44. The right to a
fair trial,
which derives inter alia from Article 6(1) of the ECHR, constitutes a
fundamental right which the European Union respects as a general
principle under Article 6(2) EU (Case C‑305/05 Ordre des barreaux francophones et germanophone and Others [2007] ECR I‑5305, paragraph 29).
45 That right to a fair trial
means that everyone must be entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law. Such a right is applicable in the context of
proceedings brought against a Commission decision (see, to that effect,
Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 21).
46 The
guarantees of access to an independent and impartial tribunal, and in
particular those which determine what constitutes a tribunal and how it
is composed, represent the cornerstone of the right to a fair trial.
That right means that every court is obliged to check whether, in its
composition , it constitutes such an independent and impartial tribunal,
where this is disputed on a ground that does not immediately appear to
be manifestly devoid of merit. That check is necessary for the
confidence which the courts must inspire in those subject to their
jurisdiction (see, to that effect, Eur. Court HR, Remli v. France, judgment of 23 April 1996, Reports of Judgments and Decisions
1996‑II, p. 574, §48). In that respect, such a check is an essential
procedural requirement, compliance with which is a matter of public
policy.
47 It
follows from this that, if, in an appeal, a challenge is made in that
respect on a ground that is, as in the present case, not manifestly
devoid of merit, the Court of Justice is obliged to check the
correctness of the composition of the formation of the Court of First
Instance which delivered the judgment under appeal.
48 In other
words, a ground of appeal alleging an irregularity in the composition
of the Court of First Instance, such as that which is now before the
Court of Justice, must be regarded as involving a matter of public
policy which must be raised by the Court of its own motion (see, on the
raising of matters of public policy by the Court of its own motion, in
particular, Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 67).
49 Consideration
of such a plea may therefore take place at any stage in the proceedings
(see, to that effect, Case C‑166/95 P Commission v Daffix [1997] ECR I‑983, paragraph 25).
50 In those
circumstances, the failure of the Commission, a principal party at
first instance, to raise before the Court of First Instance the
irregularity invoked by Chronopost and La Poste in support of their
ground of appeal before the Court of Justice, and the argument that, as
a result, they – interveners at first instance – are no longer entitled
to do so in the context of their appeal, cannot properly be relied upon
in opposing the Court’s consideration of such a plea.
51 In that
regard, it is apparent from the documents in the files submitted to the
Court, and undisputed, that the duties of the Judge-Rapporteur in the
formation of the Chamber which delivered the judgment under appeal were
entrusted to the member who had been both President and
Judge-Rapporteur in the formation of the Chamber which had delivered
the judgment in Ufex and Others v Commission.
52 Nevertheless,
it has not been established that, in thus designating the
Judge-Rapporteur, the Court of First Instance failed to comply with the
duty of impartiality by which its members are bound, and thus
disregarded the fundamental right to a fair trial.
53 It must
be observed, first of all, that the fact that the same Judge in the two
successive formations was entrusted with the duties of Judge-Rapporteur
is, by itself, irrelevant to the assessment of compliance with the
requirement of impartiality, since those duties are performed in a
collegiate formation of the Court.
54 Second,
there are two aspects to the requirement of impartiality: (i) the
members of the tribunal themselves must be subjectively impartial, that
is, none of its members must show bias or personal prejudice, there
being a presumption of personal impartiality in the absence of evidence
to the contrary; and (ii) the tribunal must be objectively impartial,
that is to say, it must offer guarantees sufficient to exclude any
legitimate doubt in this respect (see, to that effect, in particular,
Eur. Court HR, Fey v. Austria, judgment of 24 February 1993, Series A no. 255-A, p. 12, §28; Findlay v. United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 281, §73; and Forum Maritime S.A. v. Roumanie, judgment of 4 October 2007, nos. 63610/00 and 38692/05, not yet published in the Reports of Judgments and Decisions).
Probabil acestă decizie i-a scăpat domnului conf. univ. dr. Sandru Mihai și celorlalte părți luminate prezente la seminar.
