delivered on 17 June 2021 (1)

Case C‑894/19 P

(Appeal – Civil service – Official – Disciplinary proceedings – Psychological harassment – Disciplinary sanction – Downgrading by one grade – Rejection of the applicant’s request for assistance – Action for annulment – Article 41 of the Charter of Fundamental Rights of the European Union – Requirement of objective impartiality – Right to be heard)

1.By its appeal, the European Parliament seeks to have set aside the judgment of the General Court of the European Union of 20 September 2019, UZ v Parliament (T‑47/18, EU:T:2019:650; ‘the judgment under appeal’), by which the General Court, on the one hand, annulled the decision of the Secretary-General of the Parliament of 27 February 2017 imposing on UZ the disciplinary sanction of downgrading from grade AD 13, step 3, to grade AD 12, step 3, and resetting the merit points acquired in grade AD 13 to zero and, on the other hand, dismissed the action as to the remainder.

2.By her cross-appeal, UZ requests that the Court of Justice set aside the judgment under appeal in so far as the General Court dismissed the application for annulment of the decision rejecting her request for assistance.

3.In accordance with the Court’s request, this Opinion will focus on the first part of the first ground of the main appeal, concerning the alleged lack of impartiality of the Parliament in the conduct of the disciplinary investigation against UZ. The Parliament submits that the General Court wrongly found that the appointed investigators did not offer guarantees sufficient to exclude any legitimate doubt as to their impartiality. According to the Parliament, that conclusion of the General Court was based, first, on a distortion of the facts and, secondly, on an erroneous legal characterisation of the concept of ‘objective impartiality’.

4.The present case provides the Court with the opportunity to rule on whether the principles governing that concept of ‘objective impartiality’, already recognised in several areas of the EU legal order, are applicable to the civil service and, more specifically, to an administrative investigation carried out in the context of disciplinary proceedings.

II. Legal framework

5.Article 24 of the Staff Regulations of Officials of the European Union, in the version applicable to the dispute (‘the Staff Regulations’), provides: ‘The Union shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties. It shall jointly and severally compensate the official for damage suffered in such cases, in so far as the official did not either intentionally or through grave negligence cause damage and has been unable to obtain compensation from the person who did cause it.’

6.Article 86 of the Staff Regulations provides: ‘1. Any failure by an official or former official to comply with his obligations under these Staff Regulations, whether intentionally or through negligence on his part, shall make him liable to disciplinary action. 2. Where the Appointing Authority or OLAF becomes aware of evidence of failure within the meaning of paragraph 1, they may launch administrative investigations to verify whether such failure has occurred. 3. Disciplinary rules, procedures and measures and the rules and procedures covering administrative investigations are laid down in Annex IX.’

7.Under Article 3 of Annex IX to the Staff Regulations: ‘On the basis of the investigation report, after having notified the official concerned of all evidence in the files and after hearing the official concerned, the Appointing Authority may: (a) decide that no case can be made against the official, in which case the official shall be informed accordingly in writing; or (b) decide, even if there is or appears to have been a failure to comply with obligations, that no disciplinary measure shall be taken and, if appropriate, address a warning to the official; or (c) in the case of failure to comply with obligations within the meaning of Article 86 of the Staff Regulations, (i) decide to initiate the disciplinary proceedings provided for in Section 4 of this Annex, or (ii) decide to initiate disciplinary proceedings before the Disciplinary Board.’

8.Article 16 of that annex states, in paragraphs 1 and 2 thereof: ‘1. The official concerned shall be heard by the Board; at the hearing, he may submit observations in writing or orally, whether in person or through a representative. He may call witnesses. 2. The institution shall be represented before the Board by an official mandated by the Appointing Authority to this effect and having rights equivalent to those of the official concerned.’

9.Article 22 of that annex reads as follows: ‘1. After hearing the official, the Appointing Authority shall take its decision as provided for in Articles 9 and 10 of this Annex within two months of receipt of the opinion of the Board. Reasons must be given for the decision. 2. If the Appointing Authority decides to close the case without imposing any disciplinary penalty, it shall so inform the official concerned in writing without delay. The official concerned may request that this decision be inserted in his personal file.’

III. The background to the dispute and the contested decision

10.The background to the dispute is set out in paragraphs 1 to 27 of the judgment under appeal and may, for the purposes of this appeal, be summarised as follows.

11.UZ held the position of head of unit at the Parliament from 1 January 2009 onwards. She was latterly classified as grade AD 13, step 3.

12.On 24 January 2014, 14 of the 15 members of her unit (‘the complainants’) sent to the Secretary-General of the Parliament a request for assistance, pursuant to Article 24 of the Staff Regulations, alleging that they had suffered psychological harassment on the part of UZ.

13.Following that request, the Director-General of the Directorate-General for Personnel (‘DG PERS’) informed the complainants that interim measures had been taken. These included transferring the management of the staff of the unit concerned to another person and the opening of an administrative investigation.

14.Following the opening of an administrative investigation, UZ was heard on 20 November 2014 by the Director-General of DG PERS.

15.Following two reports, dated 3 March and 17 November 2015, UZ was heard, respectively, on 17 June and 2 December 2015 by the Director-General of DG PERS.

16.By letter of 6 January 2016, UZ was informed by the Secretary-General of the Parliament that her failure to comply with obligations under the Staff Regulations had been referred to the Disciplinary Board. She was heard by the Disciplinary Board on 17 February, 9 March, 8 April and 26 May 2016.

17.On 25 July 2016, the Disciplinary Board unanimously adopted an opinion in which it, first, proposed that the Appointing Authority penalise all of the wrongful acts committed by UZ with an overall penalty consisting of a downgrading and, secondly, concluded that the Appointing Authority should seriously consider reassigning her to another type of post within the Secretariat-General.

18.By decision of 20 September 2016, the Secretary-General of the Parliament authorised the Director-General of DG PERS to represent him at the hearing of UZ provided for in Article 22 of Annex IX to the Staff Regulations and instructed the Director-General to forward to him any observations which UZ might have on the opinion issued by the Disciplinary Board and forwarded on 7 September 2016.

19.By email of 4 October 2016, the Director-General of DG PERS invited UZ to attend a hearing on 20 October 2016, in accordance with Article 22(1) of the Staff Regulations, to enable her to make known her observations on the opinion of the Disciplinary Board.

20.On 14 November 2016, UZ was heard by the Director-General of DG PERS. At that hearing, she handed over a note and requested the assistance of the Parliament on account of alleged threats made against her by members of her unit.

21.On a proposal from the Director-General of DG PERS, UZ was then temporarily assigned to another unit.

22.By decision of 27 February 2017, the Secretary-General of the Parliament took the decision to impose on UZ the disciplinary sanction of downgrading, in the same function group, from grade AD 13, step 3, to grade AD 12, step 3, and resetting the merit points acquired in the former grade AD 13 to zero (‘the contested decision’).

23.By letter of 6 June 2017, UZ submitted a complaint against the contested decision to the Appointing Authority of the Parliament.

24.By letter of 14 June 2017, UZ submitted to the Secretary-General of the Parliament a complaint against the implied rejection of her request for assistance. By letter of 20 July 2017, the Director-General of DG PERS rejected that request for assistance.

25.By letter of 6 October 2017, the President of the Parliament rejected the complaints made by UZ in correspondence of 6 and 14 June 2017.

26.By application lodged at the Registry of the General Court on 29 January 2018, UZ brought an action seeking, first, annulment of the contested decision and, secondly, annulment of the decision rejecting her request for assistance.

27.The Parliament contended that the action should be dismissed.

28.In support of her claim for annulment of the contested decision, UZ relied on two pleas in law, the first alleging that there were irregularities in the administrative investigation and the second alleging that there were irregularities in the proceedings of the Disciplinary Board and a failure by the competent authority to hold a hearing at the conclusion of those proceedings.

29.In the context of this first plea, UZ argued, in particular, that two of the investigators entrusted with the administrative investigation, namely the one entrusted with the ‘disciplinary’ component and the one entrusted with the ‘harassment’ component, did not have the independence and impartiality necessary to take part in that investigation.

30.In the first place, as regards the alleged lack of impartiality of the investigator of the ‘disciplinary’ component, the General Court found, in paragraph 51 of the judgment under appeal, that it was clear from the evidence of one of the complainants that a member of DG PERS had met with that complainant prior to the opening of the investigation and that the complainant had at that meeting reported to the abovementioned member, who was subsequently appointed investigator, that a complaint about him had been made to the European Anti-Fraud Agency (‘OLAF’) by UZ and, more specifically, through her husband, ‘as revenge’, in connection with alleged irregularities.

31.According to the General Court, such testimony could have given rise to a legitimate doubt on the part of UZ, as to the impartiality of the investigator, who could have been influenced by the particularly malicious nature of her alleged conduct as reported to him.

32.The General Court, in paragraphs 53 to 55 of the judgment under appeal, considered that, since UZ had informed the Parliament, at her hearing on 14 November 2016, of that lack of impartiality, the Parliament was in a position to choose a person with no prior knowledge of the facts of the case as investigator.

33.In the second place, as regards the alleged lack of impartiality of the investigator of the ‘harassment’ component, the General Court noted, in paragraph 57 of that judgment, that it was clear from the explanations given by the Parliament at the hearing that, before being appointed investigator of the ‘harassment’ component of the administrative investigation, he had chaired the Advisory Committee on Harassment and its Prevention at the Workplace. That committee had concluded that the management of the unit of which UZ was the head should be passed to another person.

34.According to the General Court, in the light of the conclusion reached by that committee, when he was appointed as the investigator of the ‘harassment’ component, he could already have had a negative opinion of UZ. That circumstance calls into question his objective impartiality.

35.Accordingly, the General Court held, in paragraph 59 of the judgment under appeal, that, by appointing as investigators two persons who could have had prior knowledge of the case, the Parliament did not offer guarantees sufficient to exclude any legitimate doubt, within the meaning of the case-law of the Court.

36.In the third place, the General Court, in paragraph 60 of the judgment under appeal, recalled the settled case-law according to which, in order that a procedural irregularity may justify the annulment of an act, it is necessary that had it not been for that irregularity, the outcome would have been different.

37.According to the General Court, it could not be ruled out that, had the administrative investigation in this case been conducted with care and impartiality, it might have resulted in a different initial assessment of the facts which would not necessarily have led to the imposition of the disciplinary penalty.

38.Accordingly, the General Court, in paragraph 65 of the judgment under appeal, ruled that UZ’s claim for annulment of the contested decision must be upheld.

39.However, for reasons relating to the sound administration of justice, the General Court considered it useful to examine the second plea.

40.In support of her second plea, UZ argued, first, that the Parliament could not be legitimately represented by two officials at one of the six meetings and that the Parliament’s representatives wrongly remained in the meeting room to deliberate with the members of the Disciplinary Board. Secondly, UZ maintained that only the Secretary-General of the Parliament was entitled to hear an official before deciding to impose a disciplinary penalty on him or her. According to UZ, no such hearing took place.

41.In paragraph 102 of the judgment under appeal, the General Court upheld the second plea. Since a review of the General Court’s reasoning as regards the issues raised in that plea is of only limited interest for the analysis of the appeal in this Opinion, it is sufficient to refer in that regard to paragraphs 68 to 101 of the judgment under appeal.

42.Before the General Court, UZ argued, in essence, that the Parliament had wrongly rejected the request for assistance which she had herself made to that institution.

43.Since that plea is not relevant for the purposes of the analysis carried out in this Opinion, it is sufficient to note that the application for annulment of the decision rejecting the request for assistance was dismissed by the General Court on the grounds set out, inter alia, in paragraphs 107 to 110 of the judgment under appeal.

44.In the light of the foregoing considerations, the General Court, by the judgment under appeal, annulled the contested decision and dismissed the remainder of the action.

Forms of order sought

Forms of order sought in the main appeal

By its appeal, the Parliament claims that the Court should:

–set aside the judgment under appeal and, consequently;

–dismiss the action at first instance;

–order each party to pay its own costs relating to the appeal, and

–order UZ to pay the costs of the proceedings at first instance.

In her response, UZ contends that the Court should:

–dismiss the appeal and,

–order the Parliament to pay the costs of the proceedings at first instance and on appeal.

Forms of order sought in the cross-appeal

By her cross-appeal, UZ claims that the Court should:

–set aside the judgment under appeal in so far as it dismisses the application for annulment of the decision rejecting her request for assistance; and

–giving judgment itself, annul the decision of the Parliament dismissing that application for annulment, and

–order the Parliament to pay the costs of the proceedings at first instance and on appeal.

By its response, the Parliament contends that the Court should:

–declare the cross-appeal partially inadmissible as regards the second ground of appeal and unfounded in its entirety, and

–order UZ to pay the costs.

Legal analysis

The grounds of appeal raised by the Parliament and the scope of the assessment to be carried out

In support of its appeal, the Parliament puts forward three grounds of appeal. The first ground of appeal, which is directed against paragraphs 54, 58 and 59 of the judgment under appeal, alleges an error of law, distortion of the facts and a failure to state reasons, which undermined the General Court’s finding that the investigations carried out by the Parliament were vitiated by a lack of objective impartiality. The second ground of appeal, directed against paragraph 72 of that judgment, alleges an error of law, distortion of the facts and a failure to state reasons in respect of the General Court’s finding of infringement of the principle of equality of arms during the Disciplinary Board’s proceedings. The third ground of appeal, directed against paragraphs 90, 99 and 102 of that judgment, alleges an error of law, distortion of the facts and a failure to state reasons on the part of the General Court in its finding that UZ’s right to be heard had been infringed.

The first ground of appeal is divided into four parts. As already stated in the introduction, this Opinion will deal only with the first part of that ground of appeal. I shall therefore confine myself below to presenting the arguments put forward by the Parliament in that regard.

51.The Parliament submits, in essence, that, in holding, in paragraphs 52, 58 and 59 of the judgment under appeal, that two investigators, namely the one entrusted with the ‘disciplinary’ component of the administrative investigation and the other entrusted with the ‘harassment’ component of that investigation, did not offer guarantees sufficient to exclude any legitimate doubt as to their objective impartiality, the General Court based its decision on a distortion of the facts and on erroneous legal criteria in the context of its assessment of the concept of ‘objective impartiality’, and thus infringed Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

52.According to the Parliament, mere prior knowledge of the facts by the investigator entrusted with the ‘disciplinary’ component, in particular when that knowledge is limited and isolated or even incomplete, as in the present case, cannot, in itself, automatically give rise to a legitimate doubt which justifies the selection of another person who has no prior knowledge of the facts of the case. Moreover, the General Court barely considered whether UZ’s apprehensions were actually capable of justifying a legitimate doubt as to the objective impartiality of the investigators. In the present case, according to the Parliament, those apprehensions did not justify a need to appoint other investigators, in particular in the light of the absence of any conflict of interest between the investigators concerned and UZ.

It can be inferred from that summary of the arguments that the legal questions which arise in the present dispute concern, in essence, two main issues: first, the concept of ‘impartiality’ and, secondly, its applicability to a case such as this. In order to analyse those legal questions in a structured and logical manner, it is necessary to clarify, first, the areas of the EU legal order to which that concept generally applies and, secondly, whether the civil service is one of them. Only after examining those legal questions will it be possible to establish whether the General Court has committed errors of law and whether the complaint raised by the Parliament can be considered as being well founded. This is the structure of the analysis which is set out below.

Viewed from a different angle, it could be argued that guaranteeing those principles and values is a necessary condition for the transfer of powers to the European Union. In so far as the European Union has increasingly assumed powers which were previously held by Member States, thereby taking on their role, its legal order has had to evolve to reflect the values and principles of the Member States. Moreover, since EU law often requires implementation at national level, for example, through the transposition of a directive by national legislative bodies or the adoption of administrative acts by national authorities, uniformity of values and principles has had to be ensured. (5) This is essential for the proper functioning of any multi-tier system of governance, whether a country with a federal structure or a regional integration system such as the European Union.

With specific reference to the concept of ‘impartiality’, it should be noted that, since that concept is recognised in all Member States in various ways, it is logical that it should also form an integral part of the EU legal order. The issue which arises in that context is that of the areas to which that concept applies, having regard to the valuable guidance provided by the case-law of the Court. In this Opinion, I shall present an overview of that case-law with the aim of confirming that the concept of ‘impartiality’ is recognised as a central principle of EU law.

Independence and impartiality are the two fundamental principles of any judicial system. (6) Those principles guarantee to individuals that the adjudication process will be determined solely by the arguments before the court or tribunal, free from any pressure or prejudice. Impartiality, which is a key element of the right to a fair trial, enshrined in prominent provisions such as Article 10 of the Universal Declaration of Human Rights, Article 14(1) of the International Covenant on Civil and Political Rights and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), signed in Rome on 4 November 1950, refers to the absence of prejudice which must characterise a court. In that connection, independence is concerned rather with the relationships of a court with the other powers and is a necessary, though by no means sufficient, condition of a court’s impartiality in the context of its relationships with individuals.

The Treaties and the Statute of the Court of Justice of the European Union provide the basis for independent judicial activity at the supranational level, (7) allowing the fully impartial handling of cases brought before it. Where those measures do not make specific provision for dealing with certain procedural issues in an appropriate manner, the Court often draws inspiration from the case-law of the European Court of Human Rights as the international judicial body responsible for interpreting the ECHR, which reflects the constitutional traditions common to the Member States. In so far as those rights and constitutional traditions constitute general principles of EU law, under Article 6(3) TEU, it is well known that the case-law of the European Court of Human Rights is an authoritative source for the interpretation of those general principles within the European Union.

The judgment of 19 February 2009, Gorostiaga Atxalandabaso v Parliament (C‑308/07 P, EU:C:2009:103; ‘the judgment in Gorostiaga Atxalandabaso v Parliament’), is particularly relevant in the present context, since in that judgment the Court recalled the importance of the right to a fair trial, enshrined in the aforementioned Article 6(1) ECHR, which implies access for every person to an independent and impartial tribunal. The Court held, with regard to its status in the EU legal order, that the right to a fair trial constituted a fundamental right which the European Union respected as a general principle under Article 6(2) EU. (8) In that regard, it should be noted that the judgment in question dates from before the entry into force of the Treaty of Lisbon, that right now being enshrined in Article 47 of the Charter, which provides, inter alia, for access for every person to an independent and impartial tribunal. It should be noted that EU law aims to provide a similar or at least equivalent level of protection to that guaranteed by the ECHR.

One of the legal questions put to the Court of Justice at that time, in an appeal against an order of the General Court, was whether the fact that one or more of the judges were present in two successive formations and exercised the same functions, such as President or Judge-Rapporteur, was capable of raising any doubt as to the impartiality of the General Court. It should be recalled that the appellant in the case which gave rise to the judgment in question had argued that, in his view, respect for the principle of impartiality required that the same judge cannot, including where the same level of jurisdiction is concerned, hear and determine a case based on facts identical or sufficiently connected to those of a case that he has previously decided. (9) In his view, an infringement of the right to an impartial tribunal had arisen from the allocation of the case giving rise to the order under appeal to a formation consisting of judges, including those carrying out the functions of President and Judge-Rapporteur, who had already sat on the bench which had delivered the judgment in a previous case, relating in part to the same facts.

The Court rejected that line of argument, answering in the negative the legal question which had been put to it. According to the Court, even though the existence of guarantees concerning the composition of the tribunal are the cornerstone of the right to a fair trial, the fact that the judges who heard and determined a case initially may sit in another formation hearing and determining the same case again is not in itself incompatible with the requirements of a fair trial. (10) The Court stated that, in particular, the fact that one or more of the judges were present in two successive formations and exercised the same functions is in itself irrelevant to the assessment of compliance with the requirement of impartiality, since those duties are performed in a collegiate formation of the court. (11) According to the Court, such considerations are even more relevant where the two successive formations did not have to hear and determine the same case, but two separate cases which are related to some extent. (12)

It should be noted in particular that the Court relied on the concept of ‘impartiality’ developed in the case-law of the European Court of Human Rights (13) in order to apply it to the EU judicial system. More specifically, the Court pointed out that there are two aspects to the requirement of impartiality. In the first place, the tribunal must be subjectively impartial, that is, none of its members must show bias or personal prejudice, there being a presumption of personal impartiality in the absence of evidence to the contrary. In the second place, the tribunal must be objectively impartial, that is to say, it must offer guarantees sufficient to exclude any legitimate doubt in this respect. (14)

Returning to the facts of the case submitted to it for decision, the Court of Justice noted, first, that the appellant had not advanced any argument liable to call into question the personal impartiality of members of the General Court and, secondly, that he had not put forward any objective evidence capable of raising any doubt as to the impartiality of the General Court. (15) The Court of Justice found that the appellant had instead merely pointed to the presence of the same judges in the two formations in question, which is a fact which was not in itself incompatible with the legal requirements for a fair trial. The Court of Justice thus rejected as unfounded the appellant’s ground of appeal alleging an infringement of the right to an impartial tribunal. (16)

3. Application to administrative law in the broad sense

Although the requirement of impartiality is particularly relevant to any judicial system, given the central role which the judiciary has traditionally played in the interpretation and application of the law, it is not restricted to that field. In so far as the legal order confers sovereign powers on administrative bodies, enabling them to influence the legal status of natural and legal persons, it is necessary to make the exercise of those powers subject to conditions and even to set certain limits in order to safeguard the legitimate interests of those persons. (17) This must also be reflected in the way in which administrative bodies adopt their decisions, that is to say at the procedural level. Indeed, procedural law is at least as important as the substantive rules of administrative law, since it enables individuals to assert their rights. The aim of determining the conditions and limits for the exercise of sovereign powers by administrative bodies, generally at the level of constitutional law, is to establish a legal framework: an essential characteristic of the rule of law. (18)

The foregoing considerations are even more relevant to a ‘union based on the rule of law’ such as the European Union, its institutions being subject to review of the conformity of their acts, inter alia, with the Treaties and the general principles of law. (19) Among the principles in the light of which that review of legality is carried out is the right to good administration, enshrined in Article 41 of the Charter, which guarantees, inter alia, the right of every person ‘to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union’ (emphasis added).

A distinctive feature of Article 41 of the Charter is that it transforms some elements of the objective principle of legality into a subjective right to good administration. As such, it enables the holder of that right to require the administration to act in a certain way or to refrain from acting. (20) That provision lays down for administrative procedures guarantees equivalent to those laid down in Articles 47 and 48 of the Charter for judicial proceedings. Consequently, certain rights, such as the right to be heard, may pertain both to the right to good administration, laid down in Article 41 of the Charter, and to observance of the rights of defence and the right to a fair trial enshrined in Articles 47 and 48 of the Charter. (21) Their applicability therefore depends on the procedure in question. The history of Article 41 of the Charter reveals that that provision is based on national and European legal traditions, (22) and in particular on the case-law of the Court, which has occasionally relied on the concept of ‘good administration’ in order to strengthen the status of the persons concerned. (23)

In order to better illustrate the scope of that right, and more specifically the requirement of impartiality in EU administrative law, I shall present below some examples drawn from the case-law of the Court in the fields of competition law, (27) the authorisation of medicinal products (28) and the economic and budgetary surveillance of the euro area, (29) as well as civil service law. (30) The analysis of that case-law will be the starting point for a subsequent examination of whether the requirement of impartiality can be applied to investigations in the context of disciplinary proceedings.

Observing that only the concept of ‘objective impartiality’ was at issue in that case, the Court considered, in the light of the arguments put forward by the undertaking involved, that the simple fact that the Commission investigates a cartel which is detrimental to the European Union’s financial interests and imposes penalties on its members does not mean that the Commission lacks objective impartiality. Otherwise, according to the Court, the mere possibility that the Commission, or indeed any other EU institution, might be the victim of anti-competitive conduct would have the effect of depriving it of its competence to investigate such conduct, which cannot be accepted. In that regard, the Court held that it should be noted in particular that, under Article 105 TFEU, the tasks entrusted to the Commission by the Treaties include precisely that of ensuring the application of the principles laid down in Articles 101 TFEU and 102 TFEU. (36)

The Court then found that the fact that the Commission’s departments responsible for bringing proceedings for infringements of EU competition law and those responsible for the administration of removals of officials and agents of that institution belong to the same organisational structure cannot, of itself, call into question that institution’s objective impartiality, since those departments necessarily form part of the structure, to which they belong. (37) Finally, the Court recalled that Commission decisions may be subject to review by the European Union judicature and that European Union law lays down a system enabling the courts to review Commission decisions, including decisions relating to procedures under Article 101 TFEU, which provides all the guarantees required by Article 47 of the Charter. (38)

(b) The authorisation of medicinal products

While competition law might, in view of the broad powers of supervision conferred on the Commission, appear to be a special area of administrative law capable of justifying recognition of certain guarantees for legal persons subject to that legal regime, (40) the judgment of 27 March 2019 in August Wolff and Remedia v Commission (C‑680/16 P, EU:C:2019:257; ‘the judgment in Wolff v Commission’) clearly shows that the requirement of impartiality enshrined in Article 41 of the Charter is fully applicable to administrative procedures before the various institutions, bodies, offices and agencies of the Union. Moreover, that judgment contains valuable clarification as to the scope of the obligations of the officials and other servants working in them.

The dispute which gave rise to that judgment stemmed from a decision adopted by the Commission concerning national marketing authorisations for medicinal products, which was based on the opinion issued by a Committee for Medicinal Products for Human Use (‘the Committee’), responsible for drawing up the opinion of the European Medicines Agency (EMA) on any question relating to the evaluation of medicinal products for human use. The applicants requesting that the General Court annul that decision had relied on the fact that the chief rapporteur, appointed by the Committee to prepare the opinion of that committee, had acted in a dual capacity, since she was also an employee of the national authority which had initiated the procedure for reviewing marketing authorisation before the Committee. That fact demonstrates an overlap in function and a conflict of interest giving rise to a legitimate doubt as to the impartiality of that procedure. (41)

The Court of Justice examined the arguments put forward by the applicants, recalling at the outset that EU institutions and bodies are required to respect the fundamental rights of the European Union, which include the right to good administration enshrined in Article 41 of the Charter. The Court drew attention to the fact that paragraph 1 of that provision states, inter alia, that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union. (42)

In that regard, the Court of Justice made clear that the need for impartiality, required of institutions and bodies in carrying out their missions, is intended to guarantee equality of treatment, on which the European Union is founded. That requirement is intended, inter alia, to avoid a situation where there could be a conflict of interest on the part of officials or agents acting on behalf of those institutions and bodies. Having regard to the fundamental importance of ensuring the independence and probity of EU institutions and bodies as regards both their internal functioning and external reputation, the requirement of impartiality covers all circumstances in which an official or agent who is called upon to decide on an issue must reasonably consider that issue as being of such a nature as to be viewed by third parties as a possible source of impairment of his or her independence in that matter. (43)

According to the Court of Justice, it is also incumbent upon those institutions and bodies 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. (44) As regards, more particularly, the second component of the principle of impartiality, the Court made clear that, where a number of EU institutions or bodies are given separate responsibilities of their own in the context of a procedure that is liable to result in a decision adversely affecting a party, each of those institutions and bodies is required, in respect of its own activities, to comply with the requirement of objective impartiality. Consequently, even where only one of them has breached that requirement, such a breach is liable to render the decision adopted by the other at the end of the procedure at issue unlawful. (45)

The Court shared the view of the applicants, and considered that the particular circumstances of the case in question were likely to give rise to doubts as to compliance with the requirement of impartiality. More specifically, the Court considered that the objective impartiality of the committee in question could be jeopardised because of the conflict of interest arising from the overlap in function of one of its members, irrespective of that member’s actual conduct. (46) The Court considered as decisive factors the role assigned to the rapporteur in that committee and the lack of sufficient safeguards to avoid any undue influence on the Committee’s opinion. Indeed, the Court stated that it is for the Committee, in view of the rapporteur’s own responsibilities, to be particularly vigilant in attributing that role in order to avoid giving rise to any legitimate doubt as to possible bias. (47)

The Court recalled that, in order to show that the organisation of an administrative procedure did not ensure sufficient guarantees to exclude any legitimate doubt as to possible bias, it was not necessary to prove lack of impartiality due to the specific characteristics of the role of rapporteur in the procedures conducted before the Committee. It was sufficient for a legitimate doubt to arise which cannot be dispelled. (48) In that case, the Court rule, in essence, that third party observers could legitimately consider that the national authority which initiated the procedure before the Committee was in a position to influence the decisions taken by that committee. (49) The value of that judgment lies in the fact that it established a certain standard of proof for determining whether objective impartiality has been compromised in a particular case. I shall return to this matter when I examine the present case in the light of the criteria developed in the case-law.

Having regard to the foregoing considerations, the Court of Justice concluded that the General Court had erred in law by holding that the Committee had ensured the existence of sufficient guarantees to exclude any legitimate doubt as to compliance with the obligation of impartiality enshrined in Article 41 of the Charter.

(c) Economic and budgetary surveillance of the euro area

The judgment of 20 December 2017, Spain v Council (C‑521/15, EU:C:2017:982; ‘the judgment in Spain v Council’), should also be cited in an overview of the case-law relating to the requirement of impartiality in the context of an administrative procedure. The relevance of that judgment stems from the fact that the administrative procedure in question provides for an investigation stage directed against Member States, which raises the question whether they can rely upon the right to good administration guaranteed by Article 41(1) of the Charter in order to claim that an administrative act is unlawful. (50) The Court expressly refrained from ruling on whether a Member State may be regarded or treated as a ‘person’ within the meaning of that provision and may, on that basis, rely on the right set out therein. However, the Court stated that that right reflects a general principle of EU law, which may, for its part, be relied on by Member States and in the light of which the legality of any administrative act adopted by the EU institutions must therefore be assessed.

The case which gave rise to the judgment in Spain v Council falls within the field of economic and budgetary surveillance of the euro area and concerned, more specifically, the investigative powers of the Statistical Office of the European Union (Eurostat) vis-à-vis the Member States. That dispute stemmed from a decision adopted by the Council, which concluded that the Kingdom of Spain had, through gross negligence, made misrepresentations to Eurostat and, accordingly, imposed a fine on that Member State. The contested decision was based on data obtained in the course of investigations into the manipulation of statistics in Spain.

Challenging the contested decision, that Member State brought an action for annulment, arguing, inter alia, that there had been an infringement of the right to good administration on the basis that the investigation procedure had been conducted under conditions that did not guarantee the Commission’s objective impartiality. (51) More specifically, the Kingdom of Spain had argued that several of the members of staff who had taken part in the visits carried out by Eurostat in Spain, before the decision to launch the investigation was adopted, formed part of the team which was subsequently set to work by the Commission in the context of the investigation procedure.

As stated above, the Court examined the alleged illegality of the contested Council decision from the point of view of the general principle reflected in the right to good administration enshrined in Article 41 of the Charter, recalling its case-law to the effect that the EU institutions are required to observe that general principle of law in the context of administrative procedures that are initiated against Member States and are liable to result in decisions adversely affecting them. (52) Referring to the judgment in Ziegler v Commission, the Court recalled that it is incumbent upon the EU institutions to comply with both components of the requirement of impartiality, which are, first, subjective impartiality, by virtue of which no member of the institution concerned may show bias or personal prejudice, and secondly, 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. (53)

The Court rejected the Kingdom of Spain’s allegation of partiality, pointing out in essence that the visits, on the one hand, and the procedure, on the other, fell within separate legal frameworks and had different purposes. (54) According to the Court, even though the data which were the subject of, first, those visits and, secondly, that investigation procedure may have partially coincided, the assessments which Eurostat and the Commission were respectively called upon to make in respect of those data were, on the other hand, necessarily different. Consequently, the assessments made by Eurostat as to the quality of some of those data, following the visits made in a Member State, did not, in themselves, prejudge the view that might be taken by the Commission regarding the existence of misrepresentations relating to the same data should it subsequently decide to initiate an investigation procedure in that regard. (55)

The Court concluded from this that the fact that the conduct of an investigation procedure founded on a particular legal basis is entrusted to a team largely composed of members of Eurostat’s staff who have already taken part in visits organised by Eurostat in the Member State concerned on a separate legal basis, before the institution of that procedure, did not, as such, permit the Court to conclude that the decision adopted at the end of that procedure was unlawful on account of a breach of the requirement of objective impartiality to which the Commission is subject. (56)

Furthermore, the Court clarified that it was not for Eurostat, but rather for the Commission, and therefore for the Commissioners acting as a collegiate body, to decide to initiate the investigation procedure, to take responsibility for conducting the investigation and, finally, to submit to the Council the recommendations and proposals that are necessary at the conclusion of the investigation. The Court stated that, since the relevant legal framework did not entrust Eurostat’s staff with any responsibility of their own in the conduct of the investigation procedure, the role assigned to Eurostat’s staff in that investigation procedure could not be regarded as decisive for either the conduct or the outcome of that procedure. Accordingly, the Court held that the fact that the conduct of the investigation procedure was entrusted to a team largely composed of members of Eurostat’s staff who had already taken part in visits organised by Eurostat in Spain, before that procedure was initiated, could not be regarded as vitiating the contested decision on account of an alleged breach by the Commission of the requirement of objective impartiality. Consequently, the Court dismissed the plea put forward by the Kingdom of Spain alleging an infringement of the right to good administration.

The judgments presented above illustrate how the requirement of impartiality applies in the context of administrative procedures pending before the institutions, bodies, offices and agencies of the Union. A common feature of those cases is the fact that the procedures in question involved legal persons as well as Member States, that is to say parties which could be regarded as ‘external’ to the EU administration. That said, I am still of the view that there is no legitimate reason to justify the exclusion of officials and servants of the administration from the category of beneficiaries of the protection guaranteed by Article 41 of the Charter. (57) On the contrary, I would like to point out in that context that, first, under that provision ‘every person’ has the right to have his or her affairs handled impartially and, secondly, that provision does not distinguish between EU administrative law in the narrow sense and the European civil service, the latter also being subject to administrative law in the broad sense of the term. Accordingly, the requirement of impartiality must be regarded as a principle of general application, applicable to all administrative procedures. As will be explained below by way of examples, that interpretation has been confirmed by the case-law of the Court.

(a) The procedure for waiving the immunity of an official