OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 19 December 2018 (1)(i)

Case C‑202/18

Ilmārs Rimšēvičs

v

Republic of Latvia

and

Case C‑238/18

European Central Bank

v

Republic of Latvia

(Action based on infringement of the second subparagraph of Article 14.2 of the Statute of the European System of Central Banks and of the European Central Bank — Decision of a national authority suspending the governor of the national central bank from office)

Table of contents

I. Introduction

II. Legal framework

A. European Union law

1. The Treaty on the Functioning of the European Union

2. The Statute of the European System of Central Banks and of the European Central Bank

B. Latvian law

1. The Code of criminal procedure

2. The Law on the Bank of Latvia

3. The Law on the Anti-Corruption Office

III. Background to the dispute

IV. Procedures before the Court and forms of order sought

V. Assessment

A. The scope of the action provided for in Article 14.2 of the Statute of the ESCB and of the ECB

1. The nature of the action

(a) Wording and origins

(b) Systematic and teleological interpretation

2. The defendant to the action

3. Interim conclusion

B. The Court’s jurisdiction to review the restrictive measures imposed on Mr Rimšēvičs by the KNAB

1. The jurisdiction of the Court

2. The measures imposed on Mr Rimšēvičs as relieving him from office for the purposes of Article 14.2 of the Statute of the ESCB and of the ECB

C. Substance

1. Infringement of Article 14.2 of the Statute of the ESCB and of the ECB

(a) Preliminary observations

(b) The concepts of conditions required for the performance of the duties of a governor of a central bank and of serious misconduct

(c) The evidence required in order to demonstrate that the conditions for relieving a governor from office are fulfilled

(1) A judgment on the merits delivered by an independent tribunal

(2) Sufficient evidence to enable the Court to be satisfied as to the facts

(d) Interim conclusion

2. The alleged infringement of the Protocol on the privileges and immunities of the European Union

3. The alleged infringement of Latvian law

D. Interim conclusion

VI. Costs

VII. Conclusion

I.      Introduction

1.        In what circumstances may a Member State of the European Union relieve the governor of its central bank from office?

2.        That is the question that arises in the present cases concerning Mr Ilmārs Rimšēvičs, the Governor of the Latvijas Banka (Bank of Latvia), who was suspended from office by a decision of the Korupcijas novēršanas un apkarošanas birojs (Anti-Corruption Office, Latvia) (‘the KNAB’) because he is suspected of influence peddling in favour of the Latvian bank Trasta Komercbanka. (2)

3.        The Court has been seised of that question, for the first time, on the basis of the jurisdiction conferred on it by Article 14.2 of Protocol (No 4) to the FEU Treaty on the Statute of the European System of Central Banks and of the European Central Bank (3) (‘the Statute of the ESCB and of the ECB’) to review decisions relieving the governors of the central banks of the Member States from office.

4.        That jurisdiction is based, in particular, on the fact that the governors of the central banks of the Member States whose currency is the euro, although appointed and relieved from office by the Member States, are also members of a body of an institution of the European Union, namely of the Governing Council of the European Central Bank (‘the Governing Council’). The Governing Council is the main decision-making body of the ECB and the Eurosystem (4) and it also plays an important role in the prudential supervision of credit institutions within the European Union. (5)

5.        The independence of the governors of the national central banks, like that of the ECB, is therefore given special protection, in particular because it is an essential condition of price stability, the main objective of the economic and monetary policy of the European Union, (6) the importance of which is underlined by the reference to it in Article 3 of the EU Treaty. (7)

II.    Legal framework

A.      European Union law

1.      The Treaty on the Functioning of the European Union

6.        Articles 129 to 131 TFEU provide:

‘Article 129

1.      The ESCB shall be governed by the decision-making bodies of the European Central Bank which shall be the Governing Council and the Executive Board.

2.      The Statute of the European System of Central Banks and of the European Central Bank (hereinafter referred to as “the Statute of the ESCB and of the ECB”) is laid down in a Protocol annexed to the Treaties.

…

Article 130

When exercising the powers and carrying out the tasks and duties conferred upon them by the Treaties and the Statute of the ESCB and of the ECB, neither the European Central Bank, nor a national central bank, nor any member of their decision-making bodies shall seek or take instructions from Union institutions, bodies, offices or agencies, from any government of a Member State or from any other body. The Union institutions, bodies, offices or agencies and the governments of the Member States undertake to respect this principle and not to seek to influence the members of the decision-making bodies of the European Central Bank or of the national central banks in the performance of their tasks.

Article 131

Each Member State shall ensure that its national legislation including the statutes of its national central bank is compatible with the Treaties and the Statute of the ESCB and of the ECB.’

7.        Articles 282 and 283 TFEU are worded as follows:

‘Article 282

1.      The European Central Bank, together with the national central banks, shall constitute the European System of Central Banks (ESCB). The European Central Bank, together with the national central banks of the Member States whose currency is the euro, which constitute the Eurosystem, shall conduct the monetary policy of the Union.

…

Article 283

1.      The Governing Council of the European Central Bank shall comprise the members of the Executive Board of the European Central Bank and the Governors of the national central banks of the Member States whose currency is the euro.

…’

2.      The Statute of the European System of Central Banks and of the European Central Bank

8.        Article 14 of the Statute of the ESCB and of the ECB is entitled ‘National central banks’ and provides:

‘14.1.      In accordance with Article 131 of the Treaty on the Functioning of the European Union, each Member State shall ensure that its national legislation, including the statutes of its national central bank, is compatible with these Treaties and this Statute.

14.2.      The statutes of the national central banks shall, in particular, provide that the term of office of a Governor of a national central bank shall be no less than five years.

A Governor may be relieved from office only if he no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct. A decision to this effect may be referred to the Court of Justice by the Governor concerned or the Governing Council on grounds of infringement of these Treaties or of any rule of law relating to their application. Such proceedings shall be instituted within two months of the publication of the decision or of its notification to the plaintiff or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.

14.3.      The national central banks are an integral part of the ESCB and shall act in accordance with the guidelines and instructions of the ECB. The Governing Council shall take the necessary steps to ensure compliance with the guidelines and instructions of the ECB, and shall require that any necessary information be given to it.

…’

B.      Latvian law

1.      The Code of criminal procedure

9.        Article 249(1) of the Kriminālprocesa likums (Code of criminal procedure, Latvia) is worded as follows:

‘(1)      If, while the restrictive measure is in force, its basis has become devoid of purpose or if its basis has changed, if the conditions or the conduct of the person have changed or if other circumstances which had determined the choice of the restrictive measure have been established, the person directing the proceedings shall take the decision to amend or withdraw the measure.’

10.      Article 262(1)(2) and (3) and Article 262(2) to (5) of the Code of criminal procedure is worded as follows:

‘(1)      During the preliminary stage of the procedure, an action against the decision taken by the person directing the proceedings may be brought against:

…

(2)      the prohibition on practising a specific professional activity;

(3)      the prohibition on leaving the national territory;

…

(2)      An action may be brought against the decision referred to in paragraph 1 of this Article only if the person on whom the restrictive measure was imposed is able to show that the terms of that measure cannot be enforced against him. The action may be lodged before the judge with responsibility for reviewing compliance with human rights either by the person himself, by his counsel or by his representative, within seven days of receipt of the copy of the decision imposing the restrictive measure.

(3)      A judge with responsibility for reviewing compliance with human rights shall examine a complaint in a written procedure within three working days. If necessary, the judge shall request court materials, and explanations of the person directing the proceedings or the complainant.

(4)      A judge with responsibility for reviewing compliance with human rights may by decision reject a complaint or require the person directing the proceedings to modify an applied restrictive measure or the provisions thereof within three working days, or determine the amount of a bail.

(5)      A copy of a decision taken by a judge with responsibility for reviewing compliance with human rights shall be sent to the person directing the proceedings, the person to whom the relevant restrictive measure has been applied and the complainant. No appeal shall lie against the decision.’

11.      Article 375(1) of the Code of criminal procedure states:

‘(1)      During the criminal proceedings, the material in the case file shall be covered by the secrecy of the investigation and the agents responsible for the criminal proceedings and also those to whom those agents show the material in question in accordance with the procedure provided for by the present Law shall be authorised to peruse it.’

2.      The Law on the Bank of Latvia

12.      Article 22 of the Likums par Latvijas Banku (Law on the Bank of Latvia) provides:

‘The Governor of the Bank of Latvia shall be appointed by the Parliament, on the recommendation of at least 10 of its members.

The Vice-Governor and the Members of the Board of the Bank of Latvia shall be appointed by the Parliament, on the recommendation of the Governor of the Bank of Latvia.

The Governor, the Vice-Governor and the Members of the Council of the Bank of Latvia shall be appointed for a term of six years. If a Member of the Council leaves office before the end of his term, a new Member of the Council of the Bank of Latvia shall be appointed for a term of six years.

The Parliament may relieve the Governor, the Vice-Governor and the Members of the Board of the Bank of Latvia from office before the expiry of the term provided for in the third paragraph of this Article only in the following cases:

1.      voluntary resignation;

2.      serious misconduct within the meaning of Article 14.2 [of the Statute of the ESCB and of the ECB];

3.      other grounds for relieving [the person concerned] from office provided for in Article 14.2 [of the Statute of the ESCB and of the ECB].

In the case referred to in point 2 of the fourth paragraph of this Article, the Parliament may decide to relieve the Governor, the Vice-Governor and the Members of the Board of the Bank of Latvia from office after the judgment pronouncing the conviction has taken effect.

The Governor of the Bank of Latvia may lodge an appeal against the decision of the Parliament to relieve him from office according to the procedure laid down in Article 14.2 [of the Statute of the ESCB and of the ECB]. The Vice-Governor or a Member of the Board of the Bank of Latvia may refer the decision of the Parliament to relieve them from office to the court specified for in the Code of administrative procedure.’

3.      The Law on the Anti-Corruption Office

13.      In the words of Article 2(1) and (2) of the Korupcijas novēršanas un apkarošanas biroja likums (Law on the Anti-Corruption Office):

‘(1)      The Office is an authority of the direct administration which performs the anti-corruption functions provided for in this Law …

(2)      The Office shall be placed under the supervision of the Council of Ministers. The Council of Ministers shall exercise institutional supervision through the Prime Minister. Supervision shall include the right of the Prime Minister to review the legality of the administrative decisions adopted by the Head of the Office and to annul unlawful decisions, and also, where an unlawful failure to act is established, to order that a decision be taken. The right of supervision of the Council of Ministers shall not apply to decisions taken by the Office in the performance of the functions referred to in Articles 7, 8, 9 and 9 ¹ of this Law.’

14.      Article 8(1)(2) of the Law on the Anti-Corruption Office is worded as follows:

‘(1)      In the context of the fight against corruption, the Office shall perform the following functions:

…

(2)      it shall conduct investigations and carry out operational activities, in order to detect criminal offences provided for by the criminal code committed in the service of the public institutions if those offences are connected with corruption.’

III. Background to the dispute

15.      On 31 October 2013, Mr Rimšēvičs was re-appointed to the post of Governor of the Bank of Latvia by a decision of the Parliament for a new six-year term from 21 December 2013 until 21 December 2019.

16.      On 17 February 2018, Mr Rimšēvičs was arrested following the opening on 15 February 2018 of a preliminary investigation carried out by the KNAB on suspicion of having, in his capacity as Governor of the Bank of Latvia, committed the offence of soliciting and accepting a bribe.

17.      On 19 February 2018, Mr Rimšēvičs was released on payment of a surety. On the same day the Deputy Head of Investigations of the KNAB adopted a decision on recognition of Mr Rimšēvičs as a suspect, setting out the offences alleged to have been committed by him and listing the available evidence, and also a decision imposing a number of restrictive measures on him, notably, in addition to payment of the surety, a prohibition on carrying out certain official activities, in particular the duties of Governor of the Bank of Latvia, the prohibition on approaching certain persons and the prohibition on leaving the country without prior authorisation. It was specified that those restrictive measures were to remain in force during the preliminary investigation and until such time as they were amended or annulled.

18.      On 27 February 2018, the judge with responsibility for reviewing compliance with human rights of the Rīgas rajona tiesa (District Court, Riga, Latvia) dismissed the action brought by Mr Rimšēvičs against two of the restrictive measures imposed by the KNAB, namely the prohibition on carrying out certain official activities and the prohibition on leaving the country without authorisation.

19.      On 1 June 2018, the Deputy Head of the Investigation Division of the KNAB adopted a new decision on recognition of Mr Rimšēvičs as a suspect, supplemented by new facts.

20.      On 28 June 2018, the prosecutor in the Office of the Prosecutor General of the Republic of Latvia decided that Mr Rimšēvičs should face criminal charges.

21.      On 20 July 2018, the Vice-President of the Court of Justice ordered the Republic of Latvia to take the necessary measures to suspend, pending delivery of the decision that will put an end to Case C‑238/18, the restrictive measures adopted against Mr Rimšēvičs, in so far as those measures prevent him from designating a substitute to replace him as a Member of the Governing Council of the ECB. (8)

22.      On 25 July 2018, the Prosecutor in the Office of the Prosecutor General of the Republic of Latvia adopted a decision amending the terms of the restrictive measures adopted with regard to Mr Rimšēvičs. On 1 August 2018, Mr Rimšēvičs lodged a complaint disputing the amended restrictive measures. On 22 August 2018, the judge with responsibility for reviewing compliance with human rights of the Rīgas pilsētas Vidzemes priekšpilsētas tiesa (Riga City Court (Vidzeme District), Latvia) upheld Mr Rimšēvičs’s complaint in part. On 28 August 2018, the Prosecutor in the Office of the Prosecutor General of the Republic of Latvia adopted a decision again amending the restrictive measures adopted with regard to Mr Rimšēvičs.

IV.    Procedures before the Court and forms of order sought

23.      By document lodged at the Court Registry on 16 March 2018, Mr Rimšēvičs brought the action in Case C‑202/18.

24.      Mr Rimšēvičs claims that the Court should:

(1)      declare that the applicant was unlawfully removed from office as Governor of Latvijas Banka (Bank of Latvia) by the decision of the Anti-Corruption Office imposing restrictive measures, adopted on behalf of the Republic of Latvia on 19 February 2018;

(2)      declare unlawful the restrictive measure imposed on the applicant by the decision of the Anti-Corruption Office imposing a restrictive measure, adopted on behalf of the Republic of Latvia on 19 February 2018 (the prohibition on carrying out a specific occupational activity, whereby the applicant was prohibited from performing the duties and exercising the powers of the Governor of Latvijas Banka (Bank of Latvia));

(3)      declare that the restrictions on the performance of the duties and the exercise of the powers of a Member of the Governing Council of the European Central Bank resulting from the decision of the Anti-Corruption Office imposing a restrictive measure, adopted on behalf of the Republic of Latvia on 19 February 2018, were unlawfully applied to the applicant.

25.      In its defence in Case C‑202/18, the Republic of Latvia claims that the Court should dismiss Mr Rimšēvičs’s action in its entirety.

26.      By document lodged at the Court Registry on 3 April 2018, the ECB brought the action in Case C‑238/18.

27.      The ECB claims that the Court should:

(1)      order the Republic of Latvia, on the basis of the first paragraph of Article 24 of the Statute of the Court of Justice of the European Union and Article 62 of the Rules of Procedure of the Court of Justice, to produce all relevant information relating to the investigations currently being carried out by the KNAB concerning the Governor of the Bank of Latvia, and

(2)      declare, on the basis of Article 14.2 of the Statute of the ESCB and of the ECB, that the Republic of Latvia has infringed the second subparagraph of that provision, in that:

–        the holder of the post of Governor of the Bank of Latvia was relieved from office in the absence of a judgment convicting him delivered on the merits by an independent tribunal and

–        if the factual elements produced by the Republic of Latvia so confirm, there is no exceptional circumstance capable of justifying the person concerned being relieved from office in the present case;

(3)      order the Republic of Latvia to pay the costs.

28.      In addition, by separate documents lodged at the Court Registry on the same date as its application, the ECB requested the Court to deal with Case C‑238/18 under an expedited procedure in application of Article 53(4) and Article 133 of the Rules of Procedure and submitted an application for interim measures on the basis of Article 279 TFEU and Article 160 of the Rules of Procedure, which was registered as Case C‑238/18 R.

29.      In its defence in Case C‑238/18, the Republic of Latvia contends that the Court should dismiss the ECB’s action in its entirety.

30.      By orders of 12 June 2018, Rimšēvičs v Latvia (9) and ECB v Latvia, (10) the President of the Court of Justice decided that Cases C‑202/18 and C‑238/18 should be dealt with under an expedited procedure in accordance with Article 133 of the Rules of Procedure.

31.      By interlocutory order of 20 July 2018, ECB v Latvia, (11) the Vice-President of the Court ordered the Republic of Latvia to take the necessary measures to suspend, pending delivery of the decision determining Case C‑238/18, the restrictive measures adopted on 19 February 2018 by the KNAB against Mr Rimšēvičs, in so far as those measures prevent him from designating a substitute as a Member of the Governing Council of the ECB. The application for interim measures was dismissed for the remainder and costs were reserved.

32.      A joint hearing in Cases C‑202/18 and C‑238/18 was held on 25 September 2018.

33.      At the joint hearing, the Court requested the Republic of Latvia to submit to it within eight days all the documents necessary to justify the restrictive measures imposed on Mr Rimšēvičs and the decision that he should face criminal charges.

34.      On 2 October 2018, the Republic of Latvia lodged the decision of 28 June 2018 that Mr Rimšēvičs should face criminal charges and 43 other documents. Those documents were communicated to Mr Rimšēvičs and the ECB, which lodged their observations on 19 October 2018.

V.      Assessment

35.      These are the first cases to have been brought on the basis of Article 14.2 of the Statute of the ESCB and of the ECB. It is therefore useful to address certain aspects relating to the scope of actions brought pursuant to that provision (A), before turning to the admissibility (B) and then the substance (C) of the actions brought in the present case by Mr Rimšēvičs and the ECB.

A.      The scope of the action provided for in Article 14.2 of the Statute of the ESCB and of the ECB

1.      The nature of the action

36.      The action available under Article 14.2 of the Statute of the ESCB and of the ECB is a remedy sui generis in the system of actions before the Courts of the European Union, since it allows the governor of a national central bank and the ECB (12) to refer directly to the jurisdiction of the Court an act taken by a national authority.

37.      In fact, the national central banks play an essential role within the ESCB and in the implementation of the monetary policy of the European Union. However, like the other bodies of the Member States responsible for implementing EU law, they continue to be subject to the national sphere of competence as regards their composition and their operating rules. In the framework established by Article 131 TFEU and Article 14 of the Statute of the ESCB and of the ECB, the drafting and application of the rules governing the accession of the governors of the central banks of the Member States to office and their being relieved from office are therefore within the competence of the Member States.

38.      Must the remedy in Article 14.2 of the Statute of the ESCB and of the ECB therefore be analysed as an action for annulment although, in the system of remedies established in the FEU Treaty, an action for annulment may in principle be brought solely in order to challenge the acts of the bodies and agencies of the European Union? (13) Or must it be understood, like an action for failure to fulfil obligations, as a remedy seeking a declaration that a Member State has failed to fulfil its obligations even though, as a general rule, the power to bring an action before the Courts of the European Union for such a failure to fulfil obligations belongs to the European Commission and to the other Member States? (14)

39.      Apart from its theoretical aspects, the practical implications of the answer to the question as to the nature of the present actions are not insignificant: if the Court were to annul the decision of the KNAB imposing the restrictive measures at issue on Mr Rimšēvičs, he would be able to resume office immediately after the Court delivered its judgment. If, on the other hand, the Court were merely to find that the measures in question were incompatible with the Statute of the ESCB and of the ECB, it would be for the Republic of Latvia to take the necessary measures to ensure that the judgment of the Court was implemented within its internal legal order.

40.      As is apparent from the wording of the forms of order which they seek, and as they confirmed at the hearing, Mr Rimšēvičs and the ECB seek to obtain from the Court a declaratory judgment finding that, in imposing the restrictive measures at issue on Mr Rimšēvičs, the Republic of Latvia infringed Article 14.2 of the Statute of the ESCB and of the ECB. Following such a declaratory judgment by the Court, it would be for the Latvian authorities to take the necessary measures to give effect to that judgment at national level.

41.      In order to determine the nature of the action established by Article 14.2 of the Statute of the ESCB and of the ECB and of the role of the Court when seised under that provision, it is necessary to take account not only of the wording of that provision but also of the general scheme and of the context of the legislation of which it forms part, of the aims and objectives pursued by that legislation (15) and also of its origins. (16)

(a)    Wording and origins

42.      First of all, the wording of Article 14.2 of the Statute of the ESCB and of the ECB does not specify the nature of the action available for the purpose of seeking a review by the Court of the decision to relieve a governor of a central bank from office.

43.      Admittedly, in some language versions, in particular in French, Article 14.2 of the Statute of the ESCB and of the ECB provides for an action ‘against’ (‘contre’) the decision to relieve a governor from office, just as the fourth paragraph of Article 263 TFEU provides for an action ‘against the acts …’ (‘contre les actes …’). (17) Furthermore, in most of the language versions of Article 14.2 of the Statute of the ESCB and of the ECB, the cause of action, according to which the action may be brought ‘on grounds of infringement of [the] Treaties or of any rule of law relating to their application’ and the last sentence relating to the time limit for bringing an action are practically identical to the corresponding words of the second and sixth paragraphs of Article 263 TFEU.

44.      However, in the light of the origins of Article 14.2 of the Statute of the ESCB and of the ECB, those terminological elements do not seem to reflect a deliberate choice by the legislature to classify the action provided for in that provision as an action for annulment.

45.      Thus, first, the Statute of the ESCB and of the ECB, designed to be incorporated in the Maastricht Treaty, was drafted by the Presidents of the national central banks only in English. (18)

46.      The proposals made in that context contained only the formula, which is still that of the English version today, that a decision to relieve a governor from office ‘may be referred to the Court of Justice’. (19) That is also the situation of the Proposal by the Presidency to the Intergovernmental Conference on Economic and Monetary Union of 30 October 1991. (20)

47.      Accordingly, the fact that some language versions of Article 14.2 of the Statute of the ESCB and of the ECB refer to an action ‘against’ the decision to relieve a governor from office is the result of the hazards of translation. It does not therefore reveal a decision by the legislature to conceive the action provided for in that provision as an action for annulment. That analysis is supported by the absence in many of the language versions of Article 14.2 of the Statute of the ESCB and of the ECB of a form of words resembling the fourth paragraph of Article 263 TFEU. (21)

48.      Furthermore, the version of Article 14.2 of the Statute of the ESCB and of the ECB in the Maastricht Treaty, adopted at the Conference of the European Council at Maastricht on 9 to 11 December 1991 and then signed in February 1992, contains the statement that the action may be brought ‘on grounds of infringement of [the] Treaties or of any rule of law relating to their application’, and also the last sentence relating to the time limit prescribed for bringing the action.

49.      Those two elements admittedly seem, even in their English version, to have been ‘borrowed’ from the predecessors to the second and sixth paragraphs of Article 263 TFEU. However, the commentaries annexed to the different versions and also the accounts of the discussions relating to them (22) contain no trace of any discussion relating to the nature of the action provided for against the decision to relieve a governor of a central bank from office.

50.      Accordingly, there is nothing from which it might be inferred that the introduction, at the last minute, (23) of the two elements referred to in the preceding points reflects a conceptual choice by the legislature in favour of an action for annulment modelled on the action provided for in Article 263 TFEU. It may be that the introduction of a time limit corresponds rather to a desire for rapidity and legal certainty where the decision to relieve a governor of a central bank from office is challenged.

51.      Such an interpretation is supported by the absence, in Article 14 of the Statute of the ESCB and of the ECB, of a provision equivalent to that of Article 264 TFEU, which determines the role of the Court in an action provided for in Article 263 TFEU when it states that, if the action is well founded, the Court is to declare the act concerned to be void.

(b)    Systematic and teleological interpretation

52.      In so far as the wording and the origin of Article 14.2 of the Statute of the ESCB and of the ECB cannot enlighten the Court as to the nature of the action provided for in that provision, it is necessary to turn to the general scheme and the context of the legislation of which it forms part, and also to the aims and objectives pursed by that legislation.

53.      Having regard to the architecture of the remedies established by the Treaties, it is coherent to analyse the action provided for in Article 14.2 of the Statute of the ESCB and of the ECB not as an action for annulment but as an action for a declaration similar to the action for failure to fulfil obligations.

54.      Thus, the system of legal remedies before the Courts of the European Union consists of two spheres, which are indeed interconnected but nonetheless quite separate. The first is that of the institutions, bodies, offices and agencies of the European Union, whose acts are subject to a review of legality and to the power of annulment of the Courts of the European Union. Following the application of that power of annulment, the regulatory set-up of the sphere of the acts of the European Union is directly altered: the act that has been annulled immediately ceases to produce its effects. The fact that Article 266 TFEU envisages that compliance with a judgment may entail other measures that the institution whose act has been declared void will be required to take does not in any way deprive the action for annulment of that formative consequence.

55.      On the other hand, in the second sphere, which is that of the Member States and their bodies and institutions, the Courts of the European Union do not intervene by directly fashioning the national regulatory set-up, but only by declaring that an act or a legal situation of national law is incompatible with EU law and the obligations borne by the Member States under the Treaties. That difference in the nature of the intervention of the Courts reflects the systemic difference between the sphere of competence of the institutions, bodies, offices and agencies of the European Union and that of the Member States: whereas the Courts of the European Union directly form part of the first sphere of competence and intervene in that sphere as an institution of the European Union, they remain outside the second sphere of competence, which, for each Member State, constitutes its own system in which the national bodies, including the courts, are responsible for implementing the judgments of the Courts of the European Union. In the Member States’ sphere of competence, it is thus for those States to alter the national regulatory set-up by drawing the inferences from the judgments of the Court of Justice as to the legal existence of the acts of national law in question.

56.      It is also in keeping with the separation of those two spheres of competence that the Court, in the context of Article 14.2 of the Statute of the ESCB and of the ECB, is seised of the decision of a Member State relieving a governor of a central bank from office and not of an application from that Member State claiming that the Court itself should relieve that governor from office. Unlike in the situation applicable to members of the EU institutions, (24) the Court does not have jurisdiction to adjudicate directly on the relieving from office of the governors of the national central banks, since they may be appointed and relieved from office only by the national authorities. (25)

57.      It is therefore also logical that Article 14.2 of the Statute of the ESCB and of the ECB prescribes as a cause of action only an infringement of the Treaties or of any rule of law relating to their application and not, like the second paragraph of Article 263 TFEU, also lack of competence, infringement of an essential procedural requirement or misuse of powers. In fact, the last three causes of action are not relevant for the purposes of the Court’s review of the decision to relieve a governor of a central bank from office. As regards its external legality, that decision comes within the sphere of competence of the Member States, namely the rules of national law and review by the national courts. The Court’s review relates only to the question whether the conditions laid down in Article 14.2 of the Statute of the ESCB and of the ECB for removal from office of a governor are satisfied. (26)

58.      The implementation of a power of annulment on the part of the Courts of the European Union in the context of the action provided for in Article 14.2 of the Statute of the ESCB and of the ECB would therefore amount to clouding the distinction between the sphere of competence of the European Union and that of its Member States.

59.      Admittedly, the attribution to the Court of Justice of the power to annul a decision wrongfully relieving a governor from office would be a very effective weapon for the purposes of protecting of the objective of Article 14.2 of the Statute of the ESCB and of the ECB, namely to safeguard the independence of the governors of the national central banks.

60.      However, the annulment of an act taken by a national authority would constitute not only an unusual but also an extremely serious interference in the sphere of competence and the procedural autonomy of the Member States. In the light of the constitutional importance of the principles of subsidiarity and of the conferral of powers enshrined in Articles 4 and 5 TEU, the possibility of such interference would have to be expressly provided for in the Treaties.

61.      In addition, the fact that the Courts of the European Union are called upon only to deliver a declaratory decision and not an annulment decision does not detract from the legal force of their intervention: the Member States, like the institutions, bodies, offices and agencies of the European Union, are required to comply with their judgments.

62.      Therefore, if, in the context of the action provided for in Article 14.2 of the Statute of the ESCB and of the ECB, the Court finds that a decision to relieve a governor from office is inadmissible rather than annulling it, the Member States are nonetheless required to give immediate effect to the decision of the Court. Failing that, the Commission could initiate the proceedings provided for in Articles 258 to 260 TFEU, which are the means provided for in the Treaties for ensuring that the Member States comply with their obligations.

2.      The defendant to the action

63.      Analysing the action provided for in Article 14.2 of the Statute of the ESCB and of the ECB as an action for a declaration inspired by the action for failure to fulfil obligations is also coherent in the light of its practical implementation.

64.      Thus, Article 14.2 of the Statute of the ESCB and of the ECB does not specify who is the defendant to the action in the context of the remedy for which it provides.

65.      In those circumstances, taking inspiration from the action for failure to fulfil obligations means that the action relating to the decision to relieve the governor of a national central bank from office may be considered to be brought against the Member State concerned as a whole, to which the actions of all of its bodies and administrations are attributable. It is therefore for the Member State to defend the decision to relieve the governor of its central bank from office and also to ensure the implementation of the subsequent judgment of the Court of Justice in its internal legal relationships.

66.      If it were imagined that the party before the Court was not the Member State as a whole but the authority within that State that was responsible for adopting the impugned measure — as might be the case in an action inspired by the action for annulment — that would seem problematic. Would the Court have to identify, at national level, the authority that took a decision to relieve a governor from office, and even to determine whether a national authority has its own legal personality under national law, distinct from that of the Member State, that would allow proceedings to be brought against it? And what would happen if the decision to relieve a governor of a central bank from office had not been taken by an administrative authority, but by the Parliament of the Member State concerned or by a national court? Those reflections reveal the impracticability of bringing a direct action before the Court against a national authority in order to have one of its acts annulled.

67.      It follows that Mr Rimšēvičs and the ECB were correct to bring their actions against the Republic of Latvia.

3.      Interim conclusion

68.      It follows from the foregoing that the present actions must be analysed as actions for a declaration by the Court that, in adopting with regard to Mr Rimšēvičs restrictive measures that prevent him from performing his duties as Governor of the Bank of Latvia, the Republic of Latvia failed to fulfil its obligations under Article 14.2 of the Statute of the ESCB and of the ECB.

B.      The Court’s jurisdiction to review the restrictive measures imposed on Mr Rimšēvičs by the KNAB

1.      The jurisdiction of the Court

69.      Since Article 14.2 of the Statute of the ESCB and of the ECB refers to ‘the Court of Justice’, the action established by that provision falls, within the Court of Justice of the European Union, within the jurisdiction of the Court and not within that of the General Court.

70.      In fact, in accordance with Article 19 TEU, the expressions ‘Court of Justice’ and ‘General Court’ designate the two courts that make up the institution ‘the Court of Justice of the European Union’. The Statute of the ESCB and of the ECB is consistent with that terminology, since Articles 35 and 36 thereof refer, for proceedings involving the ECB before the Courts of the European Union other than the procedure provided for in Article 14.2 of that Statute or other specific procedures, to ‘the Court of Justice of the European Union’. Consequently, for the general judicial proceedings involving the ECB before the Courts of the European Union, the usual rules on the allocation of jurisdiction apply.

71.      Furthermore, the allocation of jurisdiction to hear and determine the specific action provided for in Article 14.2 of the Statute of the ESCB and of the ECB to the Court of Justice is justified in the light of the constitutional importance of the independence of the governors of the central banks (27) and the political sensitivity of questions relating to their being relieved from office. Last, the need to resolve a dispute concerning the decision to relieve a governor from office quickly in order to ensure the proper functioning of the ESCB and the ECB argues against the establishment of two levels of jurisdiction for the action concerning such a decision.

2.      The measures imposed on Mr Rimšēvičs as relieving him from office for the purposes of Article 14.2 of the Statute of the ESCB and of the ECB

72.      The Republic of Latvia claims that the Court does not have jurisdiction to hear and determine, on the basis of Article 14.2 of the Statute of the ESCB and of the ECB, the restrictive measures imposed on Mr Rimšēvičs by the KNAB, since they do not amount to relieving him from office for the purposes of that provision. It submits that the sole objective of those measures is to enable the investigation to proceed smoothly and that they are merely provisional and of limited duration. Thus, under Article 249(1) of the Latvian Code of criminal procedure, (28) those measures are liable to be amended or withdrawn at any time, and in accordance with Article 389(1)(4) of that code, they cannot exceed a duration of 22 months. Conversely, the concept of relieving a governor from office for the purposes of Article 14.2 of the Statute of the ESCB and of the ECB entails severing the legal and institutional link between the servant and the institution concerned, which in Mr Rimšēvičs’s case could be done only by the Latvian Parliament, under Article 22 of the Law on the Bank of Latvia. (29)

73.      The ECB and Mr Rimšēvičs contend, on the contrary, that the restrictive measures imposed on Mr Rimšēvičs by the KNAB effectively prevent him from performing his duties as Governor of the Bank of Latvia and a member of the Governing Council of the ECB. Therefore, in order to confer practical effect on Article 14.2 of the Statute of the ESCB and of the ECB, the objective of which is to preserve the independence of the governors of the national central banks against any pressure brought to bear by the Member States, the measures at issue must be considered to be amenable to review by the Court of Justice under that provision.

74.      The latter argument is convincing.

75.      Thus, without there being any need for the Court to provide, in the present case, an exhaustive definition of the concept of relieving a governor from office within the meaning of Article 14.2 of the Statute of the ESCB and of the ECB, it is sufficient to state that that provision would be deprived of its practical effect if measures such as those imposed on Mr Rimšēvičs by the KNAB by the decision of 19 February 2018 did not come within its scope.

76.      As already pointed out, the purpose of Article 14.2 of the Statute of the ESCB and of the ECB is to preserve the independence of the governors of the national central banks and of the Governing Council of the ECB, the main decision-making body of that Bank, as an indispensable condition of price stability, the principal objective of the economic and monetary policy of the European Union and of the ESCB. (30) Effective protection of the independence of the governors of the national central banks requires that the merits of a national measure may be reviewed by the Court of Justice if that measure has the actual effect of preventing a governor from performing his duties, irrespective of its formal classification in national law. In keeping with what was said above concerning the causes of bringing the action provided for in Article 14.2 of the Statute of the ESCB and of the ECB, (31) it is not for the Court, moreover, to examine whether a measure having an impact on the performance of the duties of the governor of a national central bank formally corresponds to relieving that governor from office in national law or whether the procedures laid down for that purpose by national law have been complied with. (32)

77.      Although it need not necessarily be given an exhaustive definition, the concept of relieving a governor from office within the meaning of Article 14.2 of the Statute of the ESCB and of the ECB is nonetheless an autonomous concept of EU law which, in order to be applicable, attaches not to the form of a measure and its status in national law, but to its substance and its actual effects.

78.      In that regard, the French and Latvian versions of Article 14.2 of the Statute of the ESCB and of the ECB do admittedly, as do certain other language versions of that provision, employ terms which suggest that the performance of the duties or the occupation of his post or office by the governor concerned is brought to an end. (33) That fact cannot be mitigated, as the ECB proposes, by the fact that the provisions of the Treaty on the compulsory removal from office of the members of certain institutions or bodies of the Union refer to being ‘compulsorily retired’ rather than to being ‘relieved from office’, which in the ECB’s submission underlines the more general nature of the latter concept. (34) Nor does that argument find support in all the language versions.

79.      However, the temporary nature of a measure or the fact that it does not have the effect of definitively severing the legal and institutional link between the governor and the national central bank concerned does not preclude that measure from being classified as relieving the governor from office within the meaning of Article 14.2 of the Statute of the ESCB and of the ECB, if it actually has the consequence of preventing the governor from performing his duties. Were that not so, the Member States would be able to circumvent the prohibition laid down in that provision by adopting measures not formally classified as ‘relieving from office’ but having an equivalent effect in practice. Furthermore, as the ECB correctly states, what appears to be a temporary measure may turn out to be definitive if the effects last until the end of the term of office of the governor concerned. Then, as both the ECB and Mr Rimšēvičs observe, even a temporary prohibition on performing his duties constitutes pressure brought to bear on the governor of a national central bank and therefore a threat to the independence of that governor that Article 14.2 of the Statute of the ESCB and of the ECB properly seeks to prevent.

80.      It follows that the restrictive measures adopted in the present case by the KNAB against Mr Rimšēvičs by means of the decision of 19 February 2018, namely the prohibition on performing the duties of Governor of the Bank of Latvia and on leaving the country without prior authorisation (in so far as it has the effect of preventing Mr Rimšēvičs from attending the meetings of the Governing Council of the ECB), must be classified as relieving Mr Rimšēvičs from office for the purposes of Article 14.2 of the Statute of the ESCB and of the ECB. In that regard, the fact, relied on by the Republic of Latvia, that the prohibitions imposed on Mr Rimšēvičs have not impaired the functioning of the Bank of Latvia — on the assumption that it is true — is irrelevant. The purpose of Article 14.2 of the Statute of the ESCB and of the ECB is to protect the institutional and personal independence of the governors of the national central banks and of the office which they occupy within the ESCB and the ECB, and not just the smooth day-to-day functioning of the national central banks.

81.      In the interest of completeness, it should be noted that the Republic of Latvia is also unable to rely on Article 276 TFEU in order to dispute the jurisdiction of the Court in the present case. In accordance with Article 276 TFEU, in exercising its powers regarding the provisions of Chapters 4 (‘Judicial cooperation in criminal matters’) and 5 (‘Police cooperation’) of Title V of Part Three relating to the area of freedom, security and justice, the Court of Justice of the European Union is to have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law-enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.

82.      The measures at issue in the present case do not, as the Vice-President of the Court has already found, (35) come under either Member States’ judicial cooperation in criminal matters or their police cooperation. Accordingly, Article 276 TFEU does not preclude the Court from examining, in the present cases, the restrictive measures imposed on Mr Rimšēvičs by the KNAB in the light of the criteria laid down in Article 14.2 of the Statute of the ESCB and of the ECB.

83.      Last, the arguments whereby the Republic of Latvia alleges that to recognise the Court’s jurisdiction in the present case would be tantamount to conferring criminal immunity on the governor of the central bank concerned and to interfering with the national criminal procedure must also be rejected. In fact, there is no question of conferring criminal immunity on Mr Rimšēvičs (36) or of preventing the KNAB or another Latvian law-enforcement agency from conducting a criminal investigation. It is solely a question of ascertaining whether the restrictive measures imposed on Mr Rimšēvičs with the stated aim of ensuring the proper conduct of the KNAB’s investigation are justified in the light of the criteria established by Article 14.2 of the Statute of the ESCB and of the ECB.

84.      Admittedly, if the Court reaches the conclusion that that is not the case, it may be led to find that a measure imposed in order to ensure the proper conduct of a criminal investigation is incompatible with Article 14.2 of the Statute of the ESCB and of the ECB. However, it may reasonably be supposed that if it is not established that the governor of a national central bank no longer fulfils the conditions necessary for the performance of his duties or that he is guilty of serious misconduct, an investigation into other matters will be able to take place without there being any need to prevent the governor in question from performing his duties. If, on the other hand, it is established that the proper conduct of a criminal investigation against him requires that the governor of a central bank be prevented from exercising his duties, the likelihood is that it will also be established that he no longer fulfils the conditions necessary for the performance of his duties or that he is guilty of serious misconduct.

85.      In any event, it is likely that in most cases facts capable of demonstrating that a governor no longer fulfils the conditions necessary for the performance of his duties or that he is guilty of serious misconduct will also be relevant from the aspect of national criminal law. It therefore seems highly likely that a national criminal investigation will take place alongside the procedure relating to Article 14.2 of the Statute of the ESCB and of the ECB. That is all the more so if one proceeds from the principle that a governor must be able to be suspended from office even in the absence of a criminal conviction if there is evidence capable of showing that the conditions for relieving him from office are satisfied. (37)

86.      It follows that the Republic of Latvia is also unable to maintain that the communication to the Court of material in the criminal investigation file for the purposes of the procedure relating to Article 14.2 of the Statute of the ESCB and of the ECB would prevent the proper conduct of that investigation. Thus, Article 375(1) of the Latvian Code of criminal procedure does indeed provide that the material in the file is to be covered by the secrecy of the investigation and cannot be communicated to persons other than those referred to in that code. (38) However, when that code is interpreted in accordance with EU law, the Court when exercising the powers conferred on it by Article 14.2 of the Statute of the ESCB and of the ECB must be treated as a person to whom the investigation file may be communicated. The Court is not just a third party but the judge of the compatibility with that Statute of the national measures that have the effect of preventing the governor of a central bank from performing his duties. Moreover, the Republic of Latvia has failed to demonstrate the extent to which the communication to the Court of material from the national criminal investigation file would in reality be capable of disrupting the proper conduct of that investigation.

87.      It follows from the foregoing considerations that the Court has jurisdiction to review, on the basis of Article 14.2 of the Statute of the ESCB and of the ECB, the restrictive measures imposed on Mr Rimšēvičs by the decision of the KNAB of 19 February 2018.

C.      Substance

88.      Under Article 14.2 of the Statute of the ESCB and of the ECB, the governor of a national central bank may be relieved from office only if he no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct. In other words, and conversely, the Member States cannot relieve the governor of their central bank from office if those conditions, or at least one of them, are not fulfilled.

89.      That rule is source both of the pleas that may be put forward in support of an action against a decision to relieve a governor from office and of the Court’s task when it determines such an action.

90.      Thus, the governor concerned, like the ECB, must claim, in support of an action brought under Article 14.2 of the Statute of the ESCB and of the ECB, that the Member State in question has not shown that the conditions for relieving a governor from office were fulfilled. The Court’s task therefore consists in determining whether the Member State concerned has demonstrated to the requisite legal standard that those conditions were fulfilled.

91.      Admittedly, as already stated, Article 14.2 of the Statute of the ESCB and of the ECB provides that an action against the decision to relieve a governor from office may be brought ‘on grounds of infringement of [the] Treaties or of any rule of law relating to their application’. (39) However, it remains to be determined what the provisions of the Treaty or the rules of law infringement of which might be relied on in an action based on Article 14.2 of the Statute of the ESCB and of the ECB might be, other than that article itself. Apart from that, what might come to mind are the provisions, infringement of which is actually alleged by Mr Rimšēvičs in the present case, which are designed to protect the governors against any pressure on the part of the Member States (40) (since improperly relieving a governor from office amounts precisely to exercising such pressure). Likewise, it is possible, as the ECB suggests, to think of the rules connected with the functioning of the Governing Council and the Eurosystem and also, generally, the overarching principles of EU law like the duty of sincere cooperation between the institutions of the European Union and the Member States.

92.      In any event, in the present case it is not necessary to determine exhaustively the provisions infringement of which might be relied on in support of an action brought under Article 14.2 of the Statute of the ESCB and of the ECB. It is sufficient to point out that, in the context of the present cases, both Mr Rimšēvičs and the ECB take issue, in essence, with the Republic of Latvia for not having adduced evidence that the conditions laid down in that provision for relieving a governor from office were fulfilled in Mr Rimšēvičs’s case (see 1 below). In the interest of completeness, it is appropriate to examine the relevance of the other two rules which Mr Rimšēvičs alleges to have been infringed, namely Protocol (No 7) to the TFEU on the privileges and immunities of the European Union (see 2 below) and certain provisions of Latvian law (see 3 below).

1.      Infringement of Article 14.2 of the Statute of the ESCB and of the ECB

93.      Mr Rimšēvičs and the ECB claim that the Republic of Latvia has not adduced evidence capable of substantiating the offences of corruption of which Mr Rimšēvičs is accused. Accordingly, in their submission, the Republic of Latvia has not shown that in the present case the conditions laid down in Article 14.2 of the Statute of the ESCB and of the ECB for relieving a governor of a central bank from office were fulfilled.

(a)    Preliminary observations

94.      As Advocate General Geelhoed observed in Commission v Cresson, (41) it is inherent in the functions of the members of the institutions of the European Union and also in the highest public offices in the Member States that their holders are not subject to any kind of hierarchical scrutiny and cannot be removed for reasons relating to the performance of their duties. Accordingly, the sanctioning power to penalise any misuse of powers on the part of the holder of such a post is generally vested either in the institution to which he belongs or in another institution with equivalent status in the constitutional framework.

95.      In that regard, it has already been noted that the members of the institutions of the European Union can be relieved from office only by the Court, where appropriate (that is to say, except for the members of the Court of Justice of the European Union itself) on application by their institution or by an institution having an equivalent constitutional status. (42) While the burden of proof of the failure by the person concerned to fulfil his duties is thus borne by the institution making the allegation, it is for the Court alone, in the exercise of its unlimited jurisdiction, to establish the legal classification and the reality of the facts in question. Accordingly, findings made in a judgment of a national court may indeed be taken into account by the Court in its examination of those facts, but it cannot be bound by the legal classification of the facts made in such a judgment. (43)

96.      As the ECB has observed, the reason why the Court does not have jurisdiction to decide directly that a governor of a national central bank be relieved from office is that those governors are appointed and can be relieved from office only according to the procedures applicable in their respective Member States. (44) Therefore, in the context of the procedure established by Article 14.2 of the Statute of the ESCB and of the ECB, the Court does not decide directly, on application by an institution, that a holder has to be relieved from office, but examines whether the Member State concerned was correct to relieve the governor of its central bank from office. That difference from the procedures whereby the members of the institutions of the European Union may be relieved from office is nonetheless of only a procedural nature; from a substantive viewpoint, the criteria of examination are the same, since it is necessary to determine in both cases whether the conditions to which relieving from office is subject are fulfilled.

97.      It is therefore for the Court, first of all, to determine the legal classification of the facts of which the governor concerned is accused, that is to say, to determine whether those facts are capable of establishing that he no longer fulfils the conditions required for the performance of his duties or constitute serious misconduct within the meaning of Article 14.2 of the Statute of the ESCB and of the ECB (see (b) below). If so, the Court must then, in the light of the evidence adduced by the Member State concerned and also, where appropriate, by means of the investigative powers conferred on it by its Rules of Procedure, examine the reality of the facts in respect of which the governor in question is accused (see (c) below).

(b)    The concepts of conditions required for the performance of the duties of a governor of a central bank and of serious misconduct

98.      Article 14.2 of the Statute of the ESCB and of the ECB provides that a governor of a central bank may be relieved from office only if he no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct, but does not define those concepts more precisely.

99.      In the present case, it is apparent from the decision of the KNAB of 19 February 2018 on the recognition of Mr Rimšēvičs as a suspect (45) that Mr Rimšēvičs is alleged to have solicited and accepted a bribe of at least EUR 100 000 from a member of the Board of Directors of a bank and to have undertaken in return not to hinder the activities of that bank and to support it by providing consultations and recommendations related to its cooperation with the Finanšu un kapitāla tirgus komisija (Latvian Financial and Capital Market Commission). Mr Rimšēvičs is also alleged to have undertaken to do so in the performance of his official duties and through the influence on the activities of the Financial and Capital Market Commission and the information available to him through his duties.

100. Given such allegations, there is no need for the Court to define exhaustively the concepts of conditions required for the performance of the duties of a governor of a central bank or of serious misconduct within the meaning of Article 14.2 of the Statute of the ESCB and of the ECB. It is sufficient to state that, in the present case, in any event, the facts alleged against Mr Rimšēvičs by the KNAB, namely corruption in the performance of his official duties and misuse of those functions in the interest of a private body, would — if their existence were established — not only constitute serious misconduct by the governor concerned, but would also show that that governor no longer fulfils the conditions required for the performance of his duties. Contrary to the ECB’s contention, therefore, the present case does not relate only to the second, but also to the first situation envisaged by Article 14.2 of the Statute of the ESCB and of the ECB.

101. First, without even seeking to arrive at an exhaustive definition of the conditions required for the performance of the duties of a governor of a central bank, it must be stated that independence constitutes in any event the intangible hard core of those conditions. (46) As already mentioned twice, the independence of the national central banks which are members of the ESCB and of the Governing Council of the ECB as the main decision-making body of that bank and of the Eurosystem is enshrined in the FEU Treaty as an indispensable corollary of price stability, the main objective of the economic and monetary policy of the European Union and of the ESCB. (47) That is why Article 130 TFEU and Article 7 of the Statute of the ESCB and of the ECB expressly stipulate that the members of the decision-making bodies of the ECB and the national central banks, when exercising the powers and carrying out the tasks and duties conferred on them by the Treaties and the Statute of the ESCB and of the ECB, are not to seek or take instructions from any body whatsoever.

102. Furthermore, independence is the first quality required of members of all the institutions of the European Union. (48) As the Court has stated in connection with the Members of the Commission, having regard to the importance of the responsibilities assigned to them, it is important that they observe the highest standards of conduct, which means in particular that they must be completely independent and act in the general interest of the Union and ensure that that interest takes precedence at all times over personal interests. (49)

103. It follows that a governor of a central bank who is convicted of offences such as those of which Mr Rimšēvičs is accused in the present case thereby shows that he no longer has the independence required for the performance of his duties.

104. Second, as the ECB correctly states, the concept of serious misconduct designates, in the provisions of EU disciplinary law, unlawful conduct adopted by the holder of an office, which is sufficiently serious to justify the person responsible being relieved from office. (50)

105. The acts of corruption of which Mr Rimšēvičs is accused in the present case, which — if their existence were established — would constitute an infringement of Article 320(4) of the Latvian Criminal Code, assume, in view of the fundamental importance of the principle of independence of the governors of the central banks, sufficient gravity to justify relieving a governor from office and therefore to constitute serious misconduct within the meaning of Article 14.2 of the Statute of the ESCB and of the ECB.

106. It follows from the foregoing considerations that if the facts in respect of which Mr Rimšēvičs is accused were shown to be true, it would have to be considered that the conditions laid down in Article 14.2 of the Statute of the ESCB and of the ECB for relieving him from office are fulfilled. It is therefore necessary to examine now whether the Republic of Latvia has demonstrated to the requisite legal standard the reality of the facts in respect of which it accuses Mr Rimšēvičs.

(c)    The evidence required in order to demonstrate that the conditions for relieving a governor from office are fulfilled

107. As the ECB correctly observes, the reality of facts such as those which the Republic of Latvia alleges in the present case should in principle be confirmed by a judgment on the merits delivered by an independent tribunal in order for the Court to be able to consider that those facts are established for the purposes of the application of Article 14.2 of the Statute of the ESCB and of the ECB (see 1 below). In the absence of such a judgment, the Court must have sufficient evidence to substantiate the firm belief that the facts alleged against the governor concerned took place (see 2 below).

(1)    A judgment on the merits delivered by an independent tribunal

108. Where there is a judgment on the merits delivered by an independent tribunal confirming the facts alleged against the governor concerned, it is for that governor to adduce elements capable of showing that, owing to systemic or generalised deficiencies as regards the independence of the judiciary of the Member State concerned, and owing to his personal situation, there are substantial grounds for believing that there has been a breach of his right to a fair trial and that the judgment in question is based on incorrect findings of fact. (51) In the absence of such elements, the Court might consider, in accordance with the principle of mutual trust between Member States that all Member States will respect EU law and the fundamental rights which it recognises, (52) that the facts the reality of which is attested to by the judgment are established without itself examining the evidence.

109. In this instance, however, the facts alleged against Mr Rimšēvičs by the KNAB have not yet formed the subject matter of a judgment on the merits delivered by an independent tribunal. In those circumstances, there is no need to consider whether, as the ECB submits, for the purposes of establishing the facts put forward in the framework of Article 14.2 of the Statute of the ESCB and of the ECB, a judgment at first instance which has not yet become final might suffice.

110. In any event, in the present case the restrictive measures imposed on Mr Rimšēvičs by the KNAB by the decision of 19 February 2018 (53) did indeed form the subject matter of an appeal by Mr Rimšēvičs before the judge with responsibility for reviewing compliance with human rights of the Rīgas rajona tiesa (District Court, Riga), and also of a decision of that court delivered on 27 February 2018, (54) which is part of the material forwarded to the Court. It is apparent from that decision that the action in question was brought on the basis of Article 262 of the Latvian Code of criminal procedure, which allows an action to be brought against restrictive measures such as those at issue in the present case on the ground that it would be impossible for the person concerned to comply with those measures. (55)

111. According to Mr Rimšēvičs and the ECB, however, the judge hearing such an action examines only the appropriateness and the proportionality of the restrictive measures at issue by reference to the alleged offence and the aim pursued (that is to say, for example, the smooth conduct of the investigation or the prevention of other harm), and also the protection of the fundamental rights of the person concerned. On the other hand, there is no examination of the merits of the charges against the person concerned or of the facts forming the basis of those charges. The grounds of the decision of the judge with responsibility for reviewing compliance with human rights of the Rīgas rajona tiesa (District Court, Riga) of 27 February 2018 relate indeed only to the merits of the restrictive measures by reference to the charges against Mr Rimšēvičs, but not to the merits of those charges by reference to any evidence.

112. Admittedly, it follows from Article 262(3) of the Latvian Code of criminal procedure that the judge responsible for examining the action brought under that provision may request communication of material from the file relating to the criminal investigation and also explanations from the person responsible for the investigation or from the person who has brought the action. In addition, the decision of the judge with responsibility for reviewing compliance with human rights of the Rīgas rajona tiesa (District Court, Riga) of 27 February 2018 contains the words ‘having regard to the material in the file relating to criminal investigation No …’. (56) Consequently, it cannot be precluded that the judge with responsibility for reviewing compliance with human rights of the Rīgas rajona tiesa (District Court, Riga) who is responsible for examining the action in question has seen evidence from the criminal investigation file.

113. Nonetheless, the decision of the judge with responsibility for reviewing compliance with human rights of the Rīgas rajona tiesa (District Court, Riga) of 27 February 2018 does not mention any assessment of evidence or a confirmation of facts on the basis of such evidence. That decision refers only to ‘the information about the facts originating in the procedural documents in the criminal investigation file’. (57) It cannot therefore be precluded that the material from the criminal investigation file communicated to the judge with responsibility for reviewing compliance with human rights of the Rīgas rajona tiesa (District Court, Riga), like the material communicated to the Court, (58) consists only of procedural documents drawn up by the investigating authorities and containing a description of the facts, to the exclusion of any evidence capable of attesting to the truth of those facts.

114. Furthermore, even though it was expressly questioned on this point at the hearing, the Republic of Latvia has put forward no evidence capable of rebutting the allegations of Mr Rimšēvičs and the ECB, according to which review by the judge with responsibility for reviewing compliance with human rights of the Rīgas rajona tiesa (District Court, Riga) who is responsible for examining the restrictive measures did not cover the merits of the charges against Mr Rimšēvičs and the facts forming the basis of those charges. Nor has the Republic of Latvia adduced any evidence or at least provided any explanations in order to substantiate its position that the Court could recognise the decision of the judge with responsibility for reviewing compliance with human rights of the Rīgas rajona tiesa (District Court, Riga) of 27 February 2018 as establishing the reality of the facts alleged against Mr Rimšēvičs and therefore decline to assess for itself the evidence and to establish those facts.

115. The Court has even less reason to rely on the decision of the judge with responsibility for reviewing compliance with human rights of the Rīgas rajona tiesa (District Court, Riga) of 27 February 2018 for the purposes of establishing the reality of the facts alleged against Mr Rimšēvičs because Mr Rimšēvičs maintains that he did not have access, at the time of that decision and even to this day, to evidence that might substantiate the complaints against him. The Republic of Latvia has not rebutted that assertion. Therefore, even on the assumption that the judge with responsibility for reviewing compliance with human rights of the Rīgas rajona tiesa (District Court, Riga) had access to certain evidence in the criminal investigation file, it is not possible to determine whether it assessed that evidence during an adversarial procedure capable of safeguarding Mr Rimšēvičs’s rights of defence.

116. The restrictive measures imposed on Mr Rimšēvičs were also the subject matter of a decision of the judge with responsibility for reviewing compliance with human rights of the Rīgas pilsētas Vidzemes priekšpilsētas tiesa (Riga City Court (Vidzeme District)) on 22 August 2018. (59) That decision followed a complaint whereby Mr Rimšēvičs had disputed the way in which the Latvian authorities had implemented the interlocutory order of the Vice-President of the Court of 20 July 2018, ECB v Latvia. (60) The judge with responsibility for reviewing compliance with human rights of the Rīgas pilsētas Vidzemes priekšpilsētas tiesa (Riga City Court (Vidzeme District)) upheld that complaint in part, finding that owing to contradictions in the terms relating to the restrictive measures imposed on Mr Rimšēvičs those measures could not be enforced. The Latvian authorities subsequently adopted a new decision amending the restrictive measures in question. (61)

117. It is apparent from the decision of the judge with responsibility for reviewing compliance with human rights of the Rīgas pilsētas Vidzemes priekšpilsētas tiesa (Riga City Court (Vidzeme District)) of 22 August 2018 that the review carried out by that judge was also limited to the possibility of implementing the restrictive measures at issue. Accordingly, even if that judge did receive documents from the criminal investigation file, it is not apparent that it carried out any review whatsoever of the merits of the factual allegations of the charges against Mr Rimšēvičs.

118. In those circumstances, the Court cannot rely on either the decision of the judge with responsibility for reviewing compliance with human rights of the Rīgas rajona tiesa (District Court, Riga) of 27 February 2018 or on the decision of the judge with responsibility for reviewing compliance with human rights of the Rīgas pilsētas Vidzemes priekšpilsētas tiesa (Riga City Court (Vidzeme District)) of 22 August 2018 for the purposes of establishing the truth of the facts alleged against Mr Rimšēvičs.

(2)    Sufficient evidence to enable the Court to be satisfied as to the facts

119. As the ECB correctly maintains, a judgment on the merits delivered by an independent tribunal cannot however be the only means available to a Member State, in the context of a procedure under Article 14.2 of the Statute of the ESCB and of the ECB, in order to prove the facts which in its view justify relieving the governor of its central bank from office.

120. Thus, in providing for the possibility of relieving a governor of a central bank from office in strictly defined situations, Article 14.2 of the Statute of the ESCB and of the ECB protects not only the independence of the governors of the national central banks but also the proper functioning of the ESCB and of the ECB. The fact that a governor of a central bank who is guilty of offences such as those of which Mr Rimšēvičs is accused continues to perform his duties, to participate in decision-making and to have access to information within his central bank, the ESCB and the Governing Council of the ECB, would constitute a serious threat to the proper functioning of those institutions. Yet the investigation and the proceedings leading to the delivery of a judgment on the merits pronouncing a conviction by a tribunal may take a considerable time.

121. Accordingly, in order to preserve the proper functioning of the ESCB and the ECB it must be possible to suspend a governor from office on a temporary basis pending the outcome of criminal proceedings if there is evidence capable of showing in itself, and not only by means of suspicions, the existence of the alleged facts. Such evidence must be sufficiently precise and consistent to allow the Court to form the firm conviction that those facts actually took place. (62)

122. It follows that in exceptional circumstances such as those alleged by the Republic of Latvia in the present case, the Court may conclude that the conditions for relieving a governor of a central bank from office are fulfilled if the Member State provides it with evidence of such a kind as to establish that that governor is guilty of offences showing that he no longer fulfils the conditions required for the performance of his duties or that he is guilty of serious misconduct within the meaning of Article 14.2 of the Statute of the ESCB and of the ECB.

123. However, it must be stated at the outset that in the present case the Republic of Latvia has failed to produce such evidence. The Court therefore has no evidence that would allow it to verify the merits of the factual allegations made by the KNAB concerning Mr Rimšēvičs.

124. Thus, the Republic of Latvia initially provided no evidence in support of its initial pleadings in Cases C‑202/18 and C‑238/18. (63) The Court therefore asked it during the joint hearing in those cases to produce within eight days all the documents required to justify the restrictive measures imposed on Mr Rimšēvičs. (64) In making that request, the Court specifically emphasised the importance of producing those documents that were to serve as grounds and as proof of the merits of the decision at issue. The Court therefore recommended that the Republic of Latvia should take great care when choosing the documents to submit to it.

125. The Republic of Latvia subsequently communicated to the Court 44 documents representing around 270 pages, consisting of a set of procedural documents relating to the recognition of Mr Rimšēvičs as a suspect, the imposition of the restrictive measures against him and the charges against him (65) and of correspondence between the KNAB, the Bank of Latvia, the ECB and German authorities concerning Mr Rimšēvičs’s activities within the ECB and decisions of the ECB concerning the bank for whose benefit Mr Rimšēvičs allegedly worked. Among those documents, some quite voluminous documents were produced in duplicate and also in different language versions.

126. Apart from the two court decisions of the judges with responsibility for reviewing compliance with human rights already examined (66) and some simple administrative documents, the material communicated by the Republic of Latvia therefore consists exclusively of documents drawn up by administrative authorities concerning Mr Rimšēvičs’s role and his alleged activities.

127. Those documents do admittedly contain a list of the charges and accusations drawn up by the Latvian authorities and a description of the facts alleged against Mr Rimšēvičs. In addition, they allow the Court to trace the progress of the events and proceedings that have taken place in Latvia since Mr Rimšēvičs’s arrest on 17 February 2018 and also the communication between the Latvian investigating authorities, the Bank of Latvia and the ECB, with a level of detail going as far as the letters communicating documents between authorities, a translator’s note and various requests for translation.

128. However, those documents contain no factual material capable of substantiating the Latvian authorities’ allegations and, consequently, of establishing the facts in respect of which Mr Rimšēvičs is accused.

129. According to the decision of the KNAB of 19 February 2018 on recognition of Mr Rimšēvičs as a suspect, (67) the evidence supporting the charges consists of audio recordings and transcripts of telephone conversations, witness statements, objects seized and records of inspection. Significantly, no evidence of that type has been produced to the Court.

130. As the ECB correctly notes, the documents produced therefore do not in any way permit the conclusion, even on the basis of presumptions, that the actions in respect of which Mr Rimšēvičs is accused, summarised in point 99 above, took place. On the assumption that evidence capable of attesting to the reality of those facts exists, that material is not among the documents produced to the Court by the Republic of Latvia.

131. In those circumstances, without there even being any need to determine the conditions of admissibility of evidence or the way in which it is to be assessed by the Court in the context of the procedure provided for in Article 14.2 of the Statute of the ESCB and of the ECB, it must be stated that the Court is not in a position to ascertain whether the conditions laid down in that provision for relieving a governor of a central bank from office are fulfilled. In the absence of any evidence, the Court cannot review the veracity of the factual allegations put forward by the Republic of Latvia in order to prove that Mr Rimšēvičs is guilty of serious misconduct and therefore no longer fulfils the conditions required for the performance of his duties.

132. As the Court has already held in other areas, the effectiveness of judicial review within the EU legal order entails the communication of the grounds of each adverse decision to the competent court so that it may fully exercise its power of review. (68) The effectiveness of that judicial review entails a verification of the factual allegations in the summary of reasons of a decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons are substantiated. (69)

133. In the present case, therefore, in order to allow the Court to exercise its power of review, the Republic of Latvia ought to have communicated to it not only the documents drawn up by the Latvian authorities for the purposes of the investigation and the charges against Mr Rimšēvičs, but also evidence showing by itself that the alleged facts took place. The mere existence of ongoing criminal proceedings which have not yet given rise to findings of fact made in a court decision cannot be treated as proven facts. (70)

134. Unlike in the case of facts established by a judgment on the merits delivered by an independent tribunal, (71) the Court cannot accept as established facts which are alleged to have taken place only by administrative authorities. Such authorities do not enjoy the same guarantees of institutional and functional independence as the courts and do not take their decisions following an adversarial procedure together with the guarantees of an effective remedy. (72) Accepting facts alleged by an administrative authority as established without ascertaining that they are correct would therefore amount to depriving the parties concerned of their right of effective judicial review and, in this instance, to rendering ineffective the remedy established in Article 14.2 of the Statute of the ESCB and of the ECB.

135. Even though the Republic of Latvia puts forward in its pleadings material showing that the KNAB enjoys a certain independence in the performance of its tasks, it is not disputed that the KNAB forms part of the executive and cannot in any way be assimilated to an independent court. (73) It is not demonstrated or even claimed that the situation is different for the Office of the Prosecutor General of the Republic of Latvia. Furthermore, as Mr Rimšēvičs emphasises, that Office has thus far adopted only a decision to charge Mr Rimšēvičs but has not yet closed the investigation and referred the matter to a court.

136. It must therefore be concluded that the Republic of Latvia has not communicated to the Court the evidence required to justify the measures adopted against Mr Rimšēvičs.

137. In addition, as already stated, the Republic of Latvia cannot rely on the confidentiality of the material in the criminal investigation file in order to justify its failure to communicate to the Court evidence capable of substantiating its allegations concerning Mr Rimšēvičs. (74) Furthermore, the Court informed the Republic of Latvia at the hearing that in other areas the exceptional and strictly circumscribed possibility exists of not communicating to the person concerned evidence produced before the Courts of the European Union. (75) Likewise, the ECB stated that it was prepared to waive its right of access to the file if the integrity of the criminal investigation required confidential treatment of any information that the Republic of Latvia communicated to the Court. However, the Republic of Latvia has not followed up on that reference to the possibility of seeking confidential treatment of any evidence communicated to the Court, let alone put forward any compelling reasons capable of justifying such confidential treatment.

138. Last, Articles 24 to 30 of the Statute of the Court of Justice of the European Union and Article 64 of the Rules of Procedure do admittedly provide the Court with an arsenal of measures of inquiry, including, in particular, apart from a request for information and production of documents, the personal appearance of the parties, oral testimony or an inspection of the place or thing in question. However, the Court cannot be required to have recourse to such measures of its own motion in the absence of any offer of proof or indeed any indication to that effect on the part of the Member State concerned. In the present case, the Republic of Latvia has failed to suggest to the Court that any measure of inquiry might prove helpful.

139. Nor, in keeping with what was said above concerning the nature of the present action and the fact that the defendant is the Member State in question in its entirety, (76) can the Court directly address bodies within that Member State such as, for example, in this instance, the KNAB, in order to request information directly from them. At least in the context of the procedure based on Article 14.2 of the Statute of the ESCB and of the ECB, infra-State bodies cannot therefore be treated as equivalent to the institutions, bodies, offices or agencies from which the Court may request all information which it considers necessary, under Article 24 of the Statute of the Court of Justice of the European Union.

(d)    Interim conclusion

140. It follows from the foregoing considerations that the facts alleged against Mr Rimšēvičs would, if they were shown to be true, be capable of demonstrating that the conditions laid down in Article 14.2 of the Statute of the ESCB and of the ECB for relieving a governor of a central bank from office are fulfilled.

141. However, the Republic of Latvia has adduced no evidence capable of proving those facts. The Court is therefore unable to verify whether the conditions laid down in Article 14.2 of the Statute of the ESCB and of the ECB for relieving Mr Rimšēvičs from office are fulfilled.

142. It follows that the Republic of Latvia has infringed Article 14.2 of the Statute of the ESCB and of the ECB by relieving Mr Rimšēvičs from office without showing that the conditions laid down in that provision were fulfilled. The plea put forward by Mr Rimšēvičs and by the ECB alleging infringement of Article 14.2 of the Statute of the ESCB and of the ECB by the Republic of Latvia must therefore be upheld.

2.      The alleged infringement of the Protocol on the privileges and immunities of the European Union

143. Mr Rimšēvičs maintains that relieving him from his office as Governor of the Bank of Latvia constitutes an infringement of the immunity which he enjoys as a member of the Governing Council of the ECB under Protocol (No 7) on the privileges and immunities of the European Union, which, pursuant to the first paragraph of Article 22, also applies to the ECB and to the members of its organs and to its staff.

144. In accordance with Article 11(a) of Protocol (No 7) on the privileges and immunities of the European Union, officials and other servants of the European Union are, on the territory of each of the Member States, to be immune from legal proceedings in respect of acts performed by them in their official capacity, including their words spoken or written. Although that provision refers only to ‘immun[ity] from legal proceedings’ (‘immunité de juridiction’), (77) it cannot be precluded that that immunity is, at least in cases involving senior officials, to be interpreted as conferring immunity from proceedings (‘immunité de poursuites’) on them as well. (78) Having regard to the importance of the independence of the Members of the Governing Council of the ECB, (79) it seems logical, moreover, that they cannot be the subject of proceedings involving measures such as those adopted by the KNAB against Mr Rimšēvičs, namely provisional detention or inspections, (80) unless a decision waiving immunity has been adopted by the Governing Council.

145. The immunity conferred on the Members of the Governing Council by Protocol (No 7) on the privileges and immunities of the European Union must be distinguished from the protection against being relieved from office enjoyed by the governors of the national central banks under the Statute of the ESCB and of the ECB. Thus, when a governor is relieved from office, his independence is guaranteed by Article 14.2 of that Statute, which takes precedence as a lex specialis over the general provisions of Protocol (No 7) on the privileges and immunities of the European Union. If the conditions laid down in Article 14.2 of the Statute of the ESCB and of the ECB are fulfilled — which it is for the Court to verify, where necessary — a governor may therefore be relieved from office without there also being any need to adopt a decision waiving his immunity. Consequently, an infringement of the provisions of Protocol (No 7) on the privileges and immunities of the European Union cannot, as such, be relied on as against the decision to relieve a governor from office in the context of an action based on Article 14.2 of the Statute of the ESCB and of the ECB.

146. However, the immunity conferred on the governors by Protocol (No 7) on the privileges and immunities of the European Union protects them against proceedings initiated independently of a decision to relieve them from office, before it has been adopted (81) or again if such a decision is withdrawn after being challenged before the Court. Accordingly, such immunity may be relevant in the context of an action relating to the decision to relieve a governor from office if the evidence submitted by the Member State concerned in support of that decision had been obtained in breach of that immunity.

147. In the present case, there is admittedly no need to dwell on the admissibility of any evidence that may have been obtained in breach of Mr Rimšēvičs’s immunity before he was relieved from office, since the Republic of Latvia has not in any event adduced any evidence and, consequently, there is no need to adjudicate on Mr Rimšēvičs’s complaint alleging infringement of Protocol (No 7) on the privileges and immunities of the European Union.

148. Conversely, the immunity conferred on Mr Rimšēvičs by that protocol might become relevant again should he be reinstated in office following a judgment of the Court finding that the conditions for relieving him from office were not fulfilled.

149. In that regard, the ECB admittedly claims that the immunity conferred on Mr Rimšēvičs by Protocol (No 7) on the privileges and immunities of the European Union relates only to acts carried out in his capacity as a Member of the Council of the ECB, whereas the acts complained of by the Latvian authorities were carried out by Mr Rimšēvičs solely in his capacity as Governor of the Bank of Latvia. Thus, in particular, the bank for whose benefit Mr Rimšēvičs allegedly worked, Trasta Komercbanka, was subject to the direct prudential supervision of the Latvian Financial and Capital Market Commission. Accordingly, that bank was not the subject of any prudential decision on the part of the ECB, apart from the decision relating to the withdrawal of its authorisation adopted in 2016. Furthermore, that decision was not prepared by the Governing Council and was adopted by the latter only in the context of a procedure in which the Governing Council raised no objections and which does not require express consent on the part of its members. (82)

150. However, the Governing Council of the ECB is, in accordance with Regulation No 1024/2013 and in spite of the objection of the ECB reproduced in the preceding point, at least associated in the prudential supervision of credit institutions such as Trasta Komercbanka and responsible for taking decisions relating to their authorisation. Accordingly, in the light of the facts alleged against Mr Rimšēvičs by the KNAB, (83) it cannot be precluded outright that the investigation conducted by the KNAB and now the investigation conducted by the Prosecutor in the Office of the Prosecutor General of the Republic of Latvia also relate to acts carried out by Mr Rimšēvičs in the performance of his duties as a Member of the Governing Council of the ECB.

3.      The alleged infringement of Latvian law

151. Mr Rimšēvičs claims that, by imposing the restrictive measures on him by the decision of 19 February 2018, the KNAB infringed the Law on the Bank of Latvia and the Latvian Code of criminal procedure.

152. First, he submits that the KNAB infringed the Law on the Bank of Latvia, which was adopted in order to transpose the relevant provisions of the TFEU, since under that law the Governor of the Bank of Latvia may to be relieved from office only in certain well-defined cases and solely by decision adopted by the Parliament of the Republic of Latvia.

153. Second, he submits that the KNAB infringed the Latvian Code of criminal procedure since the conditions laid down for the imposition of restrictive measures, namely the risk that a person will interfere with the investigation or commit further offences, were not fulfilled in his case. Thus, Mr Rimšēvičs cooperated actively with the investigators from the outset. In addition, in the framework of his powers as Governor of the Bank of Latvia, Mr Rimšēvičs does not in any event have the powers necessary to exercise influence in favour of a particular bank, as he is alleged to have done. Last, Mr Rimšēvičs’s arrest was unlawful since the conditions laid down by the Code of criminal procedure in order to be able to carry out such an arrest were also not fulfilled.

154. First of all, it should be noted, for the avoidance of doubt, that in the present case the Court has been requested to rule only in respect of the restrictive measures imposed on Mr Rimšēvičs by the KNAB by the decision of 19 February 2018, which do not include his arrest. Accordingly, the Court is not called upon to examine the lawfulness of Mr Rimšēvičs’s arrest. (84)

155. Next, the complaints alleging infringement of Latvian law must be rejected without there being any need for the Court to consider whether they are well founded.

156. In fact, whether it is permissible to relieve a governor of a national central bank from office must be assessed solely by reference to EU law and in particular the conditions laid down in Article 14.2 of the Statute of the ESCB and of the ECB, which must be given an autonomous interpretation in order to ensure their uniform application. (85)

157. Accordingly, if the conditions laid down by those provisions are fulfilled — which it is for the Court, where appropriate, to ascertain — a governor of a national central bank may be relieved from his post independently of any conditions also laid down by national law for relieving a governor from office. Conversely, if those conditions are not fulfilled, a governor of a central bank cannot be relieved from office, even though conditions provided for or procedures laid down by national law for that purpose have been fulfilled.

158. Whether a governor of a central bank is relieved from office by means of the ‘official’ procedure laid down for that purpose by the relevant national law or by means of a different measure is therefore irrelevant for the purpose of assessing whether relieving him from office is permissible under EU law. That applies a fortiori because, as already stated, (86) the concept of relieving a governor from office within the meaning of Article 14.2 of the Statute of the ESCB and of the ECB is an autonomous concept of EU law which attaches not to the form of a measure or to its status in national law but to its substance and to its actual effects.

159. Furthermore, as has also already been explained, (87) if there is sufficient evidence to show that the substantive conditions laid down by Article 14.2 of the Statute of the ESCB and of the ECB for relieving a governor from office are fulfilled, it must be possible to suspend such a governor from office on a temporary basis pending the outcome of a criminal procedure or the implementation of the ‘official’ procedure for relieving him from office provided for in national law.

160. It follows from the foregoing that Mr Rimšēvičs’s complaint alleging infringement of the Law on the Bank of Latvia and of the Latvian Code of criminal procedure is ineffective and must therefore be rejected.

D.      Interim conclusion

161. As already stated, (88) it follows from an examination of the present cases that the Republic of Latvia has adduced no evidence capable of attesting to the reality of the facts alleged against Mr Rimšēvičs. It is therefore impossible for the Court to ascertain whether the conditions laid down in Article 14.2 of the Statute of the ESCB and of the ECB for relieving Mr Rimšēvičs from office as Governor of the Bank of Latvia are fulfilled.

162. In those circumstances, in accordance with what was noted above concerning the nature of the present action, (89) it should be stated that in relieving Mr Rimšēvičs from office without demonstrating that the conditions laid down in Article 14.2 of the Statute of the ESCB and of the ECB were fulfilled, the Republic of Latvia has failed to fulfil its obligations under that provision.

VI.    Costs

163. Under Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

164. It follows from the grounds set out above that the Republic of Latvia is the unsuccessful party in the present cases.

165. Furthermore, in Case C‑238/18, the ECB claimed that the Republic of Latvia should be ordered to pay the costs. The Republic of Latvia should therefore be ordered to bear its own costs and to pay the ECB’s costs in Case C‑238/18. That also applies to the costs incurred in the interlocutory proceedings that gave rise to the order of the Vice-President of the Court of 20 July 2018 (C‑238/18 R, not published, EU:C:2018:581), in which costs were reserved.

166. In Case C‑202/18, on the other hand, Mr Rimšēvičs did not claim that the Republic of Latvia should be ordered to pay the costs, nor did the Republic of Latvia claim that Mr Rimšēvičs should be ordered to pay the costs. Accordingly, as there was no application for costs, each party should be ordered to bear its own costs in Case C‑202/18. (90)

VII. Conclusion

167. Having regard to the foregoing, I propose that the Court should rule as follows in Case C‑202/18:

(1)      By prohibiting Mr Ilmārs Rimšēvičs from performing his duties as Governor of the Latvijas Banka (Bank of Latvia) by the decision of the Korupcijas novēršanas un apkarošanas birojs (Anti-Corruption Office, Latvia) of 19 February 2018, the Republic of Latvia has failed to fulfil its obligations under Article 14.2 of Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank;

(2)      Mr Rimšēvičs and the Republic of Latvia shall bear their own costs.

168. In addition, I propose that the Court should rule as follows in Case C‑238/18:

(1)      By prohibiting Mr Rimšēvičs from performing his duties as Governor of the Latvijas Banka (Bank of Latvia) by the decision of the Korupcijas novēršanas un apkarošanas birojs (Anti-Corruption Office, Latvia) of 19 February 2018, the Republic of Latvia has failed to fulfil its obligations under Article 14.2 of Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank;

(2)      The Republic of Latvia shall bear its own costs and pay the costs of the European Central Bank, including the costs of the interlocutory proceedings.

1      Original language: French.

i      The wording of points 24, 39, 49, 54, 114, 129 and 150 of this document has been modified after it was first put online.

2      Both the Court of Justice and the General Court, moreover, are seised of different cases concerning the withdrawal of the authorisation of Trasta Komercbanka by the European Central Bank (ECB) on 3 March 2016; see Cases T‑247/16, Fursin and Others v ECB, and T‑698/16, Trasta Komercbanka and Others v ECB, pending before the General Court, the order of the General Court of 12 September 2017, Fursin and Others v ECB (T‑247/16, not published, EU:T:2017:623), and the appeals against that order in Cases C‑663/17 P, ECB v Trasta Komercbanka and Others, C‑665/17 P, Commission v Trasta Komercbanka and Others and ECB, and C‑669/17 P, Trasta Komercbanka and Others v ECB, pending before this Court.

3      Protocol (No 4) on the Statute of the European System of Central Banks [ESCB] and of the European Central Bank [ECB], annexed to the TEU and the TFEU (OJ 2016 C 202, p. 230).

4      See, in particular, Article 12.1 of the Statute of the ESCB and of the ECB.

5      See, in particular, Article 26(8) of Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63).

6      See, in particular, Article 119(2) and (3), Article 127(1), Article 219(1) and (2), and Article 282(2) TFEU.

7      In the words of Advocate General Jacobs, the independence of the ECB is not an end in itself, but is designed to enable the ECB effectively to pursue the aim of price stability; see the Opinion in Commission v ECB (C‑11/00, EU:C:2002:556, point 150). On the link between the independence of the ECB and the objective of price stability, see also the Draft Treaty for the amendment of the Treaty establishing the European Economic Community for the construction of an economic and monetary union, Commission Notice of 21 August 1990, Bulletin of the European Communities, Supplement 2/91, especially pages 14, 20 and 58.

8      See point 31 below.

9      C‑202/18, not published, EU:C:2018:489.

10      C‑238/18, not published, EU:C:2018:488.

11      C‑238/18 R, not published, EU:C:2018:581.

12      In the words of Article 35.5 of the Statute of the ESCB and of the ECB, as a general rule, a decision of the ECB to bring an action before the Court of Justice of the European Union is to be taken by the Governing Council. Article 14.2 of that Statute states, on the other hand, that the action provided for in that provision may be brought by the governor concerned or the Governing Council. However, it should be considered that Article 14.2 of the Statute of the ESCB and of the ECB reflects only the internal competence of the Governing Council within the ECB to decide whether to bring an action and is not intended to attribute the right to bring an action to the Governing Council instead of the ECB as a whole. It is therefore correct that in the present case it was the ECB that brought the action in Case C‑238/18, while indicating that it was the Governing Council that took the decision to refer the matter to the Court.

13      See, to that effect, order of 5 October 1983, Chatzidakis Nevas v Caisse des juristes à Athènes (142/83, EU:C:1983:267, paragraphs 3 and 4), and judgment of 30 June 1993, Parliament v Council and Commission (C‑181/91 and C‑248/91, EU:C:1993:271, paragraph 12).

14      Order of the General Court of 23 January 1995, Bilanzbuchhalter v Commission (T‑84/94, EU:T:1995:9, paragraph 26). On the specific power of the ECB to bring an action before the Court of Justice for a declaration that a national central bank has failed to fulfil its obligations under Article 271(d) TFEU, see footnote 25 of this Opinion.

15      See, among many examples, judgments of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 61); of 14 January 2016, Vodafone (C‑395/14, EU:C:2016:9, paragraph 40); and of 25 January 2018, Commission v Czech Republic (C‑314/16, EU:C:2018:42, paragraph 47).

16      See my View in Pringle (C‑370/12, EU:C:2012:675, points 127 to 131), the judgment of 27 November 2012, Pringle (C‑370/12, EU:C:2012:756, paragraph 135), my Opinion in Inuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:21, point 32), and the judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:625, paragraphs 59 and 70).

17      See, in French, ‘un recours contre la décision prise à cet effet peut être introduit’ (Article 14.2 of the Statute of the ESCB and of the ECB) vs. ‘toute personne … peut former… un recours contre les actes …’ (fourth paragraph of Article 263 TFEU); in Dutch, ‘tegen een besluit daartoe kan de betrokken president of de Raad van bestuur beroep instellen’ (Article 14.2 of the Statute of the ESCB and of the ECB) vs. ‘iedere natuurlijke of rechtspersoon kan … beroep instellen tegen handelingen …’ (fourth paragraph of Article 263 TFEU); in German, ‘gegen einen entsprechenden Beschluss kann der betreffende Präsident einer nationalen Zentralbank oder der EZB-Rat … den Gerichtshof anrufen’ (Article 14.2 of the Statute of the ESCB and of the ECB) vs. ‘jede … Person kann … gegen … Handlungen … Klage erheben’ (fourth paragraph of Article 263 TFEU); in Latvian, ‘var apstrīdēt šo lēmumu’ (Article 14.2 of the Statute of the ESCB and of the ECB) vs ‘ jebkura … persona … var celt prasību par tiesību aktu’ (fourth paragraph of Article 263 TFEU).

18      See the proposal of the Governors of the Central Banks of 27 November 1990, published in Agence Europe, Europe/Documents, No 1669/1670, 8 December 1990, pp. 1, 6 of the pdf document (https://www.ecb.europa.eu/ecb/access_to_documents/document/cog_pubaccess/shared/data/ecb.dr.parcg2007_0005draftstatute.en.pdf?c34e41042567a5832ffd2adb7e5baa48), and their proposal of 26 April 1991 (CONF-UEM 1613/91), pp. 1, 12 of the pdf document (https://www.ecb.europa.eu/ecb/access_to_documents/document/cog_pubaccess/shared/data/ecb.dr.parcg2007_0010draftstatute.en.pdf?77031b02df114d03b2da29d4d1ccf33d).

19      Whereas the English version of the fourth paragraph of Article 263 TFEU states that ‘any natural or legal person may… institute proceedings against an act …’.

20      See the Proposal by the Presidency to the Intergovernmental Conference on Economic and Monetary Union of 28 October 1991 (SN 3738/91 (UEM 82)), p. 47 of the pdf document (http://ec.europa.eu/dorie/fileDownload.do;jsessionid=Xy2HP92HJVCBrNG02Sws0jJ2QqCrpL968JlDwYGhB2GL1BTJ2Q1V!233738690?docId=409907&cardId=409907).

21      See, in addition to the English versions (point 46 and footnote 19 of this Opinion), the Spanish versions: ‘el gobernador afectado o el Consejo de Gobierno podrán recurrir las decisiones al respecto ante el Tribunal de Justicia’ (Article 14.2 of the Statute of the ESCB and of the ECB) vs. ‘toda persona … podrá interponer recurso … contra los actos’ (fourth paragraph of Article 263 TFEU); the Italian versions: ‘una decisione in questo senso può essere portata dinanzi alla Corte di giustizia’ (Article 14.2 of the Statute of the ESCB and of the ECB) vs. ‘qualsiasi persona … può proporre… un ricorso contro gli atti’ (fourth paragraph of Article 263 TFEU); the Portuguese versions: ‘o governador em causa ou o Conselho do BCE podem interpor recurso da decisão de demissão para o Tribunal de Justiça’ (Article 14.2 of the Statute of the ESCB and of the ECB) vs. ‘qualquer pessoa … pode interpor… recursos contra os atos …’ (fourth paragraph of Article 263 TFEU); or again the Danish versions: ‘en afgørelse om afskedigelse kan af den pågældende centralbankchef eller af Styrelsesrådet indbringes for Domstolen’ (Article 14.2 of the Statute of the ESCB and of the ECB) vs. ‘enhver … person kan … indbringe klage med henblik på prøvelse af retsakter …’ (fourth paragraph of Article 263 TFEU).

22      See Van den Berg, C.C.A., The Making of the Statute of the European System of Central Banks, Amsterdam, 2005, p. 137 et seq. (account of the discussions relating to Articles 14.1 and 14.2 of the Statute of the ESCB and of the ECB, complete absence of any reference to discussions on the nature of the action provided for in Article 14.2) and also pp. 495 to 497 (where the author lists all the documents consulted and explains that he was personally present at most of the discussions of the working groups (p. 496)); furthermore, the copies of the Agence Europe publication Bulletin quotidien Europe of November and December 1991, which contain, inter alia, information on the discussions on Economic and Monetary Union at ministerial level, also contain no traces whatsoever of a discussion concerning the action provided for in Article 14.2 of the Statute of the ESCB and of the ECB.

23      It is apparent from the dates and documents referred to in points 46 and 48 of this Opinion that those elements were inserted during the few weeks separating the Intergovernmental Conference on the Economic and Monetary Union of 30 October 1991 and the adoption of the Maastricht Treaty at the Conference of the European Council on 9 to 11 December 1991.

24      See, in particular, for the Commission, Article 247 TFEU (members may be retired by the Court on application by the Council or the Commission); for the Court of Justice of the European Union, the first paragraph of Article 6 of the Statute of the Court of Justice of the European Union (a member may be deprived of his office in accordance with the unanimous opinion of the Judges and Advocates General of the Court); for the members of the Executive Board of the ECB, Article 11.4 of the Statute of the ESCB and of the ECB (members may be retired by the Court on application by the Governing Council or the Executive Board); for the Court of Auditors of the European Union, Article 286(6) TFEU (a member may be deprived of his office by the Court of Justice at the request of the Court of Auditors); for the European Ombudsman, Article 228(2) TFEU (the Ombudsman may be dismissed by the Court of Justice at the request of the European Parliament).

25      Unlike what applies to members of the Executive Committee of the ECB (see the preceding footnote), who are appointed according to the procedure laid down in Article 11 of the Statute of the ESCB and of the ECB and who are therefore within the sphere of competence of the European Union, the ECB cannot therefore directly request that the governors of the central banks who are members of the Governing Council of the ECB be relieved from office. If the ECB considered that the governor of a national central bank should be relieved from office, it might have recourse to Article 271(d) TFEU, which allows it to bring an action before the Court of Justice for failure to fulfil obligations against a national central bank if it considers that that bank has failed to fulfil an obligation under the Treaties.

26      See, in that regard, points 151 to 160 of this Opinion.

27      See point 5 of this Opinion.

28      See point 9 of this Opinion.

29      See point 12 of this Opinion.

30      See point 5 of this Opinion.

31      See point 57 of this Opinion.

32      See also on that subject points 151 to 160 of this Opinion.

33      See, apart from the French (‘un gouverneur ne peut être relevé de ses fonctions’) and Latvian (‘Tikai tad, ja vadītājs vairs neatbilst nosacījumiem, kas vajadzīgi pienākumu veikšanai, vai ir izdarījis smagu pārkāpumu, viņu var atbrīvot no amata’) versions, for example, the English version (‘a Governor may be relieved from office only’); the Spanish version (‘un gobernador sólo podrá ser relevado de su mandato’); the Italian version (‘un governatore può essere sollevato dall’incarico solo’); the German version (‘der Präsident einer nationalen Zentralbank kann aus seinem Amt nur entlassen werden’); the Dutch version (‘en president kan slechts van zijn ambt worden ontheven’); the Danish version (‘en centralbankchef kan kun afskediges’); the Portuguese version (‘um governador só pode ser demitido das suas funções’); or again the Romanian version (‘un guvernator poate fi eliberat din funcție numai’) of Article 14.2 of the Statute of the ESCB and of the ECB.

34      See, for the members of the Commission, Articles 246 and 247 TFEU; for the members of the Executive Board of the ECB, Article 11.4 of the Statute of the ESCB and of the ECB; for the Ombudsman, the second subparagraph of Article 228(2) TFEU; and for the members of the Court of Auditors, Article 286(5) TFEU (paragraph 6 of that provision refers on the other hand, in some language versions, to a member being deprived of his office, as does Article 6 of the Statute of the Court of Justice of the European Union as regards the members of that institution).

35      Interlocutory order of 20 July 2018, ECB v Latvia (C‑238/18 R, not published, EU:C:2018:581, paragraph 29).

36      On the particular aspect of the immunity conferred on the members of the Governing Council of the ECB by Protocol (No 7) to the TFEU on the privileges and immunities of the European Union, annexed to the TEU and the TFEU (OJ 2016 C 202, p. 266), see points 143 to 150 of this Opinion.

37      See point 119 et seq. of this Opinion.

38      See point 11 of this Opinion.

39      See point 57 of this Opinion.

40      Article 130 TFEU and Article 7 of the Statute of the ESCB and of the ECB.

41      C‑432/04, EU:C:2006:140, point 69.

42      See point 56 and footnote 24 of this Opinion.

43      See, to that effect, judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455, paragraphs 120 and 121).

44      See points 37 and 56 of this Opinion.

45      See point 17 of this Opinion.

46      See, for a similar reflection on the standards for proper conduct that must be observed in the exercise of the duties of Members of the Commission, Opinion of Advocate General Geelhoed in Commission v Cresson (C‑432/04, EU:C:2006:140, point 77).

47      See points 5 and 76 of this Opinion.

48      See, in particular, for Members of the Commission, Article 17(3) TEU and Article 245 TFEU and, for Members of the Court of Justice of the European Union, Article 19(2) TEU and Articles 253 and 254 TFEU.

49      Judgment of 11 July 2006, Commission v Cresson (C‑432/04, EU:C:2006:455, paragraph 70).

50      See, in particular, for the Ombudsman, Article 228(2) TFEU; for Members of the Commission, Article 247 TFEU; for Members of the Executive Board of the ECB, Article 11.4 of the Statute of the ESCB and of the ECB; for officials and other servants of the European Union, Article 86(1) of the Staff Regulations of Officials of the European Union, Articles 9 and 10 of Annex IX to those Staff Regulations and Article 49 of the Conditions of employment of other servants of the European Union.

51      See, to that effect and by analogy, judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the judicial system) (C‑216/18 PPU, EU:C:2018:586, paragraph 79).

52      See judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the judicial system) (C‑216/18 PPU, EU:C:2018:586, paragraphs 35 to 37 and the case-law cited).

53      See point 17 of this Opinion.

54      See point 18 of this Opinion.

55      See point 10 of this Opinion.

56      Free translation.

57      Free translation.

58      See just below, points 125 to 130 of this Opinion.

59      See point 22 of this Opinion.

60      C‑238/18 R, not published, EU:C:2018:581; see points 21 and 31 of this Opinion.

61      See point 22 of this Opinion.

62      See, to that effect and by analogy, judgment of the General Court of 16 June 2015, FSL and Others v Commission (T‑655/11, EU:T:2015:383, paragraphs 175 and 176 and the case-law cited).

63      The only material produced by the Republic of Latvia with its defence in Case C‑238/18 is a Draft Law amending the Law on the Bank of Latvia, an Opinion of the ECB of 2 October 2012 on preparations and legal amendments required for the introduction of the euro and a letter from the Bank of Latvia of 13 April 2018 concerning the information necessary in the context of Case C‑238/18.

64      See point 33 of this Opinion.

65      Namely decisions and written pleadings of the KNAB and of the prosecution, complaints and written pleadings of Mr Rimšēvičs’s lawyer, the decisions of the judge with responsibility for reviewing compliance with human rights of the Rīgas rajona tiesa (District Court, Riga) of 27 February 2018 and of the judge with responsibility for reviewing compliance with human rights of the Rīgas pilsētas Vidzemes priekšpilsētas tiesa (Riga City Court (Vidzeme District)) of 22 August 2018 (see points 110 to 118 of this Opinion), and also documents relating to the interlocutory order of the Vice-President of the Court of Justice of 20 July 2018 and its execution in Latvia (see points 21 and 22 of this Opinion).

66      The decisions of the judge with responsibility for reviewing compliance with human rights of the Rīgas rajona tiesa (District Court, Riga) of 27 February 2018 and of the judge with responsibility for reviewing compliance with human rights of the Rīgas pilsētas Vidzemes priekšpilsētas tiesa (Riga City Court (Vidzeme District)) of 22 August 2018 (see points 110 to 118 of this Opinion).

67      See point 17 of this Opinion.

68      See, in particular, judgments of 15 May 1986, Johnston (222/84, EU:C:1986:206, paragraph 21), and of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraphs 336 and 337 and the case-law cited).

69      Judgment of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119).

70      See, mutatis mutandis, judgment of the Civil Service Tribunal of 7 October 2009, Y v Commission (F‑29/08, EU:F:2009:136, paragraphs 74 and 75).

71      See point 108 of this Opinion.

72      See, concerning those conditions, in particular, judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117, paragraphs 38, 42, 44 and 45 and the case-law cited).

73      See the legislative provisions on the KNAB cited in point 13 of this Opinion.

74      See point 86 of this Opinion.

75      See on that subject, in particular, judgment of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 125 to 129), and Article 105 of the Rules of Procedure of the General Court of 4 March 2015 (OJ 2015 L 105, p. 1), as amended on 13 July 2016 (OJ 2016 L 217, p. 72).

76      See point 65 of this Opinion.

77      Conversely, Article 9 of that protocol refers, with respect to Members of the Parliament, to ‘immunity from any measure of detention and from legal proceedings’. Article 8 of Protocol (No 7) on the privileges and immunities of the European Union confers on Members of the Parliament material immunity or non-liability for opinions expressed or votes cast by them in the performance of their duties, whereas Article 9 of that protocol guarantees them procedural immunity or inviolability against legal proceedings; see, on that distinction, judgments of 21 October 2008, Marra (C‑200/07 and C‑201/07, EU:C:2008:579, paragraph 24), and of 6 September 2011, Patriciello (C‑163/10, EU:C:2011:543, paragraph 18), and also Opinion of Advocate General Poiares Maduro in Joined Cases Marra (C‑200/07 and C‑201/07, EU:C:2008:369, point 13), and Opinion of Advocate General Jääskinen in Patriciello (C‑163/10, EU:C:2011:379, point 3).

78      See, to that effect, judgment of the General Court of 24 October 2018, RQ v Commission (T‑29/17, EU:T:2018:717, paragraphs 5 to 12); see also, on the same context, order of the President of the General Court of 20 July 2016, Director-General of OLAF v Commission (T‑251/16 R, not published, EU:T:2016:424, paragraphs 10 to 16), and, in a different context, judgment of the Civil Service Tribunal of 13 January 2010, A and G v Commission (F‑124/05 and F‑96/06, EU:F:2010:2, paragraph 60).

79      See points 5, 76 and 101 of this Opinion.

80      See points 16, 17 and 129 of this Opinion.

81      It therefore cannot be precluded that before embarking on its investigation into Mr Rimšēvičs on 15 February 2018, before carrying out inspections or at least before arresting Mr Rimšēvičs on 17 February 2018 (see point 16 of this Opinion), the KNAB ought to have asked the Governing Council of the ECB to waive his immunity.

82      In accordance with Article 26(8) of Regulation No 1024/2013 (see footnote 5 of this Opinion).

83      See point 99 of this Opinion.

84      Mr Rimšēvičs states, without providing further detail, that his arrest was the subject of an appeal at national level, which was dismissed on procedural grounds, and that he is preparing an application to the European Court of Human Rights on the ground of unjustified deprivation of freedom.

85      See, to that effect, judgments of 29 April 1982, Pabst & Richarz (17/81, EU:C:1982:129, paragraph 18); of 11 July 2006, Chacón Navas (C‑13/05, EU:C:2006:456, paragraph 40); and of 21 December 2016, Associazione Italia Nostra Onlus (C‑444/15, EU:C:2016:978, paragraph 66).

86      See point 77 of this Opinion.

87      See points 119 to 122 of this Opinion.

88      See points 140 to 142 of this Opinion.

89      See points 52 to 68 of this Opinion.

90      A party may actually be ordered to pay the costs only if they have been expressly applied for (see judgments of 9 June 1992, Lestelle v Commission, C-30/91 P, EU:C:1992:252, paragraph 38, and of 29 April 2004, Parliament v Ripa di Meana and Others, C-470/00 P, EU:C:2004:241, paragraph 86). Where costs are not claimed, the Court thus, even in the absence of discontinuance or withdrawal, applies by analogy Article 141(4) (‘Costs in the event of discontinuance or withdrawal’) of the Rules of Procedure, according to which ‘if costs are not claimed, the parties shall bear their own costs’ (see, with regard to the third subparagraph of Article 69(5) of the Rules of Procedure of 19 June 1991, judgment of 6 October 2005, Scott v Commission (C-276/03 P, EU:C:2005:590, paragraph 39); see also order of the President of the Court of 6 October 2015, Comité d’entreprise SNCM v Commission (C-410/15 P(I), EU:C:2015:669, paragraph 22)).