JUDGMENT OF THE COURT (Full Court)

30 September 2021 ( *1 )

Table of contents

I. Legal context A. EU law 1. The FEU Treaty 2. The Staff Regulations 3. Regulation No 2290/77 4. Directive 2008/118/EC 5. Regulation (EU, Euratom) No 883/2013 6. Internal rules adopted by the Court of Auditors (a) Rules of Procedure (b) Decision No 1-2003 (c) Decision No 7-2004 (d) Decision No 33-2004 (e) 2004 Code of Conduct (f) Decision No 19-2009 (g) Decision No 66-2011 (h) 2012 Code of Conduct (i) Rules for implementing the Rules of Procedure B. Luxembourg law II. Background to the dispute III. Investigations and procedures initiated A. Preliminary measures adopted by the Court of Auditors B. The OLAF investigation C. Initiation of the present proceedings within the Court of Auditors D. The criminal proceedings initiated by the Luxembourg authorities IV. Forms of order sought V. The application for the present proceedings to be stayed A. Arguments of the parties B. Findings of the Court VI. The application to order the production of certain documents A. Arguments of the parties B. Findings of the Court VII. The application to remove a document from the file A. Arguments of the parties B. Findings of the Court VIII. The action A. Admissibility of the action 1. The alleged incompatibility of the present proceedings with the right to effective judicial protection (a) Arguments of the parties (b) Findings of the Court 2. The alleged unlawfulness of the OLAF investigation (a) Arguments of the parties (b) Findings of the Court 3. The alleged unlawfulness of the procedure followed within the Court of Auditors for authorising the bringing of the present action (a) Arguments of the parties (b) Findings of the Court 4. The alleged delay in bringing the action by the Court of Auditors (a) Arguments of the parties (b) Findings of the Court B. The complaints 1. The fourth complaint, alleging the undeclared and unlawful exercise of political activity and activity as a manager of a société civile immobilière (non-trading real estate company) (a) The first part of the fourth complaint, alleging the undeclared and unlawful exercise of political activity (1) Arguments of the parties (2) Findings of the Court (b) The second part of the fourth complaint, alleging the undeclared and unlawful exercise of activity as a manager of a société civile immobilière (1) Arguments of the parties (2) Findings of the Court 2. The first complaint, alleging misuse of the resources of the Court of Auditors to finance activities unrelated to or incompatible with duties as a Member of that institution (a) Admissibility of the first complaint (1) The exercise by the Court of Auditors of its discretion (i) Arguments of the parties (ii) Findings of the Court (2) Presentation of the application and admissibility of the table annexed to the reply (i) Arguments of the parties (ii) Findings of the Court (b) The substance of the first complaint (1) Arguments of the parties (2) Findings of the Court (i) Infringement of the principle of the protection of legitimate expectations (ii) Mission expenses and daily subsistence allowances – The stay in Crans-Montana – The stay in Cuba – Contacts with politicians and political movements – Contacts with senior staff of private economic operators – Contacts with representative bodies and associations – Engagement in an authorised outside activity – Participation in hunting parties – The other missions mentioned by the Court of Auditors (iii) Representation and reception expenses – Representation expenses connected with contacts with politicians – Representation expenses connected with contacts with other individuals – Expenses relating to receptions held at Mr Pinxten’s home (iv) Use of the official car and recourse to the services of a driver – Transport expenses incurred outside Mr Pinxten’s missions – Transport costs incurred during Mr Pinxten’s missions – Use of the official car without recourse to the services of a driver 3. The second complaint, alleging improper and unlawful use of tax privileges (a) The first part of the second complaint, alleging the retention and the use of a fuel card by one of Mr Pinxten’s children when he was no longer a member of his household (1) Arguments of the parties (2) Findings of the Court (b) The second part of the second complaint, alleging use of a fuel card to purchase fuel for vehicles owned by others (1) Arguments of the parties (2) Findings of the Court 4. The third complaint, alleging false insurance claims in connection with alleged accidents involving the official vehicle and the driver assigned to Mr Pinxten’s Cabinet (a) Arguments of the parties (b) Findings of the Court 5. The fifth complaint, alleging a conflict of interest created by Mr Pinxten through a connection with the head of an audited entity (a) Arguments of the parties (b) Findings of the Court C. The deprivation of the right to a pension or other benefits in its stead 1. Arguments of the parties 2. Findings of the Court IX. The claim for compensation submitted by Mr Pinxten A. Arguments of the parties B. Findings of the Court Costs

(Article 286(6) TFEU – Breach of the obligations arising from the office of Member of the European Court of Auditors – Deprivation of the right to a pension – Right to effective judicial protection – Regularity of the investigation by the European Anti-Fraud Office (OLAF) – Internal procedure within the Court of Auditors – Activity incompatible with the duties of a Member of the Court of Auditors – Mission expenses and daily subsistence allowances – Representation and reception expenses – Use of official car – Recourse to the services of a driver – Conflict of interest – Proportionality of the penalty)

In Case C‑130/19,

ACTION brought on 15 February 2019 under Article 286(6) TFEU,

European Court of Auditors, represented initially by C. Lesauvage, J. Vermer and É. von Bardeleben, and subsequently by C. Lesauvage, acting as Agents,

applicant,

v

Karel Pinxten, represented by L. Levi, avocate,

defendant,

THE COURT (Full Court),

composed of R. Silva de Lapuerta, Vice-President, acting as President, J.-C. Bonichot, A. Arabadjiev, M. Vilaras, E. Regan, M. Ilešič, L. Bay Larsen (Rapporteur) and N. Piçarra, Presidents of Chambers, T. von Danwitz, C. Toader, M. Safjan, D. Šváby, S. Rodin, F. Biltgen, K. Jürimäe, C. Lycourgos, P.G. Xuereb, L.S. Rossi and. I. Jarukaitis, Judges,

Advocate General: G. Hogan,

Registrar: V. Giacobbo, Administrator,

having regard to the written procedure and further to the hearing on 29 September 2020,

after hearing the Opinion of the Advocate General at the sitting on 17 December 2020,

gives the following

Judgment

1 By its action, the European Court of Auditors claims that the Court of Justice should declare that Karel Pinxten no longer meets the obligations arising from his office and, accordingly, impose the penalty provided for in Article 286(6) TFEU.

I. Legal context

A. EU law

1. The FEU Treaty

2 Article 285 TFEU provides: ‘The Court of Auditors shall carry out the [European] Union’s audit. It shall consist of one national of each Member State. Its Members shall be completely independent in the performance of their duties, in the Union’s general interest.’

3 Article 286(1), (3), (4) and (6) TFEU is worded as follows: ‘1. The Members of the Court of Auditors shall be chosen from among persons who belong or have belonged in their respective States to external audit bodies or who are especially qualified for this office. Their independence must be beyond doubt. … 3. In the performance of these duties, the Members of the Court of Auditors shall neither seek nor take instructions from any government or from any other body. The Members of the Court of Auditors shall refrain from any action incompatible with their duties. 4. 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. … 6. 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.’

4 Article 287(2) TFEU provides: ‘The Court of Auditors shall examine whether all revenue has been received and all expenditure incurred in a lawful and regular manner and whether the financial management has been sound. In doing so, it shall report in particular on any cases of irregularity. …’

2. The Staff Regulations

5 The second paragraph of Article 11 of the Staff Regulations of Officials of the European Union, as amended by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 (OJ 2004 L 124, p. 1, ‘the Staff Regulations’), provides: ‘An official shall not without the permission of the appointing authority accept from any government or from any other source outside the institution to which he belongs any honour, decoration, favour, gift or payment of any kind whatever, except for services rendered either before his appointment or during special leave for military or other national service and in respect of such service.’

6 Article 2(2) of Annex VII to the Staff Regulations states, in its first subparagraph: ‘“Dependent child” means the legitimate, natural or adopted child of an official, or of his spouse, who is actually being maintained by the official.’

7 Article 25 of Annex IX to the Staff Regulations provides: ‘Where the official is prosecuted for those same acts, a final decision shall be taken only after a final judgment has been handed down by the court hearing the case.’

3. Regulation No 2290/77

8 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 (OJ 1977 L 268, p. 1), as amended by Council Regulation (EC, Euratom) No 1293/2004 of 30 April 2004 (OJ 2004 L 243, p. 26) (‘Regulation No 2290/77’), provided: ‘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 …’

4. Directive 2008/118/EC

9 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 (OJ 2009 L 9, p. 12) is worded as follows: ‘1. Excise goods shall be exempted from payment of excise duty where they are intended to be used: (a) in the context of diplomatic or consular relations; (b) by international organisations recognised as such by the public authorities of the host Member State, and by members of such organisations, within the limits and under the conditions laid down by the international conventions establishing such organisations or by headquarters agreements; … 2. Exemptions shall be subject to conditions and limitations laid down by the host Member State. Member States may grant the exemption by means of a refund of excise duty.’

5. Regulation (EU, Euratom) No 883/2013

10 Article 1(1) 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 (OJ 2013 L 248, p. 1) reads as follows: ‘In order to step up the fight against fraud, corruption and any other illegal activity affecting the financial interests of the European Union and of the European Atomic Energy Community …, the European Anti-Fraud Office [OLAF] shall exercise the powers of investigation conferred on the [European] Commission … …’

11 Article 4(1) and (2) of Regulation No 883/2013 provides: ‘1. In the areas referred to in Article 1, [OLAF] shall carry out administrative investigations within the institutions, bodies, offices and agencies … 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) [OLAF] 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. … [OLAF] 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 … …’

12 Article 5(1) to (3) of that regulation states: ‘1. The Director-General may open an investigation when there is a sufficient suspicion, which may also be based on information provided by any third party or anonymous information, that there has been fraud, corruption or any other illegal activity affecting the financial interests of the [European] Union. … 2. … The decision to open an internal investigation shall be taken by the Director-General, acting on his own initiative or following a request from the institution, body, office or agency within which the investigation is to be conducted or from a Member State. 3. While the Director-General is considering whether or not to open an internal investigation following a request as referred to in paragraph 2, and/or while [OLAF] is conducting an internal investigation, the institutions, bodies, offices or agencies concerned shall not open a parallel investigation into the same facts, unless agreed otherwise with [OLAF].’

13 Article 7(2) of the regulation provides: ‘The staff of [OLAF] shall carry out their tasks on production of a written authorisation showing their identity and their capacity. The Director-General shall issue such authorisation indicating the subject matter and the purpose of the investigation, the legal bases for conducting the investigation and the investigative powers stemming from those bases.’

14 Article 9(4) of that regulation states: ‘Without prejudice to Articles 4(6) and 7(6), 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. …’

15 Article 11(4) of Regulation No 883/2013 is worded as follows: ‘Reports and recommendations drawn up following an internal investigation and any relevant related documents shall be sent to the institution, body, office or agency concerned. That institution, body, office or agency shall take such action, in particular of a disciplinary or legal nature, as the results of the internal investigation warrant, and shall report thereon to [OLAF], within a time limit laid down in the recommendations accompanying the report, and, in addition, at the request of [OLAF].’

6. Internal rules adopted by the Court of Auditors

(a) Rules of Procedure

16 Article 4 of the Rules of Procedure of the Court of Auditors (‘the Rules of Procedure’) provides: ‘1. Where the Court [of Auditors], acting by a majority decision of its Members, considers that the information that has been submitted to it is such as to establish that a Member has ceased to meet the required conditions or to satisfy the obligations with which he is entrusted (Article 286(6) [TFEU]), it shall instruct the President … to draw up a preliminary report. 2. The preliminary report shall be sent, accompanied by supporting documents, to all the Members, including the Member concerned who shall in response forward his written observations within a reasonable time limit set by the President or, if the President is the Member concerned, by the Member next in order of precedence to him. 3. The Member concerned shall also be invited to present his explanations orally to the Court [of Auditors]. 4. The decision to refer the matter to the Court of Justice in order to deprive the Member concerned of his office and/or of his right to a pension or other benefits in its stead shall be taken by secret ballot by a majority of four fifths of the Members of the Court [of Auditors]. The Member concerned shall not take part in the ballot.’

17 Article 23 of the Rules of Procedure reads as follows: ‘Minutes shall be drawn up for each meeting of the Court [of Auditors].’

18 Article 25(3) of the Rules of Procedure provides: ‘Without prejudice to Article 4(4) and Article 7(2), other decisions shall be taken by a majority of the Members present at the meeting of the Court [of Auditors]. However, the Court [of Auditors] may, on a proposal from a Member, declare, by a majority of the Members present at the meeting, that a specific question referred to the Court shall be decided by a majority of the Members of the Court [of Auditors].’

(b) Decision No 1-2003

19 Article 1 of Decision No 1-2003 of the Court of Auditors of 16 January 2003 relating to the mission expenses of the Members of the Court, which was applicable at the material time in the present action (‘Decision No 1-2003’), stated: ‘The binding commitments (that is, the travel orders) relating to mission expenses must be obtained as soon as possible. For the mission expenses of Members, the authorising officer shall be the President of the Court [of Auditors]. …’

20 Article 3 of that decision was worded as follows: ‘In the course of their missions Members may travel by official car, plane, train or boat.’

21 Article 5 of the decision provided: ‘Applications for the reimbursement of mission expenses shall be made as soon as possible after the Member’s return. Hotel expenses (excluding meals) shall be reimbursable.’

22 Article 6 of that decision was worded as follows: ‘Where a mission lasts for less than twelve hours in one day, half the corresponding daily subsistence allowance shall be paid. In all other cases the daily subsistence allowance shall be paid in its entirety.’

(c) Decision No 7-2004

23 Article 2 of Decision No 7-2004 of the Court of Auditors of 22 April 2004 concerning the representation and reception expenses of its Members, applicable at the material time in the present action (‘Decision No 7-2004’), stated: ‘At the beginning of each financial year, once the Members have been consulted, the appropriation shall be divided into two parts: … – the second, Part B, shall be reserved for general representation and reception expenses incurred by the Members in their capacity as Members of an institution. These expenses shall be reimbursed at the end of each quarter on the basis of the relevant declarations accompanied by receipts or other written proof deemed to be equivalent and showing the date of the invitation, the number of guests and the capacity of the main guest. …’

24 Article 6 of that decision provided: ‘For receptions held at home, the Court [of Auditors] shall reimburse the expenses incurred, up to the amount evidenced by the supporting documents submitted.’

25 That decision was accompanied by a note of 22 April 2004 for the attention of the Members of the Court of Auditors containing ‘suggestions with regard to representation and reception expenses’ (‘the note of 22 April 2004’). According to that note: ‘… Representation expenses are intended primarily to promote the external relations of the Court [of Auditors]. Members represent the Court [of Auditors] inter alia when they maintain, in the interest of the Court [of Auditors], professional contacts with individuals holding positions within the European Union …, Member States or other countries. … Expenditure for each event must be commensurate with its size and the status of the attendees. When Members represent the Court [of Auditors], their spouse/partner may also be called upon to attend the event. Guests may also be accompanied. Friends or personal contacts must be given private invitations. … Relevant guidance is provided in Annex 1. Expenses must be declared clearly and succinctly using Annex 2.’

26 Annex 1 of that note stated that ‘representation/receptions outside the Court [of Auditors] must, as a general rule, be for individuals holding prominent positions within the European Union …, Member States or other countries’ and that costs relating to representation/reception expenditure at the Member’s private residence ‘must not be higher than is necessary for that purpose, including floral arrangements’.

27 That annex also stipulated that ‘where the guest list, in addition to persons outside the institution, includes staff of the Court [of Auditors], a balance must be maintained between the two categories’ and that ‘personal friends and family members (except for spouses/partners) must be given private invitations at the expense of the Member’.

(d) Decision No 33-2004

28 Article 1 of Decision No 33-2004 of the Court of Auditors of 15 June 2004 on the management and use of the car fleet of the European Court of Auditors, which was applicable at the material time in the present action until the entry into force of Decision No 19-2009 of the Court of Auditors of 20 April 2009 on the management and use of the car fleet of the European Court of Auditors (‘Decision No 33-2004’), provided: ‘Official cars shall be made permanently available to the Members and the Secretary-General of the Court [of Auditors] for their travel in the context of their duties.’

29 Article 4 of that decision was worded as follows: ‘The Court [of Auditors] shall assume, in addition to rental charges, the expenses incurred from use of the vehicle by the Members and the Secretary-General in the performance of their duties. The following shall be considered travel in the performance of duties: – travel under a travel order, – other travel connected with the performance of duties assessed at a flat-rate at 15000 km/year.’

30 Article 5 of that decision was worded as follows: ‘Where Members or the Secretary-General use the official car for travel other than that referred to in Article 4, they shall assume the corresponding expenses (tolls, fuel costs and any additional rental costs connected with overall travel in excess of 45000 km/year as provided for in the framework contract).’

31 Article 6 of that decision provided: ‘Drivers shall receive reimbursement of mission expenses … when they drive Members or the Secretary-General for their travel in the performance of duties.’

32 Decision No 33-2004 was accompanied by a document entitled ‘Commentary on Decision No 33-2004 on the management and use of the car fleet of the Court of Auditors’ (‘the Commentary on Decision No 33-2004’).

33 According to the Commentary on Decision No 33-2004 on the subject of Article 4 of that decision: ‘The following shall be considered “other travel connected with the performance of duties” – journeys between home (in the place of employment) and the place of work, – journeys between the place of employment/residence and the airport, – official obligations within closer proximity not covered by a travel order, – cases of force majeure (illness, medical checks, inability to drive, etc.).’

(e) 2004 Code of Conduct

34 Article 4 of the Code of Conduct for the Members of the Court of Auditors, adopted by that institution on 16 December 2004 (‘the 2004 Code of Conduct’), stated: ‘1. The Members of the Court [of Auditors] shall devote themselves unreservedly to the fulfilment of their mandate. They may not hold any political appointment. They shall not engage in any outside professional activity or any other outside activity that is incompatible with their obligation to be available for the performance of their duties. … 3. Members shall declare their external activities …’

(f) Decision No 19-2009

35 The wording of Articles 1 and 4 to 6 of Decision No 19-2009 reproduced the wording of the corresponding articles of Decision No 33-2004.

36 Article 7 of Decision No 19-2009 provided: ‘The present decision shall annul and replace Decision No 33-2004. It shall enter into force on the same date as the new interinstitutional framework contract governing rental cars.’

37 Decision No 19-2009 was accompanied by a document entitled ‘Commentary on Decision No 19-2009 on the management and use of the car fleet of the Court of Auditors’ (‘the Commentary on Decision No 19-2009’).

38 The Commentary on Decision No 19-2009 for Article 4 of that decision reproduced the wording relating to Article 4 of Decision No 33-2004 in the Commentary on Decision No 33-2004.

(g) Decision No 66-2011

39 Article 1 of Decision No 66-2011 of the Court of Auditors of 26 October 2011 establishing the Ethical Guidelines for the European Court of Auditors, states: ‘The attached Ethical Guidelines shall be applicable at the European Court of Auditors.’

40 The Ethical Guidelines attached to that decision (‘the Ethical Guidelines’) state: ‘… 2.2. We shall manage the Court [of Auditors’] resources in a legal, regular and sound financial manner. The Court [of Auditors] 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. … 3.3. 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. 3.4. We shall not have any connection with the audited entity that might impair our independence. Matters that could affect independence include family and/or personal relationships with staff in the audited entity that could influence the results of our work. Before the auditing assignment is carried out, we should assess the potential impact of such relationships and inform our superior; to this end, the Court [of Auditors] has put in place an annual confirmation procedure. … 3.7. We shall only carry out external activities within the framework laid down by the Staff Regulations and always bearing in mind our duty of loyalty to the Court [of Auditors]. We shall refrain from carrying out any activity that could harm the Court [of Auditors’] reputation, cast doubt on our impartiality or interfere with our work. …’

(h) 2012 Code of Conduct

41 Article 2(1), (2) and (4) of the Code of Conduct for Members of the Court of Auditors, adopted by that institution on 8 February 2012 (‘the 2012 Code of Conduct’), reads as follows: ‘1. Members shall avoid any situation liable to give rise to a conflict of interest. They shall not deal with matters in which they have any personal interest, in particular a family or financial interest, which could impair their impartiality. … 2. Members of the Court [of Auditors] shall declare any financial interests and assets which might create a conflict of interest in the performance of their duties, whether in the form of individual holdings in company capital, in particular shares, or other forms of holding such as convertible bonds or investment certificates. … Any property owned either directly or through a real estate company must be declared, with the exception of homes reserved for the exclusive use of the owner or their family. … 4. On taking office Members shall submit to the President of the Court [of Auditors] the declaration provided for in the above paragraphs having regard to the form contained in the Annex. … The declaration must be revised in the event of significant changes, and a new declaration shall be submitted. …’

42 Article 4 of the 2012 Code of Conduct provided: ‘1. Members of the Court [of Auditors] shall devote themselves to the fulfilment of their mandate. They may not exercise any political office. 2. Members shall not engage in any outside professional activity or any other outside activity that is incompatible with the performance of their duties. … 6. Members shall include their outside activities, with the exception of activities mentioned in paragraph 4, in the declaration of interests referred to in Article 2.’

(i) Rules for implementing the Rules of Procedure

43 In the course of Mr Pinxten’s two terms of office as a Member of the Court of Auditors, Rules for implementing the Rules of Procedure were laid down successively by Decision No 92-2004 of the Court of Auditors of 8 December 2004, Decision No 26-2010 of the Court of Auditors of11 March 2010 and Decision No 38-2016 of the Court of Auditors of 2 June 2016 (‘the Rules for implementing the Rules of Procedure’). Those decisions were each amended before being repealed.

44 The relevant provisions in the present case were not substantially amended during that period.

45 Article 5 of the Rules for implementing the Rules of Procedure was worded as follows: ‘1. The Members shall refrain from any professional activity outside the Court, and from any other outside activity that is incompatible with the principles of independence and readiness with regard to the performance of their duties as specified in Article 286(3) and (4) TFEU. 2. To that end, any existing or proposed outside activity shall be examined in the light of the following general criteria: (a) the activity does not undermine the Court [of Auditors’] impartiality; (b) there is no conflict of interest; (c) the activity does not take up an excessive amount of time; (d) it will not bring any pecuniary gain.’

46 Article 6(1) and (2) of the Rules for implementing the Rules of Procedure provided: ‘1. Within a maximum of thirty working days of taking office, Members shall declare their outside activities to the President of the Court [of Auditors], describing them as accurately as possible in terms of each of the four criteria listed under Article 5(2) above. 2. All new outside activities other than those indicated in paragraph 1 above … must be declared without delay to the President of the Court [of Auditors] …’

47 Under the first paragraph of Article 8 of the Rules for implementing the Rules of Procedure: ‘Meetings held under the procedure provided for in Article 4 of the Rules of Procedure are closed meetings within the meaning of Article 49 of these implementing rules.’

48 Article 39(1) of the Rules for implementing the Rules of Procedure stated: ‘The Secretary-General, as the person responsible for the Court [of Auditors’] Secretariat, shall inter alia draw up the draft minutes of Court [of Auditors] meetings …. He shall assist the President in preparing the meetings of the Court [of Auditors] …, ensuring that procedures are correctly followed and decisions of the Court [of Auditors] properly implemented.’

49 Article 49(3) of the Rules for implementing the Rules of Procedure provided: ‘Unless a decision to the contrary has been taken at a previous Court [of Auditors] or Chamber meeting, closed meetings shall be held without interpreters or staff of the Court [of Auditors].’

50 Article 50(1) of the Rules for implementing the Rules of Procedure reads as follows: ‘The draft minutes of Court [of Auditors] meetings shall be drawn up by the Secretary-General or by any other person designated for this purpose. They shall be forwarded to the Members as quickly as possible and approved by the Court [of Auditors] at a subsequent meeting.’

B. Luxembourg law

51 The Ministerial regulation of 18 March 2010 publishing the Belgian Law of 22 December 2009 concerning the general arrangements for excise duty, transposing Directive 2008/118 and repealing Directive 92/12/EEC in that regard (‘the Ministerial regulation of 18 March 2010’), provides in Article 1: ‘The Belgian Law of 22 December 2009 concerning the general arrangements for excise duty shall be published in the Mémorial in order to be enforced in the Grand Duchy of Luxembourg.’

52 Article 13 of the Belgian Law of 22 December 2009 concerning the general arrangements for excise duty, which is applicable in Luxembourg under Article 1 of the Ministerial regulation of 18 March 2010, reads as follows: ‘Within the framework of the procedure inherent in the exemption from excise duty granted to them, diplomats, consular officers, the armed forces and organisations referred to in Article 20, [paragraphs 7 to 12], of the General Law of 18 July 1977 on customs and excise shall be entitled to receive from other Member States excise goods under suspension of excise duty …’.

53 Article 20(7) of the Belgian General Law of 18 July 1977 on customs and excise provides: ‘Relief from excise duty shall be granted on conditions and with any limitations, including reasonable quantities, to be determined by the King, unless otherwise provided in an international convention or headquarters agreement: … 7 for reasonable quantities of goods for personal use – including use by family members forming part of their household – by diplomatic agents and career consular officers, members of the administrative and technical staff of diplomatic missions and consular staff serving in the country, provided the persons in question are not nationals or permanent residents of Belgium and do not carry out any professional or commercial activity for their own personal benefit’.

54 Article 1(c) and (f) of the Grand Ducal regulation of 7 February 2013 concerning reliefs and exemptions from value added tax granted to diplomatic missions and consular posts, as well as to diplomatic agents, consular officers and chancellery staff (‘the Grand Ducal regulation of 7 February 2013’) is worded as follows: ‘For the purposes of the application of the provisions of the present regulation, the following definitions shall apply: … (c) diplomatic agents: heads of diplomatic missions, ministers-counsellors, counsellors, secretaries and attachés of diplomatic missions, provided the persons in question are not nationals or permanent residents of the Grand Duchy of Luxembourg and do not engage in a private, gainful occupation there; … (f) personal use by diplomatic agents, consular officers and chancellery staff: direct, effective and exclusive use within the country, for the personal and private needs of those agents, officers and staff and for those of family members forming part of their household, provided they are not nationals or permanent residents of the Grand Duchy of Luxembourg and do not engage in a private, gainful occupation there’.

55 Article 4(1) of that Grand Ducal regulation states: ‘Supplies of goods and services with a value, excluding tax, of at least EUR 240 each, including those located in another Member State, made to diplomatic agents, consular officers and chancellery staff for whom the Grand Duchy of Luxembourg is the host country … shall be exempt from value added tax.’

II. Background to the dispute

56 Mr Pinxten was a Member of the European Court of Auditors from 1 March 2006 to 30 April 2018, completing two terms of office.

57 During his terms of office, he was assigned to Chamber III of that institution, which is responsible for auditing EU expenditure on external relations, enlargement and humanitarian aid. From 4 April 2011 until the end of his final term of office, Mr Pinxten held the office of Dean of Chamber III.

58 After receiving a favourable opinion from the committee responsible for assessing the external activities of the Members of the Court of Auditors, Mr Pinxten was authorised, by decision of 30 April 2015, to take up the role of President of the Stichting Behoud Natuur en Leefmilieu Vlaanderen (Flemish Foundation for Nature Conservation and the Environment, Belgium) (SBNL-V).

59 During his terms of office, Mr Pinxten was provided with an official car and a fuel card allowing fuel for that car to be charged to the Court of Auditors. He also received two additional fuel cards at his request.

60 Between 2006 and March 2014, the Court of Auditors provided Mr Pinxten with a driver. From April 2014, Mr Pinxten could request a driver assigned to the ‘pool of drivers’ under the responsibility of the Director of Finance of the Court of Auditors to be made available.

61 In addition, during his terms of office, Mr Pinxten received reimbursement of representation and reception expenses, various expenses incurred in the course of missions authorised, at his request, by the President of the Court of Auditors and payment of daily subsistence allowances in respect of those missions.

III. Investigations and procedures initiated

A. Preliminary measures adopted by the Court of Auditors

62 The Court of Auditors states that in the course of 2016 it received information concerning a number of serious irregularities attributed to Mr Pinxten. On 18 July 2016, its Secretary-General orally informed Mr Pinxten of the allegations made against him.

63 In the summer of 2016, the services of the Court of Auditors carried out an analysis of Mr Pinxten’s missions and those of its drivers for whom he issued travel orders with a view to identifying any irregularities. Correspondence was subsequently exchanged between those services and Mr Pinxten regarding the alleged irregularity of certain missions by him or by those drivers. Those exchanges did not result in Mr Pinxten repaying the sums claimed by the Court of Auditors.

64 On 26 July 2016, the Court of Auditors was informed that Mr Pinxten had committed insurance fraud in 2011, following an accident involving his official car and his own vehicle. On 1 September 2016, its Secretary-General reported those allegations orally to Mr Pinxten. By a note of the same date, Mr Pinxten maintained that the accident in question was the result of a collision between his official car, driven by the driver assigned to his Cabinet, and his private car, driven by his son.

B. The OLAF investigation

65 On 14 October 2016, the Secretary-General of the Court of Auditors, acting on instructions from its President, forwarded a file to OLAF relating to Mr Pinxten’s activities which had resulted in possible undue expenditure from the budget of the European Union.

66 On 31 March 2017, the Director-General of OLAF formally notified the President of the Court of Auditors of the opening of an investigation into possible irregularities involving Mr Pinxten and affecting the financial interests of the European Union in respect of use of the Court of Auditors’ assets and missions carried out or authorised in breach of the applicable rules.

67 On 22 September 2017, Mr Pinxten was informed by OLAF of the opening of that investigation and of his status as a ‘person concerned’ as part of that investigation.

68 On 20 November 2017, OLAF carried out an inspection of the premises of Mr Pinxten’s Cabinet, during which it collected various documents. After a preliminary analysis of those documents, OLAF informed Mr Pinxten on 15 December 2017 that the scope of the investigation had been extended to possible conflicts of interest and other infringements of Articles 285 and 286 TFEU and of the provisions of the 2012 Code of Conduct.

69 Mr Pinxten was heard orally by OLAF investigators on 22 December 2017. After OLAF had communicated to him a summary of the facts established following the investigation, Mr Pinxten sent written observations to OLAF on 15 May 2018.

70 On 2 July 2018, the Court of Auditors received OLAF’s final report following the completion of its investigation (‘the OLAF report’). The report found, in respect of Mr Pinxten, misuse of the resources of the Court of Auditors for activities unrelated to his duties, improper use of fuel cards, misuse of the motor insurance contract for his official car, unjustified absences, failure to declare outside activities, transmission of confidential information and the existence of conflicts of interest.

71 In the light of the findings made in that report, OLAF recommended that the Court of Auditors initiate disciplinary proceedings against Mr Pinxten, take appropriate steps to ensure the recovery of EUR 472 869.09, corresponding to the expenses unduly borne by the Court of Auditors, and consider the recovery of EUR 97 954.52, corresponding to the salary paid for the periods of Mr Pinxten’s unjustified absences.

72 Furthermore, considering that some of the acts revealed by the investigation could constitute criminal offences, OLAF forwarded information and its recommendations to the Luxembourg judicial authorities.

C. Initiation of the present proceedings within the Court of Auditors

73 On 3 July 2018, the President of the Court of Auditors sent its Members a copy of the OLAF report and of the recommendations made by OLAF.

74 On 5 October 2018, the President of the Court of Auditors sent a preliminary report to its Members. That report recommended that the institution ask the Court of Justice ‘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 date. The annexes to the OLAF report were also transmitted to him on 17 October 2018.

75 On 19 November 2018, Mr Pinxten sent written observations to the Court of Auditors. On 26 November 2018, he was heard by its Members in a closed meeting.

76 On 29 November 2018, in a closed meeting, the Court of Auditors decided to refer Mr Pinxten’s case to the Court of Justice pursuant to Article 286(6) TFEU.

D. The criminal proceedings initiated by the Luxembourg authorities

77 In the light of the information forwarded by OLAF, the State Prosecutor at the Tribunal d’arrondissement de Luxembourg (Luxembourg District Court, Luxembourg) requested, by letter of 1 October 2018, that the Court of Auditors waive Mr Pinxten’s immunity from legal proceedings. On 15 November 2018, the Court of Auditors granted that request.

IV. Forms of order sought

78 The Court of Auditors claims that the Court of Justice should: – dismiss Mr Pinxten’s application for the Court of Justice to stay the proceedings; – declare that Mr Pinxten no longer meets the obligations arising from his office under Articles 285 and 286 TFEU and under the rules adopted pursuant to those articles; – impose, consequently, the penalty under Article 286(6) TFEU, the Court of Auditors leaving it to the discretion of the Court of Justice to determine its extent; – declare inadmissible Mr Pinxten’s claim for compensation; and – order Mr Pinxten to pay the costs.

79 Mr Pinxten contends that the Court should: – request the Court of Auditors to produce the report on the internal audit, for the period from 2012 to 2018, of the mission expenses of the Members of the Court of Auditors and of the use of official vehicles by all those Members, to specify the steps taken as a result of that report and to produce any notes relating to pressure exerted on the internal auditor; – dismiss the action brought by the Court of Auditors; – order the Court of Auditors to pay EUR 50000 as compensation for the non-material damage suffered by him; and – order the Court of Auditors to pay the costs.

V. The application for the present proceedings to be stayed

A. Arguments of the parties

80 Mr Pinxten states that criminal proceedings are in progress in Luxembourg. Against that background, the adage that ‘disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial’ or, at the very least, the principle of good administration requires the Court of Justice to refrain from giving judgment before the Luxembourg criminal prosecution authorities.

81 By staying the present proceedings, it would thus be possible both to avoid prejudicing Mr Pinxten’s position in the criminal proceedings initiated in Luxembourg and to ensure that the facts established by the Luxembourg criminal prosecution authorities, which hold greater powers of investigation than the Court of Justice, are taken into account.

82 The Court of Auditors opposes that application.

B. Findings of the Court

83 It should be noted, first of all, that EU law does not provide that proceedings initiated before the Court of Justice under Article 286(6) TFEU must be stayed where criminal proceedings relating, in whole or in part, to the same acts have been initiated.

84 It is true that Article 25 of Annex IX to the Staff Regulations provides that, where the official is prosecuted for those same acts, a final decision is to be taken only after a final judgment has been handed down by the court hearing the case.

85 However, proceedings relating to the breach by a Member of the Court of Auditors of the obligations arising from his office constitute a discrete legal remedy under Article 286(6) TFEU and those proceedings are not therefore governed by the rules concerning disciplinary proceedings set out in the Staff Regulations (see, by analogy, judgment of 11 July 2006, Commission v Cresson, C‑432/04, EU:C:2006:455, paragraph 118).

86 Second, as the Advocate General observed in point 78 of his Opinion, the procedure laid down in Article 286(6) TFEU has a specific function in so far as it seeks to ensure the proper functioning of the European institutions, which is different from the function of a national criminal procedure.

87 Lastly, according to the Court’s case-law, in proceedings under that provision, the Court is not bound by the legal characterisation of the facts made in the context of the criminal proceedings and it is for the Court, exercising its discretion to the full, to investigate whether the alleged conduct by the Member of the Court of Auditors concerned constitutes a breach of the obligations arising from his office (see, by analogy, judgment of 11 July 2006, Commission v Cresson, C‑432/04, EU:C:2006:455, paragraph 121).

88 There is therefore no need to stay the present proceedings pending the outcome of the criminal proceedings initiated in Luxembourg because, in any event, the outcome of those proceedings is not such as to limit the scope of the findings which the Court is obliged to make in order to rule on the present action.

89 In those circumstances, the application submitted by Mr Pinxten for the present proceedings to be stayed must be dismissed.

VI. The application to order the production of certain documents

A. Arguments of the parties

90 Mr Pinxten asserts that the Court of Auditors carried out a full internal audit, for the period from 2012 to 2018, of the mission expenses of its Members and of the use of official vehicles by those Members.

91 In his rejoinder, he requests the Court of Justice to order the Court of Auditors, as a measure of inquiry, to produce the report drawn up following that internal audit and to specify the steps taken as a result of that report. According to Mr Pinxten, such a measure of inquiry would enlighten the Court of Justice as to the assessment of his situation by the internal audit service of the Court of Auditors, the existence of irregularities committed by other Members of the institution and its handling of those irregularities.

92 In addition, Mr Pinxten submits that the independence of the internal auditor was threatened by the Secretary-General of the Court of Auditors and that it would be helpful for the Court of Justice to be communicated any notes concerning that situation in order to be able to determine how the complaints made against Mr Pinxten should be assessed.

B. Findings of the Court

93 A preliminary point to note is that the Court alone has jurisdiction to assess the relevance of an application requesting the production of documents having regard to the subject matter of the proceedings and the need for the requested documents in order to give a ruling in those proceedings (see, to that effect, order of 3 March 2020, Commission v Poland, C‑791/19 R, not published, EU:C:2020:147, paragraph 9 and the case-law cited).

94 It should be observed in that regard, first, that it is for the Court, with a view to giving a ruling on that action, to determine the scope of the obligations arising from the office of Member of the Court of Auditors and, on the basis of the evidence submitted by the parties, to assess whether a breach of those obligations by Mr Pinxten should be considered to be established.

95 In those circumstances, even if the internal audit report mentioned by Mr Pinxten actually includes an assessment of the regularity of his conduct, the fact remains that the position adopted in that regard by an internal organ of the Court of Auditors cannot be a decisive element in giving a rule on the action brought by that institution.

96 Second, it should be pointed out that the present proceedings relate exclusively to the irregularities of which Mr Pinxten is accused by the Court of Auditors.

97 The fact that comparable or more serious irregularities have been committed by other Members of the institution, assuming they were established, does not mean that Mr Pinxten’s conduct was lawful or that such conduct could be considered to meet the obligations arising from his office within the meaning of Article 286(6) TFEU.

98 Third, in the light of the functions incumbent on the Court of Justice in the present proceedings, as set out in paragraph 94 of the present judgment, the possible existence of a disagreement within the Court of Auditors regarding the carrying out of an internal audit after Mr Pinxten’s second term of office as a Member of the institution had ended is irrelevant to the disposal of the action brought by it.

99 In the light of the foregoing, the grounds put forward by Mr Pinxten in support of his application for the production of documents do not establish the significance that those documents might have for the present proceedings and that application must therefore be dismissed.

VII. The application to remove a document from the file

A. Arguments of the parties

100 The Court of Auditors requests the removal from the file of a copy of an email from its President which was sent on 13 February 2019 to its other Members and its Secretary-General, produced by Mr Pinxten in Annex B.10 to his defence (‘the email of 13 February 2019’).

101 It asserts that it is a strictly confidential email sent only to the Members of the Court of Auditors after Mr Pinxten’s second term of office as a Member of that institution had ended. It concludes that the document must have been obtained improperly, which infringes, inter alia, the right to respect for the confidentiality of communications enjoyed by the Court of Auditors.

102 Mr Pinxten submits that the application for the email of 13 February 2019 to be removed from the file should be dismissed.

103 In that regard, he maintains, first, that he did not obtain the email improperly. He asserts, second, that the email was not really confidential because, under the rules of conduct of the Court of Auditors, confidential information may not be sent by email and such an email is received by all the members of the recipients’ Cabinets. Lastly, the confidentiality of a document or the fact that it was obtained improperly does not justify its removal from the file where it is necessary for the ruling given by the Court of Justice, which is the case here.

B. Findings of the Court

104 The Court notes that the principle which prevails in EU law is that of the unfettered evaluation of evidence, from which it results that the admissibility of evidence produced in good time can be contested before the European Union Courts only on the ground that it has been obtained improperly (see, to that effect, judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 65 and the case-law cited).

105 In that context, the Court has already decided to remove a document from the file in a case on the ground, inter alia, that there existed a doubt as to whether the party which relied on it had obtained it by proper means (see, to that effect, judgment of 17 December 1981, Ludwigshafener Walzmühle Erling and Others v Council and Commission, 197/80 to 200/80, 243/80, 245/80 and 247/80, EU:C:1981:311, paragraph 16).

106 The same solution was adopted with regard to a legal opinion prepared for internal use by a national authority which had neither disclosed it to the party that was relying on it nor authorised the disclosure of the opinion to that party (order of 23 March 2007, Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten, C‑221/06, EU:C:2007:185, paragraphs 19 to 23).

107 In addition, the Court has ruled that a legal opinion issued by the legal service of an institution which had not been obtained by proper means from it by the party that was relying on it must be removed from the file unless an overriding public interest justifies the production of that legal opinion by the party (see, to that effect, order of 29 January 2009, Donnici v Parliament, C‑9/08, not published, EU:C:2009:40, paragraphs 17 to 23).

108 In the present case, although Mr Pinxten formally contests the Court of Auditor’s claim that he must have procured the email of 13 February 2019 improperly, he does not offer any explanation as to how he procured the email and simply states that the email could be accessed by many staff members at the Court of Auditors.

109 However, the email of 13 February 2019 is an internal communication between the Members of the Court of Auditors which is explicitly presented as being strictly confidential.

110 Furthermore, it is common ground that the email was not sent to Mr Pinxten, as he ceased to be a Member of the Court of Auditors from 30 April 2018.

111 Consequently, a doubt must be considered to exist as to whether Mr Pinxten obtained the email by proper means.

112 Moreover, Mr Pinxten relies on the email of 13 February 2019 in seeking to establish that other Members of the Court of Auditors were accorded more favourable treatment than him.

113 However, if it were assumed that other Members of that institution did actually receive more favourable treatment from it, with regard to irregularities committed by them in the course of their duties, than was accorded to Mr Pinxten, that cannot in any event demonstrate that Mr Pinxten did not infringe the obligations arising from his office within the meaning of Article 286(6) TFEU.

114 Furthermore, it follows from the Court’s settled case-law that the principle of equal treatment must be reconciled with the principle of legality, according to which a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party (judgments of 10 November 2011, The Rank Group, C‑259/10 and C‑260/10, EU:C:2011:719, paragraph 62, and of 13 September 2017, Pappalardo and Others v Commission, C‑350/16 P, EU:C:2017:672, paragraph 52).

115 It follows that Mr Pinxten has not demonstrated that there is an overriding public interest to justify the production of the document in question.

116 Consequently, the application made by the Court of Auditors to remove from the file the email of 13 February 2019, which is included in Annex B.10 to the defence, should be granted.

VIII. The action

A. Admissibility of the action

117 Mr Pinxten has put forward, firstly, four arguments contesting the admissibility of the present action alleging, respectively, the incompatibility of the proceedings under Article 286(6) TFEU with the right to effective judicial protection, the unlawfulness of the OLAF investigation, the unlawfulness of the procedure followed within the Court of Auditors for authorising the bringing of the present action and the excessive delay in bringing the action.

1. The alleged incompatibility of the present proceedings with the right to effective judicial protection

(a) Arguments of the parties

118 By his first plea of inadmissibility, Mr Pinxten argues that in the present proceedings his right to obtain a judicial determination will not be respected and that he will not be able to benefit from two levels of jurisdiction, in contravention of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 2 of Protocol No 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (ECHR).

119 Although the Court has already dismissed an argument concerning a lack of two levels of jurisdiction in the judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455), it failed to point out that in those circumstances it is acting as a disciplinary authority and not as a judicial body.

120 Therefore, if the action brought by the Court of Auditors were to be examined within the framework laid down in Article 286(6) TFEU, Mr Pinxten would be deprived of any form of judicial protection, which means that that provision cannot form the basis for the action brought by the Court of Auditors.

121 The Court of Auditors considers that plea to be inadmissible as it is in fact requesting the Court of Justice to establish the invalidity of a provision of primary law. In any event, that plea has already been dismissed in the judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455).

(b) Findings of the Court

122 As a preliminary point, with regard to the lack of two levels of jurisdiction, it is sufficient to note that the fact that no appeal may be brought against the Court’s decision in the proceedings provided for in Article 286(6) TFEU does not constitute a deficiency which contravenes the right of the Member or former Member concerned of the Court of Auditors to effective judicial protection as guaranteed in Article 47 of the Charter (see, by analogy, judgment of 11 July 2006, Commission v Cresson, C‑432/04, EU:C:2006:455, paragraphs 112 and 113).

123 In addition, since Mr Pinxten claims that his plea is different from the plea examined by the Court in the judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455), in that it argues a complete lack of judicial protection and not an infringement of the right to two levels of jurisdiction, it should be stated that the Court is adjudicating in the present proceedings, after hearing Mr Pinxten, as an independent and impartial tribunal established by the EU and FEU Treaties and not as an administrative authority hearing a disciplinary matter.

124 Consequently, the examination by the Court, at first and last instance, of the complaints alleging a breach by Mr Pinxten of the obligations arising from his office as a Member of the Court of Auditors adequately ensures his effective judicial protection.

2. The alleged unlawfulness of the OLAF investigation

(a) Arguments of the parties

125 By his second plea of inadmissibility, Mr Pinxten asserts that the action brought by the Court of Auditors is based on the OLAF report and that the report was drawn up following an unlawful procedure.

126 In the first place, OLAF unlawfully extended the scope of its investigation.

127 It follows from Article 7(2) of Regulation No 883/2013 that an inspection of an institution’s premises must be conducted on the basis of a written mandate mentioning the activities of the authorised investigation whose scope was defined by a decision to open the investigation.

128 Consequently, OLAF could not carry out an inspection which has the purpose or effect of revealing possible infringements of which it had no knowledge and which go beyond the scope of the investigation being conducted. In the present case, OLAF could not therefore legitimately extend the scope of its investigation based on an analysis of the information found during the inspection of Mr Pinxten’s Cabinet.

129 In the second place, OLAF infringed Mr Pinxten’s right to privacy. OLAF has not confirmed that it refrained from seizing correspondence between Mr Pinxten and his lawyer, which was covered by professional secrecy. In addition, OLAF seized private files which were explicitly indicated as such and which related, in particular, to Mr Pinxten’s participation in hunts and the rental of an apartment owned by him.

130 In the third place, OLAF did not respect Mr Pinxten’s rights of defence.

131 First, the summary of facts presented to Mr Pinxten before the adoption of the OLAF report was extremely short, the accompanying tables were not really comprehensible and the corresponding supporting documents were not communicated in good time.

132 Second, that report was based on a set of facts and interviews of which Mr Pinxten had not been informed when he was heard by OLAF.

133 Third, the exercise of his rights of defence was purely formal in so far as the arguments put forward in defence were not discussed, with a few rare exceptions, but were simply reproduced at the end of the report.

134 Fourth, Mr Pinxten’s former assistant did not receive a transcript following her oral hearing, when OLAF was required to provide her with a copy, which confirms that OLAF did not investigate incriminating and exculpating evidence.

135 The Court of Auditors maintains that the plea alleging the unlawfulness of the OLAF investigation is ineffective as the OLAF report is not the crucial element on which the action brought before the Court is based.

136 In the alternative, that plea is unfounded.

137 In the first place, the Court of Auditors asserts that there is nothing to prevent OLAF from extending the scope of an investigation and that it must be able to effect such an extension when serious suspicions come to light following an inspection of an institution’s premises. Moreover, the investigation in question was extended to suspicions closely connected with its original scope.

138 In the second place, Mr Pinxten’s right to privacy was respected. No evidence produced by him shows that OLAF relied on a document covered by confidentiality of lawyer–client relations. In addition, Article 4(2) of Regulation No 883/2013 accords OLAF the right of immediate access to any information held by the institutions and to take a copy of any document held by them. It thus enjoys a margin of discretion and its powers cannot be limited by the fact that certain documents are indicated to be ‘private’.

139 In the third place, it is for Mr Pinxten to show that the outcome of the procedure in question might have been different if the alleged infringement of his rights of defence had not occurred, which he has failed to do. In any event, in the present case, OLAF complied with its obligations by sending a sufficient summary of facts to enable him to submit his observations, which Mr Pinxten did. Furthermore, Mr Pinxten also had an opportunity to present his defence in the course of the internal procedure in the Court of Auditors with reference to the OLAF report in its entirety. In addition, OLAF was not required to provide Mr Pinxten’s former assistant with a transcript, as she was heard as a witness.

(b) Findings of the Court

140 As a preliminary point, it is necessary to examine the Court of Auditors’ argument that there is no need to assess the lawfulness of the OLAF investigation in so far as the OLAF report is not the crucial element on which the action brought before the Court of Justice pursuant to Article 286(6) TFEU is based.

141 It should be noted in that regard that the five complaints raised by the Court of Auditors in support of its action reproduce the findings made by OLAF in its report.

142 In order to substantiate those complaints, the Court of Auditors presents evidence that largely comprises documents that were seized by OLAF during its investigation and included in the annex to its report. Moreover, Annex A.37 to the application, to which the Court of Auditors refers extensively in its written pleadings, is explicitly presented as being composed of ‘annexes [to the] OLAF report sent to the President of the Court of Auditors on 2 July 2018’.

143 Furthermore, in response to questions asked by the Court of Justice on why the Court of Auditors had revised its original assessment of the regularity of the mission, representation and reception expenses and daily subsistence allowances paid to Mr Pinxten, it explained that its revised assessment was based on evidence seized by OLAF during its investigation.

144 In those circumstances, the admissibility of the present action cannot be considered to depend on the lawfulness of the OLAF investigation.

145 That being said, any unlawfulness of that investigation could mean that some or all of the evidence presented by the Court of Auditors in support of its action was collected in contravention of the applicable rules of law, which would require the Court of Justice to determine whether such unlawfulness affects the admissibility of that evidence in the present proceedings.

146 Therefore, before deciding on the complaints raised by the Court of Auditors, it is necessary to assess the merits of Mr Pinxten’s arguments concerning the unlawfulness of the OLAF investigation.

147 With regard, in the first place, to the allegedly unlawful extension of the subject matter of the OLAF investigation, it should be stated that, under Article 4(2)(a) of Regulation No 883/2013, OLAF may have access to any relevant information held by the EU institutions and to their premises.

148 Pursuant to Article 4(1) and (2) of that regulation, that power may be exercised only within the framework of an internal investigation and must be exercised in accordance with the conditions set out in that regulation.

149 However, under Article 5(1) of that regulation, the Director-General of OLAF may open an investigation when there is a sufficient suspicion that there has been fraud, corruption or any other illegal activity affecting the financial interests of the European Union.

150 In addition, Article 7(2) of Regulation No 883/2013 provides that the staff of OLAF are to conduct an inspection of the premises of an institution after production of a written authorisation indicating, in particular, the subject matter and the purpose of the investigation, the legal bases for conducting the investigation and the investigative powers stemming from those bases.

151 It follows that an inspection of an institution’s premises conducted by OLAF would be unlawful if it did not already have evidence giving rise to legitimate suspicions that there have been unlawful activities falling within its competence and that the aim of such an inspection must be to gather evidence relating to suspected unlawful activities (see, by analogy, judgment of 25 June 2014, Nexans and Nexans France v Commission, C‑37/13 P, EU:C:2014:2030, paragraph 37).

152 On the other hand, it does not follow from Articles 4, 5 and 7 of Regulation No 883/2013 that OLAF would be prevented from taking into consideration evidence that it happened to discover during a lawful inspection of an institution’s premises which shows that there have been unlawful activities falling within its competence of which it had no knowledge before that inspection and which are distinct from the unlawful activities to which the investigation as part of which that inspection was conducted originally related.

153 Furthermore, Mr Pinxten’s proposed interpretation of the rules governing OLAF’s activities is likely, in practice, to give impunity to perpetrators of unlawful activities discovered during an OLAF investigation, even though that consequence is not necessary to avoid a misuse of the investigative powers conferred on that organisation or to safeguard the rights of defence of the person concerned, which would create a risk of impeding the attainment of the objective of stepping up the fight against fraud, corruption and any other illegal activity affecting the financial interests of the European Union mentioned in Article 1(1) of Regulation No 883/2013.

154 Consequently, where, as a result of a lawful inspection of an institution’s premises, OLAF happens to discover evidence giving rise to sufficient suspicion that there have been unlawful activities falling within its competence which are distinct from those to which the investigation as part of which that inspection was conducted originally related, it is for OLAF, if it intends to investigate in that regard in order to verify or supplement information which it happened to obtain during that investigation, to initiate a new investigation (see, by analogy, judgments of 17 October 1989, Dow Benelux v Commission, 85/87, EU:C:1989:379, paragraph 19, and of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 301), or, as the case may be, to extend the original subject matter of its investigation, if the unlawful activities which it happened to discover are sufficiently linked to those to which the original investigation related to justify them being part of a single investigation procedure.

155 In the present case, Mr Pinxten does not contest either the lawfulness of the decision taken by the Director-General of OLAF to open an internal investigation after information had been forwarded by the Court of Auditors or the lawfulness of the inspection of its premises conducted by OLAF on 20 November 2017 as part of that investigation.

156 In addition, he does not claim that the evidence discovered by OLAF during that inspection could not give rise to sufficient suspicion that there have been unlawful activities falling within the competence of OLAF.

157 Consequently, the fact that OLAF’s decision to extend the subject matter of the investigation, which had originally been opened in respect of possible irregularities involving Mr Pinxten and affecting the financial interests of the European Union in respect of use of the Court of Auditors’ assets and missions carried out or authorised in breach of the applicable rules, possible conflicts of interest and other infringements of Articles 285 and 286 TFEU and of the provisions of the 2012 Code of Conduct, was based on evidence discovered during the inspection conducted on 20 November 2017 cannot mean that that decision is unlawful.

158 In the second place, with regard to the arguments alleging an infringement of Mr Pinxten’s right to privacy, it should be noted that, in the light of the subject matter of the present proceedings, the Court of Justice is required in the present case to give a ruling not on any infringement of that right that might have been committed by OLAF in the course of its investigation, but only on the alleged infringements of that right in relation to the gathering of the evidence presented by the Court of Auditors in support of that action. Any procedural irregularities committed by OLAF in collecting evidence could, in any event, influence the examination of the present action only in so far as the Court of Auditors relies on evidence improperly obtained by OLAF.

159 In that regard, first of all, Mr Pinxten does not identify among the evidence produced by the Court of Auditors any document that is covered by the principle of confidentiality of lawyer–client relations.

160 Consequently, the fact that OLAF has not confirmed that it did not seize any correspondence between Mr Pinxten and his lawyer, if it were established, is irrelevant in the present case.

161 Second, with regard to evidence concerning Mr Pinxten’s participation in hunting parties, it should be noted that the Court of Auditors produced to the Court of Justice documents relating to that activity which are directly linked to a number of missions undertaken in a capacity as a Member of the Court of Auditors.

162 Even though those documents were held in a binder explicitly labelled as ‘private’, they cannot, on account of their link with those missions, be considered to relate to activities carried out by Mr Pinxten in a purely private capacity.

163 In addition, it follows from the finding made in paragraph 158 of the present judgment that there is no need, for the purposes of the present proceedings, to rule on Mr Pinxten’s claim that OLAF also removed or copied a number of documents relating to hunting parties that were not under travel orders.

164 Lastly, it must be stated that the letter dated 20 November 2014, which was sent by Mr Pinxten to the High Representative of the Union for Foreign Affairs and Security Policy, offering to rent her an apartment in Brussels (Belgium), concerned the management of Mr Pinxten’s private property and that the admission into evidence by OLAF of a copy of that letter therefore constitutes a limitation of his right to respect for private life guaranteed by Article 7 of the Charter.

165 However, the use of that letter by OLAF is restricted and framed by law in that it may be used only in the context of the OLAF investigation and procedures conducted following that investigation.

166 Consequently, the arguments put forward by Mr Pinxten cannot establish, for the purposes of the present proceedings, that OLAF unlawfully infringed his right to respect for private life.

167 In the third place, as regards the alleged infringement of Mr Pinxten’s rights of defence, Article 41(2)(a) of the Charter provides that the right to good administration includes the right of every person to be heard before any individual measure which would affect him or her adversely is taken.

168 That principle is put into effect in Article 9(4) of Regulation No 883/2013, which provides that OLAF must in principle, once the investigation has been completed and before conclusions referring by name to a person concerned are drawn up, give that person the opportunity to comment on facts concerning him.

169 In addition, the Court has ruled, in a similar procedure to the one laid down in Article 286(6) TFEU with regard to a Member of the Commission, that it was necessary to determine whether the Member of the Commission concerned had been informed in sufficient time of the complaints made against her and whether she had had the opportunity of being heard (judgment of 11 July 2006, Commission v Cresson, C‑432/04, EU:C:2006:455, paragraph 105). Furthermore, that obligation is also provided for in Article 4(2) and (3) of the Rules of Procedure.

170 In those circumstances, while both OLAF and the Court of Auditors are required to comply with their respective obligations, respect for the right to be heard enjoyed by the Member or former Member concerned of that institution must be viewed broadly for the purposes of proceedings under Article 286(6) TFEU because it cannot be ruled out that that Member or former Member could have been given a sufficient opportunity by the Court of Auditors to be heard on the evidence on which he could not effectively comment before the adoption of the OLAF report.

171 It is common ground in the present case that Mr Pinxten was heard orally by OLAF on 22 December 2017, that several written exchanges took place between OLAF and Mr Pinxten’s lawyer and that, following the communication of a summary of facts drawn up following the investigation, Mr Pinxten was able to send OLAF a written document in which he sought to refute the allegations made in that summary.

172 Subsequently, on 5 October 2018, Mr Pinxten was sent the OLAF report and the preliminary report sent to the Members of the Court of Auditors by its President. He was able to comment on those reports both by sending written observations and at a hearing before that institution.

173 In that context, although Mr Pinxten asserts that the OLAF investigation was vitiated by four distinct irregularities, which are addressed in paragraphs 131 to 134 of the present judgment, preventing him from having been heard effectively by OLAF, he does not put forward any argument to show that he was unable to express his views adequately before the Court of Auditors on certain evidence adduced against him before the adoption of the OLAF report.

174 In those circumstances, it would seem that the arguments put forward by Mr Pinxten cannot demonstrate, for the purposes of the present proceedings, that his rights of defence were infringed.

175 It follows that all of Mr Pinxten’s arguments concerning the unlawfulness of the OLAF investigation must be dismissed and that there is therefore no need, in giving a ruling on that action, to ascertain whether evidence obtained unlawfully may be relied on in proceedings under Article 286(6) TFEU.

3. The alleged unlawfulness of the procedure followed within the Court of Auditors for authorising the bringing of the present action

(a) Arguments of the parties

176 By his third plea of inadmissibility, Mr Pinxten asserts, in the first place, that, despite his protests, his hearing by the Court of Auditors was conducted in the presence of its Secretary-General and the Head of its Legal Service, when Article 49(3) of the Rules for implementing the Rules of Procedure required that the hearing of a Member of that institution prior to the bringing of an action under Article 286(6) TFEU be without interpreters or staff of that institution.

177 The presence of the staff in question could influence the discussions, in particular with regard to the responsibility of the Secretary-General of the Court of Auditors for the deficiency of its monitoring and the ‘surprising’ role played by the Head of its Legal Service during the investigation.

178 Mr Pinxten asserts, in the second place, that an insufficient number of Members of the Court of Auditors voted in favour of bringing the present action.

179 Article 4(4) of the Rules of Procedure requires a majority of four fifths of those Members, that is, 23 of them, to authorise the bringing of an action under Article 286(6) TFEU. However, only 22 of the Members voted in favour of the bringing of the present action.

180 Although two Members of the Court of Auditors recused themselves, that fact is immaterial. Because Article 4(4) of the Rules of Procedure requires a majority calculated by reference to the total number of those Members, the situation of the Members of the Court of Auditors who recused themselves is comparable to that of its Members who abstained.

181 The Court of Auditors questions the effectiveness of Mr Pinxten’s arguments concerning the decision to bring the present action before the Court of Justice in so far as that decision cannot be regarded as equivalent to the act of bringing the action before the Court, as is stated in the order of 9 September 2005, Commission v Cresson (C‑432/04, not published, EU:C:2005:539).

182 In any event, the Secretary-General of the Court of Auditors attends all its meetings with a view to drawing up minutes in accordance with Article 23 of the Rules of Procedure and Article 39 of the Rules for implementing the Rules of Procedure. In addition, Article 50(1) of the Rules for implementing the Rules of Procedure permitted the Court of Auditors to designate a person responsible for drawing up the draft minutes. That competence was exercised on 12 February 2015 by conferring that task on the Head of its Legal Service.

183 Furthermore, the majority required for bringing an action under Article 286(6) TFEU should be calculated on the basis of the total number of Members of the Court of Auditors, with the exception of the Member concerned and those who have decided to recuse themselves. It is true that the Rules of Procedure do not make provision for cases where its Members have a conflict of interest. Nevertheless, if those Members were considered to have abstained, they would, de facto, be participating in the decision-making process from which they should be excluded.

(b) Findings of the Court

184 It should be stated as a preliminary point that, where the Court is hearing a plea of inadmissibility alleging the infringement of the rules governing the adoption by the Court of Auditors of the decision to bring an action under Article 286(6) TFEU, it must give a ruling on that plea before, if necessary, examining the substance of the action.

185 Such a plea of inadmissibility cannot be dismissed on the basis of the finding made in paragraph 4 of the order of 9 September 2005, Commission v Cresson (C‑432/04, not published, EU:C:2005:539), according to which, in an action under Article 213(2) EC, the European Commission’s decision to bring an action before the Court cannot be regarded as equivalent to the act of bringing the action before the Court.

186 That finding, which sought only to establish that the Court was required to examine only the arguments reproduced in the action and that it was not therefore called upon to take into consideration the reasons why the Commission considered it appropriate to bring the action before the Court, in no way implies that any irregularity of a decision to bring the action is devoid of consequences for the admissibility of the action.

187 It is therefore necessary to examine Mr Pinxten’s arguments concerning the alleged unlawfulness of the procedure followed within the Court of Auditors for authorising the bringing of the present action.

188 In the first place, with regard to the conduct of Mr Pinxten’s hearing before the Court of Auditors, it is stated in Article 4(1), (3) and (4) of the Rules of Procedure that, where that institution considers that the information that has been submitted to it is such as to establish that a Member has ceased to meet the required conditions or to satisfy the obligations arising from his or her office, the Member is to be invited to present his or her explanations orally to that institution, before it decides whether to refer the matter to the Court of Justice in order to deprive him or her of his or her office or of his or her right to a pension or other benefits in its stead.

189 Article 8 of the Rules for implementing the Rules of Procedure provided that meetings held under the procedure provided for in Article 4 of the Rules of Procedure are closed meetings within the meaning of Article 49 of those implementing rules.

190 Such meetings were to be held, under Article 49(3) of the implementing rules, without interpreters or staff of the Court of Auditors, unless a decision to the contrary has been taken at a previous meeting of that institution.

191 It follows from those provisions that Mr Pinxten’s hearing should have been conducted in the presence of the Members of the Court of Auditors alone.

192 That conclusion cannot be called into question by the Court of Auditors’ argument that the presence of its Secretary-General at that hearing was nevertheless justified because he was required to draw up the minutes of the closed meeting during which that hearing was held and to assist its President.

193 It is true that Article 23 of the Rules of Procedure provides that minutes are to be drawn up for each meeting of the Court of Auditors. In addition, under Article 39(1) of the Rules for implementing the Rules of Procedure, the Secretary-General of the Court of Auditors has the responsibility, inter alia, of drawing up the draft minutes of its meetings and to assist its President in preparing its meetings and ensuring that procedures are correctly followed. Similarly, Article 50(1) of those implementing rules stated that the draft minutes of each meeting of the Court of Auditors are to be drawn up by its Secretary-General or by any other person designated for that purpose.

194 It does not, however, follow from the provisions mentioned in the preceding paragraph that the Secretary-General of the Court of Auditors necessarily had to be present at its closed meeting during which Mr Pinxten’s hearing took place in order to draw up the minutes of that meeting, because a Member of the Court of Auditors could have been designated as necessary, pursuant to Article 50(1) of the implementing rules, to draw up the minutes of that meeting.

195 Furthermore, Article 49(3) of the Rules for implementing the Rules of Procedure constituted a special rule in derogation from the ordinary arrangements for the organisation of meetings of the Court of Auditors with the aim, inter alia, of ensuring a completely free discussion between its Members.

196 Consequently, the rules conferring on the Secretary-General of the Court of Auditors a general duty to assist its President cannot justify the presence of the Secretary-General at a closed meeting of that institution, especially since Article 49(3) of the Rules for implementing the Rules of Procedure laid down a specific procedure under which a member of its staff could be authorised to be present at a closed meeting and it is not claimed that the Court of Auditors had recourse to that procedure in the present case.

197 In those circumstances, the presence of the Head of the Legal Service of the Court of Auditors at the closed meeting in question also could not be justified by the duty of drawing up draft minutes of the meetings of the Court of Auditors which had been conferred on him, according to that institution, by a decision adopted on 12 February 2015 on the basis of Article 50(1) of the Rules for implementing the Rules of Procedure.

198 Moreover, according to the transcript of that closed meeting, the President of the Court of Auditors had justified the presence of the Head of its Legal Service not by that function, but by reference to his advisory role.

199 While it follows from the foregoing that the presence of the Secretary-General and the Head of the Legal Service of the Court of Auditors at the closed meeting of that institution during which Mr Pinxten’s hearing took place was irregular, according to the Court’s settled case-law, such irregularity could be decisive only if Mr Pinxten successfully shows that, had it not been for such an irregularity, the outcome of the procedure conducted within the Court of Auditors might have been different (see, by analogy, judgments of 4 April 2019, OZ v EIB, C‑558/17 P, EU:C:2019:289, paragraph 76, and of 4 June 2020, C.F. (Contrôle fiscal), C‑430/19, EU:C:2020:429, paragraph 35 and the case-law cited).

200 However, Mr Pinxten has failed to establish how the presence of those members of staff of the Court of Auditors, who, as is clear from the transcript of the recording of that closed meeting, did not speak during that meeting, was able to influence the conduct of the meeting or, a fortiori, the decision ultimately adopted by that institution.

201 In particular, although Mr Pinxten argues that the Secretary-General of the Court of Auditors could be liable by reason of deficiencies in the monitoring of its expenditure for which he was responsible, it must be stated that the sole purpose of the closed meeting in question was to allow Mr Pinxten to comment on the allegations made against him.

202 In addition, the criticisms raised against the attitude of the Head of the Legal Service of the Court of Auditors during the investigation are, in essence, supported by a draft letter which was allegedly dictated by Mr Pinxten’s driver and submitted by Mr Pinxten but which, as is undisputed, is not signed by the driver. Therefore, Mr Pinxten has failed to prove to the requisite legal standard that the presence of the Head of the Legal Service of the Court of Auditors at the closed meeting in question was able, on account of the attitude of that member of staff, to influence the conduct of that meeting.

203 In the second place, with regard to the vote that took place within the Court of Auditors on the decision to bring the present action, Article 4(4) of the Rules of Procedure provides that that decision had to be taken by secret ballot by a majority of four fifths of its Members.

204 Although that provision also stipulates that the Member of the Court of Auditors concerned is not to take part in the ballot, that rule is not relevant in the present case because the decision was adopted at a time when Mr Pinxten was no longer a Member of the institution.

205 Accordingly, as the Advocate General observed in point 90 of his Opinion, a comparison of the wording used in Article 4(4) and Article 25(3) of the Rules of Procedure respectively shows that the majority required to adopt such a decision had to be calculated on the basis of the total number of Members of the Court of Auditors and not the number of its Members present at the relevant meeting of that institution.

206 That being said, Article 41(1) of the Charter provides inter alia that every person has the right to have his or her affairs handled impartially by the institutions, bodies, offices and agencies of the European Union.

207 The Court has consistently held that it is incumbent upon the institutions and bodies of the European Union to comply with both components of the requirement of impartiality, which are, on the one hand, subjective impartiality, by virtue of which no member of the institution concerned may show bias or personal prejudice and, on the other, objective impartiality, under which there must be sufficient guarantees to exclude any legitimate doubt as to possible bias on the part of the institution concerned (see, to that effect, judgment of 27 March 2019, August Wolff and Remedia v Commission, C‑680/16 P, EU:C:2019:257, paragraph 27 and the case-law cited).

208 In order to ensure that that requirement is respected, the Members of the Court of Auditors who cannot participate impartially in the procedure under which the case of one of its Members or former Members may be referred to the Court of Justice, in particular on account of their personal ties with the Member or former Member concerned, must be able to satisfy themselves that they will not exert any influence on the outcome of that procedure and, accordingly, must have the option to recuse themselves.

209 However, if Article 4(4) of the Rules of Procedure were interpreted as meaning that the majority required under that provision is calculated without subtracting the number of Members who have recused themselves from the total number of Members of the Court of Auditors, their decision to recuse themselves would, de facto, have a potentially decisive influence on the outcome of the procedure under that provision.

210 Furthermore, in the light of the majority required under that provision, interpreting it in that way would, in practice, make it extremely difficult, or even impossible, to initiate that procedure if a certain number of its Members considered that they should recuse themselves.

211 Consequently, Article 4(4) of the Rules of Procedure should be interpreted, in accordance with Article 41(1) of the Charter, to the effect that the majority of four fifths of the Members of the Court of Auditors under the former provision must be calculated on the basis of the total number of its Members who could lawfully participate in the vote in question without prejudicing the requirement of impartiality.

212 It is common ground in the present case that two Members of the Court of Auditors recused themselves in order to ensure that that requirement was complied with, for reasons that have not been disputed.

213 Consequently, the vote of 22 Members of the Court of Auditors cast in favour of bringing the present action was sufficient to achieve the majority required by Article 4(4) of the Rules of Procedure.

214 It follows that Mr Pinxten’s arguments alleging the unlawfulness of the procedure followed within the Court of Auditors for authorising the bringing of the present action must be dismissed.

4. The alleged delay in bringing the action by the Court of Auditors

(a) Arguments of the parties

215 By his fourth plea of inadmissibility, Mr Pinxten asserts that the Court of Auditors infringed the duty to act within a reasonable time enshrined in Article 41(1) of the Charter by calling into question the regularity of claims for payment which he had made since 2006, even though, from the time when those claims were submitted, that institution had all the relevant information for ascertaining whether the claims were legitimate or for deciding to seek clarification.

216 The principle of legal certainty requires an institution, by analogy with the rules laid down by the EU Financial Regulation and the Court’s case-law on the subject, to make communication of a debit note within a period not normally exceeding five years from the point at which the institution was in a position to claim its debt, although that period can be reduced or extended depending on the circumstances.

217 In addition, there is no need in the present case to show that a breach of the duty to act within a reasonable time has affected the content of an EU act as the present action does not seek the annulment of such an act. Against that background, the Court of Auditors must be considered to be time-barred for all complaints dating from more than three years, or at least more than five years, before 5 October 2018, the date on which the President of the Court of Auditors presented the preliminary report to its Members.

218 According to the Court of Auditors, the matter was referred to the Court of Justice within a reasonable time. It was able to initiate the present proceedings only after receiving the OLAF report on 2 July 2018. In view of the scale of the alleged irregularities, a period of eight months from that date is not excessive. In addition, the rules on limitation with regard to recovery of debts cannot be transposed to the present proceedings.

(b) Findings of the Court

219 According to the case-law of the Court of Justice, the Court of Auditors must not indefinitely delay the bringing of an action under Article 286(6) TFEU in order to comply with the fundamental requirement of legal certainty and in order not to infringe the rights of the defence of the person concerned by making it more difficult to refute the arguments presented in that action (see, by analogy, judgment of 11 July 2006, Commission v Cresson, C‑432/04, EU:C:2006:455, paragraph 90).

220 Nevertheless, because that provision does not set a precise period of time, the reasonableness of the period to be respected by the Court of Auditors cannot be determined by reference to a precise maximum limit determined in an abstract manner but, rather, must be appraised in the light of the specific circumstances of each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties to the case (see, to that effect, judgment of 28 February 2013, Review Arango Jaramillo and Others v EIB, C‑334/12 RX-II, EU:C:2013:134, paragraphs 28 and 29).

221 Furthermore, as the Advocate General observed in point 104 of his Opinion, the rebuttable presumption that a period of more than five years from the conduct in question is unreasonable, as established by the Court in paragraph 105 of the judgment of 14 June 2016, Marchiani v Parliament (C‑566/14 P, EU:C:2016:437), and to which Mr Pinxten refers, cannot be applied in the present proceedings.

222 That presumption originates from the rules on the recovery of European Union entitlements (see, to that effect, judgment of 14 June 2016, Marchiani v Parliament, C‑566/14 P, EU:C:2016:437, paragraphs 101 to 103).

223 However, even where an action under Article 286(6) TFEU is based, in part, on a complaint alleging misuse of the resources of the Court of Auditors, the fact remains that the purpose of such an action is not to obtain reimbursement of payments made to the Member concerned of that institution which it considers to be undue.

224 It must therefore be determined whether the action was brought by the Court of Auditors within a reasonable time having regard to the case-law of the Court of Justice set out in paragraph 220 of the present judgment.

225 In the present case, it should be noted that the earliest offences alleged against Mr Pinxten date from 2006, more than 12 years before the present action was brought.

226 Moreover, although it is apparent from the documents before the Court of Justice that stricter monitoring by the Court of Auditors of the claims for payment submitted by its Members could have made it possible to identify at an earlier stage at least a significant proportion of the irregularities alleged against Mr Pinxten, the fact remains that the systematic review of his situation was justified by the evidence that came to light during the OLAF investigation.

227 The action brought by the Court of Auditors under Article 286(6) TFEU is based on a combination of all the information available to it following that systematic review. It is not therefore established that the Court of Auditors could have decided to bring the present action in the absence of the information gathered by OLAF.

228 Furthermore, after it received information implicating Mr Pinxten in the course of 2016, the Court of Auditors conducted an internal investigation in that same year. From the date when the Director-General of OLAF informed the Court of Auditors that he was considering whether or not to open an investigation, on 27 October 2016, until the submission of his report to the Court of Auditors, on 2 July 2018, that institution could not continue its investigations, in accordance with Article 5(3) of Regulation No 883/2013, unless agreed otherwise with OLAF. Once that report had been received, the Court of Auditors initiated the multi-stage procedure under Article 4 of the Rules of Procedure, which ran from 12 July to 29 November 2018.

229 It follows that the Court of Auditors reacted swiftly to the receipt of information concerning irregularities allegedly committed by Mr Pinxten and that it subsequently conducted the procedures falling within its powers fairly promptly, even though Article 286(6) TFEU had not yet ever been applied and the OLAF report indicated a very large number of irregularities committed by Mr Pinxten.

230 Consequently, while the Court of Justice is required to take into account, if necessary, the time which passed between some of the conduct at issue and the formulation of specific complaints by the Court of Auditors in order to assess to what extent Mr Pinxten can be expected to present additional explanations or evidence in relation to that conduct, the present action cannot, broadly speaking, be considered to have been brought after an unreasonable period of time and the Court of Auditors cannot be considered to be time-barred from relying, for the purposes of the present proceedings, on some of the irregularities criticised in the application.

231 Mr Pinxten’s arguments concerning the delay in bringing the present action must therefore be dismissed.

232 As none of the four arguments concerning the admissibility of the action has been upheld, the present action is admissible.

B. The complaints

233 In support of its action, the Court of Auditors raises five complaints alleging, first, misuse of its resources, second, improper and unlawful use of tax privileges, third, false insurance claims, fourth, undeclared and unlawful exercise of certain activities and, fifth, the creation of a conflict of interest.

234 In examining those complaints, it should be pointed out that Article 286(6) TFEU permits the Court of Auditors to request the Court of Justice to deprive a Member of that institution of his or her office or of his or her right to a pension or other benefits in its stead if that