1 By her appeal, ZR asks the Court of Justice to set aside the judgment of the General Court of the European Union of 29 March 2023, ZR v EUIPO (T‑400/21, ‘the judgment under appeal’, EU:T:2023:169), by which the General Court dismissed her action for annulment of the decision of the European Union Intellectual Property Office (EUIPO) of 8 September 2020 rejecting her application for a transfer to EUIPO (‘the decision at issue’).
2 Under Article 143(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1), ‘the Staff Regulations [of Officials of the European Union], the Conditions of Employment [of Other Servants of the European Union] and the rules adopted by agreement between the institutions of the [European] Union for giving effect to those Staff Regulations and Conditions of Employment shall apply to the staff of [EUIPO], without prejudice to the application of Article 166 of this Regulation to the members of the Boards of Appeal.’
3 Article 1a of the Staff Regulations of Officials of the European Union, in the version applicable to the dispute (‘the Staff Regulations’), is worded as follows: ‘1. For the purposes of these Staff Regulations, “official of the Union” means any person who has been appointed, as provided for in these Staff Regulations, to an established post on the staff of one of the institutions of the Union by an instrument issued by the Appointing Authority of that institution. 2. This definition in paragraph 1 shall also apply to persons appointed by Union bodies to whom these Staff Regulations apply under the Union acts establishing them (hereinafter “agencies”). Any references to “institutions” in these Staff Regulations shall apply to agencies, save as otherwise provided in these Staff Regulations.’
4 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.’
5 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. …’
6 Article 29(1) of the Staff Regulations provides: ‘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. … …’
7 The background to the dispute is set out in paragraphs 2 to 13 of the judgment under appeal and may be summarised as follows.
8 The appellant, an official of the European Commission in grade AD 5, was, at her request, seconded to EUIPO, where she held the post of intellectual property assistant as a temporary agent with effect from 16 September 2013.
9 On 1 March 2019, the appellant concluded a new five-year contract with EUIPO, under which she held the post of intellectual property specialist as a temporary agent in grade AD 6.
10 In March 2020, EUIPO published an internal call for expressions of interest which aimed at appointing as officials of EUIPO a number of temporary and contract agents 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 (‘the transfer criteria’).
11 On 31 March 2020, the appellant responded to that call, requesting a transfer to EUIPO in accordance with Article 8 of the Staff Regulations.
12 On 16 April 2020, EUIPO published vacancy notice EXT/20/38/AD 6/IP Specialist with a view to drawing up a reserve list of candidates to fill a post of intellectual property specialist by recruiting a temporary agent in grade AD 6 (‘the external vacancy notice’).
13 Furthermore, on 28 April 2020, EUIPO published internal 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 internal vacancy notice’).
14 On 12 May 2020, the appellant submitted her application in response to that internal vacancy notice.
15 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’).
16 On 8 September 2020, by the decision at issue, the Appointing Authority rejected that application.
17 On 5 November 2020, EUIPO appointed a temporary agent, selected following the publication of the external vacancy notice.
18 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 on the complaint’).
19 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 on the complaint.
20 In support of that action, she put forward three pleas in law. The first alleged, in essence, infringement of Articles 4, 8, 29 and 110 of the Staff Regulations and of the principle of continuity in the career of EU officials. The second plea alleged infringement of the principle of equal treatment. Last, the third plea alleged infringement of the obligation to state reasons, manifest error of assessment and breach of the duty of care.
21 By the judgment under appeal, the General Court rejected those three pleas and, consequently, dismissed that action in its entirety.
22 In particular, in examining the first plea, the General Court held that the application at issue was to be characterised as a transfer application, based on the first paragraph of Article 8 of the Staff Regulations, and not as an application in response to the internal vacancy notice. It also held that such a transfer application, by its very nature, could not be regarded as seeking to fill a vacant post which is the subject of a vacancy notice, so that, in examining the application at issue, EUIPO was not required to take into consideration Article 29(1)(b) of the Staff Regulations or the rules laid down in Article 4 thereof.
23 The appellant claims that the Court of Justice should: - set aside the judgment under appeal; - annul the decision at issue and the decision on the complaint 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.
24 EUIPO contends that the Court of Justice should: - dismiss the appeal in its entirety as manifestly inadmissible or, in the alternative, as unfounded; and - order the appellant to pay the costs of the appeal proceedings and of the proceedings before the General Court.
25 In support of her appeal, the appellant puts forward three grounds of appeal by which she challenges, respectively, the rejection of each of the three pleas raised at first instance.
26 EUIPO contends that the appeal is inadmissible in so far as it is based primarily on the alleged misinterpretation of the application at issue by the General Court, which, according to the appellant, incorrectly characterised it as a transfer application under Article 8 of the Staff Regulations instead of an application in response to the internal vacancy notice.
27 According to EUIPO, that argument is not sufficiently clear and precise to enable the Court of Justice to exercise its powers of review because essential elements on which the appeal is based are not indicated sufficiently coherently and intelligibly in the text of that appeal. Moreover, EUIPO contends that that argument is an attempt to reinterpret the application at issue in a way that is manifestly inconsistent with the facts established in the file.
28 As regards the remainder of the arguments relied on in support of the appeal, EUIPO submits that the appellant merely reproduces the pleas in law and arguments already submitted before the General Court, without specifying the error of law that allegedly vitiates the judgment under appeal.
29 The appellant submits that the appeal is admissible.
30 It follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, and Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested paragraphs of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal concerned is to be inadmissible (judgment of 12 December 2024, DD v FRA, C‑680/22 P, EU:C:2024:1019, paragraph 99 and the case-law cited).
31 In particular, a ground of appeal supported by an argument that is not sufficiently clear and precise to enable the Court to exercise its powers of judicial review, in particular because essential elements on which the ground of appeal relies are not indicated sufficiently coherently and intelligibly in the text of the appeal, which is worded in a vague and ambiguous manner in that regard, does not satisfy those requirements and must be declared inadmissible. The Court of Justice has also held that an appeal lacking any coherent structure which simply makes general statements and contains no specific indications as to the points of the decision under appeal which may be vitiated by an error of law must be dismissed as clearly inadmissible (judgment of 12 December 2024, DD v FRA, C‑680/22 P, EU:C:2024:1019, paragraph 100 and the case-law cited).
32 Furthermore, it follows from the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to establish the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts. By contrast, when the General Court has found or assessed the facts, the Court of Justice has jurisdiction to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (judgment of 4 April 2017, Ombudsman v Staelen, C‑337/15 P, EU:C:2017:256, paragraph 53 and the case-law cited).
33 In the present case, it should be noted, at the outset, that the legal characterisation of the application at issue is a matter that forms part of the legal characterisation of the facts and that, in accordance with the case-law cited in the preceding paragraph of the present judgment, may be subject to review by the Court of Justice on appeal. Moreover, contrary to what EUIPO maintains, the appellant identifies several paragraphs of the judgment under appeal, in particular paragraphs 45 to 48 and 60 to 64 thereof, in which she claims that the General Court erred in law or distorted the evidence in relation to that legal characterisation, indicating intelligibly the reasons for which she maintains that that judgment should be set aside.
34 Furthermore, in so far as EUIPO submits that the appellant reproduces the pleas in law and arguments already submitted before the General Court, it must be borne in mind that, provided that an appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his or her appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (judgment of 4 October 2024, Aeris Invest v Commission and SRB, C‑535/22 P, EU:C:2024:819, paragraph 106 and the case-law cited).
35 In those circumstances, the present appeal must be declared admissible.
36 By her first ground of appeal, which is divided into three parts, the appellant criticises the General Court for rejecting the first plea which she raised at first instance.
37 By the first part of her first ground of appeal, the appellant disputes the General Court’s legal characterisation of the application at issue and claims that the General Court erred in law in its interpretation of Articles 4, 8 and 29 of the Staff Regulations.
38 According to the appellant, first, in paragraphs 45 to 48 of the judgment under appeal, the General Court distorted the evidence by holding that that application was not an application in response to the internal vacancy notice, but a transfer application based on Article 8 of the Staff Regulations.
39 Second, the appellant submits that that legal characterisation is vitiated by an error of law in that the General Court erred in holding that Article 8 and Article 29 of the Staff Regulations are not connected.
40 According to the appellant, the General Court drew, in paragraph 60 of the judgment under appeal, an absolute distinction between interinstitutional transfers carried out under that Article 8 and those carried out following the publication of interinstitutional vacancy notices, in accordance with Article 29(1)(b).
41 However, under Article 4 of the Staff Regulations, every vacant post must be published and the means of filling such a post are governed by Article 29 of the Staff Regulations, which include transfer within the meaning of Article 8 of the Staff Regulations. Thus, Articles 8 and 29 do not govern two different procedures.
42 Third, the appellant submits that, in paragraphs 48 and 61 to 63 of the judgment under appeal, the General Court interpreted Article 8 of the Staff Regulations as being applicable only in the situation of a transfer application where there is no vacancy. Such a situation cannot exist since it would be contrary to Article 4 of the Staff Regulations, which requires there to be a vacant post to which the official may be transferred.
43 Thus, the General Court also erred in law in finding, in paragraph 64 of that judgment, that, in examining the application at issue, EUIPO was not required to take into consideration Article 4 and Article 29(1)(b) of the Staff Regulations.
44 Fourth, the appellant submits that the decision at issue is the result of an arbitrary procedure, namely the annual transfer exercise, by which EUIPO circumvents Article 29 of the Staff Regulations, taking into account criteria, such as performance or remaining duration of the contract, that are relevant for promotion and not for recruitment. Moreover, that procedure is also contrary to the Staff Regulations in so far as it applies not only to seconded officials seeking to be transferred, but also to persons seeking to be recruited from a reserve list, whereas those persons cannot be recruited on the basis of Article 8 of the Staff Regulations since they are not officials.
45 EUIPO contends that the appellant is confusing the two types of interinstitutional transfers set out in paragraph 60 of the judgment under appeal, referred to in paragraph 40 of the present judgment, and states that the annual transfer exercise is intended to give structure to the application of Article 8 of the Staff Regulations for the appointment, as officials of EUIPO, of officials of other institutions already working at that office as temporary or contract agents.
46 According to EUIPO, the appellant systematically referred, during the administrative procedure and in her applications at first instance and in connection with the appeal, to the application at issue as an ‘application for transfer’. By her appeal, she seeks to argue that the application at issue was in fact an application in response to the internal vacancy notice, which amounts to changing the subject matter of the proceedings before the General Court and to putting forward for the first time before the Court of Justice an argument that she did not put forward before the General Court, for which reason that argument is inadmissible.
47 EUIPO contends that, even if it were accepted that the application at issue was submitted on the basis of Article 29(1) of the Staff Regulations, the fact remains that the appellant was seeking a transfer to EUIPO.
48 In any event, EUIPO submits that the General Court correctly held that EUIPO was not required to take into consideration Article 29(1)(b) of the Staff Regulations or Article 4 thereof, since the internal vacancy notice was published under Article 29(1)(a) of the Staff Regulations in order to fill a vacant post by recruiting an official or temporary agent already working within that office.
49 It must be borne in mind that, in accordance with the second sentence of Article 170(1) of the Rules of Procedure, the subject matter of the proceedings before the General Court may not be changed in the appeal. Thus, according to settled case-law, the jurisdiction of the Court of Justice in an appeal is limited to review of the findings of law on the pleas and arguments debated before the General Court. A party cannot therefore put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court, since that would allow that party to bring before the Court of Justice, whose jurisdiction in appeal proceedings is limited, a wider case than that heard by the General Court (judgment of 27 February 2025, Lukoil v Registre de transparence and Others, C‑223/24 P, EU:C:2025:129, paragraph 34 and the case-law cited).
50 In the present case, it is apparent from paragraphs 56 to 58 of the judgment under appeal that, by the second part of the first plea in her action at first instance, the appellant claimed, in essence, that, in accordance with Article 29(1)(b) of the Staff Regulations, EUIPO was required to examine the application at issue in the light of the vacant post which it intended to fill following the publication of the internal vacancy notice. As is apparent from paragraph 43 of the present judgment, by the first part of the first ground of her appeal, the appellant complains, in essence, that the General Court erred in law in rejecting that line of argument. It follows that, contrary to what EUIPO maintains, by that first part, the appellant has not raised an argument that was not put forward before the General Court and has not altered the subject matter of the proceedings before that court, so that that part is admissible.
51 The first part of the first ground of appeal is therefore admissible.
52 In paragraph 60 of the judgment under appeal, the General Court held that, by her argument that Article 8 and Article 29(1) of the Staff Regulations must be applied concurrently, the appellant was confusing, on the one hand, interinstitutional transfers carried out under that Article 8 and, on the other hand, interinstitutional transfers carried out following the publication of interinstitutional vacancy notices, in accordance with that Article 29(1)(b).
53 In paragraphs 61 and 62 of that judgment, the General Court held that, by its very nature, an interinstitutional transfer application, made on the basis of the first paragraph of that Article 8, could not be regarded as seeking to fill a vacant post which is the subject of a vacancy notice and that, consequently, the application at issue could not reasonably relate to the vacant post referred to in the internal vacancy notice.
54 Thus, in paragraph 63 of that judgment, the General Court rejected the appellant’s argument that EUIPO was required, under Article 29(1)(b) of the Staff Regulations, to take the application at issue into consideration when examining the applications submitted in response to the internal vacancy notice.
55 Last, in paragraph 64 of that judgment, the General Court added that, in examining that application, EUIPO was not required to take Article 4 of the Staff Regulations into consideration either, since that Article 29(1)(b) and that Article 4 concern bringing vacant posts to the attention of staff from other institutions. It concluded that the appellant’s argument concerning EUIPO’s failure to follow the order of priority provided for in that Article 29 and the rules laid down in that Article 4 was ineffective.
56 In that regard, it is apparent from the first paragraph of Article 8 of the Staff Regulations that an official of an EU institution seconded to another institution may, after a period of six months, apply to be transferred to the latter institution.
57 It also follows from Article 29(1)(a) to (c) of the Staff Regulations that, before filling a vacant post in an institution, the Appointing Authority is first to consider whether the post can be filled, within that institution, by transfer, appointment in accordance with Article 45a or promotion, as well as requests for transfer received from officials of the same grade in other institutions, and/or, if it was not possible to fill that vacant post through those possibilities and those requests, whether to consider lists of suitable candidates drawn up following an open competition.
58 The Court of Justice has held that that Article 29(1) sets out the successive stages which must be followed when a vacant post in an institution is to be filled, the Appointing Authority having to examine, in order of priority, the possibilities of recruitment set out in that provision. That provision thus accords priority to officials already serving in the institution concerned as compared with officials of other institutions, and to the latter over persons on lists of suitable candidates drawn up following a competition (see, to that effect, 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).
59 It should be noted that the concepts of ‘transfer’, within the meaning of Article 8 of the Staff Regulations, and of ‘transfer’, within the meaning of Article 29(1)(b) thereof, must be regarded as equivalent.
60 Although, in the French-language version of those provisions, respectively, the terms transféré/transfert and mutation are used, in many other language versions identical or, at the very least, very similar terms are used. That applies not only to the English-language version of those provisions (respectively, ‘transferred/transfer’ and ‘transfer’), English being the language of the case, but also to the Spanish- (transferido/transferencia and traslado), German- (Übernahme and Übernahmeanträge), Italian- (trasferito/trasferimento and trasferimento), Dutch- (over te gaan/overgang and overgang), Portuguese- (transferência and transferência) or Romanian-language (transferul/transfer and transfer) versions of those provisions.
61 Moreover, the Court has already held, in relation to a transfer within an institution, referred to in Article 7 of the Staff Regulations, that there is a transfer when an official is transferred to a vacant post (see, to that effect, judgments of 24 February 1981, Carbognani and Coda Zabetta v Commission, 161/80 and 162/80, EU:C:1981:51, paragraph 19, and of 21 May 1981, Kindermann v Commission, 60/80, EU:C:1981:115, paragraph 12).
62 It follows that, where the Appointing Authority publishes a vacancy notice after finding, pursuant to Article 29(1) of the Staff Regulations, that it is necessary to extend the recruitment procedure to at least the requests provided for in Article 29(1)(b) of the Staff Regulations in order to have the opportunity to appoint a person of the highest standard of efficiency, ability and integrity, that authority is required to take into account, under the latter provision, interinstitutional transfer applications submitted under Article 8 of the Staff Regulations.
63 It is true that Article 8 of the Staff Regulations refers to the situation of an official considered individually, by granting him or her the right to apply for a transfer to the institution to which he or she has been seconded for at least six months. However, that does not mean that, where the Appointing Authority has considered it necessary to extend the recruitment procedure beyond the possibilities provided for in Article 29(1)(a) of the Staff Regulations in order to have the opportunity to appoint a person of the highest standard of efficiency, ability and integrity, that authority may dispense with taking into consideration an interinstitutional transfer application submitted under that Article 8.
64 As is clear from the wording of the first paragraph of Article 4 of the Staff Regulations, no appointment is to be made for any purpose other than that of filling a vacant post. Consequently, as the appellant submits, in the event of an interinstitutional transfer under Article 8 of the Staff Regulations, an official may be transferred only to a vacant post in the institution to which he or she is seconded, including to the post which he or she holds on a temporary basis at the time of his or her secondment. Moreover, in accordance with Article 1a(1) of the Staff Regulations, the vacant post to which that official is transferred must be an established post. In order to fill such a vacant post, the Appointing Authority must take account of the order of priority provided for in Article 29(1) of the Staff Regulations (see, to that effect and by analogy, judgments of 24 February 1981, Carbognani and Coda Zabetta v Commission, 161/80 and 162/80, EU:C:1981:51, paragraph 19, and of 21 May 1981, Kindermann v Commission, 60/80, EU:C:1981:115, paragraph 12).
65 It is true that, as the General Court correctly recalled in paragraph 50 of the judgment under appeal, the Staff Regulations do not confer any right to an interinstitutional transfer under Article 8 of the Staff Regulations.
66 Nevertheless, it is apparent from that article that officials of an institution who have been seconded to another institution for at least six months have the right to apply to be transferred to that institution. In order to ensure the effectiveness of that right, any institution that receives such an application in connection with a recruitment procedure that has been extended beyond the possibilities provided for in Article 29(1)(a) of the Staff Regulations is under an obligation to take it into consideration and to examine it with a view to filling the vacant post concerned.
67 Thus, by stating, in paragraph 61 of the judgment under appeal, that, by its very nature, an interinstitutional transfer application, made on the basis of the first paragraph of Article 8 of the Staff Regulations, cannot be regarded as seeking to fill a vacant post which is the subject of a vacancy notice, the General Court erred in law.
68 Consequently, paragraphs 62 to 64 of that judgment, which are based on that incorrect premiss, are also vitiated by illegality.
69 Moreover, as the Advocate General observed in point 55 of his Opinion, the error of law referred to in paragraph 67 of the present judgment also affected the legal characterisation of the application at issue. In paragraphs 40 to 48 of the judgment under appeal, the General Court, in essence, ruled out the possibility of the application at issue being taken into consideration and examined as an application in response to the internal vacancy notice based on Article 29(1) of the Staff Regulations, on the ground that that application was based on Article 8 of the Staff Regulations and that those two provisions could not, in its view, be applied concurrently.
70 Since that assessment by the General Court is vitiated by an error of law, it must be held that the legal characterisation of the application at issue is also vitiated by such an error, without there being any need to examine whether, as the appellant submits, the General Court distorted the evidence in relation to that characterisation.
71 In the light of the foregoing considerations, the first part of the first ground of appeal must be upheld.
72 By the third part of her first ground of appeal, the appellant asserts that, at first instance, she claimed that there was no legal basis for the annual transfer exercise, that it infringed the provisions of Articles 4 and 29 of the Staff Regulations and that there was no connection between that exercise and Article 8 of the Staff Regulations. However, the General Court, in breach of the rights of the defence, responded only in part to those arguments.
73 The appellant submits that the General Court held, in paragraph 69 of the judgment under appeal, that her arguments concerning the annual transfer exercise were not relevant since they related to her transfer application of 31 March 2020, referred to in paragraph 11 of the present judgment, whereas the action at first instance concerned another transfer application submitted after the deadline set for responding to the call for expressions of interest in connection with that exercise.
74 According to the appellant, that statement, first, contradicts paragraph 47 of the judgment under appeal and, second, is based on a distortion of the evidence, since it is apparent from the file that the decision at issue was adopted in connection with the annual transfer exercise and that the General Court confirmed, in paragraph 51 of that judgment, that ‘it is apparent from the [decision at issue] that EUIPO analysed the application at issue in the light of the transfer criteria’.
75 Thus, the appellant submits that she is entitled to challenge the annual transfer exercise procedure, since it was applied to her.
76 EUIPO contends, in its response, that the appellant merely reproduces the arguments which she already submitted before the General Court, so that those arguments are inadmissible. Furthermore, since the application at issue was submitted with reference to the internal vacancy notice, any argument challenging the annual transfer exercise is irrelevant.
77 As regards the admissibility of the third part of the first ground of appeal, it is sufficient to note that the appellant does not merely reproduce pleas in law and arguments already submitted at first instance, but complains that the General Court, inter alia, failed to examine all the arguments which she put forward before it in order to challenge the legality of the annual transfer exercise and vitiated the reasoning in the judgment under appeal with contradictions.
78 Both the question whether the General Court modified the nature or substance of the various claims and pleas submitted by the appellant (see, to that effect, judgment of 7 June 2018, Ori Martin v Court of Justice of the European Union, C‑463/17 P, EU:C:2018:411, paragraph 18 and the case-law cited) and the question whether the grounds of a judgment of the General Court are contradictory (judgment of 12 December 2024, DD v FRA, C‑587/21 P, EU:C:2024:1017, paragraph 58 and the case-law cited) are questions of law which are amenable to review on appeal.
79 It follows that, in accordance with the case-law referred to in paragraph 34 of the present judgment, the third part of the first ground of appeal is admissible.
80 In paragraph 69 of the judgment under appeal, the General Court held that any argument relating to the annual transfer exercise was irrelevant in the context of the review of the legality of the decision at issue, since the application at issue had been submitted after the deadline set for responding to the call for expressions of interest in connection with that exercise.
81 It should be noted that, as the appellant submits, that finding contradicts, in particular, the finding in paragraph 51 of that judgment, namely that ‘it is apparent from the [decision at issue] that EUIPO analysed the application at issue in the light of the transfer criteria’ and that ‘the application at issue contains numerous references to those criteria’, it being understood that those criteria were drawn up, as is apparent from paragraph 10 of the present judgment, in connection with the annual transfer exercise.
82 Accordingly, the reasoning in the judgment under appeal is vitiated by a contradiction in that regard.
83 Paragraph 69 of the judgment under appeal, according to which ‘any argument relating to the annual transfer exercise is irrelevant in the context of the review of the legality of the [decision at issue]’, contradicts paragraph 51 of that judgment, according to which ‘it is apparent from the [decision at issue] that EUIPO analysed the application at issue in the light of the transfer criteria’.
84 In the light of the foregoing considerations, the third part of the first ground of appeal must be upheld.
85 By her second ground of appeal, which is divided into three parts, the appellant criticises the General Court for rejecting the second plea that she raised at first instance.
86 By the first part of her second ground of appeal, the appellant challenges the General Court’s rejection of her arguments alleging unequal treatment between external candidates and officials seeking to be transferred, on the ground that those arguments were based on a failure to follow the order of priority laid down in Article 29(1) of the Staff Regulations.
87 In the first place, the appellant submits that the General Court erred in holding, in paragraph 76 of the judgment under appeal, that, in view of the characterisation of the application at issue as a ‘transfer application based on the first paragraph of Article 8 of the Staff Regulations’, any argument alleging infringement of that Article 29(1) was irrelevant.
88 In the second place, the appellant disputes the statement in paragraph 79 of the judgment under appeal that, as an official seeking to be transferred to EUIPO, she cannot treat her situation in the same way as that of a candidate recruited on a temporary basis because those two situations are covered by two separate sets of rules, namely the Staff Regulations and the Conditions of Employment of Other Servants of the European Union, respectively. According to the appellant, that statement is not consistent with the internal vacancy notice, which is open to both officials and temporary agents.
89 EUIPO contends that, by her second ground of appeal, the appellant is attempting to reinterpret the application at issue as an application in response to the internal vacancy notice, which constitutes an unlawful attempt to reassess the facts and evidence in the file, and that, consequently, that ground of appeal must be declared inadmissible.
90 In any event, as regards the first part of that ground, EUIPO asserts that the internal vacancy notice could not have applied to officials seconded to that office, that is to say, to the situation in which the appellant found herself.
91 In so far as, according to EUIPO, by her second ground of appeal, the appellant is attempting to reinterpret the application at issue as an application in response to the internal vacancy notice, which constitutes an unlawful attempt to reassess the facts and evidence in the file, it is sufficient to note that, for the reasons set out in the assessment of the first ground of appeal, the appellant is entitled to challenge the legal characterisation of that application.
92 Accordingly, the second ground of appeal, including the first part of that ground of appeal, is admissible.
93 The first part of the second ground of appeal concerns the rejection, by the General Court, of the appellant’s argument that the failure to follow the order of priority laid down in Article 29(1) of the Staff Regulations had led to unequal treatment between external candidates and officials seeking to be transferred.
94 In paragraph 76 of the judgment under appeal, the General Court held, in essence, that any argument based on a possible infringement of that provision was irrelevant, in so far as the action before it sought the annulment of a decision rejecting a transfer application based on the first paragraph of Article 8 of the Staff Regulations, namely the decision at issue, and not the annulment of a decision rejecting the appellant’s application submitted in response to the internal vacancy notice.
95 For the reasons set out in the assessment of the first part of the first ground of appeal, it must be held that that conclusion is vitiated by an error of law, since the order of priority may be relevant for the purposes of EUIPO’s examination of the application at issue.
96 For the same reasons, paragraph 79 of the judgment under appeal is also vitiated by an error of law. In that paragraph, the General Court held that the appellant’s argument alleging infringement of the principle of equal treatment was unfounded, in that the situation of the appellant and that of the candidate who was recruited on a temporary basis following the publication of the external vacancy notice were covered by two separate sets of rules, namely the Staff Regulations and the Conditions of Employment of Other Servants of the European Union, respectively, so that those situations were not comparable.
97 Once the Appointing Authority has considered it necessary to extend a recruitment procedure beyond the possibilities provided for in Article 29(1)(a) of the Staff Regulations, officials in the appellant’s situation and candidates recruited as temporary agents on a permanent post are both subject to the provisions of Chapter 1 of Title III of the Staff Regulations, which includes, inter alia, that Article 29(1).
98 In the light of the foregoing considerations, the first part of the second ground of appeal must be upheld.
99 Consequently, since the first and third parts of the first ground of appeal and the first part of the second ground of appeal have been upheld, the appeal must also be upheld and, accordingly, the judgment under appeal must be set aside, without it being necessary to rule on the other parts of those grounds of appeal or on the third ground of appeal.
100 In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice, if the decision of the General Court is set aside, the Court of Justice may give final judgment in the matter where the state of the proceedings so permits.
101 That is the case here.
102 As set out in paragraph 20 of the present judgment, in support of her action, the appellant relied on three pleas in law alleging, first, in essence, infringement of Articles 4, 8, 29 and 110 of the Staff Regulations and of the principle of continuity in the career of EU officials, second, infringement of the principle of equal treatment and, third, infringement of the obligation to state reasons, manifest error of assessment and breach of the duty of care.
103 By her first plea, the appellant claims, inter alia, that EUIPO infringed Article 29 of the Staff Regulations by failing to take the application at issue into consideration in connection with the internal vacancy notice. The appellant adds that that vacancy notice does not state that it is based on that Article 29(1)(a) and, more generally, does not set out its legal basis.
104 EUIPO responds that it could not take the application at issue into consideration in connection with that internal vacancy notice, since that notice related to the ‘internal mobility’ of EUIPO staff and was, therefore, addressed only to officials and temporary agents of EUIPO, and not to officials of other institutions, such as the appellant, an official of the Commission.
105 It is apparent from reading the decision at issue and the decision on the complaint that EUIPO rejected the application at issue essentially on the ground that that application could not be taken into consideration in connection with the internal vacancy notice, since that notice was published on the basis of Article 29(1)(a) of the Staff Regulations and was addressed only to officials and temporary agents of EUIPO, and not to officials of other institutions, such as the appellant. According to EUIPO, that application could be taken into consideration only in connection with an interinstitutional transfer notice, published in accordance with Article 29(1)(b) of the Staff Regulations. EUIPO also noted that it had examined the appellant’s transfer application in connection with the annual transfer exercise and in the light of the transfer criteria and that it found that transferring the appellant to EUIPO was not in the interest of the service, in particular in the light of the limited number of posts available. As regards the external vacancy notice, EUIPO stated that it was irrelevant to the assessment of the application at issue, since it related to the recruitment of temporary staff and the appellant already held a post as a temporary agent within EUIPO.
106 It should be noted that, as the appellant claims, the internal vacancy notice, a copy of which was annexed by her to her application at first instance, does not specify under which points of Article 29(1) of the Staff Regulations it was published. Moreover, it follows from the statement in that notice that both officials and temporary agents could apply for it that the Appointing Authority had considered it necessary to extend the recruitment procedure beyond the possibilities provided for in that Article 29(1)(a) in order to have the opportunity to appoint a person of the highest standard of efficiency, ability and integrity.
107 It is apparent from paragraph 69 of the present judgment that, in such a context, the application at issue should have been taken into consideration and examined by the Appointing Authority as an application in response to the internal vacancy notice based on that Article 29(1).
108 As stated in paragraph 66 of the present judgment, an institution that receives, in connection with a recruitment procedure that has been extended beyond the possibilities provided for in that Article 29(1)(a), a transfer application submitted under Article 8 of the Staff Regulations is under an obligation to take it into consideration and to examine it with a view to filling the vacant post concerned. Consequently, the Appointing Authority could not reject the application at issue on the ground that the appellant was originally an official of the Commission.
109 The fact that that application was examined by the Appointing Authority in connection with a separate procedure, namely the annual transfer exercise, cannot lead to a different conclusion, especially since one of the reasons put forward by the Appointing Authority to justify its refusal to request that the appellant be transferred as part of that exercise was the limited number of posts available.
110 Accordingly, the first plea in law must be upheld and, without it being necessary to examine the other pleas in the action, the decision at issue must be annulled.
111 As regards the head of claim in the action seeking the annulment, ‘so far as necessary’, of the decision on the complaint, it should be noted that, since that decision is purely confirmatory of the decision at issue, there is no need to rule specifically on that head of claim (see, to that effect, judgment of 21 February 2018, LL v Parliament, C‑326/16 P, EU:C:2018:83, paragraphs 36 to 39 and the case-law cited).
112 Under Article 184(2) of the Rules of Procedure, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs.
113 Under Article 138(1) of those rules, which apply to the procedure on appeal 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.
114 In the present case, since the appellant has applied for costs and EUIPO has been unsuccessful, EUIPO must be ordered to bear its own costs and to pay those incurred by the appellant in the present appeal and at first instance.