Article 17 - Right to property
Article 34 - Social security and social assistance
Article 41 - Right to good administration
Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Article 286(6) TFEU – Breach of the obligations arising from the office of Member of the European Court of Auditors – Deprivation of the right to a pension – Right to effective judicial protection – Regularity of the investigation by the European Anti-Fraud Office (OLAF) – Internal procedure within the Court of Auditors – Activity incompatible with the duties of a Member of the Court of Auditors – Mission expenses and daily subsistence allowances – Representation and reception expenses – Use of official car – Recourse to the services of a driver – Conflict of interest – Proportionality of the penalty.
Outcome of the case:
On those grounds, the Court (Full Court) hereby:
1. Dismisses the application submitted by Karel Pinxten for the proceedings to be stayed pending the outcome of the criminal proceedings brought by the Luxembourg authorities following the transmission to those authorities of the report of the European Anti-Fraud Office (OLAF) concerning Case No OC/2016/0069/A 1;
2. Dismisses the application submitted by Karel Pinxten for an order that the European Court of Auditors disclose a report drawn up following an internal audit and the steps taken as a result of that report and any notes from that institution relating to possible interference with the independence of the internal auditor;
3. Orders that the email sent by the President of the European Court of Auditors to its other Members and its Secretary-General on 13 February 2019, produced by Karel Pinxten in Annex B.10 to his defence, be removed from the file;
4. Declares that Karel Pinxten breached the obligations arising from his office as a Member of the European Court of Auditors within the meaning of Article 286(6) TFEUin respect of:
5. Declares that Karel Pinxten is deprived of two thirds of his right to a pension from the date of delivery of the present judgment;
6. Dismisses the action as to the remainder;
7. Declares that the Court lacks jurisdiction to rule on the claim for compensation submitted by Karel Pinxten;
8. Orders Karel Pinxten to bear his own costs and to pay those incurred by the European Court of Auditors.
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).
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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).
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.
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.
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.
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.
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.
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.
