62018CJ0542_RES
Joined Cases C‑542/18 RX-II and C‑543/18 RX-II
Erik Simpson
v
Council of the European Union
and
HG
v
European Commission
Judgment of the Court (Grand Chamber), 26 March 2020
(Review of the judgments of the General Court of the European Union in Simpson v Council (T‑646/16 P) and HG v Commission (T‑693/16 P) — Civil service — Composition of the panel of judges which delivered the judgments at first instance — Procedure for the appointment of a judge to the European Union Civil Service Tribunal — Article 47 of the Charter of Fundamental Rights of the European Union — Tribunal established by law — Incidental review of legality — Effect on the unity and consistency of EU law)
EU law — Principles — Fundamental rights — Compliance ensured by the EU judicature — Principle of the lawful judge — Irregularity in the procedure for appointment of a judge to the Civil Service Tribunal — Examination by the EU judicature of its own motion
(Charter of Fundamental Rights of the European Union, Art. 47)
(see paragraphs 55-58)
Civil Service Tribunal — Procedure for appointment of a judge to that tribunal — Council’s discretion — Limits — Compliance with the conditions laid down by the public call for applications and the procedural rules adopted for the exercise of the discretion
(Art. 257, fourth para., TFEU; Statute of the Court of Justice, Annex I, Art. 3)
(see paragraphs 61, 68)
EU law — Principles — Right to effective judicial protection — Principle of judicial independence — Scope
(Charter of Fundamental Rights of the European Union, Art. 47, second para.)
(see paragraphs 71, 73, 74, 80)
Fundamental rights — Right to effective judicial protection — Enshrinement in the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention on Human Rights — Identical meaning and scope — Level of protection safeguarded by the Charter not falling below that guaranteed by that convention
(Charter of Fundamental Rights of the European Union, Arts 47, second para., 52(3) and 53)
(see paragraph 72)
EU law — Principles — Fundamental rights — Compliance ensured by the EU judicature — Principle of the lawful judge — Irregularity in the procedure for appointment of a judge to the Civil Service Tribunal — Breach of that principle — None
(Charter of Fundamental Rights of the European Union, Art. 47, second para.)
(see paragraphs 75, 77-79, 81-83)
Review — Finding that the unity or consistency of EU law are affected — Criteria for assessment — Implications — Judgment set aside and case referred back to the appeal court
(Statute of the Court of Justice, Art. 62b, first para.)
(see paragraphs 84-87, 89, 90)
Résumé
In its judgment of 26 March 2020 in Review Simpson v Council and HG v Commission (Joined Cases C‑542/18 RX II and C‑543/18 RX II), the Court of Justice, sitting as the Grand Chamber, carried out a review (
1
) of the judgments of the General Court of the European Union of 19 July 2018, Simpson v Council (T‑646/16 P) and HG v Commission (T‑693/16 P) (
2
) (‘the judgments under review’). It ruled that the General Court, in so far as it considered that the irregularity affecting the procedure for the appointment of a judge of the Civil Service Tribunal resulted in a breach of the principle of the lawful judge, (
3
) affected the unity and consistency of EU law. While recognising that there was an irregularity in the appointment procedure at issue, the Court of Justice considered that that irregularity could not by itself justify the setting aside of the decisions adopted by the panel of judges of the Civil Service Tribunal to which the judge concerned had been assigned. The judgments under review were set aside and the cases referred back to the General Court.
In the present case, in anticipation of the expiry of the terms of office of two Judges of the Civil Service Tribunal, Mr Van Raepenbusch and Mr Kreppel, a public call for applications had been launched on 3 December 2013. Following that call, the selection committee (
4
) had drawn up a list of six candidates. No public call for applications had been published in anticipation of the expiry of the term of office of a third judge of the Civil Service Tribunal, Ms Rofes i Pujol.
On 22 March 2016, the Council of the European Union appointed three judges to the Civil Service Tribunal: Mr Van Raepenbusch, Mr Sant’Anna and Mr Kornezov. For the purpose of appointing judges to those three posts, the Council used the list of candidates drawn up following the public call for applications of 3 December 2013, including for the vacant post previously occupied by Ms Rofes i Pujol (‘the third post’), even though the public call for applications did not refer to that post. Mr Sant’Anna and Mr Kornezov were attached to the Second Chamber of the Civil Service Tribunal for the period from 14 April to 31 August 2016.
After appeals were brought before the General Court, two decisions of the Second Chamber of the Civil Service Tribunal (
5
) (‘the contested decisions’) were set aside by the judgments under review, on the ground that the Chamber had been improperly constituted. By decisions of 17 September 2018, (
6
) the Reviewing Chamber of the Court of Justice held that the judgments should be reviewed in order to determine whether they affect the unity or consistency of EU law.
In the first place, the Court stated that the plea alleging the irregularity of the composition of the panel of judges that had delivered the contested decisions had to be verified of the court’s own motion. The guarantees of access to an independent and impartial tribunal previously established by law, and in particular those which determine what constitutes a tribunal and how it is composed, represent the cornerstone of the right to a fair trial. That right means that every court is obliged to check whether, as composed, it constitutes such a tribunal where a serious doubt arises on that point. Such a doubt did indeed exist in the present case since the composition of the panel of judges had been found to be irregular in an earlier judgment of the General Court. (
7
) It follows that the General Court did not err in examining of its own motion the regularity of that composition in the judgments under review.
In the second place, the Court ruled that the irregularity in the appointment procedure resulted exclusively from the Council’s disregard for the public call for applications of 3 December 2013. In that regard, the Court confirmed that the Council had disregarded the legal framework which it had itself laid down when it published that public call for applications and with which it was obliged to comply. However, the use of the list of candidates for the purpose of making the appointment to the third post appears otherwise to have accorded with the rules governing the procedure for the appointment of judges to the Civil Service Tribunal. In particular, the list in question did contain the names of twice as many candidates as the number of judges who were appointed on the basis of that list. In addition, there is nothing to cast doubt on compliance with the requirement that judges of the Civil Service Tribunal must be chosen from persons whose independence is beyond doubt and who possess the ability required for appointment to judicial office, or with the requirement that the list had to indicate the candidates having the most suitable high-level experience. Moreover, the irregularity at issue did not permit the inference that the appointment of the judge to the third post had resulted in an unbalanced composition of the Civil Service Tribunal in terms of geographical distribution or representation of national legal systems.
In the third place, the Court held that that irregularity does not constitute a breach of the principle of the lawful judge laid down in the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union. An irregularity committed during the appointment of judges within the judicial system concerned entails a breach of that principle, particularly when that irregularity is of such a kind and of such gravity as to create a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the appointment process and thus give rise to a reasonable doubt in the minds of individuals as to the independence and the impartiality of the judge or judges concerned.
The appointment of a judge to the third post complied with the fundamental rules for the appointment of judges to the Civil Service Tribunal. In that context, the mere fact that the Council used the list drawn up following the public call for applications of 3 December 2013 to fill the third post is not sufficient to establish an infringement of a fundamental rule of the procedure for appointing judges to the Civil Service Tribunal that is of such a kind and of such gravity as to create a real risk that the Council made unjustified use of its powers, undermining the integrity of the outcome of the appointment process and thus giving rise to a reasonable doubt as to the independence and the impartiality of the judge appointed to the third post, or of the Chamber to which he was assigned. Consequently, the General Court erred in law by setting aside the contested decisions solely on the basis of the irregularity in the appointment procedure at issue.
In the fourth and final place, the Court held that the error of law vitiating the judgments under review affect the unity and consistency of EU law. Those judgments could constitute precedents which could have repercussions for other cases in which the appointment of a member of a panel of judges and, more generally, the right to an independent and impartial tribunal previously established by law is put in issue. That right is fundamental and cuts across all subject areas in the EU legal order, the interpretation and the consistency of which must be ensured by the Court of Justice.
(
1
)	Decisions handed down by the General Court of the European Union on appeal against decisions of the Civil Service Tribunal may, following a proposal by the First Advocate General, exceptionally be subject to review by the Court of Justice where there is a serious risk of the unity or consistency of EU law being affected. The review procedure is provided for in Article 256(2) TFEU and in Article 62 et seq. of the Statute of the Court of Justice of the European Union.
(
2
)	Judgments of the General Court of 19 July 2018, Simpson v Council (T‑646/16 P, not published, EU:T:2018:493) and HG v Commission (T‑693/16 P, not published, EU:T:2018:492).
(
3
)	The principle of the lawful judge is enshrined in the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union. That article provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.
(
4
)	The selection committee is the committee referred to in Article 3(3) of Annex I to the Statute of the Court of Justice of the European Union. It was asked to give its opinion on candidates’ suitability to perform the duties of judge at the Civil Service Tribunal and to append to that opinion a list of candidates having the most suitable experience.
(
5
)	Order of the Civil Service Tribunal of 24 June 2016, Simpson v Council (F‑142/11 RENV, EU:F:2016:136) and judgment of the Civil Service Tribunal of 19 July 2016, HG v Commission (F‑149/15, EU:F:2016:155).
(
6
)	Decisions of the Court of 17 September 2018, Review Simpson v Council (C‑542/18 RX, EU:C:2018:763) and Review HG v Commission (C‑543/18 RX, EU:C:2018:764).
(
7
)	Judgment of the General Court of 23 January 2018, FV v Council (T‑639/16 P, EU:T:2018:22).