Case C-521/04 P(R)

Hans-Martin Tillack

v

Commission of the European Communities

(Appeal — Application for interim measures — Main action manifestly inadmissible — Act having adverse effect — Effective judicial protection — Journalists’ sources of information — Forwarding of information by OLAF to the national prosecuting authorities)

Order of the President of the Court, 19 April 2005. 

Summary of the Order

1.     Applications for interim measures — Conditions of admissibility — Assessment of whether the main application is prima facie admissible — Absence of case-law on the point — Not decisive

(Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(1))

2.     Community law — Principles — Right to effective judicial protection — Transmission to the national authorities of information obtained in an investigation carried out by the European Anti-Fraud Office (OLAF) — Discretion of the national authorities as to the action to be taken — Protection against criminal proceedings ensured at national level

(Arts 10 EC and 234 EC; Parliament and Council Regulation No 1073/1999, Art. 10(2))

1.     The possibility of concluding, in proceedings for interim measures, that there are no grounds for considering that an application for annulment is prima facie admissible does not depend on the existence of Community case-law on the point or points of law raised in the main application. While the existence of such case-law may make it easier to reach such a conclusion, it is nevertheless the case that the manifest inadmissibility of an application may also follow from factors which have not or not yet been addressed in the Community case-law.

(see para. 26)

2.     Article 10(2) of Regulation No 1073/1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) proceeds from the assumption that a measure such as the transmission to the national judicial authorities of information setting out the results of an internal investigation is not in itself capable of having adverse effect but may give rise, as the case may be, to administrative or criminal proceedings brought by the competent national authorities. The action taken by the national authorities in response to the information forwarded to them by OLAF is therefore, within the framework of Article 10 EC, within their sole and entire responsibility. It is thus for those authorities to ascertain themselves whether such information justifies or requires the bringing of criminal proceedings. Consequently, judicial protection against such proceedings must be ensured at national level with all the guarantees provided by national law, including those which follow from the fundamental rights that, as an integral part of the general principles of Community law, must also be observed by the Member States when they implement Community rules. In proceedings brought at national level, the court seised has the possibility, by means of a reference to the Court for a preliminary ruling under Article 234 EC, of putting questions to the Court, possibly at the instigation of the parties, on the interpretation of provisions of Community law which it considers necessary in order to give judgment.

(see paras 32-33, 38-39)

ORDER OF THE PRESIDENT OF THE COURT

19 April 2005 (*)

(Appeal – Application for interim measures – Main application manifestly inadmissible – Act having adverse effect – Effective judicial protection – Journalists’ sources of information – Forwarding of information by OLAF to the national prosecuting authorities)

In Case C-521/04 P(R),

APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice brought on 24 December 2004,

Hans-Martin Tillack, represented by I. Forrester QC and C. Arhold, Rechtsanwalt,

appellant,

the other parties to the proceedings being:

Commission of the European Communities, represented by C. Docksey and C. Ladenburger, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

International Federation of Journalists (IFJ), represented by A. Bartosch and T. Grupp, avocats,

intervener at first instance,

THE PRESIDENT OF THE COURT,

after hearing the Advocate General, L.A. Geelhoed,

makes the following

Order

1       By his appeal, Mr Tillack asks the Court to set aside the order of the President of the Court of First Instance of the European Communities of 15 October 2004 in Case T‑193/04 R Tillack v Commission [2004] ECR II‑0000 (‘the order under appeal’) dismissing the application for suspension of any further implementation or action pursuant to the alleged complaint of the European Anti-Fraud Office (OLAF) of 11 February 2004 to the Belgian and German judicial authorities and for an order that OLAF refrain from obtaining, inspecting, examining or hearing the contents of any documents and information in the possession of the Belgian judicial authorities following the search of the appellant’s home and office carried out on 19 March 2004.

2       The Commission of the European Communities and the International Federation of Journalists (IFJ) submitted observations on the appeal on 31 January 2005.

3       As the written observations of the parties and the documents in the case-file contain all the information needed to give judgment on the appeal, there is no need to hear the parties’ oral observations.

 Legal context

4       Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (OJ 1999 L 136, p. 1) governs inspections, checks and other measures taken by employees of OLAF in the performance of their duties.

5       Recital 13 in the preamble to Regulation No 1073/1999 reads as follows:

‘Whereas it is for the competent national authorities or the institutions, bodies, offices or agencies, as the case may be, to decide what action should be taken on completed investigations on the basis of the report drawn up by the Office; whereas it should nevertheless be incumbent upon the Director of the Office to forward directly to the judicial authorities of the Member State concerned information acquired by the Office in the course of internal investigations concerning situations liable to result in criminal proceedings’.

6       Article 10 of Regulation No 1073/1999, headed ‘Forwarding of information by the Office’, provides in paragraph 2:

‘Without prejudice to Articles 8, 9 and 11 of this Regulation, the Director of the Office shall forward to the judicial authorities of the Member State concerned the information obtained by the Office 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.’

 Facts of the dispute

7       The President of the Court of First Instance gave the following account of the facts of the dispute, in paragraphs 3 to 10 of the order under appeal:

‘3      The applicant is a journalist, employed by the German magazine Stern.

4      He wrote two articles, published in Stern on 28 February and 7 March 2002 respectively, concerning allegations of irregularities recorded by a European Communities official, Mr Van Buitenen. The articles’ terms showed that the applicant had detailed knowledge of the content of a memorandum dated 31 August 2001 drafted by Mr Van Buitenen (“the Van Buitenen memorandum”) and of two confidential internal OLAF notes on that memorandum, dated 31 January and 14 February 2002 (“the internal notes”).

5      On 12 March 2002 OLAF opened an internal investigation, in accordance with Article 4(1) of Regulation No 1073/1999, in order to identify the European Communities officials or other servants at the source of the leak that had resulted in disclosure of the Van Buitenen memorandum and the internal notes.

6      In a press release of 27 March 2002 announcing the opening of the investigation, OLAF stated that “it [was] not excluded that payment may have been made to somebody within OLAF (or possibly another EU institution) for these documents”.

7      Stern issued a press release on 28 March 2002 in which it confirmed that it was in possession of the Van Buitenen memorandum and the internal notes but denied that any of its collaborators had paid money to an official or other servant of the Commission for providing those documents.

8      After requesting OLAF to withdraw the accusations of bribery directed against him, on 22 October 2002 the applicant complained to the European Ombudsman. On 18 June 2003 the European Ombudsman submitted his draft recommendation to OLAF, in which he concluded that the making of allegations of bribery without a reliable factual basis, in the press release of 27 March 2002, constituted an instance of maladministration and that OLAF should consider withdrawing the allegations of bribery that were referred to in the press release. In response to that recommendation, OLAF issued a press release on 30 September 2003 entitled “OLAF clarification regarding an apparent leak of information” and informed the European Ombudsman thereof. The Ombudsman adopted his decision on 20 November 2003, including in its conclusions a critical remark.

9      On 11 February 2004 OLAF, on the basis of Article 10(2) of Regulation No 1073/1999, forwarded information to the prosecuting authorities in Brussels (Belgium) and Hamburg (Germany) setting out the results of the internal investigation opened on 12 March 2002 [“the contested transmission”].

10      Following the forwarding of that information, an investigation for breach of professional secrecy was opened in Belgium. On 19 March 2004, the Belgian federal police searched the home and the office of the applicant upon the instructions of the examining magistrate in Brussels. Numerous documents and other belongings of the applicant were seized. On 23 March 2004 the applicant brought proceedings challenging the seizure before the examining magistrate entrusted with the case, who rejected his application. The applicant brought an appeal against that decision before the Chambre des mises en accusation (Chamber for Indictments) in April 2004.’

 Procedure before the Court of First Instance

8       By application lodged at the Registry of the Court of First Instance on 1 June 2004, the appellant brought an action for annulment of the contested transmission and for compensation for the damage suffered as a result of that transmission and related acts adopted by OLAF.

9       By separate document lodged at the Registry of the Court of First Instance on 4 June 2004, the appellant requested the President of the Court of First Instance, in accordance with Article 243 EC:

–      to order the suspension, in whole or in part, of any further implementation or action pursuant to the contested transmission;

–      to order that OLAF refrain from obtaining, inspecting, examining or hearing the contents of any documents and information in the possession of the Belgian judicial authorities as a result of their search of the appellant’s home and office on 19 March 2004, and their seizure of his files, computer and other records;

–      pending further inquiry and pending the receipt of observations on behalf of OLAF, to order that OLAF refrain with immediate effect from taking any action pursuant to the contested transmission, without prejudice to how the Court may rule with respect to the above two claims;

–      to order the Commission to pay the costs; and

–      to take such other or further steps as justice may require.

10     The Commission contended that the application for interim measures should be dismissed, pleading in particular that the appellant’s application for annulment was manifestly inadmissible.

11     The IFJ sought leave to intervene in support of the form of order sought by the appellant.

 The order under appeal

12     In the order under appeal, the President of the Court of First Instance, after allowing the IFJ’s application for leave to intervene, observed in paragraph 32 of the order that, according to settled case-law, where it is contended that the main action to which the application for interim measures relates is manifestly inadmissible, it must be established whether there are grounds for concluding prima facie that the main action is admissible.

13     He found, in paragraph 47 of the order under appeal, that it did not appear at that stage of the procedure that there were grounds for concluding that the action for annulment was prima facie admissible.

14     He considered, in paragraph 46 of the order under appeal, that since OLAF’s decision to make the contested transmission had no binding legal effect, it did not constitute a challengeable act.

15     He recalled, in paragraph 38 of the order under appeal, that only a measure which produces binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action for annulment, and he observed in this respect, in paragraph 43 of the order, that the contested transmission did not give rise to any binding legal effect in relation to the Belgian and German judicial authorities, who remained free to decide what action should be taken on OLAF’s investigations.

16     He pointed out, finally, in paragraph 44 of the order under appeal, that the duty to cooperate in good faith set out in Article 10 EC does not impose any obligation on the national judicial authorities to take specific steps if they consider that the information forwarded by OLAF does not warrant them. Similarly, with regard to the argument derived from the right to effective judicial protection, he found, in paragraph 45 of the order, that the appellant had not in any way shown in what way he would be prevented from contesting the decision of the national judicial authorities to order a search of his home and his office.

17     He concluded, in paragraph 48 of the order under appeal, that he would examine only the appellant’s arguments relating to his application for damages, and, in paragraph 62 of the order, he held that the appellant had not established to the required legal standard that that application was not manifestly unfounded.

18     In those circumstances, in paragraph 63 of the order under appeal, the President of the Court of First Instance dismissed the application before him.

 The appellant’s appeal

19     In his appeal, the appellant claims that the order under appeal should be set aside and that the form of order he sought before the President of the Court of First Instance should be granted in its entirety.

20     The Commission asks the President of the Court to dismiss the appeal. In the alternative, it contends that the application for interim measures should be dismissed. It further seeks for the appellant to be ordered to pay the costs.

21     The IFJ contends that the order under appeal should be set aside and that the interim measures sought by the appellant should be ordered.

 Appeal

22     In support of his appeal, the appellant puts forward three pleas in law: incorrect assessment by the President of the Court of First Instance of the admissibility of the application for annulment, incorrect assessment by him of the causal link between the contested transmission and the damage alleged by the appellant, and violation of the right to effective judicial protection.

 The first plea in law

23     By his first plea in law, the appellant submits that the President of the Court of First Instance erred in law by holding that the application for annulment was manifestly inadmissible.

 First, second and third parts of the first plea in law

24     The first, second and third parts of the first plea in law all relate to the question of the legal nature of the measures taken on the basis of Article 10(2) of Regulation No 1073/1999. They should therefore be examined together.

25     The appellant submits, first, that there is no decision of the Court of Justice or the Court of First Instance interpreting Article 10(2) of Regulation No 1073/1999 which rules on the legal nature of acts done by OLAF on the basis of that provision.

26     On this point, it suffices to state that the possibility of concluding, as the President of the Court of First Instance did in paragraph 47 of the order under appeal, that there are no grounds for considering that an application for annulment is prima facie admissible does not depend on the existence of Community case-law on the point or points of law raised in the main application. While the existence of such case-law may make it easier to reach such a conclusion, it is nevertheless the case that the manifest inadmissibility of an application may also follow from factors which have not or not yet been addressed in the Community case-law. It follows that the appellant’s argument relating to the lack of a precedent is of no effect.

27     The appellant contests, next, the interpretation adopted in the order under appeal that measures taken on the basis of Regulation No 1073/199, in particular Article 10(2), have no binding legal effect. He submits that the national authorities were obliged to act in response to the contested transmission, as indeed they did. In his view, the order under appeal is wrong in classifying that transmission as a mere investigative measure, when in fact it was a necessary legal step for putting OLAF in the legal position of being able, for the purposes of its own internal investigation, to have access to the documents seized by the national police.

28     In paragraph 43 of the order under appeal, the President of the Court of First Instance carried out a classification in law of the contested transmission and, relying both on Regulation No 1073/1999 and on the wording of the letter of 11 February 2004 by which information was forwarded by OLAF to the national judicial authorities, reached the conclusion that such a transmission did not give rise to any binding legal effect in relation to them.

29     It is true that, as the IFJ submits, the interim report which was enclosed with that letter and thus formed an integral part of the contested transmission also states that ‘transmission of information to the two judicial authorities [the Brussels and Hamburg prosecutors’ offices] proves necessary in order to start proceedings which are independent but coordinated’ and that that report states, under the heading ‘Urgency’, that ‘swift action is desirable in view of the fact that, according to our information, Mr Tillack will leave Brussels in March this year to become the Stern correspondent in Washington (USA). With his departure from Brussels, important evidence could disappear for good.’

30     However, it is common ground that OLAF left it to the discretion of the competent national authorities to decide what action should be taken on the contested transmission. As is apparent from the very wording of the report, OLAF did not request those authorities to take specific measures against Mr Tillack.

31     That method of proceeding on the part of OLAF is not contrary to Article 10(2) of Regulation No 1073/1999. That provision is confined to providing that the Director of OLAF is to forward to the judicial authorities of the Member State concerned the information obtained during internal investigations into matters liable to result in criminal proceedings. Neither in the wording of that provision nor in that of recital 13 in the preamble to the regulation is there any indication that such a forwarding of information is intended to have binding legal effects on those to whom it is addressed.

32     Article 10(2) of Regulation No 1073/1999 proceeds from the assumption that a measure such as the contested transmission is not in itself capable of having adverse effect but may give rise, as the case may be, to administrative or criminal proceedings brought by the competent national authorities. The action taken by those authorities in response to the information forwarded to them is thus within their sole and entire responsibility.

33     That interpretation of Article 10(2) of Regulation No 1073/1999 is also not contradicted by the duty to cooperate in good faith laid down in Article 10 EC. While that provision does indeed mean that it cannot be said that there is no obligation at all on the part of the national authorities to examine the information forwarded by OLAF, it is nevertheless the case that it does not require an interpretation to the effect that a measure such as the contested transmission has binding effect, in the sense that those authorities are obliged to take specific measures, since such an interpretation would alter the division of tasks and responsibilities as prescribed for the implementation of Regulation No 1073/1999.

34     It follows that the conclusion of the President of the Court of First Instance that the contested transmission did not constitute a challengeable act is not vitiated by an error of assessment, and the first, second and third parts of the first plea cannot therefore be accepted.

 The fourth part of the first plea in law

35     By the fourth part of his first plea in law, the appellant submits that the finding of manifest inadmissibility of the application for annulment reached by the President of the Court of First Instance is contrary to the principle of effective judicial protection.

36     The Commission submits in this respect that adequate judicial protection exists at national level. It considers that it is for the national courts to ensure judicial protection of individuals where the only challengeable act is an act done at national level or where that act was adopted on the basis of a Community act which, in accordance with Article 230 EC, is not amenable to an action before the Community judicature.

37     The IFJ does not dispute that the appellant had the possibility of bringing proceedings in the national courts against the acts of the Belgian authorities. It points out, however, that although those courts were indeed seised of the case, they never examined the correctness of the information forwarded by OLAF. According to the IFJ, the order under appeal thus amounts to a denial of justice to the appellant.

38     On this point, it should be recalled that, as stated in paragraph 32 above, the action taken by the national authorities in response to the information forwarded to them by OLAF is within their sole and entire responsibility. It is thus for those authorities to ascertain themselves whether such information justifies or requires the bringing of criminal proceedings. Consequently, judicial protection against such proceedings must be ensured at national level with all the guarantees provided by national law, including those which follow from the fundamental rights that, as an integral part of the general principles of Community law, must also be observed by the Member States when they implement Community rules (see inter alia Case 5/88 Wachauf [1989] ECR 2609, paragraph 19, and Joined Cases C‑20/00 and C‑64/00 Booker Aquaculture and Hydro Seafood [2003] ECR I‑7411, paragraph 88).

39     In proceedings brought at national level, the court seised has the possibility, by means of a reference to the Court for a preliminary ruling under Article 234 EC, of putting questions to the Court, possibly at the instigation of the parties, on the interpretation of provisions of Community law which it considers necessary in order to give judgment.

40     It follows that the argument that the conclusion reached in the order under appeal amounts to a lack of effective judicial protection is not correct. The fourth part of the first plea cannot therefore be accepted.

41     In the light of all the foregoing, the first plea in law must be rejected.

 The second plea in law

42     By his second plea in law, the appellant submits, first, that the President of the Court of First Instance erred in law by holding that there was no causal link between the transmission of information by OLAF to the national authorities and the alleged damage. It should be observed in this respect that in the present appeal only the contested transmission remains at issue as a potential source of the alleged damage, since the appellant’s claim for compensation, in so far as it was based on the publication by OLAF of two press releases, is no longer argued. The appellant submits, second, that the order under appeal lacks an adequate statement of reasons on this point.

43     It is apparent from paragraph 54 of the order under appeal that the President of the Court of First Instance considered, on the basis of settled case-law, that the causal link must be a direct link of cause and effect between the fault allegedly committed by the institution concerned and the damage pleaded, and that the wrongful conduct of the institution must be the determining cause of the damage.

44     Referring to that case-law, he found, in paragraph 58 of the order under appeal, that there was no such causal link between the mere forwarding of information by OLAF to the national authorities and the damage that the appellant claimed to have suffered. He considered that it was clear that, if those authorities had not opened a judicial investigation, the appellant would not have suffered the damage alleged.

45     The appellant submits, however, that the order under appeal erroneously described and wrongly applied the criteria laid down in the case-law concerning the condition of a causal link. In his opinion, the essential criterion is whether the contested transmission is the determining cause of the damage, not whether that transmission is the last act in a chain of causation.

46     On this point, it suffices to state that it is clear from paragraph 58 of the order under appeal that the national authorities’ decision to open a judicial investigation is regarded as having an effect not because it constituted the last act in a chain of causation but because it was the determining cause of the damage alleged to have been suffered.

47     In those circumstances, it does not appear that the President of the Court of First Instance applied the case-law on the causal link erroneously or failed to state his reasons adequately in this respect.

48     The second plea in law must therefore also be rejected.

 The third plea in law

49     By his third plea in law, the appellant submits that the President of the Court of First Instance infringed his right to effective judicial protection.

50     As the argument relating to the alleged disregard of the right to effective judicial protection has already been examined in connection with the fourth part of the first plea in law and the appellant has not, in connection with the present plea, adduced additional matter capable of calling into question the findings made in the examination of the first plea, the third plea in law must be rejected.

51     Since none of the three pleas in law put forward by the appellant in support of his appeal is capable of succeeding, the appeal must be dismissed.

 Costs

52     Under Article 69(2) of the Rules of Procedure, which apply to appeal proceedings by virtue of Article 118, 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 applied for an order for costs against the appellant and he has been unsuccessful, he must be ordered to pay the costs. In accordance with the third paragraph of Article 69(4), the Court may order an intervener other than a State or institution to bear its own costs. Pursuant to that provision, the IFJ should be ordered to bear its own costs.

On those grounds, the President of the Court hereby orders:

1.      The appeal is dismissed.

2.      Mr Tillack is ordered to pay the costs of these proceedings.

3.      The International Federation of Journalists shall bear its own costs.

[Signatures]

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* Language of the case: English.