Opinion of the Advocate General — ECLI:EU:C:2006:140
Date: 2006-02-23
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Provisions governing the Institutions
Procedure: Responsibility of a member of the institutions - successful;Responsibility of a member of the institutions - unfounded
Origin: France

Summary of the Judgment 1. Commission – Obligations of Members – Article 213(2) EC (Art. 213(2) EC) 2. Commission – Obligations of Members – Infringement – Penalties (Art. 213(2) EC) 3. Commission – Obligations of Members – Infringement – Procedure (Art. 213(2) EC) 4. Commission – Obligations of Members – Infringement – Procedure (Art. 213(2) EC) 5. Commission – Obligations of Members – Infringement – Procedure (Art. 213(2) EC) 6. Commission – Obligations of Members – Infringement – Procedure (Art. 213(2) EC) 7. Commission – Obligations of Members – Infringement – Facts investigated in the course of criminal proceedings (Art. 213(2) EC) 1. The third subparagraph of Article 213(2) EC, which prohibits Members of the Commission from engaging in any other occupation during their term of office and requires them to respect the obligations arising from their office as a Member of the Commission, mentions certain duties which are specified only by way of example. Accordingly, since there is nothing in that provision which restricts the concept of ‘obligations arising from [a Commissioner’s office]’, that expression falls to be broadly construed. Having regard to the importance of the responsibilities assigned to them, it is important that the Members of the Commission observe the highest standards of conduct. That concept therefore falls to be understood as extending, not only to the obligations of integrity and discretion expressly referred to in the third subparagraph of Article 213(2) EC, but also to all of the duties which arise from the office of Member of the Commission, which include the obligation laid down in the first subparagraph of that article to be completely independent and to act in the general interest of the Community. It is therefore the duty of Members of the Commission to ensure that the general interest of the Community takes precedence at all times, not only over national interests, but also over personal interests. While the Members of the Commission are thus under an obligation to conduct themselves in a manner which is beyond reproach, it does not, however, follow that the slightest deviation from those standards falls to be censured under Article 213(2) EC. A breach of a certain degree of gravity is required. (see paras 68-72) 2. The third subparagraph of Article 213(2) EC permits the Court to impose a penalty where there is a breach of the obligations arising from the office of Member of the Commission, in the form of compulsory retirement or the deprivation of his right to a pension or other benefits in its stead. While the penalty of compulsory retirement will apply only where a breach has arisen, and continues, during the term of office of the Member of the Commission in question, he may be deprived of the right to a pension or other benefits in its stead whether the breach occurs during or after his term of office. As there is no provision as to the extent of the deprivation of the right to a pension or other benefits in its stead, it is open to the Court to order deprivation in whole or in part thereof, depending on the degree of gravity of the breach. Accordingly, the fact that a term of office of a Member of the Commission has expired and that he can no longer be the subject of compulsory retirement cannot prevent the Member of Commission being punished in respect of a breach which occurred during his term of office, but is discovered or established once this has expired. It follows that Article 213(2) EC constitutes a correct legal basis for bringing proceedings before the Court seeking a declaration that a Member of the Commission has acted in breach of his obligations under that provision and an order that he be deprived in whole or part of his right to a pension or other benefits in its stead. (see paras 73-75) 3. Notwithstanding the fact that Article 213(2) EC does not specify any time-limit for the initiation of the proceedings which it provides for, the periods available to the Commission in that context are not unlimited. In the absence of any provisions in that regard, that institution must not indefinitely delay the exercise of its powers, in order to comply with the fundamental requirement of legal certainty and in order not make it more difficult for defendants to refute its arguments, and not to infringe the rights of the defence. (see para. 90) 4. Notwithstanding the lack of detailed rules governing the proceedings referred to in Article 213(2) EC, the right to be heard must be complied with, since observance of that right is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the procedure in question. In that regard, respect for the principle of the right to be heard requires that the person against whom an administrative procedure has been initiated must be afforded the opportunity, during that procedure, to make known his views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of Community law. Consequently, if the institution sends the Member concerned a statement of complaints setting out all of the facts complained of and a legal analysis of those facts, gives him access to his file, invites him to submit his observations within a period of at least two months and allows him to be heard, that institution will follow a procedure with complies with the rights of the defence. (see paras 103-104, 110) 5. Article 2(1) of Protocol No 7 to the European Convention for Human Rights, which provides that everyone convicted of a criminal offence by a court or tribunal has the right to have his conviction or sentence reviewed by a higher court or tribunal, enshrines a right which, according to Article 2(2) of that Protocol may be subject to exceptions in cases, inter alia, where the person concerned was tried in the first instance by the highest court or tribunal. It follows that, even if it be accepted that that provision applies to proceedings based on Article 213(2) EC, the fact that no appeal may be brought against the Court’s decision does not constitute in any way a deficiency which contravenes the rights of Members of the Commission to effective judicial protection and accordingly does not invalidate the proceedings before the Court. (see paras 112-113) 6. Disciplinary proceedings involving an official or servant of the Communities and proceedings involving a Member of the Commission are not subject to the same rules. The former are governed by the Staff Regulations of Officials of the European Communities and the latter by a discrete procedure under Article 213(2) EC. Accordingly, solutions applied in the former cannot necessarily be transposed to the latter. (see para. 118) 7. In so far as findings made in the course of criminal proceedings relate to facts which are the same as those investigated in the context of the procedure referred to in Article 213(2) EC, and those findings are put to the Court in the documents which are before it, they may be taken into account by it in its examination of the conduct of which the person concerned is accused. However, the Court is not bound by the legal characterisation of the facts made in the context of the criminal proceedings and it is for the Court, exercising its discretion to the full, to investigate whether the conduct complained of in proceedings brought under Article 213(2) EC constitutes a breach of the obligations arising from the office of Member of the Commission. (see paras 120-121)