JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)

28 April 2009 (*)

(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)

In Joined Cases F‑5/05 and F‑7/05,

ACTION under Articles 236 EC and 152 EA,

Antonello Violetti, residing in Cittiglio (Italy), and the 12 other officials of the Commission of the European Communities whose names are set out in the annex to this judgment, represented by É. Boigelot, lawyer,

applicants in Case F‑5/05,

Nadine Schmit, former official of the Commission of the European Communities, residing in Ispra (Italy), represented by É. Boigelot, P.-P. Van Gehuchten and P. Reyniers, lawyers,

applicant in Case F‑7/05,

v

Commission of the European Communities, represented by J. Currall and C. Ladenburger, acting as Agents,

defendant,

supported by

Council of the European Union, represented by M. Bauer and A. Vitro, acting as Agents,

intervener,

THE TRIBUNAL (First Chamber),

composed of H. Kreppel (Rapporteur), President, H. Tagaras and S. Gervasoni, Judges,

Registrar: S. Boni, Administrator,

having regard to the written procedure and further to the hearing on 3 July 2007,

gives the following

Judgment

1        By applications lodged at the Registry of the Court of First Instance of the European Communities on 11 January 2005 and 17 February 2005 respectively, the applicants 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 of the European Communities.

 Legal context

2        OLAF, established by Commission Decision 1999/352/EC, ECSC, Euratom of 28 April 1999 (OJ 1999 L 136, p. 20), is responsible, inter alia, for carrying out internal administrative investigations for the purpose of enquiring into serious facts linked to the performance of professional activities which may constitute a breach of obligations by officials and servants of the Communities likely to lead to disciplinary and, where appropriate, criminal proceedings.

3        Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by OLAF (OJ 1999 L 136, p. 1) governs the inspections, checks and other measures undertaken by employees of OLAF in the performance of their duties. The investigations carried out by OLAF consist of ‘external’ investigations conducted outside the Community institutions, bodies, offices and agencies, and ‘internal’ investigations conducted within those institutions, bodies, offices and agencies.

4        Under the second paragraph of Article 5 of Regulation No 1073/1999, internal investigations are to be opened by a decision of the Director of OLAF, acting on his own initiative or following a request from the institution, body, office or agency within which the investigation is to be conducted.

5        Article 9 of Regulation No 1073/1999 provides that, on completion of an investigation carried out by OLAF, the latter is to draw up a report, under the authority of the Director, containing, in particular, the findings of the investigation, including the recommendations of the Director on the action that should be taken. Article 9(4) provides that reports drawn up following an internal investigation and the related documents are to be sent to the institution, body, office or agency concerned, which is to take, where appropriate, any disciplinary or legal action which the results of the investigation warrant.

6        Article 10(2) of Regulation No 1073/1999, headed ‘Forwarding of information by [OLAF]’, is worded as follows:

‘Without prejudice to Articles 8, 9 and 11 of this Regulation, the Director of [OLAF] shall forward to the judicial authorities of the Member State concerned the information obtained by [OLAF] during internal investigations into matters liable to result in criminal proceedings. Subject to the requirements of the investigation, he shall simultaneously inform the Member State concerned.’

7        By virtue of Article 14 of Regulation No 1073/1999, any official or other servant of the European Communities may submit to the Director of OLAF a complaint against an act adversely affecting him committed by OLAF as part of an internal investigation, in accordance with the procedures laid down in Article 90(2) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’).

8        Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 (OJ 2004 L 124, p. 1) inserted into the Staff Regulations an Article 90a worded as follows:

‘Any person to whom these Staff Regulations apply may submit to the Director of OLAF a request within the meaning of Article 90(1), asking the Director to take a decision relating to him in connection with investigations by OLAF. Such person may also submit to the Director of OLAF a complaint within the meaning of Article 90(2) against an act adversely affecting him in connection with investigations by OLAF.’

9        Article 4 of Commission Decision 1999/396/EC, ECSC, Euratom of 2 June 1999 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 (OJ 1999 L 149, p. 57), headed ‘Informing the interested party’, provides:

‘Where the possible implication of a Member, official or servant of the Commission emerges, the interested party shall be informed rapidly as long as this would not be harmful to the investigation. In any event, conclusions referring by name to a Member, official or servant of the Commission may not be drawn once the investigation has been completed without the interested party’s having been enabled to express his views on all the facts which concern him.

In 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, compliance with the obligation to invite the Member, official or servant of the Commission to give his views may be deferred in agreement with the President of the Commission or its Secretary-General respectively.’

 Facts

10      In 2002, the unit responsible for internal audit within the Directorate-General (DG) for the Joint Research Centre (‘the JRC’) drew up a report on the application of Article 73 of the Staff Regulations to the staff of that directorate-general posted to Ispra (Italy) (‘the JRC internal audit report’). That report described inter alia the following facts:

‘–      230 members of the JRC staff in Ispra (20% of the total number of staff in Ispra) suffer from partial permanent invalidity.

–        EUR 5.7 million in benefits for partial permanent invalidity were paid to members of the JRC staff in Ispra between 1996 and 2002.

–        Each recipient received, on average, EUR 25 000.

–        46 members of staff received collectively nearly EUR 3 million, each obtaining over [EUR] 35 000.

–        23 members of staff received collectively just over EUR 2 million, each obtaining over EUR 50 000.

–        8 members of staff received collectively over EUR 1 million, each obtaining over EUR 80 000.

–        1 person, or possibly 2, received nearly EUR 300 000.

–        76 members of staff, already suffering from partial permanent invalidity, suffered a second accident, resulting in a further partial permanent invalidity.

–        30% of the recipients obtained more than one payment in respect of a partial permanent invalidity.

–        10% of the recipients obtained 3 or more (ranging up to 11) payments in respect of a partial permanent invalidity.’

11      Noting that working conditions within the Ispra site could not justify so many accidents and that there were suspicions regarding the genuineness of the accident reports, the JRC internal audit report concluded that it was necessary to inform OLAF of those facts and suggested that a comparison be made between the frequency of the accident reports originating from the JRC staff posted to Ispra and the frequency of the reports originating from the rest of the Commission staff.

12      On 14 October 2002, on the basis of the JRC internal audit report, the Director of OLAF opened, pursuant to the second paragraph of Article 5 of Regulation No 1073/1999, an internal investigation on account of ‘suspicions of fraud to the detriment of the Community budget in the administration of the funds of the [s]ickness [f]und at the [JRC] in Ispra’ (‘the decision to open the internal investigation’).

13      On 13 January 2003, the former Director of the Institute for Environment and Sustainability (‘the IES’), which comes under the JRC, was heard by the OLAF employees in charge of the internal investigation. During his hearing, he stated that, having himself been in receipt of benefits as a result of a number of accidents suffered in his private life between 1997 and 2001, he had been ‘surprised [by the] certain ease with which the Commission award[ed] compensation for accidents’, even adding that, in relation to one of the accidents of which he had been a victim, he had been made an offer of compensation even though he had not produced the forensic doctor’s report and ‘the residual pains which [he was suffering as a consequence of that accident] were rather mild to [justify] compensation’. The former Director of the IES also made the following observation:

‘It seemed to me that the system [for establishing the existence and level of the degree of partial permanent invalidity as a consequence of an accident] is very light as compared with [an] accident [occurring] in a Member State of the European Union. In fact, there is one forensic doctor who has been there for several years, … who proposes the degree of invalidity. In my opinion, the forensic doctor’s assessment was not challenged in detail by the medical officer. It would be easy to remedy this problem by substituting a doctor of non-local origin for the medical officer. The risk is great, since both doctors are of roughly the same age (around 60), live in the same area and must surely know one another.’

14      At the request of the OLAF employees assigned to carry out the investigation, Directorate C of OLAF undertook an analysis of the computer data of the Personnel and Administration DG concerning the number and amount of reimbursements made pursuant to Article 73 of the Staff Regulations, and cross-checked those data with those in the Commission’s accounting system database in use before 1998. Based on such an analysis, OLAF found that 42 JRC officials in Ispra had each reported at least nine accidents between January 1986 and July 2003 and that those cases, which might appear, at first sight, to be suspect, were to be the subject of a detailed examination.

15      By a memorandum dated 5 August 2003 (‘the memorandum of 5 August 2003’), the Director of OLAF forwarded to the Public Prosecutor in Varese (Italy), in accordance with the first sentence of Article 10(2) of Regulation No 1073/1999, information obtained in the course of the internal investigation into matters liable, according to OLAF, to result in criminal proceedings (‘the decision to forward information to the Italian judicial authorities’). That memorandum had annexed to it an ‘information note’ dated 23 July 2003 drawn up by the employees responsible for the internal investigation (‘the information note of 23 July 2003’), which implicated the 42 JRC Ispra officials mentioned in the previous paragraph. The memorandum of 5 August 2003 also had annexed to it the minutes of the hearing of the former Director of the IES.

16      Following receipt of the information forwarded by OLAF in the memorandum of 5 August 2003, the Public Prosecutor in Varese opened an investigation into the existence of possible criminal offences.

17      On 7 April 2004, OLAF sent to the applicants, including the 42 officials referred to in the information note of 23 July 2003, the following letter:

‘On 14 October 2002, OLAF opened an internal investigation into the application at Ispra of the accident insurance scheme provided for by Article 73 of the Staff Regulations. The investigation concentrated on officials who reported more than [nine] accidents during the period from January 1986 to July 2003. It was found that you were one of those persons. On 5 August 2003, OLAF sent a report to the [Public] Prosecutor in Varese (Italy) in order to inform that authority of the existence of possible offences, which would be liable to result in proceedings if their existence were to be confirmed. …’

18      Between 11 and 30 June 2004, each of the applicants in Case F‑5/05 submitted to the Director of OLAF, under Article 90a of the Staff Regulations, a complaint against the decision to forward information to the Italian judicial authorities. Also between 11 and 30 June 2004, each of them submitted to the appointing authority, under Article 90(2) of the Staff Regulations, a complaint against the abovementioned decision, complaining that it was neither reasoned in form nor well founded in substance and that it damaged their honour, and also submitted a request for the Commission to assist them under Article 24 of the Staff Regulations.

19      By a letter dated 9 July 2004, received at the Commission on 16 July 2004, the applicant in Case F‑7/05 also made a complaint against the decision to forward information to the Italian judicial authorities and sought payment by the Commission of a sum of EUR 500 000 to compensate for the damage suffered by her.

20      By electronic mail of 16 July 2004, one of the applicants in Case F‑5/05, Mr Violetti, asked the JRC in Ispra for access to his medical file and in particular to the documents relating to the application, so far as concerns him, of Article 73 of the Staff Regulations. That request was rejected by the medical service on the ground that those documents had been sealed by OLAF and that they were not accessible. Requests to the same ends, submitted by the other applicants in Cases F‑5/05 and F‑7/05, were also rejected.

21      On 20 August 2004, the Public Prosecutor in Varese asked the Commission to waive the duty of discretion and to waive immunity for some of the officials mentioned in the information note of 23 July 2003. The Commission granted that request on 28 September 2004.

22      Since OLAF did not reply within the period of four months prescribed in Article 90(2) of the Staff Regulations to the complaints which had been submitted to it by the applicants, those complaints were the subject of implied rejections.

23      By decisions taken on 15, 21 and 28 October 2004, the appointing authority rejected the complaints which had been submitted to it by the applicants in Case F‑5/05, on the ground that ‘it [was] not for the Commission to comment on the activities engaged in by OLAF in the performance of its functions’. Similarly, their requests to the Commission to render them the assistance provided for in Article 24 of the Staff Regulations were rejected, since the appointing authority considered that the persons concerned had not been subjected to any threats, insulting or defamatory acts or utterances, or any attack by reason of their positions or duties and that the investigation opened by OLAF had been conducted in conformity with the provisions in force.

24      On 25 November 2004, on completion of the internal investigation, OLAF drew up, pursuant to Article 9(1) of Regulation No 1073/1999, a report specifying the facts established, the financial loss sustained by the Communities and the findings of the investigation, including the recommendations of the Director of OLAF on the action that should be taken on that investigation (‘the final investigation report’). That report was sent to the Secretary-General of the Commission, to the Directors-General of the Personnel and Administration DG and the JRC and to the Director of the Office for the Administration and Payment of Individual Entitlements.

25      The final investigation report indicated that the staff of the JRC in Ispra had reported three to four times more accidents than the rest of the Commission staff posted to other sites and that the probability of those reports leading to the declaration of a partial permanent invalidity was twice to three times as high at the JRC in Ispra as in the rest of the Commission. It also noted that some of the 42 officials referred to in the information note of 23 July 2003 had been able to obtain payments of considerable sums after reporting several accidents, even though these were of minor severity. However, the final investigation report found that, while the investigations carried out in the course of the internal investigation had demonstrated shortcomings as regards the intervention of the doctor appointed by the Commission to express an opinion on the degree of permanent invalidity, they had not demonstrated, owing to the purely administrative nature of that investigation, the existence of fraudulent accident reports, and that, in those circumstances, it was for the Italian judicial authorities to answer the question whether the 42 officials implicated had in fact committed criminal offences. Moreover, the final investigation report did not propose the initiation of disciplinary proceedings against those officials.

26      On 21 February 2005, OLAF expressly rejected the complaints submitted by the applicants in Case F‑5/05.

27      The Public Prosecutor in Varese ordered an expert forensic report on all the accidents which had been reported by the 42 officials referred to in the information note of 23 July 2003 (‘the expert forensic report’). At the representative’s request, OLAF forwarded, on 15 April 2005, the copies of the documents necessary for that report to be drawn up.

28      On 15 June 2005, the expert forensic report concluded that the medical evidence was not sufficient to prove the existence of fraudulent accident reports. Consequently, after receiving an application to that effect from the Public Prosecutor in Varese, the judge in charge of preliminary investigations at the District Court in Varese decided, on 12 July 2005, to discontinue the proceedings.

29      By memoranda of 9 October 2006, OLAF informed the applicants of the discontinuance of the proceedings.

 Procedure and forms of order sought by the parties

30      The action in Case F‑5/05 was originally lodged at the Registry of the Court of First Instance on 11 January 2005 as Case T‑22/05.

31      The applicants claim that the Tribunal should:

–        order the production of all the files concerning the applicants and sealed by OLAF;

–        order the production of the final investigation report;

–        annul the investigation conducted against the applicants;

–        annul the memorandum from OLAF effecting notification of the investigation and transmission of the information to the Italian judicial authorities;

–        annul the investigation report sent to the Italian judicial authorities;

–        annul any act resulting from and/or relating to those decisions which takes place subsequently to the bringing of the present action;

–        order OLAF and the Commission to pay damages, assessed on an equitable basis at EUR 30 000 for each applicant, subject to increase and/or decrease in the course of the proceedings;

–        in any event, order the Commission to pay the costs, including the expenses and fees of the lawyer consulted by the applicants for the purpose of bringing the present action.

32      By a separate document lodged at the Registry of the Court of First Instance on 27 April 2005, the Commission raised a plea of inadmissibility against the action in Case T‑22/05 under Article 114(1) of the Rules of Procedure of the Court of First Instance, applicable mutatis mutandis to the Tribunal pursuant to Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7) pending the entry into force of the latter’s Rules of Procedure.

33      The Commission contends that the Tribunal should:

–        dismiss the action as inadmissible;

–        make an appropriate order as to costs.

34      The action in Case F‑7/05 was originally lodged at the Registry of the Court of First Instance on 17 February 2005 as Case T‑84/05.

35      The applicant claims that the Tribunal should:

–        order the production of all the files concerning the applicant and sealed by OLAF;

–        order the production of the final investigation report;

–        annul the investigation conducted against the applicant;

–        annul the memorandum from OLAF effecting notification of the investigation and transmission of the information to the Italian judicial authorities;

–        annul the investigation report sent to the Italian judicial authorities;

–        annul any act resulting from and/or relating to those decisions which takes place subsequently to the bringing of the present action;

–        order OLAF and the Commission to pay damages, assessed on an equitable basis at EUR 30 000, subject to increase and/or decrease in the course of the proceedings;

–        in any event, order the Commission to pay the costs, including the expenses and fees of the lawyer consulted by the applicant for the purpose of bringing the present action.

36      By a separate document, lodged at the Registry of the Court of First Instance on 27 April 2005, the Commission raised a plea of inadmissibility against the action in Case T‑84/05 under Article 114(1) of the Rules of Procedure of the Court of First Instance. It contends that the Tribunal should:

–        dismiss the action as inadmissible;

–        make an appropriate order as to costs.

37      By order of 3 May 2005 of the President of the Fourth Chamber of the Court of First Instance, Cases T‑22/05 and T‑84/05 were joined for the purposes of the written procedure, the oral procedure and the judgment, in accordance with Article 50 of that Court’s Rules of Procedure.

38      By letters dated 31 May 2005, received at the Registry of the Court of First Instance on the same day by fax (the originals being lodged on 2 June 2005), the Council of the European Union applied to intervene in Cases T‑22/05 and T‑84/05 in support of the forms of order sought by the Commission.

39      By document lodged at the Registry of the Court of First Instance on 21 June 2005, the applicants submitted their observations on the pleas of inadmissibility raised by the Commission.

40      By order of 13 July 2005 of the President of the Fourth Chamber of the Court of First Instance, the Council was granted leave to intervene in Joined Cases T‑22/05 and T‑84/05 in support of the forms of order sought by the Commission.

41      By a statement in intervention relating exclusively to the admissibility of the actions in Joined Cases T‑22/05 and T‑84/05, received by fax at the Registry of the Court of First Instance on 30 September 2005 (the original being lodged on 4 October 2005), the Council contends that the Tribunal should:

–        dismiss the actions as inadmissible;

–        make an appropriate order as to costs.

42      By order of 15 December 2005, made pursuant to Article 3(3) of Decision 2004/752, the Court of First Instance referred Cases T‑22/05 and T‑84/05 to the Tribunal. The actions were lodged at the Tribunal Registry as Cases F‑5/05 and F‑7/05 respectively.

43      By document lodged at the Tribunal Registry on 20 December 2005, the applicants submitted their observations on the statement in intervention submitted by the Council in Cases F‑5/05 and F‑7/05.

44      By order of 21 March 2006 of the First Chamber of the Tribunal, the decisions on the pleas of inadmissibility raised in Cases F‑5/05 and F‑7/05 were reserved for the final judgment.

45      By its defence, received by fax at the Tribunal Registry on 20 June 2006 (the original being lodged on the same day), the Commission, while maintaining its claims that the actions are inadmissible in their entirety, contends that the Tribunal should:

–        declare the actions unfounded;

–        order the applicants to pay the costs.

46      By its statement in intervention on the merits, received by fax at the Tribunal Registry on 20 June 2006 (the original being lodged on 22 June 2006), the Council, while maintaining its claims that the actions are inadmissible in their entirety, contends in the alternative that the Tribunal should:

–        declare the actions unfounded;

–        make an appropriate order as to costs.

47      By an application lodged at the Tribunal Registry on 30 June 2006, Mr Verheyden, a former official, brought an action, registered as Case F‑72/06, seeking, inter alia, annulment of the decision to open the internal investigation and annulment of the decision to forward information to the Italian judicial authorities.

48      By document lodged at the Tribunal Registry on 10 July 2006, the applicants submitted their observations on the statement in intervention submitted by the Council on the merits of the case.

49      Pursuant to Article 64(3)(a) and (d) of the Rules of Procedure of the Court of First Instance, the Tribunal put questions to the main parties and asked the Commission to produce the medical and administrative files concerning the accidents of which the applicants had allegedly been victims between January 1986 and July 2003, the final investigation report and any document of the Commission, in particular of OLAF, relating to the investigation. The applicants and the Commission complied with the Tribunal’s requests.

50      By order of 13 June 2007 of the President of the First Chamber of the Tribunal, Joined Cases F‑5/05 and F‑7/05 were joined to Case F‑72/06 for the purposes of the oral procedure, in accordance with Article 50(1) of the Rules of Procedure of the Court of First Instance.

51      During the hearing, which was held on 3 July 2007, the applicants stated that their claims seeking production of the final investigation report and of their medical files had become devoid of purpose.

52      By orders of 2 August 2007 of the First Chamber of the Tribunal, the oral procedure in Joined Cases F‑5/05 and F‑7/05 and the oral procedure in Case F‑72/06 were reopened.

53      Pursuant to Article 64(3)(c) and (d) of the Rules of Procedure of the Court of First Instance, the Tribunal asked the Commission and the Council to produce the drafting history of Article 90a of the Staff Regulations and to indicate what acts by OLAF could, in their opinion, adversely affect an official and be the subject of a complaint under Article 90a of the Staff Regulations. The Commission and the Council complied with the Tribunal’s request.

54      The applicants submitted their observations on the responses of the Commission and the Council to the measures of organisation of procedure referred to in the previous paragraph.

 Law

 Scope of the dispute

55      The applicants must be regarded as seeking in essence:

–        annulment of the decision to open the internal investigation;

–        annulment of the investigative acts which took place during the internal investigation (‘OLAF’s investigative acts’);

–        annulment of the decision to forward information to the Italian judicial authorities;

–        annulment of the final investigation report;

–        annulment of any act resulting from and/or relating to those decisions which takes place subsequently to the bringing of the present action;

–        an order against the Commission to pay them damages.

 The claims seeking annulment of the decision to open the internal investigation, of OLAF’s investigative acts and of the final investigation report

56      Under Article 91(2) of the Staff Regulations, an appeal is to lie only if the appointing authority has previously had a complaint submitted to it pursuant to Article 90(2) within the period prescribed therein, and the complaint has been rejected by express or implied decision.

57      In the present case, it is apparent from the documents in the case-file that the only act contested by the applicants in the complaints which they submitted to the Director of OLAF is the decision to forward information to the Italian judicial authorities. It follows that the claims seeking annulment of the decision to open the internal investigation, of OLAF’s investigative acts and of the final investigation report, which were not preceded by any complaint, must be rejected as inadmissible, even if, as the applicants assert, those acts constitute acts adversely affecting them, within the meaning of Article 90a of the Staff Regulations.

 The claims seeking annulment of any act resulting from and/or relating to those decisions which takes place subsequently to the bringing of the present action

58      Under Article 44(1)(c) and (d) of the Rules of Procedure of the Court of First Instance, any application must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based, as well as the form of order sought by the applicant. That information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Tribunal to rule on the action, if necessary, without any other supporting information.

59      In the present case, the abovementioned claims do not enable the act or acts in respect of which annulment is sought to be clearly identified; and they must, for that reason, be rejected as inadmissible.

 The claims seeking annulment of the decision to forward information to the Italian judicial authorities

 Admissibility

–       Arguments of the parties

60      The Commission and the Council call on the Tribunal to reject the claims made under the above head as inadmissible on the ground that, as has previously been ruled by the Community Courts, a decision to forward information to national judicial authorities pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999 (‘the decision taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999’) does not constitute an act adversely affecting a person. They point out that a decision of that nature is merely a measure preparatory to a final decision which the national judicial or administrative authorities may take, since the latter are free to decide what action should be taken on that act and are the only authorities empowered to adopt decisions capable of affecting the legal position of the person concerned by the act (order of the President in Case C‑521/04 P(R) Tillack v Commission [2005] ECR I‑3103; orders in Case T‑215/02 Gómez Reino v Commission [2003] ECR‑SC I‑A‑345 and II‑1685 and Case T‑29/03 Comunidad Autónoma de Andalucía v Commission 2004] ECR II‑2923; order of the President in Case T‑193/04 R Tillack v Commission [2004] ECR II‑3575; judgments in Case T‑309/03 Camós Grau v Commission [2006] ECR II‑1173 and Case T‑193/04 Tillack v Commission [2006] ECR II‑3995).

61      The applicants dispute the argument of the Commission and the Council. After pointing out that Article 90a of the Staff Regulations was adopted in order to enable the Community judicature to review acts performed by OLAF in the course of its investigations, they assert that, in the particular circumstances, the decision to forward information to the Italian judicial authorities infringed, in a disproportionate manner, a number of their fundamental rights, such as the right to a fair hearing, the right to an inter partes investigation of the cases for both sides, and respect for privacy, and therefore brought about a distinct change in their legal position. Consequently, that decision is an act adversely affecting them, within the meaning of Article 90a of the Staff Regulations.

62      As regards the case-law referred to by the Commission and the Council, the applicants add that it is without pertinence in the present case, since it was developed in cases which arose prior to the insertion of Article 90a into the Staff Regulations. In any event, if it were to be confirmed in the present case, that case-law would entail a breach of the principle of effective judicial protection, enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

63      The Commission and the Council reject the argument that the case-law cited by them is not pertinent. They point out that, even before Article 90a of the Staff Regulations was adopted, there was a provision virtually identical to that article, namely Article 14 of Regulation No 1073/1999, allowing officials to contest by means of an action for annulment acts by OLAF adversely affecting them. However, notwithstanding that provision, the Community case-law has consistently refused to regard as adversely affecting an official a decision taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999.

64      Also, to be rejected, in the Commission's view, is the argument that the principle of effective judicial protection would be violated by refusing to treat the decision to forward information to the Italian judicial authorities as an act adversely affecting an official. This is because the persons concerned by a decision taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999 can always ask the national court to refer a question to the Court of Justice of the European Communities on the validity of that decision. Similarly, it is always possible for such persons to bring before the Community Courts an action for damages seeking compensation for the damage caused, if any, by the measure forwarding the information.

65      The applicants do not dispute that Article 90a of the Staff Regulations reproduced the substance of Article 14 of Regulation No 1073/1999, but they contest the reasoning of the Commission and the Council that the only act capable of adversely affecting an official is the final decision which the appointing authority or the national criminal court may adopt on the basis of the results of the internal investigation.

66      When asked, in the context of a measure of organisation of procedure, to specify what acts by OLAF could, in their opinion, be the subject of a complaint under Article 90a of the Staff Regulations, and then of a subsequent legal action, the Commission and the Council replied that such acts would include those carried out by OLAF as part of an internal investigation and which produced binding legal effects against an official or other servant not concerned by the allegations covered by the investigation. This would apply, in particular, to the searching of personal effects during access to the office of a third-party official or other servant, to the seizure of such personal effects, to the questioning of a third-party official or other servant, during which OLAF used unlawful methods, or to the clandestine tapping of the telephone of a third-party official or other servant. Such investigative acts cannot be regarded, so far as third parties are concerned, as acts preparatory to a final decision by the administration capable of being challenged by an action for annulment, since the investigation report subsequently drawn up could not implicate the third-party official or other servant. Consequently, the latter would be unable subsequently to challenge indirectly acts by OLAF performed against him and should therefore be able to contest them directly in order to benefit inter alia from judicial protection of his individual rights.

67      On the other hand, as regards the question whether acts of the same kind as those described above, but committed against the official or other servant who is the subject of the allegations under investigation, could be treated as acts adversely affecting that official or servant, the Commission states that such acts could, exceptionally, be so analysed, provided that they were strictly distinguished from any other investigative act which was merely a preparatory step pending OLAF’s findings and against which the appropriate legal remedy would consist in contesting it indirectly. However, in the Commission’s view, it is clear that none of those exceptional eventualities arises in the present case, since the applicants do not claim to have been subjected to an act of the same kind as those which could properly be treated as acts adversely affecting an official.

68      The applicants state that they cannot share the position of the Commission and the Council which consists in treating third-party officials and other servants more advantageously than officials and other servants implicated in the context of an internal investigation. Such a position, apart from the fact that it is discriminatory, is also misconceived in view of the very purpose of Article 90a of the Staff Regulations, which is to be read in the light of recital 10 in the preamble to Regulation No 1073/1999, which expressly provides that investigations must be conducted while respecting the Staff Regulations and with full respect for human rights and fundamental freedoms, in particular for the right of persons involved to express their views on the facts concerning them and for the principle that the conclusions of an investigation may be based solely on elements which have evidential value.

–       Findings of the Tribunal

69      It must first of all be recalled that, following the establishment of OLAF by Decision 1999/352, the Community legislature, with the aim of submitting the activities of that Office to effective judicial review, provided, in Article 14 of Regulation No 1073/1999, that ‘[p]ending amendment of the Staff Regulations, any official or other servant of the European Communities may submit to the Director of the Office a complaint by virtue of this Article against an act adversely affecting him committed by the Office as part of an internal investigation, in accordance with the procedures laid down in Article 90(2) of the Staff Regulations’ and that ‘Article 91 of the Staff Regulations shall apply to decisions taken with regard to such complaints’. Subsequently, Regulation No 723/2004 provided for the possibility for officials and other servants to pursue the annulment of certain acts by OLAF before the Community Courts by inserting into the Staff Regulations an Article 90a, the second sentence of which provides that any person to whom the Staff Regulations apply may ‘submit to the Director of OLAF a complaint within the meaning of Article 90(2) against an act adversely affecting him in connection with investigations by OLAF’.

70      The question, which has never previously been addressed in Community case-law, therefore arises as to whether the decision taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999 constitutes an act adversely affecting an official, within the meaning of Article 90a of the Staff Regulations.

71      In that regard, it is important to point out that the provisions of Article 90a of the Staff Regulations were adopted by the Community legislature in 2004 in order to guarantee the judicial protection of persons to whom the Staff Regulations apply. Faced with such an express and recent enactment of a right in the Staff Regulations, the Tribunal, in its particular specialised sphere, cannot neglect the responsibilities thus conferred on it by the legislature.

72      Secondly, those provisions constitute the corollary of the new powers conferred by the legislature on OLAF at the time of the adoption of Regulation No 723/2004, whether in regard to the fight against fraud, with Article 22a of the Staff Regulations, or in regard to disciplinary matters, with the provisions of Annex IX to the Staff Regulations. Article 90a of the Staff Regulations thus reflects the concern of the legislature to attach appropriate judicial safeguards to the strengthening of OLAF’s role.

73      In addition, as is apparent from settled case-law of the Court of Justice, the principle of effective judicial protection is a general principle of Community law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351, paragraph 335). In that case, in which the applicants invoked the rights of the defence, in particular the right to be heard, the Court held inter alia that the effectiveness of the Community judicature’s review, which must be applied inter alia to the lawfulness of the grounds on which the act adversely affecting the official is based, means that the Community authority in question must communicate those grounds to the persons concerned by that act, so far as possible, either when that act is adopted or, at the very least, as swiftly as possible thereafter in order to enable those persons to exercise, within the periods prescribed, their right to bring an action (see, to that effect, Kadi and Al Barakaat International Foundation v Council and Commission, paragraph 336).

74      Given that it is specifically respect for the right to be heard that the applicants invoke in the present case, in support of their argument relating to the guarantee of effective judicial protection, it should be pointed out that an official would not benefit from such a guarantee 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, under which that obligation may be deferred, had in fact been complied with by OLAF. Such a review by the Community judicature of the decision taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999 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.

75      It is also important to point out that 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. Under Article 43 of the Staff Regulations, ‘[t]he ability, efficiency and conduct in the service of each official shall be the subject of a periodical report made at least once every two years’. However, 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, more often than not communicated to the appointing authority by OLAF itself or by the employee concerned when, for example, he is heard as a witness by a national court, is liable to affect the assessment which the administration must make of that employee in the context of the appraisal exercise, in particular when assessing his conduct in the service.

76      Moreover, the nature of the judicial protection guaranteed for persons implicated in an investigation opened by OLAF is altered when the Director of OLAF takes a decision pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999. Whereas, before such a decision is taken, those persons benefit, where appropriate, from judicial protection guaranteed by the Community Courts against possible infringements of their rights, that protection is, in consequence of the adoption of the decision, implemented by the national judicial authorities which have received from OLAF the information gathered in the course of the internal investigation.

77      Having regard to the consequences which they are likely to entail, it is difficult to conceive that decisions taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999 should be denied the status of ‘act adversely affecting [an official]’ within the meaning of Article 90a of the Staff Regulations, especially given that the Community legislature itself has foreseen the need to make OLAF’s internal investigations subject to strict procedural safeguards and, in particular, to make the most significant acts which OLAF adopts in the course of such investigations – which necessarily include, in view of their scope, decisions taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999 – subject to observance of the fundamental principle of the rights of the defence. Indeed, Regulation No 1073/1999, after stating, in recital 10 in its preamble, that OLAF’s investigations were to be conducted ‘with full respect for human rights and fundamental freedoms, in particular the principle of fairness, for the right of persons involved to express their views on the facts concerning them and for the principle that the conclusions of an investigation may be based solely on elements which have evidential value’, provided, in Article 4(6)(b), that each institution, body, office or agency established by or on the basis of the Treaties would adopt rules concerning ‘the guarantees of the rights of persons concerned by an internal investigation’.

78      If the Tribunal were not to carry out that review of legality in relation to the decision taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999, 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. The Court of Justice has in fact already ruled that such a failure to observe the rights of the defence by OLAF constitutes an infringement of the essential procedural requirements applicable to the investigation procedure (Case C-471/02 P(R) Gómez-Reino v Commission [2003] ECR I‑3207, paragraph 64).

79      In addition, if, as the facts of this case show, no authorisation from the Commission’s Secretary-General 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 unlawfully be the subject, without knowing it, of procedures directly implicating him for a period of several months. The fact that the obligation to hear the person concerned may be deferred and that he may thus be unable to assert his rights before a court, whether it be a Community court or a national court, justifies a fortiori the admissibility of an action for annulment brought directly against the decision taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999. In such a context, the procedural safeguards available before the national court cannot actually be applied so long as the official concerned is not informed of the criminal investigation being conducted against him. Moreover, only a judicial review carried out at the stage of the adoption of the decision taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999 is capable of upholding in sufficient time observance of the prerogatives of the Secretary-General of the Commission, the only authority outside OLAF authorised to exercise a certain right of supervision over the conduct of an investigation, for the purposes of deciding to maintain the confidentiality of the investigation before referring the matter to the national judicial authorities

80      Furthermore, in order to be effective, the judicial review of an act such as a decision taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999 cannot be carried out solely in the context of an action for damages. Admittedly, such an action enables the official to obtain compensation for damage allegedly suffered by him on the occasion of an OLAF investigation (see Camós Grau v Commission). However, such an action for damages, on the one hand, presupposes, in the case of a Community official, a two-stage pre-litigation procedure, the litigation following which is relatively long, and, on the other hand, does not serve to ensure observance of the rights of the defence at the time when they are liable to be infringed.

81      The Tribunal would draw attention in this regard to the settled case-law which establishes that effective judicial protection presupposes that the person whose interests are harmed by an act adversely affecting him should be able to apply to the judge for the adoption of interim protective measures. However, an action seeking suspension of the operation of such an act is admissible, by virtue of Article 102(1) of the Rules of Procedure, only if the applicant is challenging that act in proceedings before the Tribunal. The recognition of a right of direct action against the decision taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999 would therefore enable 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 that decision.

82      Finally, it is to be pointed out that 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. The Tribunal observes that, in this case, OLAF did not reply to the complaints which the applicants in Case F‑5/05 had submitted to it under Article 90a of the Staff Regulations until 21 February 2005, that is, after the action had been brought, and that only the Commission, which was not the author of the act in question, explicitly replied to the complaints which had been submitted to it. Such a situation, in which the author of a contested decision does not comment on the criticisms made against that decision, is hardly compatible with the principle of sound administration and reveals the problems to which an absence of clearly affirmed and effective judicial supervision is liable to give rise. The analysis of the action as to its merits is not such, in the present case, as to invalidate that finding.

83      All the foregoing considerations therefore justify conferring upon decisions taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999 the status of act adversely affecting an official, within the meaning of Article 90a of the Staff Regulations.

84      None of the arguments advanced by the Commission gives any cause for doubting that conclusion.

85      Firstly, the Commission and the Council contend that a decision taken by the Director of OLAF pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999 is only a measure preparatory to a final decision which the national judicial or administrative authorities may take.

86      In that regard, it is true that, according to settled case-law, 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 (order in Case T‑83/02 Pflugradt v ECB [2003] ECR‑SC I‑A‑47 and II‑281, paragraph 34).

87      However, it is important to point out that, 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. It cannot in that respect be compared to the act by which the appointing authority initiates disciplinary proceedings against an official, the purpose of which is to serve as a preparatory step pending the adoption of a subsequent and final decision by the same authority.

88      If a decision adopted under the first sentence of Article 10(2) of Regulation No 1073/1999 were to be regarded as a measure preparatory to the national judicial investigation and to the decisions likely to be taken subsequently by the appointing authority, it would have to be accepted a fortiori that all acts by OLAF in connection with an investigation conducted by it, which more often than not precede the decision to forward information, also constitute merely preparatory acts. However, such an analysis would, on the one hand, run counter to the clear wording of Article 90a of the Staff Regulations and the intention of its authors, who, by conferring on any person to whom the Staff Regulations apply the right to make a complaint against an ‘act [by OLAF] adversely affecting him’, postulate the existence of such acts, and, on the other hand, deprive Article 90a of the Staff Regulations of any purpose or usefulness, as the applicants correctly submit.

89      In addition, the examples of acts adversely affecting an official which are the proper subject of a complaint under Article 90a of the Staff Regulations, as given by the Commission and the Council in reply to a written question from the Tribunal, such as the searching or seizing of personal effects during access to the office of an official or other servant who is a third party in relation to the investigation, or the interrogation by unlawful methods or the clandestine tapping of the telephone of an official or other servant who is a third party in relation to the investigation, do not, strictly speaking, unlike the decision taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999, constitute administrative decisions as such. Although it is true that such acts do not necessarily give rise to the adoption of other, subsequent decisions, they do not affect the interests and legal position of that third-party official or other servant to any greater extent than does the decision at issue here to forward information against persons who are the subject of an OLAF investigation. In particular, such acts do not have, a priori, any effect, by themselves, on the administrative situation and career of those third-party officials or other servants, whereas a decision to forward information, such as the decision at issue, has immediately negative effects on the interests, career and reputation of the persons concerned.

90      The decision taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999 cannot, therefore, be regarded as a merely intermediate or preparatory decision, if Article 90a of the Staff Regulations is not to be deprived of all effect. It 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.

91      Moreover, it should be noted that, as regards the disciplinary procedure applicable to officials, the Court of Justice, in a case where the opinion given by a disciplinary board was challenged, held that such an opinion constituted an act adversely affecting the applicant, against which an action could be brought, since that opinion, although given by a consultative body, was formulated following an inquiry which the disciplinary board was required to conduct in a completely independent manner according to a special and distinct procedure based on the audi alteram partem rule and respecting the fundamental principles concerning the rights of the defence (Case 228/83 F v Commission [1985] ECR 275, paragraph 16). Such a line of reasoning must be applied a fortiori, by analogy, to the case of decisions taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999, since those decisions, apart from the fact that they are not intended to serve as preparatory steps pending the subsequent and final adoption of a decision by the Director of OLAF, originate from an independent Community body and are also taken in the course or at the end of an investigation which must be conducted ‘with full respect … for the right of persons involved to express their views on the facts concerning them’.

92      Secondly, the Commission and the Council rely, in order to dispute the status of act adversely affecting an official for decisions taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999, on precedents in the case-law.

93      In that regard, it is true that, in the cases which gave rise to the order of the President of the Court of Justice in Tillack v Commission, paragraph 34, to the order of the President of the Court of First Instance in Tillack v Commission, paragraph 46, and to the judgment of the Court of First Instance in Tillack v Commission, paragraphs 68 to 70, the Community Courts held that a decision taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999 had not brought about a distinct change in the legal position of the person concerned by the information in question.

94      However, those decisions were given in relation to a person who did not have the status of Community official, in cases brought on the basis of Article 230 EC and not under Article 236 EC. Both the Court of Justice and the Court of First Instance, which did not have before them the question of the scope of Article 90a of the Staff Regulations, pointed out that the applicant had sufficient procedural safeguards before the national court and that the act of forwarding, by OLAF, of information concerning him was merely a preparatory act. However, that situation is unrelated to the situation in this case. Since it concerned 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.

95      As regards the decisions given by the Court of First Instance in the cases which gave rise to the order in Comunidad Autónoma de Andalucía v Commission, and to the judgment in Camós Grau v Commission, it is important to note that, in those decisions, the Court of First Instance ruled on the legal nature of the report by which OLAF concludes an investigation, not on the issue whether a decision such as that being contested here can be characterised as an act adversely affecting an official.

96      Finally, it should be pointed out that both the Court of Justice and the Court of First Instance have already envisaged that a review of the legality of acts by OLAF adversely affecting officials may be carried out by the Community judicature, through the remedy of an action for annulment (see, to that effect, the judgment in Case C‑167/02 P Rothley and Others v Parliament [2004] ECR I‑3149, paragraph 50; the order of the President in Case T‑17/00 R Rothley and Others v Parliament [2000] ECR II‑2085, paragraph 107; and the judgment in Case T‑17/00 Rothley and Others v Parliament [2002] ECR II‑579, paragraph 73).

97      It follows that the applicants are entitled to seek annulment of the decision to forward information to the Italian judicial authorities.

 Merits

98      In support of their claims for annulment, the applicants raise, in essence, five pleas in law, alleging, firstly, that the decision to forward information to the Italian judicial authorities was taken without proper foundation, secondly, breach of the fundamental principle of respect for the rights of the defence, thirdly, infringement of the seventh paragraph of Article 26 of the Staff Regulations, fourthly, infringement of the second paragraph of Article 25 of the Staff Regulations, relating to the obligation to state the grounds on which decisions adversely affecting an official are based, and, fifthly, that Regulation No 1073/1999 and Decision 1999/396 are unlawful.

99      It is appropriate to examine the second plea, alleging breach of the fundamental principle of respect for the rights of the defence.

–       Arguments of the parties

100    The applicants maintain that OLAF failed to have regard to the fundamental principle of respect for the rights of the defence, which is guaranteed in this instance by Article 4 of Decision 1999/396, since they were not enabled, before OLAF decided to forward information concerning them to the Italian judicial authorities, to express their views on the facts giving rise to this decision. The applicants point out that no particular circumstance of the investigation justified OLAF’s neglect of its duty to observe that principle and that, in any event, the Secretary-General of the Commission would not have given any agreement to that effect.

101    In its defence, the Commission submits, as a preliminary point, that the rules to be observed by OLAF in the conduct of its internal investigations are, in regard to the rights of the defence, those – and only those – set out in the first sentence and in the second sentence of the first paragraph of Article 4 of Decision 1999/396 (see, to that effect, the order in Gómez-Reino v Commission, paragraph 65).

102    As regards the first sentence of the first paragraph of Article 4 of Decision 1999/396, which provides that an official likely to be implicated in an OLAF investigation must be informed rapidly as long as this would not be harmful to the investigation, the Commission contends that those provisions were not infringed in the present case, since informing the applicants, had it taken place, would have affected the effectiveness of the Italian judicial authorities’ investigations, in view of the risk of destruction of certain documents. As for the second sentence of the first paragraph of Article 4 of Decision 1999/396, it does not apply to the decision taken pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999 when the forwarding of information to national judicial authorities takes place in the course of an internal investigation and not on its completion.

103    The Commission argues that, in any event, the applicants were informed, in due time, of all matters concerning them, since, as part of the Italian criminal proceedings, they received copies of the annexes to the memorandum of 5 August 2003, that is to say, the information note of 23 July 2003 and the minutes of the hearing of the former Director of the IES.

–       Findings of the Tribunal

104    It is important, first of all, to note that the first sentence of the first paragraph of Article 4 of Decision 1999/396 provides that ‘[w]here the possible implication of a Member, official or servant of the Commission emerges, the interested party shall be informed rapidly as long as this would not be harmful to the investigation’. As for the second sentence of the first paragraph of Article 4 of that decision, it provides that ‘[i]n any event, conclusions referring by name to a Member, official or servant of the Commission may not be drawn once the investigation has been completed without the interested party’s having been enabled to express his views on all the facts which concern him’.

105    As was held by the Court of First Instance in Case T‑48/05 Franchet and Byk v Commission [2008] ECR II‑1585, paragraphs 133 and 145, under the aforementioned provisions of the first paragraph of Article 4 of Decision 1999/396, where the Director of OLAF is considering taking a decision pursuant to the first sentence of Article 10(2) of Regulation No 1073/1999, 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.

106    In the present case, it is apparent from the documents in the case-file that, in the information note of 23 July 2003 annexed to the memorandum of 5 August 2003, OLAF mentioned the applicants by name as possibly having committed criminal offences. Consequently, the memorandum of 5 August 2003 contained ‘conclusions referring by name’ to the applicants.

107    Accordingly, the applicants should, in principle, have been informed and heard with respect to the facts concerning them before the memorandum of 5 August 2003 was forwarded to the Italian judicial authorities.

108    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.

109    However, the applicants claim, without being contradicted by the Commission, that the Secretary-General of the Commission neither gave her agreement for compliance with the obligation to invite them to submit their observations to be deferred, nor was even asked to give such agreement.

110    It must be pointed out that the 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. As was held in Franchet and Byk v Commission, paragraph 151, 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.

111    In those circumstances, OLAF must be held to have infringed the provisions of Article 4 of Decision 1999/396 and the rights of defence of the applicants.

112    For the sake of completeness, it should be recalled that, according to settled case-law, respect for the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the proceedings in question (see Case T‑372/00 Campolargo v Commission [2002] ECR‑SC I‑A‑49 and II‑223, paragraph 30, and the case-law cited). That principle, which normally requires that the person concerned be heard by the competent authority before the adoption of the act adversely affecting him, applies not only in disciplinary matters but also in other matters pertaining to the Community civil service (see Campolargo v Commission, paragraph 31 and the case-law cited).

113    It follows that, even assuming, as the Commission maintains, 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 was nevertheless, in principle, required, by virtue of the fundamental principle of respect for the rights of the defence, to invite the applicants, prior to the forwarding of information, to submit any relevant observations on the facts concerning them. However, it is common ground that this was not done, despite there being no special circumstances to justify such an omission.

114    Finally, although the Commission contends that the applicants were, in due time, informed of all matters concerning them, since, as part of the Italian criminal proceedings, they received copies of the memorandum of 5 August 2003 and the annexes thereto, such a circumstance, subsequent to the decision to forward information to the Italian judicial authorities, cannot be regarded as having remedied the infringement by OLAF of the provisions of Article 4 of Decision 1999/396.

115    It follows, without there being any need to examine the other pleas in law, that the decision to forward information to the Italian judicial authorities must be annulled.

 The claims for damages

 Arguments of the parties

116    The applicants seek, in essence, compensation for the non-material damage resulting, firstly, from the decision to open the investigation and from the investigative acts performed by OLAF, secondly, from the fact that OLAF, without good reason and in disregard of the rights of the defence, forwarded information concerning them to the Italian judicial authorities, thirdly, from the fact that the final investigation report contains conclusions not based on any sufficiently evidential fact, and fourthly, from the circumstance that OLAF did not act upon their complaints which they had submitted in order to be informed about the investigation. The applicants point out in particular that the decision to forward information to the Italian judicial authorities resulted in the opening of a criminal investigation by the Public Prosecutor in Varese and that that investigation, apart from the fact that it placed them in a state of anxiety regarding possible criminal proceedings, also damaged their honour and professional reputation.

117    In its defence, the Commission contends that the abovementioned claims are inadmissible on the ground that, contrary to the provisions of Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, they do not contain any element serving to identify the conduct which the applicants seek to allege against it. In any event, even if the abovementioned claims satisfied the requirements of Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, the Commission asserts that they would be no more admissible, since they are entirely an adjunct of the claims for annulment, which should be rejected as inadmissible.

118    As to the merits of the claims, the Commission contends that the non-material damage alleged by the applicants arises solely from the autonomous decision of the Italian judicial authorities to commence criminal proceedings, so that no causal link exists between the wrongful acts complained of and the damage allegedly suffered.

119    In reply, the applicants, after submitting that the claims for damages are admissible, dispute in particular the Commission’s contention that the damage in respect of which they seek reparation arises directly from the autonomous decision of the Italian judicial authorities to open a criminal investigation. They point out, in this regard, that it would have been unthinkable for the Public Prosecutor in Varese, having before him a memorandum from OLAF setting out facts characterised as fraud, as aiding and abetting fraud and as forgery of documents, to refuse to open a criminal investigation.

 Findings of the Tribunal

–       Admissibility

120    In the scheme of remedies established by Article 90a of the Staff Regulations, an action for damages seeking compensation for damage imputable to 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 (see, by analogy, Case T‑500/93 Y v Court of Justice [1996] ECR‑SC I‑A‑335 and II‑977, paragraph 64). 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, by analogy, Y v Court of Justice, paragraph 66).

121    In the present case, as regards the claim for compensation for the damage allegedly caused by the decision to open the internal investigation, by the investigative acts performed by OLAF, by the content of the final investigation report and by OLAF’s refusal to respond to the complaints which the applicants had submitted, that claim must be rejected as inadmissible, since the applicants did not comply with the requirements of the pre-litigation procedure. If the conduct complained of by the applicants constituted acts adversely affecting them, within the meaning of Article 90a of the Staff Regulations, it should have been the subject of a complaint, which was not the case. Similarly, if that conduct had to be regarded as not in the nature of a decision, the applicants should have made, in turn, a request as referred to in Article 90(1) of the Staff Regulations, then a complaint, which they failed to do.

122    On the other hand, as regards the claim for compensation for the damage allegedly caused by the decision to forward information to the Italian judicial authorities, that claim which, contrary to what the Commission maintains, was sufficiently reasoned from the time the application was made, is directly connected with the claims for annulment of the decision to forward information and must therefore be considered admissible as being incidental to those claims.

123    Consequently, only the validity of the claim for compensation for the damage resulting from the decision to forward information to the Italian judicial authorities will be examined.

–       Merits

124    As stated above, the decision to forward information to the Italian judicial authorities was taken in disregard of the provisions of Article 4 of Decision 1999/396 relating to respect for the rights of the defence and, specifically as a result of the breach of those essential procedural requirements, caused non-material damage to the applicants. Such damage is, in the instant case, all the more serious because that decision was followed by the opening, by the Italian judicial authorities, of a criminal investigation.

125    However, so far as concerns the damage to the applicants resulting from their state of anxiety and from the impairment of their honour and professional reputation caused by the Italian criminal investigation, it must be borne in mind that, according to settled case-law, the 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 (Case 111/86 Delauche v Commission [1987] ECR 5345, paragraph 30, and Joined Cases T‑330/00 and T‑114/01 CocchiandHainz v Commission [2002] ECR‑SC I‑A‑193 and II‑987, paragraph 97). Moreover, 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 (Case T‑45/01 Sanders and Others v Commission [2004] ECR II‑3315, paragraph 149; Case T‑144/02 Eagle and Others v Commission [2004] ECR II‑3381, paragraph 148; and Case T‑250/04 Combescot v Commission [2007] ECR II‑0000, paragraph 95).

126    In the present case, although the Italian judicial authorities were 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, those authorities remained 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. Consequently, only the conduct of the national judicial authorities, which decided to institute criminal proceedings and then to carry out investigations, directly caused the non-material damage allegedly suffered (see, to that effect, the judgment of the Court of First Instance in Tillack v Commission, cited above, paragraph 122). In those circumstances, the applicants have not established the existence of a direct causal nexus between, on the one hand, the decision to forward information to the Italian judicial authorities and, on the other hand, the non-material damage deriving from their state of anxiety and from the wrong to their honour and professional reputation.

127    It follows that the claims for damages must be upheld only in so far as they seek compensation for the damage resulting from the infringement of the provisions of Article 4 of Decision 1999/396 relating to respect for the rights of the defence.

128    As regards the compensation for that damage, while it is settled case-law that the annulment of an act which has been challenged may in itself constitute appropriate and, in principle (that is to say, in the absence from that act of any expressly negative assessment of the applicant’s abilities likely to cause him prejudice), sufficient reparation for any non-material harm which the applicant may have suffered (Case T‑136/03 Schochaert v Council [2004] ECR‑SC I‑A‑215 and II‑957, paragraph 34), such case-law cannot apply to the present case.

129    Having regard to the nature and significance of the damage sustained by the applicants, consisting of the infringement of the provisions of Article 4 of Decision 1999/396 relating to respect for the rights of the defence, annulment of the decision to forward information to the Italian judicial authorities cannot constitute appropriate and sufficient reparation for the damage caused by the illegality of that decision. In those circumstances, fair compensation for that non-material damage will be afforded by ordering the Commission to pay to each of the applicants the sum of EUR 3 000.

 Costs

130    Pursuant to Article 122 of the Rules of Procedure, the provisions of Title 2, Chapter 8 of those rules, on costs, are to apply only to cases brought before the Tribunal from the date on which those Rules of Procedure enter into force, namely, on 1 November 2007. The relevant provisions of the Rules of Procedure of the Court of First Instance on the subject are to continue to apply mutatis mutandis to cases pending before the Tribunal before that date.

131    Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful on the essential issues in its pleas, it must be ordered to pay the costs.

132    In accordance with the first subparagraph of Article 87(4) of the Rules of Procedure of the Court of First Instance, the Council, as intervener, is to bear its own costs.

On those grounds,

THE TRIBUNAL (First Chamber)

hereby:

1.      Annuls the decision of 5 August 2003 by which the European Anti-Fraud Office forwarded to the Italian judicial authorities information concerning Mr Violetti, Ms Schmit and 12 other officials of the Commission of the European Communities, whose names are set out in the annex to this judgment;

2.      Orders the Commission of the European Communities to pay to Mr Violetti, Ms Schmit and each of the 12 other officials of the Commission of the European Communities, whose names are set out in the annex to this judgment, the sum of EUR 3 000;

3.      Dismisses the remainder of the claims in both applications;

4.      Orders the Commission of the European Communities to bear its own costs and to pay the costs of the applicants;

5.      Orders the Council of the European Union to bear its own costs.

Kreppel Tagaras Gervasoni

Delivered in open court in Luxembourg on 28 April 2009.

W. Hakenberg       S. Gervasoni

Registrar       President

The text of the present decision and those of the decisions of the Community Courts cited in it which have not yet been published in the European Court Reports are available on the internet site of the Court of Justice: www.curia.europa.eu

* Language of the case: French.