OPINION OF ADVOCATE GENERAL
HOGAN
delivered on 17 December 2020(1)
Case C‑130/19
European Court of Auditors
v
Karel Pinxten
(Article 286(6) TFEU – Breach of the obligations arising from the office of a former member of the Court of Auditors of the European Union – Deprivation of the right to a pension or other benefits in its stead)
I.      Introduction
1.        What are the legal rules and ethical standards which govern the behaviour of a Member of the European Court of Auditors (ECA) and what are the relevant sanctions in the event that these standards have been breached? These are the fundamental issues which are raised by this application which has now been brought to this Court by the ECA.
2.        Indeed, by its application, the ECA requests the Court to find that Mr Pinxten has not fulfilled the obligations arising from his office as a Member of the ECA. The ECA maintains that Mr Pinxten acted in violation of his obligations under Articles 285 and 286 TFEU. It therefore asks the Court to impose an appropriate sanction as provided for in Article 286(6) TFEU.
3.        This case is the first involving a (former) Member of the ECA which has been brought by reference to Article 286(6) TFEU. This latter provision provides that ‘a Member of the Court of Auditors may be deprived of his office or of his right to a pension or other benefits in its stead only if the Court of Justice, at the request of the Court of Auditors, finds that he no longer fulfils the requisite conditions or meets the obligations arising from his office’. More generally, it may be observed that the Court has so far only given one judgment on the basis of a similar provision of the Treaty applicable to the Commissioners, namely, the judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455).
4.        The present case, therefore, gives the Court a new opportunity, on the one hand, to clarify certain procedural specificities relating to this form of proceedings and, on the other hand, to indicate the standards of behaviour required of persons holding high office within the institutions of the European Union. At a time when the legitimacy of the European Union, its institutions and the people who serve them is, at the very least, being called into question, the Court’s decision on this matter will doubtless be regarded as one of considerable importance.
II.    Legal context
A.      The Treaty on the Functioning of the European Union
5.        The ECA is one of the seven institutions of the European Union. As such, three articles of the Treaty on the Functioning of the European Union are devoted to it, namely Articles 285, 286 and 287.
6.        First, the second paragraph of Article 285 TFEU provides that Members of the ECA ‘shall be completely independent in the performance of their duties, in the Union’s general interest’. Second, Article 286(3) TFEU states that, ‘in the performance of [their] duties, the Members of the Court of Auditors shall neither seek nor take instructions from any government or from any other body [and that they] shall refrain from any action incompatible with their duties’. Article 286(4) TFEU adds that ‘the Members of the Court of Auditors may not, during their term of office, engage in any other occupation, whether gainful or not. When entering upon their duties they shall give a solemn undertaking that, both during and after their term of office, they will respect the obligations arising therefrom and in particular their duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain appointments or benefits’.
B.      Regulation No 2290/77 determining the emoluments of the Members of the Court of Auditors
7.        Article 7 of Council Regulation (EEC, Euratom, ECSC) No 2290/77 of 18 October 1977 determining the emoluments of the Members of the Court of Auditors, (2) as amended by Council Regulation (EC, Euratom) No 1293/2004 of 30 April 2004, (3) stated:
‘A Member of the Court of Auditors required in the course of his duties to travel away from the place of provisional location of the Court shall be entitled to:
(a)      reimbursement of travelling expenses;
(b)      reimbursement of hotel expenses (room, service and taxes only);
(c)      a subsistence allowance equal, for each complete day of absence, to 105% of the daily subsistence allowance as laid down in the Staff Regulations for officials of the European Communities on mission.’
C.      Regulation No 883/2013 concerning investigations conducted by the European Anti-Fraud Office
8.        Article 4(1) and (2) of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (4) provides:
‘1.      In the areas referred to in Article 1, the Office shall carry out administrative investigations within the institutions, bodies, offices and agencies (“internal investigations”).
Those internal investigations shall be conducted in accordance with the conditions set out in this Regulation and in the decisions adopted by the respective institution, body, office or agency.
2.      Provided that the provisions referred to in paragraph 1 are complied with:
(a)      the Office shall have the right of immediate and unannounced access to any relevant information, including information in databases, held by the institutions, bodies, offices and agencies, and to their premises. The Office shall be empowered to inspect the accounts of the institutions, bodies, offices and agencies. The Office may take a copy of, and obtain extracts from, any document or the contents of any data medium held by the institutions, bodies, offices and agencies and, if necessary, assume custody of such documents or data to ensure that there is no danger of their disappearance;
…’
D.      Ethical Guidelines for the ECA
9.        By its Decision No 66‑2011 of the Court of Auditors of the European Union establishing the Ethical Guidelines for the European Cour of Auditors of 26 October 2011, the ECA decided that the Ethical Guidelines joined to the decision were applicable to the ECA.
10.      Those Ethical Guidelines provide, in particular:
‘…
2.2.      We shall manage the Court’s resources in a legal, regular and sound financial manner. The Court should act as a role model in financial management: its resources must be managed in full compliance with the Financial Regulation and with any other applicable rule; its objectives must be achieved in an economic, efficient and effective manner.
…
3.2.      We shall carry out our tasks without any political, national or other external influence.
3.3.      We shall avoid any conflict of interest, whether real or apparent. This might be the case, for example, in connection with membership of political organisations, political office, membership of boards and financial interest in audited entities. We shall be particularly attentive to such matters and how they might be perceived by third parties.
…’
III. The facts giving rise to the dispute
11.      Mr Pinxten was a Member of the ECA from 1 March 2006 to 30 April 2018 when his mandate expired. He was assigned to Chamber III of that institution, responsible for auditing the European Union’s expenditure on external relations, enlargement and humanitarian aid. From 4 April 2011 until 30 April 2018, Mr Pinxten held the office of Dean of Chamber III.
12.      During his term of office, Mr Pinxten was provided with a company car and a fuel card whereby the ECA could be invoiced in respect of the fuel used for his company car. He was also provided with two additional fuel cards enabling him to purchase fuel exempt from value added tax (VAT) and excise duty.
13.      Between 2006 and 2014, the ECA provided Mr Pinxten with a driver. From April 2014, Mr Pinxten could request the use of a driver assigned to the ‘pool of drivers’ under the responsibility of the Director of Finance of the ECA. Up until 6 October 2016, Mr Pinxten was responsible for signing a mission order for the driver responsible for driving him in order to ensure that the driver was reimbursed for his mission expenses and was paid daily allowances. That power was subsequently exercised by the Secretary-General of the ECA.
14.      During his term of office, Mr Pinxten was reimbursed for representation and entertainment expenses, various expenses incurred during missions authorised, at his request, by the President of the ECA as well as the payment of daily allowances in respect of those missions.
IV.    Investigations and procedures
A.      Preliminary measures adopted by the ECA
15.      In 2016, the ECA received information in which it was alleged that several serious irregularities relating to various missions of Mr Pinxten had taken place.
16.      On 18 July 2016, the Secretary-General of the ECA orally informed Mr Pinxten of the accusation made against him. The services of the ECA also carried out an analysis of Mr Pinxten and his drivers’ missions with a view to identifying possible irregularities. After various exchanges between these services and Mr Pinxten, the latter, in a note dated 30 September 2016, contested any obligation to reimburse expenses relating to his missions or those of his drivers. Subsequently, exchanges between the administration of the ECA and Mr Pinxten continued.
17.      Furthermore, on 26 July 2016, the ECA was informed that, following an incident between his official car and his own private vehicle in 2011, Mr Pinxten could have committed insurance fraud.
18.      On 1 September 2016, the President of the ECA reported these allegations orally to Mr Pinxten. In a note of the same day, Mr. Pinxten maintained that the accident in question was the result of a collision between his official car, driven by his driver, and his private car, driven by his son.
B.      The inquiry conducted by the European Anti-Fraud Office
19.      On 14 October 2016, the Secretary-General of the ECA, acting on instructions from the President of that institution, forwarded a file to OLAF relating to the activities of Mr Pinxten which had led to possible undue expenditure from the budget of the Union.
20.      After an initial meeting held on 31 January 2017, the Director-General of OLAF formally notified the President of the ECA on 31 March 2017 of the opening of an investigation on possible irregularities affecting the financial interests of the Union involving Mr Pinxten, in his use of ECA assets and in the missions which he carried out or authorised, in breach of the applicable rules.
21.      On 22 September 2017, Mr Pinxten was informed by OLAF of the opening of this investigation and of his status as a ‘person concerned’ as part of this.
22.      On 20 November 2017, OLAF carried out an inspection of Mr Pinxten’s office and collected various documents. After a preliminary analysis of these elements, OLAF informed Mr Pinxten on 15 December 2017 that the scope of the investigation had been extended to, inter alia, possible abuses of rights and privileges attached to his position as a Member of the ECA, possible conflicts of interest or other breaches under Articles 285 and 286 TFEU, as well as breaches of the ECA’s Code of Conduct for the Members of the Court (‘the Code of Conduct for ECA Members’).
23.      Mr Pinxten was heard orally by the OLAF investigators on 22 December 2017. On 15 May 2018, Mr Pinxten submitted written observations to OLAF following that office’s submission, on 6 April 2018, of a summary of the facts established at the end of the investigation.
24.      On 2 July 2018, the ECA received OLAF’s final report following the completion of its investigation. That report concluded that Mr Pinxten had misused the resources of the ECA in the context of activities unrelated to his duties, misused fuel cards, and misused the motor insurance contract for his official car. The report additionally concluded that he had unjustified absences, that he failed to declare certain external activities, that he transmitted confidential information in an unauthorised fashion, and that the existence of conflicts of interest had been established.
25.      That report notes, in particular, that 332 missions which have been approved or validated by Mr Pinxten were unconnected to the performance of his duties and that he used ECA funds to cover representation expenses linked to private events which were not in the interests of the institution.
26.      In the light of the elements found in that report, OLAF recommended that the ECA initiate disciplinary proceedings against Mr Pinxten. It further recommended that the ECA take appropriate measures to ensure the recovery of EUR 472 869.09, corresponding to the costs unduly borne by the ECA, and consider the recovery of EUR 97 954.52, corresponding to the salary paid for the periods of Mr Pinxten’s unjustified absences.
27.      Furthermore, considering that some of the facts revealed by the investigation could constitute criminal offences, OLAF forwarded its information and recommendations to the Luxembourg judicial authorities.
C.      Criminal proceedings in Luxembourg
28.      In the light of the information forwarded by OLAF, the State Prosecutor at the Tribunal d’arrondissement de Luxembourg (Luxembourg District Court, Luxembourg), by letter of 1 October 2018, requested that the ECA waive Mr Pinxten’s immunity from legal proceedings. On 15 November 2018, that institution granted that request.
D.      Proceedings within the ECA
29.      On 12 July 2018, the ECA entrusted its President with the task of drawing up a preliminary report in respect of the allegations of wrongdoing reported in the OLAF report against Mr Pinxten.
30.      On 5 October 2018, the President of the ECA sent a preliminary report to the Members of that institution. The report recommended that the ECA should ask the Court ‘to examine the facts as established and to determine whether Mr Pinxten has failed to fulfil the obligations arising from his office’. That report and the OLAF report were communicated to Mr Pinxten on the same day.
31.      On 19 November 2018, Mr Pinxten sent written observations to the ECA. On 26 November 2018, he was heard by the Members of that institution in a closed session.
32.      On 29 November 2018, at a closed session, the ECA decided, in the light of the OLAF report, the preliminary report of its President, the decision to waive Mr Pinxten’s immunity from legal proceedings and his written and oral observations, to refer the issue concerning Mr Pinxten to the Court pursuant to Article 286(6) TFEU.
E.      Procedure before the General Court
33.      On 24 June 2019, Mr Pinxten brought an action in annulment before the General Court in respect of a decision of the ECA’s Secretary-General of 11 April 2019 classifying the sum of EUR 153 407.58 as an inappropriate payment and ordering the recovery of that sum. (5)
34.      Those proceedings have common features with the present action in so far as the sum in dispute relates to the facts mentioned in the context of the first complaint raised in the present case. The former has been suspended by the General Court pending the Court of Justice’s judgment in the present case.
V.      Procedure before the Court and the forms of order sought
35.      The ECA’s application was lodged on 15 February 2019. That application and the defence were supplemented by a reply and a rejoinder. Both parties presented oral argument before the Court at the hearing on 29 September 2020.
36.      The ECA claims that the Court should:
–        dismiss Mr Pinxten’s application for a stay of proceedings by the Court until the closure of the criminal proceedings in Luxembourg;
–        declare that Mr Pinxten ceased to meet the obligations arising from his office under Articles 285 and 286 TFEU, and under the rules adopted pursuant to them;
–        impose, consequently, the sanction as provided for in Article 286(6) TFEU, the ECA leaving the determination of its extent to the discretion of the Court;
–        declare inadmissible Mr Pinxten’s claim for damages;
–        order Mr Pinxten to pay the costs.
37.      Mr Pinxten contends that the Court should:
–        stay the proceedings until the closure of the criminal proceedings;
–        order the ECA to produce the report on the internal audit, for the period from 2012 to 2018, of the mission expenses of the Members of the ECA and of the use of official vehicles by all those Members and to specify the measures taken as a result of that report and to produce any notes relating to the pressure exerted on the internal auditor;
–        dismiss the action brought by the ECA;
–        order the ECA to pay him the sum of EUR 50 000 as compensation for the non-material damage suffered;
–        order the ECA to pay the whole of the costs.
VI.    Submissions of the parties
38.      As a preliminary remark, it must be noted that the parties submitted voluminous written observations, and argued, in large part, with reference to more than 25 000 pages of annexes. It would be rather futile to attempt to summarise all of their arguments in a concise manner. This is why I propose to confine myself here to listing the complaints relied on by the ECA in support of its action and the procedural arguments raised by Mr Pinxten. For the rest, it is sufficient at this stage to point out that Mr Pinxten maintains that all the complaints are unfounded and that the facts are, to a very large extent, not established.
A.      Complaints in support of the application of the ECA
39.      The ECA raises five complaints in support of its claim.
First complaint relating to the improper use of the resources of the ECA to finance activities unrelated or incompatible with the duties of an ECA’s Member
40.      By its first complaint, the ECA alleges that Mr Pinxten misused the resources of the ECA to finance activities which are unrelated or incompatible with his duties as a Member, such as recreational activities – namely a trip to the mountain resort of Crans Montana (Switzerland) from 21 to 26 August 2013 to take part in the summer session of the Crans Montana Forum –, leisure activities – such as several hunting trips including three hunts at Chambord (France) –, sightseeing trips (particularly a stay in Cuba from 30 March to 14 April 2015), and attendance at friends’ receptions or weddings.
41.      Mr Pinxten is also alleged to have asked for repayments and payments for activities relating to his personal interests, in particular in connection with the purchase of a vineyard. The ECA submits that he also carried out missions for activities incompatible with his duties, such as political activities in the context of his involvement with the Open VLD party. Finally, Mr Pinxten is said to have, on the one hand, introduced ‘missions without allowances’ for activities unrelated to his duties – to ensure that he was not charged for the mileage of the official car used in his missions – and, on the other hand, used his official car and engaged the services of drivers of the ECA for activities unrelated to or incompatible with his duties, including in cases where he himself was not on mission.
42.      By so acting it is contended that Mr Pinxten failed in his obligations of disinterestedness, independence, impartiality, engagement, integrity, responsibility, exemplarity and transparency. The ECA alleges that this behaviour amounted to an infringement of Article 285 and Article 286 TFEU and several other norms of secondary law. (6)
Second complaint relating to the improper and unlawful use of tax privileges
43.      Under the second complaint, the ECA alleges that Mr Pinxten made improper and unlawful use of tax privileges. By this second plea, the ECA submits that, by making improper and unlawful use of the fuel cards made available to him, Mr Pinxten failed to fulfil his obligations of integrity, exemplary conduct and disinterestedness. This is also said to have amounted to an infringement of Articles 285 and 286 TFEU and a series of norms of secondary law. (7)
Third complaint relating to false declarations of insurance
44.      Under the third complaint, Mr Pinxten is alleged to have made false declarations of insurance claims in the context of alleged accidents involving the official vehicle placed at his disposal and in respect of which it is said that he received two inappropriate compensation payments. One concerned a reported accident between his private car, driven by his son, and the official car, driven by his driver. The other was related to an incident in which his driver ran over a suitcase containing a bottle of wine and several items of clothing. It would, however, appear from the driver’s testimony given during the investigation that the driver was not involved in the first accident and that the second incident did not lead to the consequences which had been declared to the insurance company.
45.      If this particular allegation were correct, then it would be hard to dispute that Mr Pinxten would have failed to fulfil his obligations of integrity, exemplary conduct and disinterestedness, thereby infringing Articles 285 and 286 TFEU and a series of norms of secondary law. (8)
Fourth complaint relating to the undeclared and unlawful position as manager of a commercial company and of intense political activity
46.      In respect of the fourth complaint, the ECA criticises Mr Pinxten for having acted as manager of a commercial company and for engaging in active political activity within a political party while he was in office at the ECA. It is again alleged that Mr Pinxten thereby failed to fulfil his obligations of disinterestedness, independence, impartiality, engagement, integrity, responsibility, exemplary conduct and transparency. In those circumstances, he would have infringed Articles 285 and 286 TFEU and a series of norms of secondary law. (9)
Fifth complaint, relating to the conflict of interest created in the context of an offer to rent a private apartment to the head of an audited entity
47.      By the fifth complaint, the ECA alleges that Mr Pinxten created a conflict of interest by offering a service to the head of an audited entity. More precisely, he is accused of having offered a private apartment for rent to the High Representative of the Union for Foreign Affairs and Security Policy, when that entity came within the jurisdiction of Chamber III of which he was the dean. This would have affected his independence and impartiality or, at the very least, might have given such an impression.
48.      It is alleged that Mr Pinxten would have therefore created a situation in which there was a conflict of interest and would have failed to fulfil his obligations of disinterestedness, independence, impartiality, integrity and exemplary conduct. It is alleged that in these circumstances this conduct amounted to an infringement of Articles 285 and 286 TFEU and a series of norms of secondary law. (10)
B.      Mr Pinxten
49.      As stated above, Mr Pinxten argues that all the complaints are unfounded and that the facts are, to a very large extent, not established. In addition, he advances several arguments in relation to the procedural aspects of the present action and his rights of the defence.
On the link between the present action and the criminal proceedings pending in Luxembourg
50.      As a preliminary point, Mr Pinxten submits that the principle according to which disciplinary proceedings must await the outcome of the criminal trial applies in the present case. In those circumstances, he contends that the Court should not deliver its judgment before the conclusion of the criminal proceedings.
The principle of effective judicial protection
51.      Firstly, Mr Pinxten argues that, in the context of the action brought under Article 286(6) TFEU, he does not benefit from the right of access to a court (‘droit au juge’) nor from the right of access to two levels of jurisdiction in breach of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 2 of Protocol No 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Strasbourg on 22 November 1984 (‘ECHR’), respectively.
52.      According to Mr Pinxten, the Court acts, under Article 286(6) TFEU, as a disciplinary authority and not as a ‘court’. Consequently, Mr Pinxten contends that he is deprived of any form of judicial protection. It would follow that the procedure referred to in Article 286 TFEU could not be the basis for the action lodged by the ECA.
The irregularity of the acts adopted by the ECA in order to bring the case before the Court
53.      Secondly, Mr Pinxten invokes two procedural arguments in relation to the decision adopted by the ECA in order to bring the case before the Court.
54.      On the one hand, he considers that the number of Members of the ECA who voted in favour of referring the case to the Court was insufficient. Whereas Article 4(4) of the Rules of Procedure of the ECA would require a majority of four fifths of those Members – namely 23 Members – only 22 of them actually voted in favour of that decision.
55.      On the other hand, while Article 8 and Article 49(3) of the Rules for Implementing the Rules of Procedure of the ECA require that the hearing of a Member against whom a complaint has been brought be conducted in the absence of any interpreter or agent of the ECA, Mr Pinxten’s hearing was conducted in the presence of the Secretary-General and of the Head of Legal Service of that institution.
The violation of the reasonable time requirement
56.      Thirdly, Mr Pinxten considers that the ECA has infringed his right to a hearing within a reasonable time by calling into question the lawfulness of the requests he has made since 2006, even though the ECA had, from the start of his mandate, all the relevant information at its disposal to ascertain whether those requests were legitimate and, in any case, was able to seek clarification if required.
57.      On the basis of the financial rules applicable to the Union budget, Mr Pinxten asks that the ECA be time-barred from bringing actions relating to established facts dating back more than three years or a maximum of five years since 5 October 2018, that is to say, the date of the ECA’s preliminary report.
The unlawful OLAF investigation and its report
58.      With respect to OLAF’s investigation, Mr Pinxten invokes three irregularities that would have an impact on the report, which is the basis for the ECA’s action.
59.      First, Mr Pinxten argues, in substance, that OLAF irregularly extended the scope of its investigation on the basis of the analysis of the data found during the inspection carried out in his office. Second, OLAF breached his right to privacy by taking away private files, some of which contained communications with his lawyer. Third, OLAF allegedly infringed his rights of defence in four ways. First, the summary of facts was extremely short, the tables attached to this summary of facts were not comprehensible and not all supporting documents were communicated. Second, Mr Pinxten was allegedly not heard on all the facts and other relevant matters which led to the report. Third, his arguments were not discussed but simply copied at the end of the report. Fourth, his former assistant did not receive a copy of the transcript from her oral hearing.
VII. Analysis
60.      The action brought by the ECA raises a number of procedural and substantive issues. I think, however, that the answer to several of them depends on the intrinsic nature of this procedure and the scope of the ECA’s mission and the duties of its Members. I propose, therefore, to divide my analysis into four parts. I will first try to determine the nature of the action provided for in Article 286(6) TFEU and the duties of ECA Members in the light of the role of this institution. I will then look at the procedural issues. Finally, I will examine the case on the merits and the possible sanctions that should be applied.
A.      The role of the ECA
1.      The nature of the proceedings under Article 286(6) TFEU
61.      According to Article 286(5) TFEU, apart from normal replacement or death, the duties of a Member of the ECA shall end when he or she resigns, or is compulsorily retired by a ruling of the Court of Justice pursuant to Article 286(6) TFEU.
62.      The latter provision provides that a Member of the ECA may be deprived of his or her office or of his or her right to a pension or other benefits in its stead only if the Court of Justice, at the request of the ECA, finds that he or she no longer fulfils the requisite conditions or meets the obligations arising from his or her office. The Treaty provides a similar rule for the Members of the Commission in the second paragraph of Article 245 TFEU. With regard to the procedure established by this provision, the Court has stated that it was a ‘discrete procedure’ which cannot be compared to the disciplinary proceedings involving an official or servant of the Union. (11) More specifically, in the only comparable case, Commission v Cresson, (12) Advocate General Geelhoed considered that, ‘as there is a direct connection between the conduct of a Commissioner and the public image and the functioning of the institution in which he holds office, the procedure under [the second paragraph of Article 245 TFEU] is constitutional in character’. (13) This is also my view because it is clear that these provisions contribute to ensuring the democratic character of the European Union as a legal order founded, as underlined by Article 2 TEU, on the rule of law.
63.      On the one hand, the task of the ECA, which was given the status of an institution under the Treaty of Maastricht, is initially expressed in very general terms in Article 285 TFEU. This provides that the function of the ECA is to carry out the Union’s audit. Article 287 TFEU, which details that task and explains how the ECA is required to carry it out, provides in particular, in paragraph 1, that the ECA is to examine the accounts of all revenue and expenditure of all bodies, offices or agencies set up by the Union and that it is to provide the Parliament and the Council with a statement of assurance as to the reliability of the accounts and the legality and regularity of the underlying transactions, a statement which may be supplemented by specific assessments for each major area of Union activity.
64.      The ECA’s mission is, accordingly, to contribute to improving EU financial management, to promote accountability and transparency, and to act as the independent guardian of the financial interests of the citizens of the Union. (14) In other words, accepting the words of the President of the Court of Justice at the time of the solemn undertaking made by the first Members of the ECA in October 1977, the ECA is the ‘financial conscience’ of the European Union. (15)
65.      On the other hand, it must also be recalled that the Treaties set up a system for distributing powers among the Union institutions, assigning to each institution its own role in the institutional structure of the Union and the accomplishment of the tasks entrusted to the Union. (16) In this respect, the creation of the ECA was presented as a guarantee of balance and of impartiality in the institutional architecture. (17)
66.      Moreover, the need for external audit of public finances is broadly shared and considered as one of the pillars of democracy. (18) It is only appropriate that EU citizens and taxpayers are assured as to the manner in which public revenue is appropriated and spent. As a non-majoritarian guardian institution, the ECA plays a major role in democratic governance, even if, as with the Union judicature, this kind of institution is not directly subject to political oversight or the popular vote. (19) The key to the ECA’s legitimacy lies therefore in its independence and the importance of its role in fostering good government and promoting public confidence in the manner in which the Union’s taxation and other revenues are properly applied in a cost effective manner. (20)
67.      However, as Montesquieu theorised as early as 1748, it is clear that all office-holders are inclined to abuse their powers and they will continue to do so until they encounter limits. This is why, ‘in order to prevent abuse of power, things must be contrived so that power checks power’. (21) Separation of powers principles have accordingly been progressively refined so that all institutions – both elected and, just as importantly, unelected – are subject to control and oversight. It is now accepted that, in a democracy, each power calls upon a counter-power to control it with a view to moderating it. (22)
68.      The procedure prescribed in Article 286(6) TFEU thus contributes to ensuring the democratic character of the European Union as a legal order based, as underlined by Article 2 TEU, on the rule of law. It essentially provides for what amounts to the impeachment before this Court of a Member (or, as in the present case, a former Member) of a Union institution where that person’s conduct falls below appropriate democratic norms. Similar provisions exist in the national constitutions and fundamental laws of many Member States in respect of constitutional office-holders. (23) As such, this procedure is therefore of a constitutional nature.
69.      Finally, the fact that the procedure referred to in Article 286(6) TFEU is the only one in which the Statute of the Court of Justice requires the case to be judged by the full Court – along with Article 228(2) TFEU for cases involving the European Ombudsman and Articles 245 and 247 TFEU for cases involving Members of the Commission – proves, if need be, the importance and extraordinary nature of this procedure. (24) This requirement in itself is sufficient to illustrate the point that this procedure is not disciplinary in nature, since the very characteristic of ‘disciplinary justice’ is precisely that it generally amounts to a form of private contractually based sanction rather than the public justice discharged by judicial office-holders. (25) On the contrary, in disciplinary proceedings, the institution which imposes the sanction is not a tribunal in the meaning of Article 47 of the Charter, but is rather an administrative authority. (26)
2.      The duties ofECAMembers
70.      As the Court stated in Commission v Cresson (C‑432/04, EU:C:2006:455), even if a breach of a certain degree of gravity is required before the cognate provisions of Article 245 TFEU can properly be commenced, ‘the Members of the Commission are … under an obligation to conduct themselves in a manner which is beyond reproach’. (27) This requirement also applies to Members of the ECA.
71.      Indeed, as Advocate General Geelhoed explained in that case, ‘it is essential to the proper functioning of the [Union] institutions that persons holding high office are not only regarded as being competent from a professional point of view, but that they are seen to be of irreproachable behaviour. The personal qualities of these persons reflect directly on the confidence the general public has in the [Union] institutions, their credibility and therefore their efficacy’. (28)
72.      It is with this objective in mind that Articles 285 and 286 TFEU, which list some of the duties contained in the solemn undertaking given by the Members of the ECA at the beginning of their term of office, must be interpreted.
73.      The first of these is to be completely independent and act in the Union’s general interest. The Members of the ECA can neither seek nor take instructions from any government or from any other body. In addition, they are required to refrain from any action incompatible with their duties both during and after their term of office. They must therefore respect the obligations arising from their office. As specified by Article 286(4) TFEU, this includes, ‘in particular their duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain appointments or benefits’. (29)
74.      It must be noted that those obligations are drafted in the same terms as those interpreted by the Court in regard to the duties of the Members of the Commission in Commission v Cresson (C‑432/04, EU:C:2006:455). In those circumstances, since Article 286(4) TFEU does not contain any restriction on the concept of ‘obligations arising [from the office of a Member of the ECA]’ either, that term must be interpreted as broadly as it has been interpreted for the Members of the Commission. (30)
75.      It is thus important that Members of the ECA, ‘having regard to the importance of the responsibilities assigned to them … 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 [Article 286(4) TFEU], but also to all of the duties which arise from the office of Member of the [ECA] … It is therefore the duty of Members of the [ECA] to ensure that the general interest of the [Union] takes precedence at all times, not only over national interests, but also over personal interests’. (31)
76.      This means, in concrete terms, that Members of the ECA must respect the obligations of independence, integrity and discretion as set out in Articles 285 and 286 TFEU, but also the highest standard of impartiality (32) and disinterestedness. For Members of the ECA, which is, as already mentioned, the ‘financial conscience’ of the Union, this necessarily implies full responsibility in the manner in which they spend public funds and, consequently, a certain degree of transparency in how they do so.
B.      Compliance with procedural rules and various rights relied on by Mr Pinxten
1.      On the link between the present action and the criminal procedure pending in Luxembourg
77.      As a preliminary point, Mr Pinxten considers that the principle according to which disciplinary proceedings must await the outcome of a criminal trial applies in the present case.
78.      For my part, however, I think that this amounts to a mischaracterisation of the nature of the proceedings provided for in Article 286(6) TFEU, which is, as I have previously suggested, constitutional in nature. To accept that the Court should not deliver its judgment before the completion of the criminal proceedings would undermine the specific aim pursued by Article 286(6) TFEU as a key part of the separation of powers established by the Treaty. As Advocate General Geelhoed explained in Commission v Cresson, a national criminal procedure and Article 286(6) TFEU serve different purposes in the national and Union legal orders: ‘whereas the former is aimed at enforcing standards which are deemed to be essential to the fabric of society at the national level, the latter is designed to ensure the proper functioning of the [Union] institutions with a view to realising the objectives of the Treaties’, (33) and, I would add, respect for the democratic functioning of the Union.
79.      In addition, while the behaviour giving rise to the two proceedings may be the same, the rules and duties in the light of which the materiality of the facts must be demonstrated in order to convict a person involved are not the same. The Court is therefore 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 286(6) TFEU constitutes a breach of the obligations arising from the office of a Member of the ECA. (34) Consequently, whatever the outcome of the national criminal proceedings, the outcome of the procedure pursuant to Article 286(6) TFEU is independent of the judgments in other proceedings. (35) The converse is also true in that the outcome of the present proceedings has no bearing on any criminal proceedings which are pending in Luxembourg.
80.      In the light of the foregoing considerations, I believe that it is therefore not necessary to await the outcome of the national criminal proceedings currently pending before the national courts of Luxembourg.
2.      The principle of effective judicial protection
81.      Mr Pinxten argues that, in the context of the action brought under Article 286(6) TFEU, he benefits neither from the right of access to a court nor from the right of access to two levels of jurisdiction in breach of Article 47 of the Charter and Article 2 of Protocol No 7 to the ECHR.
82.      In this regard, the Court held that, even if it were accepted that this latter provision applies to proceedings based on Article 245 TFEU, ‘it is sufficient to point out that Article 2(2) of that Protocol states that that right 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’. (36) In the light of the similarities between the two procedures, the same must apply to the procedure provided for in Article 286(6) TFEU.
83.      By way of reply, Mr Pinxten argues that the Court acts, under Article 286(6) TFEU, as a disciplinary authority and not as a ‘court’. Consequently, Mr Pinxten contends that he is deprived of any effective form of judicial protection. It would follow that the procedure referred to in that provision could not be the basis for the action lodged by the ECA.
84.      That argument amounts in substance to challenging the validity of a Treaty provision whereas the examination of the validity of primary law does not fall within the Court’s jurisdiction. (37) In any event, as I have already indicated, the nature of the procedure at issue is not disciplinary but is rather constitutional in character.
85.      Furthermore, it must be noted that the entire procedure conducted before the Court on the basis of Article 286(6) TFEU complies with the rules applicable to direct actions provided for in the Rules of Procedure of the Court. It is also striking that the proceedings must be heard by the full Court in accordance with Article 16 of the Statute of the Court of Justice. In these circumstances, the addressee of the proceedings obtains the benefit of a hearing by a full complement of independent judges who themselves form part of the institution of the Union entrusted with the interpretation and application of the Treaties. It is plain that, in that context, the Court acts, as Advocate General Geelhoed put it in Commission v Cresson, as ‘the impartial judiciary of the [Union]’. (38)
3.      The irregularity of the acts adopted by the ECA in order to bring the case before the Court
86.      Mr Pinxten invokes two procedural arguments in relation to the decision adopted by the ECA in order to bring the case before the Court.
87.      First, he contends that the number of Members of the ECA who voted in favour of referring the case to the Court was insufficient in regard to Article 4(4) of the Rules of Procedure of the ECA. Second, he argues that his hearing took place in the presence of the Secretary-General and the Head of Legal Service of that institution, contrary to the requirements of Article 49(3) of the Rules for Implementing the Rules of Procedure of the ECA. (39) I now propose to deal with these arguments in turn.
(a)    On Article 4(4) of the Rules of Procedure of the ECA
88.      Article 25(3) of the Rules of Procedure of the ECA provides that the ECA’s decisions shall be taken by a majority of the Members present at the meeting of the ECA. By way of derogation from this rule, Article 4(4) of the Rules of Procedure of the ECA states that the ECA’s decision to bring an action before the Court on the basis of Article 286(6) TFEU ‘shall be taken by secret ballot by a majority of four fifths of the Members of the [ECA]’.
89.      As of the date of the relevant vote, there were 28 Members of the ECA. Of the 28 Members, 2 Members recused themselves: one because of his friendship with Mr Pinxten and the other because she was the Belgian member who succeeded him. Four other Members of the ECA were not present and they had been excused for this purpose.
90.      A comparison of the wording of the exception in Article 4(4) of the Rules of Procedure of the ECA with the principle set out in Article 25(3) of those rules is therefore instructive. The former provides that the requisite figure is four fifths of the Members, whereas Article 25(3) speaks of a majority of the Members present at the relevant meeting. Given the contrasting wording of these two provisions, it is clear, therefore, that the four-fifths majority has to be calculated on the basis of the number of Members of the ECA and not simply by reference to the Members actually present at the time of the vote.
91.      As the ECA had 28 Members entitled to vote at the time of the decision in question, the majority theoretically required was 23 Members. If, however, the recusals are omitted, that figure is reduced to 26 Members, so that the voting majority required was 21.
92.      It is true that the Rules of Procedure of the ECA do not contain any provision dealing with the specific question of recusal. Nevertheless, as Advocate General Wahl observed in relation to this Court, it is not because the Rules of Procedure do not contain any specific rule in relation to recusal of its Members that the principle cannot be invoked. (40) Indeed, recusal is nothing less than part of the requirement of impartiality that must be met by any ‘tribunal’ in the meaning of Article 47 of the Charter. (41)
93.      However, this condition of impartiality naturally also applies to the EU institutions by virtue of the right to good administration as provided for in Article 41 of the Charter. (42) It follows that the possibility of recusal therefore necessarily applies to decisions taken by the ECA, especially in the context of administrative proceedings initiated against persons and likely to result in decisions adversely affecting them.
94.      In those circumstances, as the aim of recusal is to avoid any conflict of interest, it is also clear that the person recusing himself or herself or being recused must not intervene in any way in the proceedings. In a way, the person who recuses himself or herself is, at least temporarily, no longer a Member of the institution in question, with respect to a given problem. The effect of a recusal cannot therefore be regarded as the equivalent of an abstention. If it were otherwise, the person recused would be included in the quorum. However, such inclusion could have an impact on the decision adopted, thus opening the door to an impression of partiality.
95.      Accordingly, in the light of the foregoing considerations, I consider that the two Members of the ECA who recused themselves should not be counted for the purposes of Article 4(4) of the Rules of Procedure of the ECA. In those circumstances, it therefore appears that the four-fifths majority required by this provision has been achieved.
(b)    On Article 49(3) of the Rules for Implementing the Rules of Procedure of the ECA
96.      Article 8 of the Rules for Implementing the Rules of Procedure of the ECA provides that meetings of the ECA held under the procedure laid down in Article 4 of the Rules of Procedure of the ECA are ‘closed meetings’ within the meaning of Article 49(3) of the Rules for Implementing the Rules of Procedure of the ECA. In concrete terms, that means that the hearing of a Member against whom a complaint has been brought must take place in the absence of any interpreter or agent of the ECA.
97.      It should be noted, however, that Article 39(1) of the Rules for Implementing the Rules of Procedure of the ECA states that the Secretary-General is the person responsible for preparing and keeping the minutes of the ECA meetings. Article 50(1) of the Rules for Implementing the Rules of Procedure of the ECA confirms that the draft of the minutes of the ECA are prepared by the Secretary-General or by any other person designated for this purpose. Nevertheless, while the fifth paragraph of the same article points out that minutes of closed meetings shall be subject to restricted distribution, no details are given as to who must draw up the minutes in those particular circumstances. Article 23 of the Rules of Procedure of the ECA requires that minutes shall be drawn up for each meeting of the ECA, without exception.
98.      In those conditions, since it is obvious that the hearing of a Member of the ECA heard in the context of the application of Article 4 of the Rules of Procedure of the ECA must be transcribed, it must be assumed that neither Article 8 nor Article 49(3) nor, for that matter, Article 50 of the Rules for Implementing the Rules of Procedure of the ECA derogate from the rule provided for in Article 39 of those rules. In these circumstances, Article 49(3) of the Rules for Implementing the Rules of Procedure of the ECA must therefore be interpreted as not referring to the Secretary-General or the designated person on the basis of Article 50(1) of the Rules for Implementing the Rules of Procedure of the ECA.
99.      In that regard, it may be noted that an ECA decision of 12 February 2015 (43) provided that the Head of Legal Service was designated on the basis of Article 50(1) of the Rules for Implementing the Rules of Procedure of the ECA to assist the Secretary-General in the task of following up meetings with express reference to the minutes. It follows, therefore, that for these reasons, his presence at the hearing of Mr Pinxten along with that of the Secretary-General was, consequently, in accordance with the applicable rules of the ECA.
100. In any event, I would add in passing, the presence of the Head of Legal Service is, in principle, a guarantee of compliance with the rules for the benefit of the Member concerned. In this context, Article 49(3) of the Rules for Implementing the Rules of Procedure of the ECA must therefore be interpreted as not referring to the Head of Legal Service either.
4.      The violation of the reasonable time requirement
101. Thirdly, Mr Pinxten considers that the ECA has infringed his right to a hearing within a reasonable time by calling into question the lawfulness of the requests he has made since 2006, even though the ECA had, from the start of his mandate, all the relevant information at its disposal to ascertain whether those requests were legitimate and, in any case, was able to seek clarification if required.
102. On the basis of the financial rules applicable to the Union budget, Mr Pinxten contends that the ECA should be time-barred from bringing actions relating to established facts dating back more than three years or a maximum of five years since 5 October 2018, that is to say, the date of the ECA’s preliminary report.
103. First of all, it must be recalled that, according to settled case-law, ‘where the duration of a procedure is not set by a provision of European Union law, the “reasonableness” of the period of time taken by the institution to adopt a measure at issue is to be appraised in the light of all of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity[, the various procedural stages which the EU institution followed] and the conduct of the parties to the case’. (44) It follows accordingly from that requirement for a specific appraisal that the reasonableness of a period cannot be determined by reference to a precise maximum limit determined in an abstract manner but, rather, must be examined in the light of the specific circumstances of each case. (45)
104. In those circumstances, the five-year period upon which Mr Pinxten relies is, as the Court has expressly held, only applicable to the specific context of the Union’s debt recovery and, more specifically, to Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002. (46) Furthermore, it should be recalled that the Court itself has made clear that, even in those specific circumstances, the five-year time limit is only a rebuttable presumption. (47)
105. In the present case, it must be noted, first of all, in regard to the procedural steps followed, that the internal procedure leading to the current action started on 18 July 2016 and 1 September 2016 when Mr Pinxten was informed of several allegations made against him in relation to possible serious irregularities. The file was then sent to OLAF on 14 October 2016 and it opened its investigation on 15 November 2016. The ECA subsequently received OLAF’s final report on 2 July 2018. On 12 July 2018, the ECA decided to instruct its President to draw up a preliminary report in accordance with Article 4(1) and (2) of the Rules of Procedure of the ECA on the information provided by OLAF in its final report. This preliminary report was communicated to the Members of the ECA and to Mr Pinxten together with OLAF’s final report on 5 October 2018. Mr Pinxten submitted written observations on 19 November 2018 and his hearing took place on 26 November 2018. On the basis of those elements, the ECA decided, three days later, to refer the case to the Court on the basis of Article 286(6) TFEU. The time period in question was therefore, in any event, only slightly more than two years since the allegations concerning Mr Pinxten first came to light and the decision to refer the case to the Court.
106. In the light of the number of procedural acts undertaken during this period – first internal steps involving Mr Pinxten following the making of the allegations, the referral to and the subsequent investigation by OLAF, drafting a summary of facts and the final report by OLAF and a preliminary report by the ECA, to which must be added the time allowed to Mr Pinxten for his defence (written observations, both to OLAF and the ECA, and hearings by OLAF and the ECA) –, one cannot, I think, say that the manner in which the ECA dealt with the case, and the period of time taken to do so, amounted to an infringement of the reasonable time principle.
107. Second, in relation to the facts, it is true that some of them date back to 2006, the year in which Mr Pinxten began his first term of office at the ECA. One may note, however, that a large proportion of the complaints relate to events occurring after October 2013, (48) that is to say, from a period accepted by Mr Pinxten himself or, events which, if they occurred earlier, were repeated after this alleged ‘pivotal date’. (49) Moreover, the requirement of reasonable time, as now expressly provided for in Articles 41 and 47 of the Charter, cannot be equated with a form of statute of limitations in criminal matters, defined by the European Court of Human Rights (‘ECtHR’) as the statutory right of an offender not to be prosecuted or tried after the lapse of a certain period of time since the offence was committed. (50) The former is the right to have his or her affairs ‘handled within a reasonable time’ – that is, as more explicitly worded in Article 47 of the Charter, the right to have his or her case heard by a tribunal within a reasonable time. In other words, in disciplinary or criminal matters, the requirement of reasonable time is the time within which the author of any wrongdoing must be brought to trial, not from the day of the facts, but rather from the day the person concerned is ‘charged’. (51)
108. In any event, if the requirement of reasonable time were to be understood, in the context of the specific procedure under Article 286 TFEU, as also encompassing a limitation rule, then it would be necessary to take into account the seriousness of the infringements likely to be judged under Article 286(6) TFEU. Indeed, it is settled that, in the legal systems of the Member States where there is a limitation period in criminal matters, the length of delay is directly proportional to the seriousness of the infringement. (52) In this context, a period of 10 years between the first acts alleged and the first act adopted by the institution in relation to them – or even 12 years in the present case if account is taken of the preliminary report of the President of the ECA, as suggested by Mr Pinxten – does not appear excessive.
5.      The unlawful OLAF investigation and its report
109. With respect to OLAF’s investigation, Mr Pinxten invokes three irregularities which he says taint the OLAF report to the ECA.
(a)    The extension of the investigation
110. First, Mr Pinxten argues, in substance, that OLAF extended the scope of its investigation in an irregular manner on the basis of the analysis of the data found during the inspection carried out in his office.
111. It is true that the first letter from OLAF informing Mr Pinxten that OLAF had opened an investigation against him only referred to ‘possible irregularities involving [him] as a Member of the [ECA] in the use [he] made of ECA assets, and [concerning] missions [he] carried out and/or authorised, in breach of the applicable rules, affecting the financial interests of the European Union’. (53) It is only in the course of the second stage (that is to say, in the letter sent by OLAF on 15 December 2017 to Mr Pinxten’s lawyer) that OLAF informed Mr Pinxten’s lawyer that the Director-General of OLAF had decided, after a preliminary analysis of the data obtained in the context of the inspection, to extend the investigation to possible conflicts of interest and other violations of Articles 285 and 286 TFEU and provisions of the Code of Conduct for ECA Members. (54)
112. According to Mr Pinxten, an inspection cannot have the purpose or effect of revealing possible infringements that could not have been known prior to this inspection, since the purpose and scope of the inspection are defined in the mandate given to the investigators. (55)
113. I think, however, that this interpretation of how an OLAF investigation can be conducted is too restrictive.
114. It must be recalled, first of all, that the responsibility of OLAF, as expressly stated in recital 6 of Regulation No 883/2013, ‘also extends beyond the protection of financial interests to include all activities relating to safeguarding Union interests against irregular conduct liable to result in administrative or criminal proceedings’. Then, in order to fulfil this task, Article 4(2) of that regulation provides that OLAF must ‘have the right of immediate and unannounced access to any relevant information, including information in databases, held by the institutions, bodies, offices and agencies, and to their premises … The Office may take a copy of, and obtain extracts from, any document or the contents of any data medium held by the institutions, bodies, offices and agencies and, if necessary, assume custody of such documents or data to ensure that there is no danger of their disappearance’. Finally, it must also be borne in mind that members of the EU institutions have a specific duty to cooperate with OLAF under the second paragraph of Article 7(3) of Regulation No 883/2013 according to which the institutions ‘shall ensure that their … members … provide the necessary assistance to enable the staff of [OLAF] to fulfil their tasks effectively’. This obligation also applies to the ECA Members pursuant to the second subparagraph of Article 3 of Decision No 99‑2004 of the ECA concerning the rules concerning arrangements for cooperation by the Members of the ECA in internal investigations in relation to the prevention of fraud, corruption and any other illegal activity detrimental to the Communities’ financial interests, which states that ‘in the context of the [OLAF] investigation Members of the [ECA] shall cooperate fully with [OLAF]’. (56)
115. In view of the scope of the mission of OLAF, the powers conferred on it to carry it out and the specific duty of collaboration imposed on the ECA’s Members, I consider that an inspection made by OLAF can have the effect of revealing possible infringements which were not within the original scope of the investigation. Prohibiting OLAF from doing so would amount to turning a blind eye to possible serious irregularities in total contradiction to the role of OLAF, its powers and the duty of cooperation of ECA Members, while the effectiveness of an OLAF investigation is of public interest, derived from the more general public interest of protecting the EU’s financial interests. (57)
116. Any other conclusion would compromise the independence of OLAF in that it would lead to a limitation of the Director-General of OLAF to open investigations, including when it comes to extending the scope of an investigation. Indeed, as held by the General Court in relation with the possibility of extending the scope of an internal investigation by OLAF to that of an external investigation, ‘that would be the case where, in the event of sufficiently serious suspicions concerning the facts, which came to light during an internal investigation … the Director-General of OLAF was prevented from … extending the scope of the former’. (58)
117. Accordingly, it follows from the foregoing considerations that, since OLAF conducted its inspection in accordance with the applicable rules, informed Mr Pinxten of the extension of the investigation and offered him the opportunity to be heard on all the facts finally charged, (59) the irregularities discovered as a result of the extension of the OLAF investigation may also be taken into consideration in the present procedure.
(b)    The right to privacy of Mr Pinxten
118. Second, Mr Pinxten alleges that OLAF breached his right to privacy by taking private files and copying possible communications related to his lawyer.
119. According to Article 7 of the Charter, everyone has the right to respect for his or her private and family life, home and communications. This right is not, however, an absolute one. In accordance with Article 52(1) of the Charter, it may be subject to restrictions, provided that they are actually provided for by law, correspond to objectives of general interest pursued by the European Union and do not constitute, with regard to the objectives pursued, a disproportionate interference. (60)
120. In that regard, it can be noted that OLAF’s right to copy the relevant documents is provided for by law, namely, by Article 4(2)(a) of Regulation No 883/2013. This right is necessary to protect the EU’s financial interest, which is undoubtedly an ‘objective of general interest recognised by the Union’ in the meaning of Article 52(1) of the Charter. (61) Indeed, as the Court has already emphasised in relation to the Member States, the obligation to counter illegal activities affecting the financial interests of the European Union through dissuasive and effective measures is an obligation imposed, inter alia, by EU primary law, namely Article 325(1) TFEU. (62)
121. The fact that certain documents have been designated as ‘private’ by the person under investigation is irrelevant in this context. First of all, one can observe that Article 13.5 of the Guidelines on Investigation Procedures for OLAF Staff specifically states that ‘during an inspection of premises, members of the investigation unit may access any information held by the EU institution, body, office or agency concerned, including inter alia copies of electronic data, copies of private documents (including medical records) where they may be relevant to the investigation’. (63) This interpretation of OLAF’s powers seems to me in line with Regulation No 883/2013 since that regulation empowers OLAF to take a copy of any document or the contents of any data medium held by the institutions, bodies, offices and agencies of the EU as long as they relate to relevant information.
122. It must be also acknowledged that, in the context of an investigation into whether Mr Pinxten misused his office, his privacy entitlements in relation to materials generated in the course of his employment – other than purely private and personal correspondence and emails – cannot be regarded as especially strong. Any other conclusion would be inconsistent with the obligation of the EU institutions to counter fraud and any other illegal activities affecting the financial interests of the Union through measures which must be a deterrent.
123. Moreover, OLAF’s powers are framed in such a way as to ensure that they are used in a proportionate manner. Under Article 13.4 of the Guidelines on Investigation Procedures for OLAF Staff, where necessary, the inspection may be made in the absence of the Member of the EU institution concerned. However, ‘in such cases, another member of staff or a member of the security of the EU institution … concerned shall be present’.
124. In the present case, it is not contested that the inspection took place in the presence of the Security Officer of the ECA and of the Information Security Officer and Data Protection Officer of the ECA (DPO). As regards Mr Pinxten’s private communications, it is expressly stated in the ‘Digital Forensic Operation Report 22/Nov/2017’ (64) that ‘the OLAF investigators conducted a preview of all these data and in accordance with data protection requirements as requested by [the DPO]. Privacy related e-mails and e-mails that were clearly not related to purpose of the investigation were deleted from all exported inboxes … The preview and deletion was executed by [the DPO] … [The DPO] also provided the previewed electronic documents, selected and copied from the U\: and S\: drive’.
125. With particular regard to the question of the correspondence allegedly involving Mr Pinxten’s lawyer, it is clear that the confidentiality of written communications between lawyer and client must be protected under European Union law, provided, however, that such communications are made for the purposes and in the interests of the client’s rights of defence and that they emanate from independent lawyers. (65) However, in the present case, it is sufficient to note that, as the ECA observed, Mr Pinxten provides no evidence which establishes that OLAF relied on a document covered by the confidentiality of communications between a lawyer and his or her client. Nor does Mr Pinxten identify any such document in the final report of OLAF or its annexes. On the contrary, it appears from Annex 6 to the ‘Digital Forensic Operation Report 22/Nov/2017’ that ‘regarding the e-mail filtering … all outlook items dating prior to 2010 were deleted’. This document also makes clear that other material such as references to and correspondence with Mr Pinxten’s legal adviser were additionally deleted. (66)
126. Accordingly, in those circumstances, one must conclude that OLAF did not infringe Mr Pinxten’s right to privacy in the context of its investigation.
(c)    The rights of defence of Mr Pinxten
127. By his third ground, Mr Pinxten argues that OLAF infringed his rights of defence. First, the summary of facts communicated was extremely short, the tables attached to this summary of facts were incomprehensible and not all supporting documents were provided. Second, Mr Pinxten alleges that he was not heard on all the facts and in respect of the witness hearings that led to the report. Third, his arguments were not discussed but simply copied at the end of the report. Fourth, his former assistant did not receive a copy of the transcript of her oral hearing.
128. It is clear that, as provided for in Article 41 of the Charter, the right to good administration includes, on the one hand, the right of every person to be heard, before any individual measure which would affect him or her adversely is taken and, on the other hand, the right of every person to have access to his or her file.
129. As the Court recalled in its judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455), ‘observance of the right to be heard is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of [Union] law which must be guaranteed even in the absence of any rules governing the procedure in question. The Court has consistently held that, in order to respect the principle of the right to be heard, 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 [institution, body, office or agency] to support its claim that there has been an infringement of [Union] law’. (67) In the context of an OLAF investigation, it can be added that Article 9(4) of Regulation No 883/2013 also provides that ‘once the investigation has been completed and before conclusions referring by name to a person concerned are drawn up, that person shall be given the opportunity to comment on facts concerning him’.
130. In the present case, one must first examine whether Mr Pinxten was informed in sufficient time of the complaints made against him and whether he had the opportunity of being heard. (68)
131. For my part, I cannot accept Mr Pinxten’s argument to the effect that his rights of defence have not been respected. Indeed, it appears from the file that Mr Pinxten was invited by letter of 7 December 2017 to an interview on 22 December 2017 concerning the possible irregularities of which he was informed on 22 September 2017. (69) It is also clear that Mr Pinxten was informed of the widening of the scope of the investigation and interview by means of a letter to his lawyer on 15 December 2017. (70) It is true that Mr Pinxten’s lawyer replied to this letter by saying that her client would be available to OLAF in the context of the interview of 22 December 2017 only as regards the facts referred to in the notification as a person concerned. (71) Nevertheless, it appears from the minutes of Mr Pinxten’s interview that a large proportion of the facts brought to light by OLAF’s investigation and included in its final report was discussed or, at least, mentioned during this interview, freely and without constraint. (72) Moreover, the issues not directly raised during this interview were nevertheless included in the summary of facts transmitted later on (such as the stay in Crans Montana or the participation in the management board of a political party or the (allegedly) false declarations of insurance). In this regard, while Mr Pinxten argues that the summary of facts communicated was extremely short and that the tables attached to this summary are not comprehensible, it is clear that this summary is sufficiently comprehensive in its presentation of both the applicable rules and the irregularities complained of. The clarity and completeness of the summary of facts can hardly be disputed by Mr Pinxten when he has drawn up no less than 36 pages of observations – for which an extension of 10 working days was granted in view of the volume of the case under consideration – covering all the facts alleged in the summary of facts. (73)
132. Furthermore, it must also be pointed out that the final report of OLAF contains only the Director-General’s recommendations. According to Article 11(4) of Regulation No 883/2013, the recipient institution must take measures, in particular of a disciplinary or legal nature, which the results of the internal investigation justify. Nevertheless, the fact remains that the decision which may adversely affect the person concerned is the possible decision taken by the institution to which the final OLAF report is addressed.
133. In the light of the latter considerations, I believe that the fact that Mr Pinxten received – after having already been heard for the first time by OLAF and being allowed to comment on the summary of facts – a copy of OLAF’s final report and its annexes in view of the administrative procedure before the ECA, which precedes the action brought against Mr Pinxten on the basis of Article 286(6) TFEU, cannot therefore be ignored in the assessment of the respect of the right to be heard.
134. In this regard, it must be noted that Mr Pinxten was not only given the opportunity to submit written comments on OLAF’s final report as well as on the preliminary report drawn up by the President of the ECA – which he actually did (74) – but also to be heard on the facts in those documents. (75)
135. In those circumstances, I feel obliged to observe that the conduct of the administrative procedure reveals nothing that might have infringed Mr Pinxten’s rights of defence.
6.      Conclusion on the procedural rules and various rights relied on by Mr Pinxten
136. It follows from the above that all of the pleas raised in Mr Pinxten’s defence which relate to procedural matters and to compliance with various rights, in particular the rights of the defence, must be rejected.
137. For the sake of completeness, I would add that although the ECA relies heavily on OLAF’s final report to demonstrate that its allegations are well founded, the fact remains that its request is intelligible independently of that report and its annexes. Moreover, the application also demonstrates a personal assessment of the facts by the ECA, which in some respects distanced itself from OLAF’s conclusions.
C.      Whether there has been a breach of the obligations referred to in Article 286 TFEU
1.      The conditions for the application of Article 286(6) TFEU
138. Before examining whether Mr Pinxten has breached one or more of his obligations as a Member of the ECA, it may be useful to reiterate three observations already made in this Opinion.
139. First, it can be inferred from the wording of Article 286 TFEU that it is the duty of the Members of the ECA to ensure that the general interest of the Union takes precedence at all times, not only over national interests, but also over personal interests. (76) Second, Members of the ECA must not only respect the obligations of independence, integrity and discretion as set out in Articles 285 and 286 TFEU, but also the highest standard of impartiality and disinterestedness. This necessarily implies full responsibility in the manner in which they spend public funds. (77) Third, the Treaty is silent on the type or frequency of infringements that may lead to the application of Article 286(6) TFEU. The only condition is that the ECA Member involved must have ceased to fulfil the requisite conditions or to meet the obligations arising from his or her office.
140. Given that the provisions of the Treaty are similar for the Members of the Commission and the Members of the ECA, it is plain that the latter are also required to behave in a manner which is beyond reproach. The breach of obligations must nonetheless attain a certain degree of gravity before an application pursuant to Article 286(6) TFEU can be justified. (78) This requirement of seriousness is readily explained by the severity of the potential penalty which this Court may impose on the office-holder (or, as in this case, former office-holder) if the allegations of impropriety are upheld. On the other hand, it may be inferred from the general wording of Article 286(6) TFEU, combined with the role of that provision in the institutional architecture of the Union, that the failure in question may result from a single but serious act, as well as from a repetition of individually less serious acts whose repetition reflects a clear disregard for the rules in force.
141. It follows from those considerations that, in the context of Article 286(6) TFEU, it is sufficient – but nonetheless necessary – for a breach of a certain degree of gravity to be established in order for an action under Article 286(6) TFEU to be declared well founded. That grave breach must either result from a single serious act or from the repetition of the same less serious acts which, individually, would not in themselves be considered to be sufficiently serious. On the other hand, the seriousness of the act or its repetition, or even the accumulation of several acts, may have an impact on the extent of the deprivation of the right to a pension or other benefits in its stead. (79)
2.      Examination of the complaints in the case of Mr Pinxten
142. The ECA relies on five complaints in support of its action, which relate to at least 332 facts in respect of the first plea alone. However, as I have just explained, not all the failings relied on in support of those complaints are essential to establish the failure referred to in Article 286(6) TFEU. I shall therefore limit my analysis, in respect of each complaint, to the facts which I consider the most likely to point to an indisputable failure to fulfil the obligations incumbent on a Member of ECA, without prejudice to the reality of the other facts.
(a)    On the first plea:improper use of the resources of the ECA to finance activities unrelated or incompatible with the duties of an ECA Member
143. In accordance with Article 7 of Regulation No 2290/77, a Member of the ECA who is ‘required in the course of his duties to travel away from the [seat of the ECA] shall be entitled to reimbursement of travelling [and] hotel expenses [and to] a subsistence allowance’. In order to obtain these reimbursements and allowances, it follows from the very wording of this provision that the activity at the origin of the expenditure must be related to the performance of the duties of a Member of the ECA.
144. In that regard, following a review of the essentially uncontested evidence, it seems difficult to avoid the conclusion that Mr Pinxten abused the system by presenting certain activities in an inadequate manner in order to benefit from the reimbursement allowed by Regulation No 2290/77. I regret to say that ample evidence of this is provided by his stays in Crans Montana (Switzerland) and in Cuba and his participation in certain hunting events at Chambord (France) and Ciergnon (Belgium).
(1)    The stay in Crans Montana
145. In a note dated 11 July 2013 addressed to the ECA’s President, Mr Pinxten explained that ‘as Dean of the Court’s Chamber III, [he] ha[d] been invited by the Crans Montana Forum to attend its Summer Session from 22nd to 25th August 2013’. (80) According to this note ‘key Representatives from Governments, Diplomacy, International Organizations, Political Parties and Parliaments from all parts of the world come together in Crans Montana to discuss current international policy issues’. In these circumstances, since ‘[he had been] invited as a Member of the [ECA], [he] would like to request the payment of the accommodation and financial contribution ([EUR 3 570.00]) by the Court’.
146. Although this mission was accepted and the sum requested was paid by the ECA, it appears from the file that the three pieces of information that Mr Pinxten gave in his note – the fact of having been invited, the purpose of the event and the cost – were not strictly correct.
147. First, it seems that Mr Pinxten was not invited to this event, either as Dean of the ECA’s Chamber III or even as a Member of the institution. On the contrary, while his assistant had sent an email on 29 May 2013 to ‘info@cmf.ch’ indicating that Mr Pinxten would be interested in attending the event, he received a reply on the same day to the effect that the ‘Crans Montana Forum’s Summer Session is a restricted event where a very limited number of persons (40 persons) are convened in this exclusive Mountain Resort’. It was only after the intervention and on the recommendation of a former Belgian Minister that some two weeks later Mr Pinxten received a second email from the organisers indicating that he was welcome to attend the event, without, however, any reference to his function or his title. (81)
148. Second, the first email of the Crans Montana Executive Office of 29 May 2013 indicated that there was no specific programme for what was called the ‘Special Summer Session’. This is confirmed by the presentation form of the annual event and the programme communicated later on. That document indicated that ‘the Summer session is restricted to a maximum of only 60 Forum’s friends [who] come and share a very privileged framework of relaxation and friendship in this exceptional resort’. (82) The full programme of the stay also revealed that there were no working sessions or even formal discussion time. All the mornings and afternoons were occupied by walks, excursions and shopping opportunities. Indeed, the programme rather disarmingly stated that ‘it is a weekend at the mountain! There is no requirement for elegance or special attire’. People were invited to ‘think of yourself as on holiday and come as you wish’. (83)
149. Third, while Mr Pinxten requested payment for the accommodation and the financial contribution of EUR 3 570.00, it appears from the registration form and the invoice that the financial contribution required from the Forum was only EUR 2 950.00 for Mr Pinxten. (84) The difference – EUR 620 – corresponded to the additional cost of the two additional nights taken by Mr Pinxten and his wife the day before and the day after the event, whereas the first activity was scheduled for 7 p.m. on 22 August 2013 and nothing was proposed on 25 August after breakfast at 9.30 a.m. Even allowing the fact of travel from Luxembourg by car, those two nights were therefore not necessary to participate in the event. (85)
150. Given the undemanding nature of the event programme, one must doubt whether any possible benefit accrued to the ECA by reason of Mr Pinxten’s participation. It seems instead to have been simply an opportunity for recreation and leisure in a fancy hotel at an agreeable location. In those circumstances, the activity should have been considered in reality as a private trip.
151. In expressing this view, I do not overlook the fact that greater attention could perhaps have been paid to the content of the programme and some further questions could have been asked about the true nature of the Forum event before approval was given to Mr Pinxten’s participation. Yet I do not think it would be fair to criticise the ECA in this respect. The ECA was entitled to expect high standards from its Members and, specifically, if the Member attended an event which was in fact no more than an opportunity for rest and relaxation, such should have been paid for from their own funds and not at the ultimate expense of the European taxpayer.
(2)    The stay in Cuba
152. From 30 March 2015 to 14 April 2015, Mr Pinxten and his wife travelled to Cuba. Mr Pinxten presented this trip as an official mission for the ECA and, as such, received reimbursement of mission expenses and daily allowances for a total of EUR 10 042.71.
153. In a note to the ECA’s President of 24 March 2015, he presented the mission in Cuba in these terms: ‘[it] should give extra insights into EU-Cuba relations in the light of a possible rapidly evolving situation in the country. This may lead to the insertion of Cuba into one of the coming work programmes of Chamber III, which is responsible for the audit of the EU External Actions. The mission focuses on contacts with representatives of the civil society (NGO’s, academics, journalists_…) and field visits to EU-UNDP projects. Notwithstanding all preparations of the mission from Luxemburg and Brussels, due to the “authoritarian” state structure, most contacts and field visits will have to be arranged after arrival in Havana’. (86)
154. Despite this presentation, it is clear from the file submitted to the Court by the ECA that this trip was envisaged from the very beginning as a private trip. Indeed, in the first email sent by Mr Pinxten’s assistant to the EU Ambassador to Cuba, it was explained that Mr Pinxten and his wife were planning a private trip to Cuba because they had not yet explored this country. (87) Through this email, Mr Pinxten was looking for suggestions regarding hotels, cities and islands to visit and any other useful information. The following day, a second email was sent to list the cities that Mr Pinxten had thought of and that ultimately correspond to the cities visited by Mr Pinxten and his wife. (88)
155. It is true that, about 10 days before departure, Mr Pinxten expressed a desire to meet journalists, representatives from NGOs, the representatives of beneficiaries and/or contracting parties of EU funding and also to visit certain projects. (89) Thus, Mr Pinxten’s team had identified the United Nations Development Programme (UNDP) as the most important contracting party and had sent an email to the UNDP to see if it was possible to visit projects implemented by the latter at the time when Mr Pinxten and his wife would be in the region concerned. (90)
156. The responses to this request were, however, unanimous and unambiguous. Thus, the EU Ambassador to Cuba replied that ‘this may pose a number of issues in Cuba … As a general rule, it [is] difficult in Cuba to combine tourism with official activities’. (91) The Resident Representative of the UNDP to Cuba confirmed that ‘UNDP Cuba fully agrees with [this] assessment’. (92) In addition, the Belgian Ambassador to Cuba wrote that he fully agreed with the assessment which the EU Ambassador had made, adding that ‘an official meeting [was] very unlikely [and that] the same goes for an informal meeting [because, i]n general, Cuban officials do not accept invitations for this kind of meeting [and t]his is certainly the case for meetings with foreign officials who have a high position in their country or organisation’. (93)
157. Although his assistant transferred the first two emails to him on 18 March 2015 (94) – so that he must have been aware of the fact that the Cuban authorities frowned on the idea of combining any aspects of business with a trip mainly designed for tourist purposes – Mr Pinxten expressly wrote in his memorandum to the ECA President of 24 March 2015 that ‘the mission focuses on contacts with representatives of the civil society (NGO’s, academics, journalists, …) and field visits to EU-UNDP projects’. He added that ‘most of contacts and field visits will have to be arranged after arrival in Havana’.
158. It is hard to believe that Mr Pinxten could have thought that such meetings and visits would be possible when he had been repeatedly warned that any field visit or meeting with local authorities required a working visa and he had nevertheless decided to travel to Cuba on a tourist visa. (95) In any case, it appears from Mr Pinxten’s programme that the only meetings that took place in Cuba were limited to an informal meeting with the EU Ambassador on 31 March 2015, that is to say, the first day after his arrival in Cuba, together with an unscheduled meeting of a couple of hours with a member of the EU delegation to Cuba on the following day. (96)
159. For the rest, Mr Pinxten and his wife were simply invited by the EU Ambassador on 2 April 2015 to an informal welcome lunch at his residence, in the presence of the Belgian Ambassador and his wife, the UNDP Permanent Representative and a representative of the Union of Writers and Artists of Cuba. The informal nature of this lunch was confirmed during the OLAF investigation by the EU Ambassador himself (97) and by the member of the EU delegation in Cuba met by Mr Pinxten the previous day. (98) The latter had already noted the purely informal nature of this lunch in a brief summary of Mr Pinxten’s visit written in tempore non suspecto. (99) This summary also confirms that the meeting on 1 April 2015 was an ‘easy friendly exchange … more of a political interest and perspective rather than technical’. Finally, it can also be observed that, while the rest of the trip to the country is not disputed, no other visits or meetings of an official or even quasi-official nature took place.
160. In those circumstances, it is quite obvious that the trip was largely a private one. In any event, it is clear that two meetings and one lunch organised over three days in Havana did not justify a 14-day trip throughout the country. Instead, however, of acknowledging that the objectives presented in his note to the ECA of 24 March 2015 were not achieved, Mr Pinxten claimed in his mission report that ‘[he had] managed to meet a number of highly interesting and well informed people’. (100) The most that can possibly be said is that, as the representative of the ECA confirmed at the oral hearing, two of the days might have been regarded as having been devoted to official business.
(3)    Hunts in Chambord (France) and Ciergnon (Belgium)
161. It is clear from the ECA’s file and the OLAF investigation that Mr Pinxten seems to have been a regular hunter. Of the 40 or so hunts mentioned in OLAF’s final report, he took part in some of them as if they were part of an official mission and, as such, received reimbursement of mission expenses and daily allowances. This is the case of at least three hunts to Chambord (France) and two to Ciergnon (Belgium).
162. In relation to the hunts at Chambord on 25 January 2013, 13 February 2015 and 12 February 2016, Mr Pinxten justified these missions by the fact that he was invited as a Member of the ECA, together with other leading European and French personalities, for what he called ‘European Days’. However, despite a statement to that effect from the Director-General of the National Estate of Chambord – made at the request of Mr Pinxten in the context of the OLAF investigation (101) – the only other reference to a ‘European hunt’ (‘une battue européenne’) was made in an email from the Director of Hunting and Forestry of Chambord inviting Mr Pinxten to the hunt on 13 February 2015. This email was marked for the attention of Minister Pinxten on 7 December 2014 (and not qua member of the ECA). (102)
163. Furthermore, it seems that Mr Pinxten was invited to these hunts following a personal initiative and on the intervention of a personal friend. (103) Above all, there is no indication of a ‘European Day’ or a ‘European hunt’ in any of the other emails exchanged about Chambord or in any of the three official invitations received. On the contrary, the invitations or reply cards only mentioned ‘regulation boar hunt’ (104) or ‘beat of deer and wild boars’ (105) or even simply ‘regulation hunt’. (106)
164. On the other hand, while it is true that official missions may also combine social activities or informal meetings, it must be noted that it follows from the programmes for the hunts at Chambord in which Mr Pinxten participated in 2013, 2015 and 2016 that all the days were occupied by hunting activities, from the morning until dinners in the evening. (107) In those circumstances, it is difficult to see a link between these events and Mr Pinxten’s role at the ECA.
165. Regarding the Ciergnon hunts, it is, if anything, even more difficult to accept a possible link with Mr Pinxten’s work or responsibilities at the ECA. Indeed, contrary to what was alleged during the hearing of 29 September 2020, the invitations were sent to his private address in Belgium by the Head of Protocol of the House of the King of the Belgians. These invitations were without any reference to the ECA or to any ‘European day’. (108) Moreover, according to the table attached to the OLAF report, allowances and/or hotel expenses were paid to Mr Pinxten in relation to these hunts in 2014 and 2015. (109)
(b)    On the second plea: an improper and unlawful use of tax privileges
166. By its second complaint, the ECA submits that Mr Pinxten infringed Article 12 of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (110) and provisions of the Luxembourg regulation of 7 February 2013 on the allowances and exemptions granted to diplomatic missions. Specifically, Mr Pinxten allegedly made an improper and unlawful use of the fuel cards made available to him by allowing certain persons to benefit unduly from the relief from VAT and excise duties granted to diplomats in Luxembourg.
167. Like other Members of the ECA, Mr Pinxten had two fuel cards for a maximum of two private cars registered in Luxembourg. He used one for his personal car, driven by his wife, and the other for his second personal car, driven by his son. The fact that the use of the fuel cards meant benefiting from the price reduction and exemption from VAT was expressly stated in the email of 18 March 2009 relied on by Mr Pinxten himself in his defence. (111) In addition, it was also made clear in a note for the attention of the President and Members of the ECA and the Secretary-General of 3 November 2010 that the cards had a confidential code, partly associated with the ECA and partly with the user himself, which made it possible to identify the author of each transaction. It was added that ‘each card [is] specific to one car and should thus remain in the vehicle’. (112)
168. It is unnecessary for present purposes to dwell on the fact that one of Mr Pinxten’s sons was no longer dependent on his parents (and therefore no longer authorised to use one of the fuel cards). Indeed, irrespective of this matter, it is clear nevertheless that the use of the fuel cards was not made in accordance with the rules recalled above.
169. Indeed, the two cars associated with the additional fuel cards were diesel-powered. However, an examination of the use of the cards revealed several anomalies. First, it appears from fuel provider’s invoices that one of the fuel cards was regularly used to buy petrol (at least 11 times over a period of 17 months). (113) Moreover, these invoices also reveal that one of the fuel cards was used for buying diesel, while the other fuel card was used on the same day to buy petrol for what was supposed to be in principle the same car. (114) There are even days on which the card was used at the same service station, once for petrol and once for diesel, at intervals only two or four minutes apart, (115) which is obviously impossible. In those circumstances, the excuse of a replacement vehicle is therefore not plausible. On the contrary, these invoices demonstrate a manifest abuse in the use of the additional fuel cards in breach of the rules clearly mentioned in several documents addressed to Mr Pinxten. In fact, the mere simultaneous use of two different fuels – one of which is incompatible with the vehicle with which the card was associated – demonstrates that Mr Pinxten has passed on the fuel cards and the tax advantages associated with them to unauthorised third parties.
(c)    On the third plea:false declarations of insurance
170. In the third complaint, Mr Pinxten is accused of having made false statement of claims in two accidents involving the official vehicle placed at his disposal and for which he received two undue compensation payments. The first relates to an incident that occurred on 14 January 2010, in which Mr Pinxten’s driver ran over a suitcase containing a bottle of wine and several items of clothing. The other relates to an accident on 17 January 2011 between his private car, driven by his son, and the official car, driven by his driver. However, it appears from the driver’s testimony given during the OLAF investigation that the first incident did not lead to the consequences as declared and that the driver was not involved in the second accident.
171. As regards the first incident, it appears that Mr Pinxten was reimbursed for several items of clothing, including two suits, on the basis of a declaration of accident signed by his driver (116) and a formal statement signed by Mr Pinxten himself. (117) Having regard, however, to the testimony of Mr Pinxten’s driver during the OLAF investigation, the circumstances in which this happened are not very clear. In addition, according to the same testimony, the suitcase in which a bottle of wine broke was too small to accommodate two suits, as Mr Pinxten declared to the insurance company. (118) At the same time, the insurance company appears to have paid compensation without dispute.
172. In relation to the second accident, the role played by Mr Pinxten is unclear. The incident was initially reported by Mr Pinxten himself. The insurance company refused to pay because the accident had occurred between two members of the same family. This is confirmed not only by an email of 28 January 2011 sent by an employee of the insurance company to the general manager of the car leasing company in charge of the ECA’s cars, that is to say, less than two weeks after the date of the accident, (119) but also by Mr Pinxten himself in a letter of 11 January 2012 addressed to the director of the insurance company. (120) In that letter, he expressly states that the facts occurred as he had previously stated and that he considers the decision of the insurance company to be unfair when the only reason for refusing to intervene is that two persons from the same family could not be involved and appear on the accident report. The explanations given by Mr Pinxten to the Secretary-General of the ECA in a memorandum of 1 September 2016, according to which ‘this letter may give a different impression for someone who did not see the statement of facts and does not know that Mr S.G. was [his] official driver, [but] by no means [he] pretended to have driven [his] service car [him]self’ (121) are not convincing. On the one hand, this document was prepared at a time when the first allegations were made by the ECA. On the other hand, it is difficult to believe that Mr Pinxten would use a personal pronoun such as ‘I’ or ‘us’ (in reference to Mr Pinxten himself and his son) while the person involved is a third party.
173. It must be noted, however, that the accident report form submitted to the insurance company was signed by Mr Pinxten’s son and Mr Pinxten’s driver. Admittedly, it cannot be ruled out on reading the file that the fact that the accident report was finally signed by Mr Pinxten’s driver was an initiative of the person responsible for drivers at the ECA (122) or Mr Pinxten himself in reaction to the insurer’s refusal to intervene. (123) In these circumstances, it must be noted that there is no unambiguous evidence of Mr Pinxten’s involvement and actual knowledge of the alleged fraud giving rise to the reimbursement.
174. In these circumstances, I do not believe that the third complaint has been established.
(d)    On the fourth complaint: the undeclared and unlawful position as manager of a commercial company and of intense political activity
175. In respect of the fourth complaint, Mr Pinxten is essentially accused of two things. First, he is alleged to have acted as a manager of a commercial company since 2016, when he bought a property in Burgundy consisting of a house and a vineyard. Second, Mr Pinxten is alleged to have engaged in intense political activity within a political party while he was in office at the ECA.
176. Regarding the activity in a commercial company, Mr Pinxten argues that it was not a commercial or professional activity. According to Mr Pinxten, he was a shareholder – together with his wife and children – in a ‘société civile immobilière’. The activity of manager was not professional. The company would simply receive rent for renting the property.
177. Regardless of this financial aspect, it appears from the file that Mr Pinxten did not declare this situation in due time and, a fortiori, that it was not approved. This only became apparent when Mr Pinxten informed the ECA in September 2018, after his mandate ended in April 2018, that he had been appointed two months earlier as ‘gérant’ (administrative manager) of the vineyard in Chambolle Musigny (France), after it had changed its legal form to a ‘Groupement foncier agricole’. (124) However, Article 6 of the Rules for Implementing the Rules of Procedure of the ECA requires Members of the ECA to declare all their outside activities and Article 2(2) of the Code of Conduct for ECA Members provides that ‘any property owned either directly or through a real estate company must be declared’, with the sole exception of homes reserved for the exclusive use of the owner or their family. Mr Pinxten accordingly failed to comply with this obligation during his term of office.
178. As regards political activities, the rules of the ECA are particularly clear. First, Article 4(1) of the Code of Conduct for ECA Members states that they shall devote themselves to the fulfilment of their mandate and that ‘they may not exercise any political office’. Second, Point 3.2. of the Ethical Guidelines of the ECA provides that the Members of the ECA must carry out their tasks without any political, national or other external influence. Third, to remove any shadow of a doubt, Point 3.3. of these Ethical Guidelines points out that Members of the ECA must ‘avoid any conflict of interest, whether real or apparent [which] might be the case, for example, in connection with membership of political organisations, political office …’. (125)
179. There is no doubt that Mr Pinxten was aware of these rules. Indeed, as early as May 2006, Mr Pinxten had asked to retain his mandate of mayor of the town of Overpelt (Belgium). That request was, however, rejected on the basis of Article 286 TFEU and the abovementioned Code of Conduct for ECA Members, even though Mr Pinxten had in fact delegated all his duties as mayor and sought to retain only the title associated with this political function. (126)
180. The evidence establishes, however, that – remarkable as it must seem – between 2006 and 2017, Mr Pinxten continued to be a member of the board of a political party in Belgium. In his defence, Mr Pinxten submits that, since November 2008, he was only member of the ‘extended board’, that is to say, without voting rights. This argument can carry little weight and the fact that it was made at all in its own way speaks volumes regarding Mr Pinxten’s general approach to the obligations of complete objectivity and detachment from political activity which are to be expected from a Member of the ECA.
181. It is scarcely necessary to add that the absence of voting rights does not prevent a person from expressing his or her point of view on the matters discussed and, thus, influencing the outcome of any vote or, on the contrary, from being influenced by the discussion. In any event, it is the very fact that Mr Pinxten remained an active member of a national political party which is objectionable.
182. It is clear that Mr Pinxten had the firm intention to remain an influential member of his political party and therefore to be active on the political board. Thus, for example, Mr Pinxten gave personal advice to his party president on the best media strategy for the party on an economic issue. (127) He also insisted on meeting with the party president when he was unable to attend the party board because he wanted to talk about a matter of interest to her and the party. (128) On the other hand, there is also evidence that Mr Pinxten was someone who participated regularly on the political board. For example, out of 57 meetings between February 2009 and April 2010, Mr Pinxten attended 30 meetings, sometimes even twice in the same week. Even more than his attendance at meetings, the minutes of the meetings reveal that the topics discussed were clearly likely to influence Mr Pinxten’s work or his independence as a Member of the ECA. These subjects included matters such as the regional and European election campaigns and the decision that would be adopted by shareholders in respect of a merger between two major banks in Belgium, (129) the consequences of the national elections on Belgium’s future institutional system, (130) or even the multiannual plan to be submitted to the Commission, (131) the Commission’s observations on the Belgian budget, (132) the possibility that the first President of the European Council would be Belgian and the Prime Minister’s succession, (133) the appointment of the new Prime Minister (134) or the party’s priority for the Belgian EU presidency (135) were discussed in the presence of Mr Pinxten, who was then Member of the ECA and his party a member of the Belgian Government.
183. Yet the Treaty itself is particularly clear on this question: the independence of the Members of the ECA must be beyond doubt (Article 286(1) TFEU) and, in the performance of their duties, they cannot take instructions from any government or from any other body (Article 286(3) TFEU). This means that active party political activity of this kind is totally inconsistent with membership of the ECA. All of this should be regarded as elementary by any member of the ECA and I cannot refrain from observing that Mr Pinxten’s conduct in this regard simply cannot be excused.
(e)    On the fifth complaint: the conflict of interest created in the context of an offer to rent a private apartment to the head of an audited entity
184. By the fifth complaint, the ECA alleges that Mr Pinxten created a conflict of interest by offering a private apartment for rent to the High Representative of the Union for Foreign Affairs and Security Policy (Ms Mogherini), when that entity came within the jurisdiction of the ECA’s chamber of which he was the dean.
185. It appears from the file that an offer was effectively sent by Mr Pinxten to Ms Mogherini on 20 November 2014 without any reference to his office at the ECA, except the mention of his electronic address under his signature. (136) This initiative was certainly most ill-advised in the light of the post occupied by Mr Pinxten and it opened the way for a clear conflict of interest.
3.      Existence of a failure to fulfil the obligations referred to in Articles 285 and 286 TFEU
186. Having analysed the arguments of the parties and their files, I conclude that most of the key facts detailing what Mr Pinxten is accused of in the first, second and fourth complaints have certainly been established. They constitute a circumvention of the applicable rules, namely, at the very least, Article 7 of Regulation No 2290/77, Article 12 of Directive 2008/118, the Luxembourg regulation of 7 February 2013 on the allowances and exemptions granted to diplomatic missions, Article 4(1) of the Code of Conduct for ECA Members and Points 2.2., 3.2. and 3.3. of the Ethical Guidelines of the ECA. The behaviour alleged in the fifth complaint, that is to say, the offer of a private apartment for rent, was also certainly ill-advised and, to that extent, inappropriate.
187. While some of the facts established are in themselves a breach of a certain degree of gravity, it is in any case plain that, as a whole, they demonstrate complete disregard for the rules in force. These various acts are symptomatic of a basic attitude indicating that Mr Pinxten was willing, whilst in office as Member of the ECA, to use that office to extend his benefits at the expense of the Union budget. (137)
188. The file establishes that Mr Pinxten clearly not only had a definite difficulty in understanding the requirements of his office but also in determining what expenses were covered by public funds and what had to be borne personally. The file thus reveals, on the one hand, repeated – if not persistent – and characterised misuse of the advantages and privileges linked to his function at the ECA, in particular with a view to not having to pay for private expenses or leisure activities unrelated to his function at the ECA and, on the other hand, an incapacity to leave his former political career and the influence he previously had on Belgian politics.
189. This behaviour undoubtedly constitutes a serious breach of the fundamental principles which define the duties of a Member of the ECA and which are set out in the solemn undertaking which Mr Pinxten swore to respect at the beginning of his term of office: the duties of integrity, discretion and independence.
190. Some of the events which form the basis for the present complaints, such as the stays in Crans Montana or Cuba, the hunting at Chambord and Ciergnon or the apparently casual manner with which he used the fuel cards are all the more unacceptable in the light of the role of the ECA which has to be the ‘financial conscience’ of the European Union. Indeed, one might ask how credit can be given to an audit of the ECA if its author him or herself does not respect the rules in his or her use of public funds. The facts complained of are all the more serious in that Mr Pinxten was the person who de facto sought to contrive the invitations cited in support of his expenses whereas the duty of ECA Members is to ensure that the general interest of the Union takes precedence at all times over personal interests. (138)
191. Mr Pinxten argues by way of justification that the rules were unclear or that he has, in any event, complied with the internal rules of the ECA as they were applicable at the time of the facts; he always received the approval of the ECA’s President and that other Members of the ECA were doing the same. Even if true – and, in fairness, none of this, with the exception of the President’s authorisations, has ever been established – none of this can excuse his behaviour.
192. First, with regard to the clarity of the applicable rules, I have demonstrated that the main rules infringed by Mr Pinxten – the rules relating to official missions, the use of the fuel cards or the prohibition of political activities – were not only clear, but were also perfectly known to him. Then, it also seems evident to me that the principles of integrity, discretion and independence, which are also at the basis of Mr Pinxten’s breaches, do not need to be developed in secondary regulations in order to understand their very essence. In the same vein, I share the view of Advocate General Geelhoed in Commission v Cresson that ‘it is not entirely possible, nor is it useful to attempt to lay down standards for proper conduct in public office in an exhaustive manner. There will always be an element in which one may not be able to identify which standard has been breached, yet to be able to conclude that the conduct nevertheless is contrary to the general interest’. (139) In that respect, one may observe that the categories of possible misconduct for the purposes of Article 286 TFEU are never closed.
193. Second, as regards the fact that Mr Pinxten’s requests received the approval of the President of the ECA, it should be recalled, as the Court has moreover ruled in Commission v Cresson, that Mr Pinxten cannot extricate himself from his responsibility by taking refuge behind the authorisation of someone else. (140) Furthermore, it has to be noted that the authorisations received were based on information that was often incomplete or even incorrect. In that regard, the failure to request further information in cases of doubt cannot be blamed on the ECA’s President. Indeed, the relationship between the President and the Members of the Court is not a hierarchical one but rather a relationship between equals, based on good faith and trust. In these circumstances, it was certainly not a question that the President of the ECA suspected Mr Pinxten of lying, but rather a question of Mr Pinxten being honest.
194. In this respect, it may be recalled that, in accordance with the principle of sincere cooperation laid down in Article 4(3) TEU, ‘the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties’. However, the Union is not a theoretical notion. It is a reality that is given concrete form by the people who constitute it, including the Members of the institutions at the highest level. In any event, even if the internal rules of the ECA relating to the information to be supplied in support of an application for authorisation to carry out a mission were perhaps not very demanding at the material time and had to be regarded as having been complied with in the present case, it is nevertheless true that the conduct covered by those applications was clearly contrary to the fundamental principles underlying the oath taken by Mr Pinxten.
195. Third, as regards the conduct of the other Members of the ECA, even if it were demonstrated that some of them behaved in a similar manner – and, to repeat, no such evidence has been presented for this purpose – it must be recalled that, under the principle of legality, no person may rely, in support of his or her claim, on an unlawful act committed in favour of another. (141)
196. In those circumstances, I am obliged to conclude that Mr Pinxten’s conduct fell by some distance short of the ethical and regulatory obligations imposed on Members of the ECA. In doing so, he became liable in respect of a serious breach of his ethical obligations that is of a certain degree of gravity.
D.      Sanction
197. As the Court observed in its judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455), in respect of Members of the Commission under the second paragraph of Article 245 TFEU, the breach of the obligations arising from the office of a Member of the ECA calls, in principle, for the imposition of a penalty under Article 286(6) TFEU. (142) Although the ECA leaves it to the Court’s discretion to determine the nature and size of such a sanction, the ECA submits that any sanction imposed should take the principle of proportionality into account.
1.      Applicable case-law and principles
198. The principle of proportionality of sanctions is obviously guaranteed at the constitutional level by Article 49(3) of the Charter. That provision requires that the severity of any penalties must not be disproportionate to the criminal offence which has been committed. (143) While the present proceedings do not of course involve any adjudication as to whether Mr Pinxten has been guilty of a criminal offence, it is nonetheless clear that the principle of proportionality is a general principle of EU law which applies to the imposition of sanctions whatever the fields of EU law concerned. (144)
199. Moreover, the requirement of proportionality of sanctions is also present in the case-law of the ECtHR. In particular, Article 1 of the First Additional Protocol to the European Convention on Human Rights (ECHR) provides that ‘every natural or legal person is entitled to the peaceful enjoyment of his possessions’.
200. In order to determine whether there is an infringement of that right, the case-law of the ECtHR shows that it assesses whether sanctions of a pecuniary nature, including the reduction or forfeiture of a retirement pension, are proportionate. This involves an assessment of whether a fair balance is struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. (145) According to this case-law, the requisite balance will not have been struck if the person concerned will have to bear an individual and excessive burden. (146)
201. In the particular context of a reduction or a forfeiture of a retirement pension, it must also be noted that the ECtHR has pointed out that it does not consider it inherently unreasonable for provision to be made for the reduction or even the total forfeiture of pensions in a suitable case. (147) On the other hand, whether or not the right balance has been struck will very much depend on the circumstances and particular factors of a given case which may tip the scales one way or the other. (148)
202. Under Article 52(3) of the Charter, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same as those laid down by the ECHR. That means that, since Article 17(1) of the Charter also states ‘everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions’, the requirements of the ECtHR which I have just outlined above must necessarily be taken into account when interpreting the minimum threshold of protection for the purposes of Article 17 of the Charter. (149)
203. In order to assess whether the sanction is consistent with the principle of proportionality, the case-law suggests that account must be taken of, inter alia, the conduct of the person concerned, (150) the nature and the degree of seriousness of the infringement which the penalty seeks to sanction, (151) the duration of the breach of the rules in question, (152) but also the damage caused to the ECA as an institution. (153) Finally, the fact that the forfeiture of a retirement pension does not leave the person concerned without any means of subsistence, or, more generally, that it does not have a decisive impact on the person’s overall financial situation, can also be a relevant factor so far as the assessment of the proportionality of the sanction is concerned. (154)
204. Applying these principles to the ECA, it can be said that office-holders such as Mr Pinxten are expected to maintain the highest standards of personal probity and integrity. It is important to be clear about this. Human beings are, by their nature, weak and fallible creatures and even the most conscientious and honourable are prone to error and misjudgement. Any assessment of a proportionality analysis must accordingly make some allowance for the human condition and if perfection is to be required of candidates for high office, no one could properly be called upon to serve.
205. Here, however, there is an in-built element of proportionality to begin with in relation to an application under Article 286(6) TFEU, since, as I have already observed, only grave failings on the part of the Member concerned could justify the making of such an application. Yet, as I have also just stated, the proportionality assessment must also take account of the damage which the Member’s conduct has done or will do to the institution concerned. Those who accept high office are under a special duty not to behave in a manner which would undermine the very objectives of the institution in which they serve. The ECA is fundamentally designed to ensure that the public revenues of the Union are expended in a lawful and efficient manner and these objectives are not well served where a Member of the ECA behaves in a manner which is manifestly at odds with these objectives and which undermines public confidence in the ability or even the willingness of the ECA to discharge its mandate.
206. In addition to these principles, it must be recalled that, so far as the actual sanction is concerned, the only real precedent is that provided by Commission
v Cresson itself. In that case, the former Commissioner was found guilty of having shown favouritism by appointing a personal friend to a particular position of responsibility for which he had no qualifications. While in his Opinion, Advocate General Geelhoed concluded that the conduct was sufficiently serious to warrant the deprivation of Ms Cresson’s full pension, he considered that there were sufficiently mitigating factors to justify reducing that deduction to 50%. (155) The Court, on the other hand, did not go this far, contenting itself with saying that the very fact of the finding was in itself a sufficient penalty. It did not order any reduction in Ms Cresson’s pension.
207. In the light of this precedent and the principles governing the assessment of a sanction in accordance with the principle of proportionality, what then should be the sanction in the present case?
2.      Application of case-law and principles to facts in the present case
208. It should first be recalled that the judgment in Commission v Cresson was itself groundbreaking. Both the Opinion of the Advocate General and the judgment of the Court nevertheless set out the requisite standards which high office-holders such as Mr Pinxten must be presumed to have been aware. In that regard, it must be admitted that the failure in question results not only from a number of individual and serious acts, but also from acts whose repetition regrettably reflects a manifest disregard for those standards.
209. In other words, the conduct established in the present case shows a persistent and contumelious failure to abide by ordinary rules of behaviour which constitute a serious breach of the fundamental principles underlying the commitment of the Members of all EU institutions: integrity, discretion and independence as stipulated, for the ECA, in Articles 285 and 286 TFEU.
210. Next, whereas Commission v Cresson involved a single act of admittedly gross favouritism, Mr Pinxten’s conduct showed that he was repeatedly and over a period of time spanning several years prepared to abuse his office for acts of personal enrichment or in the pursuit of his personal interests. In that regard, Mr Pinxten’s persistent involvement in Belgian party politics is inexcusable and his behaviour in respect of the claims for various expenses such as the entirety of the Cuban trip, the visit to Crans Montana and the various hunting expeditions is just as bad. Mr Pinxten clearly abused the fuel card regime for his own private purposes and the most charitable explanation of the offer of his premises for rent to Ms Mogherini in circumstances of a manifest conflict of interest on his part was that it showed abysmally poor judgement.
211. Moreover, while some of those acts have had an impact on the EU budget, all of them have also had consequences on the credibility and public image of the Union and, in particular, of the ECA. This is all the more serious for an institution such as the ECA, whose legitimacy lies in its independence and the importance of its role in fostering good government and confidence in the manner in which the Union’s public revenues are spent. If a Member of the ECA cannot be trusted to follow high standards in relation to financial matters, this undermines the entire system of financial oversight within the Union and damages the very institution of which he was a Member.
212. Finally, there is little that can be said by way of mitigation beyond the fact that Mr Pinxten served for 12 years and, I am prepared to accept, did some good work during this period. Yet, first, as I have already demonstrated, the main rules which have been infringed were clear and were perfectly known and understood for someone in a position such as Mr Pinxten. Second, although Mr Pinxten received authorisations for certain missions or expenditure, these authorisations were based on information that was often incomplete or even incorrect. Third, even if it were demonstrated, quod non, that certain other Members of the ECA behaved in a similar manner to Mr Pinxten, such conduct would not alleviate its intrinsic seriousness. Fourth, I would add, in addition, that, even if the deprivation of the right to his pension is likely to have a real financial impact on Mr Pinxten – but is that not also the aim of Article 286(6) TFEU? – it must be borne in mind that the deprivation in question is linked only to part of Mr Pinxten’s professional activity, which, despite two terms of office, is fairly short in relation to his entire career. In these circumstances, I therefore do not believe that deprivation of the right to a pension as a Member of ECA – even a full deprivation – is likely to leave Mr Pinxten without any means of subsistence.
213. All of this makes the conduct of Mr Pinxten worthy of stringent censure. This is why I am of the opinion that the breaches, as described and established above, are sufficiently serious to warrant the deprivation of the right to a significant part of his pension and to other connected benefits. While, as I have said, I am prepared to accept that Mr Pinxten has done some good work during his terms of office – and this factor must itself be relevant to the proportionality analysis – there is also no escaping the fact that the institutional damage is considerable.
214. All of this points to the necessity to visit a severe penalty on Mr Pinxten in respect of his behaviour. I would therefore propose that the Court should, pursuant to its jurisdiction under Article 286(6) TFEU, deprive Mr Pinxten of two thirds of his pension entitlements.
VIII. Mr Pinxten’s claims and costs
215. First, Mr Pinxten requests the production of the report on the internal audit, for the period from 2012 to 2018, of the mission expenses of the Members of the ECA and of the use of official vehicles by all those Members. This request seems to me to have to be ruled out because it is of no use in judging his personal behaviour.
216. Second, regarding his claim for damages, I think that this request is inadmissible in the context of the proceedings provided for by Article 286(6) TFEU. In any case, if the Court were to follow my analysis, this request would be unfounded.
217. In relation to the costs, under Article 138(1) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the ECA asked that Mr Pinxten be ordered to pay the costs and the latter has been unsuccessful in his defence, he must be ordered to pay the costs.
IX.    Conclusion
218. In the light of the foregoing considerations, I recommend to the Court to:
–        declare the application brought by the European Court of Auditors admissible;
–        rule that Mr Pinxten acted in breach of the obligations arising from the office of Member of the European Court of Auditors within the meaning of Articles 285 and 286 TFEU;
–        deprive Mr Pinxten of two thirds of his pension rights and connected benefit as from the date of the judgment in the present case;
–        declare inadmissible or, in any event, unfounded, Mr Pinxten’s claim for damages;
–        order Mr Pinxten to pay the costs.
1      Original language: English.
2      OJ 1977 L 268, p. 1.
3      OJ 2004 L 243, p. 26.
4      OJ 2013 L 248, p. 1.
5      Case T‑386/19.
6      Articles 2 and 7 of Regulation No 2290/77; Articles 33 and 74 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1); Article 5 of Decision No 38/2016 of the ECA laying down the Rules for Implementing the Rules of Procedure of the Court of Auditors; Articles 1, 2, 4 and 7 of the Code of Conduct for ECA Members; points 1.2., 2.2., 3.2., 3.3. and 3.7. of the Ethical Guidelines for the ECA; Articles 20, 21 and 25 of the INTOSAI Code of Ethics; Article 2 of Decision No 7‑2004 of the ECA on the representation and hospitality expenses of its Members; Articles 4 to 6 of Decision No 33‑2004 of the ECA on the management and use of the car fleet at the ECA.
7      Article 33 of Regulation 2018/1046; Article 5 of the Rules for Implementing the Rules of Procedure of the Court of Auditors; Article 7 of the Code of Conduct for ECA Members; points 1.2. and 2.2. of the Ethical Guidelines for the ECA; Article 5 of Decision No 7‑2004.
8      Article 3 of the Rules of Procedure of the Court of Auditors (OJ 2010 L 103, p. 1); Article 7 of the Code of Conduct for ECA Members; points 1.2. and 2.2. of the Ethical Guidelines for the ECA.
9      Article 3 of the Rules of Procedure of the Court of Auditors; Articles 5 and 6 of the Rules for Implementing the Rules of Procedure of the Court of Auditors; Articles 1 to 4 and Article 7 of the Code of Conduct for ECA Members; points 1.2., 2.2., 3.3. and 3.7. of the Ethical Guidelines for the ECA.
10      Article 61 of Regulation 2018/1046; Article 3 of the Rules of Procedure of the Court of Auditors; Article 5 of the Rules for Implementing the Rules of Procedure of the Court of Auditors; Articles 1, 2 and 7 of the Code of Conduct for ECA Members; points 1.2., 2.2., 3.1., 3.3., 3.4. and 3.7. of the Ethical Guidelines for the ECA; Article 25 of the INTOSAI Code of Ethics.
11      See, to that effect, judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455, paragraph 118).
12      Judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455).
13      Opinion of Advocate General Geelhoed in Commission v Cresson (C‑432/04, EU:C:2006:140, point 93 in the original version (English) but point 94 in the other language versions). Emphasis added.
14      See https://www.eca.europa.eu/en/Pages/MissionAndRole.aspx.
15      See Court of Auditors (1995), Auditing the Finances of the European Union, Luxembourg, Court of Auditors booklet, esp. pp. 7 and 13.
16      See, to that effect, judgments of 15 November 2011, Commission v Germany (C‑539/09, EU:C:2011:733, paragraph 56), and of 28 July 2016, Council v Commission (C‑660/13, EU:C:2016:616, paragraph 31).
17      See, to that effect, Vardabasso, V., ‘La cendrillon de l’histoire: la cour des comptes européenne et la démocratisation des institutions européennes’, Journal of European Integration History, vol. 17(2), 2011, pp. 285-302, esp. p. 286.
18      See, to that effect, Vardabasso, V., op. cit., esp. p. 300.
19      See, to that effect, Laffan, B., ‘Auditing and accountability in the European Union’, Journal of European Public Policy, vol. 10, Taylor and Francis, 2003, pp. 762-777, esp. p. 762.
20      See, to that effect, Laffan B., op. cit., esp. pp. 762 and 763.
21      Montesquieu, The Spirit of Law, Book XI, Chapter 4 (translation by Stewart, P., Société Montesquieu, Unité Mixte de Recherche 5037, CNRS, 2018, available at http://montesquieu.ens-lyon.fr/spip.php?article2728). In its original version in French: ‘Pour qu’on ne puisse abuser du pouvoir, il faut que, par la disposition des choses, le pouvoir arrête le pouvoir’ (De l’Esprit des lois, Garnier Frères, Paris, 1961_pp. 162-163).
22      See, to that effect, Hourquebie, F., ‘De la séparation des pouvoirs aux contre-pouvoirs: “l’esprit” de la théorie de Montesquieu’, in Vrabie, G. (ed.), L’évolution des concepts de la doctrine classique de droit constitutionnel, Institutul European, 2008, Iasi, Romania, pp. 59-67, esp. p. 60.
23      See, for example, Article 61 of the German Basic Law (which provides for the impeachment of the Federal President before the German Constitutional Court ‘for wilful violation of this Basic Law or any other Federal Law’) and Article 12.3.1 of the Constitution of Ireland (removal of the President of Ireland for permanent incapacity ‘such incapacity being established to the satisfaction of the Supreme Court consisting of not less than five judges’).
24      See Article 16(4) of the Statute of the Court of Justice.
25      See, to that effect, De Bernardinis, C., ‘Vers un modèle européen de régime disciplinaire des fonctionnaires’, inPotvin-Solis, L. (ed.), Vers un modèle européen de la fonction publique, Bruylant, Brussels, 2011, pp. 349-372, esp. p. 352.
26      See, to that effect, Pilorge-Vrancken, J., Le droit de la fonction publique de l’Union européenne, Bruylant, Brussels, 2017, p. 364.
27      Judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455, paragraph 72).
28      Opinion of Advocate General Geelhoed in Commission v Cresson (C‑432/04, EU:C:2006:140, point 67 in the original version (English) but point 68 in the other language versions).
29      Emphasis added.
30      See, to that effect, judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455, paragraph 70).
31      Judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455, paragraphs 70 and 71). Emphasis added.
32      See, to that effect, Vogiatzis, N., ‘The independence of the European Court of Auditors’, Common Market Law Review, vol. 56, 2019, pp. 667-772, esp. p. 669.
33      Opinion of Advocate General Geelhoed in Commission v Cresson (C‑432/04, EU:C:2006:140, point 97 in the original version (English) but point 98 in the other language versions).
34      See, to that effect, in relation to the procedure under Article 245 TFEU, judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455, paragraph 121).
35      Even if it is an acquittal. This situation was expressly analysed by the Court in Nikolaou v Court of Auditors (C‑220/13 P). See, in particular, Opinion of Advocate General Bot (C‑220/13 P, EU:C:2014:176, points 71 and 73), and judgment of 10 July 2014 (C‑220/13 P, EU:C:2014:2057, paragraph 40).
36      Judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455, paragraph 112).
37      See, to that effect, in relation to Article 267 TFEU, judgment of 27 November 2012, Pringle (C‑370/12, EU:C:2012:756, paragraph 33).
38      Opinion of Advocate General Geelhoed in Commission v Cresson (C‑432/04, EU:C:2006:140, point 93 in the original version (English) but point 94 in the other language versions).
39      As a reminder, the provisions referred to here are those applicable at the time when the contested decisions were taken, that is to say, provisions of the Rules of Procedure of the ECA adopted on 11 March 2010 and provisions of Decision No 38/2016 of the ECA laying down the Rules for Implementing the Rules of Procedure of the ECA.
40      See, to that effect, Opinion of Advocate General Wahl in
European Union v Kendrion (C‑150/17 P, EU:C:2018:612, point 29).
41      See, to that effect, judgments of 19 September 2006, Wilson (C‑506/04, EU:C:2006:587, paragraph 53), and of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 123 and the case-law cited).
42      See, to that effect, judgments of 11 July 2013, Ziegler v Commission (C‑439/11 P, EU:C:2013:513, paragraphs 154 and 155), and of 14 June 2016, Marchiani v Parliament (C‑566/14 P, EU:C:2016:437, paragraph 70). See also, in the context of a procedure brought against a Member State, judgment of 20 December 2017, Spain v Council (C‑521/15, EU:C:2017:982, paragraphs 88, 90 and 91).
43      DEC 16/15 FINAL (Annex B.26 of Mr Pinxten’s file).
44      Judgment of 28 February 2013, Review of Arango Jaramillo and Others v EIB (C‑334/12 RX‑II, EU:C:2013:134, paragraph 28). See also judgment of 14 June 2016, Marchiani v Parliament (C‑566/14 P, EU:C:2016:437, paragraph 99).
45      See, to that effect, judgments of 28 February 2013, Review of Arango Jaramillo and Others v EIB (C‑334/12 RX‑II, EU:C:2013:134, paragraphs 29 and 30), and of 14 June 2016, Marchiani v Parliament (C‑566/14 P, EU:C:2016:437, paragraph 100).
46      OJ 2012 L 298, p. 1.
47      See, to that effect, judgment of 14 June 2016, Marchiani v Parliament (C‑566/14 P, EU:C:2016:437, paragraphs 104 and 105).
48      Such as two of the three hunts in Chambord (France) (first complaint), the stay in Cuba (first complaint), the establishment of a private company and Mr Pinxten’s role as a manager of this company (fourth complaint), and the offer of a private apartment for rent to the High Representative of the Union for Foreign Affairs and Security Policy (fifth complaint).
49      Like the improper and unlawful use of the fuel cards made available to him (second complaint) or the participation in the management board of a political party (first and fourth complaints).
50      See, to that effect, ECtHR, 22 June 2000, Coëme and Others v. Belgium, CE:ECHR:2000:0622JUD003249296, § 146.
51      See, to that effect, Franchimont, M., Jacobs, A., and Masset, A., Manuel de procédure pénale, Larcier, Coll. de la Faculté de droit de l’Université de Liège, 2012, Brussels, p. 123. According to the European Court of Human Rights, ‘a “criminal charge” exists from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him’ (ECtHR, 5 October 2017, Kalēja v. Latvia, CE:ECHR:2017:1005JUD002205908, § 36).
52      See, to that effect, for Belgian law, Beernaert, M.‑A., Bosly, H.D., and Vandermeersch, D., Droit de la procédure pénale, La Charte, Bruges, 2014, p. 189.
53      Letter of OLAF to Mr Pinxten of 22 September 2017 (ECA’s file, Annex A.32, p. 252).
54      Letter of OLAF to Ms Levi of 15 December 2017 (ECA’s file, Annex A.34, p. 255).
55      Paragraph 108 of Mr Pinxten’s defence.
56      Emphasis added.
57      See, to that effect, Inghelram, J.F.H., Legal and Institutional Aspects of the European Anti-Fraud Office (OLAF), Europa Law Publishing, Amsterdam, 2011, esp. p. 137.
58      Judgment of 6 June 2019, Dalli v Commission (T‑399/17, not published, EU:T:2019:384, paragraph 86).
59      Letter of OLAF to Ms Levi of 15 December 2017 (ECA’s file, Annex A.34, p. 255).
60      See, to that effect, judgment of 4 April 2019, OZ v EIB (C‑558/17 P, EU:C:2019:289, paragraph 65).
61      See, to that effect, Inghelram, J.F.H., Legal and Institutional Aspects of the European Anti-Fraud Office (OLAF), Europa Law Publishing, Amsterdam, 2011, esp. p. 91.
62      See, to that effect, judgment of 8 September 2015, Taricco and Others (C‑105/14, EU:C:2015:555, paragraph 50).
63      Emphasis added.
64      Mr Pinxten’s file, Annex B.25.
65      See, to that effect, judgments of 18 May 1982, AM & S Europe v Commission (155/79, EU:C:1982:157, paragraphs 21 and 27), and of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission (C‑550/07 P, EU:C:2010:512, paragraph 70).
66      Mr Pinxten’s file, Annex B.25.
67      Paragraph 104.
68      See, to that effect, judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455, paragraph 105).
69      ECA’s file, Annex A.37.72.
70      ECA’s file, Annex A.34.
71      Mr Pinxten’s file, Annex B.20, p. 136.
72      ECA’s file, Annex A.37.73.
73      ECA’s file, Annexes B.37.41 and B.37.88.
74      ECA’s file, Annex A.40.
75      ECA’s file, Annex A.41.
76      See, to that effect, judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455, paragraphs 70 and 71).
77      See points 70 to 76 of the present Opinion.
78      See, to that effect, judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455, paragraph 72).
79      See, to that effect, judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455, paragraph 73).
80      ECA’s file, Annex A.37.27, p. 3859.
81      This is based on the email sent by Mr Pinxten’s assistant on 29 May 2013 (ECA’s file, Annex A.37.27, p. 3858) and emails sent by the Executive Office of Crans Montana Forum on 29 May 2013 and 12 June 2013 (ECA’s file, Annex A.37.27, pp. 3857 and 3875).
82      ECA’s file, Annex A.37.27, p. 3881.
83      ECA’s file, Annex A.37.27, pp. 3862 to 3865.
84      ECA’s file, Annex A.37.27, pp. 3860 (invoice) and 3861 (inscription form).
85      Depending on the route chosen, the journey between Luxembourg (seat of the ECA) and Crans Montana (Switzerland) varies between 600 and 650 km, that is to say, between 6 and 6.5 hours.
86      ECA’s file, Annex A.37.26, p. 3553.
87      Email of 28 January 2015 (ECA’s file, Annex A.37.26, p. 3509).
88      Email of 29 January 2015 (ECA’s file, Annex A.37.26, p. 3516).
89      Email of 18 March 2015 to the UNDP (ECA’s file, Annex A.37.26, p. 3737) and email of 19 March 2015 to the EU Delegation to Cuba (ECA’s file, Annex A.37.26, p. 3504).
90      Email of 18 March 2015 (ECA’s file, Annex A.37.26, p. 3737).
91      Email of 18 March 2015 (ECA’s file, Annex A.37.26, pp. 3736 and 3737).
92      Email of 20 March 2015 (ECA’s file, Annex A.37.26, p. 3737).
93      Email of 18 March 2015 (ECA’s file, Annex A.37.26, p. 3765).
94      Email of 20 March 2015 (ECA’s file, Annex A.37.26, p. 3736).
95      Email of Head of Cooperation Section EU delegation to Cuba to Mr Pinxten’s assistant of 18 March 2015 (ECA’s file, Annex A.37.26, p. 3768) and email of the EU Ambassador to Cuba of 18 March 2015 (ECA’s file, Annex A.37.26, p. 3764).
96      ECA’s file, Annex B.37.26, pp. 3500 and 3501 and pp. 3522 to 3528.
97      ECA’s file, Annex A.37.26, p. 3751 (in Dutch).
98      ECA’s file, Annex A.37.26, pp. 3752 to 3756.
99      ECA’s file, Annex A.37.26, p. 3761 (summary of 21 April 2015 in Spanish), and pp. 3758 and 3759 (summary of 5 and 6 May 2015 in English).
100      Mr Pinxten’s note for the ECA’s President of 16 April 2015 (ECA’s file, Annex A.37.26, pp. 3555 and 3556).
101      Email of the Director-General of National Estate of Chambord of 4 December 2018 (Mr Pinxten’s file, Annex B.29).
102      ECA’s file, Annex A.37.9, p. 1635.
103      In an email of 1 February 2012 sent by Mr Pinxten to a Chambord employee, Mr Pinxten clearly refers to a personal contact through which the Director-General of the National Estate of Chambord was kind enough to invite him ‘dans le cadre d’une battue de régulation’ (as part of a regulation hunt) in the 2011/2012 season. If he was unable to participate because of his schedule, Mr Pinxten expressly stated that if the Director would be kind enough to invite him another time to hunt on the Chambord National Estate, he would gladly accept his invitation (ECA’s file, Annex A.37.9, pp. 1056 and 1686).
104      ‘Une battue de régulation de sangliers’. See invitation for 2013 (ECA’s file, Annex A.37.9, p. 1647); invitation and reply card for 2015 (ECA’s file, Annex A.37.9, p. 1619).
105      Email in view of the hunt of 12 February 2016 (ECA’s file, Annex A.37.9, p. 1595).
106      ‘Une battue de régulation’. See invitation for 2016 (ECA’s file, Annex A.37.9, p. 1603).
107      ECA’s file, Annex A.37.9, p. 1647 (2013), p. 1621 (2015) and p. 1603 (2016).
108      ECA’s file, Annex A.37.9, pp. 1508 and 1509.
109      ECA’s file, Annex A.37.9, pp. 1886 and 1887.
110      OJ 2009 L 9, p. 12.
111      Email from ‘Service Gestion administrative’ of 18 March 2009 (Mr Pinxten’s file, Annex B.34).
112      ECA’s file, Annex B.37.30, p. 4093.
113      For Card 0027 3 *** in relation to the car registered CD‑7572, see ECA’s file, Annex 37.30, pp. 4133, 4140, 4147, 4159, 4163, 4165, 4170, 4172, 4184 and 4188.
114      For example, on 11 April 2017, the card 0027 3 *** was used for diesel and the card 0029 5 *** for petrol, both in relation to the car registered CD‑7572 (ECA’s file, Annex 37.30, p. 4163); on 28 July 2017, the card 0027 3 *** was used for diesel and the card 0029 5 *** for petrol and diesel, both in relation to the car registered CD‑7572 (ECA’s file, Annex 37.30, p. 4172).
115      For example, on 4 May 2017, the card 0029 5 *** was used for diesel at 5.56 p.m. and for petrol at 6.00 p.m., both in relation to the car registered CD 7572 (ECA’s file, Annex 37.30, p. 4165); on 28 July 2017, the card 0029 5 *** was used for petrol at 3.03 p.m. and for diesel at 3.05 p.m., both in relation to the car registered CD‑7572 (ECA’s file, Annex 37.30, p. 4172).
116      ECA’s file, Annex A.37.31, p. 4324.
117      ECA’s file, Annex A.37.31, p. 4325.
118      Witness hearing of Mr Pinxten’s driver of 7 December 2017 (questions 1, 2, 3 and 6) (ECA’s file, Annex A.37.31, pp. 4331 and 4332).
119      ECA’s file, Annex A.37.31, p. 4198.
120      ECA’s file, Annex A.37.31, p. 4246.
121      ECA’s file, Annex A.37.31, p. 4244.
122      See, in that sense, the answers of the insurance company’s employee to the questionnaire of OLAF (point 2) (ECA’s file, Annex B.37.31, pp. 4218 and 4219); the witness hearing of the ECA’s staff member responsible for the drivers of 7 December 2017 (answer to question 13) (ECA’s file, Annex A.37.31, p. 4302).
123      See, in that sense, without certainty, the witness hearing of Mr Pinxten’s driver of 16 October 2017 (answer to question 2) (ECA’s file, Annex A.37.31, p. 4280).
124      Email of Mr Pinxten of 18 September 2018 to the ECA’s President (ECA’s file, Annex A.16, p. 149).
125      Emphasis added.
126      DEC‑C 25/06 of 29 May 2006 (ECA’s file, Annex A.14).
127      Email of Mr Pinxten to the president of the Open Vld of 23 February 2010 (ECA’s file, Annex A.37.8, p. 694).
128      Email of Mr Pinxten of 4 January 2016 (ECA’s file, Annex A.37.8, p. 971).
129      Minutes of the Open Vld board of 27 April 2009 (ECA’s file, Annex 37.8, p. 777).
130      Minutes of the Open Vld board of 8 June 2009 (ECA’s file, Annex 37.8, p. 784).
131      Minutes of the Open Vld board of 14 September 2009 (ECA’s file, Annex 37.8, p. 809).
132      Minutes of the Open Vld board of 16 November 2009 (ECA’s file, Annex 37.8, p. 848).
133      Minutes of the Open Vld board of 16 November 2009 (ECA’s file, Annex 37.8, p. 847).
134      Minutes of the Open Vld board of 23 November 2009 (ECA’s file, Annex 37.8, p. 875).
135      Minutes of the Open Vld board of 22 March 2010 (ECA’s file, Annex 37.8, p. 942).
136      ECA’s file, Annex A.37.37, p. 4722.
137      See, to that effect, Opinion of Advocate General Geelhoed in Commission v Cresson
(C‑432/04, EU:C:2006:140, point 118 in the original version (English) but point 119 in the other language versions).
138      See, to that effect, point 75 of the present Opinion and judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455, paragraph 71).
139      Opinion of Advocate General Geelhoed in Commission v Cresson
(C‑432/04, EU:C:2006:140, point 77 in the original version (English) but point 78 in the other language versions).
140      See, to that effect, judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455, paragraph 145).
141      See, to that effect, judgments of 4 July 1985, Williams v Court of Auditors (134/84, EU:C:1985:297, paragraph 14); of 31 March 1993, Ahlström Osakeyhtiö and Others v Commission (C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85, EU:C:1993:120, paragraph 197); and of 16 June 2016, Evonik Degussa and AlzChem v Commission (C‑155/14 P, EU:C:2016:446, paragraph 58).
142      Paragraph 149.
143      As regards the assessment as to whether proceedings and penalties are criminal in nature, it must be noted that, according to the Court’s case-law – in accordance with the case-law of the ECtHR, three criteria are relevant. The first criterion is the legal classification of the offence under national law, the second is the intrinsic nature of the offence, and the third is the degree of severity of the penalty that the person concerned is liable to incur (see, to that effect, judgment of 20 March 2018, Garlsson Real Estate and Others, C‑537/16, EU:C:2018:193, paragraph 28 and the case-law cited).
144      If one thinks immediately of the assessment of the amount of a fine under competition law (see, for an example of the importance of proportionality in that matter, judgment of 26 September 2018,
Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 207), the application of the principle of proportionality in relation to sanctions can be found in various other fields such as customs, the protection of the financial interests of the EU, free movement of workers or illegal immigration. See, on these examples, Opinion of Advocate General Bobek in Link Logistik N&N (C‑384/17, EU:C:2018:494, point 37 and the case-law cited in footnotes).
145      See, to that effect, ECtHR, 18 October 2005, Banfield v. The United Kingdom, CE:ECHR:2005:1018DEC000622304, and ECtHR, 14 June 2006, Philippou v. Cyprus, CE:ECHR:2016:0614JUD007114810, §§ 65 and 66.
146      See, to that effect, ECtHR, 14 June 2006, Philippou v. Cyprus, CE:ECHR:2016:0614JUD007114810, § 61.
147      See, to that effect, ECtHR, 18 October 2005, Banfield v. The United Kingdom, CE:ECHR:2005:1018DEC000622304, and ECtHR, 14 June 2006, Philippou v. Cyprus, CE:ECHR:2016:0614JUD007114810, § 68.
148      See, to that effect, ECtHR, 14 June 2006, Philippou v. Cyprus, CE:ECHR:2016:0614JUD007114810, § 68.
149      See, to that effect, judgment of 21 May 2019, Commission v Hungary (Usufruct over agricultural land)
(C‑235/17, EU:C:2019:432, paragraph 72).
150      See, to that effect, ECtHR, 18 June 2013, S.C. Complex Herta Import Export S.R.L. Lipova v. Romania, CE:ECHR:2013:0618JUD001711804, § 35.
151      See, to that effect, judgment of 13 November 2014, Reindl (C‑443/13, EU:C:2014:2370, paragraph 40).
152      See, to that effect, judgment of 6 November 2003, Lindqvist (C‑101/01, EU:C:2003:596, paragraph 89).
153      See, to that effect, Opinion of Advocate General Geelhoed in Commission v Cresson (C‑432/04, EU:C:2006:140, point 122 in the original version (English) but point 123 in the other language versions).
154      See, to that effect, ECtHR, 18 June 2013, S.C. Complex Herta Import Export S.R.L. Lipova v. Romania, CE:ECHR:2013:0618JUD001711804, § 38, and ECtHR, 14 June 2006, Philippou v. Cyprus, CE:ECHR:2016:0614JUD007114810, § 72. In the same sense, see also judgment of 30 May 2002, Onidi v Commission (T‑197/00, EU:T:2002:135, paragraph 152).
155      See, to that effect, Opinion of Advocate General Geelhoed in Commission v Cresson (C‑432/04, EU:C:2006:140, points 123 to 125 in the original version (English) but points 124 to 126 in the other language versions).