Court of Justice of the European Communities (including Court of First Instance Decisions)

ORDER OF THE COURT (Seventh Chamber)

14 April 2016 (*)

(Appeal — OLAF investigation report concerning a Member of the European Commission — Alleged oral decision of the President of the Commission to terminate the term of office of the Commissioner concerned — Action for annulment and compensation)

In Case C‑394/15 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 21 July 2015,

John Dalli, residing in St Julian’s (Malta), represented by L. Levi and S. Rodrigues, avocats,

appellant,

the other party to the proceedings being:

European Commission, represented by J. Baquero Cruz, B. Smulders and J.-P. Keppenne, acting as Agents,

defendant at first instance,

THE COURT (Seventh Chamber),

composed of C. Toader, President of the Chamber, A. Rosas (Rapporteur) and A. Prechal, Judges,

Advocate General: H. Saugmandsgaard Øe,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having regard to the decision taken, after hearing the Advocate General, to give a decision on the action by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1        By his appeal, Mr Dalli asks the Court to set aside the judgment of the General Court of the European Union of 12 May 2015 in Dalli v Commission (T‑562/12, EU:T:2015:270, ‘the judgment under appeal’), by which the General Court rejected his action seeking, first, the annulment of the oral decision allegedly taken by the President of the European Commission on 16 October 2012 to terminate the appellant’s office as a Member of the Commission and, secondly, compensation for the damage allegedly suffered by the appellant as a result of that decision.

 Background to the dispute

2        According to a report of the European Anti-Fraud Office (OLAF), Mr Dalli, a Maltese national, who was appointed as a Member of the Commission for the period from 10 February 2010 to 31 October 2014 and to whom the health and consumer policy portfolio was allocated, participated in several unofficial and confidential meetings with representatives of the tobacco industry, which were conducted without the knowledge and the involvement of the competent services. OLAF initiated an investigation on 25 May 2012. Mr Dalli was interviewed by OLAF on 16 July 2012 and on 17 September 2012, and by the President of the Commission, Mr José Manuel Durão Barroso, on 25 July 2012.

3        The OLAF report was transmitted to the Secretary-General of the Commission on 15 October 2012, for the attention of President Barroso. According to OLAF, the image and reputation of the Commission had been put at risk, and Mr Dalli’s behaviour could thus be seen as a breach of his duty to behave in keeping with the dignity and duties of his office.

4        On 16 October 2012, a meeting was held between Mr Barroso and Mr Dalli.

5        Mr Dalli claims that, at that meeting, Mr Barroso terminated his term of office. The Commission contests that allegation and submits that Mr Dalli voluntarily resigned.

 The proceedings before the General Court and the judgment under appeal

6        By application lodged at the General Court on 24 December 2012, the appellant sought, first, the annulment of the oral decision allegedly taken by the President of the Commission on 16 October 2012 to terminate the appellant’s office as a Member of the Commission and, secondly, compensation for damage allegedly suffered by the appellant as a result of that decision.

7        The General Court noted that the action for annulment sought, in certain passages of the application, the annulment of a decision allegedly taken on 16 October 2012, whereby President Barroso, on his own authority and assuming the powers conferred on the Court of Justice by Articles 245 TFEU and 247 TFEU, removed Mr Dalli from office with immediate effect. However, it was apparent from other passages of that application that the appellant requested the annulment of an alleged oral decision taken by President Barroso on 16 October 2012, to exercise his power under Article 17(6) TEU, which provides that ‘a Member of the Commission shall resign if the President so requests’. By a measure of organisation of procedure of 22 May 2014, the General Court therefore requested that the appellant specify ‘clearly and unambiguously’ with which of the two acts envisaged on a hypothetical basis his first head of claim was concerned. In his written reply of 18 June 2014, the appellant stated that he was seeking annulment of ‘the oral decision taken by … President [Barroso] on 16 October 2012 to terminate [his] office as Member of the Commission’. He added that, in his view, that decision could have two possible legal bases: either Articles 245 TFEU and 247 TFEU or Article 17(6) TEU.

8        By order of 16 June 2014, the General Court ordered that the appellant appear in person at the hearing on 7 July 2014.

9        By a further order of 16 June 2014, the General Court decided that the testimony of the following persons should be heard at the abovementioned hearing on 7 July 2014: President Barroso, Mr Laitenberger, President Barroso’s head of cabinet, Mr Romero Requena, the Director-General of the Commission’s Legal Service, Ms Darmanin, Mr Dalli’s former head of cabinet, and Mr Vincent, Mr Dalli’s former spokesperson, (i) on ‘the question whether or not the [appellant] resigned verbally during the meeting of 16 October 2012 in the office of … President [Barroso] and, in the affirmative, in which context and circumstances and following what declarations made by the latter’, and (ii) on ‘what was said in the course of their personal contacts with the [appellant] immediately after the said meeting’.

10      At the hearing on 7 July 2014, which the appellant attended in person, the Commission mentioned a statement made by the Maltese Prime Minister, Mr Gonzi, to the Maltese Parliament, at the plenary session on 16 October 2012. That statement, which was taken from an official public record, is partially reproduced in paragraph 17 of the judgment under appeal. The Commission produced that statement when oral argument was presented at the hearing on 8 July 2014, following which the document was provisionally placed on the case file. In the minutes of the hearing, it was noted that both the General Court and the appellant had received a copy of the document reproducing that statement. After hearing the appellant’s submissions, the General Court decided to place that document on the case file, while reserving its decision as to the admissibility of the document for the judgment.

11      As regards the admissibility of the document produced by the Commission, the General Court found, in paragraph 58 of the judgment under appeal, that the late production of that document was justified by the Commission’s need to answer a new allegation of the appellant relating to that document, made for the first time at the hearing on 7 July 2014. In paragraph 59 of the judgment under appeal, the General Court pointed out that the appellant and his lawyers had been given an opportunity to state their views on the admissibility, relevance and evidential value of the document in question at the hearing on 8 July 2014, within a period that could not be considered unreasonably short in view of all the circumstances of the case and, in particular, the official nature of that document which was taken from a public record. The General Court also noted that the appellant had not restated his objection to the document in question being placed on the file, nor had he asked the General Court for an opportunity to comment on that document in writing or requested that the hearing be postponed. In the light of those considerations, the General Court held that the document in question was admissible.

12      In its preliminary considerations concerning the subject matter of the application for annulment, the General Court found, in paragraph 66 of the judgment under appeal, that the contention of the appellant (who bears the burden of proof) that President Barroso removed him from office, improperly assuming the powers of the Court of Justice under Articles 245 TFEU and 247 TFEU, found no support in the documents before the General Court, in the various testimonies gathered or even in the statement made by the appellant himself when he appeared before the Court in person, so that this contention could be rejected at the outset as lacking any factual basis. In paragraph 67 of the judgment under appeal, the General Court rejected the application for annulment as inadmissible on the ground that there was no challengeable act for the purpose of Article 263 TFEU, since the appellant had not established the existence in fact of a decision whereby President Barroso, on his own authority and assuming the powers conferred on the Court of Justice by Articles 245 TFEU and 247 TFEU, removed the appellant from office with immediate effect.

13      The General Court therefore considered, in paragraph 68 of the judgment under appeal, that the subject matter of the action was an application for annulment of an oral decision allegedly taken by President Barroso, on 16 October 2012, to exercise his power to request the appellant’s resignation as a Member of the Commission, pursuant to Article 17(6) TEU.

14      The General Court continued its assessment of the action by an examination of the facts, from paragraphs 69 to 125 of the judgment under appeal. After some general considerations, set out in paragraphs 70 to 79 of the judgment under appeal, the General Court, in paragraph 80 of that judgment, stated the manner in which the facts would be set out. It then gave a detailed account, in paragraphs 81 to 123 of that judgment, of the circumstances, the conduct and the outcome of the meeting of 16 October 2012, and its immediate aftermath.

15      In paragraph 124 of the judgment under appeal, the General Court considered, in view of all the findings, assessments and considerations set out, that it was established to the requisite legal standard that the appellant orally tendered his resignation as a Member of the Commission during the meeting he had with President Barroso in the latter’s office on the afternoon of 16 October 2012 and that he gave oral confirmation of that resignation in the presence of Mr Laitenberger and Mr Romero Requena.

16      In paragraph 125 of the judgment under appeal, the General Court cited the evidence supporting that conclusion, which was reached principally on the basis of the testimonies of the witnesses, confirmed where appropriate by the appellant’s statements when he appeared before the General Court in person.

17      In paragraphs 127 to 151 of the judgment under appeal, the General Court examined whether the appellant’s resignation had to be classified as voluntary or whether the appellant was under an obligation to tender it following a request for resignation allegedly made by President Barroso pursuant to Article 17(6) TEU, which request would then constitute the challengeable act in the present case. In paragraph 128 of the judgment, the General Court held that neither a request for the purpose of Article 17(6) TEU, nor a resignation is subject to a particular requirement as to form.

18      In order to determine whether the words actually spoken by President Barroso at the meeting on 16 October 2012 constituted, as the appellant maintained, an oral ‘request’ that the appellant resign from his office, within the meaning of Article 17(6) TEU, the General Court examined, on the one hand, the nature and substance of the duties pertaining to that office and, on the other, the history and ratio legis of the provision concerned.

19      In paragraphs 133 to 135 of the judgment under appeal, the General Court emphasised the essentially political nature of the duties entrusted to the appellant. Referring to the appellant’s statements set out in paragraph 104 of the judgment under appeal, the General Court noted, inter alia, in paragraph 135 of the same judgment, that, under the constitutional traditions common to the Member States, the persons on whom such functions have been conferred in national governments may generally be removed at the discretion of the head of the government or the authority that appointed them.

20      In paragraphs 136 to 141 of judgment under appeal, the General Court recalled the history and ratio legis of Article 17(6) TEU. It concluded, in paragraph 142 of that judgment, that that provision covers more particularly the eventuality of a Member of the Commission refusing to resign voluntarily and on his own initiative in circumstances in which the President of the Commission has lost confidence in him and considers that, were he to remain in office, that would be likely to be detrimental to the institution’s reputation or even its political survival.

21      On the basis of the facts described above, the General Court found, in paragraph 145 of the judgment under appeal, that President Barroso had suggested that the appellant resign voluntarily, while letting it be very clearly understood that, if the appellant failed to do so, he would request his resignation under Article 17(6) TEU.

22      In paragraph 146 of the judgment under appeal, the General Court held that, as long as a request for resignation under Article 17(6) TEU was not clearly formulated, President Barroso’s words, however insistent they may have been, did not result in a request to that effect which was capable of affecting the appellant’s interests by significantly altering his legal situation.

23      Referring to various factual findings, the General Court, in paragraphs 147 to 151 of the judgment under appeal, rejected the appellant’s argument that there was ‘pressure’ from President Barroso constituting the exercise, by the latter, of his powers under Article 17(6) TEU. It therefore concluded, in paragraph 152 of the judgment under appeal, that the appellant resigned voluntarily, no request for his resignation having been made by President Barroso within the meaning of Article 17(6) TEU. Consequently, the application for annulment was rejected as unfounded, since the existence of the contested act had not been established.

24      In answer to an argument of the appellant alleging that his consent was vitiated by the unbearable pressure exerted by President Barroso, the General Court held, in paragraph 156 of the judgment under appeal, that the existence of such vitiated consent had not been established. In addition, it held, in paragraph 157 of that judgment, that the Commission rightly contended that the expression of a firm intention to exercise, if need be, the power to request a Member of the Commission to resign, a discretionary power conferred on the President of the Commission by the EU Treaty, cannot be considered to be illegitimate pressure affecting the validity or the voluntary nature of the resignation of the person concerned.

25      Lastly, taking into consideration the appellant’s long political experience at governmental level, the General Court emphasised, in paragraph 158 of the judgment under appeal, that, in the course of an interview that lasted approximately an hour and a half, the appellant was free to reject President Barroso’s proposal and to challenge the latter to make a formal request under Article 17(6) TEU. The appellant was, in particular, free to leave the meeting at any time or to request the participation of one or more members of his cabinet.

26      Turning next to the claim for damages, the General Court held, in paragraph 163 of the judgment under appeal, that no wrongful conduct on the part of the Commission or its President had been established to the requisite legal standard. It therefore rejected the claim as unfounded.

 Forms of order sought by the parties

27      Mr Dalli claims that the Court should:

–      set aside the judgment under appeal;

–      annul the decision contested at first instance;

–      order compensation for damage of 1 symbolic euro for non-material damage and, on a provisional basis, of EUR 1 913 396 for material damage; and

–      order the Commission to pay the costs.

28      The Commission claims that the Court should:

–      dismiss the appeal as unfounded; and

–      order the appellant to pay the costs.

 The appeal

29      Under Article 181 of the Rules of Procedure of the Court of Justice, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part, without opening the oral procedure.

30      It is appropriate to make use of that power in this case.

31      The appeal is based on five grounds. By the first ground of appeal, the appellant submits that the General Court ruled ultra petita by changing the subject matter of the dispute, by considering that the appellant had raised two heads of claim. By the second ground of appeal, the appellant alleges several failures to state reasons and a contradiction between reasons. By the third ground of appeal, the appellant alleges a breach of procedure which adversely affected his rights of defence in that the General Court accepted the production, by the Commission, of Mr Gonzi’s statement. By the fourth ground of appeal, the appellant alleges various distortions of facts and evidence as well as a failure to take into account certain evidence. By the fifth ground of appeal, the appellant alleges misapplication of Article 263 TFEU and Article 17(6) TEU by the General Court.

32      It is appropriate to examine, first of all, the third ground of appeal, relating to the appellant’s rights of defence, and subsequently the second, fourth, fifth and first grounds of appeal.

 The third ground of appeal

33      The third ground of appeal relates to the statement of the Maltese Prime Minister, Mr Gonzi, to the Maltese Parliament on 16 October 2012. Mr Gonzi indicated in that statement that he had been informed of the appellant’s decision to resign from the post of Commissioner, first, by President Barroso and, subsequently, by the appellant himself.

 Arguments of the parties

34      By his third ground of appeal, the appellant submits that the General Court distorted the facts and that, as a result of that distortion, it wrongly concluded, in paragraph 58 of the judgment under appeal, that the late production of Mr Gonzi’s statement was justified by the particular circumstances in which the Commission found it necessary to rely on it.

35      The appellant also submits that, in paragraph 59 of the judgment under appeal, the General Court again distorted the facts when it indicated that he had not restated his objection to the document reproducing that statement being placed on the file. He also contests the General Court’s conclusion, in paragraph 59, that the appellant and his lawyers were given an opportunity to state their views on the admissibility, relevance and evidential value of that document at the hearing on 8 July 2014, within a period that could not be considered unreasonably short in view of all the circumstances of the case and, in particular, the official nature of that document which was taken from a public record.

36      The appellant submits that, in view of other cases adjudicated by the Court, he had only an unreasonably short period within which to submit his observations, and that the public nature of Mr Gonzi’s statement in no way alters the fact that the appellant was not able to set out at the hearing his arguments relating to the content of that statement. He acknowledges, however, that he did not ask the Court for an opportunity to comment in writing on the document reproducing that statement or request that the hearing be postponed.

37      Mr Dalli states that, since the document in question does not bear the Registry stamp, he does not know whether the copy that he received indeed corresponds to the document submitted to the General Court by the Commission. Furthermore, he submits that, if that document had been communicated to him earlier, he would have been better able to organise his defence, in particular by comparing the Commission’s press release and Mr Gonzi’s statement, a comparison which suggests that Mr Gonzi’s statement reflects the Commission’s press release. In addition, he could have submitted, before the General Court, that Mr Gonzi has always considered him to be a political competitor, and had forced him to resign from his post as Minister for Foreign Affairs in questionable circumstances.

38      The appellant concludes that the admission, by the General Court, of the admissibility of Mr Gonzi’s statement is contrary to the rights of the defence and the principle of equality of arms.

39      The Commission contends that, as can be seen from paragraph 125 of the judgment under appeal, Mr Gonzi’s statement is only one of six pieces of evidence confirming the General Court’s conclusion, which was established principally on the basis of the testimony of witnesses, according to which the appellant presented his resignation. It emphasises that that statement is a public document and that it relied on it only in response to the appellant’s declaration, as the judgment under appeal correctly pointed out. The Commission submits that the appellant received a copy of Mr Gonzi’s statement at the hearing and that he had enough time, at that hearing, to present his views on that simple and short statement, since it had already been mentioned at length during the testimonies, the day before the hearing.

 Findings of the Court

40      The principle of respect for the rights of the defence is a fundamental principle of EU law. That principle would be infringed if a judicial decision were to be based on facts and documents of which the parties themselves, or one of them, have not been able to take cognisance and in relation to which they have not therefore been able to formulate an opinion (judgments in Snupat v High Authority, 42/59 and 49/59, EU:C:1961:5, 84; Corus UK v Commission, C‑199/99 P, EU:C:2003:531, paragraph 19, and Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 30).

41      However, it is settled case-law that an infringement of the rights of the defence, in particular the right to be heard, results in the annulment of a decision taken at the end of a procedure only if, had it not been for such an irregularity, the outcome of the procedure might have been different (see, to that effect, judgments in France v Commission, C‑301/87, EU:C:1990:67, paragraph 31; Germany v Commission, C‑288/96, EU:C:2000:537, paragraph 101; Foshan Shunde Yongjian Housewares & Hardware v Council, C‑141/08 P, EU:C:2009:598, paragraph 94; Storck v OHIM, C‑96/11 P, EU:C:2012:537, paragraph 80; G. and R., C-383/13 PPU, EU:C:2013:533, paragraph 38, and Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 79).

42      As can be seen from the minutes of the hearing of 7 July 2014, during which the appellant was heard, the latter alluded to a telephone conversation he had had with Mr Gonzi on 16 October 2012. The Commission therefore asked the General Court to request the appellant to express his views on Mr Gonzi’s statement to the Maltese Parliament, of which it read an extract relating to the telephone conversation between the appellant and Mr Gonzi. The General Court therefore did not distort the facts when it described, in paragraph 58 of the judgment under appeal, the particular circumstances in which the Commission found it necessary to rely on Mr Gonzi’s statement to the Maltese Parliament.

43      In view of those circumstances, the General Court did not commit an error of law in considering, in paragraph 58 of the judgment under appeal, that the late production by the Commission of the document reproducing that statement was justified.

44      As regards the rights of the defence, the General Court did not commit an error of law in considering, in paragraph 59 of the judgment under appeal, that, in view of all the circumstances of the case and, in particular, the official nature of that document which was taken from a public record, the appellant and his lawyers were given an opportunity to state their views on the admissibility, relevance and evidential value of the document concerned at the hearing on 8 July 2014, within a period that cannot be considered unreasonably short.

45      The brevity of the document in question and the fact that the relevant section was read by the Commission during the appellant’s testimony, the day before the hearing, are apparent from the judgment under appeal. In any event, as the appellant himself acknowledged, he did not ask the General Court for an opportunity to comment in writing on the document reproducing the statement in question or request that that hearing be postponed.

46      As regards the possibility of comparing the Commission’s press release and Mr Gonzi’s statement, in view of the brevity of the document reproducing that statement, the General Court could validly consider, in paragraph 59 of the judgment under appeal, noted in paragraph 44 of the present order, that the appellant and his lawyers were given an opportunity to state their views on that document, within a period that cannot be considered unreasonably short. As to the possibility of putting forward, before the General Court, arguments relating to the situation of the Maltese Prime Minister, it can be seen from the file of the case before the General Court that the appellant called into question Mr Gonzi’s position in paragraphs 30 and 32 of his reply, and that the Commission responded to that argument in paragraph 33 of its rejoinder.

47      Lastly, it must be noted that, according to paragraph 125 of the judgment under appeal, the statement in question was merely one piece of evidence amongst others supporting the General Court’s conclusion, set out in paragraph 124 of that judgment, that it ‘considers that it is established to the requisite legal standard that the [appellant] orally tendered his resignation as a Member of the Commission during the meeting he had with President Barroso in the latter’s office on the afternoon of 16 October 2012 and that he gave oral confirmation of that resignation in the presence of Mr Laitenberger and Mr Romero Requena’. Likewise, according to paragraph 150 of the judgment under appeal, that statement was only one of the pieces of evidence confirming the General Court’s findings in paragraphs 144 to 149 of that judgment, which allowed the General Court to conclude, in paragraph 152 of the judgment, that ‘the [appellant] resigned voluntarily, no request for his resignation having been made by President Barroso, within the meaning of Article 17(6) TEU’.

48      It follows from all of the foregoing that, on any view, the late production of the statement in question did not infringe the appellant’s rights of defence.

49      The fourth ground of appeal is therefore manifestly unfounded.

 The second ground of appeal

 Arguments of the parties

50      By his second ground of appeal, Mr Dalli argues that the statement of reasons for paragraph 66 of the judgment under appeal is insufficient, in that the General Court did not specify the evidence it relied on in order to conclude that the appellant’s allegation that President Barroso removed him from office, by improperly assuming the powers of the Court of Justice under Articles 245 TFEU and 247 TFEU, found no support in the case file. Referring to the first ground of appeal, Mr Dalli also submits that the statement of reasons for paragraph 68 of that judgment is insufficient, in that the General Court did not explain why it identified a new subject matter of the action. In addition, the appellant argues that insufficient reasons were given for paragraphs 78 and 79 of the judgment under appeal. Lastly, the appellant alleges a contradiction between paragraph 66 and paragraph 144 of the judgment under appeal, in that the General Court concluded, in paragraph 66 of that judgment, that there was no decision of Mr Barroso to remove the appellant from office, whereas, in paragraph 144 of that judgment, the General Court explained that President Barroso had decided that the appellant should leave the Commission.

51      The Commission contends that the appellant contests the merits of the statement of reasons and not its existence, and submits that the Court does not have jurisdiction, in an appeal, to review the General Court’s assessment of evidence.

 Findings of the Court

52      All of the arguments relating to the insufficient statement of reasons for paragraphs 66 and 68 of the judgment under appeal must be rejected, since they relate to the first ground of appeal, which will be examined below.

53      As regards paragraphs 78 and 79 of the judgment under appeal, they must be placed in their context. The argument alleging an infringement of the obligation to state reasons cannot specifically concern paragraphs 78 and 79 of the judgment under appeal, examined in isolation, without taking into account the statement of reasons for the judgment as a whole and, in particular, the reasons given for paragraph 81 to 123 of that judgment, in which the General Court sets out the facts in detail. As described in paragraph 14 above, the General Court, before carrying out a detailed examination of the facts, which begins at paragraph 81 of the judgment under appeal, set out some preliminary general considerations in paragraphs 70 to 79 of that judgment. The structure of the General Court’s reasoning is clear from the text.

54      It follows that paragraphs 78 and 79 of the judgment under appeal, read in the light of the developments set out subsequently in the judgment under appeal, are not vitiated by a failure to state sufficient reasons.

55      In any event, it must be found that paragraphs 78 and 79 of the judgment under appeal contain assessments of the General Court relating to the reliability, credibility and coherence of the testimonies described subsequently, and to the evidential value of the appellant’s statements. It is settled case-law that it is for the General Court alone to assess the value which should be attached to the items of evidence produced to it (judgments in Commission v Brazzelli Lualdi and Others, C‑136/92 P, EU:C:1994:211, paragraph 66, and E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 64).

56      As to the alleged contradiction between the reasoning in paragraphs 66 and 144 of the judgment under appeal, it suffices to note that the expression ‘had decided’, in paragraph 144 of that judgment, refers to an intention on President Barroso’s part and cannot be regarded as being equivalent to the classification of an act, in the present case the removal of the appellant from office by improperly assuming the powers of the Court of Justice under Articles 245 TFEU and 247 TFEU, mentioned by the General Court in paragraph 66 of the judgment under appeal. It follows that paragraphs 66 and 144 of the judgment are not contradictory.

57      It is clear from the above that the second ground of appeal must be rejected as clearly unfounded.

 The fourth ground of appeal

 Arguments of the parties

58      By the first part of the fourth ground of appeal, the appellant alleges material inaccuracy in the General Court’s findings and distortion of evidence. The appellant contests paragraph 78 of the judgment under appeal, invoking three examples of inconsistency between testimonies which casts doubt on their reliability and their credibility. He alleges a distortion of evidence in paragraph 82 of the judgment under appeal, which had a direct impact on the conclusion in paragraph 103 of that judgment. The appellant then alleges a distortion of evidence made by the General Court in paragraphs 104 and 105 of the judgment under appeal, which resulted in an erroneous conclusion in paragraph 106 of that judgment. The appellant also contests paragraphs 119 and 125 of the judgment under appeal, since the draft letter referred to in paragraph 119 of that judgment was never signed by the appellant, which the appellant’s lawyers emphasised when they clearly denied that any evidential value should be attributed to that draft letter. In addition, the appellant submits that the General Court distorted two press releases mentioned in paragraph 123 of the judgment under appeal, and distorted the evidence mentioned in the second and sixth indents of paragraph 125 of that judgment as confirming the conclusion reached by the General Court in paragraph 124 thereof.

59      By the second part of the fourth ground of appeal, the appellant criticises the General Court for failing to take into account certain essential pieces of evidence. He mentions, in the first place, the reasons that the Commission had prepared only two draft press releases, in the second place, the fact that he had asked for a period of 24 hours to obtain legal advice, in the third place, the final OLAF report and Opinion 02/2012 of the Supervisory Committee of OLAF, and, in the fourth place, the testimony of an employee of Swedish Match.

60      The Commission contends that the appellant’s arguments are inadmissible and unfounded.

 Findings of the Court

61      By the first part of the fourth ground of appeal, the appellant alleges the material inaccuracy of the findings made by the General Court and a distortion of evidence.

62      As has been noted in paragraph 55 of the present order, paragraph 78 of the judgment under appeal contains the General Court’s assessments relating to the reliability, credibility and consistency of the testimonies described subsequently, with the result that the Court does not have jurisdiction to review the merits of those assessments in the context of an appeal.

63      In paragraph 82 of the judgment under appeal, the General Court described the three possibilities defined by President Barroso with his close collaborators. It must be found that this is a factual assessment by the General Court.

64      Paragraphs 104 and 105 of that judgment contain quotations of statements made by the appellant. He has not demonstrated that those quotations are inaccurate or that they were distorted by the General Court. Paragraph 106 of the judgment under appeal is an assessment, in the light of the appellant’s statements quoted in the preceding paragraphs of that judgment, of the credibility of the version advanced by the appellant, according to which all that was mentioned was the possibility of resignation. The Court does not have jurisdiction, in the context of an appeal, to review such an assessment.

65      It is apparent from the line of argument set out in relation to paragraph 119 of the judgment under appeal that, by that argument, the appellant contests the General Court’s assessment of the evidential value of the draft letter in question, an assessment which does not fall within the scope of the Court’s review in an appeal. As regard paragraphs 123 of that judgment, the appellant has not demonstrated that the General Court clearly distorted the Commission’s press release. Paragraph 124 of the judgment under appeal is a conclusion of the General Court establishing the facts as they appear from its foregoing findings, assessments and considerations. The Court does not have jurisdiction to review that purely factual conclusion. As to the evidence mentioned in paragraph 125 of the judgment under appeal, it must be found that, under the guise of an argument alleging distortion of the interview given by the appellant to a Maltese radio station on the evening of 16 October 2012 and of Mr Romero Requena’s internal note of 18 October 2012, the appellant is in reality asking the Court to carry out a new assessment of that evidence. As noted in paragraph 55 of the present order, it is for the General Court alone to assess the value which should be attached to the items of evidence produced to it.

66      By the second part of the fourth ground of appeal, the appellant alleges that the General Court failed to take account of certain pieces of evidence. The Court does not have jurisdiction, in the context of an appeal, to review the assessment of the evidence carried out by the General Court.

67      It follows from the examination of the various arguments put forward by the appellant in support of his fourth ground of appeal that, there being no relevant arguments concerning the alleged distortion, the appellant in reality seeks to call into question the factual assessment carried out by the General Court, and thus seeks to have the Court of Justice substitute its own assessment for that of the General Court. It follows that the fourth ground of appeal is manifestly inadmissible in part and manifestly unfounded in part.

 The fifth ground of appeal

 Arguments of the parties

68      By his fifth ground of appeal, Mr Dalli contests the General Court’s interpretation or assessment of EU law.

69      By the first part of that fifth ground of appeal, the appellant submits that the General Court incorrectly applied Article 263 TFEU. He contests the findings, in paragraphs 67 and 153 of the judgment under appeal, according to which he did not establish the existence of a decision taken by President Barroso. The appellant alleges failure to provide reasons and distortion of evidence, described in support of his second and fourth grounds of appeal, which vitiate paragraph 66 of the judgment under appeal, as well as numerous distortions of the facts and evidence on which the conclusion in paragraph 153 of that judgment is based.

70      By the second part of the fifth ground of appeal, Mr Dalli submits that, in paragraphs 126 to 159 of the judgment under appeal, the General Court misinterpreted and misapplied Article 17(6) TEU. The appellant contests the General Court’s assertion, in paragraph 146 of the judgment under appeal, that ‘as long as a request for resignation under Article 17(6) TEU was not clearly formulated, President Barroso’s words, however insistent they may have been, did not result in a request to that effect which was capable of affecting the [appellant]’s interests by significantly altering his legal situation’ and the assertion, in paragraph 147 of that judgment, that ‘a mere allusion to the possibility of using a power cannot be equated with the actual exercise of that power’. According to Mr Dalli, that interpretation of Article 17(6) TEU is consistent with neither the history nor the ratio legis of that provision, as set out in the judgment under appeal.

71      Mr Dalli submits that the exercise, by President Barroso, of the power with which he has been entrusted under Article 17(6) TEU can take forms other than a clear request to the Member of the Commission to resign. As the General Court noted in paragraph 128 of the judgment under appeal, Article 17(6) TEU does not contain any particular requirement as to form. In the present case, Mr Barroso indicated very clearly that he intended to terminate the appellant’s term of office and that he had actually already taken a decision. According to the appellant, the ‘mere allusion’ to the possibility of using his power under Article 17(6) TUE equates to the actual exercise of that power if that ‘mere allusion’ leaves no other possibility but the use of that power. The appellant submits in that respect that his consent was not free, since it could not be exercised on the true scope of the question at stake, namely, whether or not to put an end to his term of office. The appellant also contests the elements to which the General Court referred in paragraphs 148 to 151 and 158 of the judgment under appeal, in order to support its conclusion that he voluntarily resigned, and which, according to the appellant, cannot be classified as evidence.

72      In answer to the first part of the fifth ground of appeal, the Commission contends that the appellant has not put forward any legal argument relating to the application or interpretation of Article 263 TFEU, but merely refers to his foregoing grounds of appeal alleging failure to state reasons and distortion of evidence.

73      In answer to the second part of the fifth ground of appeal, the Commission submits that the voluntary or involuntary nature of a resignation is not a matter of law, but a matter of fact, which explains why the statements mentioned in paragraphs 126 to 159 of the judgment under appeal are factual statements, despite being placed in the section entitled ‘Law’ by the General Court. As to the requirement of a ‘clearly formulated’ request, the Commission submits that such a requirement is simple common sense and does not seem to be the product of any legal interpretation. It concludes that the question whether or not the appellant resigned voluntarily turned on an assessment of the facts and did not require any interpretation of Article 17(6) TEU. In any event, the General Court’s conclusion is correct. The Commission submits that the issue of the alleged vitiated consent is also a matter of fact and that the General Court did not commit an error when it described the choice presented to the appellant by President Barroso.

 Findings of the Court

74      By the second part of the fifth ground of appeal, Mr Dalli contests, in essence, the General Court’s conclusion, in paragraph 152 of the judgment under appeal, that the appellant resigned voluntarily, no request for his resignation having been made by President Barroso within the meaning of Article 17(6) TEU.

75      In interpreting Article 17(6) TEU, the General Court made clear the choice which a Commissioner may be confronted with, namely either voluntary resignation or resignation following a request of the President of the Commission on the basis of Article 17(6) TEU. In any event, the result would be that the Commissioner in question would no longer be a Member of the Commission.

76      It is only in the event of a Commissioner not resigning voluntarily that the President could find it necessary to adopt a decision pursuant to Article 17(6) TEU. It follows that the existence of a voluntary resignation must be assessed as such, prior to any verification of the existence of a decision of the President of the Commission.

77      As can be seen from paragraph 144 of the judgment under appeal, the General Court concluded from its investigation of the facts that, on the one hand, President Barroso had decided that the appellant should leave the Commission but that, on the other hand, the President was willing to accord the appellant the ‘political favour’ of giving him the opportunity to resign voluntarily, without a formal request from the President under Article 17(6) TEU.

78      The General Court did not commit an error in holding, in paragraph 147 of the judgment under appeal, that the choice given to the appellant by President Barroso did not concern the end result, namely the resignation, but rather concerned the two options put to the appellant, that is to say a resignation resulting from a deliberate and unilateral choice or a resignation following a request under Article 17(6) TEU and therefore appearing more like a dismissal.

79      Nor did the General Court commit an error in holding, in the same paragraph of the judgment under appeal, that a mere allusion to the possibility of using a power cannot be equated with the actual use of that power. The allusion to the possibility for the President of the Commission of making a request pursuant to Article 17(6) TEU was intended to inform the appellant of the consequences of the choice offered to him, but cannot be regarded as a request under that provision. The General Court therefore did not commit an error of law in concluding, in paragraph 152 of the judgment under appeal, that no request for the appellant’s resignation had been made by President Barroso within the meaning of Article 17(6) TEU.

80      As the Commission pointed out, the General Court’s conclusion in paragraph 152 of the judgment under appeal that the appellant resigned voluntarily is a factual finding supported by all of the considerations set out in the foregoing paragraphs of that judgment by the General Court and which it is not for the Court of Justice to review in an appeal.

81      In that respect, the appellant wrongly submits that the elements to which the General Court referred in paragraphs 148 to 151 and 158 of the judgment under appeal cannot be characterised as evidence. In those paragraphs the General Court assessed the credibility of the appellant’s allegations, in the light of various factual elements such as the handwritten alterations made by the appellant to the draft resignation letter that he received from Mr Romero Requena, the statement made by Mr Gonzi to the Maltese Parliament and the appellant’s radio interview on the evening of 16 October 2012. Such material elements were produced in order to demonstrate the reality of the facts alleged and could be taken into consideration by the General Court.

82      It follows from the foregoing that the fifth ground of appeal is manifestly inadmissible in part and manifestly unfounded in part.

83      As regards the first part of the fifth ground of appeal, relating to the application of Article 263 TFEU, it must be found that it presupposes the existence of an act of a body, an office or an agency of the European Union intended to produce legal effects. Since the appellant has not established the existence of such an act, the first part of the fifth ground of appeal is ineffective.

84      The fifth ground of appeal must be rejected as manifestly inadmissible in part and manifestly unfounded in part.

 The first ground of appeal

 Arguments of the parties

85      By his first ground of appeal, the appellant submits that the General Court ruled ultra petita by changing the subject matter of the dispute, in considering that the appellant had put forward two heads of claim, namely, as indicated in paragraphs 67 and 68 of the judgment under appeal, a first head of claim intended to seek annulment of a decision allegedly taken on 16 October 2012, whereby President Barroso, on his own authority and assuming the powers conferred on the Court of Justice by Articles 245 TFUE and 247 TFUE, removed the appellant from office with immediate effect, and a second head of claim identified as an application for the annulment of an oral decision allegedly taken by President Barroso, on 16 October 2012, to exercise his power to request the appellant’s resignation as a Member of the Commission, pursuant to Article 17(6) TEU.

86      The Commission contends that, given the application’s lack of clarity, the General Court was entitled to interpret it in the light of the arguments contained therein. It submits, moreover, that, in any event, the ground of appeal is ineffective.

 Findings of the Court

87      It must be noted that the first ground of appeal presupposes the existence of a decision taken by President Barroso.

88      Since the existence of such a decision has not been established, it follows that the ground of appeal is ineffective and must be rejected.

89      Since all the grounds of appeal have been rejected, the appeal must be dismissed.

 Costs

90      In accordance with Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs.

91      Under Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) of those rules, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

92      Since the Commission has applied for costs and Mr Dalli has been unsuccessful, the latter must be ordered to bear his own costs and to pay those incurred by the Commission.

On those grounds, the Court (Seventh Chamber) hereby orders:

1.      The appeal is dismissed.

2.      Mr John Dalli is ordered to pay the costs.

[Signatures]

* Language of the case: English.

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