Case T‑752/20
(publication in extract form)
International Management Group (IMG)
v
European Commission
Judgment of the General Court (Seventh Chamber), 28 June 2023
(Non-contractual liability – OLAF investigations – Press leaks – Material and non-material damage – Causal link – Imputability of the leaks – Sufficiently serious breach of a rule of law intended to confer rights on individuals – Confidentiality of legal advice)
1. Action for damages – Admissibility – Dismissal of an action on the substance without ruling on admissibility – Discretion of the EU judicature
(Arts 268 and 340, second para., TFEU)
(see paragraphs 23, 24)
2. Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link – Cumulative conditions – One of the conditions not satisfied – Action for damages dismissed in its entirety
(Art. 340, second para., TFEU)
(see paragraphs 25, 26)
3. Non-contractual liability – Conditions – Causal link – Concept – Burden of proof
(Art. 340, second para., TFEU)
(see paragraph 33)
4. Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link – Burden of proof on the applicant – Limits – Damage with several potential causes – Institution concerned best placed to ascertain the cause of the damage
(Art. 340, second para., TFEU)
(see paragraphs 48, 49)
5. Non-contractual liability – Conditions – Unlawfulness – Omissions of EU institutions – Failure of the Commission to take a position publicly condemning the leak of the European Anti-Fraud Office (OLAF) report, putting an end to the dissemination of false information and correcting incorrect information – Duty to have regard for the welfare of officials – Non-applicability
(Art. 340, second para., TFEU)
(see paragraphs 71-73)
6. Non-contractual liability – Conditions – Unlawfulness – Sufficiently serious breach of a rule of law intended to confer rights on individuals – Omissions of EU institutions – Failure of the Commission to take a position publicly condemning the leak of the European Anti-Fraud Office (OLAF) report, putting an end to the dissemination of false information and correcting incorrect information – Breach of the duty of diligence – Requirement that a legal duty to act be disregarded – None – Manifest and serious breach by the Commission of the limits placed on its discretion – None
(Art. 340, second para., TFEU; European Parliament and Council Regulation No 883/2013)
(see paragraphs 76-80, 83, 84, 87-101)
7. Judicial proceedings – Application to remove from the file internal documents of an institution – Opinion of the legal service of an institution – Overriding public interest in transparency justifying disclosure of documents – None – Legal opinion unrelated to a legislative process and serving the applicant’s own interests – Removal from the file
(Arts 1, second para., and 10(3) TEU; Arts 15(1) and 298(1) TFEU; European Parliament and Council Regulation No 1049/2001)
(see paragraphs 116-123)
Résumé
According to its Statute, International Management Group (IMG) was established as an international organisation with the aim of providing the States participating in the reconstruction of Bosnia and Herzegovina with a dedicated entity for that purpose. As part of its activities, which have expanded in the meantime, it has concluded a number of agreements with the European Commission, in application, inter alia, of the ‘indirect or joint management’ method of implementing the EU budget.
At the end of its investigation into the applicant’s legal status, on 9 December 2014 the European Anti-Fraud Office (OLAF) drew up a final report, in which it found that the applicant is not an ‘international organisation’ within the meaning of the EU financial regulations and that it might not even have its own legal personality.
Shortly after it was drawn up, the OLAF report was sent to the legal addressees, namely the competent national authorities and the Commission. Subsequently, its content was leaked to the press. On 13 February 2015, the information regarding the content of that report was published in the magazine Der Spiegel and, on 11 December 2015, the report was published on the website of the newspaper New Europe. The Commission’s investigations failed to identify the source of that leak.
The applicant has brought an action for compensation of the material and non-material damage which it claims to have suffered following the leak of the OLAF report to the press as a result of the unlawfulness of the conduct of the Commission and of OLAF.
In dismissing that action, the General Court provides clarification of (i) the conditions to be fulfilled in order to establish a sufficiently serious breach, resulting from an omission by an EU institution, of a rule of law intended to confer rights on individuals and (ii) the scope of the duty of diligence in that context, in particular in the light of the action to be taken, in response to the disclosure of a document to the press, by the EU institution responsible for ensuring the confidentiality of that document.
Findings of the Court
In its judgment, the Court finds that the plea of illegality raised by the applicant, based on breach of the Commission’s duty to have regard for the welfare of officials and to act diligently and consisting of a failure to act on the part of the Commission, inasmuch as it did not publicly condemn the leak of the OLAF report, did not put an end to the dissemination of false information caused by that leak and did not correct that information, must be rejected.
As regards the duty to have regard for the welfare of officials, the Court finds that it relates specifically to the obligations of the EU institutions towards their officials and other servants, which involves, inter alia, taking account of their individual interests. The present case, however, does not relate to the relationship between the EU administration and one of its officials or other servants. Consequently, the duty to have regard for the welfare of officials does not apply.
As regards the breach of the duty to act diligently, the Court begins by recalling that, first, the non-contractual liability of the Union cannot be triggered unless the person who claims to have suffered loss or harm establishes the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals. In particular, the requirement that the breach be sufficiently serious depends on the discretion enjoyed by the EU institution, body, office or agency which has allegedly acted in breach of that rule and on whether it has manifestly and gravely disregarded the limits placed on that discretion, in view of, inter alia, the degree of clarity and precision of the rule, the difficulties of interpretation or application which may ensue therefrom, and the complexity of the situation to be resolved. Secondly, omissions by EU institutions are capable of triggering liability on the part of the Union only when those institutions have failed to fulfil a legal obligation to act resulting from a provision of EU law.
Thus, the Court concludes that the examination of the question whether an institution has committed a sufficiently serious breach of a rule of law intended to confer rights on individuals on account of an omission involves determining whether three conditions are satisfied, namely (i) the existence of a legal obligation to act, (ii) the existence of discretion on the part of the EU institution, body, office or agency in question, and (iii) a manifest and serious breach by that institution of the limits placed on that discretion.
The Court notes that, in the present case, the applicant has not established that the Commission was under a legal obligation to act. In that context, it notes that the breach of the duty to act diligently relied on by the applicant is intrinsically linked to Regulation No 883/2013 (1) and that, under that regulation, the Commission is required to ensure that the confidentiality of OLAF investigations is respected. Nevertheless, despite that obligation, the duty to act diligently to which the Commission is subject cannot impose on it, since it has not failed to fulfil that obligation of confidentiality and since responsibility for the leak of the OLAF report to the press cannot be attributed to it, an obligation to act consisting in condemning the leaking to the press of information relating to such an investigation and distancing itself from the information published. The duty to act diligently does not have the scope which the applicant ascribes to it. It is the leak of that report to the press, and not the omission of which the Commission is accused by the applicant, which constitutes a failure to fulfil the obligation of confidentiality. However, the imputability of that leak to the Commission has not been demonstrated.
The Court adds that, even assuming that the Commission was under a legal obligation to act by virtue of its duty to act diligently, it cannot be held that the breach of that duty, alleged by the applicant, constitutes a sufficiently serious breach of a rule of law intended to confer rights on individuals.
In that regard, it states that, in the event that such an obligation exists, the duty to act diligently should be interpreted as meaning that, in the event of the leak of a confidential document in respect of which it has not been demonstrated that the institution concerned is the source, it would be for that institution not to aggravate the damage which might result from that breach of confidentiality.
However, no such obligation to act in order not to aggravate the damage caused by a breach of confidentiality which is not imputable to that institution arises from Regulation No 883/2013. By providing that the institutions concerned are to ensure that the confidentiality of OLAF investigations is respected, that regulation imposes an obligation on those institutions to ensure that the content of OLAF investigations remains confidential. Nevertheless, it does not impose on them, where that confidentiality has not been respected and the disclosure does not originate from within the institution concerned, obligations to condemn the leak, to put an end to the dissemination of the information at issue, or to correct the parts of that information which are incorrect. Such obligations cannot be regarded as forming part of the obligation to ensure that the confidentiality of OLAF investigations is respected. First, since that confidentiality has been breached, the Commission’s obligation to ensure respect therefor has become devoid of purpose. Secondly, (i) the possible need to condemn the leak exceeds the mere obligation to ensure that confidentiality is respected, (ii) in such a case, it is impossible for the Commission to put an end to the dissemination of the OLAF report resulting from such a leak to the press, and (iii) assuming that some of the information disseminated is incorrect, the correction of that information is not such as to restore its confidential nature, which has permanently disappeared.