ORDER OF THE GENERAL COURT (Seventh Chamber)
14 September 2022 (*)
(External investigations conducted by OLAF – Refusal of access to the OLAF investigation file – Withdrawal and replacement of the contested measure – Action now devoid of purpose – No need to adjudicate)
In Case T‑738/18 RENV,
Liviu Dragnea, residing in Bucharest (Romania), represented by C. Toby, O. Riffaud and B. Entringer, lawyers,
applicant,
v
European Commission, represented by C. Ehrbar, J. Baquero Cruz and A. Spina, acting as Agents,
defendant,
THE GENERAL COURT (Seventh Chamber),
composed of R. da Silva Passos, President, V. Valančius and I. Reine (Rapporteur), Judges,
Registrar: E. Coulon,
having regard to the judgment of the Court of Justice of 13 January 2022,
having regard to the measure of organisation of procedure of 19 May 2022,
makes the following
Order
1 By his action based on Article 263 TFEU, the applicant, Mr Liviu Dragnea, is seeking, in essence, the annulment of the European Anti-Fraud Office (OLAF) letter of 1 October 2018 (‘the contested letter’), by which OLAF refused, first, to open an investigation into the manner in which it had conducted two investigations (‘OLAF’s refusal to open an investigation into the conduct of the previous investigations’) and, secondly, to grant him access to several documents (‘the refusal of access to the documents’).
Background to the dispute
2 On 10 February 2015, OLAF opened two administrative investigations into suspected fraud concerning EU road construction projects 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).
3 OLAF closed the investigations in both cases on 30 May 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.
4 The applicant, 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 relating to him. It was Teleorman CC, of which the applicant was the President, which appeared on that list and was the subject of the two investigations in question. OLAF stated, in each of the abovementioned final reports, that the President of Teleorman CC, namely the applicant, was the subject of a national criminal investigation.
5 On 22 August 2018, the applicant wrote to OLAF asking 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.
6 The contested letter concerns, first, OLAF’s refusal to open an investigation into the conduct of the previous investigations and, second, the refusal of access to the documents. In support of that second refusal, 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 which he had requested, with reference to that regulation in particular.
Procedure and facts subsequent to the bringing of the action
7 On 11 December 2018, the applicant brought the action against the contested letter.
8 In the order of 12 May 2020, Dragnea v Commission (T‑738/18, not published, EU:T:2020:208) (‘the initial order’), the Court dismissed the action as inadmissible in its entirety, on the ground that OLAF’s refusal to open an investigation into the conduct of the previous investigations and the refusal of access to the documents, contained in the contested letter, did not constitute acts against which an action for annulment could be brought under Article 263 TFEU.
9 In the judgment of 13 January 2022, Dragnea v Commission (C‑351/20 P, EU:C:2022:8) (‘the judgment on appeal’), the Court of Justice set aside the initial order to the extent that, by the initial order, the General Court had dismissed the applicant’s action as inadmissible in so far as it sought annulment of the refusal of access to the documents. In addition, as it took the view that the state of the proceedings was not such that it could give final judgment in the matter, the Court of Justice referred the case back to the General Court for a ruling on that part of the action for annulment. The Court of Justice dismissed the appeal as to the remainder and reserved the costs relating to the proceedings at first instance before the General Court.
10 On 2 February 2022, following the judgment on appeal, OLAF adopted a new reply to the request made by the applicant in his letter of 22 August 2018 for access to the documents (‘the new reply of 2 February 2022’). That reply was sent to him by, inter alia, an email of 21 February 2022, with electronic delivery receipt and confirmation that the email had been read on the same day. OLAF explained in that email, as a preliminary point, that it was required to treat all information obtained in the course of its investigations confidentially and in compliance with the rules of professional secrecy, in accordance with, inter alia, Regulation No 883/2013. Next, it stated that the new reply of 2 February 2022 replaced the contested letter, which had been withdrawn, that it constituted an initial reply to the request made by the applicant in his letter of 22 August 2018 for access to the documents and that, in accordance with Article 7(2) 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), the applicant was entitled to make a confirmatory application to OLAF, inviting it to reconsider its position. However, the applicant did not make such an application.
Forms of order sought
11 In the application, the applicant claims, in essence, that the Court should:
– annul the contested letter;
– order the Commission to pay the costs.
12 In its defence, lodged at the Registry of the General Court following the judgment on appeal, the Commission contends that the Court should:
– declare that the action for annulment brought by the applicant has become devoid of purpose and that there is no longer any need to adjudicate on it;
– in the alternative, dismiss the application for annulment against the contested letter as unfounded;
– rule on the costs in accordance with Article 137 of the Rules of Procedure of the General Court or, if the action is dismissed, order the applicant to bear the costs.
Law
Subject matter of the dispute and its scope after referral back
13 In the judgment on appeal, as is apparent from paragraph 9 above, the Court of Justice set aside the initial order in part. According to the Court of Justice, the General Court had erred in law in finding that the refusal of access to the documents was not a definitive act against which an action for annulment could be brought.
14 It is therefore for the General Court to examine the action in so far as it seeks annulment of the refusal of access to the documents, which is contained in the contested letter.
15 By contrast, there is no need to adjudicate on the applicant’s request for annulment of the contested letter inasmuch as it concerns OLAF’s refusal to open an investigation into the conduct of the previous investigations, in so far as, in the judgment on appeal, the Court of Justice confirmed the inadmissibility of that request. Therefore, that question must be regarded as having been finally decided in the initial order and as having acquired the force of res judicata.
Whether the subject matter of the dispute still persists
16 According to Article 131(1) of the Rules of Procedure, if the General Court declares that the action has become devoid of purpose and that there is no longer any need to adjudicate on it, it may at any time, of its own motion, on a proposal from the Judge-Rapporteur and after hearing the parties, decide to rule by reasoned order.
17 In the present case, the Court considers that it has sufficient information from the documents in the file and has decided, in accordance with that article, to give a ruling without taking further steps in the proceedings.
18 It is settled case-law that the subject matter of the dispute must continue, like the interest in bringing proceedings, until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it (see judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 42 and the case-law cited).
19 If, in an action for annulment, the subject matter of the action disappears in the course of the proceedings, the Court cannot rule on the substance, since such a decision by the Court cannot procure any advantage for the applicant. The disappearance of the subject matter of the proceedings can, inter alia, result from the withdrawal or replacement of the contested act in the course of the proceedings (see order of 12 January 2011, Terezakis v Commission, T‑411/09, EU:T:2011:4, paragraphs 14 and 15 and the case-law cited).
20 In the present case, the applicant is seeking annulment of the refusal of access to the documents, which is contained in the contested letter. However, in the new reply of 2 February 2022, OLAF stated that, having regard to the judgment on appeal, it also now intended to treat the applicant’s request for access to the documents as an initial application for access within the meaning of Articles 6 and 7 of Regulation No 1049/2001, and to examine it in the light of the provisions of that regulation. It was also stated that the new reply of 2 February 2022 replaced the reply in the contested letter and that the applicant could submit a confirmatory application for access within 15 working days, if appropriate.
21 The decision refusing access to the documents, contained in the contested letter, was thus withdrawn and replaced by OLAF in the course of the proceedings. It is therefore no longer capable of having any effects on the applicant’s situation, with the result that its annulment would itself be devoid of any legal effect.
22 Admittedly, it is not open to the institutions, bodies, offices or agencies of the European Union to withdraw a measure with retrospective effect and to replace it in all circumstances, at the risk, ultimately, of enabling those institutions, bodies, offices or agencies to escape all judicial review.
23 However, it has already been held that, having regard to the requirements of sound administration and legal certainty and to the principle of effective judicial protection, an institution may withdraw a decision in order to remedy an illegality affecting that decision and, following such a withdrawal, resume the procedure at a stage earlier than the exact point at which the illegality found had occurred (see, to that effect, judgment of 16 December 2010, Athinaïki Techniki v Commission, C‑362/09 P, EU:C:2010:783, paragraph 70).
24 In the present case, in the contested letter, OLAF had based its refusal to grant access to the documents requested primarily on the provisions of Regulation No 883/2013. That letter did not mention Regulation No 1049/2001.
25 It is apparent from the judgment on appeal that, contrary to what the Court had held in the initial order, notwithstanding the absence of an express reference to Regulation No 1049/2001 in the applicant’s request for access to the documents, OLAF should, inter alia, have examined that request in the light of that regulation and was required to inform the applicant of his right to make a confirmatory application under Article 7(2) thereof (paragraph 73). According to the Court of Justice, given that omission, the applicant was entitled to consider that OLAF had thus, in the contested letter, definitively established its position of refusing the request that the applicant had made in the letter of 22 August 2018 for access to the documents and that, therefore, the contested letter could be the subject of an action for annulment in that regard (paragraph 76).
26 As is apparent from the new reply of 2 February 2022, it was with reference to the grounds of the judgment on appeal, which established OLAF’s obligation to treat a request for access to documents, such as that submitted by the applicant, as a request for access within the meaning of Regulation No 1049/2001, that OLAF decided to re-examine the applicant’s request in the light, this time, of that regulation.
27 Therefore, having regard to the case-law referred to in paragraph 23 above, OLAF was entitled to withdraw the decision of refusal of access to the documents, contained in the contested letter, and to replace it with the new reply of 2 February 2022. Accordingly, the present dispute has become devoid of purpose.
28 It is true that, exceptionally, an action may not become devoid of purpose, despite the withdrawal or replacement of the act in respect of which annulment is sought, in circumstances where the applicant nevertheless retains a sufficient interest in obtaining a judgment formally annulling that act (see order of 16 December 2020, Bonicelli v Joint undertaking Fusion for Energy, T‑520/20, not published, EU:T:2020:644, paragraph 16 and the case-law cited).
29 In the present case, however, although the applicant was asked, by way of a measure of organisation of procedure, whether the subject matter of the dispute still persisted following the adoption of the new reply of 2 February 2022 and on a potential ruling that there is no need to adjudicate on it, he did not reply within the time limit and did not, therefore, claim that he retained an interest in bringing proceedings.
30 Since the reply in the contested letter, to the request for access to the documents, was replaced by the new reply of 2 February 2022, the present action has become devoid of purpose. Accordingly, there is no longer any need to adjudicate on the applicant’s claim for annulment in so far as it relates to the refusal of access to the documents, contained in the contested letter.
Costs
31 Under Article 219 of the Rules of Procedure, in decisions given after its decision has been set aside and the case referred back to it, the General Court is to decide on the costs relating, first, to the proceedings instituted before it and, secondly, to the appeal proceedings before the Court of Justice.
32 In so far as, in the judgment on appeal, the Court of Justice set aside the initial order in part and determined the costs relating to the appeal proceedings, while reserving those relating to the proceedings at first instance before the General Court, it is for the General Court to rule, in the present order, on the costs relating to the proceedings at first instance and to the present referral proceedings.
33 Under Article 137 of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the General Court.
34 In the present case, it should be noted that, in the initial order and in the judgment on appeal, the application for annulment of OLAF’s refusal to open an investigation into the conduct of the previous investigations was held to be inadmissible. Furthermore, the disappearance of the subject matter of the dispute following referral back is the consequence of the adoption by OLAF of the new reply of 2 February 2022, after the present action had been brought. In those circumstances, it is reasonable for each party to bear its own costs relating to the proceedings at first instance and to the proceedings following the referral back to the General Court.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1. There is no longer any need to adjudicate on the action.
2. Mr Liviu Dragnea and the European Commission shall each bear their own costs relating to the proceedings at first instance and to the proceedings following the referral back to the General Court.
Luxembourg, 14 September 2022.
E. Coulon | | R. da Silva Passos |