ORDER OF THE GENERAL COURT (Eighth Chamber)
22 June 2015 (*)
(Action for failure to act — Refusal of the European Anti-Fraud Office (OLAF) to open an external investigation — Position defined — Application for directions to be issued — No direct concern — Inadmissibility)
In Case T‑690/13,
In vivo OOO, established in Abinsk (Russia), represented by T. Huopalainen, lawyer,
applicant,
v
European Commission, represented by J.-P. Keppenne and J. Baquero Cruz, acting as Agents,
defendant,
ACTION seeking a declaration by the General Court that the European Anti-Fraud Office (OLAF) failed to act in refusing to open an external investigation and an order that it remedy the situation,
THE GENERAL COURT (Eighth Chamber),
composed of D. Gratsias, President, M. Kancheva and C. Wetter (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 By a contract of 1 January 2009, entitled ‘Development Agreement’, Åbo Akademi University (‘Åbo University’), a Finnish university, undertook to use the services of the applicant, In vivo OOO, a limited liability company established under Russian law, to carry out tasks concerning the development of a viable lactic acid polymer production technique. The applicant’s remuneration was determined in the contract as EUR 1 217 600. By a document dated 18 February 2011, the parties to the contract confirmed its terms and stated, first, that the applicant had duly performed the services entrusted to it and, secondly, that Åbo University’ was waiting for Nordbiochem OÜ, an Estonian joint-stock company, described as the ‘main contractor’, to pay the last invoice sent to it in order to be able to pay the applicant the outstanding balance payable of EUR 90 450.
2 The applicant referred the matter to the European Anti-Fraud Office (OLAF) on 2 July 2013 stating that Nordbiochem had received public funds from the Estonian public body Enterprise Estonia. In the applicant’s view, this body had itself received Community funds, namely EUR 1 167 878.64, from the European Regional Development Fund (ERDF) for a project concerning the development of lactic acid polymer technologies and EUR 564 117 from the same fund for a project relating to lactic acid. The applicant reported its concerns to OLAF regarding the misuse of some of these grants, of up to EUR 570 650, and claims that it was entitled by law to that sum as Åbo University’s end supplier.
3 On 26 September 2013, having examined the report submitted by the applicant, OLAF informed it that the procedure had been closed on the grounds, in particular, that it was not competent to act in the absence of ‘any direct involvement of EU resources’.
4 On 16 October 2013, the applicant expressed its disagreement with this analysis and called upon OLAF to take action pursuant to Article 265 TFEU.
5 On 25 October 2013, OLAF defined its position, reiterating, in essence, its reply of 26 September 2013.
Procedure and forms of order sought
6 By application lodged at the Court Registry on 31 December 2013, the applicant claims that the Court should:
– find that OLAF has failed to act;
– order OLAF to put an end to that failure;
– order OLAF to pay the costs.
7 On 24 April 2014, the Court Registry asked the parties to the dispute to reply to the question whether OLAF could act as a defendant.
8 On 8 May 2014, the European Commission replied to that question in the negative, since OLAF is merely one of its departments.
9 On 30 June 2014, by a separate document, the Commission raised an objection of inadmissibility pursuant to Article 114(1) of the Court’s Rules of Procedure.
10 By its letter of 2 September 2014, the Court Registry informed the parties of an amendment to the title of the dispute, from the initial ‘In vivo v OLAF’ to ‘In vivo v Commission’, and sought their opinion on that matter. The applicant agreed to the amendment on 11 September 2014, while the Commission, with reference to the first plea in its objection of inadmissibility expressed its disagreement with the amendment in its letter of 16 September 2014.
11 The Commission contends that the Court should:
– dismiss the application as inadmissible;
– order the applicant to pay the costs.
Law
12 The objection of inadmissibility submitted by the Commission includes three pleas of inadmissibility: the first alleges that there is no valid defendant in the present case since the applicant named OLAF and not the Commission; the second is that there is no failure to act and the third relies on the fact that the act that the defendant requested OLAF to adopt, namely the opening of an external investigation, is not an act having legal effects which, as such, may be the subject of an action for annulment pursuant to Article 263 TFEU.
13 Each of these pleas of inadmissibility should be examined.
The first plea of inadmissibility raised by the Commission
14 It should be noted that OLAF, established by Commission Decision 1999/352/EC, ECSC, Euratom of 28 April 1999 (OJ 1999 L 136, p. 20), is an internal department of the Commission, the independence of which is purely functional and limited to its investigation activities. Accordingly, and in the absence of any contrary provision, OLAF does not have separate legal personality and it is the Commission which acts on its behalf in legal proceedings. An action seeking, therefore, to establish that OLAF failed to act, in so far as it did not perform the external investigative functions laid down in Article 3 of Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (OJ 1999 L 136, p. 1), as amended and applicable to the present proceedings, must be regarded as being directed against the Commission alone (see, to that effect and by analogy, judgment of 6 April 2006 in Camós Grau v Commission, T‑309/03, ECR, EU:T:2006:110, paragraph 66).
15 According to Article 44(1) of the Court’s Rules of Procedure, the applicant must designate the party against whom the application is made. However, the EU courts, may, as required, clarify the wording of the application in this respect (see, to that effect, judgments of 2 March 1977 in Milch-, Fett- und Eier-Kontor v Council and Commission, 44/76, ECR, EU:C:1977:37, paragraph 1; of 3 March 1988 in Commission v EIB, 85/86, ECR, EU:C:1988:110, paragraphs 10 and 11, and order of 16 October 2006 in Aisne et Nature v Commission, T‑173/06, EU:T:2006:320, paragraph 17). While it is true that the application asks the Court to establish OLAF’s failure to act, that application should be interpreted as being directed, in reality, against the institution to which this department is answerable, namely the Commission.
16 The Commission’s first plea of inadmissibility must therefore be rejected and, in the light of the considerations in paragraph 14 above, the Commission must be regarded as the sole defendant.
Second plea of inadmissibility raised by the Commission
17 It follows from the case-law that Article 265 TFEU covers failure to take a decision or define a position and not the adoption of an act different from that sought or considered necessary by the party concerned (judgments of 13 July 1971 in Deutscher Komponistenverband v Commission, 8/71, ECR, EU:C:1971:82, paragraph 2; of 24 November 1992 in Buckl and Others v Commission, C‑15/91 and C‑108/91, ECR, EU:C:1992:454, paragraph 17, and order of 17 December 2010 in Verein Deutsche Sprache v Council, T‑245/10, EU:T:2010:555, paragraph 15). Accordingly, it must be held that an institution has not failed to act not only when it adopts an act in the applicant’s favour but also when it refuses to adopt that act and replies to the applicant’s request by indicating why it considers that it should not adopt that act or that it is not competent to do so (order in Verein Deutsche Sprache v Council, EU:T:2010:555, paragraph 15; see, also, to that effect, order of 11 March 2002 in Schlüsselverlag J.S. Moser and Others v Commission, T 3/02, ECR, EU:T:2002:64, paragraphs 19 to 24).
18 In the present case, the file shows that, by letter of 25 October 2013, OLAF replied to the applicant that it was ‘not competent to act in this matter’.
19 Accordingly, it must be held that OLAF, as a department of the Commission, defined its position on the applicant’s invitation to act of 16 October 2013, submitted pursuant to the second paragraph of Article 265 TFEU, seeking, in essence, that it reconsider its position stated in its letter of 26 September 2013 and open the external investigation sought by the applicant. The fact that, in that reply, OLAF considered that it was not competent to perform that investigation and, consequently, did not give the applicant the reply that it sought does not mean that it did not examine the question raised by the applicant or that it did not define its position on the question. The Commission’s second plea of inadmissibility is therefore justified and the action for failure to act is accordingly inadmissible.
The third plea of inadmissibility raised by the Commission
20 While the third paragraph of Article 265 TFEU entitles natural and legal persons to bring an action for failure to act when an institution, body, office or agency of the Union has failed to address to that person any act other than a recommendation or an opinion, Articles 263 TFEU and 265 TFEU, however, prescribe one and the same method of recourse (see, to that effect, judgments of 18 November 1970 in Chevalley v Commission, 15/70, ECR, EU:C:1970:95, paragraph 6, and 26 November 1996 in T. Port, C‑68/95, ECR, EU:C:1996:452, paragraph 59).
21 It follows that, just as the fourth paragraph of Article 263 TFEU entitles individuals to bring an action for annulment against an act of an institution not addressed to them provided that the act is of direct and individual concern to them, the third paragraph of Article 265 TFEU must be interpreted as also entitling them to bring an action for failure to act against an institution which they claim has failed to adopt an act which would have concerned them in the same way (see, to that effect, judgments in T. Port, cited in paragraph 20 above, EU:C:1996:452, paragraph 59, and 15 September 1998 in Gestevision Telecinco v Commission, T‑95/96, ECR, EU:T:1998:206, paragraph 58).
22 Furthermore, it should be noted that the fifth paragraph of Article 263 TFEU provides that acts setting up bodies, offices and agencies of the Union may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of these bodies, offices or agencies intended to produce legal effects in relation to them.
23 Since the fifth paragraph of Article 263 TFEU does not apply to acts adversely affecting persons in relation to OLAF’s external investigations, judicial review of which is not mentioned in Regulation No 1073/1999, Article 14 of which only covers that of internal investigations, or in Decision 1999/352, it is necessary, in the light of the considerations in paragraph 14 above, to examine the extent to which the applicant can be regarded as directly and individually concerned by the act with regard to which the Commission is alleged to have failed to act.
24 The above presupposes that the act in question is capable of adversely affecting the applicant and therefore constitutes a challengeable act for the purposes of Article 263 TFEU. As the Commission rightly submits, the fact that OLAF has opened an investigation does not, as such, constitute an act adversely affecting a person for the purposes of that provision. Even the report drawn up by OLAF at the close of its internal and external investigations does not significantly change the legal situations of the persons named in that report (judgment in Camós Grau v Commission, cited in paragraph 14 above, EU:T:2006:110, paragraphs 48 and 49), and the same is true when information is forwarded to the judicial authorities (judgment of 20 May 2010 in Commission v Violetti and Others, T‑261/09 P, ECR-SC, EU:T:2010:215, paragraphs 47 and 48).
25 The act that the applicant requested the Commission to adopt does not therefore constitute a challengeable act; this also precludes the admissibility of the action for failure to act.
26 Furthermore, even if it were a challengeable act, which is not the case, as has been held, the applicant would not be directly concerned by that act.
27 As stated in the application itself, referred to in paragraph 2 above, the ERDF paid the funds at issue to an Estonian public body, Enterprise Estonia. The applicant claims that the use of those funds by that body enabled Nordbiochem to enter into a contract with Åbo University. However, this claim is not proven, in particular, since Enterprise Estonia’s budget was likely to involve other sources of funding, in particular national sources, in order to award grants, including that paid to Nordbiochem. Moreover, the contractual documents submitted, namely the contract of 1 January 2009 and the document dated 18 February 2011, do not refer to any Community origin, even indirect, of the financial flows benefiting Nordbiochem, which is identified simply as ‘the main contractor’. Although Åbo University explains, in that document, that it intends to await payment by that company of its last invoice before paying the outstanding balance payable to the applicant, there was nothing to prevent Åbo University, from a legal or accounting point of view, from paying the applicant independently of that payment. There are therefore no fewer than three stages between the ERDF’s alleged action and the amounts paid under contract to the applicant.
28 Moreover, even if the investigation sought by the applicant had established that some of the funds paid by the ERDF had been misused, it is difficult to see why the applicant claims that all of this money would accrue to it as of right. Since the payment to it had been determined under the contract, it would not have been increased by Åbo University, irrespective of whether all the amounts at issue had been allocated for the purposes initially planned.
29 It follows from the above that since the act that the applicant requested OLAF to adopt, namely the opening of an external investigation, is not a challengeable act and, in any event, the applicant is not directly concerned by that act, the Commission’s third plea of inadmissibility, must also be declared well founded.
30 The action for failure to act is therefore inadmissible on those grounds.
31 It must be added that the form of order sought by the applicant in the alternative seeking that the Court should put an end to its alleged failure to act is in turn inadmissible on the basis of the inadmissibility of the primary head of the form of order sought. It is also intrinsically so since, in accordance with the case-law, it is not, in principle, for the EU judicature to issue directions to the institutions. This is particularly the case in the context of judicial review, where the administration concerned is under a duty to take the necessary measures to comply with the judgment of the Court, both in actions for annulment and in actions for failure to act (judgment of 24 January 1995 in Ladbroke Racing v Commission, T‑74/92, ECR, EU:T:1995:10, paragraph 75, and order in Verein Deutsche Sprache v Council, cited in paragraph 17 above, EU:T:2010:555, paragraph 18).
32 Under these circumstances, it must be held that the action is inadmissible with regard to both the primary and the alternative heads of the form of order sought.
Costs
33 Under Article 87(2) 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.
34 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. In vivo OOO shall pay the costs.
Luxembourg, 22 June 2015.