Kalliopi Nikolaou v Court of Auditors of the European Union.
Date: 2014-07-10
38. That being so, it must nevertheless be noted that the breach of that principle cannot cause the judgment under appeal to be set aside, in so far as the findings made in paragraphs 44 and 49 of that judgment as to the lawfulness of the omissions of which the Court of Auditors is accused are, in any event, well founded on another ground, set out separately in paragraph 46 of the judgment under appeal (see, to that effect, judgments in JCB Service  v Commission , C‑167/04 P, EU:C:2006:594, paragraph 186, and Kadi and Al Barakaat International Foundation  v Council and Commission , C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 233).
40. Furthermore, that finding is also consistent with the principles devolving from the settled case-law relating to the independent nature of disciplinary proceedings before the Court of Justice, for the purposes of Article 247(7) EC, in relation to national criminal proceedings (judgment in Commission v Cresson , C‑432/04, EU:C:2006:455, paragraphs 120 and 121). As the Advocate General also observed in points 71 to 73 of his Opinion, it is clear from that case-law that, like the Court of Justice itself, the Court of Auditors, as the authority responsible for referring the matter to the Court, is not bound by the legal characterisation of the facts made in the course of national criminal proceedings. Accordingly, in the present case, the Court of Auditors was not under an obligation, following the judgment of 2 October 2008, to adopt the acts or the conduct relied on by Ms Nikolaou.
43. In that connection, Ms Nikolaou — referring to the order in Zwartveld and Others , C‑2/88 EU:C:1990:315, paragraph 17, and the judgment in Ireland v Commission , C‑339/00, EU:C:2003:545, paragraphs 71 and 72 — submits that that principle imposes a duty of mutual cooperation not only on Member States, but also on institutions of the European Union and, by extension, on all the organs of the European Union, including its judicial bodies.
51. In that connection, it must be recalled that the principle of sincere cooperation — which, before the entry into force of the Lisbon Treaty, was laid down in Article 10 EC and which is now laid down in Article 4(3) TEU — involves an obligation, for Member States, to take all measures necessary to guarantee the application and effectiveness of EU law and imposes on the institutions of the European Union duties of mutual respect and assistance with regard to the Member States in carrying out the tasks flowing from the Treaties (see, to that effect, judgments in First and Franex , C‑275/00, EU:C:2002:711, paragraph 49, and Ireland  v Commission , EU:C:2003:545, paragraph 71).
52. In carrying out those tasks, Article 235 EC, read together with Article 225(1) EC, expressly confers jurisdiction on the Court of Justice and the General Court to hear and determine actions seeking compensation for damage brought under the second paragraph of Article 288 EC, which covers the non-contractual liability of the Community. According to settled case-law, that jurisdiction is exclusive, the Community Courts having to verify, for the Community to be non-contractually liable, the satisfaction of a cumulative set of conditions, namely, the unlawfulness of the conduct alleged against the institutions, the fact of damage and the existence of a causal link between the conduct of the institution and the damage complained of (see judgment in Commission  v Systran and Systran Luxembourg , C‑103/11 P, EU:C:2013:245, paragraph 60 and the case-law cited).
53. Furthermore, as regards, in particular, the first of those conditions, the Court has stated on many occasions that a sufficiently serious breach of a rule of law intended to confer rights on individuals must be established (see judgment in Bergaderm and Goupil , C‑352/98 P, EU:C:2000:361, paragraph 42), namely a manifest and grave disregard by the institution concerned of the limits of its discretion (see, to that effect, judgments in Brasserie du pêcheur and Factortame , C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 55, and Commission  v CEVA and Pfizer , C‑198/03 P, EU:C:2005:445, paragraph 64).
54. It accordingly follows from those principles that the action for damages relating to the Community’s non-contractual liability for actions or omissions on the part of its institutions was established as an independent form of judicial remedy, having its own particular place in the system of means of redress and subject to conditions for its use formulated in the light of its specific purpose (see, inter alia, judgments in Lütticke  v Commission , 4/69, EU:C:1971:40, paragraph 6, and Unifrex  v Council and Commission , 281/82, EU:C:1984:165, paragraph 11).
55. Accordingly, as the Commission also observed in its written submissions, although findings made in criminal proceedings relating to facts which are the same as those investigated in the course of a procedure based on Article 235 EC may be taken into account by the Community Court hearing the case, the latter is not bound by the legal characterisation of the facts made by the criminal court; rather, it is for the Community Court, exercising its discretion to the full, to undertake an independent examination of those facts in order to determine whether the conditions to be satisfied in order for the Community to incur non-contractual liability have been met (see, by analogy, judgment in Commission  v Cresson  EU:C:2006:455, paragraphs 120 and 121).
72. Given that the referral to the Court of Justice could have been legitimately decided, in accordance with the principles deriving from the relevant case-law, on the basis of the supposed ‘lack of a certain degree of gravity’ (see, to that effect, Commission  v Cresson EU:C:2006:455, paragraph 72), it was open to the Court of Auditors to indicate that the unanimity necessary for those purposes, under Article 6 of its rules of procedure, had not been reached, even though the vast majority of its members were critical of the conduct complained of in point (i) of that letter.