30 September 2021 (*1)

Table of contents

4. Directive 2008/118/EC

5. Regulation (EU, Euratom) No 883/2013

(a) Rules of Procedure

(b) Decision No 1-2003

(c) Decision No 7-2004

(d) Decision No 33-2004

(e) 2004 Code of Conduct

(f) Decision No 19-2009

(g) Decision No 66-2011

(h) 2012 Code of Conduct

(i) Rules for implementing the Rules of Procedure

II. Background to the dispute

III. Investigations and procedures initiated

VII. The application to remove a document from the file

VIII. The action

(a) Arguments of the parties

(b) Findings of the Court

(a) Arguments of the parties

(b) Findings of the Court

(a) Arguments of the parties

(b) Findings of the Court

4. The alleged delay in bringing the action by the Court of Auditors

(a) Arguments of the parties

(b) Findings of the Court

(a) The first part of the fourth complaint, alleging the undeclared and unlawful exercise of political activity

(1) Arguments of the parties

(2) Findings of the Court

(b) The second part of the fourth complaint, alleging the undeclared and unlawful exercise of activity as a manager of a société civile immobilière

(1) Arguments of the parties

(2) Findings of the Court

(a) Admissibility of the first complaint

(1) The exercise by the Court of Auditors of its discretion

(i) Arguments of the parties

(ii) Findings of the Court

(2) Presentation of the application and admissibility of the table annexed to the reply

(i) Arguments of the parties

(ii) Findings of the Court

(b) The substance of the first complaint

(1) Arguments of the parties

(2) Findings of the Court

(i) Infringement of the principle of the protection of legitimate expectations

(ii) Mission expenses and daily subsistence allowances

– The stay in Crans-Montana

– The stay in Cuba

– Contacts with politicians and political movements

– Contacts with senior staff of private economic operators

– Contacts with representative bodies and associations

– Engagement in an authorised outside activity

– Participation in hunting parties

– The other missions mentioned by the Court of Auditors

(iii) Representation and reception expenses

– Representation expenses connected with contacts with politicians

– Representation expenses connected with contacts with other individuals

– Expenses relating to receptions held at Mr Pinxten’s home

(iv) Use of the official car and recourse to the services of a driver

– Transport expenses incurred outside Mr Pinxten’s missions

– Transport costs incurred during Mr Pinxten’s missions

– Use of the official car without recourse to the services of a driver

(a) The first part of the second complaint, alleging the retention and the use of a fuel card by one of Mr Pinxten’s children when he was no longer a member of his household

(1) Arguments of the parties

(2) Findings of the Court

(b) The second part of the second complaint, alleging use of a fuel card to purchase fuel for vehicles owned by others

(1) Arguments of the parties

(2) Findings of the Court

4. The third complaint, alleging false insurance claims in connection with alleged accidents involving the official vehicle and the driver assigned to Mr Pinxten’s Cabinet

(a) Arguments of the parties

(b) Findings of the Court

5. The fifth complaint, alleging a conflict of interest created by Mr Pinxten through a connection with the head of an audited entity

(a) Arguments of the parties

(b) Findings of the Court

IX. The claim for compensation submitted by Mr Pinxten

Costs

(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)

In Case C‑130/19,

ACTION brought on 15 February 2019 under Article 286(6) TFEU,

European Court of Auditors, represented initially by C. Lesauvage, J. Vermer and É. von Bardeleben, and subsequently by C. Lesauvage, acting as Agents,

applicant,

Karel Pinxten, represented by L. Levi, avocate,

defendant,

THE COURT (Full Court),

composed of R. Silva de Lapuerta, Vice-President, acting as President, J.-C. Bonichot, A. Arabadjiev, M. Vilaras, E. Regan, M. Ilešič, L. Bay Larsen (Rapporteur) and N. Piçarra, Presidents of Chambers, T. von Danwitz, C. Toader, M. Safjan, D. Šváby, S. Rodin, F. Biltgen, K. Jürimäe, C. Lycourgos, P.G. Xuereb, L.S. Rossi and. I. Jarukaitis, Judges,

Advocate General: G. Hogan,

Registrar: V. Giacobbo, Administrator,

having regard to the written procedure and further to the hearing on 29 September 2020,

after hearing the Opinion of the Advocate General at the sitting on 17 December 2020,

gives the following

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.

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.’

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.

…

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.

…

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.

…’

The Staff Regulations

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.’

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.’

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.’

Regulation No 2290/77

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 …’

4.

Directive 2008/118/EC

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;

…

5.

Regulation (EU, Euratom) No 883/2013

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 …

…’

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.

(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 …

…’

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. …

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.

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.’

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.

…’

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].’

Internal rules adopted by the Court of Auditors

(a)

Rules of Procedure

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.

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.’

Article 23 of the Rules of Procedure reads as follows:

‘Minutes shall be drawn up for each meeting of the Court [of Auditors].’

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].’

(b)

Decision No 1-2003

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]. …’

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.’

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.’

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.’

(c)

Decision No 7-2004

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. …’

24Article 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.’

25That 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.’

26Annex 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’.

27That 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’.

(d)

Decision No 33-2004

28Article 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.’

29Article 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.’

30Article 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).’

31Article 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.’

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’).

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.).’

(e)

2004 Code of Conduct

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.

…

(f)

Decision No 19-2009

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.

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.’

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’).

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.

(g)

Decision No 66-2011

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.’

The Ethical Guidelines attached to that decision (‘the Ethical Guidelines’) state:

‘…

…

…

…’

(h)

2012 Code of Conduct

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. …

…

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. …’

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.

…

(i)

Rules for implementing the Rules of Procedure

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 of 11 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.

The relevant provisions in the present case were not substantially amended during that period.

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.

(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.’

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.

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.’

Luxembourg law

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.’

51—

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 …’.

52—

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:

…

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’.

53—

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:

…

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;

…

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’.

54—

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.’

II.

Background to the dispute

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.

62—

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.

63—

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.

64—

The OLAF investigation

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.

65—

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.

66—

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.

67—

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.

68—

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.

69—

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.

70—

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.

71—

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.

72—

Initiation of the present proceedings within the Court of Auditors

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.

73—

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.

74—

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.

75—

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.

76—

The criminal proceedings initiated by the Luxembourg authorities

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.

77—

Forms of order sought

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.

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.

The application for the present proceedings to be stayed

Arguments of the parties

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.

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.

The Court of Auditors opposes that application.

Findings of the Court

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.

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.

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).

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.

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).

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.

In those circumstances, the application submitted by Mr Pinxten for the present proceedings to be stayed must be dismissed.

The application to order the production of certain documents

Arguments of the parties

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.

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.

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.

Findings of the Court

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).

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.

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.

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.

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.

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.

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.

VII.

The application to remove a document from the file

Arguments of the parties

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’).

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.

Mr Pinxten submits that the application for the email of 13 February 2019 to be removed from the file should be dismissed.

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.

Findings of the Court

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).

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).

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).

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).

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.

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.

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.

Consequently, a doubt must be considered to exist as to whether Mr Pinxten obtained the email by proper means.

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.

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.

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).

It follows that Mr Pinxten has not demonstrated that there is an overriding public interest to justify the production of the document in question.

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.

VIII.

The action

Admissibility of the action

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.

The alleged incompatibility of the present proceedings with the right to effective judicial protection

(a)

Arguments of the parties

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).

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.

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.

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).

(b)

Findings of the Court

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).

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.

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.

The alleged unlawfulness of the OLAF investigation

(a)

Arguments of the parties

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.

In the first place, OLAF unlawfully extended the scope of its investigation.

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.

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.

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.

In the third place, OLAF did not respect Mr Pinxten’s rights of defence.

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.

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.

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.

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.

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.

In the alternative, that plea is unfounded.

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.

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’.

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.

(b)

Findings of the Court

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.

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.

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’.

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.

In those circumstances, the admissibility of the present action cannot be considered to depend on the lawfulness of the OLAF investigation.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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, C‑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).

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.

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.

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.

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.

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.

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.

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.

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.

163In 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.

164Lastly, 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.

165However, 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.

166Consequently, 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.

167In 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.

168That 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.

169In 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.

170In 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.

171It 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.

172Subsequently, 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.

173In 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.

174In 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.

175It 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.

(a) Arguments of the parties

176By 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.

177The 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.

178Mr 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.

179Article 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.

180Although 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.

181The 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).

182In 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.

183Furthermore, 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.

(b) Findings of the Court

184It 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.

185Such 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.

186That 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.

187It 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.

188In 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.

189Article 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.

190Such 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.

191It 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.

192That 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.

193It 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.

194It 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.

195Furthermore, 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.

196Consequently, 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.

197In 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.

198Moreover, 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.

199While 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).

200However, 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.

201In 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.

202In 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.

203In 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.

204Although 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.

205Accordingly, 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.

206That 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.

207The 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).

208In 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.

209However, 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.

210Furthermore, 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.

211Consequently, 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.

212It 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.

213Consequently, 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.

214It 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.

4. The alleged delay in bringing the action by the Court of Auditors

(a) Arguments of the parties

215By 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.

216The 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.

217In 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.

218According 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.

(b) Findings of the Court

219According 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).

220Nevertheless, 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).

221Furthermore, 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.

222That 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.

223However, 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.

224It 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.

225In 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.

226Moreover, 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.

227The 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.

228Furthermore, 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.

229It 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.

230Consequently, 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.

231Mr Pinxten’s arguments concerning the delay in bringing the present action must therefore be dismissed.

232As none of the four arguments concerning the admissibility of the action has been upheld, the present action is admissible.

233In 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.

234In 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.

235The nature of those obligations is clarified in particular in Articles 285 and 286 TFEU.

236Under Article 285 TFEU, those Members must be completely independent in the performance of their duties, in the European Union’s general interest.

237In 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.

238Furthermore, 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.

239Since 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).

240With 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.

241In 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.

242In 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.

243That 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).

244The 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.

245To 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.

246By 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.

247Because 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.

248In 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.

249In 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.

250Thus, 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.

251Article 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.

252Article 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.

253Article 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.

254Furthermore, 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.

255Accordingly, 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.

256By 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.

257That 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.

258Mr 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.

(2) Findings of the Court

259In 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.

260With 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.

261As 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.

262In 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.

263In 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.

264Emails 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.

265Subsequently, 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.

266Furthermore, 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.

267It 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.

268Mr 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.

269A 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.

270Aside 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.

271In 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.

272Such 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.

273It 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.

274The 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.

275Consequently, the first part of the fourth complaint is well founded.

(b) The second part of the fourth complaint, alleging the undeclared and unlawful exercise of activity as a manager of a société civile immobilière (non-trading real estate company)

(1) Arguments of the parties

276By 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).

277That 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.

278According 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.

(2) Findings of the Court

279It 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.

280Mr Pinxten and his wife held 97% of the shares in that société civile immobilière, the remaining 3% being held by their three children.

281In 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.

282It 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.

283Furthermore, 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.

284Because 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.

285In 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.

286It 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.

287With 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.

288In 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.

289Moreover, 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.

290In 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.

291Consequently, the second part of the fourth complaint must be dismissed as unfounded.

292That complaint should therefore be upheld in part.

(2) The first complaint, alleging misuse of the resources of the Court of Auditors to finance activities unrelated to or incompatible with duties as a Member of that institution

(a) Admissibility of the first complaint

293Mr 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.

(1) The exercise by the Court of Auditors of its discretion

(i) Arguments of the parties

294Mr 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.

295The 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.

(ii) Findings of the Court

296It follows from Article 286(6) TFEU that the Court of Auditors alone may initiate the procedure under that provision.

297That 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.

298In 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.

299In 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.

300In 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.

301Moreover, 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.

302It follows that Mr Pinxten’s argument concerning the failure by the Court of Auditors to exercise its discretion must be dismissed.

(2) Presentation of the application and admissibility of the table annexed to the reply

(i) Arguments of the parties

303Mr 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.

304Such 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.

305According 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.

(ii) Findings of the Court

306It 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.

307For 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.

308The 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.

309Where 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.

310Whilst 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).

311Thus, 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).

312In 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.

313That overview is supplemented by very extensive annexes to which the application makes repeated reference.

314It 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.

315Although 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.

316The 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.

317With 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.

318In 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.

319Moreover, 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.

320However, 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.

321In 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.

322It 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.

323With 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.

324It 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.

325Because 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.

(b) The substance of the first complaint

(1) Arguments of the parties

326By 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.

327In 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.

328The 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.

329However, 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.

330Second, Mr Pinxten applied for reimbursements and payments for activities connected with his own financial interests, particularly in connection with the purchase of a vineyard.

331Third, 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.

332Fourth, 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.

333Although 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.

334In 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.

335Under 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.

336The 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.

337In 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.

338Under 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.

339Mr 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.

340According 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.

341No 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.

342In 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.

343Mr Pinxten contends that the first complaint should be dismissed.

344He relies, in the first place, on the principles of legal certainty and protection of legitimate expectations.

345He 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.

346In 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.

347Against 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.

348In 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.

349The 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.

350Mr 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.

351As 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.

352The 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.

353The 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.

354Medical 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.

355Furthermore, 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.

356As 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.

357He 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.

358The 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.

359As 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.

360In 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.

361It 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.

362Consequently, 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.

363Before 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.

(i) Infringement of the principle of the protection of legitimate expectations

364Even 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.

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).

366The 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.

367First, 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).

368The 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.

369Second, 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.

370Therefore, 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.

371On 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.

372That 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).

373Second, 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.

374Lastly, 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).

375It 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.

376Nevertheless, 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.

377Second, 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.

378Such 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.

379Where 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.

380However, 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.

381In 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.

382Furthermore, 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.

383It 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.

384That 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.

385The 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.

386However, 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.

– The stay in Crans-Montana

387At 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.

388As 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.

389The arrangements applicable to mission expenses and daily subsistence allowances were laid down in Decision No 1-2003.

390Article 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.

391Article 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.

392Accordingly, 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.

393Before 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.

394It 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.

395Since 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.

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.

397That 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.

398The 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.

399It 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.

400However, 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.

401An 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.

402In 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.

403Consequently, 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.

404That mission must therefore be considered manifestly irregular.

405In 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.

– The stay in Cuba

406It 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.

407That 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.

408It 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.

409In 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.

410The 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.

411The 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.

412That 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.

413It 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.

414In 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.

415The 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.

416As 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.

417First, 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.

418Particular 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.

419Second, 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.

420In 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.

421In 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.

422Mr 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.

423In 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.

424It 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.

– Contacts with politicians and political movements

425Many 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.

426In 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.

427In 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.

428As 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.

429Such 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.

430The 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.

431Although, 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.

432The 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’.

433Similarly, 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.

434The 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.

435First, 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.

436Second, 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.

437Lastly, 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.

438In 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.

439That 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.

440That 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.

441Consequently, 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.

442Bearing 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.

443Those 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.

444A 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.

445The 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.

446The 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.

447Even 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.

448That 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.

449Similarly, 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.

450In 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.

451Thus, 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.

452Activities of a similar nature were also sometimes undertaken for reasons other than meeting Belgian political figures.

453Thus, 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.

454Second, 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.

455Lastly, 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.

456As 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.

457The 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.

458The 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.

459Therefore, 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.

460On 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.

461Similarly, 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.

462In 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.

463It 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.

464However, 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.

465Given, 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.

466While 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.

467In 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.

468A 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.

469That 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.

470As 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.

471In 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.

472Similarly, 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.

473On 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.