Provisional text
JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
12 January 2022 (*)
(Law governing the institutions – Enhanced cooperation on the establishment of the European Public Prosecutor’s Office – Regulation (EU) 2017/1939 – Appointment of the European Prosecutors of the European Public Prosecutor’s Office – Appointment of one of the candidates nominated by Belgium – Rules applicable to the appointment of European Prosecutors)
In Case T‑647/20,
Jean-Michel Verelst, residing in Éghezée (Belgium), represented by C. Molitor, lawyer,
applicant,
v
Council of the European Union, represented by K. Pleśniak, R. Meyer and K. Kouri, acting as Agents,
defendant,
supported by
Kingdom of Belgium, represented by C. Pochet, M. Van Regemorter and M. Jacobs, acting as Agents,
intervener,
APPLICATION under Article 263 TFEU for annulment of Council Implementing Decision (EU) 2020/1117 of 27 July 2020 appointing the European Prosecutors of the European Public Prosecutor’s Office (OJ 2020 L 244, p. 18) in so far as it appoints Mr Yves van den Berge as a European Prosecutor of the European Public Prosecutor’s Office and rejects the candidacy of the applicant,
THE GENERAL COURT (Ninth Chamber),
composed of M.J. Costeira, President, M. Kancheva (Rapporteur) and T. Perišin, Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
1 Since 2010, the applicant, Mr Jean-Michel Verelst, has held the position of Substitut du Procureur du Roi de Bruxelles (Deputy Public Prosecutor, Brussels, Belgium), specialising in taxation matters. Since 2 January 2017, he has also been Director of the Organe central pour la saisie et la confiscation (Central Office for Seizure and Confiscation, Belgium) (‘the OCSC’) within the Belgian Public Prosecutor’s Office, having previously served as its Deputy Director from December 2013.
2 On 12 October 2017, the Council of the European Union adopted Regulation (EU) 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (OJ 2017 L 283, p. 1). That regulation establishes the European Public Prosecutor’s Office as a body of the European Union and sets out rules concerning its functioning.
3 According to recital 40 of Regulation 2017/1939:
‘The procedure for the appointment of the European Chief Prosecutor and the European Prosecutors should guarantee their independence. Their legitimacy should be drawn from the institutions of the Union involved in the appointment procedure.’
4 Recital 41 of Regulation 2017/1939 is worded as follows:
‘A selection panel should establish a short list of candidates for the position of European Chief Prosecutor. The power to establish the panel’s operating rules and to appoint its members should be conferred on the Council, based on a proposal from the [European] Commission. Such an implementing power would mirror the specific powers conferred on the Council under Article 86 TFEU, and reflects the specific nature of the [European Public Prosecutor’s Office], which will remain firmly embedded in national legal structures while at the same time being a Union body. The [European Public Prosecutor’s Office] will be acting in proceedings where most other actors will be national, such as courts, police and other law enforcement authorities, and therefore the Council has a specific interest in being closely involved in the appointment procedure. Conferring those powers on the Council also adequately takes into account the potential sensitive nature of any decision-making powers with direct implications for the national judicial and prosecution structures …’
5 Under Article 16(1) of Regulation 2017/1939, each Member State which participates in enhanced cooperation on the establishment of the European Public Prosecutor’s Office must nominate three candidates for the position of European Prosecutor from among candidates who are active members of the public prosecution service or judiciary of the relevant Member State, whose independence is beyond doubt and who possess the qualifications required for appointment to high prosecutorial or judicial office in that Member State, and who have relevant practical experience of national legal systems, of financial investigations and of international judicial cooperation in criminal matters.
6 Article 16(2) of Regulation 2017/1939 provides that, after having received the reasoned opinion of the selection panel referred to in Article 14(3) of the regulation (‘the selection panel’), the Council is to select and appoint one of the candidates to be the European Prosecutor of the Member State in question and that, if the selection panel finds that a candidate does not fulfil the conditions required for the performance of the duties of a European Prosecutor, its opinion shall be binding on the Council. Under Article 16(3) of Regulation 2017/1939, the Council, acting by simple majority, is to select and appoint the European Prosecutors for a non-renewable term of six years and may decide to extend the mandate for a maximum of three years at the end of the six-year period.
7 Under Article 14(3) of Regulation 2017/1939, the Council is to establish the selection panel’s operating rules and adopt a decision appointing its members on a proposal from the European Commission.
8 On 13 July 2018, the Council adopted Implementing Decision (EU) 2018/1696 on the operating rules of the selection panel provided for in Article 14(3) of Regulation 2017/1939 (OJ 2018 L 282, p. 8).
9 The annex to Implementing Decision 2018/1696 is entitled ‘Operating rules of the selection panel’ (‘the operating rules of the selection panel’). According to point VI.2 of those rules, concerning the procedure for the appointment of European Prosecutors, upon receipt of the nominations made by a Member State, the selection panel is to review them with regard to the requirements set out in Article 16(1) of Regulation 2017/1939 and shall hear the candidates nominated, who must attend the hearing in person. The first paragraph of point VII.2 of those rules provides that, ‘based on its findings during the review and hearing, the selection panel shall formulate an opinion on the candidates’ qualifications to perform the duties of European Prosecutors and shall expressly state whether or not a candidate fulfils the conditions in Article 16(1) of Regulation … 2017/1939’. Under the third paragraph of point VII.2, ‘the selection panel shall rank the candidates according to their qualifications and experience’, a ranking that is to ‘indicate the selection panel’s order of preference and [is not] binding on the Council’.
10 For the purpose of nominating three candidates for the position of European Prosecutor under Article 16(1) of Regulation 2017/1939, the Belgian authorities published a call for applications in the Moniteur belge of 25 January 2019, to which six candidates responded, one of which was the applicant. Those candidates were interviewed by the Collège des procureurs généraux (Belgian Board of Public Prosecutors) and the Procureur fédéral de Belgique (Belgian Federal Prosecutor) on 14 March 2019. In its opinion of 20 March 2019, the Belgian Board of Public Prosecutors stated, in relation to the applicant’s candidacy for the position of European Prosecutor, that ‘[the applicant]’s past and present duties, in particular in combating economic, financial and fiscal crime, and his experience in OCSC management (European missions – ARO – and international missions – CARIN), [were] assets for the role of European Prosecutor within the European Public Prosecutor’s Office’. However, it also stated that ‘[the applicant had] not been able to convince the Board [that he had] a sufficiently clear vision of the tasks and missions of the future European Public Prosecutor’s Office and of the [European] Prosecutor [of a Member State]’. In conclusion, the Belgian Board of Public Prosecutors gave the applicant a ‘reserved evaluation for the role of European Prosecutor (on a scale of very favourable – favourable – reserved – unfavourable)’.
11 By a letter of 11 April 2019, the Belgian Minister for Justice informed the applicant that, on 29 March 2019, pursuant to Article 16(1) of Regulation 2017/1939, he had recommended three candidates for the position of European Prosecutor to the president of the selection panel and that the applicant was one of them.
12 The applicant was heard by the selection panel on 24 May 2019.
13 On 20 June 2019, the selection panel sent to the Council its reasoned opinion on the candidates nominated by the Kingdom of Belgium for the position of European Prosecutor.
14 In that opinion, the selection panel first of all stated that, based on its review of the curriculums vitae and motivation letters and the hearing conducted on 23 and 24 May 2019, it considered that the candidates nominated by the Kingdom of Belgium for the position of European Prosecutor fulfilled the conditions set out in Article 16(1) of Regulation 2017/1939.
15 Next, the selection panel stated that it had ranked the candidates by order of preference and that the applicant was ranked in first position with Mr Yves van den Berge in third position.
16 In relation to the applicant, the selection panel gave the following reasons for the ranking:
‘From among the nominated candidates, the panel considers that [the applicant] is best suited to carry out the function of European Prosecutor within the European Public Prosecutor’s Office … Deputy King’s Prosecutor of Brussels, [the applicant] is the Director of the [OCSC] within the Federal Public Service Justice of Belgium. Throughout his career, [he] has acquired extensive experience in investigations and prosecutions into major financial crimes, including money laundering and serious carousel fraud cases. He has also gained valuable experience in the area of judicial cooperation in criminal matters. [The applicant] is a steering group member and contact point in the Camden Asset Recovery Inter-Agency Network (CARIN) and regularly participates in EU [w]orking groups related to the confiscation of illicitly acquired assets. [The applicant] demonstrated his high ability to work in a multicultural environment, including the capacity to confront himself with legal systems different from his own and solid knowledge of the institutional legal framework of the European Union. He furthermore has substantial managerial experience.
During his hearing, [the applicant] presented a strategic vision on the role and functioning of the European Prosecutor within the [European Public Prosecutor’s Office] and provided very precise replies to the questions posed by the panel. He demonstrated a good understanding of [Regulation 2017/1939] as well as the challenges the [European Public Prosecutor’s Office] could face and put forward viable solutions to address them. The panel appreciated his emphasis on … the necessity for the [European Public Prosecutor’s Office] to respect fundamental and procedural rights in its proceedings. The panel particularly valued his specialised expertise in the area of confiscation and the recovery of illicitly acquired assets as well as his pragmatic approach in solving potential conflicts. The panel is convinced that [the applicant] fulfils all the requirements to be an efficient European Prosecutor.’
17 The question of the selection and appointment of European Prosecutors was examined by the Council’s Justice and Home Affairs Counsellors during six successive meetings (‘the COPEN meetings’), held on 9 September, 26 November and 12 December 2019 and on 1, 20 and 22 July 2020.
18 On 18 September 2019, the Presidency of the Council sent to the Permanent Representatives Committee (Coreper) a document entitled ‘Tasks and procedure for the selection of the European Prosecutors’. Paragraph 8 of that document stated as follows:
‘The technical preparatory work will be conducted by the relevant Council bodies (COPEN Working Party and/or JHA Counsellors, as appropriate). The examination will be done on the basis of the reasoned opinions sent by the selection panel, taking into account the selection panel’s non-binding order of preference and the fact that the merits and the professional qualifications of the candidates included in the shortlist have already been carefully assessed by the selection panel. As a result of this examination, the relevant Council body will suggest the selection of the European Prosecutors and recommend to [Coreper] to appoint them. In accordance with Article 16(3) and (4) of [Regulation 2017/1939], the Council, acting by simple majority of the participating Member States, shall select and appoint the European Prosecutors …’
19 At the COPEN meeting of 26 November 2019, the Belgian delegation stated [confidential]. (1)
20 During the COPEN meeting of 12 December 2019, [confidential].
21 On 27 February 2020, the Kingdom of Belgium provided the Council with a written justification concerning [confidential].
22 In that written justification, the Kingdom of Belgium [confidential].
23 The Kingdom of Belgium then set out the position of the Belgian Board of Public Prosecutors and the Federal Prosecutor in the following terms:
‘[confidential]’
24 The Kingdom of Belgium also explained why it considered that the opinion of the Board of Public Prosecutors should be taken into account in the present case, as follows:
‘[confidential]’
25 The Kingdom of Belgium also explained that ‘[confidential]’.
26 Concluding its written justification, the Kingdom of Belgium stated that ‘[confidential]’.
27 At the COPEN meeting of 1 July 2020, the Presidency of the Council recalled that [confidential].
28 Accordingly, the matter of the selection and appointment of the European Prosecutor of the Kingdom of Belgium was a point of discussion at the meeting of the ‘Antici group’ on 13 July 2020.
29 On 24 July 2020, Coreper adopted the draft decision for the appointment of European Prosecutors of the European Public Prosecutor’s Office.
30 On 27 July 2020, the Council adopted Implementing Decision (EU) 2020/1117 appointing the European Prosecutors of the European Public Prosecutor’s Office (OJ 2020 L 244, p. 18, ‘the contested decision’).
31 Recitals 7 and 8 of the contested decision are worded as follows:
‘(7) The selection panel drew up the reasoned opinions and the ranking for each of the nominated candidates who fulfilled the conditions set out in Article 16(1) of Regulation (EU) 2017/1939 and submitted them to the Council, which received them on 29 May, 20 June, 11 October, 18 November and 10 December 2019, and on 16 July 2020.
(8) Pursuant to the fourth paragraph of [point] VII.2 of the operating rules of the selection panel, the selection panel ranked the candidates according to their qualifications and experience. The ranking indicates the selection panel’s order of preference and is not binding on the Council.’
32 In recital 12 of the contested decision, the Council stated that it had assessed the respective merits of the candidates taking into account the reasoned opinions submitted by the selection panel. In recital 13 of that decision, the Council explained that, as a result of that assessment, it had followed the non-binding order of preference indicated by the selection panel for all the candidates nominated by the participating Member States except for those nominated by the Kingdom of Belgium, the Republic of Bulgaria and the Portuguese Republic, for which it had based its decision on a different assessment of the merits of those candidates which was carried out in the relevant preparatory bodies of the Council.
33 Article 1 of the contested decision provides as follows:
‘The following persons are hereby appointed European Prosecutors of the [European Public Prosecutor’s Office] as temporary agents at grade AD 13 for a non-renewable period of six years from 29 July 2020:
Mr Yves van den Berge
…’
34 By letter of 7 October 2020, the Council notified the applicant, and all the other unsuccessful candidates, of the contested decision and provided them with relevant information about the reasons behind its decision to appoint another candidate, namely Mr van den Berge.
35 The Council explained [confidential].
36 The Council provided various details in this regard. It stated [confidential].
37 The Council also pointed out [confidential].
38 In addition, the Council stated [confidential].
39 In that letter, the Council also explained [confidential].
40 By letter of 19 October 2020, the applicant asked the Council to send him all documents relating to the conduct of the selection procedure in so far as they concerned him. In reply, on 25 November 2020, the Council sent to the applicant the selection panel’s assessment of his candidacy, the written justification submitted by the Kingdom of Belgium for departing from the order of preference drawn up by the selection panel in respect of the candidates nominated by that Member State for the position of European Prosecutor, extracts from the outcomes of the proceedings of the COPEN meetings of 26 November 2019, 12 December 2019 and 1 July 2020, in so far as they concerned the selection of the candidates nominated by that Member State, together with Council document 12175/19 of 18 December 2019 outlining the process to be followed within the Council for the appointment of European Prosecutors, and two other documents relating to the involvement of the ‘Antici group’ in that process.
Procedure and forms of order sought
41 By application lodged at the Court Registry on 21 October 2020, the applicant brought the present action.
42 By document lodged at the Court Registry on 18 January 2021, the Kingdom of Belgium sought leave to intervene in the present proceedings in support of the form of order sought by the Council. By decision of 23 February 2021, the President of the Ninth Chamber of the General Court granted leave to intervene. The Kingdom of Belgium lodged its statement in intervention and the main parties informed the Court within the prescribed periods that they did not have any observations to make on that statement.
43 On 26 January 2021, the Council lodged its defence at the Court Registry.
44 In response to a reasoned application presented by the Council on 11 February 2021, on the basis of Article 66 of the Rules of Procedure of the General Court, the Court decided to omit from the public version of the present judgment the content of the Council’s letter of 7 October 2020, annexed to the application, and the Council’s letter of 25 November 2020 and its annexes, annexed to the defence.
45 The applicant and the Council lodged the reply and the rejoinder on 12 March and 19 April 2021 respectively.
46 Following the death of Judge Berke on 1 August 2021, the President of the Ninth Chamber designated another Judge to complete the Chamber.
47 In the context of measures of organisation of procedure laid down in Article 89 of the Rules of Procedure, the Court put written questions to the parties. The parties replied to those questions within the prescribed period.
48 The Court decided, pursuant to Article 106(3) of the Rules of Procedure, to rule on the action without an oral part of the procedure.
49 The applicant claims that the Court should:
– annul the contested decision in so far as it appoints Mr van den Berge as European Prosecutor of the European Public Prosecutor’s Office with effect from 29 July 2020;
– order the Council to pay the costs.
50 The Council contends that the Court should:
– dismiss the action as unfounded;
– order the applicant to pay the costs;
– in the alternative, maintain the effects of the contested decision in accordance with the second paragraph of Article 264 TFEU until such time as that decision is replaced by a new act adopted in the prescribed manner, but no later than 24 months from the date when a decision of the EU Courts definitively disposing of the present case takes effect.
51 The Kingdom of Belgium contends that the Court should dismiss the action.
Law
52 In support of its action, the applicant puts forward, in essence, three pleas in law. The first plea in law alleges, in essence, infringement of the rules applicable to the appointment of European Prosecutors, in particular, the procedural rules laid down in Article 14(3) and Article 16(1) to (3) of Regulation 2017/1939, of Article 1 of Implementing Decision 2018/1696, of points VI.2 and VII.2 of the operating rules of the selection panel and of the principle of non-discrimination. The second plea in law alleges infringement of the obligation to state reasons referred to in Article 296 TFEU and enshrined in Article 41 of the Charter of Fundamental Rights of the European Union. The third plea in law alleges infringement of the principle of sound administration and of the duty to have regard for the welfare of officials as well as a manifest error of assessment.
The first plea in law, alleging infringement of the rules applicable to the appointment of European Prosecutors and the principle of non-discrimination
53 The first plea comprises two parts.
The first part of the first plea in law
54 By the first part of the first plea, the applicant submits, in essence, that the Council infringed the provisions governing the procedure for the adoption of the contested decision by comparing the merits of the three candidates nominated by the Kingdom of Belgium on the basis of the opinion of the Belgian Board of Public Prosecutors and the Belgian Federal Prosecutor rather than that of the selection panel.
55 The applicant submits, in that regard, that it is clear from Article 16 of Regulation 2017/1939 that the Council is to select and appoint one of the three candidates nominated by each of the Member States which participate in the European Public Prosecutor’s Office after having received the reasoned opinion of the selection panel. It follows that the selection by the Council of one of the three candidates in question must necessarily be based on the opinion of the selection panel. According to the applicant, the Council cannot, therefore, replace the opinion of the selection panel by that of the Member State concerned or of the competent national authority, the role of which is limited to the nomination of three candidates who fulfil the conditions set out in Article 16(1) of Regulation 2017/1939.
56 That interpretation of Article 16 of Regulation 2017/1939 was confirmed by the Council itself in internal document 12175/19 of 18 September 2019 outlining the process to be followed within the Council for the appointment of European Prosecutors, which is annexed to the defence.
57 According to the applicant, it is clear from recital 13 of the contested decision, from the Council’s letter of 7 October 2020 and from the evidence submitted by the Council and annexed to the defence that, in relation to the appointment of a candidate nominated by the Kingdom of Belgium to the position of European Prosecutor, the Council, in breach of Article 16 of Regulation 2017/1939, disregarded the comparison of the merits of the candidates nominated by that Member State that had been drawn up by the selection panel in its reasoned opinion in favour of a different comparison of merits, not provided for by Regulation 2017/1939, carried out by unauthorised bodies, by adopting the opinion issued by the Belgian Board of Public Prosecutors and the Belgian Federal Prosecutor.
58 The Council and the Kingdom of Belgium dispute the applicant’s arguments.
59 As a preliminary point, it must be noted that the applicant does not dispute that the procedure that led to the adoption of the contested decision took place as described in paragraphs 10 to 30 above.
60 It must also be noted that the applicant has not raised a plea of illegality in respect of Article 16 or Article 14 of Regulation 2017/1939, or in respect of the operating rules of the selection panel, but that he submits that those provisions have, in the present case, been infringed by the Council.
61 In that regard, concerning the provisions governing the procedure that led to the adoption of the contested decision, it must be recalled that, under Article 16(2) of Regulation 2017/1939, the Council is to select and appoint as European Prosecutor of the Member State concerned one of the three candidates nominated by that Member State, after having received the reasoned opinion of the selection panel. The same provision states that, if the selection panel finds that a candidate does not fulfil the conditions required for the performance of the duties of a European Prosecutor, its opinion shall be binding on the Council.
62 It should also be recalled that, under Article 16(3) of Regulation 2017/1939, ‘the Council, acting by simple majority, shall select and appoint the European Prosecutors for a non-renewable term of six years …’
63 The exact scope of the tasks entrusted to the selection panel is detailed in the operating rules of the selection panel.
64 Under point VI.2 of the operating rules of the selection panel, that panel is to review the candidacies of the nominated candidates with regard to the requirements set out in Article 16(1) of Regulation 2017/1939 and is to hear those candidates, who must attend the hearing in person. Under the first paragraph of point VII.2 of those rules, based on its findings during the reviews and the hearings, the selection panel is to issue a reasoned opinion on the candidates’ qualifications to perform the duties of European Prosecutor and is to expressly state whether or not a candidate fulfils the conditions in Article 16(1) of Regulation 2017/1939. According to the second paragraph of point VII.2 of the operating rules du selection panel, ‘in the event that nominated candidates do not fulfil [those] conditions …, the selection panel shall, through its secretariat, request that the Member State concerned nominate a corresponding number of new candidates’. Finally, under the third paragraph of point VII.2 of those operating rules, the selection panel is to rank the candidates according to their qualifications and experience, indicating an order of preference which is not binding on the Council.
65 It is clear from those provisions that, in relation to the procedure for appointing European Prosecutors, as the Council rightly points out, the selection panel’s mission consists of two separate tasks. The first task is to draw up a reasoned opinion on the candidates’ qualifications to perform the duties of European Prosecutor, expressly stating whether or not a candidate fulfils the conditions in Article 16(1) of Regulation 2017/1939. That opinion, which is issued after the selection panel has reviewed the candidacies and heard the candidates in person, binds the Council if it finds that a candidate does not fulfil the conditions required for the performance of the duties of a European Prosecutor. In that situation, the selection panel invites the Member State concerned to nominate a new candidate. The Council, which, under Article 16(2) of Regulation 2017/1939, can only select and appoint one of the three candidates nominated by the Member State for the position of European Prosecutor once it has received the reasoned opinion of the selection panel on the qualifications of the candidates to perform those duties, can, therefore, only take a decision in that regard once the selection panel has given a positive reasoned opinion on three candidates nominated by the Member State concerned. It follows that the selection panel’s first task is to ensure that the Council has to choose between three candidates who, in terms of their qualifications, all fulfil the conditions required for the performance of the duties of European Prosecutor.
66 The selection panel’s second task is to rank the candidates nominated by the Member State concerned, according to their qualifications and experience, in other words, to produce a comparison of the candidates’ merits that indicates an order of preference. As was pointed out in paragraph 64 above, the third paragraph of point VII.2 of the operating rules of the selection panel expressly provides that that ranking is not binding on the Council. It follows that the selection panel’s second task consists of carrying out, on a purely consultative basis, a comparison of the merits of the three candidates nominated by the Member State concerned who fulfil the conditions required for the performance of the duties of a European Prosecutor, on which the Council can, if applicable, base its decision to appoint one of those candidates to the position of European Prosecutor.
67 In the present case, it is apparent from the opinion of the selection panel of 20 June 2020 relating to the three candidates nominated by the Kingdom of Belgium for the position of European Prosecutor, the content of which is outlined in paragraphs 14 to 16 above, that, having examined the candidacies and heard the candidates, the selection panel considered that the candidates fulfilled the conditions required for the performance of the duties of European Prosecutor set out in Article 16(1) of Regulation 2017/1939. It is also apparent from that opinion that the selection panel drew up a ranking of the candidates by order of preference, in which the applicant was ranked in first position and Mr van den Berge in third position, and that that order of preference was based on a comparison of the candidates’ qualifications and experience.
68 It is also clear from the outcomes of the proceedings of the various COPEN meetings (see paragraphs 19, 20 and 27 above) that, during the review of the candidacies for the position of European Prosecutor, the delegation of the Kingdom of Belgium stated [confidential].
69 It is also apparent from recital 13 of the contested decision (see paragraph 32 above) and from the Council’s letter of 7 October 2020 (see paragraphs 34 to 36 above) that, in relation to the appointment of the European Prosecutor of the Kingdom of Belgium, the Council did not base its decision on the ranking drawn up by the selection panel but ‘on a different assessment of the merits’. It is apparent from those same documents that, in that assessment, particular attention was given to the fact that [confidential].
70 It must therefore be held that although, based on its ranking of the three candidates nominated by the Kingdom of Belgium for the position of European Prosecutor according to their qualifications and experience, the selection panel actually considered the applicant to be the candidate best suited to perform the duties in question, the Council based the contested decision on a different assessment of the merits, in which the opinion of the Belgian Board of Public Prosecutors, which had been sent to the Council by the Belgian authorities, played a decisive role.
71 First, it must be recalled that, under the third paragraph of point VII.2 of the operating rules of the selection panel, the ranking drawn up by the selection panel according to the qualifications and experience of the three candidates nominated by the Member State concerned is not binding on the Council (see paragraph 63 above).
72 Secondly, it must be noted that neither Article 16(2) or (3) of Regulation 2017/1939 nor the operating rules of the selection panel precludes the Council, when selecting between the three candidates nominated by a Member State as part of the authority granted to it by Article 16(2) and (3), from taking account of information provided to it by the governments of its Member State representatives, or indeed by the Member State itself.
73 It follows that the applicant is wrong to maintain that the contested decision was adopted in breach of the rules of procedure governing its adoption, in particular, Articles 14 and 16 of Regulation 2017/1939 and points VI.2 and VII.2 of the operating rules of the selection panel.
74 Consequently, the first part of the first plea must be rejected as being unfounded.
The second part of the first plea in law
75 By the second part of the first plea, the applicant submits that the Council infringed the principle of non-discrimination by basing its decision to appoint the European Prosecutors of the Kingdom of Belgium, the Republic of Bulgaria and the Portuguese Republic on an assessment of merits carried out by a body not empowered to do so, while basing that same decision as regards the other Member States participating in the European Public Prosecutor’s Office on the opinion of the selection panel, in accordance with Regulation 2017/1939.
76 In that regard, it should be recalled that the general principle of non-discrimination or of equal treatment is infringed only where comparable situations are treated differently or different situations are treated in the same way, unless such difference of treatment is objectively justified (see judgments of 5 December 2013, Solvay v Commission, C‑455/11 P, not published, EU:C:2013:796, paragraph 77 and the case-law cited, and of 16 June 2021, Krajowa Izba Gospodarcza Chłodnictwa i Klimatyzacji v Commission, T‑126/19, EU:T:2021:360, paragraph 47 and the case-law cited).
77 In the present case, contrary to what the applicant maintains, the fact that the Council did not follow the ranking drawn up by the selection panel for the appointment of the European Prosecutors for the Kingdom of Belgium, the Republic of Bulgaria and the Portuguese Republic does not mean that, in the present case, the Council based its decision in that regard on an assessment of the merits carried out by a body not empowered to do so.
78 It must be recalled that the provisions of Regulation 2017/1939 and the operating rules of the selection panel make it clear that the ranking drawn up by the selection panel of the candidates nominated by a Member State participating in the European Public Prosecutor’s Office is not binding on the Council and that it is permissible for the Council to take account of information provided to it by the Member State representatives when comparing the merits of the candidates, something that it is ultimately responsible for doing (see paragraphs 71 and 72 above).
79 Therefore, as the Council asserts, the fact that the application of the procedural rules set out in Regulation 2017/1939 led, in some cases, to the Council following the ranking drawn up by the selection panel and, in other cases, to the Council departing from that ranking and basing its decision on a different assessment of the merits is not such as to establish that some of the candidates were discriminated against.
80 Consequently, the second part of the first plea must be rejected as being unfounded, as must, therefore, the first plea in its entirety.
The second plea in law, alleging infringement of the obligation to state reasons
81 The applicant submits that the contested decision, as it was published in the Official Journal of the European Union, lacks a sufficient statement of reasons to explain why the Council chose to depart from the order of preference drawn up by the selection panel and to base its decision on a different assessment of the merits, carried out by the preparatory bodies of the Council.
82 According to the applicant, the Council’s letter of 7 October 2020 cannot compensate for that failure to state sufficient reasons. In the first place, that amounted to reasons which were communicated after the event and which did not, therefore, appear in the contested decision as published in the Official Journal. The stated reasons behind a decision, the purpose of which is precisely to set out the basis for that decision and to justify the choice made by the Council in adopting that decision, must exist and be identified at the time that the decision is adopted.
83 In the second place, the reasons given in that letter are irrelevant, since they are inconsistent with the system for assessing the candidacies for the position of European Prosecutor established by Regulation 2017/1939. The applicant refers here to the fact that the Council justified its choice of the candidate appointed as European Prosecutor of the Kingdom of Belgium by the fact that [confidential]. The applicant also refers, in that regard, to the fact that the Council justified its choice by the fact that [confidential]. According to the applicant, those facts were not sufficient to justify the Council favouring the opinion of a national authority over that of the competent EU body, namely the selection panel. Furthermore, according to the applicant, the matter of [confidential] does not justify preference being given to the candidacy of the appointed candidate over that of the applicant.
84 The Council and the Kingdom of Belgium dispute the applicant’s arguments.
85 It must, first of all, be recalled that the statement of reasons required under Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights depends on the nature of the measure in question and on the context in which it was adopted. The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the institution, so as to enable the persons concerned to ascertain the reasons for it so that they can defend their rights and ascertain whether or not the measure is well founded and to enable the EU judicature to exercise its power of review (see, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 29 and the case-law cited).
86 It follows that the statement of reasons must, in principle, be communicated to the person concerned at the same time as the act adversely affecting him or her and that a failure to state reasons cannot be remedied by the fact that the person concerned learns of the reasons for the decision during the proceedings before the EU Courts (judgment of 28 February 2008, Neirinck v Commission, C‑17/07 P, EU:C:2008:134, paragraph 50; see, also, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 51 and the case-law cited).
87 In the present case, it must be noted that, by the contested decision, the Council selected and appointed to the position of European Prosecutor one of the three candidates nominated by each of the Member States which participate in the enhanced cooperation on the establishment of the European Public Prosecutor’s Office.
88 First, it must be noted that an appointment decision such as this cannot be regarded as a measure of general application, since it is not directed at a category of addressees determined in a general and abstract manner and all EU litigants who are subject to the jurisdiction of the European Public Prosecutor’s Office likewise cannot be regarded as such a category of persons by the appointment decision. The fact that the contested decision was published in the Official Journal does not alter its legal nature (see order of 8 July 2021, Mendes de Almeida v Council, T‑75/21, not published, under appeal, EU:T:2021:424, paragraph 51 and the case-law cited).
89 Secondly, it must be noted that the decision to appoint to the position of European Prosecutor some of the candidates nominated by the Member States which participate in enhanced cooperation on the establishment of the European Public Prosecutor’s Office is inextricably linked to the implicit refusal to appoint to the same position the other candidates nominated by those Member States (see order of 8 July 2021, Mendes de Almeida v Council, T‑75/21, not published, under appeal, EU:T:2021:424, paragraph 52 and the case-law cited).
90 It follows that the contested decision must be regarded as a bundle of individual decisions adversely affecting individuals who are not the addressees of those decisions, namely those candidates nominated by the Member States participating in the European Public Prosecutor’s Office whom the Council did not appoint as European Prosecutor (see order of 8 July 2021, Mendes de Almeida v Council, T‑75/21, not published, under appeal, EU:T:2021:424, paragraph 53 and the case-law cited).
91 It must therefore be held that, in the light of the case-law cited in paragraphs 85 and 86 above, the reasons underlying the contested decision, in as far as it constituted an implicit rejection of the applicant’s candidacy for the post of European Prosecutor of the Kingdom of Belgium, should, in principle, have been communicated to him at the same time as the contested decision.
92 In that regard, it must be held that the only statement of reasons contained in the contested decision, as published in the Official Journal, is to be found in recital 13 thereof. This states that, ‘as regards the candidates nominated by Belgium, Bulgaria and Portugal, the Council did not follow the non-binding order of preference of the selection panel, on the basis of a different assessment of the merits of those candidates which was carried out in the relevant preparatory bodies of the Council’.
93 The applicant submits that it was not possible for him to understand from that reasoning why the Council had chosen to depart from the order of preference drawn up by the selection panel, which had named him as the candidate best suited to perform the duties of European Prosecutor out of the candidates nominated by the Kingdom of Belgium. According to the applicant, given the content of the selection panel’s opinion, the Council was required to justify why it had decided to depart from that order of preference.
94 In that regard, it must be borne in mind that it is not necessary for the reasoning to go into all the relevant facts and points of law, since the question of whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraph 88 and the case-law cited).
95 As stated in paragraph 66 above, it is clear from the third paragraph of point VII.2 of the operating rules of the selection panel that the ranking given by the selection panel to the three candidates nominated by the Kingdom of Belgium for the position of European Prosecutor according to the candidates’ qualifications and experience was not binding on the Council. The Council was therefore at liberty either to use that ranking or to base its decision on a different assessment of the candidates’ merits.
96 Therefore, the applicant is wrong to submit that the statement of reasons in the contested decision should have enabled him to understand why the Council had decided not to follow the order of preference drawn up by the selection panel.
97 Nonetheless, it must be noted that, contrary to what the Council maintains, the statement of reasons contained in recital 13 of the contested decision is not, in itself, such as to allow either the applicant or the Court to understand why the Council considered that the candidacy of the candidate appointed to the position of European Prosecutor of the Kingdom of Belgium was of greater merit than that of the applicant.
98 The Council’s argument claiming that the applicant could tell why the candidacy of the appointed candidate was favoured over his own as he had received the opinion of the Belgian Board of Public Prosecutors and the opinion of the selection panel, to the extent that those documents related to him, is not sufficient to call that finding into question, since there was no indication in the contested decision that the Council had based its decision on the information supplied by the Kingdom of Belgium concerning the opinion of the Belgian Board of Public Prosecutors and the Federal Prosecutor as to the most suitable candidate to perform the duties of European Prosecutor.
99 However, it must be found that, in its letter of 7 October 2020, the content of which is outlined in paragraphs 34 to 36 above, the Council set out in sufficient detail the reasons why it considered the appointed candidate better suited to the performance of the duties of a European Prosecutor than the other two candidates.
100 Therefore, while it would have been desirable for the applicant to be informed of the supplemental reasons for the rejection of his candidacy at the same time that the contested decision was published in the Official Journal, it must be noted that the applicant was apprised of those reasons by means of the Council’s letter of 7 October 2020, that is, before he brought his action, and that, in the circumstances, a communication of that sort allowed him to understand the justification for the decision and to defend his rights, as can be seen from the arguments put forward in support of the third plea, which expressly refer to the reasons invoked by the Council in its letter of 7 October 2020.
101 It follows that the applicant cannot reasonably claim that there was an infringement of the obligation to state reasons as set out in the case-law referred to in paragraphs 85 and 86 above.
102 Furthermore, it must be borne in mind that the plea alleging infringement of the second paragraph of Article 296 TFEU is a separate plea from the one alleging a manifest error of assessment. While the former, which alleges a failure to state reasons or the inadequacy of the reasons stated, concerns an infringement of essential procedural requirements, within the meaning of Article 263 TFEU, and is a ground involving a question of public policy, which must be raised by the EU Courts of their own motion, the latter, which concerns the substantive legality of a decision, is concerned with the infringement of a rule of law relating to the application of the FEU Treaty, again within the meaning of Article 263 TFEU, and may be examined by the EU Courts only if it is raised by the applicant. The obligation to state reasons is thus a separate question from that of the merits of the reasons of the contested decision (see, to that effect, judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 67).
103 Therefore, to the extent that they are raised in support of a plea alleging infringement of the obligation to state reasons, the applicant’s arguments claiming that the reasons given by the Council in its letter of 7 October 2020 were inconsistent with the system for assessing the candidacies for the position of European Prosecutor established by Regulation 2017/1939, in that the Council favoured the opinion of the Belgian Board of Public Prosecutors over that of the selection panel, must, therefore, be rejected as irrelevant.
104 In any event, to the extent that those arguments largely overlap with the arguments raised by the applicant in support of the third plea in so far as it alleges a manifest error of assessment, they will be examined in the context of that plea.
105 It follows that the second plea, alleging infringement of the obligation to state reasons, must be rejected as being unfounded.
The third plea in law, alleging infringement of the principle of sound administration and of the duty to have regard for the welfare of officials as well as a manifest error of assessment
106 The applicant states that Article 41(1) of the Charter of Fundamental Rights, under the heading of the right to good administration, lays down the right to fair and impartial treatment. In civil service matters, in particular those relating to the appointment or nomination to public office or public service posts, that principle has led to the emergence of a duty to have regard for the welfare of officials, which means that an authority reviewing a file, especially when that authority has a power of discretion, must examine objectively all the evidence submitted to it. The applicant points out that the Civil Service Tribunal of the European Union has held that, in the context of a recruitment procedure, an institution, by neglecting to actually exercise the power of discretion available to it and failing to take into account evidence that benefited an applicant concerning both the rules applicable to the recruitment and the qualifications and merits of the person, and, thus by not actually exercising its power of discretion in the light of all the relevant facts of the case, had infringed the principle of sound administration and the duty to have regard for the welfare of officials, and had committed a manifest error of assessment.
107 In the present case, since the decision of the Council to select and appoint one of the candidates to the position of European Prosecutor of the Member State concerned could only be taken once the reasoned opinion of the selection panel had been received, and since the selection panel was responsible for ranking the candidates according to their qualifications and experience, it fell to the Council, in any event, to justify its choice and appointment of a candidate by actually and effectively carrying out a comparison of the candidates’ merits, either by referring to the selection panel’s opinion or, based on the information in that opinion, by conducting the comparison exercise itself.
108 In addition, the applicant submits that the Council was obliged to base its decision on a comparison of the merits using objective data, namely by comparing the candidates’ files with the qualifications required to perform the duties of European Prosecutor. According to the applicant, given the extent of his professional experience in terms of both the investigation and prosecution of financial crimes and in judicial cooperation in criminal matters, a comparison of the merits of that kind would have led to the Council finding that his experience was more comprehensive than that of the appointed candidate, as is apparent from the opinion of the selection panel. However, the Council did not carry out any such comparison of the merits but merely repeated the matters contained in the written justification provided by the Belgian authorities which pertained to the merits of the selected candidate without comparing them to those of the other candidates, in particular the applicant.
109 The applicant also complains that the Council favoured the opinion of the Belgian Board of Public Prosecutors over the opinion of the selection panel without expressing a view on the content of the latter or justifying its decision to depart from it.
110 The applicant also states that there is nothing on the file to support the assertion that the opinion of the Belgian Board of Public Prosecutors and the Federal Prosecutor was based, inter alia, on a general assessment of the candidates’ performance throughout their careers. By contrast, according to the applicant, the selection panel did base its assessment on the career progression of the candidates put forward and, as the selection panel noted in its opinion, the applicant had substantial management experience, which could not be said for the other two candidates nominated by the Kingdom of Belgium.
111 The applicant also submits that the Council’s assertion in the defence that it ‘particularly valued the abilities and experience of candidates in defining and coordinating the implementation of central-level criminal policies in Member States, including judicial cooperation in criminal matters, and the ability to take on high-level responsibility for coordination and supervision’ cannot be ascertained from the file, in particular from the statement of reasons in the contested decision, nor can it justify preference being given to the appointed candidate, in view of the fact that the applicant had more comprehensive experience in those areas.
112 The applicant also maintains that the Council’s assertion that ‘it noted that, in relation to the other two candidates nominated by [the Kingdom of] Belgium, the applicant being one, the Board of Public Prosecutors had expressed quite significant reservations’ does not reflect the reality of the file. The applicant points out that Section E of the opinion about him states that ‘[his] past and present duties, in particular in combating economic, financial and fiscal crime, and his experience in OCSC management (European missions – ARO – and international missions – CARIN), are assets for the role of European Prosecutor within the European Public Prosecutor’s Office’.
113 Lastly, he comments that the statement, also in Section E of that opinion, that he ‘[had] not been able to convince the Board [of Public Prosecutors that he had] a sufficiently clear vision of the tasks and missions of the future European Public Prosecutor’s Office and of the [European] Prosecutor’ must be put into perspective, given that it was made by a national authority and must in any case be compared with the assessment of the applicant’s candidacy carried out by the selection panel in its reasoned opinion.
114 The Council and the Kingdom of Belgium dispute the applicant’s arguments.
115 It should be noted that the applicant claims that the Council wrongly based the contested decision on the information contained in the written justification supplied by the Belgian authorities in support of a departure from the order of preference drawn up by the selection panel, whereas that information related only to the merits of the appointed candidate and did not contain any comparison of the merits of that candidate with the merits of the other two candidates, of which the applicant was one. Furthermore, according to the applicant, the fact that he had more comprehensive professional experience than the appointed candidate should have led the Council to consider him the best candidate to perform the duties of European Prosecutor.
116 In that regard, it must be recalled that an institution has a wide discretion when assessing and comparing the merits of the candidates for a vacant post and that the factors on which that assessment is based cover not only the efficiency and vocational aptitude of the applicants but also their character, behaviour and general personality (see judgment of 3 February 2005, Mancini v Commission, T‑137/03, EU:T:2005:33, paragraph 97 and the case-law cited).
117 That is all the more true where the post involves significant responsibilities (judgment of 3 February 2005, Mancini v Commission, T‑137/03, EU:T:2005:33, paragraph 98).
118 In the present case, it must be noted that, pursuant to Article 9 of Regulation 2017/1939, the European Prosecutors together with the European Chief Prosecutor make up the College of the European Public Prosecutor’s Office, which is responsible for taking decisions on strategic matters including determining the priorities and the investigation and prosecution policy of the European Public Prosecutor’s Office (see recital 24 of that regulation), as well as on general issues arising from individual cases, in particular with a view to ensuring coherence, efficiency and consistency in the prosecution policy of the European Public Prosecutor’s Office throughout the Member States. The College adopts internal rules of procedure of the European Public Prosecutor’s Office and takes other decisions about its internal organisation and various administrative aspects of its functioning.
119 What is more, in accordance with Article 12(1), (3) and (5) of Regulation 2017/1939, the European Prosecutors undertake various responsibilities. In particular, they supervise the investigations and prosecutions for which the European Delegated Prosecutors handling the case in their Member State of origin are responsible. They may give instructions to the handling European Delegated Prosecutor and they function as liaisons and information channels between the Permanent Chambers and the European Delegated Prosecutors in their respective Member States of origin. They also monitor the implementation of the tasks of the European Public Prosecutor’s Office in their respective Member States, such as the avoidance of any conflicts of jurisdiction between the national authorities and the European Public Prosecutor’s Office. Unlike the European Delegated Prosecutors, the European Prosecutors are not responsible for the conduct of investigations, prosecutions and bringing cases to judgment before the courts of the Member States.
120 Furthermore, the European Public Prosecutor’s Office is required to assume the role of a central authority for cooperation on the basis of various instruments of international cooperation in criminal matters, in a similar way to the central authorities of the Member States, as provided for in Article 104 of Regulation 2017/1939 (see, also, recital 109 of that regulation).
121 It follows that the European Prosecutors are required to undertake significant responsibilities, which is also confirmed by the fact that they are appointed at grade AD 13, which corresponds, according to Annex I to the Staff Regulations of Officials of the European Union, to the function of adviser or equivalent. The function of European Prosecutor therefore sits between the functions of director (AD 15-AD 14) and those of head of unit or equivalent (AD 9-AD 14).
122 Consequently, in accordance with the case-law referred to in paragraphs 116 and 117 above, the Council has a wide discretion when assessing and comparing the merits of the candidates for the position of European Prosecutor of a Member State.
123 The arguments put forward by the applicant must therefore be assessed in the light of the Council’s wide power of discretion.
124 First, with regard to the applicant’s argument claiming that the Council did not compare the merits of the three candidates nominated by the Kingdom of Belgium, but merely based its decision-making on the information provided by that Member State relating only to the merits of the appointed candidate, it must be noted that, in their written opinion of 27 February 2020, the Belgian authorities informed the Council that [confidential].
125 It must also be noted that, in its letter of 7 October 2020, before setting out in detail the professional experience of the appointed candidate, the Council stated that [confidential].
126 It must therefore be held that, although the statement of reasons in the contested decision, as supplemented by the letter of 7 October 2020, did not include a detailed comparative assessment of the merits of each of the three candidates nominated by the Kingdom of Belgium, it is nonetheless clear from the reasons stated that the Council regarded the merits of the appointed candidate, as detailed in that letter, as greater than those of the other two candidates, of which the applicant was one.
127 The applicant’s argument claiming that the Council did not base the contested decision on a comparison of the merits of the three candidates nominated by the Kingdom of Belgium for the position of European Prosecutor must therefore be rejected.
128 Secondly, with regard to the applicant’s argument claiming that the Council was wrong to base its decision-making on the opinion of the Belgian Board of Public Prosecutors without comparing that opinion to that of the selection panel, it is sufficient to recall that, as explained in paragraph 63 above, the selection panel’s ranking of the candidates nominated by the Kingdom of Belgium was not binding on the Council.
129 Thirdly, with regard to the applicant’s argument claiming that the Council was incorrect in stating that the Belgian Board of Public Prosecutors had expressed significant reservations about him, it must be noted that the Board’s opinion in fact contains the following positive evaluation: ‘[the applicant]’s past and present duties, in particular in combating economic, financial and fiscal crime, and his experience in OCSC management (European missions – ARO – and international missions – CARIN), are assets for the role of European Prosecutor in the European Public Prosecutor’s Office’. However, the same opinion states that ‘[the applicant] has not been able to convince the Board [of Public Prosecutors] that he has a sufficiently clear vision of the tasks and missions of the future European Public Prosecutor’s Office and of the [European] Prosecutor’. What is more, it is important to note that, in concluding its opinion, the Belgian Board of Public Prosecutors gave the applicant a ‘reserved evaluation for the role of European Prosecutor (on a scale of very favourable – favourable – reserved – unfavourable)’. The Council therefore committed no error in stating in the letter of 7 October 2017 that the Board of Public Prosecutors had expressed significant reservations about the applicant’s suitability for the role of European Prosecutor.
130 Fourthly, with regard to the applicant’s argument claiming that his professional experience was more comprehensive than that of the appointed candidate, it must be noted that, as is apparent from the Council’s letter of 7 October 2020, [confidential]. In those circumstances, in view of the Council’s wide power of discretion, even assuming that the applicant’s professional experience in those areas were proven to be more comprehensive than that of the appointed candidate, that would not establish the existence of a manifest error of assessment on the part of the Council.
131 In view of the foregoing considerations, it must be found that the applicant has failed to show that, in the present case, the Council exceeded the limits on its wide power of discretion by selecting and appointing Mr van den Berge to the position of European Prosecutor.
132 Furthermore, as the Council points out, it must be noted that the arguments put forward by the applicant seeking to show that there was an infringement of the principle of sound administration and of the duty to have regard for the welfare of officials start from the premiss that if, in the present case, the Council had complied with the obligations stemming from those principles, the applicant’s candidacy for the position of European Prosecutor would automatically have been successful. However, it must be found that such a line of argument converges with that put forward by the applicant in the context of the second plea, alleging infringement of the obligation to state reasons, and the context of the present plea in so far as it alleges a manifest error of assessment, which have already been dismissed.
133 In those circumstances, the third plea must be rejected as unfounded.
134 In the light of all of the foregoing considerations, the action must be dismissed.
Costs
135 Under Article 134(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. Since the applicant has been unsuccessful, he must be ordered to bear his own costs and to pay those incurred by the Council, in accordance with the form of order sought by the latter.
136 Under Article 138(1) of the Rules of Procedure, Member States which have intervened in the proceedings are to bear their own costs. Accordingly, the Kingdom of Belgium must be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1. Dismisses the action;
2. Orders Mr Jean-Michel Verelst to bear his own costs and to pay those incurred by the Council of the European Union;
3. Orders the Kingdom of Belgium to bear its own costs.
Delivered in open court in Luxembourg on 12 January 2022.
[Signatures]