JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

28 April 2009

Case F-72/06

Luc Verheyden

v

Commission of the European Communities

(Civil service – Officials – OLAF internal investigation – Decision by OLAF to forward information to national judicial authorities – Admissibility)

Application: brought under Articles 236 EC and 152 EA, in which Mr Verheyden seeks, in particular, annulment of the decision of the European Anti-Fraud Office (OLAF) to forward to the Italian judicial authorities information concerning him, together with an order for damages against the Commission.

Held: The applicant’s action is dismissed. Each party is to bear its own costs.

Summary

1.      Officials – Actions – Act adversely affecting an official – Decision by the European Anti-Fraud Office (OLAF) to forward information to national judicial authorities – Included

(Staff Regulations, Art. 90a; European Parliament and Council Regulation No 1073/1999, Art. 10(2))

2.      Officials – Actions – Action against by the European Anti-Fraud Office (OLAF)

(Staff Regulations, Arts 90(1) and 90a)

3.      Officials – Actions – Prior administrative procedure

(Staff Regulations, Art. 90)

1.      Having regard to the consequences which they are likely to entail and in view of the need to provide effective judicial protection for persons to whom the Staff Regulations apply, decisions by which the European Anti-Fraud Office (OLAF) forwards information to national judicial authorities pursuant to Article 10(2) of Regulation No 1073/1999 concerning investigations conducted by OLAF constitute acts adversely affecting officials within the meaning of Article 90a of the Staff Regulations.

(see para. 38)

See:

F-5/05 and F-7/05 Violetti and Others v Commission [2009] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, paras 69 to 97

2.      In the scheme of remedies established by Article 90a of the Staff Regulations, an action for damages seeking compensation for damage imputable to the European Anti-Fraud Office (OLAF) is admissible only if it has been preceded by a pre-litigation procedure consistent with the provisions of the Staff Regulations. That procedure differs according to whether the harm in respect of which reparation is sought results from an act adversely affecting the applicant, within the meaning of Article 90a of the Staff Regulations, or conduct on the part of OLAF which is not in the nature of a decision. In the former case, the person concerned must submit a complaint against the act in question to the Director of OLAF within the prescribed period. In the latter case, on the other hand, the administrative procedure must commence with the submission of a request, within the meaning of Article 90(1) of the Staff Regulations, for reparation and, where appropriate, be followed by a complaint against the decision rejecting the request. However, where there is a direct link between an action for annulment and a claim for compensation, the latter is admissible as incidental to the action for annulment, without necessarily having to be preceded by a request from the person concerned to the administration for compensation for the damage allegedly suffered and by a complaint challenging the validity of the implied or express rejection of that request.

(see para. 53)

See:

T-500/93 Y v Court of Justice [1996] ECR-SC I‑A‑335 and II‑977, paras 64 and 66

3.      The administration’s failure to comply with the time-limits laid down in Article 90 of the Staff Regulations may render the institution concerned liable for any damage caused to those involved, provided, however, that in order to obtain compensation for the alleged damage they have followed the two stages of the pre-litigation procedure, namely a request followed by a complaint.

(see para. 60)

See:

T-267/03 Roccato v Commission [2005] ECR-SC I‑A‑1 and II‑1, para. 84