ZR v EUIPO (Civil service - Officials - Vacancy notice - Judgment) [2023] EUECJ T-400/21 (29 March 2023)

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(Civil service – Officials – Vacancy notice – Application for interinstitutional transfer – First paragraph of Article 8 of the Staff Regulations – Transfer refusal – Priority order – Article 29(1) of the Staff Regulations – Equal treatment – Obligation to state reasons – Manifest error of assessment – Duty of care – Corrigendum)

European Union Intellectual Property Office (EUIPO), represented by G. Predonzani and K. Tóth, acting as Agents,

composed, at the time of the deliberations, of S. Gervasoni, President, R. Frendo (Rapporteur) and J. Martín y Pérez de Nanclares, Judges,

having regard to the written part of the procedure, in particular the application filed on 2 July 2021,

1 By her action based on Article 270 TFEU, the applicant, ZR, seeks the 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 contested decision’).

2 The applicant, an official of the European Commission in grade AD 5, was, at her request, seconded to EUIPO, in accordance with Article 39 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).

3 As from 16 September 2013, the applicant 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 (‘CEOS’).

4 On 1 March 2019, a new five-year contract was concluded, under which the applicant continued to work at EUIPO as a temporary agent in grade AD 6 in an intellectual property specialist post.

5 On 10 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 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 intellectual property. EUIPO also stated therein that the Appointing Authority would analyse applications submitted in the light of the interest of the service and taking 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’).

6 The applicant 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 made it clear that she met the transfer criteria and that her possible transfer would be in the interest of the service of EUIPO.

7 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 recruitment notice’).

8 In addition, on 28 April 2020, EUIPO published internal vacancy notice IM/FT&TA/20/47/AD/OD (‘the internal vacancy notice’), aimed at officials or temporary agents in grades AD 5 to AD 8, with a view to filling a post of intellectual property specialist (‘the vacant post’).

9 On 12 May 2020, the applicant submitted her application in response to the internal vacancy notice referred to in paragraph 8 above.

10 By an email of the same day, sent to the Appointing Authority, the applicant referred to the internal 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 transfer application’ or ‘the application at issue’).

11 On 8 September 2020, by the contested decision, the Appointing Authority rejected the transfer application.

12 On 5 November 2020, EUIPO appointed a temporary agent, selected following the publication of the external recruitment notice, with an entry into service on 1 December 2020.

13 On 8 December 2020, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the contested decision, which was rejected by a decision of 22 March 2021 (‘the decision on the complaint’).

– annul the contested decision and, as far as necessary, the decision on the complaint;

16 On 5 July 2021, the applicant lodged at the Registry a document called ‘Corrigendum’ (‘the corrigendum’), requesting, inter alia, that certain amendments be made to paragraphs 71, 73, 82 and 87 of the application initiating proceedings. EUIPO disputes the admissibility of the corrigendum in part.

17 In that regard, it must be borne in mind that, although the Rules of Procedure of the General Court do not expressly provide for the possibility of producing a corrigendum, the Court has already held that allowing a party to make corrections limited to purely drafting errors made in its pleadings – as long as those corrections did not involve the submission of evidence offered in breach of Article 85 of the Rules of Procedure or the introduction of a new plea in law in the course of proceedings in breach of Article 84 of those rules – amounted to a good administration of justice practice, in so far as it allowed both the other parties to the dispute and the Court to have a better understanding of the arguments put forward (judgment of 29 September 2011, Poland v Commission, T‑4/06, not published, EU:T:2011:546, paragraph 42).

18 The amendments requested by the applicant in paragraphs 73, 82 and 87 of the application initiating proceedings are of a purely drafting and specific nature and are therefore admissible under the case-law cited in paragraph 17 above.

19 By contrast, EUIPO contends that the request seeking the correction of paragraph 71 of the application initiating proceedings, which includes a full redraft of the measure of organisation of procedure requested by the applicant in the context of the second plea, alleging infringement of the principle of equal treatment, is inadmissible. EUIPO contends that the nature of the proposed amendment goes beyond purely formal changes.

20 It should be noted that the request seeking the amendment of paragraph 71 of the application initiating proceedings goes beyond a mere correction of drafting errors, within the meaning of the case-law referred to in paragraph 17 above, with the result that, as regards that paragraph, the corrigendum is more akin to a pleading supplementing that application.

21 While the Rules of Procedure do not provide expressly for the possibility of producing a pleading supplementing the application initiating proceedings after that application has been lodged, it is possible to do so, as argued by the applicant, provided that it is done before the expiry of the time limit for bringing proceedings (see, to that effect, judgment of 10 September 2019, Poland v Commission, T‑883/16, EU:T:2019:567, paragraph 44).

22 In that regard, it is apparent from the documents before the Court that the decision on the complaint was notified to the applicant on 23 March 2021, so that the time limit for bringing the present proceedings, in view of the single extension period on account of distance provided for in Article 60 of the Rules of Procedure, expired on Saturday 3 July 2021. Thus, under Article 58(2) of those rules, the expiry of the time limit for bringing proceedings was extended until the end of the next working day, that is to say, Monday 5 July 2021. The corrigendum was lodged on that day.

23 It follows that, in the present case, since the corrigendum was lodged within the time limit for bringing proceedings, the request seeking correction of paragraph 71 of the application initiating proceedings is admissible in the light of the case-law cited in paragraph 21 above, despite the fact that it amends the scope of the paragraph concerned.

25 As is apparent from paragraph 10 above, the application at issue, formally submitted on the basis of Articles 8 and 29 of the Staff Regulations, referred to the internal vacancy notice and sought a decision within the meaning of Article 90(1) of the Staff Regulations.

26 Under the first paragraph of Article 8 of the Staff Regulations, an official seconded to another institution may, after a period of six months, apply to be transferred to that institution.

27 In the application at issue, the applicant highlighted the fact that her transfer was in the interest of the service of EUIPO. In that regard, in the first place, she stated that, according to the call for expressions of interest and exchanges between the Human Resources Department and the Staff Committee, in examining the interest of the service, priority was given to persons already working at EUIPO, occupying key positions or possessing key knowledge.

28 In the second place, the applicant claimed that the post which she held, namely that of intellectual property specialist, was indeed a key position within EUIPO. That fact is demonstrated, first, by the publication of the external recruitment notice with a view to drawing up a reserve list of 45 specialists in that field and, second, by EUIPO’s constant need for such specialists and its limited ability to recruit such experts, as shown by the exchanges between EUIPO and the Staff Committee.

29 In the third place, the applicant stated that she held key knowledge for EUIPO, claiming that her current professional responsibilities corresponded perfectly to the description of the tasks set out in the internal vacancy notice, and also to that in the external recruitment notice. She also stated that she satisfied all the criteria set out in the two notices.

30 In the fourth and last place, the applicant observed that the priority order laid down in Article 29(1) of the Staff Regulations (‘the priority order’) precluded EUIPO from recruiting a candidate from an external reserve list for a vacant post before taking into consideration the possibility of internal recruitment and before verifying the applications for interinstitutional transfer made in that regard.

31 The contested decision is based, essentially, on five grounds, alleging that:

– first, when examining the transfer application, the Appointing Authority balanced the interests at issue, in the light of the transfer criteria, concluding that the applicant’s transfer was not in the interest of the service;

– second, notwithstanding her knowledge and experience acquired within EUIPO, the applicant’s appraisal reports showed that her level of performance remained below that expected for an official to be transferred, in particular in view of the limited number of posts available;

– third, the internal vacancy notice had been published on the basis of Article 29(1)(a) of the Staff Regulations and, consequently, it was directed only at temporary agents and EUIPO officials; by contrast, since the applicant was originally a Commission official, her transfer application could be considered only in the context of a vacancy notice for an interinstitutional transfer, in accordance with Article 29(1)(b) of the Staff Regulations;

– fourth, the purpose of the external recruitment notice was to meet EUIPO’s temporary needs by means of temporary agents posts, and not to transfer an official of another institution to fill a permanent post;

– fifth, EUIPO organises an annual transfer exercise in the context of which it offers its temporary or contract agents permanent posts as officials within the limits of posts available; the applicant was contacted personally in the context of that exercise and submitted her expression of interest.

32 The decision on the complaint confirms, in essence, all the reasons given in the contested decision, while adding a supplementary consideration intended to respond to the applicant’s arguments in her complaint alleging that the transfer application, based on Article 8 of the Staff Regulations, should have been examined prior to the recruitment of an external candidate, in accordance with Article 29(1)(b) thereof. The Appointing Authority added on that occasion that the purpose of Article 29(1)(b) of the Staff Regulations differed from that of the annual transfer exercise. Thus, an interinstitutional transfer covered by that provision responds to specific internal recruitment needs which can be better met by attracting experienced officials working for other institutions or bodies of the European Union. By contrast, the annual transfer exercise aims at appointing, as officials of EUIPO, officials of other institutions already working at EUIPO as temporary or contract agents.

33 The applicant seeks the annulment of the contested decision and, in so far as necessary, of the decision on the complaint.

34 According to settled case-law, an administrative complaint, such as that referred to in Article 90(2) of the Staff Regulations, and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. Consequently, the action before the judicature, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted, except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made (see judgment of 27 October 2016, CW v Parliament, T‑309/15 P, not published, EU:T:2016:632, paragraph 27 and the case-law cited).

35 In the light of the elements set out in paragraphs 31 and 32 above, it must be held that the grounds of the decision on the complaint confirm the scope of those already contained in the contested decision. It follows that the decision on the complaint must be regarded as devoid of any independent content and that, consequently, there is no need to rule specifically on it (see, to that effect, judgment of 21 May 2014, Mocová v Commission, T‑347/12 P, EU:T:2014:268, paragraph 34, and order of 18 September 2018, Dreute v Parliament, T‑732/17, not published, EU:T:2018:582, paragraph 39). However, when examining the legality of the contested decision, the statement of reasons for the decision on the complaint should be taken into account, as it is deemed to cover the statement of reasons in the contested decision (see, to that effect, judgment of 23 March 2022, OT v Parliament, T‑757/20, EU:T:2022:156, paragraph 52).

36 Consequently, the action must be regarded as having as its subject matter only the contested decision, the sole act adversely affecting the applicant, as supplemented by the decision on the complaint.

37 In support of her claims, the applicant puts forward 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 career continuity;

– third, breach of the obligation to state reasons, manifest error of assessment and breach of the duty of care.

1. The first plea, alleging, in essence, infringement of Articles 4, 8, 29 and 110 of the Staff Regulations and of the principle of career continuity for EU officials

38 By her first plea, the applicant challenges the legality of the contested decision, alleging infringement of several provisions of the Staff Regulations. Her arguments involve, in essence, three parts, alleging:

– second, infringement of Article 8 in conjunction with Article 29(1) of the Staff Regulations, confirming the principle of career continuity for officials of the European Union, and of Article 4 of the Staff Regulations;

39 In so far as the application at issue relates to several separate sets of proceedings, as is apparent from paragraphs 25 to 30 above, it is necessary, first of all, to define its legal nature.

40 It is apparent from the documents before the Court that the application at issue, which was formally lodged on the basis of Articles 8 and 90 of the Staff Regulations, was submitted following publication of the internal vacancy notice, which is expressly mentioned in the introductory part of that application (see paragraphs 10 and 25 above).

41 In that regard, it should be borne in mind that the vacant post was that of intellectual property specialist in the ‘Operations’ department, which could, as noted in paragraph 8 above, be filled by the appointment of either an official of EUIPO or of one of its temporary agents.

42 At the material time, the applicant was not an official of EUIPO, but was already employed as an intellectual property specialist in the ‘Operations’ department as a temporary agent. Therefore, the Appointing Authority could not reasonably consider the application at issue to be an application for the vacant post as a temporary agent, since such an application would not have been of any interest to the applicant.

43 Moreover, as EUIPO argued at the hearing, the applicant’s appointment to the vacant post was not in the interest of the service, since it would not lead to higher staff numbers, when the purpose of the internal vacancy notice was to increase the number of intellectual property specialists in the department to which the applicant was already assigned.

44 Furthermore, the applicant’s express intention was not to apply for the vacant post under the internal vacancy notice, but to be transferred to, and become an official of, EUIPO.

45 In the application at issue, the applicant stated repeatedly that it was a transfer application for the purposes of Article 8 of the Staff Regulations. The same is true so far as concerns the complaint and the subject matter of the action brought before the General Court, which expressly states that the applicant seeks annulment of the decision rejecting her transfer application.

46 In that context, it must be pointed out that, on the very day she submitted her transfer application, the applicant, by a separate document, submitted an application in response to the internal vacancy notice. She chose to continue with the pre-litigation procedure and the legal action solely in view of the transfer application and not on the basis of her application submitted in response to the internal vacancy notice.

47 In addition, it should be noted that, on 31 March 2020 (see paragraph 6 above), the applicant 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 EUIPO official.

48 It thus follows from its wording and content and from its context that the application at issue is a transfer application based on the first paragraph of Article 8 of the Staff Regulations.

(b) The first part, alleging infringement of Article 8 of the Staff Regulations

49 The applicant claims that, by rejecting her transfer application on the ground that the vacancy notice was not published on the basis of Article 29(1)(b) of the Staff Regulations, EUIPO failed to fulfil its obligation under Article 8 of the Staff Regulations to consider the merits of her application.

50 In that regard, it should be borne in mind that the Staff Regulations do not confer any right to an interinstitutional transfer and the administration has a broad discretion in the matter (judgment of 19 October 2006, Pessoa e Costa v Commission, T‑503/04, EU:T:2006:331, paragraph 85; see also, to that effect, judgment of 22 May 1996, Gutiérrez de Quijano y Lloréns v Parliament, T‑140/94, EU:T:1996:65, paragraph 57).

51 The line of argument put forward by the applicant has no factual basis, since it is apparent from the contested decision that EUIPO analysed the application at issue in the light of the transfer criteria, laid down in order to guide the exercise of the Appointing Authority’s broad discretion in that field. Moreover, the application at issue contains numerous references to those criteria.

52 Thus, in the contested decision, the Appointing Authority carried out a detailed analysis of the application at issue, taking into consideration the applicant’s skills, the posts which she had occupied during her career at EUIPO and her appraisal reports. However, as regards those latter elements, the Appointing Authority found that the applicant’s level of performance remained below that expected of an official seeking to be transferred to EUIPO.

53 The Appointing Authority thus concluded, in essence, that, in the light of the weaknesses identified in the applicant’s appraisal reports and the limited number of posts available, as well as budgetary constraints, the applicant’s transfer was not in the interest of the service.

54 It follows that, in the present case, the Appointing Authority balanced the interests at issue, as required by the case-law, under which the institution must state the essential factors justifying the refusal of an official’s transfer application made on the basis of the first paragraph of Article 8 of the Staff Regulations. In the contested decision, the Appointing Authority shed light on the balancing of the interests involved such as to allow the EU judicature to verify that it exercised its discretion within reasonable bounds and did not misuse it in a manifestly incorrect way (see, by analogy, judgment of 13 March 2003, Pessoa e Costa v Commission, T‑166/02, EU:T:2003:73, paragraphs 76 and 77).

55 Accordingly, the complaint alleging that, in rejecting the transfer application, the Appointing Authority failed to examine the merits of that application must be rejected, as must the first part, alleging infringement of Article 8 of the Staff Regulations.

(c) The second part, alleging infringement of Article 8 in conjunction with Article 29(1) of the Staff Regulations, and of Article 4 of the Staff Regulations

56 The applicant submits that Article 8 of the Staff Regulations must, in accordance with the principle of officials’ career continuity, be read in conjunction with Article 29(1) and Article 4 of the Staff Regulations. She claims that the purpose of the latter article is to notify officials of other institutions, by means of the publication of a vacancy notice, of available positions before the Appointing Authority is able to fill a vacant post from a reserve list.

57 Thus, according to the applicant, by rejecting her transfer application, the submission of which was prompted by the publication of the internal vacancy notice, and by subsequently recruiting a candidate successful in the external recruitment procedure, EUIPO infringed the priority order. She claims that, under Article 29(1)(b) of the Staff Regulations, the Appointing Authority was required to take into consideration her transfer application, submitted on the basis of the first paragraph of Article 8 of the Staff Regulations, before examining the applications submitted in response to the external recruitment notice (see paragraphs 7 and 8 above).

58 The applicant thus claims that, in the circumstances of the present case, EUIPO was required to examine her transfer application in the light of the vacant post which it intended to fill following the publication of the internal vacancy notice, instead of eventually filling that post by recruiting a temporary agent selected in the course of the procedure pursuant to the external recruitment notice. In that regard, she notes that, at the time when the transfer application was made, she already held the post of intellectual property specialist, which was, in the present case, the vacant post advertised by the internal vacancy notice.

60 In that regard, it should be noted that, as EUIPO correctly observes, by its argument that Article 8 and Article 29(1) of the Staff Regulations must be applied concurrently, with the result that EUIPO was required to analyse the transfer application submitted on the basis of the first paragraph of Article 8 of the Staff Regulations in the light of Article 29(1)(b) of the Staff Regulations, the applicant makes a confusion between:

– first, interinstitutional transfers carried out under Article 8 of the Staff Regulations, which are individual measures granted following a spontaneous application submitted by an official seeking a transfer; and

– second, interinstitutional transfers carried out following the publication of interinstitutional vacancy notices, in accordance with Article 29(1)(b) of the Staff Regulations, which follow an unsuccessful or unsatisfactory internal call for applications or respond to the need to broaden the Appointing Authority’s choice beyond the possibilities offered by Article 29(1)(a) of the Staff Regulations with a view to satisfy specific recruitment needs which can be better met by attracting experienced officials working within other EU institutions or agencies.

61 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. Such a transfer serves, essentially, to promote the mobility of EU officials, as well as the interest of the service.

62 Consequently, the transfer application submitted by the applicant on the basis of the first paragraph of Article 8 of the Staff Regulations cannot reasonably relate to the vacant post referred to in the internal vacancy notice. Nor can the references, first, to the internal vacancy notice and, second, to Article 29 of the Staff Regulations, included in that application, justify such a claim.

63 It follows from the foregoing considerations that the applicant’s argument that, in the present case, EUIPO was required, under Article 29(1)(b) of the Staff Regulations, to take into consideration her transfer application, submitted following an internal vacancy notice, on the basis of the first paragraph of Article 8 of the Staff Regulations, must be rejected, since it is based, essentially, on two incorrect premisses, namely that:

– a transfer application submitted on the basis of the first paragraph of Article 8 of the Staff Regulations may relate directly to a specific vacant post published by the Appointing Authority; and

– accordingly, EUIPO was required to take into consideration the transfer application when examining the applications submitted in response to the internal vacancy notice.

64 Therefore, in examining the applicant’s transfer application based on Article 8 of the Staff Regulations, EUIPO was not required to take into consideration Article 29(1)(b) of the Staff Regulations or Article 4 thereof, since those two provisions concern bringing vacant posts to the attention of staff from other institutions. It follows that the applicant’s argument concerning EUIPO’s failure to observe the priority order provided for in Article 29 of the Staff Regulations and the rules laid down in Article 4 of the Staff Regulations concerning vacant posts is ineffective.

65 Moreover, as is apparent from the examination of the first part, the transfer application was, in the present case, duly examined by EUIPO.

66 In the light of the foregoing considerations, it is also necessary to reject the applicant’s argument that the internal vacancy notice and the external recruitment notice concerned, in the present case, the same post and, accordingly, EUIPO had failed to observe the priority order by appointing a temporary agent to the vacant post, without there being any need to rule on that claim.

(d) The third part, alleging infringement of Article 110 of the Staff Regulations, in that a decision of the Executive Director of EUIPO did not precede the annual transfer exercise

68 In the third part of the first plea, the applicant submits that the ‘[annual transfer] exercise must be regulated by a decision of the Executive Director of [EUIPO] or the Management Board which needs to be approved via Article 110 [of the Staff Regulations]’. No decision to that effect was published in the present case.

69 In that regard, in the first place, it should be noted that while, on 31 March 2020, the applicant submitted a transfer application in response to the call for expressions of interest organised in the context of the annual transfer exercise, she did not ask EUIPO to take a decision in her respect under Article 90(1) of the Staff Regulations. The subject matter of the present action is, as mentioned in paragraphs 45 and 48 above, another transfer application submitted after the deadline set for the expressions of interest. Therefore, any argument relating to the annual transfer exercise is irrelevant in the context of the review of the legality of the contested decision.

70 In the second place, the applicant also does not substantiate her argument based on Article 110 of the Staff Regulations or state specifically how the alleged failure to observe the procedural guarantees provided for in Article 110 of the Staff Regulations had any effect on her personal situation or on the content of the contested decision.

71 Consequently, the claim alleging infringement of Article 110 of the Staff Regulations, put forward in the context of the present plea, does not comply with the requirements of clarity, precision and consistency of the pleas and arguments relied on, for the purposes of Article 76(d) of the Rules of Procedure, with the result that that part must be rejected as inadmissible.

2. The second plea, alleging infringement of the principle of equal treatment

74 The applicant claims that the contested decision infringes the principle of equal treatment in three respects by treating more favourably than her (i) external candidates, (ii) candidates who do not have a specialised profile in intellectual property, and (iii) other officials who have been transferred outside of the framework of the annual transfer exercise.

(a) The first part, alleging unequal treatment between external candidates and officials seeking to be transferred

75 According to the applicant, the failure to comply with the priority order laid down in Article 29(1) of the Staff Regulations led to an infringement of the principle of equal treatment in her respect, in that it resulted in EUIPO treating external candidates more favourably than officials seeking to be transferred.

76 As is clear from the analysis of the first plea, in so far as the subject matter of the present action is an application for annulment of the decision rejecting a transfer application based on the first paragraph of Article 8 of the Staff Regulations, and not the annulment of a decision rejecting the applicant’s application submitted in response to the internal vacancy notice, any argument based on a possible infringement of Article 29(1) of the Staff Regulations is irrelevant.

78 According to settled case-law, the principle of equal treatment requires that comparable situations should not be treated differently and that different situations should not be treated in the same way, unless such different treatment is objectively justified. More specifically, the requirement that situations must be comparable, for the purpose of determining whether there is an infringement of the principle of equal treatment, must be assessed in the light of all the elements that characterise them (see judgment of 8 March 2022, Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect), C‑205/20, EU:C:2022:168, paragraphs 54 and 55 and the case-law cited).

79 As is apparent from paragraph 12 above, in the present case, the candidate selected in the external recruitment procedure was recruited as a temporary agent. In that regard, it is sufficient to observe that the applicant, as an official seeking to be transferred permanently to EUIPO, cannot reasonably treat her situation in the same way as that of a candidate recruited on a temporary basis, given that those two situations are covered by two separate sets of rules, namely the Staff Regulations and the CEOS, respectively, and are therefore not comparable.

(b) The second part, alleging that the applications of candidates who do not have an intellectual property specialist profile were treated more favourably

81 The applicant claims, in essence, that candidates who do not have an intellectual property specialist profile have been favoured in terms of transfers as opposed to specialists in that field.

82 As the applicant states, it is true that there is a clear difference, linked to possessing distinct skills, between officials who are intellectual property specialists and those who are not. Accordingly, the situations in question are different and they, therefore, cannot in principle be treated in a comparable manner as provided for in the case-law referred to in paragraph 78 above.

83 However, the applicant does not put forward any argument concerning the fact that the two categories of staff referred to in paragraph 82 above were treated in a similar manner. Therefore, there can be no finding of unequal treatment in accordance with the second situation envisaged by the case-law cited in paragraph 78 above.

84 In those circumstances, the second part of the present plea must also be rejected.

(c) The third part, alleging that other officials benefited from a transfer outside the framework of the annual transfer exercise

85 According to the applicant, the principle of equal treatment was also infringed in her case, since other officials had benefited from an interinstitutional transfer outside the framework of the annual transfer exercise, whereas she did not have the same opportunity. In that regard, she asks the Court to request EUIPO, in the context of a measure of organisation of procedure, to provide, in essence, the lists of decisions concerning the administrative status of staff covered by the Staff Regulations since 2013.

86 That argument has no factual basis and must fail since, as is apparent from the analysis of the first plea (see paragraphs 51 to 55 above), the applicant’s transfer application, made outside the framework of the annual transfer exercise (see paragraph 10 above), was the subject of a detailed examination followed by the adoption of an explicit decision rejecting it in the form of the contested decision.

87 In that regard, it should also be recalled that the Staff Regulations do not confer any right to an interinstitutional transfer under Article 8 of the Staff Regulations, even on officials who fulfil all the conditions for transfer (see, to that effect, judgment of 13 March 2003, Pessoa e Costa v Commission, T‑166/02, EU:T:2003:73, paragraph 76).

88 Thus, the fact that the applicant was entitled, under Article 8 of the Staff Regulations, to have her transfer application examined did not mean that the administration would grant that application.

89 In the light of the elements in paragraphs 86 to 88 above, the General Court, which has the exclusive responsibility of assessing whether it is appropriate to adopt measures of organisation within the meaning of Article 88 of the Rules of Procedure, holds that there is no need to ask EUIPO to produce the documents referred to in paragraph 85 above (see, to that effect, judgment of 20 November 2018, Barata v Parliament, T‑854/16, not published, EU:T:2018:809, paragraphs 104 and 105 and the case-law cited).

90 Consequently, the second plea, alleging unequal treatment, and the applicant’s request for a measure of organisation of procedure, must be rejected.

3. The third plea in law, alleging breach of the obligation to state reasons, manifest error of assessment and breach of the duty of care

91 The applicant claims that EUIPO failed to balance all the interests at issue when examining her transfer application. She considers that that omission constitutes:

92 It is therefore appropriate to analyse the third plea in the light of each of the three parts referred to in paragraph 91 above.

93 The applicant claims, in essence, that, by failing to balance, in the contested decision, the interests at issue, EUIPO has infringed its obligation to state reasons.

94 In this connection, it should be noted that, while the institutions have a broad discretion with regard to transfers, that fact does not relieve them, inter alia, of the obligation to state adequate reasons for decisions adversely affecting transfer applicants (see, to that effect, judgment of 6 October 2021, NZ v Commission, T‑668/20, not published, EU:T:2021:667, paragraph 59).

95 The obligation to state reasons laid down in the second paragraph of Article 25 of the Staff Regulations merely reiterates the general obligation laid down in the second paragraph of Article 296 TFEU which is intended, on the one hand, to provide the person concerned with sufficient details to determine whether the act adversely affecting him or her is well founded and whether it is appropriate to bring proceedings before the General Court and, on the other, to enable that court to review the legality of the act (see judgment of 16 October 2019, ZV v Commission, T‑684/18, not published, EU:T:2019:748, paragraphs 71 and 72 and the case-law cited).

96 Accordingly, where the administration takes a decision rejecting an official’s transfer application, it must state the essential elements justifying that refusal and, for that purpose, shed light on the balancing of the interests at issue which it must carry out in dealing with such an application (see, to that effect, judgment of 13 March 2003, Pessoa e Costa v Commission, T‑166/02, EU:T:2003:73, paragraph 77).

97 However, a distinction must be drawn between the obligation to state reasons, which is an essential procedural requirement, and the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue. The reasoning of a measure consists in a formal statement of the grounds on which that measure is based. If those grounds contain errors, those errors will affect the substantive legality of the measure in question, but not the statement of reasons therein, which may be adequate even though it sets out reasons which are incorrect (judgment of 3 March 2021, Barata v Parliament, T‑723/18, EU:T:2021:113, paragraph 68).

98 In the present case, as is apparent from paragraphs 31 and 32 above, the reasoning set out in the contested decision, which was based on the balancing of interests in accordance with the case-law cited in paragraph 96 above, was supplemented by the decision on the complaint which states that the transfer application was examined taking into account the following elements: ‘having held key positions or possessing a key knowledge [within EUIPO], … the career and performance of the concerned official [within EUIPO], the availabilities of permanent posts in AST or AD function group, the global neutral budgetary impact of the exercise, as well as other elements such as the remaining duration of the contract …’.

99 The applicant’s line of argument concerning the obligation to state reasons consists, in essence, in maintaining that her profile had obvious merits, in particular in view of the fact that for the past eight years she was holding a key position within EUIPO and therefore possessed essential knowledge for EUIPO. Thus, the contested decision does not make it possible to understand how, having regard to the applicant’s merits, the Appointing Authority could have considered that her transfer was not in the interest of the service of EUIPO.

100 It must be stated that, by those arguments, the applicant complains that EUIPO committed a manifest error of assessment in balancing her merits against the interest of the service, which relates to whether the contested decision is well founded. Those arguments are therefore irrelevant in the context of a line of argument alleging breach of the obligation to state reasons, within the meaning of the case-law cited in paragraph 97 above.

101 The only argument relating to the alleged infringement of the obligation to state reasons, discernible in the applicant’s pleadings, consists of claiming that the fact that her transfer application was rejected shows that the Appointing Authority did not give priority to persons who have key knowledge or occupy key positions in accordance with the transfer criteria and that the contested decision did not set out the reasons justifying such a position.

102 In that regard, it is sufficient to observe that it is in no way apparent from the contested decision that, in the present case, EUIPO disregarded the criteria described by the applicant as ‘priority’ as far as concerns her or that it did not give them any weight. It follows from the contested decision that those elements were taken into consideration in the examination of the transfer application. However, the Appointing Authority considered that the experience and knowledge acquired by the applicant when she occupied a post of specialist in the ‘Operations’ department, which could be regarded as a key post, were not sufficient to justify a transfer to a permanent post within EUIPO, in the light of the negative assessments set out in her appraisal reports.

103 It follows that the contested decision, as supplemented by the decision on the complaint, includes an adequate statement of reasons allowing the administration’s reasoning to be understood and the question whether it is appropriate to bring an action to be assessed, and enabling the Court to exercise its power of review, within the meaning of the case-law cited in paragraphs 95 and 96 above.

104 The first part, alleging failure to state reasons, must therefore be rejected.

105 The applicant submits that the contested decision is vitiated by a manifest error of assessment, since her transfer to EUIPO was in the interest of the service.

106 In that respect, it is settled case-law that, having regard to the extent of the institutions’ discretion in evaluating the interest of the service in the context of a transfer application, the General Court’s review must be limited to ascertaining whether the administration has remained within reasonable bounds and has not used its power in a manifestly incorrect way (see judgment of 13 March 2003, Pessoa e Costa v Commission, T‑166/02, EU:T:2003:73, paragraph 76 and the case-law cited).

107 Moreover, an error may be qualified as manifest only where it can be readily detected, in the light of the criteria to which the legislature intended the exercise of a decision-making power to be subject. Consequently, in order to establish that the administration has committed a manifest error in assessing the facts such as to justify the annulment of a decision, the evidence, which it is for the applicant to adduce, must be sufficient to render the findings of the administration implausible. In other words, a plea alleging a manifest error must be rejected if, in spite of the evidence put forward by the applicant, the assessment challenged may be accepted as genuine or valid (judgment of 15 June 2022, QI v Commission, T‑122/21, not published, EU:T:2022:361, paragraph 97; see also, to that effect, judgment of 28 May 2020, YG v Commission, T‑518/18, not published, EU:T:2020:221, paragraph 36).

108 The applicant puts forward, in essence, two complaints in support of that part.

(1) The first complaint, alleging that the Appointing Authority did not examine the transfer application in the light of the transfer criteria

109 The applicant puts forward two arguments to claim that EUIPO did not examine the transfer application in the light of all the transfer criteria.

110 First, she argues that the Appointing Authority took into consideration only two criteria, which, moreover, are not referred to, inter alia, in Article 8 of the Staff Regulations, namely the criterion of the assessment of performance in the applicant’s appraisal reports and that relating to the remaining duration of her contract.

111 Second, the Appointing Authority did not take into account two other priority criteria, relating to the fact that the applicant had occupied strategic positions within EUIPO and that she possessed essential knowledge.

112 However, contrary to what the applicant claims by her first argument, in the present case, as is apparent from paragraphs 51 to 53 and 98 above, the Appointing Authority took several elements into account in the examination of the transfer application. Those elements, which, moreover, are relevant in the context of the assessment of the interests of the service, reproduce, in essence, all the transfer criteria (see paragraph 5 above).

113 Concerning, in particular, the assessment of the quality of her performance in the appraisal reports, the applicant criticises EUIPO for focusing solely on the negative assessments, whereas overall those reports contained positive assessments, or even, so far as concerns 2019, an assessment of her performance as being above the level expected for the post occupied.

114 However, it is apparent from the contested decision that the Appointing Authority concluded that the applicant’s appraisal reports showed a level of performance below that expected of a seconded official in order to justify his or her transfer to a permanent post within EUIPO.

115 While the applicant disputes that claim, she does not produce, at the very least, a copy of the appraisal reports on which she relies to demonstrate the accuracy of her claims and thus discharge the burden of proof incumbent on her to challenge the presumption of legality enjoyed by the contested decision (see, to that effect, judgment of 10 February 2021, Spadafora v Commission, T‑130/19, not published, EU:T:2021:74, paragraphs 51 and 52 and the case-law cited).

116 Therefore, since the applicant has not adduced any item capable of constituting prima facie evidence of the existence of the alleged manifest error of assessment, the first argument must be rejected.

117 By her second argument, the applicant claims that her transfer application should have been accepted since priority had to be given to candidates satisfying the criteria of occupation of a key post within EUIPO and possession of key knowledge.

118 In that regard, it should be noted that, assuming that these were predominant criteria which the applicant actually met, that fact would not be sufficient to render implausible the assessments made in the contested decision, in the light, in particular, of the elements set out in paragraphs 114 and 115 above, and, therefore, to establish the existence of a manifest error of assessment within the meaning of the case-law cited in paragraphs 106 and 107 above.

119 This is even more so since, as has been observed in paragraph 87 above, the Staff Regulations do not confer a right to an interinstitutional transfer, applied for under the first paragraph of Article 8 of the Staff Regulations, even on officials who meet all the conditions for transfer (see, to that effect, judgment of 13 March 2003, Pessoa e Costa v Commission, T‑166/02, EU:T:2003:73, paragraph 76).

120 The second argument must therefore be rejected and, accordingly, the first complaint must be rejected in its entirety.

(2) The second complaint, alleging that the contested decision wrongly took into account the possibility of extending the applicant’s contract for an indefinite period

121 The applicant claims that the possibility of extending her contract for an indefinite period, mentioned by the Appointing Authority in the contested decision, should not have been taken into consideration in the examination of her transfer application, since such a factor is contrary to the principle of career continuity.

122 In that regard, it is sufficient to observe that it is apparent both from the contested decision and from the decision on the complaint that the Appointing Authority examined the applicant’s transfer application in the light of all the criteria relating to transfers, which also included the remaining duration of the contract. The possibility of extending the applicant’s contract for an indefinite period, at the time of a possible renewal, was thus one consideration among others and, as is apparent from the analysis of the third part below, could be taken into consideration with a view to complying with the requirements of EUIPO’s duty of care towards each of its employees.

123 It follows that the second complaint is also unfounded and, therefore, must be rejected, as must the second part.

124 The applicant claims that EUIPO breached its duty of care, in that, in examining her transfer application, it took into account only the interests of the service and failed to take into consideration interests specific to her situation.

125 It is admittedly true that, even in the exercise of the broad discretion enjoyed by the administration in the context of a transfer, the duty of care requires the Appointing Authority, when taking a decision on the situation of an official, to take into account not only the interest of the service but also of that of the official concerned (see, to that effect, judgments of 28 October 2004, Meister v OHIM, T‑76/03, EU:T:2004:319, paragraph 192, and of 7 May 2019, WP v EUIPO, T‑407/18, not published, EU:T:2019:290, paragraph 58 and the case-law cited).

126 That said, the taking into account of an official’s interest cannot go as far as to prohibit the administration from refusing to grant a transfer application where the interest of the service so requires (see, to that effect, judgment of 7 May 2019, WP v EUIPO, T‑407/18, not published, EU:T:2019:290, paragraph 101 and the case-law cited).

127 In other words, contrary to what the applicant appears to claim, the rejection of her transfer application cannot, in itself, constitute a breach of EUIPO’s duty of care.

128 In the present case, in its analysis of the transfer application, the Appointing Authority took into consideration all the interests at issue. Thus, first, it took into consideration the interest of the service by mentioning, in particular, the inadequate performance of the applicant as reported in her appraisal reports, the neutral budgetary impact requirement and the limited number of posts available. Second, it also took into consideration the applicant’s interest, taking into account her seniority within EUIPO, the post she held and the remaining duration of her contract.

129 As regards the taking into account of the remaining duration of her contract, for which the applicant criticises EUIPO, it should be noted that the contested decision referred to the possibility of an extension for an indefinite period following the next renewal. The Appointing Authority concluded therefrom that the applicant’s professional situation was more stable than that of other temporary agents.

130 Although the applicant considers that that taking into account was incorrect, it must be stated that, in so doing, EUIPO took into consideration not only the applicant’s interest as a temporary agent within EUIPO, but also that of other temporary agents whose interests cannot, by virtue of the same duty of care, be ignored when the Appointing Authority rules on an individual request, such as that in the present case.

131 It should also be noted that the applicant’s arguments put forward at the hearing, alleging that EUIPO should have taken into account, pursuant to its duty of care, the fact that her family ties and her centre of interest were, at the time of the contested decision, in Alicante (Spain), the seat of EUIPO, were raised for the first time during the oral part of the proceedings.

132 On that last point, it should be noted from the outset that it follows from the combined provisions of Article 76(d) and Article 84(1) of the Rules of Procedure that, inter alia, no new plea in law or arguments may be introduced in the course of proceedings unless those pleas or arguments are based on matters of law or of fact which came to light in the course of the procedure or where they amplify a plea put forward previously, whether directly or by implication, in the application initiating proceedings and which are closely connected therewith (see judgment of 22 November 2017, von Blumenthal and Others v EIB, T‑558/16, not published, EU:T:2017:827, paragraph 48 and the case-law cited).

133 In addition, Article 84(2) of the Rules of Procedure provides that ‘any new pleas in law shall be introduced in the second exchange of pleadings and identified as such’ and that ‘where the matters of law or of fact justifying the introduction of new pleas in law are known after the second exchange of pleadings or after it has been decided not to authorise a second exchange of pleadings, the main party concerned shall introduce the new pleas in law as soon as those matters come to his knowledge’.

134 The present case involves a new argument put forward at the hearing, which was not submitted at the stage of the reply, although it is based on matters of fact which were already known to the applicant when that document was lodged.

135 Thus, it must be held that the applicant’s argument referred to in paragraph 131 above, raised for the first time at the hearing, was submitted out of time, with the result that it must be rejected as inadmissible.

136 In the light of the foregoing considerations, the rejection of the transfer application does not lead to the conclusion that the duty of care was breached, particularly since, as was observed in paragraph 114 above, in the present case, the applicant’s level of performance did not exceed that normally expected of a temporary agent of her grade that could justify the transfer applied for.

137 It follows that the third part of the present plea is also unfounded and must be rejected.

138 Consequently, in the light of all the foregoing, the present action must be dismissed in its entirety, without it being necessary to rule on the admissibility of the annexes to the reply or on the evidence submitted by the applicant by separate document of 25 April 2022, the allegedly late submission of which was challenged by EUIPO on the basis of Article 85 of the Rules of Procedure.

139 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

140 However, the applicant claims that she should not be ordered to pay the costs, even if the action is dismissed, since EUIPO left her no choice but to proceed by means of legal proceedings. According to the applicant, the present proceedings could have been avoided if EUIPO had applied the principles set out in the judgment of 13 January 2021, ZR v EUIPO (T‑610/18, not published, EU:T:2021:5).

141 However, it must be observed that the applicant merely makes a general assertion without even identifying the alleged principles referred to in paragraph 140 above, with the result that she does not put forward any argument capable of substantiating her arguments and thus fails to state reasons for her claim that EUIPO should be ordered to pay the costs even if the action is dismissed.

142 It follows that, since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> ZR v EUIPO (Civil service - Officials - Vacancy notice - Judgment) [2023] EUECJ T-400/21 (29 March 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/T40021.html Cite as: ECLI:EU:T:2023:169, [2023] EUECJ T-400/21, EU:T:2023:169

Court of Justice of the European Communities (including Court of First Instance Decisions)