Judgment;Summary — ECLI:EU:C:2020:725
Date: 2020-09-17
Language of the case: French
Court formation: Fourth Chamber
Subject matter: Provisions governing the Institutions;Privileges and immunities
Procedure: Action for annulment;Appeal - unfounded;Action for damages
Origin: France

summary of the factual context. Consequently, no legal principles capable of binding the General Court can be deduced from it. Moreover, inasmuch as mention is made of the reasons why the Parliament had decided at the time to defend the immunity of the Member of the European Parliament in question, namely the fact that he acted ‘for [the] general interest of his electorate in the framework of his political activity’, it is sufficient to draw attention to the fact that the assessment underlying that decision, based on a recommendation of the Parliament’s Committee on Legal Affairs, had no effect on the Court’s interpretation of Article 8 of the Protocol. Quite to the contrary, it is clear from the operative part of the Patriciello judgment that an activity such as that described above is not covered by the immunity which that provision confers. It follows that the appellant cannot usefully rely on the purely factual findings contained in paragraph 12 of the judgment in Patriciello. 57. As one of the essential criteria of Article 8 of the Protocol is not fulfilled, it is not necessary, in principle, to examine whether the activity in question constitutes the expression of an ‘opinion’ within the meaning of that provision. The Court merely recalled in the Patriciello judgment that that concept ‘must be understood in a wide sense to include remarks and statements that, by their content, correspond to assertions amounting to subjective appraisal’, (22) without providing the referring court with additional guidance to allow it to ascertain whether the statements of the Member in question fell within that concept. Consequently, the possibility that any statement referring to a specific issue which is at the centre of Europe-wide public debate, such as the issues mentioned in my preliminary remarks, (23) and expressing a personal belief of the Member, may constitute such an opinion cannot be categorically excluded. 58. It is for the entities responsible for applying the Protocol and ensuring that it is applied correctly, first and foremost for the Parliament when a request for waiver of immunity is submitted to it, to examine that question on a case-by-case basis. (24) In the present case, I note that, in the decision at issue, the Parliament refrains from explicitly classifying the activity in question as the expression of an ‘opinion’, which could be interpreted as meaning that it wished to give the appellant the benefit of the doubt. Such an approach is conceivable in the light of the wide meaning of that concept. (25) Furthermore, I note that that question was not expressly addressed in the proceedings before the General Court either. 59. In any event, I do not think it is relevant to deal with that question in the present appeal proceedings, in the light of the fact that the complaints raised by the appellant exclusively concern the General Court’s assessment of the criterion relating to the ‘direct and obvious connection’ with the duties of a Member of the European Parliament. To address the question of whether a photomontage related to an occurrence which possibly never arose constitutes the expression of an ‘opinion’ within the meaning of Article 8 of the Protocol would be to go beyond the scope of the judicial review specific to appeal proceedings. (b) Examination of the complaints raised by the appellant 60. The foregoing considerations constitute the basis on which the complaints raised by the appellant must now be analysed. As I will explain in that analysis, those complaints indicate an incorrect reading of the judgment under appeal, casting doubt on the merits (26) of the first ground of appeal. (1) First complaint 61. Contrary to what the appellant argues, the General Court did not assert, in paragraph 53 of the judgment under appeal, that the alleged occurrence commented on in the tweet at issue, because of its geographical location in France, was not among the subjects of interest to a Member of the European Parliament. On the contrary, the General Court did not categorically exclude the possibility that occurrences linked to problems related to Islamism and the breach of women’s rights – which affect a number of countries in the world, including France – may indeed constitute questions of general interest. 62. It should be added that the General Court in fact explained, in paragraph 53, that ‘the photo and the tweet at issue appear more to reflect a desire to highlight conduct contrary to French law than to express a wish to defend women’s rights’. The General Court thus concluded that ‘the fact that the applicant is a substitute on the Parliament’s Committee on Women’s Rights and Gender Equality cannot allow the tweet at issue to be linked to the duties which she performs as a Member’. That assessment of the facts, falling within the exclusive jurisdiction of the General Court, cannot be called into question in the appeal proceedings, especially given that the appellant did not provide any evidence indicating a possible error of law. 63. It follows that this complaint must be rejected on the ground that it is based on an incorrect reading of the judgment under appeal. (2) Second complaint 64. Contrary to what the appellant argues, nor did the General Court assert, by way of a principle, that an opinion is necessarily the adoption of a general position and cannot refer to a specific occurrence. It is apparent from paragraph 46 of the judgment under appeal that, in order to examine whether the tweet at issue constituted an opinion expressed by the appellant in the performance of her parliamentary duties, the General Court did not restrict that concept to the adoption of general positions, excluding any reference to a specific occurrence. On the contrary, the General Court relied on the concept of ‘opinion’ developed by the Court and referred to above, (27) according to which that concept must be understood in a wide sense, thus not excluding either of the two scenarios. 65. That said, while an opinion can certainly refer to a specific occurrence, it is common ground in the present case that the tweet at issue concerns a specific occurrence which is supposed to have taken place in a locality in France, and cannot be equated to the adoption of a more general position on topical issues or issues usually dealt with by the Parliament in debates or the various committees, (28) such as those which I mentioned in my preliminary remarks. (29) It should be borne in mind that, as I established above, the issue has no obvious, direct connection with the appellant’s parliamentary duties, as required by Article 8 of the Protocol. 66. Inasmuch as this complaint relies on an incorrect reading of the judgment under appeal, I propose that it be rejected. (3) Third complaint 67. The Law of 29 July 1881 invoked by the appellant, who regards the tweet at issue as an ‘opinion’, seems to me to be irrelevant in the present context, especially given that the extent of the immunity provided for in Article 8 of the Protocol must be established on the basis of EU law alone. As the Court has indicated in its case-law, unlike the parliamentary immunity provided by subparagraph (a) of the first paragraph of Article 9 of the Protocol, which depends on national law, the extent of the immunity provided by Article 8 of the Protocol must be established on the basis of EU law alone, for that article makes no reference to national laws. (30) 68. Consequently, I propose that this complaint also be rejected, inasmuch as it is based on a failure to take account of the autonomous nature of EU law. (c) Interim conclusion 69. In view of the foregoing considerations, the first ground of appeal must be rejected as manifestly unfounded. C. Second ground of appeal 1. Arguments of the parties 70. With regard to the manifest error of assessment allegedly made by the General Court in the analysis of the third plea in law in the action, the appellant raises three complaints. 71. The first is based on the fact that the General Court found ‘that it is not for the Parliament to say whether the facts alleged against the Member in question are established’, even though the Parliament examined those facts, ‘acknowledging in its decision that [the appellant] is not the author of the tweet’. 72. By her second complaint, the appellant claims that the General Court failed to draw the correct legal conclusions from certain items in the case file, in particular Article 42 of the Law of 29 July 1881, which, as it establishes a ‘hierarchy of liability’, allows the competent national authorities to bring proceedings against the appellant’s assistant, the author of the tweet, separately from her. 73. Finally, by her third complaint, the appellant claims that the General Court drew, from the order for reference to the tribunal correctionnel (Criminal Court) of which she was the subject, the ‘opposite legal conclusion to that called for by [that order]’, given that the appellant was not the author of the tweet at issue and removed it as soon as she became aware of it, which proves that she had no intention of committing an offence. In addition, the fact that the appellant was the only person to be referred to a tribunal correctionnel (Criminal Court), whereas the action against the author of the tweet at issue was time-barred, shows her ‘persecution by a magistrate’ and reveals an ‘intention to harm her politically, conduct which is characteristic of fumus persecutionis’. 74. The Parliament considers that the second ground of appeal is inadmissible. First of all, the appellant fails to specify in what respect the interpretation of Article 9 of the Protocol, adopted by the General Court, according to which it is not for the Parliament to determine whether the facts alleged against the Member in question are established, is incorrect and, consequently, what is the nature of the error made by the General Court. Nor does the appellant state, in a sufficiently precise manner, the legal arguments in support of her criticism, or the legal basis on which the General Court should have reached a different conclusion. The same applies to the criticism in respect of paragraph 100 of the judgment under appeal, in which the General Court found that the Parliament could not be criticised for not having identified any implications of the fact that the appellant was not the author of the tweet at issue and she had deleted it as soon as she had become aware of it. 75. Next, the Parliament argues that it is unable to discern the legal conclusions which, according to the appellant, the General Court should have drawn from Article 42 of the Law of 29 July 1881, in the absence of legal arguments in support of her criticism and an indication of the legal basis on which the General Court should have reached a different conclusion. 76. Finally, the Parliament argues that the appellant cannot criticise the assessment, made by the General Court, of the order referring the case against her to the tribunal correctionnel (Criminal Court), inasmuch as it is a piece of evidence. The assessment of the facts and the evidence does not constitute a point of law which is subject, as such, to review by the Court in the context of an appeal, except where the clear sense of those facts and that evidence has been distorted, which the appellant did not allege and which is not evident from the items in the case file. 2. Assessment (a) First complaint 77. With regard to the first complaint of the second ground of appeal, it should first of all be recalled that, according to the settled case-law of the Court, it follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal, failing which the appeal or ground of appeal concerned is inadmissible. (31) A complaint which merely comments on a paragraph of the judgment under appeal, without presenting a coherent legal argument specifically seeking to identify the error of law affecting that paragraph, does not satisfy that requirement and must consequently be rejected as manifestly inadmissible. (32) 78. That said, I note that the appellant does not indicate exactly what is the nature of the error of law made by the General Court. Nor does she state in a sufficiently detailed manner the legal arguments which support her criticism, and does not specify the legal basis on which the General Court should have reached a different conclusion. It would therefore be permissible to take the view that this complaint does not satisfy the abovementioned conditions of admissibility. 79. To be prudent, it is necessary, however, to examine the passages of the judgment under appeal to which the appellant refers in order to ascertain whether there are manifest defects in their reasoning, in particular in the legal assessment of the facts, which may constitute an error of law. 80. By way of a preliminary point, it should be noted that an analysis of paragraphs 60 to 62 of the judgment under appeal, to which the appellant apparently refers, does not support the conclusion that the General Court made an error in the assessment of the facts. On the contrary, the General Court merely recalls, correctly, that the question of whether the acts which the Member is alleged to have committed can be imputed to her falls within the jurisdiction of the authorities of the Member State which made the request for waiver of immunity. 81. What is more, it should be added that the General Court does not assert that the Parliament failed to respect the jurisdiction of those authorities. In fact, the Parliament refrains, in the decision at issue, from carrying out a definitive legal assessment of the facts in the light of French criminal law, and merely reproduces the criminal accusations by the French judicial authorities against the appellant. Moreover, inasmuch as the Parliament indicates that the image disclosed on Twitter was in reality a photomontage published by her assistant, and subsequently removed, the Parliament merely summarises the facts which gave rise to the request for waiver of immunity. The Parliament does not express an opinion on the liability of the appellant for the possible use of her Twitter account by her assistant. It follows that, contrary to what the appellant seems to suggest, the passages of the decision at issue in question merely amount to the Parliament’s familiarising itself with the facts. Furthermore, there is nothing in the judgment under appeal to suggest that the General Court misunderstood the meaning and the legal value of the Parliament’s observations. 82. As the General Court did not make any errors of assessment capable of distorting the clear sense of the facts, I therefore propose that this complaint be rejected. (b) Second complaint 83. With regard to the second complaint, I share the Parliament’s criticism of the lack of clarity of the argument put forward by the appellant, according to which the General Court should have ‘identified the legal implications of Article 42 of the Law of 29 July 1881’. In the light of the insufficiency of the argument, it seems to me that this complaint also fails to satisfy the conditions of admissibility of an appeal, as laid down by the case-law and referred to above. (33) 84. In the interests of completeness, I will nevertheless examine this complaint in the light of paragraphs 100 and 101 of the judgment under appeal which, according to the appellant, contain an error of assessment on the part of the General Court, even though she refrains from explaining the nature of that error and what its legal implications are. 85. I would note, by way of an introductory point, that Article 42 of the Law of 29 July 1881, cited by the appellant, determines the categories of persons liable for offences committed through the press. It must therefore be observed that the French provision in question is part of national criminal law. Even though it is not clearly identified what the appellant specifically expected of the General Court, it seems to me that she is demanding, in essence, that national law be applied to the present case. If that interpretation of the complaint is correct, the appellant would appear to have based her demand on the idea that the national provision in question may confer a benefit on her, allowing her to avoid criminal proceedings. However that idea is not substantiated by evidence or facts. What is more, I think it is doubtful whether that aspect could be relevant for the purposes of the present proceedings. 86. In that regard, it is important to emphasise that, as the General Court recalled in paragraph 62 of the judgment under appeal, it is not for the Parliament to express an opinion on the question of whether the acts which the Member in question is alleged to have committed can be imputed to her, as such jurisdiction belongs to the authorities of the Member State which made the request for waiver of immunity. Those authorities alone have the power to interpret and apply the criminal law of the Member State in question, exercising State sovereignty (‘ius puniendi’). (34) Those considerations apply a fortiori to the General Court, whose jurisdiction is limited to examining the action for annulment brought against the decision at issue. It follows that, contrary to the view taken by the appellant, the General Court did not have the power to apply Article 42 of the Law of 29 July 1881 to the present case. 87. Consequently, in the absence of an error of law, this complaint must also be rejected. (c) Third complaint 88. With regard to the third complaint, I agree with the position of the Parliament, according to which the mere allegation of a manifest error allegedly made by the General Court in the assessment of a piece of evidence – namely the order of 26 April 2018, by which the Vice-President of the tribunal de grande instance de Bobigny (Regional Court, Bobigny), in charge of the investigation, referred the case against the appellant to the tribunal correctionnel (Criminal Court) – does not satisfy the abovementioned criteria for the specification of a ground of appeal. It is not apparent, inter alia, what error was made or what are the ‘legal conclusions’ which the General Court should have drawn from the assessment of that evidence. 89. In the interests of completeness, I will nevertheless ascertain whether the General Court erred in law in paragraph 101 of the judgment under appeal, to which the appellant refers in her observations. 90. As I indicated in my preliminary remarks, the jurisdiction of the Court in appeal proceedings is limited to points of law, which implies, with regard to the judicial review of an assessment of the facts and the evidence, among other things, that the Court must ascertain whether the General Court applied the right criteria, whether it classified them correctly from a legal perspective and whether it drew conclusions with a sound legal basis from that. (35) 91. It seems to me that the appellant relies on the information contained in the abovementioned order of 26 April 2018 as evidence in order to substantiate the idea that she should not have been the subject of legal proceedings, given that it was her assistant who had published the tweet at issue. The appellant complains in her written pleadings of being ‘the only person referred to the tribunal correctionnel [(Criminal Court)], the action against her assistant having been time-barred’. Assuming that that interpretation of the appellant’s position is correct, she seems to criticise the General Court for having failed to draw the ‘legal conclusions’ from it, that is to say for having failed to annul the decision at issue on the ground that it was based on an allegedly incorrect premiss, namely the criminal liability of the appellant. 92. The response to that argument must be that, as I have already set out, the General Court does not have jurisdiction to rule on the question of whether the acts which the Member in question is alleged to have committed can be imputed to her, given that that question is exclusively a matter of national law. (36) Consequently, regardless of the outcome of the ongoing criminal proceedings, the purpose of which is precisely to clarify that question, as they can lead to the conviction or the acquittal of the appellant, the General Court could not have taken the place of the national judicial authorities by annulling the decision at issue because of a potential absence of criminal liability. The General Court was therefore correct to refrain from ruling on the appellant’s criminal liability, merely referring to the order in question, from which it is apparent that the investigating magistrate had sufficient evidence to justify referring the case against the appellant to the tribunal correctionnel (Criminal Court). 93. Inasmuch as the appellant’s argument is manifestly based on a failure to take account of the division of jurisdiction between the national judicial authorities and the Courts of the European Union, it must be rejected. 94. The appellant also seems to criticise the reasoning of the General Court, in paragraph 101 of the judgment, in relation to the alleged absence of fumus persecutionis. According to the appellant, the order in question ‘shows the persecution by a magistrate of an elected representative whom it is desired at all costs to drag before a tribunal correctionnel [(Criminal Court)]’ with ‘the intention to harm her politically’. It can thus be inferred that the appellant criticises the General Court for having failed to correctly assess the circumstances of the present case and for having failed, consequently, to annul the decision at issue. 95. In that regard, I note at the outset that it is clear from the decision at issue that the Parliament had concluded, on the basis of an assessment of the facts, that there was no suspicion of fumus persecutionis. The report on the request for waiver of immunity prepared by the Parliament’s Committee on Legal Affairs explicitly states that ‘there is no … evident attempt to obstruct the parliamentary work of [the appellant] behind the judicial inquiry which was opened following a complaint alleging defamation of a public administration, lodged by the [CAF]’. Consequently, the General Court had no objective reason to call into question the veracity or the validity of that assessment. On the contrary, that assessment was rather confirmed for the General Court by the information contained in the order of 26 April 2018 indicating that there was sufficient evidence to justify referring the case against the appellant to the tribunal correctionnel (Criminal Court). The appellant was therefore wrong to consider that the General Court erred in law in refusing to acknowledge that there was a risk that the proceedings were brought purely in order to harm her. 96. For the sake of completeness, it should be emphasised that the General Court carried out a meticulous analysis in paragraphs 83 to 101 of the judgment under appeal, of the arguments invoked by the appellant in support of the existence of fumus persecutionis, at the end of which it rejected those arguments in their entirety. In the light of the fact that the assessment of the facts falls within the exclusive jurisdiction of the General Court and that the appellant did not present any coherent and sufficiently well-founded arguments capable of calling into question the conformity of the reasoning of the General Court with the procedural principles governing the assessment of the facts and the evidence in an action for annulment, the General Court’s conclusions as to the absence of indications of fumus persecutionis in the present case must be upheld. 97. It follows that, in the absence of any errors of assessment of the order of 26 April 2018 as a piece of evidence, the argument invoked by the appellant must be regarded as unfounded. 98. It follows from all of the foregoing that this complaint must be rejected. (d) Interim conclusion 99. Following this analysis, I consider that the second ground of appeal cannot succeed. I propose that it be rejected as manifestly inadmissible or, in any event, as manifestly unfounded. VII. Conclusion 100. In the light of the foregoing considerations, I propose that the Court: – dismiss the appeal; and – order the appellant to pay the costs. 1 Original language: French. 2 OJ 2016 C 202, p. 266. 3 Judgment of 6 September 2011, Patriciello (C‑163/10, ‘the Patriciello judgment’, EU:C:2011:543). 4 Judgment of 17 January 2013, Gollnisch v Parliament (T‑346/11 and T‑347/11, EU:T:2013:23, paragraph 107). 5 Paragraphs 88 and 99 of the judgment under appeal. 6 Paragraph 96 of the judgment under appeal. 7 Judgment of 21 October 2008, Marra (C‑200/07 and C‑201/07, EU:C:2008:579). 8 Judgment of 21 October 2008, Marra (C‑200/07 and C‑201/07, EU:C:2008:579, paragraph 24). 9 Judgment of 19 December 2019 (C‑502/19, EU:C:2019:1115, paragraphs 82 to 84). 10 Orders of 16 September 2010, Dominio de la Vega v OHIM (C‑459/09 P, not published, EU:C:2010:533, paragraph 44), and of 21 March 2019, Gollnisch v Parliament (C‑330/18 P, not published, EU:C:2019:240, paragraph 109). 11 Order of 21 March 2019, Gollnisch v Parliament (C‑330/18 P, not published, EU:C:2019:240, paragraph 110). 12 Opinion of Advocate General Jääskinen in Belgium v Deutsche Post and DHL International (C‑148/09 P, EU:C:2010:726, point 76). 13 ECtHR, 8 October 2009, CE:ECHR:2009:1008JUD001266206. 14 Italics are my own. 15 See point 38 of this Opinion. 16 Patriciello, paragraph 35. Italics are my own. 17 See, to that effect, Mehta, R., ‘Sir Thomas’s blushes: protecting parliamentary immunity in modern parliamentary democracies’, European Human Rights Law Review, 2012, No 3, p. 309. The author indicates that it is not easy to precisely define the duties of a Member given that their role changes over time and adapts to different circumstances arising in practice. According to the author, the reluctance to accept that a Member should express an opinion on local matters is understandable, given that the European Union is ultimately a ‘creature of limited powers’. On the other hand, to accept only activities linked to supranational issues would constitute too restrictive an approach, in particular where local and regional dimensions are relevant to EU policies, for example in the fields of agricultural aid, regional development and the rules of migration law. 18 Patriciello, paragraph 34. 19 Patriciello, paragraphs 37 and 38. 20 Patriciello, paragraph 36. Italics are my own. 21 See point 36 of this Opinion. 22 Patriciello, paragraph 32. 23 See point 36 of this Opinion. 24 As the Court indicates in the judgment of 21 October 2008, Marra (C‑200/07 and C‑201/07, EU:C:2008:579, paragraphs 32 to 42), the assessment of the conditions for applying the immunity of a Member of the European Parliament is within the exclusive jurisdiction of the national courts. If, in applying Article 8 of the Protocol, those courts have doubts concerning the interpretation of that article, they may refer a question to the Court under Article 267 TFEU on the interpretation of that article of the Protocol, courts of final instance being, in such circumstances, obliged to make such a reference to the Court. However, the Court emphasised that the Parliament and the national judicial authorities have a duty to cooperate sincerely in order to avoid any conflict in the interpretation and application of the provisions of the Protocol, which in practice means that where an action has been brought against a Member of the European Parliament before a national court and that court is informed that a procedure for defence of the privileges and immunities of that Member has been initiated, that court must stay the judicial proceedings and request the Parliament to issue its opinion as soon as possible. 25 As Advocate General Jääskinen indicates in his Opinion in Patriciello (C‑163/10, EU:C:2011:379, points 80 to 87), to establish a clear distinction between ‘value judgements’ and ‘statements of fact’ in the area of the law is, from a conceptual point of view, difficult, if not impossible. He raises, in addition, the fact that the European Court of Human Rights does not apply a simple dichotomy between the two concepts, that is to say, it distinguishes not between a ‘pure opinion’ and a ‘factual statement’, but between ‘pure factual statements’ and ‘mixed statements’, expressing both fact and opinion. The Advocate General supports the view that a Member of the Parliament must be able to express the concerns and defend the interests of his constituents. For that reason, he must, while being protected by substantive immunity, be free to make statements of fact that have not been established or that may be incorrect. More often than not, they will be ‘mixed expressions’ within the meaning of the case-law of the European Court of Human Rights. A Member of the Parliament must therefore be given the ‘benefit of the doubt’. 26 See orders of 13 September 2012, Total and Elf Aquitaine v Commission (C‑495/11 P, not published, EU:C:2012:571, paragraph 21); of 19 June 2019, Linak v EUIPO (C‑820/18 P, not published, EU:C:2019:514, paragraphs 15 and 18); and of 2 July 2019, Seven v Shenzhen Jiayz Photo Industrial (C‑31/19 P, not published, EU:C:2019:554, paragraphs 9 and 13). 27 See point 57 of this Opinion. 28 See, to that effect, the Opinion of Advocate General Jääskinen in Patriciello (C‑163/10, EU:C:2011:379, point 97), in which he proposes to classify as at the heart of immunity activities constituting the exercise par excellence of the duties of a Member of the Parliament. These would cover, inter alia, opinions expressed and votes cast in the forum of the Parliament, in the Parliament’s committees, delegations and political organs and also in the political groups. He suggests including activities such as participation in conferences, missions and other political meetings outside the Parliament, as a Member of the Parliament. 29 See point 36 of this Opinion. 30 Judgments of 21 October 2008, Marra (C‑200/07 and C‑201/07, EU:C:2008:579, paragraph 26), and in Patriciello, paragraph 25. 31 Judgments of 28 February 2018, mobile.de v EUIPO (C‑418/16 P, EU:C:2018:128, paragraph 35); of 20 September 2016, Mallis and Others v Commission and ECB (C‑105/15 P to C‑109/15 P, EU:C:2016:702, paragraphs 33 and 34); of 24 March 2011, ISD Polska and Others v Commission (C‑369/09 P, EU:C:2011:175); and of 22 November 2007, Cofradía de pescadores ‘San Pedro’ de Bermeo and Others v Council (C‑6/06 P, not published, EU:C:2007:702, paragraph 34). 32 Order of 21 March 2012, Fidelio v OHIM (C‑87/11 P, not published, EU:C:2012:154, paragraph 62). 33 See point 77 of this Opinion. 34 See, to that effect, the Opinion of Advocate General Ruiz-Jarabo Colomer in Van Straaten (C‑150/05, EU:C:2006:381, point 63), who maintains that all judicial decisions, whether convictions or acquittals, involve the court’s ‘expressing the ius puniendi’. 35 See, to that effect, Wathelet, M., Contentieux européen, 2nd edition, Brussels, 2014, p. 479. 36 See point 86 of this Opinion.