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.
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. …’
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.’
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 …’
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.’
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].’
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].’
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.’
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’.
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.).’
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 …’
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.
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. …’
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.’
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.’
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.’
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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 Member no longer fulfils the requisite conditions or meets the obligations arising from his or her office.
235 The nature of those obligations is clarified in particular in Articles 285 and 286 TFEU.
236 Under Article 285 TFEU, those Members must be completely independent in the performance of their duties, in the European Union’s general interest.
237 In addition, Article 286(3) TFEU provides that the Members of the Court of Auditors must inter alia refrain from any action incompatible with their duties.
238 Furthermore, Article 286(4) TFEU prohibits the Members from engaging in any other occupation, whether gainful or not, during their term of office, partly so as to ensure the readiness of those Members with regard to the performance of their duties. That provision also stipulates that the Members must 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.
239 Since those duties are cited merely as examples, the expression ‘obligations arising from his office’ within the meaning of Article 286(6) TFEU falls to be broadly construed. Having regard to the importance of the responsibilities assigned to them, it is important that the Members of the Court of Auditors observe the highest standards of conduct and ensure that the general interest of the European Union takes precedence at all times, not only over national interests, but also over personal interests (see, by analogy, judgment of 11 July 2006, Commission v Cresson, C‑432/04, EU:C:2006:455, paragraphs 70 and 71).
240 With that in mind, the obligations of the Members of the Court of Auditors set out in primary law are reproduced and given concrete expression in the rules adopted by that institution, which those Members are required to observe rigorously.
241 In particular, the Members of the Court of Auditors must observe rigorously the declaration obligations laid down by those rules in order to ensure compliance with Article 286(3) and (4) TFEU, thereby keeping it fully informed of claims committing its resources, particularly in respect of mission, representation and reception expenses.
242 In case of doubt as to the precise scope of the obligations arising from their office, the Members of the Court of Auditors must contact the competent services of that institution in order to dispel that doubt.
243 That being said, while the Members of the Court of Auditors are under an obligation to conduct themselves in a manner which is beyond reproach, it does not follow that the slightest deviation from the standards applying to them falls to be censured under Article 286(6) TFEU. A breach of a certain degree of gravity is required (see, by analogy, judgment of 11 July 2006, Commission v Cresson, C‑432/04, EU:C:2006:455, paragraph 72).
244 The examination of the five complaints raised by the Court of Auditors must therefore seek to determine whether the documents before the Court of Justice are sufficient to establish in respect of Mr Pinxten a breach of a certain gravity of the obligations arising from the office of a Member of that institution, as defined by primary law and given concrete expression by the rules adopted by it.
245 To that end, the Court of Justice must examine all the evidence submitted to it, both by the Court of Auditors, which must establish the existence of the breach of obligations which it attributes to Mr Pinxten, and by Mr Pinxten. The Court must inter alia assess the material accuracy and reliability of that evidence in order to ascertain whether it is sufficient to find a breach of a certain degree of gravity for the purposes of Article 286(6) TFEU.
246 By its fourth complaint, the Court of Auditors asserts that Mr Pinxten failed to fulfil his obligations of disinterestedness, independence, impartiality, engagement, integrity, responsibility, exemplary conduct and transparency by unlawfully exercising two external activities in the course of his terms of office.
247 Because the misuse of the resources of the Court of Auditors that is the subject of the first complaint relates, in part, to commitments of its resources, which it presents as being linked to those external activities, the fourth complaint should be examined first.
248 In that regard, as was noted in paragraph 238 of the present judgment, the Members of the Court of Auditors must not, under Article 286(4) TFEU, engage in any other occupation, whether gainful or not, during their term of office.
249 In addition, in order in particular to ensure, in accordance with Article 285 TFEU, the independence of those Members and to ensure, in accordance with Article 286(3) TFEU, that the Members refrain from any action incompatible with their duties, the rules adopted by the Court of Auditors, which those Members must observe rigorously, as was noted in paragraph 241 of the present judgment, lay down the conditions under which they may engage in an external activity during their term of office.
250 Thus, point 3.7 of the Ethical Guidelines provides that the Members of the Court of Auditors must only carry out external activities within the framework laid down by the Staff Regulations and refrain from carrying out any activity that could harm its reputation, cast doubt on their impartiality or interfere with their work.
251 Article 4(1) of the 2004 Code of Conduct and Article 4(1) and (2) of the 2012 Code of Conduct stated that Members of the Court of Auditors must devote themselves to the fulfilment of their mandate, that they may not exercise any political office and that they must not engage in any outside professional activity or any other outside activity that is incompatible with the performance of their duties.
252 Article 5(1) of the Rules for implementing the Rules of Procedure provided that the Members of the Court of Auditors must 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.
253 Article 5(2) of those implementing rules stipulated that any existing or proposed outside activity must be examined in the light of four general criteria to ensure that the activity does not undermine the Court of Auditors’ impartiality, there is no conflict of interest, the activity does not take up an excessive amount of time and it will not bring any pecuniary gain.
254 Furthermore, on a procedural level, Article 4(3) of the 2004 Code of Conduct, Article 4(6) of the 2012 Code of Conduct and Article 6(1) and (2) of the Rules for implementing the Rules of Procedure establish an obligation to declare to the President of the Court of Auditors any outside activity not only when Members take office at that institution, but also throughout the remainder of their term of office.
255 Accordingly, in order to give a ruling on the fourth complaint, it must be assessed whether Mr Pinxten complied with the obligations to declare any outside activity and to refrain from engaging in an outside activity that is incompatible with his duties with respect to the two external activities which are the subject of the first and second parts of that complaint.
256 By the first part of its fourth complaint, the Court of Auditors asserts that Mr Pinxten engaged in intense political activity while he was a Member of that institution. He attended many board meetings of the political party Open VLD (‘the political party in question’) as a member with voting rights until 2008.
257 That activity was neither declared nor authorised by the Court of Auditors and, in any event, it was incompatible with the duties of a Member of that institution.
258 Mr Pinxten denies that he engaged in any political activity when he was a Member of the Court of Auditors. Although he did attend some meetings of the political party in question, they were meetings of the party’s ‘extended’ board, which were also attended by Members of Parliament of the party and at which Mr Pinxten did not have voting rights because he was not an elected member of the board. The purpose of his attendance at those meetings was to promote the activities of the Court of Auditors and to maintain professional contacts with national politicians.
259 In the first place, it should be noted that the Court of Auditors’ claim that Mr Pinxten attended board meetings of the political party in question as a member with voting rights until 2008 cannot be considered to be established as the documents before the Court of Justice do not include any evidence in support of that claim.
260 With regard, in the second place, to Mr Pinxten’s attendance, from 2008, at board meetings of the political party in question without having voting rights, the Court of Auditors produces inter alia an email sent on 24 November 2008 by the party’s political director giving assurances to Mr Pinxten that he will be systematically invited to meetings of the party’s board and minutes of those meetings indicating that Mr Pinxten attended at least 30 meetings between 9 March 2009 and 26 April 2010.
261 As the Advocate General observed in point 182 of his Opinion, those minutes also show that the purpose of the board meetings of the political party in question attended by Mr Pinxten was to discuss various matters of Belgian and European politics.
262 In addition, although the minutes of the board meetings of the political party in question after 26 April 2010 are not among the documents before the Court of Justice, information contained in those documents indicates that Mr Pinxten’s attendance at those meetings continued after that date.
263 In particular, it is apparent from exchanges of emails in May 2012 that Mr Pinxten was concerned that he was no longer receiving invitations to attend the board meetings of the political party in question and he was informed that this was a technical issue. Mr Pinxten’s interest in those meetings is also shown by an exchange of emails from January 2016 in which he complained that he was receiving invitations to meetings too late to make arrangements to attend.
264 Emails sent in September 2014 and in September and October 2015 confirm, moreover, that Mr Pinxten attended some board meetings of the political party in question.
265 Subsequently, several emails dating from 2016 and 2017 show that invitations to such meetings continued to be sent to Mr Pinxten, while documents concerning several missions carried out by him indicate that he attended at least four such meetings over those two years.
266 Furthermore, at his hearing before the Court of Auditors then during the oral procedure, Mr Pinxten acknowledged that he regularly attended meetings of the ‘extended’ board of the political party in question, numbering around 8 to 10 meetings each year on average.
267 It follows from the foregoing that, for most of his two terms of office at the Court of Auditors, Mr Pinxten actively engaged in political activity, as evidenced in particular by direct and regular participation in the governing body of a national political party.
268 Mr Pinxten’s argument that he attended those meetings as a guest or as an observer, in the same way as Members of Parliament of the party concerned, without having been elected for that purpose or holding voting rights, cannot cast doubt on that assessment.
269 A regular presence at board meetings of a political party, even without voting rights, provides a genuine opportunity, especially through participation in the discussions conducted in that forum, to influence the party’s political activity. The similarity between the status of Members of Parliament of the party concerned and Mr Pinxten’s status, as far as attendance at the meetings at issue is concerned, an element on which he relies, further reinforces the connection between that attendance and political activity.
270 Aside from the fact that the activity was not declared at all by Mr Pinxten, it must be stated that such activity is clearly incompatible with the duties of a Member of the Court of Auditors.
271 In addition to the time needed to travel to and attend political meetings on working days, when the Member concerned is bound by an obligation of readiness, activity of that nature impairs his independence and may, if it is known, harm the public image of the impartiality of the Court of Auditors.
272 Such activity is therefore incompatible with the obligations laid down by primary law and is also contrary to the rules adopted by the Court of Auditors mentioned in paragraphs 250 to 253 of the present judgment. In particular, the holding of a political appointment is explicitly prohibited by the 2004 and 2012 Codes of Conduct, while point 3.3 of the Ethical Guidelines refers to the need to avoid any conflict of interest which might be the case in connection with political office.
273 It should be stated that continued political activity by a Member of the Court of Auditors for most of the duration of his terms of office constitutes a breach of a particular gravity of the most basic obligations arising from his office.
274 The gravity of the breach of those obligations is further accentuated in the present case by the fact that Mr Pinxten must have known that his conduct was improper as, when he took office, the committee responsible for assessing the external activities of the Members of the Court of Auditors had rejected his request to retain the title of mayor of the municipality of Overpelt (Belgium), in particular in the light of a note of 10 May 2006 from its Legal Service, which stated that its Members may not hold a political appointment.
275 Consequently, the first part of the fourth complaint is well founded.
276 By the second part of its fourth complaint, the Court of Auditors asserts that, in the course of 2016, Mr Pinxten created a private company, from which he derived revenue, to operate a vineyard in Côte-d’Or (France).
277 That activity was neither declared nor authorised by the Court of Auditors and, in any event, it was incompatible with the duties of a Member of that institution in so far as it is a gainful occupation.
278 According to Mr Pinxten, the company to which the Court of Auditors refers is a société civile immobilière, which does not carry on trading activity and merely receives a rent for a property reported in his declaration of interests. It therefore simply constitutes a fully transparent form of property ownership.
279 It is clear from the documents before the Court of Justice that Mr Pinxten did hold the position of manager of a société civile immobilière from the creation of that company in 2016 until the end of his second term of office.
280 Mr Pinxten and his wife held 97% of the shares in that société civile immobilière, the remaining 3% being held by their three children.
281 In addition, it is evident from the notarial acts and emails produced by the Court of Auditors that on 12 September 2016 that société civile immobilière acquired several plots of land which were immediately leased agriculturally with a view to being farmed by a third party.
282 It must be stated that, as far as the compatibility of the position held by Mr Pinxten with his duties is concerned, none of the principles governing the status of the Members of the Court of Auditors precludes direct or indirect ownership of property or receipt of rental revenue in connection with that property.
283 Furthermore, it is clear from Article 2(2) of the 2012 Code of Conduct, which made ‘any property owned either directly or through a real estate company’ subject to the same declaration arrangements, that the internal rules of the Court of Auditors explicitly provided for the possibility of direct or indirect ownership of property by its Members.
284 Because it is not claimed, let alone established, that the société civile immobilière at issue carried on activity that went beyond the management of the agricultural plots mentioned in paragraph 281 of the present judgment, it would appear that, as the manager of that company, Mr Pinxten was required only to administer those plots, which were not farmed by the company directly, just as he would have had to do if he had owned those plots directly.
285 In those circumstances, and in the absence of other evidence to establish the validity of the allegation made against Mr Pinxten by the Court of Auditors in that regard, his activity as the manager of a family société civile immobilière does not appear to be such as to undermine the principles of independence and impartiality, to reduce his readiness or to earn him higher revenues than he could have obtained as the owner of the property owned by the company.
286 It follows that, contrary to the assertion made by the Court of Auditors, that activity cannot be considered to be incompatible with the duties of a Member of the Court of Auditors.
287 With regard to the question whether Mr Pinxten fulfilled his obligation to declare such activity, it follows from Article 2(2) and (4) of the 2012 Code of Conduct that a Member of the Court of Auditors who has acquired, in the course of his or her term of office, through a real estate company, a property which is not a home reserved for his exclusive use, must revise the declaration of his or her financial interests and assets so as to mention that property.
288 In view of the existence of that specific declaration obligation relating to property ownership and the reference made in that context to real estate companies in the 2012 Code of Conduct, a declaration of financial interests and assets of a Member of the Court of Auditors mentioning the property owned through a real estate company must be considered to have been sufficient to allow that Member of the Court of Auditors, when he or she holds the position of manager of that company, to satisfy his or her declaration obligations vis-à-vis that institution.
289 Moreover, because the position of manager of a société civile immobilière is not incompatible per se with the duties of a Member of the Court of Auditors and any conflict of interest connected with that position would inherently stem from ownership of the property in question and not from holding that position, its additional declaration as an outside activity within the framework of the procedure mentioned in paragraph 254 of the present judgment is not necessary to allow the Court of Auditors to verify that its Members respect the obligations arising from their office.
290 In that case, it is not disputed that the agricultural plots owned by the société civile immobilière in question were in fact mentioned in a revised declaration of financial interests and assets submitted by Mr Pinxten following the acquisition of those plots.
291 Consequently, the second part of the fourth complaint must be dismissed as unfounded.
292 That complaint should therefore be upheld in part.
293 Mr Pinxten has put forward two arguments to contest the admissibility of the first complaint, alleging a failure by the Court of Auditors to exercise its discretion, formal defects in the presentation of the application and the inadmissibility of the table annexed to the reply.
294 Mr Pinxten asserts that the Court of Auditors merely referred to the OLAF report without analysing it and, in particular, without clarifying how each of the criticised expenses was irregular. The Court of Auditors thus failed to exercise the discretion conferred on it by Article 286(6) TFEU. That deficiency is aggravated by the fact that the Court of Auditors is ultimately claiming from Mr Pinxten only around 27% of the amount accepted by OLAF, without explaining why it nevertheless endorses all the criticisms made against Mr Pinxten in the OLAF report.
295 The Court of Auditors maintains that it was required to analyse and refer to the OLAF report. It nevertheless carried out its own analysis of the facts at issue, as is shown, moreover, by the preliminary report and the application.
296 It follows from Article 286(6) TFEU that the Court of Auditors alone may initiate the procedure under that provision.
297 That institution must therefore assess whether the information available to it regarding the conduct of the Member or former Member concerned of that institution is sufficient to justify the initiation of that procedure. Article 4 of the Rules of Procedure provides for an internal procedure to enable the institution to adopt an informed decision.
298 In addition, the existence of an OLAF report on the conduct of the Member or former Member concerned of the Court of Auditors cannot limit its discretion in that regard as, under Article 11(4) of Regulation No 883/2013, the institution to which such a report is sent must determine the action to be taken in response to that report and the accompanying recommendations.
299 In the present case, as was stated in paragraphs 188 to 214 of the present judgment in particular, the procedure under Article 4 of the Rules of Procedure was applied, which permitted the Court of Auditors to decide to bring the present action in the light of all the information available to it, including the OLAF report.
300 In those circumstances, the fact that the application is, to a large extent, based on the findings made in the OLAF report cannot call into question the admissibility of the first complaint, as the Court of Auditors was not under any obligation to depart from those findings.
301 Moreover, in its application the Court of Auditors did not reproduce all the criticisms set out in the OLAF report. In particular, it did not submit complaints relating to unjustified absences by Mr Pinxten and, in addition, rejected OLAF’s analysis of the irregularity of some of Mr Pinxten’s missions.
302 It follows that Mr Pinxten’s argument concerning the failure by the Court of Auditors to exercise its discretion must be dismissed.
303 Mr Pinxten asserts that the Court of Auditors did not fulfil its obligation, as a prosecution authority, to establish the facts by proving that each of the expenses criticised under the first complaint is actually irregular.
304 Such proof could not be provided by making a general, automatic reference to the OLAF report and its many annexes, as such a reference is inadmissible. Similarly, that institution could not legitimately support its arguments by referring to the table in Annex C.1 to the reply, especially since that table post-dated its decision to bring the case before the Court of Justice.
305 According to the Court of Auditors, the application contains adequate reasoning. It thus presents representative examples of the alleged breaches by Mr Pinxten while reproducing each complaint and producing a more detailed table as an annex. After Mr Pinxten’s observations had been forwarded on 4 February 2019, the Court of Auditors had, moreover, reviewed each of the expenses and drawn up a table attached to its decision of 11 April 2019 establishing the amount receivable and to be recovered.
306 It should be noted as a preliminary point that Mr Pinxten’s claim that the Court of Auditors failed to establish the facts on which the first complaint is based must be assessed at the stage of the examination of the substance of that complaint, not the examination of its admissibility.
307 For the rest, with regard, in the first place, to the presentation of the application, under Article 21 of the Statute of the Court of Justice of the European Union and Article 120(c) of its Rules of Procedure, the application must indicate inter alia the subject matter of the dispute, the form of order sought by the applicant and the pleas in law and arguments relied on.
308 The respect of that obligation must enable the defendant to prepare a defence and the Court of Justice to exercise its powers of review. It follows that the essential points of law and of fact on which such an action is based must be indicated coherently and intelligibly in the application itself and that the forms of order must be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on one of the heads of claim.
309 Where an action is brought under Article 286(6) TFEU, the Court of Auditors must therefore set out the complaints coherently and precisely, so that the Member or former Member concerned of the Court of Auditors can know exactly the nature of the alleged breach of the obligations arising from his or her office, a condition that must be satisfied if the Member or former Member is to be able to present an effective defence and the Court of Justice to determine whether there has been a breach of obligations, as alleged.
310 Whilst the body of the application may, to that end, certainly be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which must appear in the application itself (see, by analogy, judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 40 and the case-law cited).
311 Thus, it is not for the Court to seek and identify in the annexes to the application the complaints and the arguments on which it may consider the action to be based (see, by analogy, judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 41 and the case-law cited).
312 In the present case, the application lodged by the Court of Auditors contains a general overview of the first complaint, which presents, among other things, the categories of situations in which its resources were, in its view, misused by Mr Pinxten.
313 That overview is supplemented by very extensive annexes to which the application makes repeated reference.
314 It should be stated in that regard that the methods by which those annexes are referred to in the application are questionable in so far as the Court of Auditors frequently bases its arguments on an insufficiently precise reference to Annex A.37 to the application, which comprises many documents, often presented in a disorganised manner, and encompasses several thousand pages.
315 Although that practice does not allow the Court of Justice to undertake a precise, detailed analysis, the application nevertheless makes it possible to know the nature of the first complaint raised by the Court of Auditors and the arguments that it intends to assert in order to establish the irregularity of Mr Pinxten’s conduct.
316 The essential points of law and of fact on which the present action is based must therefore be considered to be indicated adequately in the application itself and, consequently, the many references to the annexes to the application are not intended to make up for any deficiency in the application in that regard.
317 With regard, more specifically, to the production by the Court of Auditors of the table in Annex A.47 to the application, it should be noted that the table allows it to support and supplement the application by describing, exhaustively and precisely, the specific situations in which the irregularities mentioned in the application, in respect of the first complaint, are alleged to have occurred.
318 In addition, that table provides continuity with the preceding administrative procedure in the course of which the same references were used, both by the Court of Auditors and by Mr Pinxten, to identify the situations at issue.
319 Moreover, in view of the large number of specific situations which are the subject of the first complaint, a full presentation of them in the main body of the application was indeed hard to imagine.
320 However, a formal constraint like that cannot compel the Court of Auditors to forgo presenting to the Court of Justice all the facts which, in its view, help to establish the breaches by Mr Pinxten of the obligations arising from his office.
321 In those circumstances, it must be considered that the presentation of the first complaint in the application permits Mr Pinxten to exercise his rights of defence, as he has done comprehensively in the course of the proceedings before the Court of Justice, and the Court of Justice to rule on the substance of that complaint.
322 It follows that, on the basis of the formal deficiencies in the presentation of the application, the first complaint cannot be considered to be inadmissible in whole or in part.
323 With regard, in the second place, to the claim that the table produced in Annex C.1 to the reply is inadmissible because it was drawn up after the application and presented at the reply stage, it should be noted that, under Article 127 of the Rules of Procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. In addition, Article 128(1) of the Rules of Procedure provides that in reply a party may produce or offer further evidence in support of its arguments, giving reasons for the delay in submitting such evidence.
324 It should be stated in that regard that the table produced in Annex C.1 to the reply constitutes a resubmission of the table in Annex A.47 to the application and is intended to make it easier to identify the evidence relating to each of the situations referred to in that table and to take into consideration the arguments put forward by Mr Pinxten in his defence.
325 Because it is not established that the table produced in Annex C.1 to the reply consists of new complaints or that it refers to evidence which had not been submitted in the annexes to the application, it cannot be considered, in accordance with Articles 127 or 128 of the Rules of Procedure, to be inadmissible in whole or in part.
326 By its first complaint, the Court of Auditors submits that, by misusing its resources, Mr Pinxten failed to fulfil his obligations of disinterestedness, independence, impartiality, engagement, integrity, responsibility, exemplary conduct and transparency.
327 In the first place, the Court of Auditors alleges that Mr Pinxten claimed reimbursement of mission expenses and payment of daily subsistence allowances for activities unrelated to his duties.
328 The Court of Auditors states in that regard that under Article 7 of Regulation No 2290/77 and Decision No 1-2003 such reimbursement and payment could be made only for tasks which the institution instructed a Member to perform and which were related to the performance of his or her duties.
329 However, first, Mr Pinxten claimed reimbursement of mission expenses and payment of daily subsistence allowances for entertainment, namely recreational activities, such as a trip to the mountain resort of Crans-Montana (Switzerland), leisure activities, in particular hunting parties, tourist trips, like a trip to Cuba, or friends’ receptions or weddings.
330 Second, Mr Pinxten applied for reimbursements and payments for activities connected with his own financial interests, particularly in connection with the purchase of a vineyard.
331 Third, Mr Pinxten carried out missions for activities that were incompatible with his duties, such as activities in connection with the political party in question, the reality of which is shown both by the frequency of meetings with the members of that party and by the evidence gathered by OLAF.
332 Fourth, Mr Pinxten introduced ‘missions without allowances’ for activities which he acknowledges to be unrelated to his duties in order to ensure that the mileage of the official car for his missions was not counted towards the annual limit of 15000 km, as he was charged for any excess mileage.
333 Although Mr Pinxten justifies many missions on grounds of having received a formal invitation, that justification cannot be accepted where that formal character, especially the fact that an invitation refers to its recipient’s position as a Member of the Court of Auditors, could be an expression of courtesy unrelated to his duties as a Member of the Court of Auditors and where, in some cases, the invitation in question had been requested by Mr Pinxten. Similarly, the position or title of the individuals he met during a mission is not a valid reason, as they are not sufficient proof of the official character of the event. Furthermore, the President of the Court of Auditors is responsible for the external representation of that institution, with the assistance of the Members with responsibility for institutional relations and audit quality control as from 2016.
334 In the second place, the Court of Auditors submits that, in the quarterly returns for his representation and reception expenses, Mr Pinxten indicated expenses that were private in nature or incompatible with his duties.
335 Under Article 2 of Decision No 7-2004, reimbursement of representation expenses was limited to expenses incurred by the Members of the Court of Auditors in that capacity and friends or personal contacts had to be given private invitations.
336 The Court of Auditors argues, in particular, that Mr Pinxten held a number of dinners at his residence whose links with his duties as a Member of that institution are not established and the true purpose of which, in the light of the content of a letter dated 28 April 2015 sent to the Prime Minister of the Kingdom of Belgium inviting him to one such dinner (‘the letter of 28 April 2015’), must be considered to be to gather Mr Pinxten’s friends.
337 In the third place, Mr Pinxten used his official car and had recourse to the services of the Court of Auditors’ drivers for activities unrelated to or incompatible with his duties, including cases when he was not on mission.
338 Under Articles 1 and 4 of Decision No 33-2004, the Court of Auditors was to assume the expenses incurred from use of the official car only in the performance of the duties of its Members. That was the case, under those provisions, where the travel in question was under a travel order or, within a limit of 15000 km/year, for certain specific travel considered to be connected with the performance of duties. In addition, the Members of the Court of Auditors could have recourse to the services of a driver only for their travel in the performance of duties.
339 Mr Pinxten’s medical condition was not such as to justify the use of the Court of Auditors’ drivers for private travel. Moreover, the medical certificate indicating that he should not drive long distances was not issued until 31 October 2016.
340 According to the Court of Auditors, the regulations applicable throughout the period at issue were clear, precise, predictable and well known to Mr Pinxten. They consistently precluded any payment in respect of private activities or activities incompatible with the position of Member of the Court of Auditors. Against that background, Mr Pinxten cannot blame his own breaches on the Court of Auditors, which had appropriate internal monitoring mechanisms.
341 No infringement of the principle of protection of legitimate expectations can be accepted here as the silence of the administration or undue payments should not be considered to be precise, unconditional and consistent assurances.
342 In any event, an irregular practice cannot create a legitimate expectation. The validation by the President of the Court of Auditors of the travel orders issued by Mr Pinxten was based on information which failed to indicate that the missions did not relate to tasks in the performance of his duties. The consent granted by the President was thus vitiated by wilful omission or fraudulent misrepresentation on the part of Mr Pinxten.
343 Mr Pinxten contends that the first complaint should be dismissed.
344 He relies, in the first place, on the principles of legal certainty and protection of legitimate expectations.
345 He asserts in that regard that the rules applicable until 2018 within the Court of Auditors did not define the notions of ‘mission’, ‘performance of duties’ or ‘interest of the Court of Auditors’. The only relevant text at that time was the Commentary on Article 4 of Decision No 33-2004, which showed that the performance of duties should be construed broadly.
346 In addition, Mr Pinxten systematically communicated the information required by Decision No 1-2003 to the President of the Court of Auditors. He also informed him that he had recourse to a driver for health reasons, as demonstrated by the declaration of ‘missions without allowances’. Furthermore, he answered all the questions which were put to him by the services of the Court of Auditors. In view of his transparent practice, he cannot be held responsible for deficiencies in monitoring by those services which did not allow them to identify possible errors.
347 Against that background, Mr Pinxten was given, through the authorisations granted and the practice of the Court of Auditors, precise, unconditional and consistent assurances originating from reliable sources, over a period of more than 10 years, creating the legitimate expectation that the payments made were regular. The action brought by the Court of Auditors therefore infringes the principle of the protection of legitimate expectations.
348 In the second place, the assessments made by the Court of Auditors in connection with its first complaint are vitiated by a number of manifest errors.
349 The Court of Auditors, like OLAF, thus called into question the purpose of many missions in the light of what it considered to be the ‘real purpose’ of those missions, without offering explanations regarding the documents in support of its position.
350 Mr Pinxten asserts, in particular, that he never engaged in political activity during his terms of office as a Member of the Court of Auditors. He met members of the political party in question in his capacity as a Member of the Court of Auditors with the specific aim of promoting its work. Similarly, the missions undertaken within the SBNL-V helped to raise awareness of the work of the Court of Auditors among stakeholders.
351 As regards hunting parties, Mr Pinxten states that his missions at the Château de Chambord (France) were in the context of European Days which gathered prominent European figures. More broadly, the fact that an official meeting was accompanied by more informal elements cannot call into question its link with the duties of a Member of the Court of Auditors.
352 The mission to Crans-Montana was authorised by the President of the Court of Auditors without a request for further information. It allowed Mr Pinxten to participate in the ‘Crans-Montana Forum’, the purpose of which was to gather prominent figures for general discussions. The defendant learnt of the existence of the forum, moreover, from the President of the Court of Auditors.
353 The trip to Cuba was also justified, with the agreement of the President of the Court of Auditors, by the wish to meet local actors, knowing that the nature of the Cuban regime meant that contacts had to be made after arrival. In addition, the organisation of the trip had been complicated by a lack of cooperation on the part of the EU delegation to Cuba.
354 Medical appointments, for which he did not receive any allowance, are among the cases referred to Article 4 of Decision No 33-2004 in which recourse to a driver is permitted.
355 Furthermore, Mr Pinxten provides detailed information concerning a number of missions whose purpose was described incorrectly in the application or with regard to which the Court of Auditors made inaccurate factual allegations.
356 As for representation and reception expenses, Mr Pinxten submits, with reference to Decision No 7-2004 and communications from the Court of Auditors, that it was in the interest of that institution for its Members to maintain contacts with leading players. No rules prohibited representation activities from being directed at already known individuals, as only personal friends and family members had to be invited privately.
357 He objects in that regard to the position taken by the Court of Auditors according to which representation activities are solely a matter for its President. That position is not consistent with its practice or strategic objectives and does not tally with the fact that its Members are permitted to incur representation expenses.
358 The driver missions ordered by Mr Pinxten were either related to his own missions or justified by Article 4 of Decision No 33-2004 and Article 4 of Decision No 19-2009. The administration of the Court of Auditors had, moreover, been fully informed of the activities of the drivers concerned.
359 As a preliminary point, it should be noted that the first complaint covers several hundred distinct allegations relating to as many factual situations in which the resources of the Court of Auditors were, in its view, misused at Mr Pinxten’s request.
360 In those circumstances, in order to allow the parties to carry out a full analysis of those allegations intelligibly, they will be identified by reference to the numbering system established by the Court of Auditors for recovery purposes, as presented in the table in Annex A.47 to the application and reproduced in the table in Annex C.1 to the reply.
361 It should be noted in that regard that the Court is required to give a ruling on the first complaint on the basis of the evidence available to it and in the light of the criteria set out in Article 286(6) TFEU in order to determine whether the alleged irregularities are such as to be classified as a breach of the obligations arising from the office of Member of the Court of Auditors for the purposes of that provision.
362 Consequently, although, on 11 April 2019, the Court of Auditors sent Mr Pinxten a decision establishing the amount receivable and to be recovered in respect of the alleged irregularities which are the subject of the first complaint, the position adopted by the Court of Justice on that complaint in the present proceedings does not pertain to the determination of the sums for which Mr Pinxten might be liable and is therefore without prejudice to the assessment of that decision that will have to be made in any action for its annulment brought before the General Court of the European Union by Mr Pinxten.
363 Before examining in succession the allegations made by the Court of Auditors concerning, first, mission expenses and daily subsistence allowances, second, representation and reception expenses and, third, use of the official car and recourse to the services of a driver, it is necessary to consider Mr Pinxten’s argument that the first complaint infringes the principle of the protection of legitimate expectations.
364 Even though Mr Pinxten formally relies on both the principle of legal certainty and the principle of the protection of legitimate expectations, his arguments, in fact, relate solely to the latter principle, as is confirmed, moreover, by the reformulation of those arguments in the rejoinder.
365 It is the settled case-law of the Court that the right to rely on the principle of the protection of legitimate expectations presupposes that precise, unconditional and consistent assurances originating from authorised, reliable sources have been given to the person concerned by the competent authorities of the European Union (judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 144 and the case-law cited).
366 The applicability of that principle must be dismissed at the outset with regard to the resources committed by the Court of Auditors for representation and reception expenses, use of the official car and recourse to the services of a driver.
367 First, according to the Court’s case-law, payments like those made in respect of representation and reception expenses cannot, in the absence of any other relevant factor and even where a long period had elapsed between those payments and the challenge to their regularity, engender on the part of their beneficiary a legitimate expectation that those payments could no longer be challenged (see, to that effect, judgment of 14 June 2016, Marchiani v Parliament, C‑566/14 P, EU:C:2016:437, paragraph 79).
368 The Court of Auditors’ practice of reimbursing representation and reception expenses on the basis of information provided by Mr Pinxten without requesting further information and without challenging the validity of his claims for reimbursement is not sufficient to establish that it gave him precise, unconditional and consistent assurances as to the regularity of those claims.
369 Second, Mr Pinxten’s use of his official car or recourse to the services of a driver was not the subject of any explicit decision by the Court of Auditors and there has been no indication before the Court of Justice of any other form of specific position taken by the Court of Auditors on the practice to be followed by Mr Pinxten in that regard.
370 Therefore, assuming that, as Mr Pinxten claims, the Court of Auditors did tolerate practices of whose existence it must have been aware, that fact is, in any event, not sufficient to establish that it gave him precise, unconditional and consistent assurances in that regard.
371 On the other hand, the travel orders issued explicitly, at Mr Pinxten’s request, by the President of the Court of Auditors constitute sufficient assurances, within the meaning of the case-law cited in paragraph 365 of the present judgment, for him to create, in principle, a legitimate expectation as to the regularity of the missions concerned.
372 That being said, it should be noted, first of all, that, according to the Court’s case-law, an individual cannot have a legitimate expectation that a situation characterised by fraud will be maintained (see, to that effect, judgment of 14 June 2017, Santogal M-Comércio e Reparação de Automóveis, C‑26/16, EU:C:2017:453, paragraph 76 and the case-law cited).
373 Second, having regard to the obligation, mentioned in paragraph 241 of the present judgment, for Members of the Court of Auditors to observe rigorously the declaration obligations laid down by the rules adopted by the Court of Auditors in order to keep it fully informed of claims committing its resources, a travel order issued on the basis of a request that omits key information allowing its President to assess the regularity of the mission in question cannot, even in the absence of fraud, create the legitimate expectation of the Member concerned as to such regularity.
374 Lastly, the principle of the protection of legitimate expectations may not be relied upon by a person who has committed a manifest infringement of the rules in force (judgments of 16 May 1991, Commission v Netherlands, C‑96/89, EU:C:1991:213, paragraph 30, and of 14 July 2005, ThyssenKrupp v Commission, C‑65/02 P and C‑73/02 P, EU:C:2005:454, paragraph 41 and the case-law cited).
375 It follows, first, that Mr Pinxten cannot rely on a legitimate expectation based on travel orders obtained fraudulently or, even if fraudulent intent is not established, on travel orders issued by the President of the Court of Auditors on the basis of a request that omits key information allowing him to assess the regularity of the mission in question.
376 Nevertheless, contrary to the assertion made by the Court of Auditors, the authorisations granted to Mr Pinxten which are challenged under the first complaint cannot be considered to have been systematically based on such information. On the contrary, it is apparent from the documents before the Court of Justice that numerous authorisation requests for missions describe in a clear and transparent manner a purpose which the Court of Auditors now considers, as such, to be irregular.
377 Second, if a travel order issued by the President of the Court of Auditors, at Mr Pinxten’s request, is manifestly irregular, without having been obtained fraudulently or on the basis of a request containing incomplete information, the principle of the protection of legitimate expectations cannot rule out the possibility of the Court of Justice finding that, by seeking that authorisation then relying on it to obtain a payment, Mr Pinxten breached the obligations arising from his office.
378 Such an approach further stems from the obligation of Members of the Court of Auditors, mentioned in paragraph 239 of the present judgment, to observe the highest standards of conduct.
379 Where the irregularity of a mission seems manifest, Mr Pinxten could not reasonably have been unaware of it. In those circumstances, he could not request or rely on an authorisation without effectively seeking to take advantage of tolerance of irregular practices or deficiencies in monitoring that existed within the Court of Auditors.
380 However, in the light of the above considerations, the Court of Auditors cannot legitimately complain, for the purposes of the present proceedings, that Mr Pinxten benefited from payment of mission expenses or daily subsistence allowances for a mission authorised by the President of the Court of Auditors on the basis of a request which was not fraudulent and did not omit key information and whose irregularity was not manifest.
381 In those circumstances, the question whether the travel orders issued, at Mr Pinxten’s request, by the President of the Court of Auditors were such as to create a legitimate expectation for Mr Pinxten as to the regularity of the missions concerned must be assessed in each individual case, in the light, inter alia, of a comparison of the reason stated in the authorisation request and the real purpose of the mission, as indicated by the evidence presented to the Court of Justice. That assessment merges together with the examination of the substance of the first complaint raised by the Court of Auditors.
382 Furthermore, although Mr Pinxten also invokes the imprecision of the rules applicable to the Members of the Court of Auditors, that argument cannot justify the rejection of the first complaint in its entirety.
383 It is true that the rules applicable to the situations which are the subject of the first complaint are characterised by a certain vagueness, in particular a lack of precision as to the situations in which a mission may be authorised, the supporting documents to be provided for an authorisation request for a mission or the conditions under which an invitation sent to a third party may be linked to the position as a Member of the Court of Auditors, especially as regards permitted reasons for representation and information to be produced to substantiate the reason given.
384 That vagueness means that the competent organs of the Court of Auditors enjoyed broad discretion in determining whether the payment of mission expenses, daily subsistence allowances or representation and reception expenses was justified.
385 The Court of Justice will therefore have to take that discretion into account, in each individual case, when it assesses the regularity of Mr Pinxten’s conduct or, a fortiori, the manifestly irregular character of that conduct.
386 However, the vagueness of the relevant rules is not sufficient to establish, in general, that the allegations made by the Court of Auditors concerning misuse of its resources by Mr Pinxten are unfounded.
387 At the material time for the present action, the arrangements for mission expenses and daily subsistence allowances were laid down, within the framework established in Articles 285 to 287 TFEU, in Article 7 of Regulation No 2290/77, which provided for reimbursement of those expenses and payment of those allowances where the Member of the Court of Auditors concerned was required in the course of his duties to travel away from its place of location.
388 As regards the duties incumbent on the Members of the Court of Auditors, it should be noted that, under Article 285 TFEU, its primary mission is to carry out the European Union’s audit. To that effect, it is called upon, under Article 287(1) and (2) TFEU, to 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.
389 The arrangements applicable to mission expenses and daily subsistence allowances were laid down in Decision No 1-2003.
390 Article 1 of that decision provided that travel orders must be obtained as soon as possible and that, for the mission expenses of Members, the authorising officer was the President of that institution.
391 Article 3 of that decision permitted travel by official car in the course of missions, while Articles 5 and 6 of that decision provided, respectively, for reimbursement of mission expenses and payment of daily subsistence allowances.
392 Accordingly, a claim for reimbursement of mission expenses or for payment of daily subsistence allowances must be considered irregular if it is established that the activity actually carried out under the travel order in question cannot be linked to the performance of Mr Pinxten’s duties. In the light of the considerations in paragraphs 371 to 381 of the present judgment, such irregularity can be taken into account for the purposes of the present proceedings either if the travel order was obtained fraudulently or on the basis of a request that omitted key information or if the absence of a link between that activity and those duties is obvious.
393 Before undertaking a detailed assessment of the regularity of each of the missions which are the subject of the first complaint, it is also necessary to examine the Court of Auditors’ argument that, at his hearing by OLAF, Mr Pinxten acknowledged that all the missions explicitly presented in requests for travel orders as being ‘missions without allowances’ were entirely unrelated to his duties.
394 It is clear from the transcript of that hearing that Mr Pinxten only stated that he presented those requests in that manner, for the sake of transparency, when a mission ‘had an objective related to [his] position but also a private aspect’ or when he had ‘doubts as to the appropriateness’ of the mission in the light of the purpose and the importance of the activity in question.
395 Since that position has been reiterated before the Court of Justice, it is necessary to examine the missions explicitly presented by Mr Pinxten as ‘missions without allowances’ in the same way as the other missions which are the subject of the first complaint.
396 It is undisputed that Mr Pinxten stayed in the mountain resort of Crans-Montana, with his wife, from 22 to 25 August 2013 in order to participate in the summer sessions of the ‘Crans-Montana Forum’ as part of the mission referred to in line 252.
397 That mission justified reimbursement of registration and hotel fees and payment of daily subsistence allowances, while the expenses for the stay by Mr Pinxten’s wife were not paid by the Court of Auditors.
398 The authorisation request for that mission stated that the aim was to participate in the summer sessions of the ‘Crans-Montana Forum’, a Swiss non-governmental organisation. The request was accompanied by a brief internal note, signed by Mr Pinxten, which specified that those sessions were an opportunity to discuss topical questions of international politics with leaders from all over the world. The travel order was issued on the basis of that information, without a request for further details concerning the event programme, for example.
399 It is true that the fact that a mission allows a Member of the Court of Auditors to participate in an event which incidentally includes activity that could be classified as tourism or leisure does not necessarily mean that that mission is unrelated to the Member’s duties if the event is nevertheless focused primarily on professional activities.
400 However, the event in question was described by its organisers, in a leaflet produced by the Court of Auditors, as being devoted entirely to contacts, friendships, pleasant hikes and informal gatherings. That description is confirmed by the detailed event programme, which includes only leisure activities, in particular hikes and a lively evening.
401 An email from the event organisers, dated 29 May 2013, also states that the summer sessions of the ‘Crans-Montana Forum’ are informal, distinguishing them from the other sessions of the forum.
402 In addition, although Mr Pinxten maintains before the Court of Justice that those summer sessions had a genuine professional dimension, he does not produce any evidence in support of that claim.
403 Consequently, the mere fact that participation in those summer sessions might encourage meetings and exchanges with international officials, which has not been demonstrated, moreover, is not such as to establish the existence of a genuine link between the mission in question and Mr Pinxten’s duties.
404 That mission must therefore be considered manifestly irregular.
405 In those circumstances, it is immaterial that the President of the Court of Auditors forwarded to its Members information relating to the ‘Crans-Montana Forum’, which that institution does not dispute, as it could, at the most, indicate that the mission was authorised by it in full knowledge of the facts, which is not sufficient, according to the case-law set out in paragraph 374 of the present judgment, to create a legitimate expectation on the part of Mr Pinxten that could preclude its manifest irregularity being taken into account for the purposes of the present proceedings.
406 It is not contested that Mr Pinxten stayed in Cuba, with his wife, from 30 March to 14 April 2015, which justified, in respect of the mission referred to in line 343, reimbursement, inter alia, of transport and accommodation costs and payment of daily subsistence allowances, while the expenses for the stay by Mr Pinxten’s wife were not paid by the Court of Auditors.
407 That mission was authorised by the Court of Auditors after Mr Pinxten had submitted further information, as requested by its President, according to which the objective of that mission was to gather information on EU-Cuba relations through contacts with local civil society and visits to projects financed by the European Union.
408 It must be ascertained whether the evidence available to the Court of Justice establishes the validity of the Court of Auditors’ claim that Mr Pinxten’s stay in Cuba was for mainly private purposes.
409 In that regard, it is apparent from a schedule drawn up by Mr Pinxten’s Cabinet and seized by OLAF that the stay in question was given over almost exclusively to tourist activities.
410 The only parts of the schedule that could possibly be linked to the duties performed by Mr Pinxten were a meeting with the EU ambassador to Cuba on 31 March 2015, a lunch with that ambassador attended by the Permanent Representative of the United Nations Development Programme (UNDP) and the ambassador of the Kingdom of Belgium to Cuba on 2 April 2015 and a meeting with the Belgian ambassador on 3 April 2015.
411 The information provided to OLAF by the EU ambassador to Cuba suggests, however, that the lunch on 2 April 2015 had been organised out of courtesy and had not been a working lunch. The ambassador also stated that, in any event, Mr Pinxten’s stay could not be considered to be professional in nature, since he was precluded from making a trip of that nature to Cuba because he held a tourist visa.
412 That was confirmed to OLAF by another member of the EU delegation to Cuba, who also stated that Mr Pinxten had not taken heed of warnings received regarding the inappropriate dates for his stay and that the discussions held with him were entirely non-technical.
413 It must be stated that Mr Pinxten has failed properly to contest the evidence presented by the Court of Auditors to show that his stay in Cuba was given over almost exclusively to tourist activities or, a fortiori, to submit to the Court of Justice other evidence in support of his position that the purpose of his stay in Cuba was actually related to his duties.
414 In particular, although he refers to the positions of various officials with whom he was able to have exchanges during that stay, it would seem that, for the most part, he met them at the lunch at the EU embassy in Cuba, which, as was stated in paragraph 411 of the present judgment, was not a working lunch.
415 The information on that point provided by Mr Pinxten is even less reliable, moreover, given that the officials mentioned include a ‘businessman’ who is, in fact, the owner of the accommodation rented by Mr Pinxten during his stay.
416 As regards the fact, mentioned by Mr Pinxten in a note presented to the President of the Court of Auditors following his mission, that certain visits had to be cancelled at the last minute, that claim cannot explain the absence of a genuine professional dimension for his stay in Cuba.
417 First, it is clear from the documents in the file relating to the preparations for the stay that it had originally been planned as a purely tourist visit.
418 Particular mention should be made in that regard of the emails sent on 28 and 29 January 2015 by Mr Pinxten’s assistant to the EU ambassador to Cuba, in which she explains that Mr Pinxten wished to obtain information with a view to a private trip to that country, which he had never visited, without any mention of a professional purpose for the proposed stay.
419 Second, the steps taken before the trip to Cuba to organise activities that could be related to Mr Pinxten’s duties within the Court of Auditors cannot call into question the private nature of his stay in that country.
420 In particular, those steps appear to have been taken very belatedly, which is hardly compatible with the organisation of a fact-finding mission to a non-member country like Cuba, where the person concerned intended to travel for the first time. It is thus clear from the emails available to the Court of Justice that UNDP was not contacted until 18 March 2015 and that no official schedule had been fixed on 19 March 2015, less than two weeks before Mr Pinxten’s departure for Cuba.
421 In addition, the ambassadors of the European Union and of the Kingdom of Belgium to Cuba as well as the UNDP staff in that country had made clear to Mr Pinxten, in emails produced by the Court of Auditors, that it was difficult to envisage combining professional and tourist activities in that country, that any official visit had to be notified in advance to the Cuban authorities and was subject to an appropriate visa and that it was highly unlikely that he could meet Cuban officials informally.
422 Mr Pinxten cannot therefore legitimately claim that, when he departed for Cuba, he was unaware that his stay in that non-member country was not really likely to allow activities related to his duties as a Member of the Court of Auditors to be carried out.
423 In the light of all those factors, although the absence of additional ex ante and ex post checks for a mission involving substantial funds should be noted, the fact remains that the information provided to the Court of Auditors before and after the mission referred to in line 343 was seriously misleading as to the real purpose of Mr Pinxten’s stay in Cuba and that the mission must be considered irregular in so far as the stay was unrelated to Mr Pinxten’s duties.
424 It follows that the mission mentioned in line 341, the purpose of which was to meet various people in order to make preparations for the stay in Cuba, must also be considered irregular.
425 Many of Mr Pinxten’s missions that resulted in reimbursement of mission expenses or payment of daily subsistence allowances that the Court of Auditors alleges to be irregular under the first complaint related to meetings with politicians.
426 In order to rule on those missions, it must be ascertained whether such meetings could, in principle, constitute the purpose of missions for the Members of the Court of Auditors.
427 In that regard, as is stated in paragraph 387 of the present judgment, the EU legislation applicable at the material time in the present action provided that the missions of the Members of the Court of Auditors had to relate to travel ‘in the course of the duties’ of those Members.
428 As Mr Pinxten asserts, activities in the course of the duties of a Member of the Court of Auditors must be considered to include official activities seeking, in particular, to raise awareness and promote its work and to maintain contacts with prominent officials in the interest of the institution.
429 Such official activities may very often concern officials from the same Member State as the Member of the Court of Auditors concerned, in particular because of contacts that may have existed before he took office, practical facilitation, including linguistic aspects, or a better understanding of national issues surrounding the acceptance of the work of the Court of Auditors.
430 The Court of Auditors enjoyed a degree of discretion in determining to what extent and under what conditions missions of its Members relating to meetings with politicians could be authorised with a view to the performance of official activities of that nature, provided the real purpose of those missions was not to engage in political activity, which, as was stated in paragraph 272 of the present judgment, is incompatible with the duties of a Member of the Court of Auditors.
431 Although, as is stated in paragraph 383 of the present judgment, the internal rules of the Court of Auditors relating to the missions of its Members do not include a clear decision adopted by it in that regard, helpful guidance on the line taken within the institution can be inferred from the rules on representation and reception expenses.
432 The importance that the Court of Auditors attached to its Members’ contacts with politicians was apparent from the note of 22 April 2004, which stated that ‘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’.
433 Similarly, both the 2013-2017 strategy of the Court of Auditors and its strategy for communication and contacts with stakeholders adopted on 12 December 2013 mentioned the need for the Court of Auditors to maintain contacts with various actors, including national and European political authorities responsible for auditing the use of EU funds. Furthermore, the latter document stated that contacts with national parliaments should be maintained by the Members and their Cabinets.
434 The practice followed by the Court of Auditors in respect of Mr Pinxten’s missions confirms that it exercised its discretion in so far as it accepted, in principle, a link between missions for meeting national politicians and the duties of its Members.
435 First, over his two terms of office, several dozen of Mr Pinxten’s missions were authorised when their sole purpose was to meet a Belgian politician.
436 Second, in the first review of Mr Pinxten’s missions by the services of the Court of Auditors before the OLAF investigation, those missions were not identified at all as potentially problematic missions requiring additional supporting evidence.
437 Lastly, it is clear from the documents before the Court of Justice that, aside from the missions which are alleged to be irregular under the first complaint, other missions by Mr Pinxten with the purpose of meeting Belgian political figures remain entirely regular from the point of view of the Court of Auditors.
438 In the light of the foregoing, the missions authorised in a transparent manner with a view to meeting politicians cannot, in general, be considered manifestly irregular by reason of their purpose.
439 That assessment cannot be called into question by the Court of Auditors’ argument that the representation of that institution was carried out by its President and by its Members with responsibility for institutional relations and audit quality control.
440 That argument is directly refuted by the documents issued by that institution mentioned in paragraph 433 of the present judgment. It is also inconsistent with the fact that Decision No 7-2004 provided that all the Members of that institution may receive representation and reception expenses incurred in their capacity as Members.
441 Consequently, it must be assessed whether the explanations and evidence presented by the Court of Auditors establish, for each of the missions whose purpose pertained to a meeting with a politician, a reason indicating that the mission in question did not pursue a legitimate official objective.
442 Bearing that in mind, it seems, in the first place, that a number of missions presented by Mr Pinxten as having the purpose of meeting Belgian politicians can be directly linked to his political activity, which is incompatible with his duties, the reality of which has been established in the examination of the fourth complaint, in so far as the aim of those missions was, in fact, to allow him to attend a board meeting of the political party in question.
443 Those missions, which were authorised on the basis of requests that omitted key information and which were, in reality, linked to activity incompatible with the duties of a Member of the Court of Auditors, cannot be regarded as regular.
444 A finding of that nature can be made in respect of the missions referred to in lines 54, 60, 61, 70, 81, 84, 85, 88 and 94, as the Court of Auditors produces minutes attesting to Mr Pinxten’s presence at board meetings of the political party in question during those missions, even though the meetings are not mentioned in the authorisation requests for the missions.
445 The fact that the purpose of the mission referred to in line 94 was not only to meet Belgian political figures but also to attend a meeting at the European Parliament cannot establish the regularity of that mission in so far as the minutes drawn up by the political party in question and by the European Parliament show that Mr Pinxten attended only the meeting organised by that party.
446 The real purpose of the missions mentioned in lines 95, 396, 410, 413 and 414 must also be considered to be to allow Mr Pinxten to attend board meetings of the political party in question in the light of information contained in Mr Pinxten’s diary and in emails exchanged with officials from the party. The same holds for the missions referred to in lines 299 and 369 based on the clear entries in that diary.
447 Even though their declared purpose was not to meet a Belgian political figure, several missions must, by analogy, be mentioned here in so far as they allowed Mr Pinxten to attend board meetings of the political party in question and, on that ground, must be considered to be, in part, irregular.
448 That is the case with the missions referred to in lines 39, 45 and 86. While the declared purpose of those three missions was to meet private economic operators or association officials, the Court of Justice has minutes of board meetings of the political party in question which indicate that Mr Pinxten attended those meetings on the dates corresponding to those missions.
449 Similarly, even though the mission mentioned in line 68 also related to a representation activity whose regularity is not disputed, it must be considered partially irregular in so far as, during the time allocated for that mission, Mr Pinxten attended a board meeting of the political party in question, as attested by the minutes of that meeting.
450 In the second place, the aim of a number of missions carried out by Mr Pinxten was to attend activities or receptions organised by the political party in question other than the meetings of its board.
451 Thus, in the light of the invitations received by Mr Pinxten and the entries in his diary, it appears that, under the guise of official reasons relating to meetings with Belgian political figures, the aim of the missions referred to in lines 120, 175, 221 and 365 was to attend parliamentary days of the political party in question; the missions mentioned in lines 207, 298 and 381 and, in part, the mission mentioned in line 229, New Year receptions for that party; the mission referred to in line 258, a visit to a town by party members; and the missions mentioned in lines 260 and 289, a study day and a congress of that party.
452 Activities of a similar nature were also sometimes undertaken for reasons other than meeting Belgian political figures.
453 Thus, it is apparent, first, from Mr Pinxten’s diary that the mission in line 69, presented as having the aim of attending a ‘congress’, pertained to the congress of the political party in question.
454 Second, although the reason given for the mission referred to in line 275 was an invitation from an individual whose position is not indicated, an invoice produced by the Court of Auditors and a diary entry show that its real purpose was to participate in a ‘political cafe’ organised by that political party.
455 Lastly, it must be stated, on the basis of that diary and an email from Mr Pinxten’s assistant dated 25 July 2017, that, under the guise of an invitation from the ALDE Group in the European Parliament, the aim of the missions referred to in lines 308 and 416 was to attend parliamentary days organised by the political party in question.
456 As regards the mission mentioned in line 269, the official purpose of which was ‘Formal invitation, Minister of State, Herman de Croo Centrum’, it must also be linked to Mr Pinxten’s political activity as that mission related to a visit to an institution that presents itself as having been created in tribute to the former president of the political party in question.
457 The missions mentioned in paragraphs 451 to 456 of the present judgment must be regarded as being inseparable from Mr Pinxten’s political activity, which is the subject of the first part of the fourth complaint, and, on that ground, as manifestly irregular.
458 The fact that the aim of the events organised by the political party in question, which were the subject of some of those missions, was not a priori to discuss that party’s policies, but had a festive aspect, cannot call into question that assessment, as their link with a political movement within which he engaged in activity that was incompatible with his duties did not permit Mr Pinxten to participate in those activities without infringing his obligation of independence.
459 Therefore, it is irrelevant for the purposes of the present proceedings that some of those missions were authorised on the basis of a request that described their purpose with sufficient transparency.
460 On the other hand, in the case of the mission referred to in line 34, the fact that Mr Pinxten’s diary shows that he was due to attend the New Year reception of the political party in question on 19 January 2009 cannot prove that his arrival in Brussels on that date, when the purpose of that mission was to attend a meeting of the European Parliament on the following morning, was manifestly separable from the declared purpose of that mission, as that choice could be justified for practical reasons.
461 Similarly, although, with regard to the mission mentioned in line 74, the Court of Auditors mentions Mr Pinxten’s attendance of a board meeting of the political party in question, according to the travel order, that mission did not begin until several hours after that meeting had been held.
462 In the third place, on the basis of the documents before the Court of Justice, other missions whose declared purpose was to meet Belgian politicians cannot be linked to meetings or other activities organised by the political party in question.
463 It is true that, in the majority of cases, the politicians mentioned in the orders for those missions are credibly presented by the Court of Auditors as belonging to that political party.
464 However, the close links established between Mr Pinxten and the political party in question are not sufficient, in the present proceedings, to form a presumption from which it can be systematically inferred that a mission whose aim is to meet a politician is manifestly irregular simply because that politician is a member of that political party.
465 Given, in particular, the important role played by that party in Belgian political life and the contacts that Mr Pinxten could legitimately maintain within that party on account of his activities before he took up his post, the organisation of a number of official missions involving politicians belonging to that party cannot be regarded as implausible.
466 While the Court of Auditors argues before the Court of Justice that it was unaware of the party affiliation of those politicians before the OLAF investigation, that argument is not sufficient to demonstrate that Mr Pinxten’s requests were fraudulent or failed to mention key information, especially since the missions in question related, in most cases, to a small number of individuals whose political affiliations were a matter of common knowledge and the aim of several of those missions was to meet politicians explicitly identified, inter alia, as holding ‘party leader’ positions.
467 In those circumstances, the Court of Auditors cannot be considered to have satisfied the burden of proof on it where it proposes that the Court of Justice establish the irregularity of a mission based on the mere fact that the politician mentioned in the travel order in question was a member of the political party in question, without presenting any evidence to show that the mission did not satisfy the criteria applied within the Court of Auditors at the material time for accepting the regularity of an official mission.
468 A similar situation can be observed in a number of missions where Mr Pinxten was authorised to meet a politician holding a prominent position, whether it be a Member of the European Parliament in the missions referred to in lines 19, 301, 330, 355 and 402 and, in part, in the mission referred to in line 296; a member of the Belgian Government in the missions mentioned in lines 43, 66, 92, 97, 169, 211, 215, 248, 303, 352 and 395 and, in part, in the missions mentioned in lines 118, 326 and 339; or a Member of the Belgian Parliament in the missions referred to in lines 41, 59, 171, 203, 204, 208, 211, 238, 313, 331, 334, 336, 346, 354 and, in part, in the mission mentioned in line 326.
469 That approach must also be adopted for the missions referred to in lines 1 and 7, the aim of which was to meet a member of a minister’s private office.
470 As regards the missions referred to in lines 319 and 320, the member of a minister’s private office mentioned in the travel order is not described by the Court of Auditors as belonging to the political party in question. It nevertheless considers that those missions should be linked to political or private activity on account of their connection with transport matters. That is not enough, however, to establish that those missions were manifestly irregular.
471 In the fourth place, the logic adopted for missions whose purpose was to meet politicians holding prominent positions cannot be applied to missions with the aim of meeting individuals who had held such positions but had left them by the time of the relevant mission, as, save in special circumstances, such a meeting must be considered to be manifestly devoid of official interest for the Court of Auditors.
472 Similarly, a meeting with a local politician must, save in special circumstances, be considered to be manifestly unrelated to the performance of the duties of a Member of the Court of Auditors.
473 On the basis of those criteria and Mr Pinxten having failed to produce evidence to show the existence of special circumstances, the missions referred to in lines 15 and 253 must be considered manifestly irregular, since it is apparent from the very purpose of those missions, as declared by Mr Pinxten, that their aim was to meet, respectively, a former minister and a former Member of the Belgian Parliament.
474 As far as the mission mentioned in line 232 is concerned, it should be stated that the position of ‘ministre d’État’, which is attributed to the individual to be met in that mission, is an honorary title which does not imply a prominent political position. The reason for that mission therefore seems misleading and, in any event, the mission must be considered manifestly irregular.
475 Similarly, attendance of a reception held by the municipality of Overpelt, which was in part the purpose of the mission referred to in line 378, must also be regarded as being manifestly unrelated to the duties of a Member of the Court of Auditors.
476 Several of the missions that resulted in reimbursement of mission expenses or payment of daily subsistence allowances which are the subject of the first complaint concerned Mr Pinxten’s contacts with senior staff of private economic operators.
477 The legal arrangements governing missions by Members of the Court of Auditors whose purpose is to meet such senior staff must be distinguished from the arrangements for missions relating to contacts with politicians.
478 In so far as, under Article 285 TFEU, it is the duty of the Court of Auditors to carry out the European Union’s audit, contacts with private economic operators may be of less interest to it than contacts with public officials.
479 That is confirmed by the fact that the note of 22 April 2004 does not mention invitations sent to senior staff of private economic operators as a suggestion of regular use of representation and reception expenses incurred by the Members of the Court of Auditors.
480 The documents which serve to establish the Court of Auditors’ communication strategy, mentioned in paragraph 433 of the present judgment, likewise do not refer to those senior staff as being stakeholders whom it wishes to address for the promotion of its work.
481 Against that background, Mr Pinxten’s argument that the missions to meet senior staff of private economic operators were justified by the need to exchange ideas with actors from the economic sphere in order to inform discussions within the Court of Auditors cannot establish a sufficient link with the duties of a Member of that institution to justify the commitment of its resources.
482 Consequently, although the majority of the missions with the aim of meeting senior staff of private operators were authorised by the Court of Auditors on the basis of completely transparent requests by Mr Pinxten, he must have known that, save in special circumstances where a specific link could be established between the activities of the private operator concerned and the activities of that institution, such a reason was clearly not such as to characterise a sufficient link with the performance of his duties as a Member of that institution.
483 In that context, in the first place, the missions for which the reason given was an invitation sent by a member of senior staff of a multinational private economic operator must be considered manifestly irregular.
484 That conclusion must be drawn, in particular, in respect of the missions referred to in lines 33 and 104, which were linked to invitations from senior staff of industrial groups, the mission mentioned in line 45, the purpose of which was a lunch with an individual described by Mr Pinxten as being a member of various boards, and the mission mentioned in line 325, whose purpose was a meeting with a director of an investment bank.
485 Similarly, although the claims made by the Court of Auditors as to the real purpose of the missions referred to in lines 257 and 259 do not appear to be proven in the light of the documents before the Court of Justice, those missions must nevertheless be regarded as manifestly irregular in so far as their aim was to respond to invitations sent by an international law firm and by an electricity operator, respectively.
486 That is also the case for the mission mentioned in line 74, the reason for which was an invitation from a senior staff member of an insurance group and the purpose of which, according to information in Mr Pinxten’s diary, was to attend a concert.
487 The missions mentioned in lines 75 and 307 and, in part, the mission referred to in line 86 must also be regarded as manifestly irregular in so far as the aim was to meet the director of a postal services group, especially since emails provided by the Court of Auditors show that Mr Pinxten acted as an intermediary for that director in a State aid case.
488 In the second place, the manifest irregularity attaching, in principle, to missions whose aim was to meet senior staff of private economic operators applies, a fortiori, to missions linked to local private economic operators.
489 That is the case, first, with the missions referred to in lines 73, 76, 251 and 295, the intention of which was to meet senior staff of accounting firms in the region from which Mr Pinxten originates, and the mission mentioned in line 130, whose purpose was to meet a manager of various companies in that region.
490 Similarly, the mission mentioned in line 82 and, in part, the missions referred to in lines 121 and 310 must be regarded as manifestly irregular because repeated meetings with a property developer working in the region from which Mr Pinxten originates seem to be entirely unrelated to his duties within the Court of Auditors.
491 It is immaterial in that regard that the Court of Auditors has failed to demonstrate the substance of the claim that Mr Pinxten met the property developer because of his interest in a certain building project.
492 Second, local celebrations organised by private economic operators such as the anniversary of an Antwerp port company, which is the purpose of the mission referred to in line 363, or the opening of a filling line at a factory, which was the reason for the mission mentioned in line 390, clearly cannot be considered to be related to Mr Pinxten’s duties within the Court of Auditors.
493 Lastly, the missions referred to in lines 100, 239, 283, 287, 359 and 406 must also be considered manifestly irregular for the same reason, as their intention was to meet a Belgian businessman described by Mr Pinxten, at his hearing by OLAF, as the director of a group in which he holds shares and a ‘longstanding friend’. The commitment of the resources of the Court of Auditors to finance such missions highlights a confusion between the interests of that institution and Mr Pinxten’s private interests, especially since it is evident from the documents submitted to the Court of Justice that he performed an advisory role for that businessman in connection with the latter’s contacts with the Commission.
494 On the other hand, in the third place, missions with the intention of holding discussions with senior staff of international audit firms cannot be considered manifestly irregular.
495 Since the specific work carried out by those firms is, to some degree, similar to the work entrusted to the Members and staff of the Court of Auditors and that institution is required to cooperate with those firms, it is conceivable that its Members may carry out missions with the aim of maintaining professional contacts with them.
496 Furthermore, the Court of Auditors has acknowledged, in the course of the present proceedings, the existence of regular contacts between its staff and the staff of international audit firms.
497 While that institution asserts that such contacts must be within the framework of public procurement or be made as part of training activities, it must be stated that no such principles are laid down in the internal rules mentioned by it or correspond to its practice, as is evident from Mr Pinxten’s travel orders.
498 It follows that the missions referred to in lines 47, 103, 161, 210 and 277, whose aim is transparently to allow Mr Pinxten to attend an event organised by an international audit firm aimed at officials of European institutions, cannot be regarded as manifestly irregular.
499 The same holds for the mission mentioned in line 237 and, in part, the missions referred to in lines 373 and 374 in so far as the purpose of those missions was to meet senior staff of international audit firms. The fact that the mission mentioned in line 157 and, in part, the mission mentioned in line 339, which had a similar purpose, took place at the headquarters of a private group and of a large company is not sufficient, in the absence of further information, to justify a different conclusion in respect of those missions.
500 As regards the mission referred to in line 199, the aim of which was also to meet a senior staff member of an international audit firm, the Court of Auditors asserts that its real purpose was to discuss a job offer that was potentially of interest to one of Mr Pinxten’s children.
501 However, the documents produced by that institution do not demonstrate to the requisite legal standard that that meeting had been organised for that purpose or that it related primarily to Mr Pinxten’s family interests, or therefore establish the manifest irregularity of that mission. It is true that, according to emails communicated by the Court of Auditors, the individual who was met during that mission received the curriculum vitae of one of Mr Pinxten’s children following his discussion with Mr Pinxten and shared potential job opportunities for that child. However, the reason given by Mr Pinxten, according to which a working lunch may be accompanied by more informal discussions relating, among other things, to the family situation of the diners, which may explain those emails, does not seem implausible.
502 Forty missions that resulted in reimbursement of mission expenses or payment of daily subsistence allowances were alleged to be irregular by the Court of Auditors under the first complaint related to Mr Pinxten’s activities in connection with representative bodies or associations.
503 Such missions lie somewhere between the missions relating to contacts with politicians and the missions relating to contacts with senior staff of private economic operators.
504 Thus, although bodies representing civil society were not mentioned in the Court of Auditors’ rules governing representation and reception expenses or the documents defining its communication strategy which are available to the Court of Justice, those bodies are nevertheless likely to express views on the functioning of the institutions which may be taken into consideration by the Court of Auditors when drafting reports on that functioning.
505 In those circumstances, it cannot be entirely ruled out that the Court of Auditors may legitimately take the view, in specific cases, that missions connected to such bodies must be related to the performance of its Members’ duties.
506 However, an examination of the practice followed by Mr Pinxten, as evidenced by the relevant travel orders, suggests that, even though authorisations were repeatedly granted by the Court of Auditors on a broadly transparent basis, he must have known that his missions connected with representative bodies or associations clearly did not have a real interest for that institution.
507 First, as is stated in paragraph 502 of the present judgment, in the course of his terms of office, Mr Pinxten carried out several dozen missions of that kind.
508 It appears, second, that those missions were carried out almost systematically to local bodies whose field of activity was confined to Limbourg or Flanders (Belgium).
509 Lastly, those missions were in reality carried out in respect of a very small number of actors who received repeated visits from Mr Pinxten.
510 As the indirect link between the activities of the Court of Auditors and representative bodies or associations suggests the regularity of such missions only in specific cases, it clearly cannot be considered to have been in the interest of the Court of Auditors to undertake, repeatedly, the promotion of its work to local actors or exchanges of views with such actors.
511 In that regard, the missions referred to in lines 48, 132, 170, 192, 209, 217, 224, 228, 242, 256, 271, 292, 304, 305, 318, 328, 353, 361, 380 and 398 and, in part, the mission mentioned in line 155 must be considered manifestly irregular because their purpose was to maintain contacts with the Vlaams netwerk van ondernemingen Limburg (Limbourg Chamber of Commerce and Industry, Belgium) through meetings with its senior officials or attendance of annual meetings, New Year receptions, summer parties and other social activities organised by that body.
512 The same conclusion must be drawn for the missions mentioned in lines 83, 174, 219 and 311 and, in part, for the mission referred to in line 118, which related to invitations from an employers’ federation in Limbourg, and for the missions mentioned in lines 131, 227, 261 and, in part, for the missions referred to in lines 326 and 378, the purpose of which was to attend meetings of a group of industrial companies active in Overpelt.
513 Although the mission referred to in line 93 and, in part, the mission mentioned in line 310 concerned bodies in Limbourg to which just one mission related, namely a professional integration association and an informal group of local leaders, the context described in paragraphs 506 to 509 of the present judgment suggests that they are also manifestly irregular.
514 That analysis must also be applied to the missions referred to in lines 154 and 230, which related to a body whose object was to promote Flemish interests in Brussels, and the missions mentioned in lines 134 and 135, the purpose of which was to attend the New Year reception of an investment fund in the Flemish Region.
515 On the other hand, the important role played by national business federations means that the missions mentioned in lines 137 and 143, the aim of which was to meet the President of the Belgian Business Federation, and the mission referred to in line 290 and, in part, the mission mentioned in line 155, relating to participation in forums organised by that federation, should not be regarded as manifestly irregular.
516 As is stated in paragraph 58 of the present judgment, by a decision of 30 April 2015, the Court of Auditors authorised Mr Pinxten to carry on an outside activity compatible with his duties as a Member of that institution, holding the post of President of the SBNL-V.
517 That foundation was described, in the request leading to that decision, as a non-profit organisation to promote the contribution of landowners to biodiversity and sound ecological management in Belgium.
518 Since an outside activity is, by definition, distinct from the duties performed by a Member of the Court of Auditors within that institution, it cannot give rise to missions being carried out in that capacity as a Member.
519 The irregularity of missions directly linked to an authorised outside activity must, moreover, be considered to be manifest where it is evident from the very nature of such activity.
520 It must be determined, in the light of those considerations, whether some of the missions authorised by the Court of Auditors should actually be classified as outside activity engaged in by Mr Pinxten.
521 Thus, while the mission referred to in line 368 and, in part, the mission mentioned in line 392 were authorised by the Court of Auditors on the basis of a completely transparent request, they must be regarded as manifestly irregular in that their purpose was to respond to an invitation from the SBNL-V, to which the travel order made reference.
522 Aside from those two missions, the missions mentioned in lines 323, 360, 385 and 405 and, in part, the mission referred to in line 392 can be linked to Mr Pinxten’s authorised outside activity as President of that foundation.
523 The mission mentioned in line 405 and, in part, the mission referred to in line 385 related to a meeting with the manager of a fund that finances the top prize awarded each year by the SBNL-V.
524 The missions mentioned in lines 323 and 360 and, in part, the missions mentioned in lines 385 and 392 concerned either an activity organised by the European Landowners Organisation (ELO) or a meeting with a senior official from that organisation, at a time when Mr Pinxten was the President of the SBNL-V.
525 Although Mr Pinxten does not provide a precise explanation as to the link between the ELO and his duties as a Member of the Court of Auditors, it is clear from the documents before the Court of Justice that that organisation is closely linked to the SBNL-V.
526 It is thus apparent, first, from the description of the object of the SBNL-V mentioned in paragraph 517 of the present judgment that the SBNL-V and the ELO both seek to protect landowners’ interests.
527 Second, the senior official from the ELO met by Mr Pinxten as part of missions authorised by the Court of Auditors had, as Secretary-General of the SBNL-V, signed the document provided to the Court of Auditors by Mr Pinxten with a view to being authorised to hold the post of President of that foundation. It is also apparent from minutes produced by the Court of Auditors that the senior official from the ELO sat in the general meeting of the SBNL-V.
528 Lastly, emails included in the documents before the Court of Justice demonstrate the existence of other links between the SBNL-V and the ELO, such as the ELO’s participation in the authorisation procedure for the abovementioned outside activity and the preparations for the award of the top prize granted each year by the SBNL-V.
529 In the light of those factors, the missions mentioned in paragraph 524 of the present judgment must be considered manifestly irregular.
530 That assessment must also be applied to the mission mentioned in line 296, as its aim was, in part, to allow Mr Pinxten to meet senior officials from the ELO and from the SBNL-V shortly before he was appointed President of that foundation.
531 Furthermore, in the case of the mission referred to in line 393, even though participation in the general assembly of the international hunting council in Brussels was clearly declared in the travel order, it should be noted that Mr Pinxten was presented, in the programme for that general assembly, as being not only a Member of the Court of Auditors, but also the President of the SBNL-V, and that it was stated in that programme that he would deliver a word of welcome ‘on behalf of Belgium’.
532 Moreover, it is evident from exchanges of emails in advance of that mission that Mr Pinxten was originally due to deliver a joint speech with a Belgian minister and that his participation in the general assembly had been prepared partly by the ELO.
533 It must therefore be stated that Mr Pinxten’s address to the general assembly of the international hunting council must be linked to his duties as President of the SBNL-V and not to his position as a Member of the Court of Auditors, which means that the mission mentioned in line 393 must be regarded as manifestly irregular.
534 On the other hand, although it is explicitly linked to the ELO, the mission referred to in line 128 cannot be considered manifestly irregular on that ground alone, as it took place several years before Mr Pinxten was authorised to become the President of the SBNL-V.
535 In those circumstances, Mr Pinxten cannot be criticised for participating, on the basis of a transparent travel order, in a conference held at the European Parliament in conjunction with a Europe-wide representative organisation.
536 The same holds for the missions mentioned in lines 411 and 412, which related to events organised by the ‘Friends of the Countryside’ association and by the Fondation wallonne pour la conservation des habitats (Walloon Foundation for the Conservation of Habitats), since the Court of Auditors bases its allegations on purported links between those bodies and the SBNL-V that are not supported by evidence produced to the Court of Justice.
537 The real purpose of 11 missions that resulted in reimbursement of mission expenses or payment of daily subsistence allowances which are the subject of the first complaint was, according to the Court of Auditors, to allow Mr Pinxten to participate in hunting parties.
538 It is clear from the documents before the Court of Justice that Mr Pinxten actually engaged in hunting activities during various missions.
539 It should be noted that all those missions were authorised on the basis of requests submitted by Mr Pinxten that referred to an invitation received or a planned activity but did not contain any mention of hunting.
540 Consequently, because the fact that a mission involves participation in a hunting party constitutes key information in assessing its regularity, Mr Pinxten cannot, in the light of the considerations set out in paragraphs 372 and 374 of the present judgment, reasonably rely on a legitimate expectation in the maintenance of the authorisation for the missions in question and the Court of Auditors cannot therefore be required to demonstrate that the irregularity of those missions is manifest.
541 In that context, while it is evident that participation in a hunting party does not, as such, have any link with the performance of the duties of a Member of the Court of Auditors, it should be noted that, as was stated in paragraphs 399 and 428 of the present judgment, a mission of a Member of that institution may legitimately allow him or her to participate in an essentially professional event that also includes an ancillary leisure activity and that the Member’s mission may be justified by an official objective.
542 Consequently, in order to assess the regularity of Mr Pinxten’s missions involving his participation in hunting parties, it must be determined whether those missions actually related to an essentially professional event or if they had a genuine official dimension.
543 In that regard, in the first place, such a mission cannot be considered regular when its official purpose is simply to respond to an invitation from an individual whose duties are not closely related to the activities of the Court of Auditors.
544 The missions referred to in lines 309, 327 and 366 must therefore be regarded as irregular, as the only reason given as justification is an invitation from an individual whose position is not apparent from the travel order and has not been clarified during the present proceedings.
545 The same holds for the missions mentioned in lines 329 and 377 in so far as they were in response to an invitation from a senior official of the ELO and were therefore, at best, linked to the authorised outside activity of Mr Pinxten.
546 Furthermore, the interest that professional contacts with international audit firms may have for the Court of Auditors is not sufficient to justify the mission mentioned in line 321, which was presented as being in response to an invitation from a senior member of staff of such a firm, since it is evident from the documents produced by the Court of Auditors that the sole purpose of that mission was to participate in a hunting party organised by that staff member.
547 In the second place, the missions referred to in lines 337 and 386 and, in part, the mission mentioned in line 229 differ from the other missions connected with hunting parties in that they were presented as having the aim of participating in ‘European institution days’ held at the Château de Chambord.
548 It should be observed, in the light of a statement drawn up by the Director of the National Estate of Chambord and evidence seized by OLAF, in particular an email of 13 January 2012 that mentions a ‘European hunt’ and a list of participants at one of the events in question, that, contrary to the assertion made by the Court of Auditors, it would appear that events bringing together individuals holding high-level positions within the European institutions were indeed held at the Château de Chambord on the dates to which those missions related.
549 That being said, none of the documents seized by OLAF or produced by Mr Pinxten shows that those events had any professional dimension. On the contrary, the programmes seized by OLAF envisage only the organisation of ‘tracking’, meals and ‘paying respects to the game’.
550 In addition, neither the authorisation request for the missions in question nor other documents submitted to the Court of Justice contain information suggesting that those events were organised by a body with which the Court of Auditors had an interest in maintaining contacts or by a senior official from such a body. In the absence of such information or, moreover, any claim by Mr Pinxten in that regard, those events cannot justify the organisation of missions for official purposes.
551 Therefore, the missions referred to in lines 337 and 386 and, in part, the mission mentioned in line 229 must be regarded as irregular.
552 In the third place, the reason given for the missions referred to in lines 315 and 371 related to invitations from, respectively, staff of the Belgian Crown and a member of the Belgian royal family.
553 It is apparent from the documents before the Court of Justice that Mr Pinxten was actually invited by the Belgian royal family to join ‘royal hunts’ at Ciergnon (Belgium).
554 However, since there is no information in the documents before the Court of Justice to establish the validity of Mr Pinxten’s claim that those hunts had a significant official dimension within the Kingdom of Belgium, the mere fact that the invitations came from the Belgian royal family must be considered insufficient to establish a link with the performance of the duties of a Member of the Court of Auditors.
555 It follows that the irregularity of the missions referred to in lines 315 and 371 must be regarded as having been established.
556 A number of missions that resulted in reimbursement of mission expenses or payment of daily subsistence allowances which are the subject of the first complaint do not fall within the categories already examined and their regularity must therefore be assessed on a case-by-case basis.
557 The allegations made by the Court of Auditors must be dismissed as unfounded for 14 of those missions.
558 In the first place, in the absence of any clarification by the Court of Auditors as to the reason for the alleged irregularity, the mission referred to in line 310 cannot be regarded as manifestly irregular in so far as it is related, in part, to a visit to a university.
559 Similarly, as regards the mission referred to in line 347, the meeting with an official from the National Bank of Belgium and with a Belgian Member of Parliament and a lawyer who also holds a position within that bank cannot be described as manifestly irregular solely on the basis of the Court of Auditors’ claim that the mission was ‘unrelated to Mr Pinxten’s duties’ and the fact that the Member of Parliament was a member of the political party in question.
560 In the second place, in several cases the evidence presented by the Court of Auditors is insufficient to establish the irregularity claimed by it.
561 First, as regards the missions referred to in lines 57 and 391, the purpose of which was meetings with a Member of the Commission, it is not disputed that such a meeting could, in principle, be connected with the performance of the duties of a Member of the Court of Auditors.
562 The validity of that institution’s claim that the mission mentioned in line 57 was in fact linked to the organisation of a music festival that interested Mr Pinxten in a private capacity has not been established.
563 That mission took place on 13 July 2009, while the emails relating to the festival produced by the Court of Auditors concern a grant for 2011 and date from September and October 2011. Furthermore, the relationship between that mission and the grant seems even less plausible given that the Member of the Commission concerned did not have responsibility for culture until 10 February 2010.
564 In addition, the Court of Auditors has not produced any specific evidence in support of the claim that the mission referred to in line 391 concerned a ‘private lunch’.
565 The fact, which is moreover unproven, that the Member of the Commission concerned was a hunting partner of Mr Pinxten cannot as such demonstrate that the lunch in question was private. The fact that a senior official from the ELO also attended that lunch also cannot establish the merits of the Court of Auditors’ position, especially since it is common ground that the guest list for that lunch, which was held at the Commission’s headquarters, was not drawn up by Mr Pinxten.
566 Second, although the Court of Auditors does not contest the reason given for Mr Pinxten’s attendance of an opening ceremony at the College of Europe in Bruges (Belgium), which was the purpose of the mission mentioned in line 63, it nevertheless claims that Mr Pinxten did not attend that ceremony.
567 In that regard, however, it should be borne in mind that the website extract produced by the Court of Auditors does not seem sufficient to establish that Mr Pinxten was absent from that ceremony, in view of both the nature of that document, which cannot be treated as a record containing an attendance list, and the wording used in the document, which makes clear that that document mentions only some of those present at the ceremony.
568 In addition, while it is established that on the date when the mission in question took place, Mr Pinxten had lunch in Brussels, the evidence produced by the Court of Auditors does not allow the time of that lunch to be determined.
569 Lastly, five missions connected with meetings with diplomats, which could, in principle, be related to the duties of a Member of the Court of Auditors sitting in the chamber responsible for the European Union’s external relations, are described as having been private in nature, without that claim having been established to the requisite legal standard.
570 Thus, in the case of the mission referred to in line 56, the Court of Auditors submits that a lunch with a consul of the Russian Federation was connected with action taken in support of a Belgian couple who wished to adopt a child in that country.
571 The relevant documents produced by the Court of Auditors, which post-date that mission by several months and which make no reference either to the lunch or to any prior occurrences, do not allow it to be established with any certainty that the purpose of the mission was separate from Mr Pinxten’s duties.
572 The missions referred to in lines 138, 196 and 382 pertained, completely transparently in the case of the latter two, to Mr Pinxten’s attendance at a ‘diplomatic dinner’ held each year in Brussels.
573 Since it is not disputed that the dinner gathers a large number of Belgian diplomats, it would seem, in principle, that that could be an opportunity for exchanges of views on matters of interest to the Court of Auditors and to raise awareness and promote its work among senior national officials.
574 In those circumstances, the fact that the dinner was organised by a body that seeks to promote Flemish interests in Brussels is not, in itself, sufficient to prove the validity of the Court of Auditors’ claim that the aim of the dinner is ‘to allow Flemish businesspeople to meet Belgian diplomats posted abroad’. The missions at issue cannot therefore be regarded as manifestly irregular.
575 As regards the lunch with the ambassador of the Kingdom of Belgium in France, which was the purpose of the mission referred to in line 284, although the Court of Auditors argues that the lunch was private in nature on the basis of a friendship between the ambassador and Mr Pinxten and the identity of the other guests, it must be stated that that has not been demonstrated, in the absence of evidence to clarify the purpose of that lunch to the Court of Justice and when, in any event, the mere existence of such a friendship is not sufficient to rule out the possibility that the lunch had a professional dimension.
576 In the third place, attendance of the funeral of the father of one of Mr Pinxten’s assistants, which was the purpose of the mission referred to in line 335 and was authorised by the President of the Court of Auditors on the basis of information communicated transparently, can be linked to the performance of the duties of a Member of that institution, who can reasonably be expected to offer his personal support on such an occasion to one of his close colleagues in the institution.
577 In the fourth and last place, the allegations concerning the missions mentioned in lines 102, 293 and 294 must be dismissed in so far as the irregularities attributed to Mr Pinxten by the Court of Auditors can be considered excusable errors on his part.
578 Thus, the alleged irregularity of the mission referred to in line 102 pertains to a failure to declare a meal offered in an amount of approximately EUR 30, without there being any evidence to suggest that that isolated incident was not a simple oversight.
579 As regards the missions mentioned in lines 293 and 294, although the Court of Auditors’ claim that those missions were maintained despite the cancellation of the meeting which was their reason would seem to be valid in the light of an entry in Mr Pinxten’s diary, the existence of fraud in that regard is not established since a declared lunch at the Court of Auditors was held at the time originally planned for those missions.
580 On the other hand, in the present proceedings Mr Pinxten can be legitimately criticised, in part or in full, in respect of 31 of the missions mentioned in paragraph 556 of the present judgment.
581 In the first place, a visit to a local medical centre, as part of the mission mentioned in line 286, to attend a ceremony to celebrate the 20th anniversary of its establishment, cannot be clearly linked to the duties of a Member of the Court of Auditors.
582 In the second place, the aim of several of the missions mentioned in the first complaint was to meet an individual whose position was not clarified in the travel order and has not been clearly explained by Mr Pinxten in the course of the present proceedings.
583 Although the issuing of a travel order and the subsequent reimbursement of mission expenses or payment of daily subsistence allowances in such cases demonstrate a notable absence of monitoring by the Court of Auditors, the fact remains that a mission with the aim of meeting an individual who has no identifiable link with that institution must be considered manifestly irregular.
584 Thus, as regards the mission referred to in line 49, although the Court of Auditors does not prove the link it alleges between the person mentioned in the travel order in question and the organisation of a music festival, there is nothing in the documents before the Court of Justice that allows the position held by that person to be identified.
585 The missions mentioned in lines 39, 234, 235, 297, 348 and 389 must also be classified as manifestly irregular in that their aim was to meet individuals whose position is not specified, like the mission mentioned in line 79, which was justified only by reference to a ‘formal invitation’.
586 The same conclusion must be drawn for the mission referred to in line 306, without there being any need to rule on the Court of Auditors’ claim that the person to which that mission related was a notary, and, in part, the mission mentioned in line 347, irrespective of the merits of its argument linking that mission to a wedding reception.
587 Similarly, the missions mentioned in lines 40, 44, 262 and 351 and, in part, the mission referred to in line 86 must be regarded as manifestly irregular since they related to meetings with individuals simply designated as a ‘director’, a ‘baron’, a ‘lawyer and auditor’, a ‘judge’ and a ‘teacher’.
588 In the third place, some missions with the aim of meeting an individual whose position might potentially have a sufficient link with the Court of Auditors must nevertheless be regarded as having been authorised on the basis of a request that omitted key information and as being irregular in so far as it submits evidence showing that the purpose of the meeting in question was private in nature.
589 That is the case with the mission referred to in line 108, which related to a meeting with a Member of the Commission since, according to emails exchanged in preparation for that meeting, it concerned policies that a representative body wished to assert to the Commission.
590 The mission mentioned in line 122 is closely linked to the mission referred to in line 108 in that its aim was to meet the director of that representative body and an email received the day after that meeting shows that it had the same purpose as the latter mission.
591 The dinner with an admiral, which was the purpose of the mission referred to in line 280, cannot be clearly linked to Mr Pinxten’s duties within the Court of Auditors in so far as emails seized by OLAF show that the dinner was organised by a private economic operator, partly to thank Mr Pinxten for assistance he had provided in the signature of a defence contract.
592 In the case of the mission mentioned in line 404, while the purpose of the lunch organised with a member of the Belgian Government is not known, the fact that an email of 10 May 2016 states that he was invited by Mr Pinxten and by his daughter-in-law proves that it was a private lunch.
593 In the fourth place, the missions relating to a leisure activity or contributing to friendly relations must, in view of the remarks made in paragraph 399 of the present judgment, be considered manifestly irregular where they are unrelated to an event focusing on professional activities.
594 Mention should be made in that regard of the mission referred to in line 80, which related to a meeting with the director of a cultural institution, and the mission mentioned in line 322, which, under the pretext of an invitation from a private economic operator, had the real purpose, in the light of information in Mr Pinxten’s diary, of allowing him to attend an opera performance.
595 Despite the transparency of the travel orders in question, the mission in line 101, the aim of which was to attend the garden party of the Royal Chamber Orchestra of Wallonia (Belgium), and the missions referred to in lines 288, 345 and 394, which were linked to attendance of a music festival, clearly cannot be related to the duties of a Member of the Court of Auditors, unless the fact that the festival was targeted at ‘young Europeans’ could justify a different conclusion.
596 That conclusion applies a fortiori to the mission mentioned in line 364, which made possible a brief visit to a festival dedicated to Scottish culture, on the basis of a travel order that mentions only a formal invitation from the Flemish representation.
597 Although it related to a ceremony taking place in an academic setting, the mission mentioned in line 99 also cannot be linked to Mr Pinxten’s duties in so far as the documents produced by the Court of Auditors show that the purpose of that ceremony was to honour artists and was concluded by a concert.
598 Furthermore, it is common ground that the mission referred to in line 202 related to Mr Pinxten’s attendance at the wedding of a child of the Belgian judge at the Court of Justice.
599 The purpose of that mission was not clearly described in the travel order, which simply referred to a formal invitation from the judge, without specifying that it related to a family ceremony.
600 However, the positions held by the individuals in question cannot establish the regularity of the mission mentioned in line 202.
601 That reasoning must be applied to the mission mentioned in line 300 and, in part, to the mission referred to in line 362, since it is clear from Mr Pinxten’s diary that those missions concerned weddings of children of Belgian public figures.
602 During Mr Pinxten’s two terms of office, reimbursement of representation and reception expenses incurred by the Members of the Court of Auditors was governed by Decision No 7-2004.
603 Article 2 of that decision provided for reimbursement of general representation and reception expenses ‘incurred by the Members in their capacity as Members of an institution’.
604 That article further stipulated that expenses are to be reimbursed on submission of declarations showing the date of the invitation, the number of guests and the capacity of the main guest, which must be accompanied by receipts or other written proof deemed to be equivalent.
605 In addition, Article 6 of that decision provided that the expenses incurred for receptions held at home are to be reimbursed up to the amount evidenced by the supporting documents submitted.
606 It follows from those provisions that reimbursement of representation and reception expenses was subject to the submission of supporting documents and to the condition that those expenses were incurred in a capacity as a Member of the Court of Auditors.
607 The notion of ‘representation and reception expenses’ was clarified in the note of 22 April 2004, which supplemented Decision No 7-2004.
608 It should be observed in that regard that, while it is apparent from the purpose of that note that it did not have binding effects per se, the Members of the Court of Auditors were nevertheless required, in order to comply with their obligation to conduct themselves in a manner which is beyond reproach, as mentioned in paragraph 243 of the present judgment, to take due account of the principles set out in that note.
609 It follows, first, from the note of 22 April 2004 that representation and reception expenses were intended primarily to promote the external relations of the Court of Auditors and that its Members represented it inter alia when they maintained, in the interest of that institution, professional contacts with individuals holding positions within the European Union, Member States or other countries.
610 The note stated, second, that expenditure for each event must be commensurate with its size and the status of the attendees.
611 Lastly, that note stipulated that spouses and partners of the Members of the Court of Auditors and of their guests might be called upon to attend events for which representation and reception expenses were incurred. On the other hand, friends or personal contacts of those Members must be given private invitations, which implies that the expenses in connection with inviting them should be borne by those Members.
612 Annex 1 to the note of 22 April 2004 provided additional guidance on representation and reception expenses.
613 It is clear from that annex, in particular, that expenses incurred outside the Court of Auditors should, as a general rule, be for individuals holding prominent positions within the European Union, Member States or other countries and that costs incurred at the private residence of a Member of the Court of Auditors must not be higher than is necessary for that purpose.
614 Annex 2 to that note comprised a form for declaring representation and reception expenses, specifying the date, time, nature and reason for the event and the number and the capacity of attendees.
615 It follows from paragraphs 609 to 614 of the present judgment that the reason for representation or reception and the capacity of the guest(s) are the main criteria used in the note of 22 April 2004 and in Annex 1 thereto to give concrete expression to the condition under Article 2 of Decision No 7-2004, according to which such expenses may be reimbursed if they have been incurred in their capacity as Members of the Court of Auditors.
616 The only substantial information to be provided in order to receive reimbursement of those expenses, under Decision No 7-2004 and Annex 2 to the note of 22 April 2004, also relates to those two elements.
617 The reason given for the representation and reception expenses incurred for which Mr Pinxten claimed reimbursement must therefore be assessed in the light of those elements.
618 However, as regards the burden of proof, where the professional contacts maintained with an individual seem, in view of his or her capacity, likely to be of interest to the Court of Auditors, an invitation sent to that individual must be considered proper unless the Court of Auditors has presented evidence to show that the invitation was private.
619 The analysis set out in paragraphs 427 to 438 of the present judgment with regard to payments for mission expenses and daily subsistence allowances for missions relating to meetings with politicians also applies to reimbursement of representation expenses connected with those meetings.
620 The note of 22 April 2004 explicitly states that expenses in relation to individuals holding prominent positions within the European Union, Member States or other countries, which include politicians holding important positions, constituted expenditure that is acceptable as representation expenses.
621 In addition, while incurring representation expenses did not require the grant of prior authorisations, the fact remains that the systematic reimbursement of such expenses, where they were related to invitations sent by Mr Pinxten to politicians clearly identified as such, shows that the Court of Auditors had exercised its discretion to the effect that it was in its interest for its Members to maintain professional contacts with such politicians.
622 Mr Pinxten cannot therefore be criticised, in principle, for the claims submitted by him for reimbursement of representation expenses incurred in respect of invitations sent to politicians, unless the documents produced by the Court of Auditors establish that the invitation in question was separable from his duties.
623 Contrary to the assertion made by the Court of Auditors, the separable character of the duties cannot, for the reasons set out in paragraphs 464 to 467 of the present judgment, be presumed simply because the invitee is a member of the political party in question.
624 In those circumstances, since the Court of Auditors has not submitted any additional grounds or evidence of irregularity, the claims for reimbursement of representation expenses incurred for invitations sent to Members of the European Parliament, referred to in lines 2, 14, 19, 24, 65, 257, 314, 323, 338, 350, 357, 382 and 408, to members of the Belgian Government, referred to in lines 12, 23, 27, 57 and 168, or to Members of the Belgian Parliament, mentioned in lines 23, 116, 117, 168, 171, 183, 184, 190, 194, 204, 218, 236, 276, 293, 294, 336, 354, 358, 367 and 381, must be considered regular.
625 Although less central, the positions held by a member of the Cabinet of the leader of a political group in the European Parliament or of a member of the Belgian Government are sufficiently important to justify the regularity of the reimbursements claimed by Mr Pinxten in the cases cited in lines 27, 63, 150 and 168. The same holds for an invitation sent to the Chef de Cabinet of the King of the Belgians, referred to in line 339.
626 As regards the expenses referred to in lines 89 and 111, the fact that the invitations in question were sent to members of the Belgian Government during a period of leave is not such as to establish the irregularity of the relevant claims for reimbursement, as the freedom enjoyed by a Member of the Court of Auditors to travel to his or her Member State of origin during such periods means that they are particularly propitious for representations aimed at maintaining professional contacts with officials from that Member State.
627 In addition, in so far as Article 2 of Decision No 7-2004 requires only the main guest to be mentioned in respect of the reason for incurring representation expenses, the presence of a further guest, whose capacity does not justify such expenses in itself, at a dinner with a Member of the Belgian Parliament or a lunch with a member of the Belgian Government, referred to in lines 90 and 281 respectively, is not sufficient to establish the overall irregularity of the claim for reimbursement of the representation expenses in question.
628 Furthermore, the presence of Mr Pinxten’s wife and the wives of his guests at a dinner with Members of the European Parliament, to which line 370 relates, cannot demonstrate the private character of that dinner because, as was stated in paragraph 611 of the present judgment, the note of 22 April 2004 explicitly authorised that practice.
629 On the other hand, in the first place, for the reasons set out in paragraphs 471 and 472 of the present judgment, representation expenses cannot, in principle, be legitimately incurred in connection with invitations sent to prominent former politicians who have left office or local politicians.
630 Such irregularity must be established, in particular, for the representation expenses mentioned in lines 15, 152, 201 and 253, which related to invitations sent to former Members of the Belgian Parliament or former members of the Belgian Government.
631 The same holds for the expenses referred to in line 341, which relate to a dinner with a former minister, which was also the purpose of a mission whose irregularity was established in paragraph 424 of the present judgment.
632 In addition, because the reason for the incurrence of the expenses mentioned in line 302 was a dinner to which local elected representatives were invited, the irregularity of the claim for reimbursement of those expenses can be established.
633 In the second place, certain claims for reimbursement of representation expenses submitted following invitations sent to politicians by Mr Pinxten must be considered irregular in so far as the circumstances surrounding those invitations mean that they can be linked directly to Mr Pinxten’s political activity, which is the subject of the first part of the fourth complaint.
634 That is the case with the claims for reimbursement relating to the expenses mentioned in lines 16, 20 and 29 in that they relate to invitations sent to individuals presented by Mr Pinxten as holding positions within the political party in question and in respect of whom there is no indication that they exercised key political responsibilities.
635 The claim for reimbursement of the expenses referred to in line 70, which corresponded to a lunch with a member of the Cabinet of a European Commissioner, must be also considered irregular as the lunch was organised following a board meeting of the political party in question and it is apparent from the minutes of that meeting that it was attended both by that Commissioner and by Mr Pinxten.
636 The same holds for the claims for reimbursement of the expenses mentioned in lines 34, 54, 84, 85 and 88, which all concerned invitations sent to Belgian politicians who were members of the political party in question, in the margin of meetings or celebrations organised by that political party which Mr Pinxten is shown to have attended.
637 The reimbursement, as representation expenses, of the payment, mentioned in line 275, of a ‘contribution’ which, in the light of notes on the corresponding invoice, made it possible to participate in a ‘political cafe’ organised by the political party in question must also be considered irregular because it is directly linked to Mr Pinxten’s political activity.
638 As regards representation expenses connected with contacts with individuals other than politicians, it should be noted that, in the absence of any explicit reference, in the Court of Auditors’ documents relating to reimbursement of such expenses, to senior staff of private economic operators, representative bodies or associations, the principles set out in paragraphs 476 to 515 of the present judgment with regard to mission expenses and daily subsistence allowances must be applied, mutatis mutandis, in assessing the link between the representation expenses incurred following invitations sent to such senior staff and Mr Pinxten’s duties.
639 On that basis, it should be stated that in 10 cases relating to invitations sent to individuals other than politicians, the Court of Auditors has not been able to demonstrate that the claims for reimbursement of representation expenses submitted by Mr Pinxten pertained to expenses that had not been incurred in his capacity as a Member of the Court of Auditors.
640 Thus, with regard to the expenses referred to in line 17, an invitation sent to a chief administrative officer responsible for chairing a steering committee of the Federal Public Service Finance (Belgium) must, in the absence of evidence that the invitation was private, be regarded as falling within that category.
641 In view of the capacity of the individuals in question, that conclusion also applies to the representation expenses referred to in lines 35, 373 and 374, which related to invitations sent to the rector of a university and to an individual holding responsibilities within an international organisation.
642 The same holds for the expenses referred to in lines 28 and 290 in so far as invitations sent to the director of a Europe-wide representative group and a senior staff member at an international audit firm respectively could, on the basis of the considerations set out in paragraphs 495 to 497 and 515 of the present judgment, be linked to the duties of a Member of the Court of Auditors.
643 In addition, in the light of the considerations set out in paragraph 638 of the present judgment, the claims for reimbursement of expenses relating to the lunch and the dinners mentioned in lines 56, 138, 284 and 382 must be considered regular since it has been established in paragraphs 570 to 575 of the present judgment that the irregularity of the missions during which those expenses were incurred has not been established by the Court of Auditors.
644 Furthermore, the expenses incurred in connection with the dinner with the Chef de Cabinet of a Member of the Commission referred to in line 98 must, in principle, be considered to have been incurred in a capacity as a Member of the Court of Auditors in view of the position held by the guest.
645 The evidence produced in that regard by the Court of Auditors is not capable of establishing the validity of its claim that that was a private dinner.
646 Although it relies on an exchange of emails of 20 May 2010, it is clear from that exchange that the specific issues mentioned had been resolved before that dinner and there is no indication that they were the purpose of the dinner.
647 In addition, the Court of Auditors’ argument that the cost of the dinner in question entailed a breach by the invited individual of his obligations under Article 11 of the Staff Regulations cannot, in any event, establish that the dinner was private.
648 On the other hand, in 26 cases relating to invitations sent to individuals other than politicians, the claims for reimbursement of representation expenses submitted by Mr Pinxten must be considered irregular.
649 In the light of the findings already made in paragraphs 484, 487, 489 and 493 of the present judgment regarding the irregularity of the missions referred to in lines 45, 251, 283, 287, 307 and 325, in so far as their purpose was to meet senior staff of private economic operators, the representation expenses incurred as part of those missions, reimbursement of which was claimed by Mr Pinxten, cannot be regarded as having been incurred in his capacity as a Member of the Court of Auditors.
650 The claims for reimbursement connected with the representation expenses mentioned in lines 13, 79, 115, 154, 178 and 318, which pertained to invitations sent to senior staff of economic operators or representative bodies, must also be considered irregular.
651 In addition, the representation expenses incurred in the context of an authorised outside activity cannot, by definition, be considered to have been incurred in a capacity as a Member of the Court of Auditors.
652 The dinner referred to in line 385 must be linked to Mr Pinxten’s position as President of the SBNL-V as an authorised outside activity since, first, the capacity of the guest at that dinner, as stated in the declaration of expenses, refers to his position within the fund that finances the top prize awarded each year by the SBNL-V and, second, an exchange of emails on 2 February 2016 shows that the purpose of the dinner was to discuss the organisation of the ‘European Tree of the Year’ contest, which is directly linked to the SBNL-V’s area of activity.
653 In view of the links between the SBNL-V and the ELO noted in paragraphs 525 to 528 of the present judgment, the representation expenses referred to in line 409, which related to a dinner for the Secretary-General of the ELO, must also be linked to Mr Pinxten’s activity within SBNL-V.
654 The irregularity of a claim for reimbursement of representation expenses must also be established where it does not clearly specify the capacity of the guest and no further information on that subject has been provided by Mr Pinxten in the course of the present proceedings.
655 Such irregularity must be taken to exist for the representation expenses mentioned in lines 39, 262 and 297 on the basis of the findings already made in paragraphs 585 and 587 with regard to the irregularity of the missions during which those expenses were incurred.
656 The capacity of ‘study director’ or ‘director’, used for the same guest in the claims for reimbursement of representation expenses referred to in lines 21 and 40, is also not sufficient to demonstrate that those expenses were incurred in a capacity as a Member of the Court of Auditors. The same applies to the capacities of ‘Dr Pr’ and ‘Dr’ used in the claims for reimbursement of representation expenses mentioned in lines 37, 254 and 255.
657 Although the capacity of the guests is accurately stated in the claims for reimbursement of representation expenses referred to in lines 36 and 42, the link between Mr Pinxten’s duties and invitations sent to the director of a cultural institution or to a prosecutor cannot, however, be considered to be established.
658 Furthermore, the evidence provided by the Court of Auditors indicates the private nature of some invitations sent to individuals whose capacity could, in principle, have justified the representation expenses incurred.
659 That is the case with the invitation sent to the ambassador of the Kingdom of Belgium in France, which is mentioned on line 268, since it related to a dinner held at a restaurant next to a wine estate and several emails indicate that the purpose of the trip to the region by Mr Pinxten and his guest was to visit that wine estate.
660 The private nature of the invitation sent to a member of the Belgian Government, to which line 404 related, must also be considered to be established in the light of the findings made in paragraph 592 of the present judgment.
661 In the course of his two terms of office as a Member of the Court of Auditors, Mr Pinxten held 10 receptions at his residence for which he submitted claims for reimbursement of reception expenses that are described by the Court of Auditors in the present proceedings as irregular.
662 As was stated in paragraph 605 of the present judgment, Article 6 of Decision No 7-2004 provided that the expenses incurred for receptions held at home are to be reimbursed up to the amount evidenced by the supporting documents submitted.
663 In the present case, the irregularity alleged by the Court of Auditors stems neither from the excessive nature of the expenses for which Mr Pinxten claimed reimbursement in respect of receptions held at his home nor from the inadequacy of the supporting documents submitted, but solely from the supposedly private nature of those receptions.
664 Since the internal rules of the Court of Auditors did not lay down any specific criteria for receptions held at the home of a Member of that institution, the expenses generated by such a reception must be considered to have been incurred as a Member of that institution if the reception made it possible, in the interest of that institution, to maintain professional contacts with the individuals invited to the reception.
665 As was stated in paragraph 618 of the present judgment, for the purposes of the present proceedings, the existence of such an interest for the Court of Auditors must be assessed, in principle, by reference to the capacities of the individuals invited to the receptions held at Mr Pinxten’s home.
666 According to the guidance set out in Annex 1 to the note of 22 April 2004, those guests should be, inter alia, individuals holding prominent positions within the European Union, Member States or other countries. Where the guests include staff of the Court of Auditors, a balance must be maintained between those staff and persons outside the institution.
667 In addition, as that guidance states that personal friends and family members of the Members of the Court of Auditors, except for spouses or partners, should be given private invitations, the expenses relating to inviting such persons to a reception held at the home of a Member of that institution could not legitimately be reimbursed by it.
668 Furthermore, for the reasons given in paragraph 627 of the present judgment, the fact that Article 2 of Decision No 7-2004 gave a key role to the ‘capacity of the main guest’ means that the presence at a reception held at the home of a Member of the Court of Auditors of one or more guests whose capacity could not in itself justify the reception expenses incurred cannot demonstrate that the reception as a whole was unrelated to that Member’s duties.
669 Since the internal rules of the Court of Auditors do not clearly establish the arrangements applicable to guests of that kind, if they were neither personal friends nor family members of the Member concerned of that institution, the submission of a claim for reimbursement of expenses that does not distinguish between those guests and others, but includes full information on the capacities of various guests, cannot be regarded, per se, as being relevant in assessing whether Mr Pinxten has breached the obligations arising from his office.
670 In that context, it should be noted, in the first place, that the claims for reimbursement of reception expenses made by Mr Pinxten generally included accurate information on each of the guests invited to the receptions held at his home and thus provided more information than was required by Article 2 of Decision No 7-2004.
671 The Court of Auditors was therefore in a position to assess, in full knowledge of the facts, the regularity of the reception expenses to which those claims related when it decided on them.
672 In the second place, pursuant to the internal rules of the Court of Auditors, the systematic presence of Mr Pinxten’s wife and the wives of guests at the receptions in question cannot constitute an irregularity or suggest that those receptions were private.
673 In the third place, the relevance of the letter of 28 April 2015 should be examined.
674 According to the Court of Auditors, the text of that letter shows, in broad terms, that the receptions held at Mr Pinxten’s home were actually intended to gather his friends and were therefore unrelated to his duties as a Member of that institution.
675 It is true that in that letter Mr Pinxten mentioned that he regularly invited ‘a number of friends to share an informal dinner at [his] home’ gathering ‘one or two prominent political figures and a few friends occupying senior positions in business’ in order to ‘spend an enjoyable, relaxed and productive evening in good company’. The guests were thus ‘all part of [his] personal circle’ and the dinner provided an opportunity for a ‘pleasant, convivial, inspiring evening with handpicked Flemish personalities’. Lastly, that letter listed the names of the individuals who could be invited to the proposed dinner.
676 However, it should be noted, first, that none of the claims for reimbursement of reception expenses in the documents before the Court of Justice pertained to a dinner attended by the Prime Minister of the Kingdom of Belgium and the other individuals mentioned in the letter of 28 April 2015.
677 It follows that that letter referred to a dinner which was not held or, at least, which was not the subject of a claim for reimbursement considered to be irregular by the Court of Auditors.
678 Second, although that letter included a general description of the dinners held by Mr Pinxten at his home, it must be stated that that description does not actually tally with the information contained in the claims for reimbursement communicated by the Court of Auditors, in so far as the list of individuals invited to those dinners was not confined to ‘Flemish personalities’ and often included one or more individuals exercising responsibilities within European institutions.
679 Lastly, the terms ‘friends’ and ‘personal circle’, which might, at first sight, suggest that the dinners held by Mr Pinxten at his home were private, should not necessarily be understood literally, as the clear purpose of the letter of 28 April 2015 was to glamourise the dinners held by Mr Pinxten and not to describe his actual practice.
680 It should also be stated that the recipient of that letter does not appear himself to be a friend of Mr Pinxten and the fact that almost 40 different people were invited to one or other of those dinners is difficult to reconcile with a literal reading of the words ‘friends’ and ‘personal circle’.
681 It follows from the above that the letter of 28 April 2015 is not sufficient to demonstrate that all the receptions held by Mr Pinxten at his home were private in nature.
682 In the fourth place, it seems that, in eight cases, which are referred to in lines 22, 55, 110, 160, 216, 243, 245 and 279, the capacities of most of the guests at a reception held at Mr Pinxten’s residence were such as to demonstrate that he could legitimately seek to maintain professional contacts with them in the interest of the Court of Auditors.
683 Those guests thus included individuals exercising key responsibilities within European institutions, namely Members of the European Parliament, the Commission, the Court of Justice and the Court of Auditors, and within Member States, such as Members of the Belgian Parliament, the Belgian Government and the Cabinet of the King of the Belgians, as well as ambassadors and senior officials.
684 On the other hand, the guests at the reception referred to in line 123 do not have a sufficient link with the Court of Auditors to consider that the expenses relating to that reception were incurred by Mr Pinxten in his capacity as a Member of that institution.
685 Although a Member of the Belgian Parliament was among those invited, the other guests all held positions within private economic operators. Moreover, they included the Belgian businessman described by Mr Pinxten as a ‘longstanding friend’, as mentioned in paragraph 493 of the present judgment, and a manager of a group of which Mr Pinxten was a director before he took office as a Member of the Court of Auditors.
686 The same conclusion must be drawn with regard to the reception referred to in line 376. Aside from a Member of the Commission, the other four individuals invited, with their spouses, to the dinner in question all held positions within private economic operators or representative bodies. In addition, it should be noted that they included the businessman mentioned in the previous paragraph and a senior official from the ELO, in respect of whom a link with Mr Pinxten’s authorised outside activity has already been identified.
687 During Mr Pinxten’s two terms of office as a Member of the Court of Auditors, the use of official cars and recourse to the services of drivers were governed, successively, by Decision No 33-2004 and Decision No 19-2009.
688 The provisions of those decisions that are relevant to the present case were substantively similar.
689 Under Article 1 of each of those decisions, official cars are to be made permanently available to the Members of the Court of Auditors for their travel in the context of their duties.
690 The first paragraph of Article 4 of Decision No 33-2004 and the first paragraph of Article 4 of Decision No 19-2009 provided that the Court of Auditors is to assume, in addition to rental charges, the expenses incurred from use of the vehicle by its Members in the performance of their duties.
691 Under the second paragraph of Article 4 of each of those decisions, travel under a travel order and other travel connected with the performance of duties assessed at a flat-rate of 15000 km/year is considered travel in the performance of duties.
692 The notion of ‘other travel connected with the performance of duties’ was clarified in the Commentary on Decision No 33-2004 and the Commentary on Decision No 19-2009. According to those commentaries, journeys between home in the place of employment and the place of work, journeys between the place of employment or residence and the airport, journeys necessary for official obligations within closer proximity not covered by a travel order and ‘cases of force majeure (illness, medical checks, inability to drive, etc.)’ were considered such travel.
693 Article 5 of Decision No 33-2004 and Article 5 of Decision No 19-2009 provided that, where Members of the Court of Auditors use the official car for travel other than that referred to in Article 4 of each of those decisions, they must assume the corresponding expenses, namely costs relating to tolls, fuel and any additional rental costs.
694 Consequently, although the Members of the Court of Auditors could use their official car both for travel in the performance of their duties and for private travel, different arrangements applied to the expenses generated by those two kinds of use.
695 Furthermore, Article 6 of Decision No 33-2004 and Article 6 of Decision No 19-2009 provided that drivers are to receive reimbursement of their mission expenses when they drive Members of the Court of Auditors for their travel in the performance of duties.
696 Although it is not apparent from the wording of those articles that they were intended to give a general definition of the conditions in which a Member of the Court of Auditors could have recourse to the services of a driver, those articles show that a travel order could be drawn up for a driver with a view to that driver driving a Member of that institution only if the travel of the Member concerned constituted ‘travel in the performance of duties’ within the meaning of Article 4 of Decision No 33-2004 and Article 4 of Decision No 19-2009.
697 The improper formulation of a travel order for a driver, with a view to that driver driving a Member of the Court of Auditors for other kinds of travel, was liable to give rise to significant costs for the Court of Auditors in so far as, among other things, it meant that the driver was able to receive reimbursement of his or her mission expenses and payment of daily subsistence allowances.
698 It is not disputed that, under the organisational arrangements within the Court of Auditors until 5 October 2016, its Members were required to sign the travel orders of drivers whose services they used.
699 In the present case, the driver missions which the Court of Auditors alleges to be irregular took place before that date and were authorised by Mr Pinxten.
700 Because Mr Pinxten was responsible for determining the work of the driver assigned to his Cabinet, as his line manager, and to sign travel orders for drivers, as authorising officer, it fell within the scope of the obligations arising from his office to formulate those travel orders in accordance with the applicable rules and, in particular, to refrain from ordering missions where he was driven for travel unconnected with the performance of his duties.
701 In 90 cases, the driver travel orders signed by Mr Pinxten did not relate to journeys under a travel order for him.
702 In the first place, the purpose of 81 of those missions, according to the Court of Auditors, was to drive Mr Pinxten.
703 Because those missions did not relate to journeys under a travel order for Mr Pinxten, their regularity may be established, under Articles 4 and 6 of Decision No 33-2004 and those same articles of Decision No 19-2009, only if the travel in question could be classified as ‘other travel connected with the performance of duties’.
704 In that regard, Mr Pinxten asserts inter alia that his travel had to be given such classification, in general, as his medical condition did not allow him to drive his official car for long distances.
705 It is true that, according to the Commentary on Decision No 33-2004 and the Commentary on Decision No 19-2009, travel may be considered to be connected with the performance of duties in cases of force majeure, with mention being made among the cases of force majeure of ‘illness’ and ‘inability to drive’.
706 However, the medical certificates submitted by Mr Pinxten to the administration of the Court of Auditors are not sufficient to establish that he was unable, for medical reasons, to drive for long distances during the relevant period.
707 The first of those medical certificates, dated 5 December 2008, states only that Mr Pinxten must use a modified seat when he is in a car for a long time.
708 The second medical certificate, dated 31 October 2016, states that, because of Mr Pinxten’s ‘medical problem’, which is progressing slowly over time, it is strongly recommended that, from that date, he refrain from driving a car for journeys in excess of one hour or 100 km. That second medical certificate does not therefore contain any information regarding his medical condition at the time when the missions at issue were ordered.
709 It follows that Mr Pinxten cannot legitimately rely on his medical condition to justify the driver travel orders drawn up by him.
710 In that context, the missions of a driver of the Court of Auditors relating to journeys for which Mr Pinxten was not himself covered by a travel order can be divided into three categories.
711 First, in 12 cases, the mission of the driver concerned consisted in driving Mr Pinxten for an unknown reason or for a reason that was clearly separable from his duties.
712 Thus, in the driver missions referred to in lines 149, 166, 182, 189, 193 and 198, the driver concerned travelled to Brussels by train to return Mr Pinxten to Luxembourg by car, without any reason being given, originally or during the present proceedings, as to why the latter was in Brussels.
713 Conversely, the driver missions mentioned in lines 78, 212, 342 and 384 consisted in taking Mr Pinxten to Brussels by car from Luxembourg, without any professional reason being claimed, the driver concerned then returning to Luxembourg by train.
714 Furthermore, the purpose of the driver mission referred to in lines 254 and 255 was to drive Mr Pinxten to Overpelt for a dinner which, as was established in paragraph 656 of the present judgment, cannot be linked to his duties as a Member of the Court of Auditors.
715 In addition, as the driver mission mentioned in line 64 is linked to travel by Mr Pinxten to a board meeting of the political party in question held in Brussels, it cannot be regarded as regular. The fact that the documents produced by that institution show that the driver concerned was in a train at the time of that meeting and he arrived in Brussels only afterwards does not alter that assessment, as he travelled to that city in order to drive Mr Pinxten after that meeting.
716 It is not therefore possible to establish, on the basis of any of the documents before the Court of Justice, that the driver missions referred to in paragraphs 712 to 715 of the present judgment pertained to travel connected with the performance of Mr Pinxten’s duties. Those missions must therefore be considered irregular.
717 On the other hand, although the reason relied on by the Court of Auditors for the driver mission mentioned in line 38, namely to pick up Mr Pinxten at his holiday location, is such as to establish the irregularity of that mission, it should be noted that he denies having authorised such a mission and that the Court of Auditors has not demonstrated that the mission actually took place, given that the documents before the Court of Justice do not include a travel order signed by him.
718 Second, the purpose of 57 driver missions was a journey between the city of Luxembourg, the headquarters of the Court of Auditors, and the municipality of Overpelt, Mr Pinxten’s place of origin.
719 Thus, the driver missions referred to in lines 107, 126, 144 to 146, 148, 156, 158, 165, 179, 180, 188, 213, 220, 231, 238, 240, 241, 244, 246, 263 to 265, 267, 270, 272, 273, 278, 291, 293, 294, 296, 305, 312, 316, 340, 356, 372, 375, 388, 399 and 400 consisted in driving Mr Pinxten from Luxembourg to Overpelt, after which the driver concerned returned to Luxembourg the following day by train.
720 Conversely, in the driver missions mentioned in lines 112, 136, 140, 206 and 387, the driver concerned travelled by train to Overpelt in order to drive Mr Pinxten to Luxembourg.
721 Other journeys between Luxembourg and Overpelt, unrelated to any mission by Mr Pinxten, can be observed in the driver missions referred to in lines 77, 109, 127, 226, 233, 285, 324, 349, 378 and 383, by various methods such as a return trip by official car or a journey to Overpelt with a stop-off in Brussels.
722 Those various driver missions cannot be linked to travel by Mr Pinxten in the performance of his duties.
723 In particular, although the Commentary on Decision No 33-2004 and the Commentary on Decision No 19-2009 stated that ‘other travel connected with the performance of duties’ included journeys between home and the place of work, those commentaries clearly indicated, in italics, that the home must be ‘in the place of employment’, which means that journeys between the place of employment and the place of origin cannot be considered ‘other travel connected with the performance of duties’ within the meaning of Article 4 of Decision No 33-2004 and Article 4 of Decision No 19-2009.
724 It is true that, as Mr Pinxten asserts, the administration of the Court of Auditors must have known of his practice, over several years, of having recourse to the services of a driver to travel to his place of origin in the light of the many payments received on that basis by the drivers concerned and the purchase by that administration of the train tickets used by those drivers for that purpose.
725 However, the tolerance of that practice cannot allow Mr Pinxten to evade his responsibility in that regard, since, as was stated in paragraphs 369 and 370 of the present judgment, it cannot create a legitimate expectation as to the regularity of that practice and Mr Pinxten must have been aware that that practice was incompatible with the internal rules of the Court of Auditors.
726 It should also be made clear with regard to the driver missions for journeys to or from Overpelt that, while it cannot be entirely ruled out, in view of the vagueness of the travel orders in question, that the sole purpose of some of those missions was to take Mr Pinxten’s official car to him so that it was available to him at his place of origin, such a purpose served only Mr Pinxten’s private interests and cannot be considered regular.
727 Third, the regularity of 11 driver missions is partially disputed by the Court of Auditors in that those missions involved a journey between Overpelt and a place where one of Mr Pinxten’s missions took place.
728 That actually seems to be the case in the driver missions referred to in lines 62, 181, 191 and 336, where the driver concerned drove Mr Pinxten to Overpelt at the end of one of his missions, and in the driver missions mentioned in lines 173 and 366, where the driver concerned picked up Mr Pinxten in Overpelt in order to take him to the place where one of his missions was to take place.
729 The driver mission referred to in line 195, in which the Court of Auditors acknowledges that Mr Pinxten performed a task in Brussels within the scope of his duties, albeit not under a travel order, before the driver assigned to his Cabinet then drove him to Overpelt, should also be treated in the same way as those cases.
730 Even in cases where the regularity of Mr Pinxten’s mission is not contested at all, a journey by him between Overpelt and the place where that mission took place is not under his travel order.
731 It follows that that journey cannot be considered ‘travel under a travel order’ within the meaning of Article 4 of Decision No 33-2004 and Article 4 of Decision No 19-2009.
732 Given that, having regard to the considerations set out in paragraphs 709 and 723 of the present judgment, such a journey does not constitute ‘other travel connected with the performance of duties’ within the meaning of those articles, the driver missions referred to in paragraphs 728 and 729 of the present judgment must be considered irregular in so far as they involve a journey to or from Overpelt.
733 That reasoning must be applied mutatis mutandis to the driver mission referred to in line 124, where the driver concerned drove Mr Pinxten to Overpelt from Frankfurt am Main airport (Germany) following a mission of several days in Macao (People’s Republic of China).
734 While the Commentary on Decision No 33-2004 and the Commentary on Decision No 19-2009 mentioned as ‘other travel connected with the performance of duties’ journeys between the place of employment or residence and an airport, they made no reference to journeys between the place of origin and an airport.
735 By contrast, the irregularity of the driver missions mentioned in lines 176, 317, 373 and 374 cannot be considered to have been established since the documents before the Court of Justice do not include Mr Pinxten’s travel orders to which the Court of Auditors refers and do not therefore demonstrate that the disputed journeys were not legitimately under those travel orders.
736 In the second place, nine of the missions of the driver assigned to Mr Pinxten’s Cabinet whose irregularity is alleged by the Court of Auditors had a purpose other than driving Mr Pinxten.
737 In that regard, it is true that the performance of such missions by a driver was not explicitly envisaged in the internal rules of the Court of Auditors available to the Court of Justice.
738 However, Article 6 of Decision No 33-2004 and Article 6 of Decision No 19-2009 cannot be interpreted as entailing the irregularity of missions of that nature, as those articles govern only missions of drivers where the purpose is to drive Members of the Court of Auditors or its Secretary-General.
739 It cannot therefore be ruled out that the travel orders signed by Mr Pinxten for missions of the driver assigned to his Cabinet which had a purpose other than driving him may be considered regular, provided those missions actually served the interests of the Court of Auditors.
740 That might be the case, in principle, for missions of the driver concerned for the transportation of documents.
741 Furthermore, it is evident from the documents before the Court of Justice that Mr Pinxten was initially criticised for several missions of the driver concerned which had such a purpose, but that the Court of Auditors ultimately did not allege their irregularity in the present action.
742 That being the case, because transportation of documents by a driver of the Court of Auditors must have a purpose of contributing to the performance of its tasks and cannot result in an excessive commitment of its resources by long-distance transport, such transportation cannot, except in exceptional circumstances, take place between the place of work and the place of origin of one of its Members.
743 While the Court of Auditors argues that the missions presented as being for transportation of documents which are the subject of the first complaint actually had another purpose, it must be stated that it does not specify, except in one case, what that purpose was and that, at his hearing by OLAF on 3 October 2017, the driver concerned confirmed that he performed missions to transport documents and then to collect them, after they had been signed, at the headquarters of the Court of Auditors.
744 In those circumstances, the irregularity of the driver missions mentioned in lines 172, 222 and 249 must be considered to be established as it is not disputed that the purpose of those missions was to take documents to Mr Pinxten’s place of origin.
745 With regard to the driver mission referred to in line 141, although the validity of the Court of Auditors’ claim that that mission was connected with an accident has not been proven, the fact remains that, as it is evident from the travel order that the driver concerned was asked to take documents to Overpelt, that mission must be considered irregular.
746 As for the driver mission mentioned in line 250, although the Court of Auditors claims that, under the pretext of transportation of documents, the purpose of that mission was in fact to transport bottles of champagne for the wedding of one of Mr Pinxten’s children, he formally denies that claim.
747 In that regard, the Court of Justice does not need to ascertain whether the evidence presented in support of that claim is sufficient to substantiate it. The driver mission mentioned in line 250 should, in any event, be considered irregular even if its real purpose was to transport documents, as it is clear from the travel order of the driver concerned that he was to travel to Overpelt, Mr Pinxten’s place of origin.
748 Aside from the missions relating to transportation of documents, the aim of the driver mission referred to in line 247 was, according to Mr Pinxten, to take his official car to a garage for servicing.
749 In that regard, the Court of Auditors’ argument that that justification cannot be accepted because that car was serviced by a garage in another city cannot be upheld in the absence of any evidence in support of that argument.
750 On the other hand, the driver mission referred to in line 129, the purpose of which, as is common ground, was to pick up Mr Pinxten’s wife in Overpelt so that she could attend an official dinner held by the Court of Auditors in Luxembourg cannot be regarded as having been performed in the interest of that institution.
751 Similarly, the irregularity of the driver mission mentioned in line 197 must be considered to be established, since it is evident from the statements made by the driver assigned to Mr Pinxten’s Cabinet at his hearing on 16 October 2017 by OLAF and from a collection certificate that, in the context of that mission, the driver concerned picked up a new car that had been ordered by Mr Pinxten for his private use.
752 Furthermore, although the irregularity of the driver mission mentioned in line 142 is not contested, that irregularity cannot be held as a complaint against Mr Pinxten in the present proceedings.
753 It should be noted that it is not disputed that, during that mission, the driver assigned to Mr Pinxten’s Cabinet travelled to Mr Pinxten’s holiday location in Switzerland.
754 While the parties disagree as to the specific purpose of that mission, Mr Pinxten’s claim that the aim of the mission, as agreed with the staff member responsible for the drivers at the Court of Auditors, was to retrieve the official car following an accident essentially tallies with the statements made by the driver concerned at his hearing by OLAF on 16 October 2017.
755 In addition, it is established that, after being informed of a possible irregularity of the mission of the driver in question, Mr Pinxten approached the administration of the Court of Auditors during 2011 with a view to reimbursing the sums that had been unduly charged to it during that mission and that those sums were deducted from his salary.
756 The other driver travel orders signed by Mr Pinxten criticised as irregular by the Court of Auditors in the present proceedings related to journeys under a travel order for Mr Pinxten.
757 A driver mission to drive Mr Pinxten for a journey under a travel order for him must, in principle, be considered regular pursuant to Articles 4 and 6 of Decision No 33-2004 and the same articles of Decision No 19-2009.
758 It is a different matter, however, for such a driver mission if it is established, within the framework defined in paragraphs 387 to 392 of the present judgment, that the mission of Mr Pinxten to which the mission of that driver related was, as the case may be, irregular or manifestly irregular.
759 Accordingly, the driver travel orders signed by Mr Pinxten for driving him during one of his missions which has been declared, as the case may be, irregular or manifestly irregular in the examination conducted in paragraphs 396 to 601 of the present judgment must also be considered irregular, thereby constituting misuse of resources.
760 For the remainder, it appears, in the first place, that in three cases the irregularity of driver missions covered by the first complaint is not established in so far as Mr Pinxten’s missions to which they related cannot be considered irregular on the basis of the information available to the Court of Justice.
761 That is the case for the driver missions mentioned in lines 3, 31 and 281, as the purpose of the corresponding missions by Mr Pinxten was to meet politicians who were members of the Belgian Government or of a minister’s private office, the lack of transparency of the travel order referred to in line 281 being insufficient to entail its irregularity.
762 Conversely, in the second place, 31 missions of the driver assigned to Mr Pinxten’s Cabinet must be regarded as irregular because they related to missions by Mr Pinxten which have not yet been examined in the present judgment, but which do not appear to be connected with the performance of Mr Pinxten’s duties on the basis of the criteria adopted in paragraphs 396 to 601 of the present judgment.
763 Thus, the driver mission referred to in line 344, which involved driving Mr Pinxten from Frankfurt am Main airport following his trip to Cuba, related to an irregular mission by Mr Pinxten.
764 The same applies to the driver mission mentioned in line 133 as the corresponding mission by Mr Pinxten was officially to meet the President of the political party in question and, in practice, allowed Mr Pinxten, according to entries in his diary, to attend the political party’s New Year reception.
765 The driver missions referred to in lines 115, 163, 164, 177 and 178 must also be regarded as irregular in that their aim was to drive Mr Pinxten to meetings with senior staff of private economic operators, like the driver missions mentioned in lines 18 and 114, which were connected with Mr Pinxten’s missions to meet the Belgian businessman described by Mr Pinxten as a ‘longstanding friend’, as mentioned in paragraph 493 of the present judgment.
766 On the basis of the criteria identified in respect of contacts with senior staff of representative bodies and associations, it is possible to reject the regularity of the driver missions referred to in lines 32 and 121, which corresponded to Mr Pinxten’s missions, respectively, to attend the New Year reception of Limbourg Chamber of Commerce and Industry and an event organised by a foundation working in the field of medical research.
767 Mr Pinxten also had recourse to the services of a driver in missions which, in reality, related to family or leisure activities.
768 That is the case for the driver missions mentioned in lines 36 and 268, for the reasons set out in paragraphs 657 and 659 of the present judgment, for the driver mission referred to in line 225, the real purpose of which was to allow Mr Pinxten to attend an opera, and for the driver mission mentioned in line 53, which corresponded to a mission by Mr Pinxten which was simply presented as a visit to a Belgian university but, as is shown by his diary, was to attend the graduation of one of his children.
769 In addition, in the light of the considerations set out in paragraph 554 of the present judgment, the participation in a royal hunt made possible by the missions mentioned in lines 67 and 223 entails the irregularity of the travel orders of the driver concerned for driving Mr Pinxten in that context.
770 Other missions of the driver assigned to Mr Pinxten’s Cabinet related to Mr Pinxten’s missions which appear to be linked directly to Mr Pinxten’s financial interests.
771 First, the aim of the driver mission in line 404 was to drive Mr Pinxten to an appointment with a notary in Dijon (France), who, as is shown by emails produced by the Court of Auditors, was given the task of acquiring the property mentioned during the examination of the second part of the fourth complaint and of establishing the legal instruments for the management of the property.
772 Second, a number of missions of the driver assigned to Mr Pinxten’s Cabinet can be linked to the ‘Kaïros’ building project, in which it seems, from a series of emails included in the documents before the Court of Justice, that Mr Pinxten had planned to invest.
773 Aside from the driver mission referred to in line 113, which corresponded to a mission whose official purpose is ‘Kaïros’, the aim of the driver missions mentioned in lines 51 and 205 was to drive Mr Pinxten to meetings with individuals identified, in letters dated 10 April 2012 and 9 February 2012 respectively, as the former manager of that building project and an architect who assisted Mr Pinxten in connection with acceptance of works for that project.
774 Furthermore, the driver missions referred to in lines 25, 26, 50, 139, 266 and 397 must be regarded as irregular in so far as they corresponded to missions by Mr Pinxten whose purpose was insufficiently clear, since reference was made, depending on the case, to a ‘formal dinner’, to individuals whose capacity is unknown or a ‘consultant’.
775 A similar lack of clarity must also be noted for the driver missions mentioned in lines 46, 52, 159 and 162 in so far as their aim was to drive Mr Pinxten for visits to a secondary education establishment and to a higher education establishment delivering training in the arts, without the reasons for those visits being given in the documents before the Court of Justice.
776 In the third place, it is necessary to examine the driver missions referred to in lines 106, 151, 153, 167, 214 and 330, the purpose of which was to drive Mr Pinxten in his missions relating to medical appointments.
777 Those missions of Mr Pinxten cannot be considered to be connected with the performance of his duties as a Member of the Court of Auditors as it is neither claimed nor a fortiori established that those appointments concerned medical checks that were mandatory in that capacity.
778 It should be noted, however, that Mr Pinxten did not claim reimbursement of mission expenses or payment of daily subsistence allowances for those missions. The only costs entailed by those missions for the Court of Auditors thus related to the use of the official car and recourse to the services of a driver.
779 On the one hand, there is significant ambiguity in the Commentary on Decision No 33-2004 and the Commentary on Decision No 19-2009 as to whether a journey to a medical appointment can be considered as ‘other travel connected with the performance of duties’ within the meaning of Article 4 of each of those decisions.
780 The list of ‘cases of force majeure’ that can be considered as such travel included ‘medical checks’.
781 It is indeed apparent from the Court’s settled case-law, established in various spheres of EU law, that the concept of force majeure must be understood as referring to abnormal and unforeseeable circumstances which were outside the control of the party by whom it is pleaded and the consequences of which could not have been avoided in spite of the exercise of all due care (judgment of 25 January 2017, Vilkas, C‑640/15, EU:C:2017:39, paragraph 53 and the case-law cited).
782 While the use of the concept of ‘force majeure’ normally therefore implies an unforeseeable character, the wording of both the Commentary on Decision No 33-2004 and the Commentary on Decision No 19-2009 contain a certain inconsistency in that regard, as the notion of ‘medical checks’ excludes any dimension of urgency or unforeseeability.
783 On the other hand, although recourse to a driver for ‘other travel connected with the performance of duties’ does not, by definition, require the Member of the Court of Auditors concerned to be on a mission, it must be stated that, by transparently requesting its authorisation to travel, in the context of a mission, to a medical appointment, Mr Pinxten allowed the Court of Auditors to carry out an ex ante check and, if it considered it appropriate, to object to the use of the resources of the Court of Auditors proposed by him.
784 In the light of those two factors, the irregularity of the missions of Mr Pinxten and of the driver assigned to his Cabinet mentioned in paragraph 776 of the present judgment is not manifest such that Mr Pinxten could be criticised for them in the present proceedings.
785 That reasoning cannot, however, be applied to the driver mission referred to in line 363, which is also deemed to correspond to a mission of Mr Pinxten for travel to a medical appointment, as the destination entered in the travel order of the driver concerned does not tally with the destination in Mr Pinxten’s travel order.
786 In the fourth place, 10 missions of the driver assigned to Mr Pinxten’s Cabinet were linked to Mr Pinxten’s missions that did not give rise to reimbursement of mission expenses or payment of daily subsistence allowances, which are not effectively challenged in principle, but the regularity of which is contested in so far as they included one or more journeys to or from Overpelt, Mr Pinxten’s place of origin.
787 A situation of that kind can be observed in the driver missions mentioned in lines 200, 214, 274, 280, 281, 313, 333, 355, 369 and 401.
788 Those cases differ from those examined in paragraphs 727 to 735 of the present judgment in so far as the journey through Overpelt was clearly declared in Mr Pinxten’s corresponding travel orders and had therefore been previously approved by the Court of Auditors.
789 Nevertheless, in the absence of activity related to Mr Pinxten’s duties taking place in Overpelt, a travel order could not legitimately envisage one or more journeys to or from that town.
790 The fact that a mission by Mr Pinxten had been authorised on the same date cannot, in particular, justify adding such a journey to his travel order for personal reasons, entailing additional costs for the Court of Auditors.
791 Although the missions of Mr Pinxten in question were authorised without any kind of fraud or omission, their irregularity must be regarded as manifest in view of the clearly established general arrangements for travel to the place of origin, which cannot legitimately take place under a travel order.
792 By its first complaint, the Court of Auditors also alleges that Mr Pinxten declared irregular missions without having recourse to the services of a driver, with the sole purpose of making private travel, in respect of costs in relation to use of the official car, subject to the arrangements applicable to travel in the performance of duties.
793 It is true that, under Article 5 of Decision No 33-2004 and Article 5 of Decision No 19-2009, Mr Pinxten was required to pay the expenses inherent in private travel using the official car and, in particular, to assume additional rental costs in excess of the maximum of 45000 km/year provided for in the rental contract. An overstatement of the distances covered during travel connected with the performance of his duties could therefore hold a financial interest for him.
794 In addition, it is evident from Mr Pinxten’s travel orders produced by the Court of Auditors that in many cases the official car was used to complete journeys made during those missions.
795 The documents before the Court of Justice do not, however, include any assessment of the extent of the overstatement of the travel carried out for work purposes from which it would be possible to evaluate the deliberate nature or the gravity of that practice.
796 Moreover, Mr Pinxten’s missions mentioned in support of the first complaint which did not give rise to reimbursement of mission expenses, payment of daily subsistence allowances or recourse to the services of a driver seem entirely inconsequential.
797 Therefore, although an overstatement of travel for work purposes is undoubtedly irregular, it does not seem necessary, for the purposes of those proceedings, to determine whether the Court of Auditors could legitimately attribute such a practice to Mr Pinxten.
798 For the same reasons, there is no need to examine the Court of Auditors’ objection to the missions mentioned in lines 147, 187 and 330, according to which Mr Pinxten keeping his official vehicle entailed a train journey by the driver which should have been avoided.
799 In the light of all the foregoing, the first complaint is partially founded.
800 By its second complaint, the Court of Auditors asserts that, by making improper and unlawful use of the fuel cards made available to him, Mr Pinxten failed to fulfil his obligations of integrity, exemplary conduct and disinterestedness.
801 It should be noted as a preliminary point that it is apparent from the documents before the Court of Justice that fuel cards are made available to the Members of the Court of Auditors and certain members of their family to allow them to purchase fuel at a price negotiated by that institution without the need to pay excise duty or value added tax (VAT).
802 Consequently, although improper use of such fuel cards does not entail particular expenditure for the Court of Auditors, it does constitute an abuse of the tax exemptions granted to it to the detriment of the resources of the Member States and the European Union.
803 It is therefore necessary, for the purposes of ruling on the second complaint, to ascertain whether it can be established on the basis of the claims and evidence presented by the Court of Auditors that Mr Pinxten made improper use of the fuel cards made available to him, as asserted by the Court of Auditors in the first and second parts of that complaint.
804 By the first part of its second complaint, the Court of Auditors submits that Mr Pinxten allowed one of his children to retain and use a fuel card after 1 September 2012, when he was no longer considered to be one of Mr Pinxten’s dependent children.
805 Mr Pinxten thus infringed the relevant rules, laid down inter alia by Directive 2008/118, the Grand Ducal regulation of 7 February 2013 and the Ministerial regulation of 18 March 2010, by allowing someone who was not a member of his household to benefit from tax exemptions. The mere fact that the child continued to reside with him in Luxembourg, which has not been proven, moreover, does not mean that he could still benefit from the tax exemptions in question.
806 According to Mr Pinxten, the child in question was part of his household until 2018, since that status should not be confused with the status of dependent child and the child resided with him until February 2018. It is irrelevant in that case that he was employed during that period.
807 First, it is not disputed that a fuel card made available by the Court of Auditors was retained by the child in question after 1 September 2012, although the date on which that situation ended is not clear from the documents before the Court of Justice.
808 Second, it is apparent from a note communicated by the Court of Auditors that from that date the child was no longer considered to be a dependent child of Mr Pinxten within the meaning of Article 2 of Annex VII to the Staff Regulations for the purposes of payment of dependent child allowance, because the child had completed his studies and taken up a gainful occupation.
809 Lastly, Mr Pinxten’s claim that that child continued to reside at his home must be regarded as proven in the light of a declaration of legal residence in Luxembourg dated 27 November 2011 and a principal residence certificate issued by the Belgian administration showing an entry in the population registers for Brussels from 9 February 2018.
810 Against that background, it should be noted that the Court of Auditors does not indicate any of its internal rules that define the conditions in which a family member of one of its Members may hold a fuel card.
811 However, the retention and use of a fuel card by the child in question after 1 September 2012 must still be regarded as improper if, under the rules governing tax exemptions applying to the use of such cards, a child of a Member of the Court of Auditors who was no longer considered a dependent child of that Member within the meaning of Article 2 of Annex VII to the Staff Regulations, but who still continued to reside with that Member, was not able to benefit from those tax exemptions.
812 As regards exemption from payment of excise duty, Article 12(1)(a) and (b) of Directive 2008/118 provides that excise goods are exempt from payment thereof where they are intended to be used in the context of diplomatic or consular relations or 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.
813 Article 12(2) of that directive provides that exemptions from payment of excise duty under that article are subject to conditions and limitations laid down by the host Member State.
814 That provision is implemented in Article 1 of the Ministerial regulation of 18 March 2010, under which the Belgian Law of 22 December 2009 concerning the general arrangements for excise duty must be published in the Mémorial in order to be enforced in the Grand Duchy of Luxembourg.
815 Although the Court of Auditors does not specify which provision of that law it considers to be applicable in the present case, it should be noted that Article 13 of that law refers to exemption from excise duty for diplomats, consular officers, the armed forces and organisations referred to in Article 20(7) to (12) of the Belgian General Law of 18 July 1977 on customs and excise duty.
816 Under Article 20(7) of that general law, as applicable in Luxembourg, relief from excise duty is to be granted, under certain conditions, for reasonable quantities of goods for personal use, including use by family members forming part of their household, by diplomatic agents and consular officers serving in Luxembourg, provided the persons in question are not nationals or permanent residents of the Grand Duchy of Luxembourg and do not carry out any professional or commercial activity for their own personal benefit.
817 As regards VAT, Article 1 in conjunction with Article 4 of the Grand Ducal regulation of 7 February 2013 provides that diplomatic agents and consular officers may benefit from a VAT exemption for the direct, effective and exclusive use within Luxembourg of certain products, 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 gainful occupation there.
818 Although the relevant provisions of Luxembourg law laying down the conditions for the application of the excise and VAT exemptions at issue refer to family members forming part of the ‘ménage’ (‘household’) of the main beneficiary of the tax exemptions at issue, it is not evident from those provisions that that term corresponds to the term ‘foyer’ (‘household’) within the meaning of the Staff Regulations.
819 Since the Court of Auditors has failed to provide specific information relating to the meaning of the term ‘ménage’ in Luxembourg law, it is not proven that the child in question, in respect of whom it is neither claimed nor a fortiori proven that he engaged in a gainful occupation in Luxembourg, was no longer able to benefit from the tax privileges granted to family members of a Member of the Court of Auditors.
820 The Court of Auditors has therefore failed to demonstrate that the retention and use of a fuel card by that child after 1 September 2012 was improper.
821 It follows that the first part of the second complaint must be dismissed as unfounded.
822 By the second part of its second complaint, the Court of Auditors asserts that the records relating to the use of fuel cards made available to Mr Pinxten include anomalies showing that he allowed others to use those cards.
823 Mr Pinxten claims that only members of his household availed themselves of the fuel cards provided by the Court of Auditors. The anomalies invoked by the Court of Auditors can be explained by family travel with multiple cars and the use of replacement cars. While it would have been easy to give specific explanations at the material time, it is not possible to offer further clarification on account of the passage of time.
824 In the present case it is not disputed that, although the cars provided to Mr Pinxten and members of his family had diesel engines, the fuel cards made available to them were used to purchase not only diesel, but also petrol.
825 In particular, as the Advocate General observed in point 169 of his Opinion, it appears from the records relating to the use of those fuel cards in 2016 and 2017 that the cards were used at least 12 times to buy petrol.
826 In so far as the tax exemptions applying to the use of a fuel card made available to a Member of the Court of Auditors may benefit only that Member or certain members of his family, the card must be used exclusively to refuel the vehicles provided to those persons.
827 Those petrol purchases were explained by Mr Pinxten, at his hearing by OLAF and then during the present proceedings, by the occasional use of replacement cars.
828 However, given that Mr Pinxten was made aware of the existence of suspicions as to the anomalies in question at his hearing by OLAF, which took place on 22 December 2017, then in the preliminary report of the Court of Auditors, which was communicated to him on 5 October 2018, Mr Pinxten can reasonably be expected to provide evidence in support of his argument that those anomalies stemmed from the repeated use of replacement cars in 2016 and 2017.
829 Mr Pinxten has not produced any evidence in support of that argument.
830 It follows that the second part of the second complaint and therefore the second complaint, in part, must be upheld.
831 By its third complaint, the Court of Auditors alleges that Mr Pinxten failed to fulfil his obligations of integrity, exemplary conduct and disinterestedness by receiving compensation payments from an insurance company based on false declarations signed, at Mr Pinxten’s request, by the driver assigned to his Cabinet.
832 He received a compensation payment in respect of an incident that allegedly occurred in January 2010, in which the driver assigned to Mr Pinxten’s Cabinet ran over a suitcase belonging to Mr Pinxten containing a bottle of wine and several items of clothing. It is nevertheless clear from statements made by the driver that that incident never took place.
833 Mr Pinxten also received a compensation payment following a claim relating to an accident on 17 January 2011. However, that claim describes an accident that occurred in Brussels between his private car, driven by one of his children, and his official car, driven by the driver assigned to his Cabinet, whereas the damage in question resulted from a collision in France and Mr Pinxten was driving the latter car.
834 Mr Pinxten has not provided any evidence to show that the facts declared to the insurance company were accurate. Although the claims submitted to that company were signed by the driver assigned to Mr Pinxten’s Cabinet, Mr Pinxten should have prevented the driver from doing that, as he was aware of the real situation. By failing to do so, he forced his subordinate to commit a criminal offence which he ordered or in which he acted as an accomplice.
835 Furthermore, the Court of Auditors maintains that the testimonies given by the driver assigned to Mr Pinxten’s Cabinet are conclusive since they are consistent and were given by someone who could face criminal and disciplinary proceedings because of them.
836 Mr Pinxten asserts that the claims made to the insurance company do reflect the real situation.
837 According to the statements made to OLAF by the staff member responsible for the drivers of the Court of Auditors, his department managed problems of accidents with the insurance company. In addition, none of the statements collected mentioned intervention by Mr Pinxten in those matters.
838 Furthermore, the statements made by the driver assigned to Mr Pinxten’s Cabinet are not reliable in the light of the contradictions that they contain and the surrounding circumstances. It is thus claimed that the driver was placed under pressure by the Head of the Legal Service of the Court of Auditors, who questioned him on three occasions and unsuccessfully pressed him to sign a denunciation which would have given him whistleblower status.
839 With regard, in the first place, to the accident that allegedly occurred on 17 January 2011, the accident report sent to the insurance company states that the two vehicles that collided were driven, respectively, by the child of Mr Pinxten and by the driver assigned to Mr Pinxten’s Cabinet, both of whom signed the report.
840 It should be noted in that regard that certain circumstantial evidence seems to support the Court of Auditors’ claim that the facts declared in the report are inaccurate.
841 First, after claiming at his hearing during the internal investigation by the Court of Auditors that he was actually driving Mr Pinxten’s official car at the time of the accident in question, the driver assigned to Mr Pinxten’s Cabinet consistently maintained during his three hearings by OLAF that he was not present when the two vehicles involved collided.
842 Second, there are some suggestions that the insurance company received contradictory information regarding the identity of the driver of the official car.
843 According to an internal email of that company, dated 28 January 2011, one of its staff had been informed orally, before the accident report was received, that the vehicles involved were driven by Mr Pinxten and by his son.
844 In addition, the answers given by a member of staff of that company to the questions sent to him by the Court of Auditors in 2017 and 2018 confirm that the company had initially been informed that Mr Pinxten was driving one of the two vehicles involved.
845 It should nevertheless be observed that those answers are not consistent with the statements made by the driver to OLAF in so far as the driver affirmed that two different accident reports had been sent to the insurance company, while, according to those answers, the insurance company received just one accident report.
846 Lastly, it is not disputed that Mr Pinxten sent the insurance company a letter dated 11 January 2012 in which he states that he ‘had a collision with [his] official car’ on 17 January 2011 and he criticised the company’s practice of refusing to bear the costs of repairing a vehicle when ‘two people from the same family’ have signed the accident report.
847 However, assuming that that evidence is sufficient to show that the accident report sent by the Court of Auditors to the insurance company contained erroneous information, it cannot be established on the basis of the documents before the Court of Justice that those false claims can be attributed to Mr Pinxten.
848 The only evidence produced by the Court of Auditors in seeking to prove such attribution relates to a statement to that effect made by the driver concerned at his hearing by OLAF on 7 December 2017 and the reiteration of that position in his comments, dated 20 April 2018, on the summary of facts sent to him by OLAF.
849 It should be stated, however, that the position adopted by the driver assigned to Mr Pinxten’s Cabinet varied widely over the course of the internal investigation by the Court of Auditors and then of the OLAF investigation.
850 After claiming during the internal investigation by the Court of Auditors that he was in fact driving the official car at the time of the accident on 17 January 2011, at his first hearing by OLAF on 3 October 2017 the driver assigned to Mr Pinxten’s Cabinet asserted that he did not think that Mr Pinxten had asked him to complete the report and he had a ‘vague recollection’ of being given instructions to do so by the staff member responsible for the drivers at the Court of Auditors.
851 During his second hearing by OLAF on 16 October 2017, the driver assigned to Mr Pinxten’s Cabinet stated that he did not remember whether the request to complete the report was made by that staff member or by Mr Pinxten, but was ‘inclined’ to think that it was made by Mr Pinxten.
852 At his third hearing by OLAF on 7 December 2017, he affirmed that, at his previous hearing his recollections had been vague but he was now ‘positive’ and it was ‘indeed Mr Pinxten who [had] asked [him] to submit this new report’.
853 There is no reason to give credence solely to the most recent statements made by the driver assigned to Mr Pinxten’s Cabinet.
854 In addition, according to the answers provided by a member of staff of the insurance company to questions sent to him by the Court of Auditors in 2017 and 2018, there was contact exclusively with the staff member responsible for the drivers of the Court of Auditors, who readily proposed, once the possibility had been raised of refusing to bear the costs of the damage caused to Mr Pinxten’s official car, altering the names of the drivers involved.
855 At his hearing by OLAF, the staff member responsible for drivers also rejected any intervention by Mr Pinxten in relation to the accident in question and described the existence of a systematic practice, known to his ‘superiors’, of false insurance claims within the drivers service at the Court of Auditors, a practice to which the driver assigned to Mr Pinxten’s Cabinet also referred at his hearing by OLAF on 16 October 2017.
856 It should be further stated that the information set out by Mr Pinxten in his letter of 11 January 2012 tends to indicate that he had been unaware of the content of the accident report sent by the Court of Auditors to the insurance company.
857 In the light of all those considerations, the evidence presented by the Court of Auditors is not sufficient to establish that Mr Pinxten can be held liable in the present proceedings for a false insurance claim relating to the accident that allegedly occurred on 17 January 2011.
858 As regards the incident in January 2010, the statements made by the driver assigned to Mr Pinxten’s Cabinet at his third hearing by OLAF on 7 December 2017 are the only evidence furnished by the Court of Auditors in support of its claims, which are firmly contested by Mr Pinxten.
859 It follows from the foregoing that the statements made to OLAF by the driver assigned to Mr Pinxten’s Cabinet cannot, in themselves, be accorded decisive weight.
860 Furthermore, the driver did not report the incident in January 2010 until very late in the procedure, when he had already had previous opportunities to raise any irregularities committed by Mr Pinxten that were not known to OLAF.
861 In thosse circumstances, the validity of the Court of Auditors’ claims relating to the incident in January 2010 is not established.
862 Consequently, the third complaint must be dismissed in its entirety.
863 By its fifth complaint, the Court of Auditors asserts that, by having a connection with the head of an audited entity, Mr Pinxten failed to fulfil his obligations of disinterestedness, independence, impartiality, integrity and exemplary conduct.
864 He impaired his independence and impartiality or, at least, gave that impression by offering to rent a private apartment to the High Representative of the Union for Foreign Affairs and Security Policy, an entity falling within the competences of Chamber III of the Court of Auditors.
865 Mr Pinxten asserts that the offer to rent his accommodation did not mention his position as a Member of the Court of Auditors. The only element connected with that institution in the offer was his email address, which was also used for private purposes, as he did not have another email address. Furthermore, the offer was consistent with normal market conditions.
866 By a letter dated 20 November 2014, Mr Pinxten offered to rent an apartment in Brussels to the High Representative of the Union for Foreign Affairs and Security Policy.
867 It is not disputed that she was the head of an entity audited by the Court of Auditors, and more precisely by its Chamber III, of which Mr Pinxten was the Dean at that time.
868 In order to comply with the obligation under Article 285 TFEU to be completely independent in the performance of their duties, in the European Union’s general interest, the Members of the Court of Auditors must avoid any conflict of interest.
869 That obligation is laid down in Article 2(1) of the 2012 Code of Conduct and in point 3.3 of the Ethical Guidelines. In addition, point 3.4 of those guidelines provides that the Members of the Court of Auditors must not have any connection with the audited entity that might impair their independence.
870 By offering to enter into a financial relationship with the head of an audited entity, Mr Pinxten potentially exposed himself to a conflict of interest liable to undermine his independence and impartiality.
871 It is immaterial in that regard that the letter in question did not expressly mention his position as a Member of the Court of Auditors.
872 Aside from the fact that the existence of a link between Mr Pinxten and the Court of Auditors could be inferred from the email address mentioned in that letter, Mr Pinxten’s position as a Member of that institution was common knowledge and, if the offer made in that letter had been accepted by its recipient, a conflict of interest would have objectively existed in any event, even if she had remained unaware of Mr Pinxten’s position.
873 Consequently, the fifth complaint is well founded.
874 The Court of Auditors submits that Mr Pinxten’s actions are particularly serious and thus satisfy the relevant condition laid down in the judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455).
875 Those actions undermine the fundamental values of the European Union, occurred very frequently, caused significant damage to the Court of Auditors, may be classified as criminal and stem from fraudulent intent, as evidenced by practices of concealment.
876 The Court of Auditors leaves it to the discretion of the Court of Justice to determine the nature and extent of the penalty, taking into consideration the principle of proportionality, the importance of Mr Pinxten’s responsibilities, the damage to the institution’s image, the high degree of gravity of the breaches and the extent of the financial damage to the European Union.
877 Mr Pinxten asserts that he has not failed to meet the obligations arising from his office within the meaning of Article 286(6) TFEU.
878 His conduct was comparable to that of the other Members of the Court of Auditors. While he does not rule out having made certain errors, they were negligible and should have been corrected by that institution.
879 In the light of the above assessment, although the third complaint raised by the Court of Auditors must be dismissed, the first, second, fourth and fifth complaints are at least partially well founded with the result that Mr Pinxten must be held liable for a number of irregularities.
880 By exercising an undeclared activity which is incompatible with his duties as a Member of the Court of Auditors, by misusing its resources and by acting in a manner likely to create a conflict of interest with an audited entity, Mr Pinxten is liable for breaches of a significant degree of gravity and therefore acted in breach of the obligations arising from his office as a Member of the Court of Auditors within the meaning of Article 286(6) TFEU.
881 The breach of those obligations calls, in principle, for the imposition of a penalty under that provision (see, by analogy, judgment of 11 July 2006, Commission v Cresson, C‑432/04, EU:C:2006:455, paragraph 149).
882 That provision permits the Court to impose a penalty in the form of compulsory retirement or the deprivation of his right to a pension or other benefits in its stead. The penalty of compulsory retirement will apply only where a breach has arisen, and continues, during the term of office of the Member of the Court of Auditors in question. By contrast, he may be deprived of the right to a pension or other benefits in its stead in particular if the breach occurs during his term of office and continues after that term of office, as is the case in the present case (see, by analogy, judgment of 11 July 2006, Commission v Cresson, C‑432/04, EU:C:2006:455, paragraph 73).
883 To be precise, since it is evident from the information provided by the parties at the hearing that Mr Pinxten benefits only from a right to a pension, that penalty must apply to that right and not to other benefits in its stead.
884 As there is no provision in Article 286(6) TFEU as to the extent of the deprivation of the right to a pension under that provision, it is open to the Court to order deprivation in whole or in part thereof (see, by analogy, judgment of 11 July 2006, Commission v Cresson, C‑432/04, EU:C:2006:455, paragraph 73).
885 That penalty must, however, be proportionate to the gravity of the breaches of obligations arising from the office of Member of the Court of Auditors established by the Court of Justice.
886 To determine the gravity of the breaches of the obligations arising from the office of Member of the Court of Auditors established by the Court of Justice, account must be taken in particular of the nature of those breaches, the circumstances in which they occurred, the extent to which the misconduct adversely affects the integrity, reputation or interests of the European Union and the extent to which the breaches involve intentional actions or negligence.
887 In order to ensure that the principle of proportionality is observed, consideration must also be given to all the circumstances that could aggravate or, on the other hand, mitigate Mr Pinxten’s liability.
888 Against that background, it should also be borne in mind that the deprivation in whole or in part of the right to a pension constitutes a limitation of the right to property guaranteed in Article 17 of the Charter in so far as its effect is to deprive the person concerned in whole or in part of the rights to a retirement pension which he or she has accumulated over his or her professional career, those rights being intended to contribute to providing that person with a livelihood at the end of that career.
889 Furthermore, according to the case-law of the European Court of Human Rights relating to Article 1 of Protocol No 1 to the ECHR, which must be taken into account pursuant to Article 52(3) of the Charter in interpreting Article 17 thereof, as the minimum threshold of protection (judgment of 21 May 2019, Commission v Hungary(Usufruct over agricultural land), C‑235/17, EU:C:2019:432, paragraph 72 and the case-law cited), a penalty the effect of which is to deprive a person of all or part of a retirement pension must amount to an interference with his or her right to the peaceful enjoyment of his or her possessions (see, to that effect, ECtHR, 14 June 2016, Philippou v. Cyprus, CE:ECHR:2016:0614JUD007114810, § 65).
890 A deprivation in whole or in part of the right to a pension must also be considered to limit the right to social security and social assistance under Article 34 of the Charter.
891 A number of circumstances are such as to establish that the irregularities attributable to Mr Pinxten have a particularly high degree of gravity.
892 In the first place, it is apparent from the findings made in examining the first, second, fourth and fifth complaints raised by the Court of Auditors that, in the course of his two terms of office as a Member of that institution, Mr Pinxten deliberately and repeatedly infringed the applicable rules within that institution, thereby systematically breaching the most basic obligations arising from his office.
893 In the second place, Mr Pinxten frequently attempted to conceal those infringements of the rules, in particular by submitting authorisation requests for missions that omitted key information regarding the true nature of the proposed activities in the missions in question or presenting those activities misleadingly.
894 In the third place, the irregularities committed by Mr Pinxten served, to a large extent, to contribute to his own personal enrichment, committing the resources of the Court of Auditors to finance his private activities.
895 In the fourth place, Mr Pinxten’s conduct caused significant damage to the Court of Auditors not only financially but also to its image and reputation.
896 In the fifth place, it should be stated that, under Article 287(2) TFEU, the Court of Auditors is responsible for examining whether all expenditure has been incurred by the European Union in a lawful and regular manner and whether the financial management has been sound, reporting in particular on any cases of irregularity.
897 With regard to that specific function, point 2.2 of the Ethical Guidelines provides that the Court of Auditors must act as a role model in financial management and that its resources must be managed in full compliance with the applicable rules.
898 Consequently, if all those who hold important positions within the European Union must, as was stated in paragraph 239 of the present judgment, observe the highest standards of conduct, the specific function for which the Court of Auditors is responsible further increases the gravity of the irregularities committed by Mr Pinxten.
899 However, other factors are such as to mitigate Mr Pinxten’s liability.
900 First, Mr Pinxten acquired his right to a pension in respect of work performed by him over 12 years of service at the Court of Auditors.
901 It is not apparent from the documents before the Court of Justice that the quality of that work has been called into question and Mr Pinxten was even elected by his peers to the office of Dean of Chamber III of the Court of Auditors from 2011.
902 Second, although the breaches committed by Mr Pinxten of the obligations arising from his office are determined, first and foremost, by personal choices which he must have known were incompatible with the most basic obligations arising from his office, the fact remains that the perpetuation of those irregularities was facilitated by a lack of precision in the internal rules of that institution and permitted by deficiencies in its monitoring.
903 In particular, while the Court of Auditors must, in principle, be able to rely on declarations by its Members, without being obliged to verify systematically the accuracy of the information contained therein, it follows from the examination of the first complaint that many of Mr Pinxten’s missions were authorised even though he provided clearly insufficient information to justify that authorisation, while others were authorised when it was evident from their purpose that they were manifestly irregular. Representation and reception expenses were also reimbursed in similar conditions.
904 Similarly, although the administration of the Court of Auditors must have been aware of the systematic irregularity of the recourse to the services of drivers throughout his two terms of office, it did not consider it appropriate to address the matter, even by informing Mr Pinxten of the irregularity of the practice that he had applied.
905 In the light of all those factors, it is fair in the circumstances of the case to rule that Mr Pinxten should be deprived of two thirds of his right to a pension from the date of delivery of the present judgment.
906 Mr Pinxten claims that the Court of Auditors should be ordered to pay a sum of EUR 50000 as compensation for the non-material damage resulting from its conduct.
907 That damage stems inter alia from a succession of communications made by the Court of Auditors. Those communications destroyed Mr Pinxten’s career and reputation.
908 The Court of Auditors asserts that the claim is inadmissible because it has been made before a court not having jurisdiction.
909 It is apparent from the express wording of Article 286(6) TFEU that it provides for a specific legal remedy in which the Court of Justice is called on solely to determine whether a Member of the Court of Auditors or a former Member of that institution no longer fulfils the requisite conditions or meets the obligations arising from his or her office.
910 Although the Court of Justice must rule on the complaints presented in an action brought under that provision by the Court of Auditors against the Member or former Member concerned of that institution and, if necessary, on the procedural claims ancillary to that action, it does not have jurisdiction to rule on submissions entirely unrelated to the action.
911 Consequently, if Mr Pinxten considers that, by its conduct, the Court of Auditors has caused him damage and wishes to obtain compensation, he has to bring a separate action pursuant to Articles 268 and 340 TFEU, the General Court having jurisdiction to rule on that action at first instance under Article 256(1) TFEU. However, he cannot legitimately submit a counterclaim to that end in proceedings brought under Article 286(6) TFEU.
912 It follows that the Court of Justice lacks jurisdiction to rule on the claim for compensation made by Mr Pinxten.
913 Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Article 138(3) of those Rules of Procedure provides, however, that where each party succeeds on some and fails on other heads, the Court may order that the costs be shared or that each party bear its own costs.
914 The Court of Auditors won its case entirely on its fifth complaint and, in part, on its first, second and fourth complaints. On the other hand, it was entirely unsuccessful in its third complaint and, in part, in its first, second and fourth complaints.
915 That being the case, in view of the nature of the present proceedings and the fact that it has been established that Mr Pinxten had repeatedly seriously breached the obligations arising from his office as a Member of the Court of Auditors, it is fair in the circumstances of the case to order Mr Pinxten to bear his own costs and to pay those incurred by the Court of Auditors.