be added that, where, as in the present case, a party challenges the General Court’s interpretation or application of EU law with regard to various provisions of the Staff Regulations, it is quite obvious that the points of law examined at first instance may be discussed again in the course of an appeal, (3) otherwise the appeal proceedings could not fully serve their purpose.
27.      EUIPO’s contentions as to the inadmissibility of the ‘main’ argument raised in the appeal, concerning the alleged misinterpretation of the appellant’s application, also do not seem to me to be persuasive. As is apparent from the pleadings that the appellant has filed with the Court, she claims, in essence, that the General Court distorted the evidence in the file and thus made an error of law as regards the legal characterisation of the application at issue and the consequences that, in its view, followed from that characterisation. Issues of that nature are, as such, amenable to review by the Court in an appeal. (4)
28.      Furthermore, it is undoubtedly true that, according to Article 170(1) of the Rules of Procedure, the subject matter of the proceedings before the General Court may not be changed on appeal, and that the jurisdiction of the Court of Justice, on appeal, is limited to assessing the findings in law on the pleas argued at first instance. (5) Nonetheless, it is clearly apparent from the application before the General Court that the appellant was, in essence, challenging the failure to examine her application for a vacant post, the legal characterisation of which was determined in the judgment under appeal. That characterisation is now challenged in this appeal before the Court. Accordingly, contrary to EUIPO’s submissions, the appellant’s ‘main’ argument cannot be regarded as changing the subject matter of the proceedings before the Court.
29.      In my view, therefore, there is no doubt as to the admissibility of the appeal or as to that of its ‘main’ argument. I will accordingly proceed with the substantive legal analysis.
B.      Substance
1.      Observations on the background of the case
30.      Before turning to the analysis of the legal issues raised, as identified above, I would like to make some preliminary observations concerning the background of the case, which are necessary in order for the issue that is before the Court in this case to be properly understood.
31.      In that regard, it should be borne in mind that the appellant made two applications, as described in points 10 and 12 of this Opinion. Thus, the issue of the relationship between the various procedures that are intertwined in the present case arises, those procedures being (i) an application submitted in response to a vacancy notice, under the rules for filling vacant posts established under Article 29(1) of the Staff Regulations, (ii) an interinstitutional transfer application following secondment of an official to a receiving institution, for the purposes of the first paragraph of Article 8 of the Staff Regulations, and (iii) an annual transfer exercise which, as is apparent from the evidence in the file, is a sui generis internal procedure particular to EUIPO (‘the sui generis procedure’), and is not provided for by the Staff Regulations. (6)
32.      That being so, the decision which gave rise to the action before the General Court was taken with regard solely to the second application, described in point 12 of this Opinion, from which it follows, in essence, that the Appointing Authority decided not to examine the application submitted by the appellant in response to the vacancy notice on the ground, in essence, that that notice was not addressed to the appellant, being an official of another EU institution. The Appointing Authority nevertheless analysed that second application as a transfer application for the purposes of the first paragraph of Article 8 of the Staff Regulations, on the basis of the criteria used in the annual transfer exercise, (7) which the General Court held to be lawful in the judgment under appeal.
33.      In that regard, however, it is difficult to understand, first, whether the vacancy notice was to be regarded as being potentially addressed to the appellant, (8) and, second, whether the existence of a link between the transfer application for the purposes of the first paragraph of Article 8 of the Staff Regulations and the annual transfer exercise was capable of justifying the application of the criteria used in that exercise for the purpose of analysing that application, especially given that the application had been made outside the framework of that exercise. (9) It seems to me particularly unfortunate that there is a lack of clarity as regards those two matters and that the General Court did not address them in the judgment under appeal.
34.      Nevertheless, despite the resulting confusion, which complicates the legal analysis of the present case appreciably, it is appropriate to proceed with that analysis as follows.
2.      First ground of appeal
35.      By her first ground of appeal, which consists of three parts, the appellant raises arguments concerning the interaction of Articles 4, 8, 27, 29 and 110 of the Staff Regulations in the present case.
36.      The issue on which the present case turns, namely whether the General Court was correct as regards, first, the legal characterisation of the application at issue and, second, the legal consequences flowing from that characterisation, falls to be analysed in connection with this ground of appeal, and more specifically its first part.
(a)    First part of the first ground of appeal
37.      Under the first part of the first ground of appeal, the appellant claims that the conclusion reached by the General Court, in relation to the characterisation of the application at issue and the consequences drawn from that characterisation in the judgment under appeal, (10) is vitiated by an error of law. She submits that Articles 8 and 29 of the Staff Regulations do not govern two separate procedures. Article 8 of the Staff Regulations cannot be interpreted as relating to a situation where there is no vacancy, since such an approach would be contrary not only to the wording of Article 4 of the Staff Regulations, but also to the purpose of Articles 4 and 29 thereof. There must be a vacant post to which the official can be transferred, since an official is not transferred together with his or her post in the parent institution, all the more so for the fact that the various posts must be provided for in the budget of each receiving institution. The appellant also submits that the General Court distorted the evidence on the file and, in particular, the very wording of the application at issue, in holding that that application was a transfer application for the purposes of the first paragraph of Article 8 of the Staff Regulations.
38.      In the present case, the Court will need to determine whether the General Court was entitled to rule out any possibility of applying, inter alia, Article 8 and Article 29(1) of the Staff Regulations simultaneously, by holding, in essence, that an interinstitutional transfer application, for the purposes of that first paragraph of Article 8, cannot relate directly to a specific vacant post in respect of which a vacancy notice has been published. (11)
39.      In my view, the reasoning of the General Court, especially in paragraphs 60 to 64 of the judgment under appeal, (12) where it held, in essence, that an absolute distinction must be drawn between an interinstitutional transfer application following the secondment of an official, for the purposes of the first paragraph of Article 8 of the Staff Regulations, and the rules governing the ways in which vacant posts may be filled, inter alia by means of an interinstitutional transfer application, for the purposes of Article 29(1) of the Staff Regulations, is vitiated by an error of law for the reasons I will set out below. More specifically, given that, from the legal characterisation of the application at issue, that distinction seems to be woven through the entirety of the General Court’s reasoning, I think it is preferable to begin this analysis by considering whether that distinction is well founded, even before addressing whether that characterisation is well founded.
40.      In that regard, it should be observed, in the first place, that a textual interpretation of Article 8 and Article 29(1) of the Staff Regulations runs counter to the absolute distinction drawn by the General Court in the judgment under appeal. The first of those provisions relates, amongst other things, to the situation in which an official makes a transfer application following secondment to another EU institution. Thus, Article 8 of the Staff Regulations does not set out any limit in relation to the possibility offered to officials of being transferred on the basis, inter alia, of Article 29(1)(b) of the Staff Regulations.
41.      As regards Article 29(1) of the Staff Regulations, that provision concerns the specific possibilities that the Appointing Authority may consider with a view to filling vacant posts, namely transfer, appointment in accordance with Article 45a of the Staff Regulations or promotion within the institution, interinstitutional transfer, the selection procedure based on consideration of lists of suitable candidates, and competitions.
42.      Thus, it is apparent from the wording of Article 29(1) of the Staff Regulations that that provision sets out an order of preference to be followed by the Appointing Authority in filling vacant posts, with priority given to officials already serving in the institution, then to officials of other institutions, followed by persons named on lists of suitable candidates and, last, candidates participating in a competition. (13) Accordingly, it is beyond argument that, under that provision, the Appointing Authority must carefully examine the applications submitted in accordance with the order of preference set out in that provision. (14)
43.      In the second place, a contextual interpretation of Article 8 and Article 29(1) of the Staff Regulations also runs counter to the distinction drawn by the General Court as regards the application of those provisions. It should be borne in mind that Article 8 is part of Title I, and – as the title heading indicates – is among the general provisions of those regulations. As to Article 29, that provision is found in the Chapter 1, headed ‘Recruitment’, of Title III, headed ‘Career of officials’.
44.      That being said, I consider that the general provisions of the Staff Regulations are applicable across all areas of European civil service law, as Advocate General Kokott has already stated. (15) That view is confirmed by the case-law. (16) Accordingly, the general nature of the provision contained in the first paragraph of Article 8 of the Staff Regulations, concerning a transfer application made by an official following secondment, pleads in favour of reading that provision in conjunction with Article 29(1) of the Staff Regulations, concerning, first, the specific ways in which a post within the receiving institution can be filled, and, second, the order of preference to be followed in so doing.
45.      An interpretation to the contrary, as found, in particular, in paragraphs 62 and 63 of the judgment under appeal, whereby a transfer application submitted on the basis of the first paragraph of Article 8 of the Staff Regulations cannot relate directly to a specific vacant post published by the Appointing Authority, would limit the ability of seconded officials to apply for specific posts, when no such limitation exists in relation to non-seconded officials. Rather than providing seconded officials with an additional right of transfer, that article, as interpreted by the General Court, would limit their right. From a teleological perspective, I doubt that that can have been the intention of the EU legislature.
46.      Equally, I am not persuaded by the General Court’s argument that the exclusion of seconded officials from the procedure provided for in Article 29(1)(b) of the Staff Regulations is justified by the need to broaden the Appointing Authority’s choice beyond the possibilities offered by Article 29(1)(a) of the Staff Regulations, (17) by promoting the mobility of EU officials, as well as the interest of the service. (18) I understand that, as stated in paragraph 43 of the judgment under appeal, the transfer of a seconded official, following an application made by that official on the basis of the first paragraph of Article 8 of the Staff Regulations, does not – compared with the recruitment of persons not already working within that institution – provide the EU institution in question with additional human resources, and that this gives rise to a possible interest in limiting the ability of seconded officials to apply for vacant posts on the basis of Article 29(1)(b) of the Staff Regulations.
47.      However, taking account of that consideration would mean, in essence, that the interest of the service in enlarging its staff by having recourse to officials working in other institutions would take precedence over the objective of recruiting individuals with the highest standard of ability, efficiency and integrity, (19) because it would deprive seconded officials of the very opportunity to persuade the Appointing Authority that they possess its qualities by comparison with officials who have not been seconded. Consequently, rather than enlarging the Appointing Authority’s options, proceeding on that basis would actually limit them.
48.      Last, from a practical point of view, the interpretation whereby an interinstitutional transfer application, for the purposes of the first paragraph of Article 8 of the Staff Regulations, cannot relate directly to a specific vacant post, in respect of which a vacancy notice has been published, would risk depriving the possibility of transfer provided for by that provision of any practical effect.
49.      In that regard, the General Court’s conclusion that, inter alia, Articles 8 and 29 of the Staff Regulations cannot apply simultaneously does not seem to me to be very logical. If the transfer application does not relate to a vacant post in respect of which a vacancy notice has been published, where is the official to be transferred to? (20) Furthermore, ruling out the possibility of those provisions applying simultaneously would run counter to budgetary constraints, in that each post which the budgetary authorities have made permanent in each EU institution must be carefully identified in an establishment plan annexed to the relevant section of the budget. (21) As the appellant rightly observes, an official is not transferred to the receiving institution together with his or her post in the parent institution. In other words, an official can be transferred to a receiving institution only if there is a vacant permanent post to be filled that has been provided for within that institution and if the rules of the Staff Regulations concerning the filling of that post are complied with.
50.      That being so, the General Court’s conclusion, referred to in point 38 of this Opinion, could be understood as meaning that the transfer application may relate only to posts which have been specifically provided for by the receiving institution in the context of an internal procedure intended for that purpose, which is not provided for by the Staff Regulations – namely the annual transfer exercise. However, such an interpretation, which is far from being obvious from the express terms of the judgment under appeal, fails to reflect the general nature of the provision relating to interinstitutional transfer of an official following secondment, contained in the first paragraph of Article 8 of the Staff Regulations.
51.      Furthermore, I see no objective reason that dictates that a transfer application made by an official following secondment can relate only to posts specifically identified within the receiving institution in the context of an internal procedure of that institution. The annual transfer exercise, a sui generis procedure that creates another route – additional to that provided for by the Staff Regulations – by which an individual may transfer between institutions and become an EUIPO official, cannot take precedence over the system established by the Staff Regulations for transfers following the secondment of an official, which applies to EUIPO by virtue of its establishing acts. (22) That system, in order to have full practical effect, must be read in conjunction with Articles 4 and 29 of the Staff Regulations. (23) In any event, such a limitation would risk creating a difference of treatment as between seconded officials applying to be transferred, on the basis of the first paragraph of Article 8 of the Staff Regulations, to EUIPO, which has a specific internal procedure, and officials seconded to another EU institution which has no such procedure and who apply to be transferred to that institution, without any objective justification.
52.      That view is all the more compelling due to the fact that the annual transfer exercise seems, on the basis of the material in the file before the General Court, to differ in scope from the procedure for transfer applications for the purposes of the first paragraph of Article 8 of the Staff Regulations. (24) As is apparent from the judgment under appeal, the General Court affirmed the analysis carried out in the decision at issue, which was based on the assessment criteria used in the annual transfer exercise, without considering – despite the appellant’s request for it to do so – whether there was any relationship between that exercise and the procedure under that first paragraph of Article 8, read in conjunction with Article 29 of the Staff Regulations.
53.      For the sake of completeness, it is worth stating that the conclusion that there can be no concomitant application of, inter alia, Articles 8 and 29 of the Staff Regulations, proves to be contrary to the reasoning set out in the decision at issue itself. According to that reasoning, the application submitted by the appellant in response to the vacancy notice was not examined on the ground that that notice was not addressed to her in her capacity as an official of another institution, and that ground was restated in the decision rejecting the complaint. However, there is nothing in the decision at issue to suggest that that application could not in any circumstances relate to a vacant post. (25) In that regard, it should be observed that EUIPO’s conclusion as to the legal addressees of the vacancy notice, which was challenged by the appellant before the General Court, was not examined in the judgment under appeal. Accordingly, EUIPO’s arguments to the contrary, which are based on a misreading of paragraphs 62 and 64 of that judgment, cannot invalidate the foregoing.
54.      Having regard to all of those matters, I consider that the General Court made an error of law in the judgment under appeal, in holding that the application at issue, characterised as a transfer application for the purposes of the first paragraph of Article 8 of the Staff Regulations, could not, by its very nature, relate to a specific vacant post, and that, as a result, it incorrectly rejected the appellant’s arguments relating, in essence, to the fact that that provision had not been applied simultaneously with, inter alia, Article 29 of the Staff Regulations.
55.      In that regard, it must be concluded, as was stated at the beginning of this analysis, that that error affects the rest of the General Court’s reasoning, in which it examined the merits of the action. That includes the legal characterisation of the application at issue, in relation to which the General Court thought it necessary to categorise that application in a binary fashion, as being either a transfer application or an application in response to the vacancy notice. However, as is apparent from the foregoing, the two procedures could operate in parallel and, consequently, a transfer application made on the basis of the first paragraph of Article 8 of the Staff Regulations could perfectly well relate to the vacant post published by means of the vacancy notice. In applying that binary distinction to the application at issue, when determining its proper legal characterisation, the General Court made an error of law.
56.      For the sake of completeness, I would state that, in so far as it is apparent from the application at issue that the appellant’s intention was to be transferred to EUIPO and to become an official of that institution by responding to the publication of the vacancy notice, the exact wording of that application is, to my mind, irrelevant. It is for the Appointing Authority to give the application a legal characterisation that reflects the applicant’s intentions. (26) In the present case, exactly the opposite happened: no legal basis was indicated in the EUIPO vacancy notice, but the fact that the appellant relied on two legal bases in the application at issue, namely Articles 8 and 29 of the Staff Regulations – entirely correctly in my view – was interpreted to her disadvantage.
57.      It follows that the first part of the first ground of appeal must, in my view, be upheld. Accordingly, it is purely for the sake of completeness that I examine the remaining parts of the first ground and the second ground below.
(b)    Second part of the first ground of appeal
58.      As regards the second part of the first ground of appeal, the appellant submits that the General Court infringed her rights of defence or, at least, misconstrued her first plea and failed to consider some of her arguments, in focusing on EUIPO’s arguments concerning the appraisal reports without weighing them against the arguments that she had put forward, especially given that those reports were not in the file before the General Court.
59.      I am not persuaded by those arguments. It is true that the General Court supported its reasoning by reference to EUIPO’s arguments concerning the appellant’s appraisal reports. However, the appellant, who does not suggest that she was unaware of the content of those reports, was able to exercise her rights of defence in an effective manner as regards the conclusions drawn from them. Thus, the alleged infringement of her rights of defence could not arise from the fact that those reports were not in the file before the General Court, especially given that the appellant herself had not considered it appropriate to produce those documents before the General Court.
60.      Furthermore, it is apparent from paragraphs 52 and 53 of the judgment under appeal that, contrary to the appellant’s claim, the General Court had regard, in making its assessment, not only to the appraisal reports, but also to other matters, such as the appellant’s skills and the posts which she had occupied during her career at EUIPO. Moreover, the fact that the General Court rejected the appellant’s arguments cannot mean that it infringed her rights of defence or, at least, misconstrued her first plea and failed to consider some of her arguments. Accordingly, the second part of the first ground of appeal must be dismissed.
(c)    Third part of the first ground of appeal
61.      Under the third part of the first ground of appeal, the appellant submits that the General Court made errors of law in that, first, it rejected her arguments concerning the annual transfer exercise as irrelevant, when the criteria used in that procedure were applied in examining her application, and, second, it distorted the evidence in the file, in holding that the application at issue had not been examined as part of the annual transfer exercise. Furthermore, she submits that the General Court failed to comply with its obligation to state reasons, in that it did not respond fully to her arguments.
62.      It may be recalled that in paragraph 69 of the judgment under appeal, the General Court stated, in essence, that any argument of the appellant relating to the annual transfer exercise was irrelevant in the context of the review of the legality of the decision at issue, which related to another transfer application. In paragraphs 70 and 71 of the judgment under appeal, the General Court held that the appellant’s argument that Article 110 of the Staff Regulations had been infringed was inadmissible, on the ground, in essence, that she had not specifically stated how that infringement had affected her personal situation or the content of the decision at issue.
63.      As a preliminary remark, I do not share the view, expressed by EUIPO in response to the appellant’s argument, summarised in point 61 of this Opinion, that that argument is not based on any point of law, but simply reproduces the arguments that the appellant raised before the General Court, and thus allegedly seeks to challenge the General Court’s assessment of the facts. While arguments which merely repeat the submissions made before the General Court may be dismissed, (27) it should be observed that where a party challenges the General Court’s interpretation or application of EU law, as is the case here in relation to the legality of the procedure applied in examining the application at issue with regard to various provisions of the Staff Regulations, it is quite obvious that the points of law examined at first instance may be discussed again in the course of an appeal, (28) otherwise the appeal proceedings could not fully serve their purpose. Accordingly, EUIPO’s argument that the third part of the first ground of appeal is inadmissible must be rejected.
64.      That being so, against the background of the appellant’s arguments, the following should be noted. At the outset, it should be observed that the application at issue was assessed in the light of the criteria used in the annual transfer exercise procedure. Thus, it was on the basis of that assessment that the General Court held that the application at issue had been duly examined by EUIPO. (29)
65.      In my view, the General Court could not, without introducing an error of law into the judgment under appeal, reject the appellant’s arguments relating, in essence, to the annual transfer exercise as being irrelevant on the sole ground that the subject matter of the action before it concerned another transfer application, which had been submitted after the time limit for expressions of interest. In taking that stance, the General Court departed significantly from the reality of the assessment of the application at issue in so far as, notwithstanding the fact that that application had been made in response to the vacancy notice, its assessment was made having regard to the criteria used in another procedure – the annual transfer exercise – and was approved by the General Court on the basis of that assessment. (30)
66.      Besides the fact that the General Court did not analyse the relationship between the annual transfer exercise procedure, which is a sui generis procedure, and the procedure provided for in the first paragraph of Article 8, read in conjunction with Article 29, of the Staff Regulations, in order to determine whether it was appropriate to apply the criteria used in the first of those procedures in the second, (31) in a more general sense it deprived the appellant of the opportunity to challenge the relevance of applying those criteria in the analysis of her application. In that regard, I am particularly conscious of the appellant’s point that she had no influence over the procedure or the criteria used to assess her application.
67.      In those circumstances, I do not consider that the procedure known as the annual transfer exercise is severable from those criteria. (32) Thus, it should be held that the application of the criteria used in that procedure, in the examination of the application at issue, enables the appellant to challenge the legality of the procedure from which those criteria were taken.
68.      Accordingly, the General Court’s conclusion that the appellant’s arguments concerning the legality of the annual transfer exercise in the light of Articles 4 and 29 of the Staff Regulations were to be rejected as irrelevant is, in my view, legally flawed.
69.      It follows that the third part of the first ground of appeal is well founded.
3.      Second ground of appeal
70.      Under the second ground of appeal, which is divided into three parts, the appellant submits that, in rejecting her plea alleging infringement of the principle of equal treatment, the General Court made errors of law, infringed its obligation to state reasons and her rights of defence, and distorted the evidence in the file.
(a)    First part of the second ground of appeal
71.      Under the first part of the second ground of appeal, the appellant raises two principal arguments. In the first place, she challenges the General Court’s conclusion that her arguments relating to non-compliance with the order of priority laid down by Article 29(1) of the Staff Regulations, giving rise to unequal treatment as between external candidates and officials seeking to be transferred, were irrelevant. In the second place, the appellant argues that the General Court erred in holding that her situation, as an official of another institution seeking a permanent transfer to EUIPO, was not comparable with that of a candidate recruited on a temporary basis, submitting that that conclusion is incompatible with the vacancy notice at issue and that, even supposing that different treatment was appropriate, the order of priority laid down by Article 29(1) of the Staff Regulations should have led to her application being taken into consideration.
72.      As a preliminary remark, it should be stated that, in paragraphs 76 to 79 of the judgment under appeal, the General Court rejected the appellant’s arguments as being irrelevant and in any event unfounded.
73.      It should also be stated that the general principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. The factors which distinguish different situations, and the question whether those situations are comparable, must be determined and assessed in the light of the subject matter of the provision in question and of the aim pursued by it, whilst account must be taken for that purpose of the principles and objectives of the field in question. (33)
74.      That being said, as regards, first, the conclusion reached by the General Court in paragraph 76 of the judgment under appeal, where it held, in essence, that the appellant’s arguments were ineffective in so far as they were based on the failure to observe the order of priority laid down by Article 29(1) of the Staff Regulations, it is sufficient to state that, for the reasons set out in points 39 to 57 of this Opinion, that conclusion must be regarded as vitiated by an error of law.
75.      Second, the General Court’s reasoning in paragraphs 77 to 79 of the judgment under appeal, concerning the rejection of the appellant’s arguments that the principle of equal treatment had been infringed in the examination of the application at issue, on the basis that they were unfounded, also seems to me to be incorrect.
76.      The General Court could not, without making an error of law, focus on the situation of a person recruited as a temporary agent for the purposes of comparison with the situation of the appellant, since such a comparison fails to take account of the reality of the situations to which its reasoning relates. (34) In my view, in order to compare or contrast the situations in question, the General Court would have had to place itself at the stage of examination of the applications, and compare the candidates for the vacant post, namely an external candidate whose name was on a reserve list, with the appellant, a Commission official seconded to EUIPO, and, as the appellant submits, would have had to have regard, in doing so, to the rules concerning the order of priority laid down by Article 29(1) of the Staff Regulations.
77.      Therefore, the first part of the second ground of appeal must be upheld.
(b)    Second part of the second ground of appeal
78.      The appellant submits that the General Court erred in rejecting the second part of the second plea, alleging infringement of the principle of equal treatment of applications as between candidates who were not intellectual property specialists and candidates who were.
79.      I am not persuaded by those arguments. Although I think it is worth noting that the General Court based its assessment of the comparability of the situations on ‘transfers’, when the appellant’s arguments related more generally to recruitment, (35) that assessment was correctly made, in essence, on the basis of the qualifications and skills of the candidates, namely, in this case, whether they had specialised in intellectual property law or in another field, while taking account of the principles and objectives of the field in question. (36)
80.      Thus, in the same vein as paragraphs 82 and 83 of the judgment under appeal, it should be held that the difference between an official who is not an intellectual property specialist and an official who is lies in the fact that they possess different skills. Accordingly, different – or, as the appellant submits, more favourable – treatment of the first of those situations, which is different from the second, does not seem to me to be contrary to the principle of equal treatment. Furthermore, the appellant herself emphasises the difference between the candidates, in terms of whether or not they were intellectual property specialists, and the impossibility of comparing their merits.
81.      Accordingly, the General Court’s dismissal of the second part of the second plea in law seems to me to be free of errors.
(c)    Third part of the second ground of appeal
82.      Under the third part of the second ground of appeal, the appellant submits that the General Court made errors of law, gave inconsistent reasoning and misconstrued the material on the file in rejecting the argument based on other officials having benefited from a transfer outside the framework of the annual transfer exercise, in breach of the principle of equal treatment. The appellant also submits that the General Court infringed her rights of defence in dismissing her application for a measure of organisation of procedure requiring the production of lists of decisions concerning the administrative status of staff covered by the Staff Regulations since 2013.
83.      The reasoning which led the General Court to reject the appellant’s arguments is set out in paragraphs 86 to 90 of the judgment under appeal. According to that reasoning, the transfer application, which was made outside the framework of the annual transfer exercise and was the subject of a detailed examination, was followed by the adoption of an explicit decision rejecting it. Given that the Staff Regulations do not confer any right to an interinstitutional transfer on the basis of Article 8 thereof, and that the appellant’s right to have her transfer application examined does not mean that the administration was obliged to grant it, the General Court held that the third part of her second plea was bound to fail. Consequently, it held that it was not appropriate to grant her application for a measure of organisation of procedure requiring EUIPO to produce certain documents.
84.      In that regard, concerning the wording of the reasons given for rejecting the appellant’s arguments, the main reason being set out in paragraph 86 of the judgment under appeal, which should be read together with paragraphs 51 to 55 thereof, the General Court held that ‘the [appellant’s] transfer application, made outside the framework of the annual transfer exercise …, was the subject of a detailed examination followed by the adoption of an explicit decision rejecting it in the form of the [decision at issue]’. Those paragraphs should be read in conjunction with those which the appellant alleges, in her appeal, to be inconsistent.
85.      In particular, in paragraph 47 of the judgment under appeal, the General Court stated that ‘the [appellant] had already submitted a transfer application in the context of the call for expressions of interest, with the result that the application at issue must be regarded as part of the extension of the initiative she took in March 2020, seeking to secure her transfer as an … official’. In paragraph 51 of that judgment, it stated that ‘EUIPO [had] analysed the application at issue in the light of the transfer criteria [and] the application at issue [contained] numerous references to those criteria’. In paragraphs 52 and 53 of that judgment, the General Court set out its reasons for concluding that the Appointing Authority had had regard to those criteria, namely the appellant’s skills, the posts which she had occupied during her career at EUIPO and her appraisal reports which, as is apparent from point 9 of this Opinion, do indeed reflect the criteria used in the annual transfer exercise. It bears repetition that, in paragraph 69 of the judgment under appeal, ‘any argument relating to the annual transfer exercise’ put forward by the appellant was rejected as irrelevant.
86.      However, as follows from the statements referred to above, read together, first, the application at issue, which was analysed having regard to the criteria used in the framework of the annual transfer exercise, was regarded as having been made outside that framework, second, despite the fact that it had been examined with regard to those criteria, it was possible to hold that there had been no infringement of the first paragraph of Article 8 of the Staff Regulations and, third, the arguments put forward by the appellant under the third part of the second plea in law were, in so far as they were based on the statements referred to above, bound to fail. For the reasons given in the course of analysing the first and third parts of the first ground of appeal, (37) those statements are vitiated by an error of law, and that is all the more so for the confusion surrounding the factual background described in particular in point 33 of this Opinion.
87.      The foregoing conclusion is not weakened by the observation made by the General Court, in paragraph 87 of the judgment under appeal, that the Staff Regulations do not confer any right to have an interinstitutional transfer application granted, even where the official fulfils all the conditions for transfer. In making that observation, the General Court did not consider the appellant’s argument concerning unequal treatment by comparison with other officials who benefited from a transfer outside the framework of the annual transfer exercise.
88.      Thus, because of the error referred to in point 86 of this Opinion, the General Court did not examine the substance of the appellant’s argument concerning the possibility offered to other officials of being transferred outside the framework of the annual transfer exercise. Consequently, the Court of Justice is not in a position to assess whether the dismissal of the appellant’s application for a measure of organisation of the proceedings, referred to in point 82 of this Opinion, constituted an infringement of her rights of defence.
89.      It follows that the third part of the second ground of appeal must also be upheld.
VI.    Final decision on the merits of the appeal
90.      Having regard to all the foregoing considerations, I propose that the Court should uphold the first part of the first ground of appeal as being well founded. For the sake of completeness, I am also of the view that the third part of the first ground and the first and third parts of the second ground of appeal are well founded. Nonetheless, given that the General Court rejected numerous arguments put forward by the appellant as ineffective, by reason of the error identified in the analysis of the first part of the first ground of appeal, the state of proceedings does not permit a judgment to be given on the merits. In those circumstances, if the Court of Justice were to decide to set aside the judgment under appeal, I propose that the case should be referred back to the General Court to be re-examined, in which case I also propose that the costs should be reserved.
VII. Conclusion
91.      In the light of the foregoing considerations, I propose that the Court should:
–        set aside the judgment of the General Court of the European Union of 29 March 2023, ZR v EUIPO (T‑400/21, EU:T:2023:169), in so far as the first and third parts of the first ground of appeal and the first and third parts of the second ground of appeal are well founded;
–        refer the case back to the General Court, and
–        reserve the costs.
1      Original language: French.
2      References to institutions in this Opinion are to be understood as also including other EU bodies.
3      Judgment of 13 July 2000, Salzgitter v Commission (C‑210/98 P, EU:C:2000:397, paragraph 43).
4      See judgments of 28 January 2021, Qualcomm and Qualcomm Europe v Commission (C‑466/19 P, EU:C:2021:76, paragraph 42 and the case-law cited), and, to that effect, of 28 July 2011, Diputación Foral de Vizcaya and Others v Commission (C‑474/09 P to C‑476/09 P, EU:C:2011:522, paragraph 58).
5      See judgment of 10 July 2019, VG v Commission (C‑19/18 P, EU:C:2019:578, paragraph 51 and the case-law cited).
6      In relation more specifically to the latter procedure, I understand, having read the material in the file, that unlike the procedure under the first paragraph of Article 8 of the Staff Regulations, which applies only to officials of the European Union, the sui generis procedure applies not only to officials of other institutions who express an interest in being transferred, but also to contractual and temporary agents and persons on the European Personnel Selection Office (EPSO) reserve list. Furthermore, that procedure involves comparing candidates whose profiles and administrative situations vary, in accordance with the criteria described in point 9 of this Opinion, in order to determine which of them can be appointed as EUIPO officials holding the posts reserved for that purpose in the budget, which may be filled only by that internal procedure, without publication of a vacancy notice.
7      See point 9 of this Opinion.
8      In any case, it should be observed that, as is apparent from the vacancy notice in question, that notice did not identify any provision of the Staff Regulations as its legal basis, simply referring to ‘internal mobility’. Before the General Court, the appellant challenged those aspects of the notice, adding that, in any event, as a temporary agent of EUIPO, she was able to apply for the vacant post in question.
9      In the present appeal (see points 61 to 69 of this Opinion), the appellant seeks to overturn the General Court’s view that her arguments challenging the legal basis for the annual transfer exercise and the application of the criteria used in that exercise to her application were unfounded or irrelevant, submitting that her application ought to have been examined in relation to the published vacancy and having regard to her merits.
10      See point 18 of this Opinion.
11      Paragraph 61 and the first indent of paragraph 63 of the judgment under appeal.
12      The premiss on which the distinction is based was already set out in paragraph 39 of the judgment under appeal, before the legal characterisation of the application at issue, and then developed further in paragraphs 60 to 64 of that judgment, after that characterisation.
13      That conclusion has been clear since the judgment of 18 March 1999, Carbajo Ferrero v Parliament (C‑304/97 P, EU:C:1999:152, paragraphs 29 and 30 and the case-law cited). It is true that that judgment was given by reference to the original version of Article 29(1) of the Staff Regulations, which laid down an order of preference that was very much focused on the officials and other agents already serving in the institution, in that points (a) and (b) thereof related, respectively, in the first place, to whether the post could be filled by promotion or transfer within the institution, in the second place, to the possibility of holding competitions internal to the institution and, only in the third place, to the consideration of transfer applications made by officials of other institutions. Nonetheless, the conclusion as to the order of priority, established by that judgment, is only strengthened by the new version of Article 29(1) of the Staff Regulations, which is applicable to the present case and under which officials of the institution in question are now in first place, with officials of other institutions in second place,
thus emphasising the priority given to officials, in considering whether they are to be appointed to a vacant post, followed only then by the possibilities of considering lists of suitable candidates or organising an internal competition.
14      However, the use of the formulation ‘whether … can’ in Article 29(1) of the Staff Regulations clearly indicates that the Appointing Authority is not bound absolutely thereby (judgment of 13 July 2000, Parliament v Richard (C‑174/99 P, EU:C:2000:412, paragraph 38 and the case-law cited).
15      View of Advocate General Kokott in Review Commission v Strack (C‑579/12 RX-II, EU:C:2013:573, point 30).
16      See, as regards the concomitant application of Articles 4, 29 and, in essence, Article 7, so far as it relates to ‘transfer’, of the Staff Regulations, judgment of 24 February 1981, Carbognani and Coda Zabetta v Commission (161/80 and 162/80, EU:C:1981:51, paragraph 19), and, as regards the concomitant application of Articles 4 and 29 of the Staff Regulations, judgment of 2 October 1986, R. v Commission (75/85, EU:C:1986:347, paragraph 18).
17      Second indent of paragraph 60 of the judgment under appeal.
18      Paragraph 61 of the judgment under appeal.
19      Article 27 of the Staff Regulations.
20      If we are to understand that the official is transferred to a post reserved for that purpose as part of the annual transfer exercise, see point 50 of this Opinion.
21      Article 6(1) of the Staff Regulations.
22      Article 1a(2) of the Staff Regulations.
23      Under the system established by the Staff Regulations, where a vacant post is concerned, Articles 4 and 29 of those regulations apply (see, to that effect, judgment of 24 February 1981, Carbognani and Coda Zabetta v Commission, 161/80 and 162/80, EU:C:1981:51, paragraph 19), given that Article 4 contains an obligation to publish any vacant post and Article 29 lays down the order of priority applicable to the specific ways in which that vacant post can be filled.
24      See footnote 6 to this Opinion.
25      See point 32 of this Opinion.
26      In that regard, it should be observed that an applicant, addressing the Appointing Authority, may identify the wrong legal basis in the application. However, that should not put the applicant at a disadvantage because the Appointing Authority, which must have regard to all matters relevant to its decision, is required to determine the proper legal characterisation of the documents before it.
27      See, to that effect, judgments of 19 November 1998, Parliament v Gutiérrez de Quijano y Lloréns (C‑252/96 P, EU:C:1998:551, paragraph 39 and the case-law cited), and of 15 July 2021, DK v EEAS (C‑851/19 P, EU:C:2021:607, paragraph 32 and the case-law cited).
28      Judgment of 13 July 2000, Salzgitter v Commission (C‑210/98 P, EU:C:2000:397, paragraph 43).
29      See point 32 of this Opinion and paragraphs 51 to 55, read in conjunction with paragraph 5, of the judgment under appeal.
30      See footnote 29 to this Opinion.
31      See points 33 and 52 of this Opinion.
32      See, by analogy, judgment of 17 December 2020, BP v FRA (C‑601/19 P, EU:C:2020:1048, paragraph 38).
33      See judgment of 15 July 2021, DK v EEAS (C‑851/19 P, EU:C:2021:607, paragraphs 47 and 48 and the case-law cited).
34      In that regard, it should be stated that, on the one hand, the external vacancy notice mentioned in paragraph 79 of the judgment under appeal, via a reference to paragraph 12 of that judgment, was intended, in reality, to establish a reserve list of candidates in order to fill an intellectual property specialist post through the recruitment of a temporary agent. One the other hand, the vacancy notice for which the appellant applied related to the recruitment of an official or a temporary agent.
35      This can be regarded as logical in so far as the appellant had submitted her transfer application in response to the vacancy notice – especially given that, as is apparent from the background to the present case, the ‘transfers’ that take place at EUIPO, under the annual transfer exercise procedure, can involve the recruitment, strictly so called, of certain candidates who are not EU officials.
36      See case-law cited in footnote 33 to this Opinion.
37      See points 39 to 57 and 64 to 69 of this Opinion.