6) Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), (5) entitled ‘right to an effective remedy and to a fair trial’, states, in the second paragraph thereof: ‘Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.’

7) Article 52(3) thereof provides that, ‘in so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection’.

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18) The General Court concluded that, ‘having regard to the importance of compliance with the rules governing the appointment of a judge for the confidence of litigants and the public in the independence and impartiality of the courts, the judge at issue cannot be regarded as a lawful judge within the meaning of the first sentence of the second paragraph of Article 47 of the Charter …’ (14) and set aside the CST’s judgment. I shall consider the General Court’s reasoning in the judgment in FV later in this Opinion. (15)

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33) More specifically, the Reviewing Chamber defined the parameters of those two reviews as follows: ‘The review shall concern the question whether, having regard, in particular, to the general principle of legal certainty, [the judgments under review affect] the unity or consistency of EU law in that the General Court, as the court hearing the appeal, held that the composition of the panel of judges … which had delivered [the judgments under review] had been irregular, on the basis of an irregularity affecting the procedure for the appointment of one of the members of that panel of judges, leading to infringement of the principle of the lawful judge, laid down in the first sentence of the second paragraph of Article 47 of the Charter....

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38) Inasmuch as in the judgments under review the General Court (i) held that, in the present factual scenario, the ‘principle of the lawful judge’ established in the first sentence of the second paragraph of Article 47 of the Charter had been infringed without taking the principle of legal certainty into consideration in its analysis, and (ii) undertook an incidental review of whether the appointment of a judge to the CST was lawful, do those judgments pose a threat to the unity or consistency of EU law?

39) In the analysis that follows, I shall use the expression ‘right to a tribunal established by law’ rather than ‘principle of the lawful judge’. The former is the wording used not only in the first sentence of the second paragraph of Article 47 of the Charter and Article 6(1) of the ECHR but also in the relevant case-law of the European Court of Human Rights (‘the Strasbourg Court’). I consider that it is to that aspect of the right to a fair trial that the General Court is referring in the judgment in FV and the judgments under review when it speaks of the ‘principle of the lawful judge’, a phrase adopted by the Court of Justice in its definition of the parameters of the present review.

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55) The General Court went on to examine the irregularity of the appointment procedure in the light of the right to a tribunal established by law as provided for in the first sentence of the second paragraph of Article 47 of the Charter, interpreted in the light of the first sentence of Article 6(1) of the ECHR and the case-law of the Strasbourg Court, which requires compliance with provisions governing the procedure for the appointment of judges. (32)

56) The General Court arrived at the following conclusion:

‘78. Accordingly, having regard to the importance of compliance with the rules governing the appointment of a judge for the confidence of litigants and the public in the independence and impartiality of the courts, the judge at issue cannot be regarded as a lawful judge within the meaning of the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights.

79. Consequently, the first ground of appeal, alleging that the constitution of the Second Chamber of the Civil Service Tribunal, which delivered the judgment under appeal, was improper must be upheld.

80. In the light of those considerations, the judgment under appeal must be set aside in its entirety, without there being any need to examine the second and third grounds of appeal.’

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61) Article 47 of the Charter encompasses, in a single provision, the right to a fair trial recognised in Article 6(1) of the ECHR and the right to an effective remedy enshrined in Article 13 of the ECHR. The relationship between the Charter and those articles of the ECHR is expressly mentioned in the Explanations relating to the Charter of Fundamental Rights. (33) Thus, the first paragraph of Article 47 of the Charter ‘is based on Article 13 of the ECHR’ and the second paragraph of that article ‘corresponds to Article 6(1) of the ECHR’. The right to a ‘tribunal previously established by law’, provided for in the first sentence of the second paragraph of Article 47 of the Charter, is an aspect of the right to a fair trial. The tribunal so identified is the outcome of a process. Only if the procedure for establishing the tribunal (i) existed in law and (ii) was followed in a particular case is the resulting judicial body a ‘tribunal previously established by law’.

62) Article 52(3) of the Charter requires that, since the content of Article 47 thereof corresponds to rights guaranteed by the ECHR, the meaning and scope of the right to an effective remedy and to a fair trial under Article 47 must be the same as the matching rights under the ECHR. Article 47 of the Charter must thus be interpreted having due regard both for the Explanations relating to the Charter and for the case-law of the Strasbourg Court. (34) As Article 52(3) of the Charter makes clear, EU law is moreover free to afford more extensive protection.

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87) Applying the criteria established by the Strasbourg court in the judgment in Ástráðsson, I conclude that the specific irregularity which vitiated the appointment of the three judges to the CST, as recorded in the judgment in FV and the judgments under review, was not in itself such as to give rise to a ‘flagrant violation’ of the right to a fair trial provided for in the first sentence of the second paragraph of Article 47 of the Charter. It is therefore necessary to examine whether, in the light of all the relevant factors, the right to a fair trial was observed in the present case, an examination which the General Court did not carry out. It is clear that both the appellants in the judgments under review and the appellant FV had their actions processed by a chamber of the CST composed of persons fully and duly qualified to hold office in that jurisdiction and selected from the selection committee’s list; and no error such as to invalidate the processing of those cases by that panel of judges has been identified.

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125) That does not mean, however, that an appellant will be unable to request a review of an alleged irregularity in the appointment of a member of the judicial panel to which his case is assigned. Provided that his action falls within the scope of EU law, he will be entitled to rely on the rights guaranteed by the Charter, in particular Article 47 thereof. A remedy pursued on that basis does not constitute an ‘incidental review’ stricto sensu. It is not a matter of reviewing the appointment decision, but rather of examining whether there has been a breach of the right to a tribunal established by law because a judge whose appointment procedure is vitiated by an irregularity sat on the adjudicating panel.

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131) The approach taken in the judgment in Chronopost is based indeed on the right to a fair trial. The content of that right as there defined by Chronopost corresponds to the wording of Article 6(1) of the ECHR and Article 47(2) of the Charter: ‘everyone must be entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. (102)

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135) Paragraph 45 does no more than echo the full wording of the right guaranteed by Article 6(1) ECHR and Article 47 of the Charter. Paragraphs 46, 47 and 48 then move on to discuss the important question of ex officio verification of the independence and impartiality of the panel of judges called upon to dispose of any particular dispute. There is no further examination of the question of whether a court has indeed been ‘established by law’. That question, if pertinent, can obviously be raised — as it was in FV — by any party which has doubts in that regard.