JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(First Chamber)
28 April 2009
Joined Cases F-5/05 and F-7/05
Antonello Violetti and Others
v
Commission of the European Communities
(Civil service – Officials – OLAF internal investigation – Decision by OLAF to forward information to national judicial authorities – Act adversely affecting an official – Admissibility – Rights of the defence)
Application: brought under Articles 236 EC and 152 EA, in which Mr Violetti and twelve other Commission officials, together with Ms Schmit, seek in essence, firstly, annulment of the decision by which the European Anti-Fraud Office (OLAF) decided to open an internal investigation, of the investigative measures carried out as part of that investigation, of OLAF’s decision to forward to the Italian judicial authorities information concerning them, and of the report drawn up on completion of the investigation, and, secondly, an order for damages against the Commission.
Held: The decision of 5 August 2003 by which OLAF forwarded to the Italian judicial authorities information concerning the applicants is annulled. The Commission is ordered to pay each of the applicants the sum of EUR 3 000. The remainder of the claims in both applications is dismissed. The Commission is ordered to bear its own costs and to pay the costs of the applicants. The Council of the European Union, which intervened in support of the Commission, is ordered 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, Arts 43 and 90a; Rules of Procedure of the Civil Service Tribunal, Art. 102(1); European Parliament and Council Regulation No 1073/1999, Art. 10(2); Council Regulation No 723/2004; Commission Decision 1999/396, Art. 4)
2. Officials – Actions – Act adversely affecting an official – Definition – Preparatory act – Decision by the European Anti-Fraud Office (OLAF) to forward information to national judicial authorities – Not included
(Staff Regulations, Arts 90, 90a and 91; European Parliament and Council Regulation No 1073/1999, Art. 10(2))
3. Community law – Principles – Fundamental rights
(Arts 230 EC and 236 EC)
4. European Anti-Fraud Office (OLAF) – Regulation No 1073/1999 concerning investigations conducted by OLAF – Rules for internal investigations adopted by the Community institutions – System adopted by the Commission
(European Parliament and Council Regulation No 1073/1999, Art. 10(2); Commission Decision 1999/396, Art. 4)
5. Officials – Actions – Action brought against the European Anti-Fraud Office (OLAF) – Admissibility of an action for damages, brought without a prelitigation procedure in accordance with the Staff Regulations, as incidental to an action for annulment
(Staff Regulations, Arts 90(1) and 90a)
6. Officials – Non-contractual liability of the institutions – Conditions – Unlawfulness – Damage – Causal link – Unlawful decision by the European Anti-Fraud Office (OLAF) to forward information to national judicial authorities, resulting in the opening of a criminal investigation – No causal link between the decision to forward information and the damage resulting from the opening of that investigation
(Commission Decision 1999/396, Art. 4)
1. Having regard to the consequences which they are likely to entail, decisions by the European Anti-Fraud Office (OLAF) to forward information to national judicial authorities pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999 concerning investigations conducted by OLAF constitute an act adversely affecting an official within the meaning of Article 90a of the Staff Regulations, which confer on any person to whom the Staff Regulations apply the right to make a complaint against an act by OLAF adversely affecting him.
The provisions of Article 90a of the Staff Regulations, adopted in 2004 in order to guarantee the judicial protection of persons to whom the Staff Regulations apply, constitute the corollary of the new powers conferred by the legislature on OLAF at the time of the adoption of Regulation No 723/2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities, whether in regard to the fight against fraud or in regard to disciplinary matters. Article 90a thus reflects the concern of the legislature to attach appropriate judicial safeguards to the strengthening of OLAF’s role. Faced with such an express and recent enactment of a right in the Staff Regulations, the Civil Service Tribunal, in its particular specialised sphere, cannot neglect the responsibilities thus conferred on it by the legislature.
Furthermore, an official would not benefit from the guarantee of effective judicial protection if, prior to his being implicated before the national criminal court by the decision taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999, the Community judicature was not enabled to satisfy itself that he had previously been heard or that the provisions of Article 4 of Decision 1999/396 concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities’ interests, under which that obligation may be deferred, had in fact been complied with by OLAF. Such a review by the Community judicature is all the more critical at this stage of the proceedings because OLAF is able, if the Secretary-General of the Commission so authorises it, to defer the obligation to seek the observations of the interested parties, possibly for a long period. In addition, if no authorisation was granted to or even requested by OLAF, contrary to the provisions of Article 4 of Decision 1999/396, without the Community judicature being able to establish that illegality, the official would be the subject, without knowing it, of procedures directly implicating him for a period of several months.
Moreover, a decision taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999 is liable to have significant consequences for the career of the persons concerned. Where OLAF considers that acts committed by an employee are the proper subject of criminal proceedings and, for that reason, forwards information to the national judicial authorities, that circumstance is liable to affect the assessment which the administration must make of that employee in the context of the appraisal exercise provided for by Article 43 of the Staff Regulations, in particular when assessing his conduct in the service.
The recognition of the right of action also enables the official concerned, if he is aware of the findings of the investigation, to obtain, where appropriate, provided that he satisfies the conditions of urgency and damage required for that purpose, suspension of the operation of the decision to forward information.
Finally, the effective review of legality of an act such as the decision taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999 would contribute to full observance by OLAF of the legality of investigations and of the fundamental rights of persons to whom they relate, in accordance with the legislature’s intention. If the Tribunal were not to carry out that review of legality, even though it alone is empowered to do so in sufficient time in the case of a decision concerning a person to whom the Staff Regulations apply, the possible non-compliance with the provisions of Regulation No 1073/1999, which are intended to protect the rights of the defence, would not be declared unlawful. The national court would retain before it the information forwarded to it by OLAF, even though the implication of any finding by the Community judicature of such illegality on account of failure to observe the rights of the defence is that the national court should be barred from acting on the basis of such information.
(see paras 71, 72, 74, 75, 77-79, 81, 82, 88)
See:
C-471/02 P(R) Gómez-Reino v Commission [2003] ECR I‑3207, para. 64
2. In the case of acts or decisions adopted by means of a process involving several stages, in particular at the close of an internal procedure, in principle the sole measures susceptible of challenge are those which definitively lay down the position of the institution at the close of the procedure, to the exclusion of any provisional measures intended to serve as preparatory steps pending the final decision. Acts preparatory to a decision do not adversely affect an official and it is only on the occasion of an action brought against the decision taken at the end of the procedure that the applicant can assert the unlawfulness of earlier acts which were closely connected with that decision.
That does not apply in the case of a decision taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF), which clearly constitutes the act by which the Director of OLAF, who is vested with special and exclusive responsibility for that purpose within the Communities, expresses his conclusion on the existence of matters capable of being treated as criminal and decides to refer such matters to the national judicial authorities, in order that those matters may receive the appropriate treatment under criminal law.
When he adopts a decision pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999, the Director of OLAF takes a stand, on the basis of the provisional or definitive results of the investigation conducted by his staff, on the existence of matters liable to result in criminal proceedings and concludes that the person or persons to whom the investigation relates could be criminally implicated. That decision is taken by an independent Community body, on its sole responsibility, under a special procedure distinct from the national judicial procedure. It does not precede the adoption of any other act adversely affecting the official and falling within the competence of the Director of OLAF, and therefore determines the position of its author.
(see paras 86, 87, 90)
See:
T-83/02 Pflugradt v ECB [2003] ECR-SC I‑A‑47 and II‑281, para. 34
3. Where the situation concerns a third party in relation to the Communities, whose career and material circumstances do not depend directly on measures adopted by the Community authorities, the Community judicature does not have a particular authority enabling it to guarantee, on behalf of the national court, the observance of fundamental rights and of the requirements of a fair trial.
(see para. 94)
4. Under the provisions of the first sentence of the first paragraph of Article 4 of Decision 1999/396 concerning the terms and conditions for internal investigations in relation to the prevention of fraud, where the Director of the European Anti-Fraud Office (OLAF) is considering taking a decision pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999 concerning investigations conducted by OLAF, he is obliged, where the information contains conclusions referring by name to a Member, official or servant of the Commission, to enable that Member, official or servant, even before the information is forwarded to the national judicial authorities, to express his views on all the facts which concern him.
Admittedly, the second paragraph of Article 4 of Decision 1999/396 provides for an exception concerning cases necessitating the maintenance of absolute secrecy for the purposes of the investigation and requiring the use of investigative procedures falling within the remit of a national judicial authority. In such cases, compliance with the obligation to invite the official to give his views may be deferred in agreement with the Secretary-General of the Commission. That obligation to seek and obtain the agreement of the Secretary-General of the Commission is not a mere formality that might, in an appropriate case, be complied with at a later stage. The requirement to obtain such agreement would lose its rationale, which is to ensure that the rights of defence of the officials concerned are respected, that OLAF may defer informing them only in truly exceptional circumstances and that the assessment of that exceptional nature is not a matter solely for OLAF but also requires the assessment of the Secretary-General of the Commission.
Furthermore, even assuming that the second sentence of the first paragraph of Article 4 of Decision 1999/396 is not applicable to a decision taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999 in circumstances where the forwarding of information to national judicial authorities takes place in the course of the investigation, OLAF is nevertheless, in principle, required, by virtue of the fundamental principle of respect for the rights of the defence, to invite the officials, prior to the forwarding of information, to submit any relevant observations on the facts concerning them.
(see paras 105, 108, 110, 113)
See:
T-48/05 Franchet and Byk v Commission [2008] ECR II‑1595, paras 133, 145 and 151
5. 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. 120)
See:
T-500/93 Y v Court of Justice [1996] ECR-SC I‑A‑335 and II‑977, paras 64 and 66
6. The European Community can only be held liable for damages if a number of conditions are satisfied as regards the illegality of the allegedly wrongful act committed by the institutions, the actual harm suffered, and the existence of a causal link between the act and the damage alleged to have been suffered. In order for it to be held that there is such a causal link, evidence must be adduced that there is a direct causal nexus between the fault committed by the institution concerned and the injury pleaded.
Regarding the non-material damage allegedly suffered by an official as a result of a decision by the European Anti-Fraud Office (OLAF) to forward information to the national judicial authorities in disregard of the provisions of Article 4 of Decision 1999/396 concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities’ interests, and the opening of a criminal investigation against him by those authorities, only the conduct of the authorities, which decided to institute criminal proceedings and then to carry out investigations, directly caused the non-material damage. Although the national judicial authorities are required, in accordance with the principle of cooperation in good faith, to examine carefully the information forwarded by OLAF and to draw the appropriate conclusions from it in order to ensure compliance with Community law, they remain free, within the limits of their own powers, to assess the content and full significance of that information and, therefore, what action, if any, should be taken upon it.
(see paras 124-126)
See:
111/86 Delauche v Commission [1987] ECR 5345, para. 30
T‑330/00 and T‑114/01 Cocchi and Hainz v Commission [2002] ECR-SC I‑A‑193 and II‑987, para. 97; T-45/01 Sandersand Others v Commission [2004] ECR II‑3315, para. 149; T-144/02 Eagleand Others v Commission [2004] ECR II‑3381, para. 148; T-193/04 Tillack v Commission [2006] ECR II‑3995, para. 122; T-250/04 Combescot v Commission [2007] ECR-SC I‑A‑2‑0000 and II‑A‑2‑0000, para. 95