Contents
Judgment of the General Court (Appeal Chamber)23 January 2018note(Appeal — Civil service — Officials — Appraisal — Career evaluation report — Appraisal year 2013 — Dismissal of the action at first instance — Composition of the Chamber which delivered the judgment at first instance — Procedure for the appointment of a judge to the Civil Service Tribunal — Tribunal established by law — Principle of the lawful judge)In Case T‑639/16 P,appeal brought against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 28 June 2016, FV v Council (F‑40/15, EU:F:2016:137), seeking to have that judgment set aside,FV, a former official of the Council of the European Union, represented by L. Levi, lawyer,vCouncil of the European Union, represented by J.-B. Laignelot and M. Bauer, acting as Agents,THE GENERAL COURT (Appeal Chamber),composed of M. Jaeger, President, M. Prek, D. Gratsias, S. Papasavvas and A. Dittrich (Rapporteur), Judges,Registrar: E. Coulon,gives the following
Judgment
1By her appeal brought pursuant to Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the appellant, FV, seeks to have set aside the judgment of the European Union Civil Service Tribunal (Second Chamber) of 28 June 2016, FV v Council (F‑40/15, ‘the judgment under appeal’, EU:F:2016:137), by which the Tribunal dismissed her action seeking annulment of her appraisal report for the period 1 January to 31 December 2013.
Background to the dispute
2On 14 April 2014, the appellant, FV, then an official of the Council of the European Union, received a draft appraisal report for 2013, drafted by a first reporting officer. On 19 April 2014, she presented observations in that regard, formally contesting the content of that draft report and seeking its revision. On 20 May 2014, the first reporting officer responded to the appellant’s observations and confirmed his initial assessment. The appellant requested the revision of the draft appraisal report. After an interview with a second reporting officer on 10 June 2014, that reporting officer sent the appellant, on 26 June, her decision upholding the assessment of the first reporting officer. Further to the opinion of the Reports Committee, to which the case was referred at the appellant’s request, the second reporting officer amended the draft appraisal report, of which the appellant became aware on 27 November 2014 (‘the contested appraisal report’).
Proceedings at first instance, composition of the Chamber hearing the case and judgment under appeal
3By Council Decision 2009/474/EC, Euratom of 9 June 2009 appointing a Judge to the European Union Civil Service Tribunal (OJ 2009 L 156, p. 56), Ms I. Rofes i Pujol was appointed as judge to the European Union Civil Service Tribunal for a period of six years starting on 1 September 2009 and ending on 31 August 2015.
4On 3 December 2013, with a view to appointing two judges to the European Union Civil Service Tribunal for a period of six years starting on 1 October 2014 and ending on 30 September 2020, a public call for applications was published in the Official Journal of the European Union (OJ 2013 C 353, p. 11). That call was launched in view of the expiry, on 30 September 2014, of the terms of office of two Civil Service Tribunal judges, namely Judge S. Van Raepenbusch and Judge H. Kreppel. Subsequently, the committee referred to in Article 3(3) of Annex I to the Statute of the Court of Justice of the European Union, as it applies to the present dispute (‘the selection committee’), drew up a list of six candidates (‘the list of candidates at issue’).
5Given that the Council had not appointed judges to the posts held by Judge Van Raepenbusch and Judge Kreppel, they continued to hold office beyond the expiry of their terms of office, namely beyond 30 September 2014, in accordance with the third paragraph of Article 5 of the Statute of the Court of Justice of the European Union, according to which a judge continues to hold office until his successor takes up his duties. That provision applied to the judges of the Civil Service Tribunal by reason of the first paragraph of Article 5 of Annex I to that statute, as it applies to the present dispute.
6By document lodged at the Registry of the Civil Service Tribunal on 9 March 2015, the appellant brought an action, registered under reference F‑40/15, seeking the annulment of the contested appraisal report.
7Case F‑40/15 was allocated to the Second Chamber of the Civil Service Tribunal, composed of Judge Kreppel, Judge Rofes i Pujol and Judge K. Bradley.
8Given that no public call for applications had been published in view of the approaching expiry of the term of office of Judge Rofes i Pujol on 31 August 2015, she continued to hold office beyond that date, in accordance with the provisions mentioned in paragraph 5 above.
9A first oral hearing took place on 8 October 2015. On that date, the second Chamber of the Civil Service Tribunal was composed of Judge Kreppel, Judge Rofes i Pujol and Judge J. Svenningsen.
10By a Council decision of 8 December 2015, the appellant was placed on leave in the interests of the service in accordance with Article 42c of the Staff Regulations of Officials of the European Union. Following the rejection of her complaint against that decision, the appellant brought an action for annulment of that decision, which forms the subject matter of Case T‑750/16, FV v Council (OJ 2017 C 6, p. 42), which currently remains pending.
11On 22 March 2016, the Council adopted Council Decision (EU, Euratom) 2016/454 appointing three Judges to the European Union Civil Service Tribunal (OJ 2016 L 79, p. 30), namely Mr Van Raepenbusch, with effect from 1 October 2014, and Mr J. Sant’Anna and Mr A. Kornezov, with effect from 1 April 2016. Recitals 1 to 6 of that decision read as follows:(1) The mandate of two Judges of the … Civil Service Tribunal … has ended with effect from 30 September 2014, and the mandate of a further Judge has ended with effect from 31 August 2015. It is therefore necessary under Article 2 and Article 3(1) of Annex I to … the Statute of the Court of Justice of the European Union … to appoint three Judges to fill those vacancies.(2) Following a public call for applications published in 2013 … with a view to the appointment of two Judges to the Civil Service Tribunal, the Committee set up by Article 3(3) of Annex I to [the Statute of the Court of Justice of the European Union] delivered an opinion on the candidates’ suitability to perform the duties of a Judge of the Civil Service Tribunal. The selection committee appended to its opinion a list of six candidates having the most suitable high-level experience.(3) Following the political agreement on the reform of the judicial architecture of the European Union that led to the adoption of Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council …, the Court of Justice [of the European Union] presented on 17 November 2015 a proposal for a Regulation of the European Parliament and of the Council on the transfer to the General Court … of jurisdiction at first instance in disputes between the Union and its servants with effect from 1 September 2016.(4) In these circumstances, for reasons of timing, it is appropriate not to publish a new public call for applications, but rather to draw on the list of the six candidates having the most suitable high-level experience established by the selection committee following the public call for applications published in 2013.(5) It is therefore appropriate to appoint three of the persons included on that list as Judges of the Civil Service Tribunal, ensuring a balanced composition of the Civil Service Tribunal on as broad a geographical basis as possible from among nationals of the Member States and with respect to the national legal systems represented. The three persons on that list having the most suitable high-level experience are Mr Sean Van Raepenbusch, Mr João Sant’Anna and Mr Alexander Kornezov. Mr João Sant’Anna and Mr Alexander Kornezov should be appointed with effect from the date of entry into force of this Decision. Given that Mr Sean Van Raepenbusch was already a Judge at the Civil Service Tribunal until 30 September 2014 and continued to hold office pending the Decision of the Council in accordance with Article 5 of [the Statute of the Court of Justice of the European Union], it is appropriate to appoint him for a new mandate with effect from the day after the end of his previous mandate.(6) It follows from Article 2 of Annex I to [the Statute of the Court of Justice of the European Union] that any vacancy is to be filled by the appointment of a new Judge for a period of six years. However, upon the application of the proposed Regulation on the transfer to the General Court of the European Union of jurisdiction at first instance in disputes between the Union and its servants, the Civil Service Tribunal will no longer exist, and the mandate of the three Judges appointed by this Decision will thus end ipso facto on the date preceding that on which that Regulation applies.’
12Mr Sant’Anna and Mr Kornezov took oath on 13 April 2016.
13By decision of 14 April 2016 (OJ 2016 C 146, p. 11), the Civil Service Tribunal appointed Judge Bradley, Judge Sant’Anna and Judge Korzenov to the Second Chamber of the Civil Service Tribunal for the period starting on 14 April 2016 and ending on 31 August 2016.
14By letter of 19 April 2016, the Civil Service Tribunal informed the parties that, by reason of the departure of two members of the chamber who participated in the hearing of 8 October 2015 (see paragraph 9 above), namely Judge Kreppel and Judge Rofes i Pujol, it had been decided to reopen the oral part of the procedure and to set the new date for the oral hearing as 12 May 2016, in accordance with the second sentence of Article 27(3) of its Rules of Procedure.
15By letter of 29 April 2016, the Registry of the Civil Service Tribunal informed the parties of the new composition of the Chamber.
16A second oral hearing took place on 12 May 2016 before the second Chamber of the Civil Service Tribunal, composed of Judge Bradley, Judge Sant’Anna and Judge Korzenov.
17The appellant claimed, at first instance, that the Civil Service Tribunal should:– annul the contested appraisal report;– order the Council to pay the costs.
18The Council contended, at first instance, that the Civil Service Tribunal should:– dismiss the action;– order the appellant to pay the costs.
19By the judgment under appeal, the Civil Service Tribunal dismissed the action at first instance and ordered the appellant to bear her own costs and to pay those incurred by the Council. In paragraphs 53 to 98 of the judgment under appeal, the Tribunal examined and rejected the first plea in law raised at first instance, alleging manifest errors of assessment and breach of the duty to state reasons. In paragraphs 99 to 121 of the judgment under appeal, it examined and rejected the second plea in law raised at first instance, alleging breach of the duty to have regard for the welfare of officials.
Procedure before the General Court and forms of order sought by the parties
20By document lodged at the Registry of the General Court on 7 September 2016, the appellant brought the present appeal.
21On 21 December 2016, the Council filed a response.
22On 20 January 2017, the appellant submitted a request to file a reply, which the President of the Appeal Chamber allowed. On 27 March 2017, the appellant lodged her reply. On 10 May 2017, the Council filed its rejoinder.
23On 15 November 2017, pursuant to Article 28 of the Rules of Procedure and on a proposal from the Appeal Chamber, the General Court decided to refer the present case to the Chamber sitting in extended composition.
24In the context of the measures of organisation of procedure laid down in Article 89 of the Rules of Procedure, the General Court invited the Council to submit the list of candidates at issue. The Council complied with that request within the prescribed period.
25On a proposal of the Judge-Rapporteur, and in the absence of any request by the parties to have an opportunity to state their case in a hearing, the General Court (Appeal Chamber) considered that it had sufficient information available to it from the case file and decided to give judgment on the appeal without an oral part of the procedure, in accordance with Article 207(2) of its Rules of Procedure.
26The appellant claims that the Court should:– set aside the judgment under appeal;– consequently, grant her the form of order sought at first instance, and thus:– annul the contested appraisal report;– order the Council to pay the costs;– order the Council to pay the costs at first instance and on appeal.
27The Council contends that the Court should:– dismiss the appeal as unfounded;– order the appellant to pay the costs.
Law
The appeal
28In support of the appeal, the appellant relies on three grounds of appeal. The first ground is based on the unlawful constitution of the Chamber hearing the case. The second ground concerns the findings of the Civil Service Tribunal upon which it based its rejection of the first plea in law raised at first instance alleging, first, manifest errors of assessment and, second, breach of the duty to state reasons. The third ground concerns the findings of the Civil Service Tribunal upon which it based its rejection of the second plea raised at first instance, alleging a breach of the duty to have regard for the welfare of officials.
29In the context of the first ground, the appellant claims that the Chamber which delivered the judgment under appeal was improperly constituted. The Council was not entitled to draw from the list of candidates at issue, which had been established by the selection committee following the public call for applications launched on 3 December 2013, to appoint a judge to the post held by Judge Rofes i Pujol. That public call for applications merely concerned the posts held by Judge Van Raepenbusch and Judge Kreppel, whose terms of office were set to expire on 30 September 2014, and did not cover the post held by Judge Rofes i Pujol, who had been appointed for a term of office starting on 1 September 2009 and ending on 31 August 2015. That list was not a general reserve list. The Council was required to respect the legal framework set up by the public call for applications. The judge appointed to the post held by Judge Rofes i Pujol was appointed without any prior publication of the public call for applications and was therefore not appointed legitimately. Consequently, Judge Rofes i Pujol continued to hold office and the constitution of the Chamber which delivered the judgment under appeal was improper. Moreover, the conditions set out in the second sentence of Article 27(3) of the Rules of Procedure of the Civil Service Tribunal were not met. In that context, the appellant also claims that, in adopting Decision 2016/454, the Council could not modify the procedure for the appointment of a judge to the Civil Service Tribunal laid down in Annex I to the Statute of the Court of Justice of the European Union, as it applies to the present dispute. That procedure could have been modified only in accordance with Article 281 TFEU, which provides for the participation of the European Parliament and the Court of Justice of the European Union.
30The Council disputes those arguments. The Chamber hearing the case was properly constituted. Decision 2016/454 is not unlawful. Contrary to the appellant’s claims, the Council was entitled to use the list at issue. It was not under an obligation to launch a new public call for applications each time a post became vacant at the Civil Service Tribunal. As is the practice in other international courts, it is possible to create a reserve list of candidates who may be appointed when a post becomes vacant. Consequently, the Council was entitled to draw from the list of candidates at issue to appoint a judge to the Civil Service Tribunal, without the prior publication of a new vacancy notice. As long as that list contained a sufficient number of candidates, it was entitled to choose to draw from it or to publish a new public call for applications. It enjoyed discretion in that regard. Neither Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7), nor its previous practice prevented it from doing so. Contrary to the appellant’s claims, the Council neither failed to have regard to Annex I to the Statute of the Court of Justice of the European Union, as it applies to the present dispute, nor modified it.
31In the context of the first ground of appeal, the appellant claims that, in essence, the judgment under appeal was delivered by a chamber which had been improperly constituted, because the procedure for the appointment of one of the judges who sat in that chamber was flawed. In that context, she claims that the appointment procedure for the judge who was appointed to the post held by Judge Rofes i Pujol was improper.
32In the light of those arguments, it is appropriate to examine, first, whether the judge whose appointment procedure is covered by the appellant’s arguments (‘the judge at issue’) sat in the Chamber which delivered the judgment under appeal, second, whether the procedure for the appointment of that judge was flawed and, if so, third, what is the impact of such a flawed procedure on the validity of the composition of that Chamber.
33In the first place, it is appropriate to examine whether the judge at issue sat in the Second Chamber of the Civil Service Tribunal which delivered the judgment under appeal.
34In that context, in the first place, it must be noted that, when it delivered the judgment under appeal, the Second Chamber of the Civil Service Tribunal was composed of Judge Bradley, Judge Sant’Anna and Judge Kornezov (see paragraphs 13 and 16 above).
35In the second place, it must be pointed out that Judge Bradley was not appointed as a judge to the Civil Service Tribunal by Decision 2016/454 and cannot therefore be the judge at issue. Conversely, Judge Sant’Anna and Judge Kornezov were appointed as judges to the Civil Service Tribunal by that decision.
36In the third place, it must be recalled that the three candidates who were appointed as judges to the Civil Service Tribunal by Decision 2016/454 are Mr Van Raepenbusch, Mr Sant’Anna and Mr Kornezov. As is apparent from the enacting terms and recital 5 of Decision 2016/454, Mr Van Raepenbusch was the first candidate to be appointed by the Council and was confirmed in his post for a new term of office with effect from the day after the end of his previous term of office, namely 1 October 2014. Accordingly, Mr Van Raepenbusch was not appointed to the post held by Judge Rofes i Pujol and is therefore not the judge at issue.
37In the fourth place, it must be noted that the other two candidates who were appointed as judges to the Civil Service Tribunal by Decision 2016/454 are Mr Sant’Anna and Mr Kornezov and that one of them is therefore the judge at issue. Both those judges sat in the Second Chamber of the Civil Service Tribunal, which delivered the judgment under appeal.
38Consequently, it must be concluded that the judge at issue sat in the Second Chamber of the Civil Service Tribunal, which delivered the judgment under appeal.
39Second, the appellant’s arguments aimed at demonstrating that the procedure for the appointment of the judge at issue was flawed must be examined
40In that context, it must be noted that, in accordance with the fourth paragraph of Article 257 TFEU, the members of the specialised courts are to be chosen from persons whose independence is beyond doubt and who possess the ability required for appointment to judicial office. They are to be appointed by the Council, acting unanimously.
41According to the third subparagraph of Article 2(1) of Annex I to the Statute of the Court of Justice of the European Union, as it applies to the present dispute, any vacancy was to be filled by the appointment of a new judge to the Civil Service Tribunal for a period of 6 years.
42Under the first sentence of Article 3(1) of Annex I to the Statute of the Court of Justice of the European Union, as it applies to the present dispute, judges were appointed by the Council, acting in accordance with the fourth paragraph of Article 257 TFEU, after consulting the selection committee. According to the second sentence of Article 3(1) of that annex, when appointing judges, the Council was to ensure a balanced composition of the Civil Service Tribunal on as broad a geographical basis as possible from among nationals of the Member States and with respect to the national legal systems represented.
43It is apparent from the first sentence of Article 3(2) of Annex I to the Statute of the Court of Justice of the European Union, as it applies to the present dispute, that any person holding Union citizenship and fulfilling the conditions laid down in the fourth paragraph of Article 257 TFEU could submit an application. Under the second sentence of Article 3(2) of that annex, the Council, acting on a recommendation from the Court of Justice of the European Union, was to determine the conditions and the arrangements governing the submission and processing of such applications.
44According to the first sentence of Article 3(4) of Annex I to the Statute of the Court of Justice of the European Union, as it applies to the present dispute, the selection committee was to give an opinion on candidates’ suitability to perform the duties of judge at the Civil Service Tribunal and to append to that opinion a list of candidates having the most suitable high-level experience. According to the third sentence of Article 3(4) of that annex, that list had to contain the names of at least twice as many candidates as there are judges to be appointed by the Council.
45It is in the light of those provisions that it is necessary to examine the appellant’s argument alleging that the procedure for the appointment of the judge at issue was flawed, because the Council appointed that judge to the post held by Judge Rofes i Pujol by drawing from the list of candidates at issue, although that list had not been established with a view to appointing a judge to that post.
46In that regard, in the first place, it must be noted that, according to settled case-law, even where an institution has a wide discretion concerning the appointment of a candidate, that wide discretion must be exercised in full compliance with all the relevant rules, that is to say, not only with the vacancy notice but also with any procedural rules the institution may have adopted for the exercise of its discretion. Thus, the vacancy notice and the rules applicable to the appointment procedure form part of the legal framework which the institution must strictly observe in the exercise of its wide discretion (see, to that effect, judgments of 4 July 2006, Tzirani v Commission, T‑88/04, EU:T:2006:186, paragraph 78, and of 11 July 2007, Konidaris v Commission, T‑93/03, EU:T:2007:209, paragraph 121).
47That principle was intended to apply also in the context of the procedure for the appointment of a judge to the Civil Service Tribunal, when the Council appointed a judge by drawing from a list of candidates which had been established following a public call for applications.
48Therefore, the Council had to comply not only with the legal framework constituted by the provisions referred to in paragraphs 40 to 44 above, but also with the framework stemming from the public call for applications of 3 December 2013 (see paragraph 4 above).
49As is apparent from that public call for applications, that call had been launched with a view to appointing two judges to the posts held by Judge Van Raepenbusch and Judge Kreppel, and not with a view to appointing a third judge to the post held by Judge Rofes i Pujol.
50Accordingly, the list established following the public call for applications of 3 December 2013 could only be used in order to fill the vacant posts held by Judge Van Raepenbusch and Judge Kreppel.
51It follows that, by using that list in order to fill the third vacant post, held by Judge Rofes i Pujol, the Council failed to have regard to the legal framework laid down by the public call for applications of 3 December 2013. It must be recalled that, according to the enacting terms and Recital 5 of Decision 2016/454, the Council appointed as judges of the Civil Service Tribunal, in the first place, Mr Van Raepenbusch, in the second place, Mr Sant’Anna and, in the third place, Mr Kornezov. Although the Council was entitled to draw from that list so far as concerns the first two appointments, it was not entitled to do so as regards the third appointment.
52In the second place, it must be noted that the use of the list of candidates at issue, which had been established by the selection committee with a view to appointing two judges to the posts held by Judge Van Raepenbusch and Judge Kreppel for a period of six years starting on 1 October 2014 in order to fill the vacant post held by Ms Rofes i Pujol, did not comply with the rules governing the procedure for the appointment of judges to the Civil Service Tribunal mentioned in paragraphs 40 to 44 above.
53In that context, it must be noted that, under the third sentence of Article 3(4) of Annex I to the Statute of the Court of Justice of the European Union, the list of candidates had to contain the names of at least twice as many candidates as there are judges to be appointed by the Council. It follows that a public call for applications launched with a view to establishing that list had to identify the vacant posts. However, the public call for applications of 3 December 2013 was restricted to the vacant posts held by Judge Van Raepenbusch and Judge Kreppel, but did not cover the post held by Ms Rofes i Pujol.
54Moreover, it must be noted that, in accordance with the first sentence of Article 3(2) of Annex I to the Statute of the Court of Justice of the European Union, as it applies to the present dispute, any person who holds Union citizenship, whose independence is beyond doubt and who possesses the ability required for appointment to judicial office could submit an application. Moreover, it must be recalled that, under the second sentence of Article 3(4) of that annex, the list established by the selection committee had to indicate the candidates having the most suitable high-level experience. It follows that one of the objectives pursued by those provisions was to enable all eligible candidates to submit their applications, in order to ensure that the candidates appearing on the list of candidates established by the selection committee were those with the most suitable high-level experience.
55An approach which does not fully ensure the attainment of that objective cannot therefore be regarded as compliant with the rules governing the procedure for the appointment of judges to the Civil Service Tribunal.
56It cannot be ruled out that the use of the list of candidates at issue, which had been established with a view to filling the vacant posts held by Judge Van Raepenbusch and Judge Kreppel, had the effect of excluding some of the potential candidates, namely those who had not participated in the public call for applications for those posts, but who intended to submit their applications for the post held by Judge Rofes i Pujol. As regards those potential candidates, first, it must be noted that, under the second sentence of Article 3(1) of Annex I to the Statute of the Court of Justice of the European Union, as it applies to the present dispute, when appointing judges, the Council had to ensure a balanced composition of the Civil Service Tribunal on as broad a geographical basis as possible from among nationals of the Member States and with respect to the national legal systems represented. Having regard to the criteria the Council had to observe in the context of making a choice, it cannot be ruled out that, taking into account the need to respect a geographical balance, legal professionals of certain Member States, for example Spanish citizens, may have decided not to take part in the public call for applications covering the posts held by Judge Van Raepenbusch and Judge Kreppel because there was already a Spanish Member sitting at the Civil Service Tribunal, namely Judge Rofes i Pujol. Second, it cannot be ruled out that, for legitimate reasons, potential eligible candidates with relevant experience decided not to submit their application for a term of office starting on 1 October 2014, but would have been inclined to do so for a term of office starting on 1 September 2015.
57Finally, it must be noted that, at the time of the launch of the public call for applications of 3 December 2013 for the purpose of appointing two judges to the posts held by Judge Van Raepenbusch and Judge Kreppel, potential candidates for the post held by Judge Rofes i Pujol could not have expected that the list established by the selection committee would subsequently be used to fill the vacant post held by Judge Rofes i Pujol.
58In the light of those considerations, it must be found that the procedure for the appointment of the judge at issue was improper, not only because the Council did not comply with the legal framework laid down by the public call for applications of 3 December 2013 but also because the Council’s approach’s was not consistent with the rules governing the appointment of a judge to the Civil Service Tribunal referred to in paragraphs 40 to 44 above.
59None of the arguments put forward by the Council can call that finding into question.
60In the first place, it is necessary to reject the Council’s argument based on the fact that the condition laid down in the third sentence of Article 3(4) of Annex I to the Statute of the Court of Justice of the European Union, as it applies to the present dispute, according to which the list had to contain the names of at least twice as many candidates as there are judges to be appointed by the Council, had been satisfied, since the names of six candidates appeared on that list. In that regard, it is sufficient to note that it was not the only condition which had to be satisfied in the context of the procedure for the appointment of a judge to the Civil Service Tribunal.
61In the second place, in so far as the Council claims that it had a wide discretion, it is sufficient to recall that that discretion did not enable it to disregard either the legal framework stemming from the public call for applications of 3 December 2013, or the provisions governing the procedure for the appointment of a judge to the Civil Service Tribunal mentioned in paragraphs 40 to 44 above.
62In the third place, the Council’s argument that it is not bound by its previous practice must be rejected. In that regard, it is sufficient to note that the findings set out in paragraphs 33 to 58 above are not based on a comparison of the Council’s approach concerning the appointment of the judge at issue with its previous practice, but on the finding that that approach was not consistent with the applicable legal framework.
63In the fourth place, the Council puts forward arguments aimed at demonstrating that, in accordance with the relevant provisions, it was entitled to draw up a reserve list which could be used for the purpose of filling the vacant posts of judges at the Civil Service Tribunal. In that regard, it must be noted that, in the present context, the relevant question is not whether the Council was entitled to draw up such a reserve list, but rather whether it was entitled to fill the vacant post held by Judge Rofes i Pujol by appointing a candidate by drawing from a list that had not been established for that purpose. Consequently, that argument must also be rejected, without there being any need to answer the question whether the Council was entitled to draw up such a reserve list.
64Therefore, it must be found that the procedure for the appointment of the judge at issue was flawed and it cannot moreover be ruled out that, had a public call for applications for the vacant post held by Judge Rofes i Pujol been launched, candidates who had not taken part in the public call for applications of 3 December 2013 would have applied and that, in that case, the selection committee would have made a different choice. Accordingly, it cannot be ruled out that the irregularities found may have had an effect on the decision to appoint the judge at issue to the post held by Judge Rofes i Pujol.
65Third, it is therefore necessary to examine whether the flaws in the procedure for the appointment of the judge at issue are such as to affect the proper composition of the Second Chamber of the Civil Service Tribunal which delivered the judgment under appeal.
66In that context, it must be borne in mind that, according to the case-law of the Court, when the proper constitution of the court which delivered the judgment at first instance is contested and the challenge is not manifestly devoid of merit, the appeal court is required to verify that the court was properly constituted. A ground alleging the irregular constitution of the panel of judges is a ground involving a question of public policy, which must be examined by the appeal court of its own motion, even if this irregularity was not invoked at first instance (see, to that effect, judgments of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraphs 44 to 50).
67As is apparent from the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, one of the requirements concerning the composition of the Chamber is that courts must be independent, impartial and previously established by law.
68The principle of the lawful judge, the objective of which is to guarantee the independence of judicial power with respect to the executive, stems from that requirement, which must be interpreted as meaning that the composition of the court and its jurisdiction must be regulated beforehand by legal provisions (see, to that effect, judgment of 13 December 2012, Strack v Commission, T‑199/11 P, EU:T:2012:691, paragraph 22).
69In that context, it should be recalled that, under the first sentence of Article 52(3) of the Charter of Fundamental Rights, in so far as the Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), their meaning and scope are to be the same as those laid down by that convention.
70It should also be recalled that, under the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter of Fundamental Rights, when interpreting the rights set out in that charter, the explanations drawn up as a way of providing guidance in its interpretation (OJ 2007 C 303, p. 17) are to be given due regard by the European Union judicature. As regards the interpretation of Article 47 of the Charter of Fundamental Rights, those explanations state:‘In Union law, the right to a fair hearing is not confined to disputes relating to civil law rights and obligations. That is one of the consequences of the fact that the Union is a community based on the rule of law as stated by the Court in Case 294/83, ‘Les Verts’ v European Parliament (judgment of 23 April 1986 [1986] ECR 1339). Nevertheless, in all respects other than their scope, the guarantees afforded by the ECHR apply in a similar way to the Union.’
71It follows that, as regards the interpretation of the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights, account should be taken of the guarantee afforded by the first sentence of Article 6(1) of the ECHR, which also lays down the principle of the lawful judge.
72According to the case-law of the European Court of Human Rights (‘the ECtHR’), the principle of the lawful judge enshrined in the first sentence of Article 6(1) of the ECHR reflects the principle of the rule of law, from which it follows that a judicial body must be set up accordance with the intention of the legislature (see, to that effect, ECtHR, 27 October 2009, Pandjikidzé and Others v. Georgia, CE:ECHR:2009:1027JUD003032302, paragraph 103, and 20 October 2009, Gorguiladzé v. Georgia, CE:ECHR:2009:1020JUD000431304, Paragraph 67).
73According to the ECtHR, a court must thus be established in accordance with the legal provisions on the establishment and competence of judicial bodies and with any other provision of national law that would render, if it is not complied with, the involvement of one or more judges in the examination of the case improper. This includes in particular provisions relating to the mandates, incompatibilities and disqualification of judges (see, to that effect, ECtHR, 27 October 2009, Pandjikidzé and Others v. Georgia, CE:ECHR:2009:1027JUD003032302, paragraph 104, and 20 October 2009, Gorguiladzé v. Georgia, CE:ECHR:2009:1020JUD000431304, paragraph 68).
74As it is apparent from the case-law of the ECtHR, the principle of the lawful judge requires compliance with the provisions governing the procedure for the appointment of judges (see, to that effect, ECtHR, 9 July 2009, Ilatovskiy v. Russia, CE:ECHR:2009:0709JUD000694504, paragraphs 40 and 41).
75Indeed, it is not only essential that judges are independent and impartial, but also that the procedure for their appointment appears to be so. It is for that reason that the rules for the appointment of a judge must be strictly adhered to. Otherwise, the confidence of litigants and the public in the independence and impartiality of the courts might be eroded (see, to that effect, decision of the EFTA Court of 14 February 2017, Pascal Nobile v DAS Rechtsschutz-Versicherungs, E-21/16, paragraph 16).
76The question whether the flaws in the procedure for the appointment of the judge at issue are such as to affect the proper composition of the Second Chamber of the Civil Service Tribunal which delivered the judgment under appeal must be considered in the light of those principles.
77In that regard, it must be stated that it is apparent from Recitals 1 to 6 of Decision 2016/454, which are reproduced in paragraph 11 above, that the Council was fully aware that the list of candidates at issue had not been established with a view to appointing a judge to the post held by Ms Rofes i Pujol. It nevertheless decided to use the list for that purpose. It therefore follows from the appointment itself that the Council deliberately disregarded the legal framework laid down by the public call for applications of 3 December 2013 and the rules governing the appointment of judges to the Civil Service Tribunal.
78Accordingly, having regard to the importance of compliance with the rules governing the appointment of a judge for the confidence of litigants and the public in the independence and impartiality of the courts, the judge at issue cannot be regarded as a lawful judge within the meaning of the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights.
79Consequently, the first ground of appeal, alleging that the constitution of the Second Chamber of the Civil Service Tribunal, which delivered the judgment under appeal, was improper must be upheld.
80In the light of those considerations, the judgment under appeal must be set aside in its entirety, without there being any need to examine the second and third grounds of appeal.
Consideration of the action at first instance
81Under Article 4 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), where the General Court sets aside a decision of the Civil Service Tribunal but considers that the state of the proceedings does not permit a decision, it must refer the case to a Chamber other than that which ruled on the appeal.
82In the present case, the action at first instance does not permit judgment to be given. Indeed, first, the General Court cannot rely on factual findings made by a Chamber of the Civil Service Tribunal which has been improperly constituted and, second, it is not for the General Court, in the context of its role as appeal court, to carry out itself an assessment of the facts.
83Accordingly, it is necessary to refer the case to a Chamber other than that which ruled on the present appeal so that the General Court may rule at first instance on the action brought before the Civil Service Tribunal by the appellant.
Costs
84Since the case has been referred back to another Chamber of the General Court, the costs relating to the present appeal proceedings must be reserved.
Operative part
On those grounds,THE GENERAL COURT (Appeal Chamber)hereby:
1.Sets aside the judgment of the Civil Service Tribunal (Second Chamber) of 28 June 2016, FV v Council (F‑40/15);
2.Refers the action to a Chamber of the General Court other than that which has ruled in the present appeal;
3.Orders that the costs be reserved.
Delivered in open court in Luxembourg on 23 January 2018.
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