Opinion of the Advocate General — ECLI:EU:C:2008:498
Date: 2008-09-11
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Provisions governing the Institutions
Procedure: Action for annulment;Appeal - unfounded
Origin: France

Summary of the Judgment 1. Procedure – Decision given by reasoned order – Challenge – Conditions (Rules of Procedure of the Court of First Instance, Art. 111) 2. Community law – Principles – Fundamental rights – Observance ensured by the Court – Taking into consideration the European Convention on Human Rights – Right of every person to a fair hearing (Art. 6(2), EU) 3. Actions for annulment – Judgment annulling a measure – Effects – Partial annulment (Art. 231, first para., EC) 1. The application of the procedure provided for in Article 111 of the Rules of Procedure of the Court of First Instance does not in itself prejudice the right to a proper and effective judicial process, since that provision is applicable only where it is clear that the Court of First Instance has no jurisdiction over the action, or where the action is manifestly inadmissible or manifestly lacking any foundation in law. Accordingly, if an applicant takes the view that the Court of First Instance has incorrectly applied Article 111, he must challenge the assessment by the Court of First Instance of the conditions to which the application of that provision is subject. Where an appellant merely criticises the fact that the Court of First Instance had recourse to a reasoned order without referring to the conditions governing the applicability of Article 111 or questioning the Court’s interpretation of that article in the order under appeal, his ground of appeal must be dismissed as unfounded. (see paras 36-38) 2. The right to a fair trial, which derives inter alia from Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, constitutes a fundamental right which the European Union respects as a general principle under Article 6(2) EU. Such a right necessarily implies access for every person to an independent and impartial tribunal. Thus, the existence of guarantees concerning the composition of the tribunal are the corner stone of the right to a fair trial, compliance with which must in particular be verified by the Community judicature if an infringement of that right is complained of and the challenge on that point does not appear from the outset manifestly devoid of merit. However, the fact that the judges who heard and determined a case initially may sit in another formation hearing and determining the same case again is not in itself incompatible with the requirements of a fair trial. In particular, the fact that one or more of the judges were present in two successive formations and exercised the same functions, such as president or judge-rapporteur, is in itself irrelevant to the assessment of compliance with the requirement of impartiality, since those duties are performed in a collegiate formation of the court. Such considerations are even more relevant where the two successive formations do not have to hear and determine the same case, but two separate cases which are related to some extent. Furthermore, there are two aspects to the requirement of impartiality. In the first place, the tribunal must be subjectively impartial, that is, none of its members must show bias or personal prejudice, there being a presumption of personal impartiality in the absence of evidence to the contrary. In the second place, the tribunal must be objectively impartial, that is to say, it must offer guarantees sufficient to exclude any legitimate doubt in this respect. (see paras 41-46) 3. The partial annulment of an act does not prevent the procedure for replacing an annulled measure from being resumed at the very point at which the illegality occurred without necessarily affecting preparatory acts. Furthermore, an act benefits from the res judicata attached to an earlier act in so far as it is a mere repetition of the part of that act which was not annulled. (see paras 56, 58)