33

Paragraphs 38 to 46 of the first judgment under review read as follows: ‘38 In the first place, according to settled case-law of the Court of Justice, a ground of appeal alleging an irregularity in the composition of the panel of judges involves a matter of public policy and must be examined by the court on appeal of its own motion, even if that irregularity has not been raised at first instance (see, to that effect, judgment of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraphs 44 to 50 and the case-law cited). 39 In the second place, it is settled case-law of the Court of Justice that the Courts of the European Union cannot, as a general rule, base their decisions on a plea raised of their own motion — even one involving a matter of public policy — without first having invited the parties to submit their observations on that plea (see judgment of 17 December 2009, Review M v EMEA, C‑197/09 RX‑II, EU:C:2009:804, paragraph 57 and the case-law cited). 40 In the third place, it must be observed that in the judgment of 23 January 2018, FV v Council (T‑639/16 P, EU:T:2018:22), in the examination of the ground of appeal alleging an irregularity in the composition of the panel of judges, raised by the appellant on the ground that the procedure for the appointment of one of the judges which sat on that panel was flawed, the General Court held as follows. 41 First, the General Court found that the Civil Service Tribunal (Second Chamber), when it delivered the judgment of 28 June 2016, FV v Council (F‑40/15, EU:F:2016:137), was composed of the Judges K. Bradley, J. Sant’Anna and A. Kornezov. The General Court also found that, in accordance with the operative part and recital 5 of [Decision 2016/454], the Council had appointed, in the first place, Mr S. Van Raepenbusch, in the second place, Mr Sant’Anna and, in the third place, Mr Kornezov as Judges of the Civil Service Tribunal. Thus, the General Court observed that Judge Bradley had not been appointed as a Judge of the Civil Service Tribunal under Decision 2016/454 and therefore could not be the judge to which the plea mentioned in paragraph 40 above referred, but that, on the other hand, the Judges Sant’Anna and Kornezov had been appointed as Judges of the Civil Service Tribunal under that Decision. 42 Secondly, the General Court examined the ground of appeal alleging a breach of the appointment procedure on the ground that the Council appointed a judge to the [third post] from the list of candidates drawn up as a result of the public call for applications [of] 3 December 2013 to fill the vacant posts occupied by Judges Van Raepenbusch and H. Kreppel in the Civil Service Tribunal, even though that list had not been drawn up for the purposes of appointing a judge to fill the [third post]. In this connection, the General Court held in paragraph 51 of the judgment of 23 January 2018, FV v Council (T‑639/16 P, EU:T:2018:22), that by using the list drawn up as a result of the public call for applications of 3 December 2013 to fill the [third post] …, the Council had failed to comply with the legal framework imposed by the public call for applications of 3 December 2013. Thus, after noting that the Council had, in accordance with the operative part and recital 5 of Decision 2016/454, appointed as Judges of the Civil Service Tribunal, in the first place, Mr Van Raepenbusch, in the second place, Mr Sant’Anna and, in the third place, Mr Kornezov, the General Court held that that institution was entitled to make the first two appointments from that list, but not the third appointment. 43 Thirdly, in paragraph 78 of the judgment of 23 January 2018, FV v Council (T‑639/16 P, EU:T:2018:22), the General Court held that in the light of the importance of observing the rules governing the appointment of a judge with regard to litigants’ confidence and that of the public in the independence and impartiality of courts and tribunals, the judge concerned could not be regarded as a judge assigned by law for the purposes of the first sentence of the second paragraph of Article 47 of the [Charter] and, therefore, set aside the judgment of 28 June 2016, FV v Council (F‑40/15, EU:F:2016:137) in its entirety. 44 It is sufficient to state in the present case that the order [of 24 June 2016, Simpson v Council (F‑142/11 RENV, EU:F:2016:136)] was adopted by the Civil Service Tribunal (Second Chamber) composed of the Judges Bradley, Sant’Anna and Kornezov, namely the same panel of judges as that which delivered the judgment of 28 June 2016, FV v Council (F‑40/15, EU:F:2016:137) and whose composition was found to have been irregular in the judgment of 23 January 2018, FV v Council (T‑639/16 P, EU:T:2018:22). 45 The Court must therefore raise of its own motion the ground of appeal alleging an irregularity in the composition of the panel of judges, which in accordance with the consistent case-law of the Court of Justice recalled in paragraph 38 above involves a matter of public policy and must be examined by the court on appeal of its own motion even if that irregularity has not been raised at first instance (see, to that effect, judgment of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraphs 44 to 50 and the case-law cited). After hearing the parties, it must then apply the principles set out by the General Court in the judgment of 23 January 2018, FV v Council (T‑639/16 P, EU:T:2018:22) to the present case. 46 Accordingly, the order under appeal must be set aside in its entirety on the grounds of infringement of the principle of the right to a judge assigned by law, enshrined in the first sentence of the second paragraph of Article 47 of the [Charter], without it being necessary to examine the grounds of appeal raised by the appellant.’