Language of document : ECLI:EU:C:2021:782

Case C130/19

Court of Auditors of the European Union

v

Karel Pinxten

 Judgment of the Court (Full Court), 30 September 2021

(Article 286(6) TFEU – Breach of obligations arising from the office of Member of the European Court of Auditors – Deprivation of the right to a pension – Right to effective judicial protection – Regularity of the investigation by the European Anti-Fraud Office (OLAF) – Internal procedure at the Court of Auditors – Activity incompatible with the duties of a Member of the Court of Auditors – Mission expenses and daily allowances – Representation and hospitality expenses – Use of official car – Use of a driver – Conflict of interest – Proportionality of the penalty)

1.        Court of Auditors – Members’ obligations – Breach – Facts investigated in the course of criminal proceedings – Legal characterisation of those facts by the national court not binding on the EU Courts

(Art. 286(6) TFEU)

(see paragraphs 86-88)

2.        Court of Auditors – Members’ obligations – Breach – Procedure – No right of appeal against the decision of the Court – Decision taken at first and last instance – No infringement of the right to effective judicial protection

(Art. 286(6) TFEU; Charter of Fundamental Rights of the European Union, Art. 47)

(see paragraphs 122-124)

3.        European Anti-Fraud Office (OLAF) – Investigations – Right of the person concerned to be heard – Scope

(European Parliament and Council Regulation No 883/2013, Art. 9(4))

(see paragraphs 168-170)

4.        Court of Auditors – Members’ obligations – Breach – Procedure – Time limit within which the Court of Auditors may bring proceedings – Reasonable time – Assessment on a case-by-case basis

(Art. 286(6) TFEU)

(see paragraphs 219, 220, 230)

5.        Court of Auditors – Members’ obligations – Obligations arising from their office – Notion – Obligations laid down by primary law and set out in the internal rules adopted by the institution concerned – Breach – Breach of a certain degree of gravity – Scope

(Arts 285 and 286(3), (4) and (6) TFEU)

(see paragraphs 234-245)

6.        EU law – Principles – Protection of legitimate expectations – Conditions – Specific assurances given by the authorities – Limits

(see paragraphs 365-370, 372-374)

7.        Court of Auditors – Members’ obligations – Obligations arising from their office – Breach – Exercise of an undeclared activity which is incompatible with the duties of a Member of the Court of Auditors – Improper use of the resources of that institution to finance activities unrelated to the duties of a Member of that institution – Creation of a conflict of interest through a relationship with the head of an audited entity – Breaches of a significant degree of gravity

(Art. 286(6) TFEU)

(see paragraph 880, operative part 4)

8.        Court of Auditors – Members’ obligations – Obligations arising from their office – Breach – Penalty – Deprivation of the right to a pension – Information needed for an assessment – Proportionality

(Art. 286(6) TFEU)

(see paragraphs 881-905, operative part 5)


Résumé

The Court rules that a former Member of the European Court of Auditors breached the obligations arising from his office as a Member of that institution. He is deprived of two thirds of his right to a pension.

Mr Pinxten was a Member of the European Court of Auditors from 1 March 2006 to 30 April 2018, completing two terms of office.

In that capacity Mr Pinxten received, among other things, reimbursement of various expenses and an official car. Furthermore, between 2006 and March 2014 the Court of Auditors provided Mr Pinxten with a driver.

The Court of Auditors stated that in the course of 2016 it received information concerning a number of serious irregularities attributed to Mr Pinxten. On 18 July 2016, Mr Pinxten was informed of the allegations made against him.

On 14 October 2016, the Secretary-General of the Court of Auditors, acting on instructions from the President of that institution, forwarded a file to the European Anti-Fraud Office (OLAF) relating to the activities of Mr Pinxten which had led to possible undue expenditure from the budget of the Union.

On 2 July 2018, the Court of Auditors received OLAF’s final report following the completion of its investigation. That report found, in respect of Mr Pinxten, misuse of the resources of the Court of Auditors in the context of activities unrelated to his duties, misuse of fuel cards and the motor insurance contract for his official car, unjustified absences, failure to declare certain external activities, transmission of confidential information and the existence of conflicts of interest. Furthermore, considering that some of the facts revealed by the investigation could constitute criminal offences, OLAF forwarded information and its recommendations to the Luxembourg judicial authorities.

After sending written observations to the Court of Auditors, Mr Pinxten was heard by the Members of that institution in a closed session on 26 November 2018. On 29 November 2018, at a closed session, the Court of Auditors decided to refer the issue concerning Mr Pinxten to the Court pursuant to Article 286(6) TFEU. (1)

Alongside this, in the light of the information forwarded by OLAF, the State Prosecutor at the Tribunal d’arrondissement de Luxembourg (Luxembourg District Court, Luxembourg) requested, by letter of 1 October 2018, that the Court of Auditors waive Mr Pinxten’s immunity from legal proceedings. On 15 November 2018, that institution granted that request.

By its action, which was brought on 15 February 2019, the Court of Auditors claimed that the Court should declare that Mr Pinxten no longer meets the obligations arising from his office and impose, consequently, the penalty laid down in Article 286(6) TFEU.

Sitting in full court, its most formal composition, the Court rules inter alia that Mr Pinxten breached the obligations arising from his office as a Member of the Court of Auditors in respect of:

–      the undeclared and unlawful exercise of an activity within the governing body of a political party;

–      improper use of the resources of the Court of Auditors to finance activities unrelated to the duties of a Member of that institution to the extent specified in the judgment;

–      the use of a fuel card to purchase fuel for vehicles belonging to third parties, and

–      the creation of a conflict of interest through a relationship with the head of an audited entity.

On the other hand, the Court rejected the complaints raised by the Court of Auditors relating to:

–      the purportedly undeclared and unlawful exercise of an activity as manager of a société civile immobilière;

–      the holding and use of a fuel card by one of Mr Pinxten’s children when he was no longer a member of Mr Pinxten’s household;

–      allegations of false insurance claims in connection with accidents involving the official vehicle and the driver assigned to Mr Pinxten’s Cabinet.

In the light of these findings, the Court rules that Mr Pinxten is deprived of two thirds of his right to a pension from the date of delivery of the judgment in the present case, namely 30 September 2021.

Assessment by the Court

As regards the admissibility of the action, the Court rejects, in succession, all the arguments put forward by Mr Pinxten concerning, first, the incompatibility of the procedure with the right to effective judicial protection, second, the irregularity of the investigation by OLAF, third, the irregularity of the procedure followed within the Court of Auditors for authorising the bringing of the action before the Court of Justice and, fourth, the delay in bringing that action. The Court therefore declares the action to be admissible.

On the substance of the action, after noting the nature of the obligations arising from the office of Member of the Court of Auditors, the Court states that the expression ‘obligations arising from his office’, within the meaning of Article 286(6) TFEU, falls to be broadly construed. Having regard to the importance of the responsibilities assigned to them, it is important that the Members of the Court of Auditors observe the highest standards of conduct and ensure that the general interest of the Union takes precedence at all times, not only over national interests, but also over personal interests. With this in mind, the obligations of the Members of the Court of Auditors set out in primary law are reproduced and given concrete expression in the internal rules adopted by that institution, which those Members are required to observe rigorously.

Against this background, the Court must examine all the evidence submitted to it, both by the Court of Auditors, which must establish the existence of the breach of obligations which it attributes to Mr Pinxten, and by Mr Pinxten. The Court must inter alia assess the material accuracy and reliability of that evidence in order to ascertain whether it is sufficient to find a breach of a certain degree of gravity for the purposes of Article 286(6) TFEU.

Thus, after examining all the evidence submitted by the Court of Auditors and by Mr Pinxten, the Court rules that, by exercising an undeclared activity within the governing body of a political party, which is incompatible with his duties as a Member of the Court of Auditors, by misusing the resources of that institution to finance activities unrelated to the duties of a Member of that institution (2) and by acting in a manner likely to create a conflict of interest with an audited entity, Mr Pinxten is liable for breaches of a significant degree of gravity and therefore acted in breach of the obligations arising from his office as a Member of that institution within the meaning of Article 286(6) TFEU.

According to the Court, the breach of those obligations calls, in principle, for the imposition of a penalty under that provision. Article 286(6) TFEU permits the Court to impose a penalty in the form of compulsory retirement or the deprivation of his right to a pension or other benefits in its stead.

As there is no provision in Article 286(6) TFEU as to the extent of the deprivation of the right to a pension under that provision, the Court may order deprivation in whole or in part thereof. That penalty must, however, be proportionate to the gravity of the breaches of obligations arising from the office of Member of the Court of Auditors established by the Court.

In this regard, the Court notes that a number of circumstances are such as to establish that the irregularities attributable to Mr Pinxten have a particularly high degree of gravity. Thus, in the course of his two terms of office as a Member of the Court of Auditors, Mr Pinxten, first, deliberately and repeatedly infringed the applicable rules within that institution, systematically breaching the most basic obligations arising from his office. Next, Mr Pinxten frequently attempted to conceal those infringements of the rules. In addition, the irregularities committed by Mr Pinxten served, to a large extent, to contribute to his personal enrichment. Furthermore, Mr Pinxten’s conduct caused considerable damage to the Court of Auditors, not only financially but also to its image and its reputation. Lastly, the specific function for which the Court of Auditors is responsible in examining whether all expenditure has been incurred by the Union in a lawful and regular manner and whether the financial management has been sound (3) further increases the gravity of the irregularities committed by Mr Pinxten.

However, the Court observes that other factors are such as to mitigate the liability of Mr Pinxten. First, he acquired his right to a pension in respect of work which he carried out over 12 years of service at the Court of Auditors. The quality of that work has not been called into question and Mr Pinxten was even elected by his peers to the office of Dean of Chamber III of the Court of Auditors from 2011. Second, although the breaches committed by Mr Pinxten of the obligations arising from his office are determined, first and foremost, by personal choices which he must have known were incompatible with the most basic obligations arising from his office, the fact remains that the perpetuation of those irregularities was facilitated by a lack of precision in the internal rules of that institution and permitted by deficiencies in the controls established by it.

In the light of all the evidence examined, the Court considers that on a fair assessment of the circumstances of the case Mr Pinxten should be deprived of two thirds of his right to a pension from the date of delivery of the judgment in the present case.


1      Article 286(6) TFEU provides: ‘A Member of the Court of Auditors may be deprived of his office or of his right to a pension or other benefits in its stead only if the Court of Justice, at the request of the Court of Auditors, finds that he no longer fulfils the requisite conditions or meets the obligations arising from his office.’


2      A series of irregularities connected with mission expenses and daily allowances, representation and hospitality expenses and use of the official car and use of a driver.


3      Article 287(2) TFEU.