The European Court of Justice ruled, on Thursday 4 May (case C-40/21) that in the fight against corruption, EU law does not preclude a person from being banned from holding any elected public office for 3 years if he or she has infringed the rules relating to conflicts of interest by holding such office.
The Court adds that the person concerned must, however, be able to have such a sanction reviewed by a court, particularly with regard to compliance with the principle of proportionality.
In a 2019 report, the Agenţia Națională de Integritate found that the applicant in the main proceedings, who was elected mayor of a Romanian municipality in 2016, had failed to comply with the rules governing conflicts of interest in administrative matters. If that report became final, the term of office of the applicant would terminate automatically and an additional prohibition on holding elective public office for a period of 3 years would be imposed on him.
The applicant in the main proceedings brought an action seeking the annulment of that report, claiming that EU law precluded national legislation under which a penalty is imposed, automatically and without the possibility of modulation according to the seriousness of the infringement committed, on a person deemed to have acted in a conflict of interest situation.
The referring court decided to ask the Court about the compatibility of that prohibition with the principle of proportionality of penalties, the right to work and the right to an effective remedy and of access to an independent tribunal, guaranteed by the EU Charter of Fundamental Rights.
The Court held that the contested measure could not be assessed under Article 49(3) of the Charter, which deals with the proportionality of penalties, insofar as it was not criminal in nature. Implementing Union law, the national legislation at issue must, in any event, comply with the principle of proportionality as a general principle of Union law, the Court states, adding that the fact that the duration of the prohibition is not subject to any possibility of modulation does not make it possible to rule out the possibility that, in certain exceptional cases, that penalty may prove disproportionate.
For the Court, the right to hold elected office does not fall within the scope of section 15.1 of the Charter, which concerns the right to work and to pursue a freely chosen or accepted occupation.
Finally, it notes that Article 47 of the Charter, which concerns the right to an effective remedy and access to an impartial tribunal, does not preclude the national legislation in question, provided that the person concerned has an effective opportunity to challenge the legality of the report which found the existence of a conflict of interest and of the penalty imposed on the basis thereof, including its proportionality.
See the judgment: https://aeur.eu/f/6q6 (Original version in French by Camille-Cerise Gessant)