H v Council of the European Union.
Date: 2019-12-04
Nevertheless, in accordance with the Court’s settled case-law, an argument which amplifies a plea made in the application initiating proceedings and which is closely linked with it cannot be declared inadmissible (judgment of 20 December 2017, Spain v Council, C‑521/15, EU:C:2017:982, paragraph 141).
As a preliminary point, it should be noted that the right to a fair trial, which derives from, inter alia,  Article 6(1) of the ECHR, constitutes a fundamental right which the European Union respects as a general principle under Article 6(3)  TEU (see, to that effect, judgment of 3 May 2012, Comap v Commission, C‑290/11 P, not published, EU:C:2012:271, paragraph 45 and the case-law cited). That right corresponds to the right to an effective remedy and of access to an impartial tribunal as provided for in the first and second paragraphs of Article 47 of the Charter (see, to that effect, judgment of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraph 39).
That right means that every person  must be entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal, previously established by law. Such a right is applicable in the context of proceedings brought against a Council decision (see, by analogy, judgment of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraph 21).
The guarantees of access to an independent and impartial tribunal, and in particular those which determine what constitutes a tribunal and how it is composed, represent the cornerstone of the right to a fair trial. That right means that every court is obliged to check whether, in its composition, it constitutes such an independent and impartial tribunal, where this is disputed on a ground that does not immediately appear to be manifestly devoid of merit. That check is necessary for the confidence which courts and tribunals must inspire in those subject to their jurisdiction (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, paragraph 46 and the case-law cited).
As regards, in the first place, the fact that, while the Chamber initially designated for the purposes of delivering the judgment under appeal was the same as that which gave a ruling in the context of the initial order, it was initially decided to assign the role of Judge-Rapporteur to another member of that Chamber, the Court has previously held that the fact that the same Judge in the two successive formations hearing the same case is entrusted with the duties of Judge-Rapporteur is, by itself, irrelevant to the assessment of compliance with the requirement of impartiality, since those duties are performed in a collegiate formation of the Court (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, paragraph 53).
Secondly, the Court has already held that there are two aspects to the requirement of impartiality, guaranteed in Article 47 of the Charter. First, the members of the court or tribunal must themselves be subjectively impartial, that is, none of its members may show bias or personal prejudice, there being a presumption of personal impartiality in the absence of evidence to the contrary. Secondly, the court or tribunal must be objectively impartial, that is to say, it must offer guarantees sufficient to exclude any legitimate doubt in this respect (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, paragraph 54 and the case-law cited).
Secondly, the fact that the same Judge sits in two Chambers hearing and determining the same case in succession, cannot, by itself, give rise to doubt as to the impartiality of the General Court in the absence of any other objective evidence (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, paragraph 56).
There is no general obligation under which a case must be referred back to a Chamber with an entirely different composition from that which first heard and determined the case (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, paragraph 57).
Furthermore, as the Court has already pointed out, the European Court of Human Rights has taken the view that it cannot be stated as a general rule resulting from the obligation to be impartial that a court quashing an administrative or judicial decision is obliged to send the case back to a different judicial authority or to a differently composed branch of that authority (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, paragraph 58 and the case-law cited).
Under those circumstances, it has not been established, in the present case, that the composition of the Chamber which delivered the judgment under appeal was unlawful owing to the mere presence in that Chamber of a member of the General Court who had already sat in the Chamber which had previously heard and determined the case (see, by analogy, 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, paragraph 60).
Regarding, in the first place, the line of argument based on infringement of Article 47 of the Charter, in particular, the argument that the General Court erred in not inviting the appellant to comment on the answers and the documents provided after the hearing, it must be noted that, in order to satisfy the requirements of the right to a fair trial enshrined in that provision, the EU Courts must ensure that the principle that the parties should be heard is respected in proceedings before them and that they themselves respect that principle, which applies to any procedure which may result in a decision by an institution of the European Union that perceptibly affects a person’s interests (judgment of 27 March 2014, OHIM v National Lottery Commission, C‑530/12 P, EU:C:2014:186, paragraph 53 and the case-law cited).
Thus, the Court has already held that the principle that the parties should be heard means, as a rule, that the parties have a right to a process of inspecting and commenting on the evidence and observations submitted to the court and, moreover, that that basic principle of law is infringed where a judicial decision is founded on facts and documents which the parties, or one of them, have not had an opportunity to examine and on which they have therefore been unable to comment (judgment of 2 December 2009, Commission v Ireland and Others, C‑89/08 P, EU:C:2009:742, paragraph 52 and the case-law cited).
In order to satisfy the requirements associated with the right to a fair hearing, it is important that the parties should be apprised of, and should be able to debate and be heard on, the matters of fact and of law which will determine the outcome of the proceedings (judgment of 2 December 2009, Commission v Ireland and Others, C‑89/08 P, EU:C:2009:742, paragraph 56).