ORDER OF THE GENERAL COURT (First Chamber)
12 May 2020 (1)
(Action for annulment — European Regional Development Fund — Romanian Regional Operational Programme 2007-2013 — OLAF’s external investigations — OLAF’s final reports and recommendations — National decision opening a criminal investigation — OLAF’s refusal to open an investigation into the conduct of the previous investigations — Refusal to grant access to the OLAF investigation file — Act not open to challenge — Inadmissibility)
In Case T‑738/18,
Liviu Dragnea, residing in Bucharest (Romania), represented by B. O’Connor, Solicitor, and S. Gubel, lawyer,
applicant,
v
European Commission, represented by J.-P. Keppenne and J. Baquero Cruz, acting as Agents,
defendant,
Application under Article 263 TFEU for annulment of the letter of the European Anti-Fraud Office (OLAF) of 1 October 2018,
THE GENERAL COURT (First Chamber),
composed of H. Kanninen, President, O. Porchia (Rapporteur) and M. Stancu, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 On 10 February 2015, the European Anti-Fraud Office (OLAF) opened two administrative investigations (OF/2015/0124/B5 and OF/2015/0125/B5) regarding suspected fraud in relation to two road projects, namely the EU projects for road construction in Romania concluded by the Teleorman County Council, Romania (‘Teleorman CC’) and financed by the Romanian Regional Operational Programme 2007-2013, a programme under the European Regional Development Fund (ERDF).
2 OLAF closed the investigations in both cases on 30 May 2016 and 16 September 2016, respectively, (‘the previous investigations’). In its final reports, it concluded that two criminal groups had been established and that it was suspected that a large number of documents had been falsified in order to obtain EU funds unlawfully.
3 OLAF also made recommendations to the European Commission’s Directorate-General for Regional and Urban Policy to recover the funds, and to the National Anticorruption Directorate (‘DNA’) in Romania to initiate criminal proceedings regarding offences against the financial interests of the European Union.
4 The applicant, Mr Liviu Dragnea, who at the material time was the president of Teleorman CC, was not on the list of ‘persons concerned’ by the investigations in question within the meaning of Article 2(5) of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by OLAF and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ 2013 L 248, p. 1) and the final reports did not contain any findings or conclusions regarding him. It was Teleorman CC, of which the applicant was the president, which appeared on that list and which was the subject of the two investigations in question. OLAF stated, in each of the final reports referred to above, that the president of Teleorman CC, namely the applicant, was the subject of a national criminal investigation. However, OLAF explained, in that regard, that the two previous investigations had not covered that criminal investigation, as the national authorities were able, in the exercise of their powers, to explore that issue in greater detail.
5 On 13 November 2017, the DNA in Romania opened a criminal investigation in respect of several suspects, including the applicant. The applicant was accused of fraud relating to the EU budget, setting up a criminal organisation and misuse of his position for personal gain in ongoing national judicial proceedings.
6 On the same day, when the DNA publicly announced its investigation concerning the applicant, OLAF circulated a press release stating that the DNA had initiated an investigation concerning the applicant. It is apparent from that press release, which mentions the applicant by name, that the national authorities noted the importance of OLAF’s contribution to the opening of their investigation.
7 On 1 June 2018, the applicant wrote to OLAF asking it to comment on the conclusions of its analysis of the final reports, which dealt with both substantive and procedural issues. OLAF replied on 10 July 2018, informing the applicant that, since the matter was under investigation by the competent national authorities, it would refrain from making observations on the substance. In addition, it provided clarifications regarding the procedural issues raised by the applicant.
8 On 22 August 2018, the applicant wrote to OLAF requesting it, first, to open an investigation into the conduct of the previous investigations and, secondly, to grant him access to several documents contained in the files relating to those investigations.
9 By letter of 1 October 2018 (‘the contested letter’), OLAF informed the applicant, inter alia, that the two previous investigations had been conducted in accordance with the applicable legal framework and that it did not consider that the points raised by the applicant constituted information that could justify the opening of an investigation into the previous investigations. Furthermore, OLAF explained that, as the applicant was not a person concerned by its previous investigations, the procedural rights under Article 9(4) of Regulation No 883/2013 did not apply to him and he could not have access to the documents that he had requested.
10 By the contested letter, OLAF therefore refused to grant the two requests made by the applicant.
Procedure and forms of order sought
11 By application lodged at the Court Registry on 11 December 2018, the applicant brought the present action. He claims that the Court should:
– declare the action admissible;
– find that the Commission breached, first of all, Article 9(1), (2) and (4) of Regulation No 883/2013 and his rights of defence, ‘including the right to be heard and the respect for the presumption of innocence’, next, the ‘general EU principle of sound administration’ and, lastly, his rights by rejecting the request for access to the documents;
– order the Commission to pay the costs.
12 By separate document lodged at the Court Registry on 6 March 2019, the Commission raised an objection to admissibility under Article 130(1) of the Rules of Procedure of the General Court. The Commission contends that the Court should:
– dismiss the application as manifestly inadmissible, or in any event as inadmissible;
– order the applicant to pay the costs.
13 On 18 April 2019, the applicant submitted his observations on the objection to admissibility raised by the Commission, in which he claims that the Court should:
– dismiss the objection to admissibility and proceed to an examination of the substance of the action;
– in the alternative, reserve its decision on admissibility until it rules on the substance of the case;
– grant access to the requested documents;
– order the Commission to pay the costs relating to the objection to admissibility.
Law
Subject matter of the action
14 As regards the subject matter of the action, it should be noted that, although, on the first page of the application, the action is presented as seeking, pursuant to the fourth paragraph of Article 263 TFEU, the annulment of the contested letter, the form of order sought, set out on the last page of the application and reproduced in paragraph 11 above, is expressed by the applicant as seeking a declaratory judgment and not the annulment of an act.
15 Thus, there is an inconsistency between the subject matter of the action and the form of order sought, as set out in the application.
16 In that regard, it must be borne in mind that the subject matter of the proceedings and the form of order sought by the applicant constitute two essential indications which must, in accordance with Article 76(d) and (e) of the Rules of Procedure, be included in the application.
17 Furthermore, it is settled case-law that an application initiating proceedings must state the subject matter of the proceedings and a summary of the pleas in law on which the application is based and that that statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the EU judicature to rule on the action. Similarly, the form of order sought must be set out unambiguously so that the court does not rule ultra petita or indeed fail to rule on a complaint (see order of 7 May 2013, TME v Commission, C‑418/12 P, not published, EU:C:2013:285, paragraph 33 and the case-law cited).
18 In the present case, it is apparent from reading the application in its entirety that, by his action, the applicant seeks the annulment of the contested letter, by which OLAF refused, first, to open an investigation into the manner in which it had conducted the two investigations which led to the adoption of the two final investigation reports (‘OLAF’s refusal to open an investigation into the conduct of the previous investigations’) and, secondly, to grant access to all the documents requested (‘the refusal of access to the documents’).
19 In that regard, it should also be noted that that was also the Commission’s understanding of the form of order sought by the applicant in its objection to admissibility.
20 Furthermore, it is apparent from the application that, as regards the refusal to open an investigation into the conduct of the previous investigations, the applicant relies on a breach of the rights of the defence, as enshrined, inter alia, in Article 9 of Regulation No 883/2013, and on a breach of the principle of sound administration and various errors of assessment made during the investigations or which affected the reports which closed those investigations. As regards the refusal of access to the documents, the applicant alleges breach of Article 42 of the Charter of Fundamental Rights of the European Union and of Article 4(2) and Article 7 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
21 It is on the basis of what is set out above that the objection to admissibility raised by the Commission must be considered.
Admissibility
22 Under Article 130(1) and (7) of the Rules of Procedure, the Court may, if the defendant so requests, rule on the question of admissibility without considering the merits of the case.
23 In the present case, as the Commission has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.
24 In support of its objection to admissibility, the Commission raises two pleas of inadmissibility. The first alleges that OLAF’s refusal to open an investigation into the conduct of the previous investigations cannot be the subject of an action under Article 263 TFEU, since it is not an act capable of adversely affecting the applicant by altering his legal position. The second alleges that the refusal of access to the documents is not a challengeable act on the ground that the applicant never submitted a confirmatory application in accordance with Regulation No 1049/2001.
First plea of inadmissibility, alleging that OLAF’s refusal to open an investigation into the conduct of the previous investigations is not an act against which an action for annulment may be brought
25 The Commission submits, first of all, that, according to settled case-law, the opening of an investigation and the various acts carried out in the context of that investigation are merely preparatory measures, which may subsequently lead to a decision against which an action may be brought by a national authority or the EU institutions. A report drawn up by OLAF following its internal and external investigations does not significantly change the legal situation of the persons named in that report, any more than the forwarding of information to the national judicial authorities or to the EU authorities. Furthermore, it is also clear that, under Regulation No 883/2013, a complainant or an informant to OLAF does not have a subjective right to have an investigation opened, and that the opening of an investigation is not a decision addressed to that complainant or a decision concerning him within the meaning of Article 263 TFEU. For the same reasons, a refusal by OLAF to open an investigation is not capable of forming the subject matter of an action for annulment brought by the complainant who requested the opening of such an investigation, since it has no binding legal effect on that complainant. That solution should be applied a fortiori in a case like the present one where the applicant requested OLAF to initiate an investigation in order to examine the conduct of its own previous investigations. Otherwise, the applicant would be entitled to circumvent the settled case-law according to which final reports drawn up by OLAF cannot be the subject of an action for annulment under Article 263 TFEU.
26 Next, the Commission submits that, in accordance with settled case-law, the applicant’s fundamental rights and his right to judicial protection must be protected by the competent national courts in the national criminal proceedings. That is so in the present case, where the applicant was not a person concerned by the OLAF investigations and where the OLAF reports did not contain any conclusions or recommendation concerning him.
27 Lastly, according to the Commission, the press release referred to in paragraph 6 above cannot alter the nature of the contested act. That press release, which is subsequent to the closure of the OLAF investigations and the drawing up of the final reports, merely indicates that the OLAF investigations were followed up by the competent national authorities, including as regards the applicant (who was not a ‘person concerned’ by the OLAF investigations), under the national authorities’ own prerogatives and competencies.
28 The applicant disputes the Commission’s arguments. In essence, he claims that the action is admissible on the sole ground that it relates to OLAF’s refusal to open an investigation into the conduct of the previous investigations and that, in the alternative, it would also be admissible even if it had to be assessed in the light of OLAF’s final reports. In addition, he submits that to conclude that the action is inadmissible would create a lacuna in the EU system for the protection of rights.
– Admissibility of the action in so far as it is directed against OLAF’s refusal to open an investigation into the conduct of the previous investigations
29 In the first place, it should be recalled that any measure the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position is an act which may be the subject of an action for annulment under Article 263 TFEU (see judgment of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 51 and the case-law cited).
30 In the second place, it should be noted that, where a decision of an EU institution amounts to a rejection, that decision must be appraised in the light of the nature of the request to which it constitutes a reply (see order of 23 January 2019, MLPS v Commission, T‑304/18, not published, EU:T:2019:34, paragraph 10 and the case-law cited).
31 In the present case, by his action, the applicant seeks the annulment of the contested letter, by which OLAF rejected his request, and which must be interpreted as expressing OLAF’s refusal to initiate an investigation into the conduct of its previous investigations.
32 In that regard, it should be noted that, under Article 1(1) of Regulation No 883/2013, OLAF was established to exercise the powers of investigation conferred on the Commission in order to step up the fight against fraud, corruption and any other illegal activity affecting the financial interests of the European Union. Article 2(5) of that regulation provides that any person suspected of having committed fraud, corruption or any other illegal activity affecting the financial interests of the European Union, who is therefore subject to investigation by OLAF, is to be considered to be a ‘person concerned’. That regulation also provides, in Article 9 thereof, that the person concerned benefits from certain procedural guarantees, including the right to respect for the presumption of innocence, the right to a notice period and the right to be assisted by the person of his choice when invited to an interview, the right of access to the record of that interview, and the right to make observations on the facts concerning him once the investigation has been completed.
33 No provision of Regulation No 883/2013 confers on natural and legal persons, whether or not persons concerned, the right to request OLAF to open an investigation into its own previous investigations in order to examine whether the procedural guarantees provided for in Article 9 of Regulation No 883/2013 have been complied with.
34 Therefore, the applicant cannot validly claim that OLAF’s refusal to open an investigation into the conduct of the previous investigations adversely affects his right to have the conduct of those investigations examined in order to determine whether the rights deriving from Article 9 of Regulation No 883/2013 have been infringed.
35 Moreover, it must be borne in mind that it is apparent from Regulation No 883/2013 that natural or legal persons may provide OLAF with information relating to misconduct, but cannot oblige OLAF to open an administrative investigation. Consequently, in principle, a decision of OLAF refusing to open an investigation does not have any binding legal effects on the interests of a person who has requested the opening of such an investigation and may not be the subject of an action for annulment brought by that person (see, to that effect, order of 12 November 2018, Stichting Against Child Trafficking v Commission, T‑658/17, not published, EU:T:2018:799, paragraphs 21, 22 and 24).
36 In those circumstances, OLAF’s refusal to open an investigation into the conduct of the previous investigations cannot be regarded as a measure producing binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position. Consequently, it does not constitute a decision against which an action for annulment may be brought as provided for in Article 263 TFEU.
37 Therefore, the action for annulment must be dismissed as inadmissible in so far as it is directed against OLAF’s refusal to open an investigation into the conduct of the previous investigations.
38 That conclusion cannot be called into question in the event that the Court has to, as the applicant suggests, assess the action in the light of OLAF’s final reports on which it is based, in accordance with the principle laid down in the order of 13 July 2004, Comunidad Autónoma de Andalucía v Commission (T‑29/03, EU:T:2004:235).
39 It is apparent from that order of 13 July 2004, Comunidad Autónoma de Andalucía v Commission (T‑29/03, EU:T:2004:235, paragraph 30), that the refusal by an EU institution to withdraw or amend an act may constitute an act whose legality may be reviewed under Article 263 TFEU only if the act which the institution refuses to call into question could itself have been contested under that provision.
40 However, in the present case, even if OLAF’s refusal to open an investigation into the conduct of the previous investigations contained in the contested letter may be interpreted as a refusal to amend or to call into question the final reports, that refusal cannot be considered to be a decision which may be the subject of an action for annulment, since OLAF’s reports and recommendations drawn up following an external or internal investigation and sent to the competent authorities of the Member States are only recommendations or opinions which have no binding legal effects (see, to that effect, orders of 13 July 2004, Comunidad Autónoma de Andalucía v Commission, T‑29/03, EU:T:2004:235, paragraph 33, and of 21 June 2017, Inox Mare v Commission, T‑289/16, EU:T:2017:414, paragraph 14).
41 It follows from the provisions of Regulation No 883/2013, and particularly from recital 31 and Article 11 of that regulation, that OLAF’s conclusions contained in a final report cannot lead automatically to the initiation of judicial or disciplinary proceedings, since the competent authorities, to which the report of the external or internal investigation is sent, are free to decide what action should be taken on the final report and are accordingly the only authorities having the power to adopt decisions capable of affecting the legal position of those persons in relation to which the report recommended that such proceedings be instigated (see, to that effect, orders of 13 July 2004, Comunidad Autónoma de Andalucía v Commission, T‑29/03, EU:T:2004:235, paragraph 37; of 21 June 2017, Inox Mare v Commission, T‑289/16, EU:T:2017:414, paragraph 22; and of 22 January 2018, Ostvesta v Commission, T‑175/17, not published, EU:T:2018:49, paragraph 29 and the case-law cited).
42 Furthermore, a different conclusion from that drawn in paragraphs 37 and 38 above would amount to authorising the applicant to circumvent the principle, enshrined in the case-law referred to in paragraphs 40 and 41 above, that final reports drawn up by OLAF may not be the subject of an action for annulment.
43 Moreover, and a fortiori, a different conclusion would entail a circumvention of the time limit for bringing an action for annulment. Under the sixth paragraph of Article 263 TFEU, proceedings for annulment are to be instituted within two months of the publication of the contested measure, or of its notification to the applicant, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. Under Article 60 of the Rules of Procedure, that time limit is, in addition, to be extended on account of distance by a single period of 10 days.
44 In the present case, it should be noted that the final reports drawn up by OLAF on 30 May and 16 September 2016, as they closed OLAF’s external investigations as provided for in Article 3 of Regulation No 883/2013, were communicated by OLAF to the DNA, in accordance with Article 11(3) of Regulation No 883/2013, and that they were neither published in the Official Journal of the European Union nor notified to the applicant.
45 It is also apparent from the file that the applicant became aware of those reports no later than 1 June 2018, the date on which he sent the Director of OLAF an initial letter challenging the content of those final reports.
46 Consequently, the time allowed for the applicant to bring his action, if it was directed against the final reports, began to run on 2 June 2018 (see, to that effect, judgment of 19 February 1998, Commission v Council, C‑309/95, EU:C:1998:66, paragraph 22) and expired on 12 August 2018, including extension of time on account of distance. The action, brought on 11 December 2018, is therefore out of time if it was directed against the final reports.
– The alleged lacuna in the EU system for the protection of rights
47 As regards the applicant’s argument that, in essence, a finding that the action is inadmissible would create a lacuna in the EU system for the protection of rights on the ground that that would mean that those procedural guarantees could not be the subject of an independent and impartial judicial review, in breach of Article 47 of the Charter of Fundamental Rights, it should be noted that, by that argument, the applicant seeks to argue a lack of effective judicial protection.
48 In that regard, the following must be stated.
49 First, as has been recalled in paragraph 41 above, it is clear from settled case-law that the action taken by the national authorities in response to the information forwarded to them by OLAF is within their sole and entire responsibility and that it is for those authorities to ascertain whether such information justifies or requires the bringing of criminal proceedings. Consequently, judicial protection against such proceedings must be ensured at national level with all the guarantees provided by domestic law, including those which follow from fundamental rights, and the possibility for the court hearing the action of seeking a preliminary ruling from the Court of Justice under Article 267 TFEU (see order of 12 July 2018, TE v Commission, T‑392/17, not published, EU:T:2018:459, paragraph 30 and the case-law cited).
50 In that regard, it must also be observed that, according to the case-law, Article 47 of the Charter of Fundamental Rights is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union, as is apparent also from the Explanation on Article 47 of the Charter, which must, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter of Fundamental Rights, be taken into consideration for the interpretation of the Charter (see judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 97 and the case-law cited). Accordingly, the conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, but such an interpretation cannot have the effect of setting aside the conditions expressly laid down in that Treaty.
51 Moreover, the fact that the Member States’ courts do not have jurisdiction to review and to rule on the lawfulness of OLAF’s initial investigations under EU law does not mean that the applicant’s action for annulment before the Court satisfies the conditions of admissibility laid down by Article 263 TFEU (see, to that effect, order of 12 November 2018, Stichting Against Child Trafficking v Commission, T‑658/17, not published, EU:T:2018:799, paragraph 29).
52 Secondly, it is also apparent from the case-law that, even though individuals are unable to bring an action for annulment against measures which do not produce binding legal effects, they are not denied access to justice, since any unlawful act committed by OLAF which is not an act which adversely affects an individual may be open to sanction in an action for damages (judgment of 20 May 2010, Commission v Violetti and Others, T‑261/09 P, EU:T:2010:215, paragraph 59). An action for damages therefore remains available if the conduct at issue is such as to entail liability on the part of the European Union (order of 12 November 2018, Stichting Against Child Trafficking v Commission, T‑658/17, not published, EU:T:2018:799, paragraph 29).
53 Thirdly, it must be stated that the judgment of 8 July 2008, Franchet and Byk v Commission (T‑48/05, EU:T:2008:257), relied on by the applicant, in which the EU judicature acknowledged that it has jurisdiction to examine the manner in which OLAF conducted and concluded an investigation and the way in which the Commission acted in the context of that investigation, concerns an action for damages. The applicant is therefore wrong to claim that an action for damages is not, in the present case, an effective remedy.
54 Therefore, contrary to what the applicant claims, a finding that the action for annulment is inadmissible does not create a lacuna in the EU system for the protection of rights.
55 In the light of all the foregoing, the action for annulment must be dismissed as inadmissible in so far as it is directed against OLAF’s refusal to open an investigation into the conduct of the previous investigations and, accordingly, the first plea of inadmissibility raised by the Commission must be upheld.
The second plea of inadmissibility, alleging that the refusal of access to the documents is not a challengeable act for the purposes of Regulation No 1049/2001
56 As regards the application for annulment of the refusal of access to the documents, the Commission contends that it is manifestly inadmissible, both in so far as it is based on Article 42 of the Charter of Fundamental Rights and in so far as it is based on Regulation No 1049/2001.
57 In the first place, as regards the alleged infringement of Article 42 of the Charter of Fundamental Rights, the Commission submits, in essence, that, under Article 52(2) of the Charter, the right conferred by Article 42 thereof is exercised under the conditions and within the limits defined in Article 15(3) TFEU. In accordance with the case-law, that provision and, consequently, Article 42 of the Charter of Fundamental Rights, do not have direct effect, since their implementation depends on the adoption of subsequent measures. Consequently, the applicant cannot base his action for annulment on those provisions of primary law, since the right of public access to documents must be exercised in accordance with the provisions of Regulation No 1049/2001 (the lawfulness of which, in any event, is not disputed by the applicant).
58 In the second place, according to the Commission, the application for annulment of the refusal of access to the documents is also inadmissible on the ground that the applicant never made a confirmatory application in accordance with Regulation No 1049/2001. In that regard, it points out that although, in the present case, it is not clear whether the applicant actually made an initial application under Regulation No 1049/2001, it is clear that he did not make a confirmatory application in accordance with Article 7(4) of Regulation No 1049/2001 before bringing the present action before the Court. Such a confirmatory application is essential for bringing an action for annulment. According to the Commission, the refusal of access to the documents entitles the applicant to make a confirmatory application under Article 8(1) of Regulation No 1049/2001, but not to bring an action before the Court. An individual is entitled to institute court proceedings against the institution concerned only where that institution has taken an express or implied negative decision following a confirmatory application.
59 Furthermore, according to the Commission, it cannot be criticised for not having referred, in the contested letter, to the applicant’s right to make a confirmatory application. In this respect, the Commission observes that the applicant’s request of 22 August 2018 did not indicate the legal basis on which it was based, and it seemed that it was a request for access to the file. The applicant did not use the electronic form made available by the Commission for requests for public access. Consequently, the applicant’s request was treated by OLAF as a request for access to the file and not as a request for public access to documents. It is only in the present action that the applicant clearly indicated, for the first time, that his request was based on Regulation No 1049/2001. Accordingly, there is nothing to justify his failure to comply with the clear procedural obligation to make a confirmatory application in accordance with Articles 7 and 8 of Regulation No 1049/2001.
60 The applicant disputes the Commission’s arguments. First, he maintains that he clearly submitted his request for access in accordance with the rules on public access to documents, as the request for access made in the letter of 22 August 2018 was covered by Article 6 of Regulation No 1049/2001. He states that he had to make a request for public access as the Commission had chosen not to regard him as a ‘person concerned’ and as Regulation No 883/2013 does not allow third parties access to the file. Secondly, the applicant submits, in essence, that he has a right of access to the documents requested under Article 42 of the Charter of Fundamental Rights.
61 In the first place, as regards the application for annulment of the refusal of access to the documents in so far as it is based on Article 42 of the Charter of Fundamental Rights, it must be recalled, as did the Commission, that under that provision the right of access to documents is to be guaranteed subject to the principles and the conditions laid down by the European Parliament and the Council of the European Union by means of regulations, in accordance with the ordinary legislative procedure. Thus, Regulation No 1049/2001, adopted on the basis of Article 255 EC, the content of which was enshrined in Article 15(3) TFEU, lays down general principles and limits with regard to the right of access to documents held by the Commission. Furthermore, according to Article 52(2) of the Charter of Fundamental Rights, the rights recognised by the Charter which are based on the Treaties must be exercised under the conditions and within the limits defined by those treaties (judgments of 28 March 2017, Deutsche Telekom v Commission, T‑210/15, EU:T:2017:224, paragraph 113, and of 14 May 2019, Commune de Fessenheim and Others v Commission, T‑751/17, EU:T:2019:330, paragraphs 107 to 109).
62 Therefore, the applicant cannot base his request for access to documents on provisions of primary law. Consequently, the application for annulment of the refusal of access to the documents in so far as it is based on Article 42 of the Charter of Fundamental Rights must be rejected as inadmissible.
63 In the second place, concerning the application for annulment of the refusal of access to the documents in so far as it is based on Regulation No 1049/2001, it must be noted, first of all, that the arguments advanced by the Commission (see paragraphs 58 and 59 above) seek, in essence, to argue that the refusal of access to the documents cannot be interpreted as an act adopted under Articles 7 and 8 of that regulation and as capable of being the subject of an action for annulment.
64 In that regard, it should be noted, first, that, as the Commission rightly points out, it is only in the written pleadings lodged with the Court that the applicant states, for the first time, that his request for access to documents made in the letter of 22 August 2018 was covered by Article 6 of Regulation No 1049/2001 and was clearly submitted in accordance with the rules on public access to documents.
65 Secondly, it is clear from the wording of the contested letter that OLAF, as the Commission confirms in its plea of inadmissibility, treated the request for access to documents as a request for access to the investigation file and not as an initial application in accordance with Articles 6 and 7 of Regulation No 1049/2001.
66 Furthermore, OLAF was entitled to deal in that way with the request for access to documents. In the letter of 22 August 2018, the applicant referred throughout to Regulation No 883/2013. Since the submission of that letter, the applicant has claimed, in essence, that OLAF had failed to fulfil its obligations under Article 9 of Regulation No 883/2013. Subsequently, in order to establish alleged failures by OLAF in the conduct of the previous investigations, the applicant referred, primarily, to Article 9 of Regulation No 883/2013 and, to a lesser extent, to Article 7 of that regulation. It was at the end of those observations that the applicant made his request for access to several documents. Thus, on reading the letter of 22 August 2018, everything indicated that the applicant was making that request under Regulation No 883/2013 and that he intended, in particular, to rely on infringement of the procedural safeguards provided for in Article 9 of that regulation.
67 Furthermore, although the fact that the applicant did not use the electronic form made available by the Commission for requests for access to documents cannot justify OLAF’s interpretation of the applicant’s request for access as a request for access to the investigation file, the fact that, on the date of the application, OLAF’s investigations were closed, so that there was no open file to which the applicant could have requested access, is also not a factor which should have led OLAF to interpret that request as a request for access to documents in accordance with Regulation No 1049/2001. As the applicant himself confirms, the request for access related to a set of documents concerning the OLAF investigations in which he was allegedly involved.
68 Thirdly, it should be noted, as the Commission points out, that the applicant did not submit a confirmatory application in accordance with Article 7(2) of Regulation No 1049/2001. Furthermore, in that regard, it must be stated that, contrary to what the applicant claims, the Commission did not infringe Article 7(1) of that regulation by failing to inform the applicant of his right to make such a confirmatory application. Since OLAF rightly treated the applicant’s request as a request for access to the file and not as an initial application in accordance with Articles 6 and 7 of Regulation No 1049/2001, it cannot be criticised for having failed to inform the applicant that he had the right to make a confirmatory application in accordance with Article 7(1) of that regulation.
69 Therefore, in the particular circumstances of the present case, the refusal of access to the documents cannot be regarded as a definitive act adopted in accordance with Articles 7 and 8 of Regulation No 1049/2001, against which an action for annulment may be brought as provided for in that regulation.
70 Consequently, the application for annulment of the refusal of access to the documents, in so far as it is based on Regulation No 1049/2001, must be rejected as inadmissible and, accordingly, the second plea of inadmissibility raised by the Commission must be upheld.
71 In the light of all the foregoing, the action must be dismissed as inadmissible in its entirety, without it being necessary to grant the applicant’s request for a measure of organisation of procedure.
Costs
72 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (First Chamber),
hereby orders:
1. The action is dismissed.
2. Mr Liviu Dragnea shall pay the costs.
Luxembourg, 12 May 2020.