Opinion of the Advocate General — ECLI:EU:C:2018:1030
Date: 2018-12-19
Language of the case: Latvian

summary of reasons of a decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons are substantiated. (69) 133. In the present case, therefore, in order to allow the Court to exercise its power of review, the Republic of Latvia ought to have communicated to it not only the documents drawn up by the Latvian authorities for the purposes of the investigation and the charges against Mr Rimšēvičs, but also evidence showing by itself that the alleged facts took place. The mere existence of ongoing criminal proceedings which have not yet given rise to findings of fact made in a court decision cannot be treated as proven facts. (70) 134. Unlike in the case of facts established by a judgment on the merits delivered by an independent tribunal, (71) the Court cannot accept as established facts which are alleged to have taken place only by administrative authorities. Such authorities do not enjoy the same guarantees of institutional and functional independence as the courts and do not take their decisions following an adversarial procedure together with the guarantees of an effective remedy. (72) Accepting facts alleged by an administrative authority as established without ascertaining that they are correct would therefore amount to depriving the parties concerned of their right of effective judicial review and, in this instance, to rendering ineffective the remedy established in Article 14.2 of the Statute of the ESCB and of the ECB. 135. Even though the Republic of Latvia puts forward in its pleadings material showing that the KNAB enjoys a certain independence in the performance of its tasks, it is not disputed that the KNAB forms part of the executive and cannot in any way be assimilated to an independent court. (73) It is not demonstrated or even claimed that the situation is different for the Office of the Prosecutor General of the Republic of Latvia. Furthermore, as Mr Rimšēvičs emphasises, that Office has thus far adopted only a decision to charge Mr Rimšēvičs but has not yet closed the investigation and referred the matter to a court. 136. It must therefore be concluded that the Republic of Latvia has not communicated to the Court the evidence required to justify the measures adopted against Mr Rimšēvičs. 137. In addition, as already stated, the Republic of Latvia cannot rely on the confidentiality of the material in the criminal investigation file in order to justify its failure to communicate to the Court evidence capable of substantiating its allegations concerning Mr Rimšēvičs. (74) Furthermore, the Court informed the Republic of Latvia at the hearing that in other areas the exceptional and strictly circumscribed possibility exists of not communicating to the person concerned evidence produced before the Courts of the European Union. (75) Likewise, the ECB stated that it was prepared to waive its right of access to the file if the integrity of the criminal investigation required confidential treatment of any information that the Republic of Latvia communicated to the Court. However, the Republic of Latvia has not followed up on that reference to the possibility of seeking confidential treatment of any evidence communicated to the Court, let alone put forward any compelling reasons capable of justifying such confidential treatment. 138. Last, Articles 24 to 30 of the Statute of the Court of Justice of the European Union and Article 64 of the Rules of Procedure do admittedly provide the Court with an arsenal of measures of inquiry, including, in particular, apart from a request for information and production of documents, the personal appearance of the parties, oral testimony or an inspection of the place or thing in question. However, the Court cannot be required to have recourse to such measures of its own motion in the absence of any offer of proof or indeed any indication to that effect on the part of the Member State concerned. In the present case, the Republic of Latvia has failed to suggest to the Court that any measure of inquiry might prove helpful. 139. Nor, in keeping with what was said above concerning the nature of the present action and the fact that the defendant is the Member State in question in its entirety, (76) can the Court directly address bodies within that Member State such as, for example, in this instance, the KNAB, in order to request information directly from them. At least in the context of the procedure based on Article 14.2 of the Statute of the ESCB and of the ECB, infra-State bodies cannot therefore be treated as equivalent to the institutions, bodies, offices or agencies from which the Court may request all information which it considers necessary, under Article 24 of the Statute of the Court of Justice of the European Union. (d) Interim conclusion 140. It follows from the foregoing considerations that the facts alleged against Mr Rimšēvičs would, if they were shown to be true, be capable of demonstrating that the conditions laid down in Article 14.2 of the Statute of the ESCB and of the ECB for relieving a governor of a central bank from office are fulfilled. 141. However, the Republic of Latvia has adduced no evidence capable of proving those facts. The Court is therefore unable to verify whether the conditions laid down in Article 14.2 of the Statute of the ESCB and of the ECB for relieving Mr Rimšēvičs from office are fulfilled. 142. It follows that the Republic of Latvia has infringed Article 14.2 of the Statute of the ESCB and of the ECB by relieving Mr Rimšēvičs from office without showing that the conditions laid down in that provision were fulfilled. The plea put forward by Mr Rimšēvičs and by the ECB alleging infringement of Article 14.2 of the Statute of the ESCB and of the ECB by the Republic of Latvia must therefore be upheld. 2. The alleged infringement of the Protocol on the privileges and immunities of the European Union 143. Mr Rimšēvičs maintains that relieving him from his office as Governor of the Bank of Latvia constitutes an infringement of the immunity which he enjoys as a member of the Governing Council of the ECB under Protocol (No 7) on the privileges and immunities of the European Union, which, pursuant to the first paragraph of Article 22, also applies to the ECB and to the members of its organs and to its staff. 144. In accordance with Article 11(a) of Protocol (No 7) on the privileges and immunities of the European Union, officials and other servants of the European Union are, on the territory of each of the Member States, to be immune from legal proceedings in respect of acts performed by them in their official capacity, including their words spoken or written. Although that provision refers only to ‘immun[ity] from legal proceedings’ (‘immunité de juridiction’), (77) it cannot be precluded that that immunity is, at least in cases involving senior officials, to be interpreted as conferring immunity from proceedings (‘immunité de poursuites’) on them as well. (78) Having regard to the importance of the independence of the Members of the Governing Council of the ECB, (79) it seems logical, moreover, that they cannot be the subject of proceedings involving measures such as those adopted by the KNAB against Mr Rimšēvičs, namely provisional detention or inspections, (80) unless a decision waiving immunity has been adopted by the Governing Council. 145. The immunity conferred on the Members of the Governing Council by Protocol (No 7) on the privileges and immunities of the European Union must be distinguished from the protection against being relieved from office enjoyed by the governors of the national central banks under the Statute of the ESCB and of the ECB. Thus, when a governor is relieved from office, his independence is guaranteed by Article 14.2 of that Statute, which takes precedence as a lex specialis over the general provisions of Protocol (No 7) on the privileges and immunities of the European Union. If the conditions laid down in Article 14.2 of the Statute of the ESCB and of the ECB are fulfilled — which it is for the Court to verify, where necessary — a governor may therefore be relieved from office without there also being any need to adopt a decision waiving his immunity. Consequently, an infringement of the provisions of Protocol (No 7) on the privileges and immunities of the European Union cannot, as such, be relied on as against the decision to relieve a governor from office in the context of an action based on Article 14.2 of the Statute of the ESCB and of the ECB. 146. However, the immunity conferred on the governors by Protocol (No 7) on the privileges and immunities of the European Union protects them against proceedings initiated independently of a decision to relieve them from office, before it has been adopted (81) or again if such a decision is withdrawn after being challenged before the Court. Accordingly, such immunity may be relevant in the context of an action relating to the decision to relieve a governor from office if the evidence submitted by the Member State concerned in support of that decision had been obtained in breach of that immunity. 147. In the present case, there is admittedly no need to dwell on the admissibility of any evidence that may have been obtained in breach of Mr Rimšēvičs’s immunity before he was relieved from office, since the Republic of Latvia has not in any event adduced any evidence and, consequently, there is no need to adjudicate on Mr Rimšēvičs’s complaint alleging infringement of Protocol (No 7) on the privileges and immunities of the European Union. 148. Conversely, the immunity conferred on Mr Rimšēvičs by that protocol might become relevant again should he be reinstated in office following a judgment of the Court finding that the conditions for relieving him from office were not fulfilled. 149. In that regard, the ECB admittedly claims that the immunity conferred on Mr Rimšēvičs by Protocol (No 7) on the privileges and immunities of the European Union relates only to acts carried out in his capacity as a Member of the Council of the ECB, whereas the acts complained of by the Latvian authorities were carried out by Mr Rimšēvičs solely in his capacity as Governor of the Bank of Latvia. Thus, in particular, the bank for whose benefit Mr Rimšēvičs allegedly worked, Trasta Komercbanka, was subject to the direct prudential supervision of the Latvian Financial and Capital Market Commission. Accordingly, that bank was not the subject of any prudential decision on the part of the ECB, apart from the decision relating to the withdrawal of its authorisation adopted in 2016. Furthermore, that decision was not prepared by the Governing Council and was adopted by the latter only in the context of a procedure in which the Governing Council raised no objections and which does not require express consent on the part of its members. (82) 150. However, the Governing Council of the ECB is, in accordance with Regulation No 1024/2013 and in spite of the objection of the ECB reproduced in the preceding point, at least associated in the prudential supervision of credit institutions such as Trasta Komercbanka and responsible for taking decisions relating to their authorisation. Accordingly, in the light of the facts alleged against Mr Rimšēvičs by the KNAB, (83) it cannot be precluded outright that the investigation conducted by the KNAB and now the investigation conducted by the Prosecutor in the Office of the Prosecutor General of the Republic of Latvia also relate to acts carried out by Mr Rimšēvičs in the performance of his duties as a Member of the Governing Council of the ECB. 3. The alleged infringement of Latvian law 151. Mr Rimšēvičs claims that, by imposing the restrictive measures on him by the decision of 19 February 2018, the KNAB infringed the Law on the Bank of Latvia and the Latvian Code of criminal procedure. 152. First, he submits that the KNAB infringed the Law on the Bank of Latvia, which was adopted in order to transpose the relevant provisions of the TFEU, since under that law the Governor of the Bank of Latvia may to be relieved from office only in certain well-defined cases and solely by decision adopted by the Parliament of the Republic of Latvia. 153. Second, he submits that the KNAB infringed the Latvian Code of criminal procedure since the conditions laid down for the imposition of restrictive measures, namely the risk that a person will interfere with the investigation or commit further offences, were not fulfilled in his case. Thus, Mr Rimšēvičs cooperated actively with the investigators from the outset. In addition, in the framework of his powers as Governor of the Bank of Latvia, Mr Rimšēvičs does not in any event have the powers necessary to exercise influence in favour of a particular bank, as he is alleged to have done. Last, Mr Rimšēvičs’s arrest was unlawful since the conditions laid down by the Code of criminal procedure in order to be able to carry out such an arrest were also not fulfilled. 154. First of all, it should be noted, for the avoidance of doubt, that in the present case the Court has been requested to rule only in respect of the restrictive measures imposed on Mr Rimšēvičs by the KNAB by the decision of 19 February 2018, which do not include his arrest. Accordingly, the Court is not called upon to examine the lawfulness of Mr Rimšēvičs’s arrest. (84) 155. Next, the complaints alleging infringement of Latvian law must be rejected without there being any need for the Court to consider whether they are well founded. 156. In fact, whether it is permissible to relieve a governor of a national central bank from office must be assessed solely by reference to EU law and in particular the conditions laid down in Article 14.2 of the Statute of the ESCB and of the ECB, which must be given an autonomous interpretation in order to ensure their uniform application. (85) 157. Accordingly, if the conditions laid down by those provisions are fulfilled — which it is for the Court, where appropriate, to ascertain — a governor of a national central bank may be relieved from his post independently of any conditions also laid down by national law for relieving a governor from office. Conversely, if those conditions are not fulfilled, a governor of a central bank cannot be relieved from office, even though conditions provided for or procedures laid down by national law for that purpose have been fulfilled. 158. Whether a governor of a central bank is relieved from office by means of the ‘official’ procedure laid down for that purpose by the relevant national law or by means of a different measure is therefore irrelevant for the purpose of assessing whether relieving him from office is permissible under EU law. That applies a fortiori because, as already stated, (86) the concept of relieving a governor from office within the meaning of Article 14.2 of the Statute of the ESCB and of the ECB is an autonomous concept of EU law which attaches not to the form of a measure or to its status in national law but to its substance and to its actual effects. 159. Furthermore, as has also already been explained, (87) if there is sufficient evidence to show that the substantive conditions laid down by Article 14.2 of the Statute of the ESCB and of the ECB for relieving a governor from office are fulfilled, it must be possible to suspend such a governor from office on a temporary basis pending the outcome of a criminal procedure or the implementation of the ‘official’ procedure for relieving him from office provided for in national law. 160. It follows from the foregoing that Mr Rimšēvičs’s complaint alleging infringement of the Law on the Bank of Latvia and of the Latvian Code of criminal procedure is ineffective and must therefore be rejected. D. Interim conclusion 161. As already stated, (88) it follows from an examination of the present cases that the Republic of Latvia has adduced no evidence capable of attesting to the reality of the facts alleged against Mr Rimšēvičs. It is therefore impossible for the Court to ascertain whether the conditions laid down in Article 14.2 of the Statute of the ESCB and of the ECB for relieving Mr Rimšēvičs from office as Governor of the Bank of Latvia are fulfilled. 162. In those circumstances, in accordance with what was noted above concerning the nature of the present action, (89) it should be stated that in relieving Mr Rimšēvičs from office without demonstrating that the conditions laid down in Article 14.2 of the Statute of the ESCB and of the ECB were fulfilled, the Republic of Latvia has failed to fulfil its obligations under that provision. VI. Costs 163. Under Article 138(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. 164. It follows from the grounds set out above that the Republic of Latvia is the unsuccessful party in the present cases. 165. Furthermore, in Case C‑238/18, the ECB claimed that the Republic of Latvia should be ordered to pay the costs. The Republic of Latvia should therefore be ordered to bear its own costs and to pay the ECB’s costs in Case C‑238/18. That also applies to the costs incurred in the interlocutory proceedings that gave rise to the order of the Vice-President of the Court of 20 July 2018 (C‑238/18 R, not published, EU:C:2018:581), in which costs were reserved. 166. In Case C‑202/18, on the other hand, Mr Rimšēvičs did not claim that the Republic of Latvia should be ordered to pay the costs, nor did the Republic of Latvia claim that Mr Rimšēvičs should be ordered to pay the costs. Accordingly, as there was no application for costs, each party should be ordered to bear its own costs in Case C‑202/18. (90) VII. Conclusion 167. Having regard to the foregoing, I propose that the Court should rule as follows in Case C‑202/18: (1) By prohibiting Mr Ilmārs Rimšēvičs from performing his duties as Governor of the Latvijas Banka (Bank of Latvia) by the decision of the Korupcijas novēršanas un apkarošanas birojs (Anti-Corruption Office, Latvia) of 19 February 2018, the Republic of Latvia has failed to fulfil its obligations under Article 14.2 of Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank; (2) Mr Rimšēvičs and the Republic of Latvia shall bear their own costs. 168. In addition, I propose that the Court should rule as follows in Case C‑238/18: (1) By prohibiting Mr Rimšēvičs from performing his duties as Governor of the Latvijas Banka (Bank of Latvia) by the decision of the Korupcijas novēršanas un apkarošanas birojs (Anti-Corruption Office, Latvia) of 19 February 2018, the Republic of Latvia has failed to fulfil its obligations under Article 14.2 of Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank; (2) The Republic of Latvia shall bear its own costs and pay the costs of the European Central Bank, including the costs of the interlocutory proceedings. 1 Original language: French. i The wording of points 24, 39, 49, 54, 114, 129 and 150 of this document has been modified after it was first put online. 2 Both the Court of Justice and the General Court, moreover, are seised of different cases concerning the withdrawal of the authorisation of Trasta Komercbanka by the European Central Bank (ECB) on 3 March 2016; see Cases T‑247/16, Fursin and Others v ECB, and T‑698/16, Trasta Komercbanka and Others v ECB, pending before the General Court, the order of the General Court of 12 September 2017, Fursin and Others v ECB (T‑247/16, not published, EU:T:2017:623), and the appeals against that order in Cases C‑663/17 P, ECB v Trasta Komercbanka and Others, C‑665/17 P, Commission v Trasta Komercbanka and Others and ECB, and C‑669/17 P, Trasta Komercbanka and Others v ECB, pending before this Court. 3 Protocol (No 4) on the Statute of the European System of Central Banks [ESCB] and of the European Central Bank [ECB], annexed to the TEU and the TFEU (OJ 2016 C 202, p. 230). 4 See, in particular, Article 12.1 of the Statute of the ESCB and of the ECB. 5 See, in particular, Article 26(8) of Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63). 6 See, in particular, Article 119(2) and (3), Article 127(1), Article 219(1) and (2), and Article 282(2) TFEU. 7 In the words of Advocate General Jacobs, the independence of the ECB is not an end in itself, but is designed to enable the ECB effectively to pursue the aim of price stability; see the Opinion in Commission v ECB (C‑11/00, EU:C:2002:556, point 150). On the link between the independence of the ECB and the objective of price stability, see also the Draft Treaty for the amendment of the Treaty establishing the European Economic Community for the construction of an economic and monetary union, Commission Notice of 21 August 1990, Bulletin of the European Communities, Supplement 2/91, especially pages 14, 20 and 58. 8 See point 31 below. 9 C‑202/18, not published, EU:C:2018:489. 10 C‑238/18, not published, EU:C:2018:488. 11 C‑238/18 R, not published, EU:C:2018:581. 12 In the words of Article 35.5 of the Statute of the ESCB and of the ECB, as a general rule, a decision of the ECB to bring an action before the Court of Justice of the European Union is to be taken by the Governing Council. Article 14.2 of that Statute states, on the other hand, that the action provided for in that provision may be brought by the governor concerned or the Governing Council. However, it should be considered that Article 14.2 of the Statute of the ESCB and of the ECB reflects only the internal competence of the Governing Council within the ECB to decide whether to bring an action and is not intended to attribute the right to bring an action to the Governing Council instead of the ECB as a whole. It is therefore correct that in the present case it was the ECB that brought the action in Case C‑238/18, while indicating that it was the Governing Council that took the decision to refer the matter to the Court. 13 See, to that effect, order of 5 October 1983, Chatzidakis Nevas v Caisse des juristes à Athènes (142/83, EU:C:1983:267, paragraphs 3 and 4), and judgment of 30 June 1993, Parliament v Council and Commission (C‑181/91 and C‑248/91, EU:C:1993:271, paragraph 12). 14 Order of the General Court of 23 January 1995, Bilanzbuchhalter v Commission (T‑84/94, EU:T:1995:9, paragraph 26). On the specific power of the ECB to bring an action before the Court of Justice for a declaration that a national central bank has failed to fulfil its obligations under Article 271(d) TFEU, see footnote 25 of this Opinion. 15 See, among many examples, judgments of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 61); of 14 January 2016, Vodafone (C‑395/14, EU:C:2016:9, paragraph 40); and of 25 January 2018, Commission v Czech Republic (C‑314/16, EU:C:2018:42, paragraph 47). 16 See my View in Pringle (C‑370/12, EU:C:2012:675, points 127 to 131), the judgment of 27 November 2012, Pringle (C‑370/12, EU:C:2012:756, paragraph 135), my Opinion in Inuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:21, point 32), and the judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:625, paragraphs 59 and 70). 17 See, in French, ‘un recours contre la décision prise à cet effet peut être introduit’ (Article 14.2 of the Statute of the ESCB and of the ECB) vs. ‘toute personne … peut former… un recours contre les actes …’ (fourth paragraph of Article 263 TFEU); in Dutch, ‘tegen een besluit daartoe kan de betrokken president of de Raad van bestuur beroep instellen’ (Article 14.2 of the Statute of the ESCB and of the ECB) vs. ‘iedere natuurlijke of rechtspersoon kan … beroep instellen tegen handelingen …’ (fourth paragraph of Article 263 TFEU); in German, ‘gegen einen entsprechenden Beschluss kann der betreffende Präsident einer nationalen Zentralbank oder der EZB-Rat … den Gerichtshof anrufen’ (Article 14.2 of the Statute of the ESCB and of the ECB) vs. ‘jede … Person kann … gegen … Handlungen … Klage erheben’ (fourth paragraph of Article 263 TFEU); in Latvian, ‘var apstrīdēt šo lēmumu’ (Article 14.2 of the Statute of the ESCB and of the ECB) vs ‘ jebkura … persona … var celt prasību par tiesību aktu’ (fourth paragraph of Article 263 TFEU). 18 See the proposal of the Governors of the Central Banks of 27 November 1990, published in Agence Europe, Europe/Documents, No 1669/1670, 8 December 1990, pp. 1, 6 of the pdf document (https://www.ecb.europa.eu/ecb/access_to_documents/document/cog_pubaccess/shared/data/ecb.dr.parcg2007_0005draftstatute.en.pdf?c34e41042567a5832ffd2adb7e5baa48), and their proposal of 26 April 1991 (CONF-UEM 1613/91), pp. 1, 12 of the pdf document (https://www.ecb.europa.eu/ecb/access_to_documents/document/cog_pubaccess/shared/data/ecb.dr.parcg2007_0010draftstatute.en.pdf?77031b02df114d03b2da29d4d1ccf33d). 19 Whereas the English version of the fourth paragraph of Article 263 TFEU states that ‘any natural or legal person may… institute proceedings against an act …’. 20 See the Proposal by the Presidency to the Intergovernmental Conference on Economic and Monetary Union of 28 October 1991 (SN 3738/91 (UEM 82)), p. 47 of the pdf document (http://ec.europa.eu/dorie/fileDownload.do;jsessionid=Xy2HP92HJVCBrNG02Sws0jJ2QqCrpL968JlDwYGhB2GL1BTJ2Q1V!233738690?docId=409907&cardId=409907). 21 See, in addition to the English versions (point 46 and footnote 19 of this Opinion), the Spanish versions: ‘el gobernador afectado o el Consejo de Gobierno podrán recurrir las decisiones al respecto ante el Tribunal de Justicia’ (Article 14.2 of the Statute of the ESCB and of the ECB) vs. ‘toda persona … podrá interponer recurso … contra los actos’ (fourth paragraph of Article 263 TFEU); the Italian versions: ‘una decisione in questo senso può essere portata dinanzi alla Corte di giustizia’ (Article 14.2 of the Statute of the ESCB and of the ECB) vs. ‘qualsiasi persona … può proporre… un ricorso contro gli atti’ (fourth paragraph of Article 263 TFEU); the Portuguese versions: ‘o governador em causa ou o Conselho do BCE podem interpor recurso da decisão de demissão para o Tribunal de Justiça’ (Article 14.2 of the Statute of the ESCB and of the ECB) vs. ‘qualquer pessoa … pode interpor… recursos contra os atos …’ (fourth paragraph of Article 263 TFEU); or again the Danish versions: ‘en afgørelse om afskedigelse kan af den pågældende centralbankchef eller af Styrelsesrådet indbringes for Domstolen’ (Article 14.2 of the Statute of the ESCB and of the ECB) vs. ‘enhver … person kan … indbringe klage med henblik på prøvelse af retsakter …’ (fourth paragraph of Article 263 TFEU). 22 See Van den Berg, C.C.A., The Making of the Statute of the European System of Central Banks, Amsterdam, 2005, p. 137 et seq. (account of the discussions relating to Articles 14.1 and 14.2 of the Statute of the ESCB and of the ECB, complete absence of any reference to discussions on the nature of the action provided for in Article 14.2) and also pp. 495 to 497 (where the author lists all the documents consulted and explains that he was personally present at most of the discussions of the working groups (p. 496)); furthermore, the copies of the Agence Europe publication Bulletin quotidien Europe of November and December 1991, which contain, inter alia, information on the discussions on Economic and Monetary Union at ministerial level, also contain no traces whatsoever of a discussion concerning the action provided for in Article 14.2 of the Statute of the ESCB and of the ECB. 23 It is apparent from the dates and documents referred to in points 46 and 48 of this Opinion that those elements were inserted during the few weeks separating the Intergovernmental Conference on the Economic and Monetary Union of 30 October 1991 and the adoption of the Maastricht Treaty at the Conference of the European Council on 9 to 11 December 1991. 24 See, in particular, for the Commission, Article 247 TFEU (members may be retired by the Court on application by the Council or the Commission); for the Court of Justice of the European Union, the first paragraph of Article 6 of the Statute of the Court of Justice of the European Union (a member may be deprived of his office in accordance with the unanimous opinion of the Judges and Advocates General of the Court); for the members of the Executive Board of the ECB, Article 11.4 of the Statute of the ESCB and of the ECB (members may be retired by the Court on application by the Governing Council or the Executive Board); for the Court of Auditors of the European Union, Article 286(6) TFEU (a member may be deprived of his office by the Court of Justice at the request of the Court of Auditors); for the European Ombudsman, Article 228(2) TFEU (the Ombudsman may be dismissed by the Court of Justice at the request of the European Parliament). 25 Unlike what applies to members of the Executive Committee of the ECB (see the preceding footnote), who are appointed according to the procedure laid down in Article 11 of the Statute of the ESCB and of the ECB and who are therefore within the sphere of competence of the European Union, the ECB cannot therefore directly request that the governors of the central banks who are members of the Governing Council of the ECB be relieved from office. If the ECB considered that the governor of a national central bank should be relieved from office, it might have recourse to Article 271(d) TFEU, which allows it to bring an action before the Court of Justice for failure to fulfil obligations against a national central bank if it considers that that bank has failed to fulfil an obligation under the Treaties. 26 See, in that regard, points 151 to 160 of this Opinion. 27 See point 5 of this Opinion. 28 See point 9 of this Opinion. 29 See point 12 of this Opinion. 30 See point 5 of this Opinion. 31 See point 57 of this Opinion. 32 See also on that subject points 151 to 160 of this Opinion. 33 See, apart from the French (‘un gouverneur ne peut être relevé de ses fonctions’) and Latvian (‘Tikai tad, ja vadītājs vairs neatbilst nosacījumiem, kas vajadzīgi pienākumu veikšanai, vai ir izdarījis smagu pārkāpumu, viņu var atbrīvot no amata’) versions, for example, the English version (‘a Governor may be relieved from office only’); the Spanish version (‘un gobernador sólo podrá ser relevado de su mandato’); the Italian version (‘un governatore può essere sollevato dall’incarico solo’); the German version (‘der Präsident einer nationalen Zentralbank kann aus seinem Amt nur entlassen werden’); the Dutch version (‘en president kan slechts van zijn ambt worden ontheven’); the Danish version (‘en centralbankchef kan kun afskediges’); the Portuguese version (‘um governador só pode ser demitido das suas funções’); or again the Romanian version (‘un guvernator poate fi eliberat din funcție numai’) of Article 14.2 of the Statute of the ESCB and of the ECB. 34 See, for the members of the Commission, Articles 246 and 247 TFEU; for the members of the Executive Board of the ECB, Article 11.4 of the Statute of the ESCB and of the ECB; for the Ombudsman, the second subparagraph of Article 228(2) TFEU; and for the members of the Court of Auditors, Article 286(5) TFEU (paragraph 6 of that provision refers on the other hand, in some language versions, to a member being deprived of his office, as does Article 6 of the Statute of the Court of Justice of the European Union as regards the members of that institution). 35 Interlocutory order of 20 July 2018, ECB v Latvia (C‑238/18 R, not published, EU:C:2018:581, paragraph 29). 36 On the particular aspect of the immunity conferred on the members of the Governing Council of the ECB by Protocol (No 7) to the TFEU on the privileges and immunities of the European Union, annexed to the TEU and the TFEU (OJ 2016 C 202, p. 266), see points 143 to 150 of this Opinion. 37 See point 119 et seq. of this Opinion. 38 See point 11 of this Opinion. 39 See point 57 of this Opinion. 40 Article 130 TFEU and Article 7 of the Statute of the ESCB and of the ECB. 41 C‑432/04, EU:C:2006:140, point 69. 42 See point 56 and footnote 24 of this Opinion. 43 See, to that effect, judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455, paragraphs 120 and 121). 44 See points 37 and 56 of this Opinion. 45 See point 17 of this Opinion. 46 See, for a similar reflection on the standards for proper conduct that must be observed in the exercise of the duties of Members of the Commission, Opinion of Advocate General Geelhoed in Commission v Cresson (C‑432/04, EU:C:2006:140, point 77). 47 See points 5 and 76 of this Opinion. 48 See, in particular, for Members of the Commission, Article 17(3) TEU and Article 245 TFEU and, for Members of the Court of Justice of the European Union, Article 19(2) TEU and Articles 253 and 254 TFEU. 49 Judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455, paragraph 70). 50 See, in particular, for the Ombudsman, Article 228(2) TFEU; for Members of the Commission, Article 247 TFEU; for Members of the Executive Board of the ECB, Article 11.4 of the Statute of the ESCB and of the ECB; for officials and other servants of the European Union, Article 86(1) of the Staff Regulations of Officials of the European Union, Articles 9 and 10 of Annex IX to those Staff Regulations and Article 49 of the Conditions of employment of other servants of the European Union. 51 See, to that effect and by analogy, judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the judicial system) (C‑216/18 PPU, EU:C:2018:586, paragraph 79). 52 See judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the judicial system) (C‑216/18 PPU, EU:C:2018:586, paragraphs 35 to 37 and the case-law cited). 53 See point 17 of this Opinion. 54 See point 18 of this Opinion. 55 See point 10 of this Opinion. 56 Free translation. 57 Free translation. 58 See just below, points 125 to 130 of this Opinion. 59 See point 22 of this Opinion. 60 C‑238/18 R, not published, EU:C:2018:581; see points 21 and 31 of this Opinion. 61 See point 22 of this Opinion. 62 See, to that effect and by analogy, judgment of the General Court of 16 June 2015, FSL and Others v Commission (T‑655/11, EU:T:2015:383, paragraphs 175 and 176 and the case-law cited). 63 The only material produced by the Republic of Latvia with its defence in Case C‑238/18 is a Draft Law amending the Law on the Bank of Latvia, an Opinion of the ECB of 2 October 2012 on preparations and legal amendments required for the introduction of the euro and a letter from the Bank of Latvia of 13 April 2018 concerning the information necessary in the context of Case C‑238/18. 64 See point 33 of this Opinion. 65 Namely decisions and written pleadings of the KNAB and of the prosecution, complaints and written pleadings of Mr Rimšēvičs’s lawyer, the decisions of the judge with responsibility for reviewing compliance with human rights of the Rīgas rajona tiesa (District Court, Riga) of 27 February 2018 and of the judge with responsibility for reviewing compliance with human rights of the Rīgas pilsētas Vidzemes priekšpilsētas tiesa (Riga City Court (Vidzeme District)) of 22 August 2018 (see points 110 to 118 of this Opinion), and also documents relating to the interlocutory order of the Vice-President of the Court of Justice of 20 July 2018 and its execution in Latvia (see points 21 and 22 of this Opinion). 66 The decisions of the judge with responsibility for reviewing compliance with human rights of the Rīgas rajona tiesa (District Court, Riga) of 27 February 2018 and of the judge with responsibility for reviewing compliance with human rights of the Rīgas pilsētas Vidzemes priekšpilsētas tiesa (Riga City Court (Vidzeme District)) of 22 August 2018 (see points 110 to 118 of this Opinion). 67 See point 17 of this Opinion. 68 See, in particular, judgments of 15 May 1986, Johnston (222/84, EU:C:1986:206, paragraph 21), and of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraphs 336 and 337 and the case-law cited). 69 Judgment of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119). 70 See, mutatis mutandis, judgment of the Civil Service Tribunal of 7 October 2009, Y v Commission (F‑29/08, EU:F:2009:136, paragraphs 74 and 75). 71 See point 108 of this Opinion. 72 See, concerning those conditions, in particular, judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117, paragraphs 38, 42, 44 and 45 and the case-law cited). 73 See the legislative provisions on the KNAB cited in point 13 of this Opinion. 74 See point 86 of this Opinion. 75 See on that subject, in particular, judgment of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 125 to 129), and Article 105 of the Rules of Procedure of the General Court of 4 March 2015 (OJ 2015 L 105, p. 1), as amended on 13 July 2016 (OJ 2016 L 217, p. 72). 76 See point 65 of this Opinion. 77 Conversely, Article 9 of that protocol refers, with respect to Members of the Parliament, to ‘immunity from any measure of detention and from legal proceedings’. Article 8 of Protocol (No 7) on the privileges and immunities of the European Union confers on Members of the Parliament material immunity or non-liability for opinions expressed or votes cast by them in the performance of their duties, whereas Article 9 of that protocol guarantees them procedural immunity or inviolability against legal proceedings; see, on that distinction, judgments of 21 October 2008, Marra (C‑200/07 and C‑201/07, EU:C:2008:579, paragraph 24), and of 6 September 2011, Patriciello (C‑163/10, EU:C:2011:543, paragraph 18), and also Opinion of Advocate General Poiares Maduro in Joined Cases Marra (C‑200/07 and C‑201/07, EU:C:2008:369, point 13), and Opinion of Advocate General Jääskinen in Patriciello (C‑163/10, EU:C:2011:379, point 3). 78 See, to that effect, judgment of the General Court of 24 October 2018, RQ v Commission (T‑29/17, EU:T:2018:717, paragraphs 5 to 12); see also, on the same context, order of the President of the General Court of 20 July 2016, Director-General of OLAF v Commission (T‑251/16 R, not published, EU:T:2016:424, paragraphs 10 to 16), and, in a different context, judgment of the Civil Service Tribunal of 13 January 2010, A and G v Commission (F‑124/05 and F‑96/06, EU:F:2010:2, paragraph 60). 79 See points 5, 76 and 101 of this Opinion. 80 See points 16, 17 and 129 of this Opinion. 81 It therefore cannot be precluded that before embarking on its investigation into Mr Rimšēvičs on 15 February 2018, before carrying out inspections or at least before arresting Mr Rimšēvičs on 17 February 2018 (see point 16 of this Opinion), the KNAB ought to have asked the Governing Council of the ECB to waive his immunity. 82 In accordance with Article 26(8) of Regulation No 1024/2013 (see footnote 5 of this Opinion). 83 See point 99 of this Opinion. 84 Mr Rimšēvičs states, without providing further detail, that his arrest was the subject of an appeal at national level, which was dismissed on procedural grounds, and that he is preparing an application to the European Court of Human Rights on the ground of unjustified deprivation of freedom. 85 See, to that effect, judgments of 29 April 1982, Pabst & Richarz (17/81, EU:C:1982:129, paragraph 18); of 11 July 2006, Chacón Navas (C‑13/05, EU:C:2006:456, paragraph 40); and of 21 December 2016, Associazione Italia Nostra Onlus (C‑444/15, EU:C:2016:978, paragraph 66). 86 See point 77 of this Opinion. 87 See points 119 to 122 of this Opinion. 88 See points 140 to 142 of this Opinion. 89 See points 52 to 68 of this Opinion. 90 A party may actually be ordered to pay the costs only if they have been expressly applied for (see judgments of 9 June 1992, Lestelle v Commission, C-30/91 P, EU:C:1992:252, paragraph 38, and of 29 April 2004, Parliament v Ripa di Meana and Others, C-470/00 P, EU:C:2004:241, paragraph 86). Where costs are not claimed, the Court thus, even in the absence of discontinuance or withdrawal, applies by analogy Article 141(4) (‘Costs in the event of discontinuance or withdrawal’) of the Rules of Procedure, according to which ‘if costs are not claimed, the parties shall bear their own costs’ (see, with regard to the third subparagraph of Article 69(5) of the Rules of Procedure of 19 June 1991, judgment of 6 October 2005, Scott v Commission (C-276/03 P, EU:C:2005:590, paragraph 39); see also order of the President of the Court of 6 October 2015, Comité d’entreprise SNCM v Commission (C-410/15 P(I), EU:C:2015:669, paragraph 22)).