OPINION OF ADVOCATE GENERAL
WATHELET
delivered on 19 January 2016 (1)
Case C‑566/14 P
Jean-Charles Marchiani
v
European Parliament
(Appeal — Member of the European Parliament — Parliamentary assistance allowances — Recovery of sums unduly paid — Regulation (EU, Euratom) No 966/2012 — Delegated Regulation (EU) No 1268/2012 — Limitation — Reasonable time — Review judgment in Arango Jaramillo and Others v EIB (C‑334/12 RX-II, EU:C:2013:134) — Judgment in Nencini v Parliament (C‑447/13 P, EU:C:2014:2372))
1. By his appeal, Mr Marchiani asks the Court to set aside the judgment of the General Court of the European Union of 10 October 2014 in Marchiani v Parliament (T‑479/13, EU:T:2014:866, ‘the judgment under appeal’), by which the General Court dismissed his action for annulment of the decision of the Secretary-General of the European Parliament of 4 July 2013 regarding the recovery of a sum of EUR 107 694.72 (‘the contested decision’) and of the related debit note of 5 July 2013 (‘the debit note’).
2. In the fourth ground put forward in support of his appeal Mr Marchiani complains that the General Court committed several errors of law in respect of the limitation period for the entitlements to which the contested decision relates. The appellant has not drafted his appeal particularly clearly. However, in the fourth ground of appeal the fourth part may be identified as concerning more specifically an assessment of the reasonable period principle, which applies where no provision of EU law lays down the period within which an application or an action must be lodged.
3. That question was carefully examined by the Court of Justice in the context of a review judgment (Arango Jaramillo and Others v EIB (C‑334/12 RX-II, EU:C:2013:134). (2) It was also analysed more recently and in a context similar to that of the present appeal in the judgment in Nencini v Parliament (C‑447/13 P, EU:C:2014:2372), although the approaches taken by the Court in those two judgments may appear to conflict with one another.
4. That is why, in accordance with the wishes of the Court of Justice, the present Opinion will be limited to an analysis of that specific question.
I – Legal framework
A – The Charter
5. According to paragraph 1 of Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which is entitled ‘Right to good administration’, ‘every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union’.
B – Regulation (EU, Euratom) No 966/2012
6. Article 81 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002, (3) entitled ‘Limitation period’, provides:
‘1. Without prejudice to the provisions of specific regulations and the application of Decision 2007/436/EC, Euratom, entitlements of the Union in respect of third parties and entitlements of third parties in respect of the Union shall be subject to a limitation period of five years.
2. The Commission shall be empowered to adopt delegated acts in accordance with Article 210 concerning detailed rules on the limitation period.’
C – Delegated Regulation (EU) No 1268/2012
7. Article 93 of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation No 966/2012 (4) is entitled ‘Rules for limitation periods’.
8. The first subparagraph of Article 93(1) reads: ‘the limitation period for entitlements of the Union in respect of third parties shall begin to run on the expiry of the deadline communicated to the debtor in the debit note as specified in Article 80(3)(b)’.
II – Summary of the relevant facts according to the judgment under appeal
9. Mr Marchiani was a Member of the European Parliament from 20 July 1999 to 19 June 2004. Between 2001 and 2004 the appellant employed as his parliamentary assistants Ms T. and Mr T., and between 2002 and 2004, Ms B.
10. On 30 September 2004, an investigating judge at the Tribunal de Grande Instance de Paris (France) informed the President of the European Parliament of the possibility that the duties performed by Ms T. and Mr T. between 2001 and 2004 bore no actual relation to those of a parliamentary assistant.
11. By decision of 4 March 2009, following a hearing of both sides and having consulted the Quaestors on 14 January 2009, the Secretary-General of the European Parliament (‘the Secretary-General’) established that an amount of EUR 148 160.27 had been unduly paid to the appellant under Article 14 of the Rules governing the payment of expenses and allowances to Members of the European Parliament (‘the PEAM Rules’) and requested the Parliament’s authorising officer to take the necessary steps to recover that amount.
12. The same day, the Parliament’s authorising officer sent the appellant a debit note claiming reimbursement of EUR 148 160.27. On 14 August 2009, the European Anti-Fraud Office (OLAF), after the file on the irregularities concerned had been sent to it by the Secretary-General on 21 October 2008, notified the Parliament and the appellant that an investigation had been opened.
13. On 14 October 2011 OLAF, after questioning and hearing the appellant on 6 July 2011, sent the Parliament a copy of its final investigation report. That report found that the appellant had unduly received allowances in respect of the duties performed by Ms T., M. T. and Ms B. and recommended that the Parliament should take the necessary steps to recover the sums due. On 25 October 2011, OLAF notified the applicant that the investigation was closed.
14. On 28 May 2013, on the basis of OLAF’s report, the Secretary-General informed the appellant, under Article 27(3) of the PEAM Rules, of its intention to recover all the sums paid by the Parliament in connection with work as parliamentary assistants allegedly carried out by Ms T., Mr T. and Ms B., and invited him to submit his comments in that regard.
15. On 25 June 2013, the appellant was questioned by the Secretary-General at a hearing. On 27 June 2013, the appellant sent the Secretary-General a transcript of the hearing. The Quaestors were consulted by the Secretary-General on 2 July 2013.
16. In the contested decision, the Secretary-General established that, whilst the decision of 4 March 2009 provided for the recovery of a sum of EUR 148 160.27, a further amount of EUR 107 694.72 had been unduly paid to the appellant, and he requested the Parliament’s authorising officer to take the necessary steps to recover the latter amount. In essence, the Secretary-General considered that the appellant had not supplied evidence to show that Ms T., Mr T. and Ms B. had carried out the work of a parliamentary assistant within the meaning of Article 14 of the PEAM Rules. Noting that the sums paid by way of the parliamentary allowances represented a total of EUR 255 854.99, some of which had been the subject of the decision of 4 March 2009, the contested decision established that a further amount of EUR 107 694.72 did not conform to the PEAM Rules and should be recovered.
17. On 5 July 2013, the Parliament’s authorising officer issued debit note No 2013-807 ordering the recovery of EUR 107 694.72 by 31 August 2013.
III – Procedure before the General Court and the judgment under appeal
18. By application lodged at the Registry of the General Court on 3 September 2013, the appellant brought an action for annulment, first, of the contested decision in so far as by that decision the Secretary-General ordered recovery from the appellant of the sum of EUR 107 694.72 and, secondly, of the related debit note.
19. The appellant put forward five pleas in law in support of his action. The first plea alleged infringement of the procedure laid down in the Decision of the Bureau of the European Parliament of 19 May 2008 and 9 July 2008 concerning Implementing Measures for the Statute for Members of the European Parliament (5) and breach of the adversarial principle and of the principle that the rights of the defence must be observed. The second plea alleged incorrect application of the PEAM Rules, the third alleged an error of assessment of the documentary evidence and the fourth alleged lack of impartiality on the part of the Secretary-General. Lastly, the fifth plea alleged that recovery of the sums in question was time-barred. As he took the view that there was a time-bar on recovery of the sums in question the appellant also claimed that the General Court should annul the debit note.
20. By the judgment under appeal, the General Court, without ruling on the Parliament’s arguments concerning the inadmissibility of the action, dismissed on the merits the appellant’s claims for annulment of the contested decision and the debit note and ordered the appellant to pay the costs.
IV – The fourth part of the fourth ground of appeal and the forms of order sought
21. The fourth ground Mr Marchiani puts forward in support of his appeal thus alleges several errors of law on the part of the General Court in its assessment of the rules governing the limitation period for the entitlements to which the contested decision relates.
22. The fourth part of that ground of appeal concerns, specifically, the reasonable period principle. According to the appellant, given the importance of the case and its lack of complexity, the General Court ought to have found that that principle had been infringed in the present case.
23. The Parliament contends that the appeal should be dismissed as being inadmissible and, in any event, as being unfounded. As regards the fourth part of the fourth ground of appeal, it maintains that the reasonable period principle was considered by the General Court although it had not been invoked by the appellant. That Court should not have analysed it therefore, especially since that principle is not one of the principles that may be raised by an EU Court of its own motion.
24. In the alternative, the Parliament contends, lastly, in the light of the judgment in Nencini v Parliament (C‑447/13 P, EU:C:2014:2372) that it was not until the date of OLAF’s final report that its claim could be regarded as being certain, of a fixed amount and due, as required by Article 78(2) of Regulation No 966/2012 and Article 81(b) of Delegated Regulation No 1268/2012. At the date of the contested decision, the reasonable period of five years laid down by the Court of Justice in the judgment in Nencini v Parliament (C‑447/13 P, EU:C:2014:2372) had thus not yet ended, so the principle was not infringed by the Parliament.
V – Assessment
A – Admissibility of the fourth part of the fourth ground of appeal
25. In the judgment under appeal, observance of the reasonable period principle was analysed by the General Court as follows: ‘assuming, for the sake of completeness, that by his arguments the appellant intends to complain that the Parliament failed to fulfil the requirements incumbent on it under the reasonable period principle’. (6)
26. The complaint which the appellant puts forward in his appeal in connection with the reasonable period principle should, accordingly, be regarded as ineffective. It is clear from the settled case-law of the Court of Justice that complaints directed against grounds of a decision of the General Court included purely for the sake of completeness cannot lead to the setting aside of the judgment and are therefore ineffective. (7)
27. However, it cannot be excluded that the General Court, despite stating that an examination would be made for the sake of completeness, in reality intended to examine in full the complaint that the Parliament acted out of time. If that were so, any error of law on the part of the General Court in the considerations devoted to the reasonable period principle might lead to the setting aside of the judgment under appeal.
28. That is moreover the approach which the Court of Justice appears to have adopted in the case giving rise to the judgment in Nencini v Parliament (C‑447/13 P, EU:C:2014:2372). In its judgment the General Court had also examined the complaint regarding a reasonable period ‘in so far as ... the applicant … intended to complain that the Parliament had failed to fulfil its obligations under the reasonable period principle’. (8) The arguments relating to those considerations of the General Court, which were put forward in connection with the first ground of Mr Nencini’s appeal, were not rejected by the Court of Justice.
29. I therefore proceed on the premiss that the Court of Justice will not reject as ineffective the appellant’s complaint concerning the interpretation and application of the reasonable period principle.
B – Preliminary remarks on the definition of ‘reasonable period’ and of ‘good administration’
30. In support of his appeal, the appellant relies on ‘failure to act within a reasonable period’. (9) Before examining that ground of appeal, I should like to take stock of how ‘reasonable period’ is defined in EU law.
1. Reasonable period
31. There has been some vagueness as to what a ‘reasonable period’ is in EU law. Is it a general principle of law per se or is it a component of other general principles, such as those of good administration, legal certainty, the protection of legitimate expectations or the rights of the defence, or is it even a fundamental right? (10)
32. However, it seems to me that these questions have limited impact. The reasonable period principle is undoubtedly linked intrinsically to the principle of legal certainty (11) and to the right to good administration. (12) It is also a general principle of EU law, recognised as such by the Court of Justice. (13)
33. As such, it forms part of the EU legal order and breach of it constitutes infringement of an essential procedural requirement or, at the very least, infringement of the Treaties or ‘of any rule of law relating to their application, or misuse of powers’, within the meaning of the second paragraph of Article 263 TFEU. (14)
2. Good administration
34. In addition, the requirement to observe the reasonable period principle currently appears expressly in two articles of the Charter.
35. First of all, Article 41 of the Charter, entitled ‘Right to good administration’, confers on every person ‘the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union’. (15) Secondly, Article 47 of the Charter, concerning the ‘Right to an effective remedy and to a fair trial’ states that everyone is entitled to ‘a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law’.
36. The reasonable period principle has thus been formally incorporated into the right to good administration under EU law.
37. Questions have also been raised concerning the scope and definition of ‘good administration’: is it a generic term, a specific principle, a general principle or a fundamental right? (16) The title and wording of Article 41 of the Charter, however, put an end to such uncertainty. It is the ‘right to good administration’, (17) a right [which] includes inter alia ... the right of every person to be heard before any individual measure which would affect him or her adversely is taken, the right of every person to have access to his or her file, [or] the obligation of the administration to give reasons for its decisions’. (18)
38. That formal development is, moreover, no more than the enshrinement of a general principle of law previously recognised by the Court of Justice. According to the explanations relating to the Charter of Fundamental Rights, (19) Article 41 of the Charter is ‘based on the existence of the Union as subject to the rule of law whose characteristics were developed in the case-law which enshrined inter alia good administration as a general principle of law’. Under Article 52(7) of the Charter, those explanations are to be ‘given due regard by the courts of the Union and of the Member States’.
39. Whether it is as a general principle of law or as a component of the fundamental right to good administration, the right to have his or her affairs handled within a reasonable time by the institutions of the Union may therefore, unequivocally, be relied on by a citizen for his or her own benefit.
C – Calculation of a reasonable period in the case-law of the Court of Justice
40. Assessment of a reasonable period was the subject of an analysis that may be described as an analysis of principle in the review judgment in Arango Jaramillo and Others v EIB (C‑334/12 RX-II, EU:C:2013:134). In that case, the Court of Justice held that it was necessary to carry out a review in order to determine whether the General Court’s interpretation, namely that the General Court was not required to take account of the particular circumstances of the individual case when assessing whether the period within which an action was to be brought by a member of the European Investment Bank (EIB) staff for annulment of a measure adopted by the EIB was reasonable, was consistent with the case-law of the Court of Justice. (20)
41. The matter of the period within which an EU institution must send a debit note following the date of the origin of the debt in question was addressed in the judgment in Nencini v Parliament (C‑447/13 P, EU:C:2014:2372).
42. It therefore seems appropriate to summarise those two judgments before attempting to derive from them a general rule that might be applicable in the present case.
1. The review judgment in Arango Jaramillo and Others v EIB
43. In the judgment in Arango Jaramillo and Others v EIB (T‑234/11 P, EU:T:2012:311) the General Court had endorsed the interpretation of the Civil Service Tribunal according to which, in the absence of any provision setting the time-limits for bringing proceedings applicable to disputes between the EIB and its members of staff, any action brought by an EIB staff member after the expiry of a three-month time limit, extended on account of distance by a single period of ten days, was, as a general rule, to be considered not to have been brought within a reasonable period. (21)
44. That interpretation had been made by reference to Article 91(3) of the Staff Regulations of Officials of the European Union, (22) which expressly limits to three months the period within which an official may bring an action for annulment of a measure adversely affecting him. Therefore, according to the General Court, the rule following from that interpretation was only ‘the [specific application of] the principle [of] a reasonable period’ (23) to disputes between the EIB and its staff and ‘is based on a general presumption that a three-month time limit is, as a general rule, sufficient to enable EIB staff to assess the legality of EIB measures adversely affecting them and, if appropriate, to prepare their case, [and does not require] the [Court] of the European Union responsible for applying that rule … either to take account of the particular circumstances of each individual case or, in particular, to weigh up the specific interests at stake’. (24)
45. It was those findings specifically which were reviewed.
46. At the end of its analysis, the Court of Justice held that the concept of a ‘reasonable period’ was to be applied uniformly, whatever the context in which the matter arose. According to that Court, ‘whilst it is true that the Court’s case-law … concerns the reasonableness of the duration of an administrative procedure where no provision of EU law lays down a specific period of time for the conduct of that procedure, it is nevertheless appropriate to apply the concept of a ‘reasonable period’ in the same way to an action or an application in respect of which no provision of EU law has prescribed the period of time within which that action or that application must be brought’. (25)
47. According to the case-law referred to by the Court of Justice, ‘where the duration of a procedure is not set by a provision of EU law, the “reasonableness” of the period of time … is to be appraised in the light of all of the circumstances specific to 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’. (26) It follows accordingly from that requirement for a specific appraisal that ‘the reasonableness of a period 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’. (27)
48. The Court of Justice, therefore, regarded the General Court’s interpretation of the time-limit for the EIB members of staff to bring an action against the measures adversely affecting them as being an alteration of the concept of a ‘reasonable period’ affecting the consistency of EU law. (28)
2. The judgment in Nencini v Parliament
49. The judgment in Nencini v Parliament (C‑447/13 P, EU:C:2014:2372) cannot be ignored. Mr Nencini, a former Member of the European Parliament, had brought before the General Court an action for annulment of the decision of the Secretary-General seeking the recovery of certain expenses which had been unduly paid to him during his parliamentary mandate. The point in dispute before the Court of Justice in the appeal was therefore similar to that before the Court in the present case, since it concerned the limitation period for the Parliament’s entitlement against a former Member and the involvement of a reasonable period in the recovery of that debt.
50. It is clear first of all, from a joint reading of the relevant provisions, that the limitation period for entitlements of the European Union against third parties starts to run on the expiry date indicated in the debit note. (29)
51. That is the time-limit applicable for recovery of the debt. However, the period within which that debit note must be sent to the debtor following the date of the origin of the debt in question is not specified. (30)
52. According to Advocate General Szpunar, there are some claims that are already payable at the time the creditor institution adopts the measure establishing the amount receivable. For claims of that kind, the limitation period laid down in the relevant legislation thus seems ‘insufficient as a means of protecting the debtor’s interests deriving from the principle of legal certainty, given that it starts to run on the date chosen by the creditor, which has no connection with the time at which the claim arises or becomes payable’. (31)
53. Confronted with that lacuna, (32) the Court of Justice held that ‘where the applicable texts are silent, the principle of legal certainty requires the institution concerned to [communicate the debit note] within a reasonable time. Failing that, the authorising officer, to whom falls the task of determining, in the debit note, the final date for payment which, pursuant to the very terms of Article [93(1) of Delegated Regulation No 1268/2012], constitutes the point from which time starts to run, would be able freely to set the date of that starting point without any connection to the point at which the debt in question arose, which, clearly, would run counter to the principle of legal certainty and the objective of Article [81 of Regulation No 966/2012]’. (33)
54. However, where Advocate General Szpunar considered that the reasonable period could not be set by reference to a precise maximum limit, determined abstractly, (34) the Court of Justice held that ‘the period in which a debit note is communicated must be presumed to be unreasonable where that communication takes place outside a period of five years from the point at which the institution was, in normal circumstances, in a position to claim its debt’. (35)
55. Unless it can be shown that, ‘despite the efforts which [the institution] has made, the delay in acting was caused by the debtor’s conduct, particularly time-wasting manoeuvres or bad faith, … it must therefore be held that the institution has failed to fulfil the obligations on it under the reasonable period principle’. (36)
D – The criteria for uniform application of the reasonable period principle
1. General and abstract determination of the criteria for appraising a reasonable period
56. In the judgment in Nencini v Parliament (C‑447/13 P, EU:C:2014:2372), the Court of Justice thus set out a presumption that, outside a period of five years from the point at which the institution was, in normal circumstances, in a position to claim its debt, the reasonable period was exceeded.
57. That evaluation of a reasonable period as being a fixed period of five years might potentially be interpreted as a specific application of the reasonableness of that period that is limited to an individual case.
58. However, it is difficult to reconcile this reading of the judgment with its wording and structure and with the rules governing an appeal.
59. I note, first of all, that the Court of Justice used general and abstract terms in paragraph 49 of that judgment when it held that ‘the period in which a debit note is communicated must be presumed to be unreasonable where that communication takes place outside a period of five years from the point at which the institution was, in normal circumstances, in a position to claim its debt’. The Court also refers expressly in that paragraph to a ‘presumption [that] cannot be overturned’, except under certain conditions. (37)
60. The existence of a generally applicable rule seems also to be supported by the wording introducing the next paragraph. The words ‘[i]n the present case’, with which paragraph 50 of the judgment in Nencini v Parliament (C‑447/13 P, EU:C:2014:2372) begins, are intended to announce the application to the case concerned of the legal rule or principle which had just been stated.
61. Lastly, it is not, in principle, for the Court of Justice to analyse specific aspects of the dispute when determining an appeal. (38)
62. The only way to interpret the five-year ‘limit’ laid down in the judgment in Nencini v Parliament (C‑447/13 P, EU:C:2014:2372) in accordance with the findings upheld in the review judgment in Arango Jaramillo and Others v EIB (C‑334/12 RX-II, EU:C:2013:134, paragraphs 28 and 29) (39) would be to regard it as being a factor in determining where the burden of proof must lie.
63. Outside the period of five years from the point at which the institution was, in normal circumstances, in a position to claim its debt, it is for that institution to demonstrate that, in the light of the circumstances of the particular case, the reasonable period has not been exceeded. In that regard, the time-wasting manoeuvres of the debtor and his bad faith, elements that might be relied on by the institution, are no more than examples cited by the Court of Justice, as shown by the adverb ‘particularly’ which precedes them in paragraph 49 of the judgment in Nencini v Parliament (C‑447/13 P, EU:C:2014:2372).
64. On the other hand, if that ‘crucial limit’ has not yet been reached, it is up to the debtor to prove that the reasonable period has been exceeded on the basis of the criteria usually adopted by case-law, namely, in the light of all of the circumstances specific to the case, in particular, the importance of the case for the debtor, its complexity and the conduct of the parties to the case.
65. On the other hand, if, as it seems to me, paragraph 49 of the judgment in Nencini v Parliament (C‑447/13 P, EU:C:2014:2372) must be interpreted as stating a general and abstract rule, such an approach would give a result similar to that reached by the General Court in the case that gave rise to the review judgment in Arango Jaramillo and Others v EIB (C‑334/12 RX-II, EU:C:2013:134). In that judgment the Court of Justice described it as ‘distortion of the concept of a reasonable period’. (40)
66. As the Court noted in the review judgment in Arango Jaramillo and Others v EIB (C‑334/12 RX-II, EU:C:2013:134), the concept of a ‘reasonable period’ is ‘applicable regardless of the matter at issue’ (41) and appraisal of it may affect the consistency of EU law. (42)
67. The concept of a ‘reasonable period’ must therefore be applied uniformly, in whatever context the question arises, whether it is in a case where no provision of EU law lays down a specific period of time for the conduct of an administrative procedure or in the case of an action or an application in respect of which no provision of EU law has prescribed the period of time within which that action or that application must be brought. (43)
68. I therefore consider that the principles of interpretation and application of a reasonable period as summarised by the Court of Justice in the review judgment in Arango Jaramillo and Others v EIB (C‑334/12 RX-II, EU:C:2013:134) must be regarded as being established and predominant.
69. Although the review judgment in Arango Jaramillo and Others v EIB (C‑334/12 RX-II, EU:C:2013:134) and the judgment in Nencini v Parliament (C‑447/13 P, EU:C:2014:2372) were both delivered by a Chamber of five judges and the latter is the later judgment, the first of those two judgments was delivered in the context of a review procedure. The nature and objective of that exceptional procedure necessarily confer on it particular authority since an error of law on the part of the General Court found in such a judgment may constitute a risk of the unity or consistency of EU law being affected. (44)
70. In the present case, this means that ‘the reasonableness of a period cannot be determined by reference to a precise maximum limit determined in an abstract manner but, rather, must be appraised in each case on the basis of the relevant circumstances’. (45) That means that ‘where the duration of a procedure is not set by a provision of EU law, the “reasonableness” of the period of time … is to be appraised in the light of all of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties’. (46)
71. Although that interpretation is not one which offers the greatest degree of legal certainty, it seems to me to be the ‘emergency solution’ (47) which corresponds closest to the sharing of powers which must take place between the EU legislature and the courts. To fix precisely and definitively the length of a reasonable (or unreasonable) period would be closer to fixing a limitation period. That power, in my view, lies solely with the legislature. (48)
2. Assessment of a reasonable period in the judgment under appeal
72. If we examine the judgment under appeal, we see that the same principles are stated and applied in it by the General Court. According to the General Court, ‘action within a reasonable time is required in all cases where the applicable texts are silent on the matter and the principles of legal certainty and protection of legitimate expectations preclude the institutions from acting without any restriction as to time ..., bearing in mind that the “reasonableness” of the period of time is to be appraised in the light of all of the circumstances specific to 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’. (49)
73. Furthermore, the General Court was right to find in paragraph 83 of the judgment under appeal that there was no provision specifying the period within which a debit note should be sent, irrespective of the date of the origin of the debt in question.
74. Thus, the General Court did not err in law when it inferred from those findings, in paragraph 84 of the judgment under appeal, that it was necessary ‘to verify whether, in the present case, the Parliament ha[d] fulfilled its obligations under the reasonable period principle’.
75. That verification constitutes no more and no less than an analysis of the facts and evidence relied on by the parties. In other words, it is a factual assessment.
76. As I noted above and according to settled case-law, it is clear from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal lies on points of law only and that the General Court thus has exclusive jurisdiction to find and appraise the facts, except where the substantive inaccuracy of those findings is apparent from the documents submitted to it. The assessment of the facts is not therefore, other than in cases where the evidence produced before the General Court has been distorted, a question of law which is subject, as such, to review by the Court of Justice. (50)
77. The alleged distortion of the facts must be obvious from the documents in the case without it being necessary to undertake a fresh assessment of the facts and evidence. (51)
78. It is not clear from the evidence submitted to the Court of Justice that there has been distortion in the present case. No such distortion has moreover been alleged, and the appellant merely argues failure to act within a reasonable period and seeks a new examination of the evidence, such as the financial importance of the case and its complexity. (52)
79. If I had been competent to adjudicate on the facts I would undoubtedly not have appraised the reasonableness of the period at issue in the present case in the same way. That being said, however, the General Court did not distort the facts as they appeared from the documents submitted to it when it found, in paragraph 86 of the judgment under appeal, that, ‘after considering the information sent by a French investigating judge in September 2004 and following numerous exchanges with the appellant, the Parliament ha[d] acted with the necessary diligence and within a reasonable period, when passing the file to OLAF in October 2008, and implementing the procedure leading to the decision of 4 March 2009’. Nor did it distort the facts when it recognised that the Parliament had ‘following the opening of the OLAF investigation in August 2009 and the submission, on completion of an investigation procedure, of the OLAF report in October 2011 ... also acted with the necessary diligence and within a reasonable period when implementing the procedure leading to the contested decision’. (53)
80. On the other hand, although this was not argued by the appellant in support of his appeal, I will add for the sake of completeness that the General Court did err in law when it held, in paragraph 88 of the judgment under appeal, ‘that infringement of the reasonable period principle cannot result in annulment of a measure vitiated thereby unless the infringement in question affects the exercise of its addressee’s rights of defence’.
81. By requiring that the appellant’s rights of defence must be affected, the General Court ‘erred as to the consequences which must be drawn from the infringement of the reasonable period principle, where the EU legislature has adopted a general provision requiring the institutions to act within a specified period’, (54) such as Article 81 of Regulation No 966/2012.
82. Where the EU legislature has expressed itself accordingly, ‘[h]aving regard to the requirements of legal certainty and the protection of legitimate expectations which underlie the legislature’s intention, the case-law referred to by the General Court …, in accordance with which infringement of the reasonable period principle cannot result in annulment of the contested act unless that infringement affects the rights of the defence, is irrelevant to the present case’. (55)
83. However, since that ground was included by the General Court in the judgment under appeal only for the sake of completeness, finding fault with it would not lead to that judgment being set aside. This is all the more so since, unlike the case giving rise to the judgment in Nencini v Parliament (C‑447/13 P, EU:C:2014:2372), in the present case the General Court was right to reject infringement of the reasonable period principle on which that finding would necessarily be based.
VI – Conclusion
84. In the light of the above considerations, I consider that the fourth part of the fourth ground of appeal put forward by the appellant in support of his appeal is unfounded and that consequently it cannot lead to the judgment under appeal being set aside.