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Introduction

What should happen if candidates duly qualified to perform the duties of judge at the European Union Civil Service Tribunal (‘the CST’) are appointed following a procedure that proves to be irregular? These unprecedented proceedings contain all the ingredients necessary to explore the correct answer to that question. They raise issues concerning the procedure for the Council to appoint judges to the CST, whether such appointments are amenable to review by the General Court, whether such a review can be an incidental review, how to reconcile the various principles applicable to a review and the effects which an irregularity in the appointment of a judge may have on judicial proceedings in which that judge has participated. First and foremost, however, the principal challenge in this Opinion is to formulate guidelines as to how to strike the balance between the right to a tribunal established by law, on the one hand, and the legal certainty needed to ensure the stability of the judicial system, on the other.

Conclusion

In the light of the foregoing considerations, I propose that the Court should rule:

  • The judgments of the General Court of the European Union of 19 July 2018, Simpson v Council (T‑646/16 P) and HG v Commission (T‑693/16 P) affect the unity and consistency of EU law.
  • The aforementioned judgments are set aside.
  • The cases are referred back to the General Court of the European Union.
  • The Council of the European Union is ordered to bear the costs incurred by Mr Simpson and HG in connection with the review proceedings as well as its own costs.
  • The European Commission and the Bulgarian Government shall bear their own costs in connection with the review proceedings.