Kingdom of Spain v Council of the European Union.
Date: 2017-12-20
43


In this connection, it should be noted first of all that Article 291(2) TFEU is not the only provision of EU law that confers an implementing power on the Council. Other provisions of primary law may confer such a power on it directly (see, to that effect, judgments of 26 November 2014, Parliament and Commission v Council, C‑103/12 and C‑165/12, EU:C:2014:2400, paragraph 50, and of 7 September 2016, Germany v Parliament and Council, C‑113/14, EU:C:2016:635, paragraphs 55 and 56). In addition, acts of secondary legislation may establish implementing powers outside the regime laid down in Article 291 TFEU (see, to that effect, judgment of 22 January 2014, United Kingdom v Parliament and Council, C‑270/12, EU:C:2014:18, paragraphs 78 to 86 and 98).
44


Next, since the contested decision, given that it finds an infringement and imposes a sanction on its perpetrator pursuant to the powers conferred on the Council by Article 8(1) of Regulation No 1173/2011, must be regarded as an act adopted in the exercise of an implementing power (see, by analogy, judgments of 27 October 1992, Germany v Commission, C‑240/90, EU:C:1992:408, paragraphs 38 and 39, and of 1 March 2016, National Iranian Oil Company v Council, C‑440/14 P, EU:C:2016:128, paragraph 36) and since Article 291(2) TFEU is just one of a number of possible legal bases for the exercise of such a power by the Council, it must be determined in the present case whether that power does in fact fall within Article 291(2) TFEU.
61


It is apparent from the Court’s settled case-law that observance of the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting him, a fundamental principle of EU law which, first, must be guaranteed even in the absence of specific provisions in that regard and, second, requires that the person against whom such proceedings have been initiated should be placed in a position in which he may effectively make known his views on the facts and the infringement of EU law that are raised against him before a decision appreciably affecting his interests is adopted (see, to that effect, judgments of 10 July 1986, Belgium v Commission, 40/85, EU:C:1986:305, paragraph 28; of 12 February 1992, Netherlands and Others v Commission, C‑48/90 and C‑66/90, EU:C:1992:63, paragraphs 44 and 45; and of 14 June 2016, Marchiani v Parliament, C‑566/14 P, EU:C:2016:437, paragraph 51).
68


That said, it is also apparent from the Court’s case-law that it is necessary to ensure that exercise of the rights of the defence, in the context of a procedure that may result in an act finding the existence of an infringement, is not impaired where operations are organised before the initiation of that procedure which enable information to be gathered that may be decisive for establishing such an infringement (see, to that effect, judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraphs 63 to 65, and of 27 April 2017, FSL and Others v Commission, C‑469/15 P, EU:C:2017:308, paragraph 43).
89


In the present case, it is a Member State that relies upon that provision. Without adopting a position as to whether a Member State may be regarded as or equated with a ‘person’ within the meaning of that provision, and can on that basis rely on the right that it lays down, which the Council and the Commission dispute, it should be pointed out that that right reflects a general principle of EU law (judgment of 8 May 2014, N., C‑604/12, EU:C:2014:302, paragraph 49), which may be relied upon by the Member States and in the light of which the contested decision should therefore be assessed.
90


Indeed, it is clear from the Court’s case-law that the EU institutions are required to observe that general principle of law in the context of administrative procedures that are initiated against Member States and are liable to result in decisions adversely affecting them (see, to that effect, judgments of 15 July 2004, Spain v Commission, C‑501/00, EU:C:2004:438, paragraph 52, and of 24 June 2015, Germany v Commission, C‑549/12 P and C‑54/13 P, EU:C:2015:412, paragraph 89 and the case-law cited).
91


In particular, it is incumbent upon the EU institutions to comply with both components of the requirement of impartiality, which are, first, subjective impartiality, by virtue of which no member of the institution concerned may show bias or personal prejudice, and second, 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 (judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraphs 154 and 155 and the case-law cited).
94


In the light of the Court’s case-law cited in paragraph 91 of the present judgment, it must be held that, where a number of EU institutions are given separate responsibilities of their own in the context of a procedure initiated against a Member State that is liable to result in a decision adversely affecting it, each of those institutions is required, in respect of its own activities, to comply with the requirement of objective impartiality. Consequently, even where only one of them has breached that requirement, such a breach is liable to render the decision adopted by the other at the end of the procedure at issue unlawful.
141


Nevertheless, in accordance with the Court’s settled case-law, an argument which amplifies a plea made in the application initiating proceedings and is closely linked with it cannot be declared inadmissible (see, to that effect, judgment of 16 July 2015, Commission v Parliament and Council, C‑88/14, EU:C:2015:499, paragraph 13 and the case-law cited).
145


So far as concerns, in the first place, the argument alleging breach of the principle that penal provisions may not have retroactive effect, it should be pointed out first of all that it is clear from the Court’s case-law that the principle that penal provisions may not have retroactive effect constitutes a general principle of EU law (see, to that effect, judgments of 10 July 1984, Kirk, 63/83, EU:C:1984:255, paragraph 22, and of 8 February 2007, Groupe Danone v Commission, C‑3/06 P, EU:C:2007:88, paragraph 87). That general principle of law requires the infringement attributed to a person and the penalty imposed on that basis to correspond to those which were laid down at the time when the action or omission constituting the infringement occurred (see, to that effect, judgments of 10 July 1984, Kirk, 63/83, EU:C:1984:255, paragraph 21, and of 8 September 2015, Taricco and Others, C‑105/14, EU:C:2015:555, paragraph 56).
146


More specifically, first, that general principle of law is also applicable to fines of an administrative nature (see, to that effect, judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 202). Consequently, the imposition of a fine under Article 8(1) of Regulation No 1173/2011 cannot escape application of that general principle of law, notwithstanding the fact that Article 9 of the regulation states that such a sanction is of an administrative nature.
147


Second, the Member States are also entitled to rely on the general principle that penal provisions may not have retroactive effect, in order to call into question the legality of the fines imposed upon them if they fail to comply with EU law (see, to that effect, judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 51).
158


Accordingly, the concept at issue should be interpreted in the light of the context and objective of Article 14(2) of Delegated Decision 2012/678 (see, to that effect, judgment of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 122 and the case-law cited).