Keywords
Summary

Keywords

1. Procedure – Measures of organisation of procedure – Request that internal documents of an institution be removed from the file

(Rules of Procedure of the Court of First Instance, Art. 64)

2. Officials – Actions for damages – Subject-matter – Claim for compensation in respect of damage caused by an investigation of the European Anti-Fraud Office (OLAF)

(Arts 235 EC and 236 EC)

3. European Anti-Fraud Office (OLAF) – Regulation No 1073/1999 concerning investigations conducted by the OLAF – Terms of internal investigations adopted by the Community institutions

(European Parliament and Council Regulation No 1073/1999, Art. 10(2) and (3); Commission Decision 1999/396, Art. 4)

4. Non-contractual liability – Conditions – Sufficiently serious breach of a rule of law conferring rights on individuals – Infringement of the obligation to inform the person concerned in the context of an investigation carried out by the European Anti-Fraud Office (OLAF) – Infringement of the duty first to inform the Supervisory Committee

(Art. 288, second para, EC; European Parliament and Council Regulation No 1073/1999, Art. 10(2) and (3); Commission Decision 1999/396, Art. 4; Internal Rules of the Supervisory Committee of the OLAF, Art. 2)

5. European Anti-Fraud Office (OLAF) – Regulation No 1073/1999 concerning investigations conducted by OLAF – Forwarding to national authorities of information obtained in an investigation

(European Parliament and Council Regulation No 1073/1999, Arts 4(5) and 10(2) and (3))

6. Officials – Actions – Actions for damages – Pleas in law – Actions seeking compensation for damage caused by an investigation of the European Anti-Fraud Office (OLAF)

(Staff Regulations, Art. 91; European Parliament and Council Regulation No 1073/1999, Art. 10(2))

7. Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link – Burden of proof on the applicant – Limits

(Art. 288, second para., EC)

8. Non-contractual liability – Conditions – Sufficiently serious breach of a rule of law conferring rights on individuals – Administration press release suggesting that an official is involved in irregularities without proof of his guilt

(Art. 288, second para, EC; European Parliament and Council Regulation No 1073/1999, Art. 8(2))

9. European Anti-Fraud Office (OLAF) – Regulation No 1073/1999 concerning investigations conducted by OLAF – Rights of the defence – Scope – Right of access to the investigation file – None save where the final report published

(Charter of Fundamental Rights of the European Union, Art. 41; European Parliament and Council Regulation No 1073/1999; Commission Decision 1999/396, Art. 4)

10. European Anti-Fraud Office (OLAF) – Regulation No 1073/1999 concerning investigations conducted by OLAF – Duration of procedure

(European Parliament and Council Regulation No 1073/1999, Arts 6(5) and 11(7))

11. European Anti-Fraud Office (OLAF) – Regulation No 1073/1999 concerning investigations conducted by OLAF – Confidentiality of investigations

(European Parliament and Council Regulation No 1073/1999, Art. 12)

12. Officials – Disciplinary measures – Disciplinary proceedings – Disciplinary and criminal proceedings conducted in parallel on the basis of the same facts

(Staff Regulations, Art. 88, fifth para.; Annex IX, Art. 7, second para.)

Summary

1. As a general rule, an institution is entitled to request that an internal document be removed from the file presented to a Community Court if the person who relies on it did not obtain it by proper means. An internal document is confidential by nature, unless the institution in which it originates agrees to disclose it. In certain situations, however, it is not necessary for the applicant to show that it obtained the confidential document relied on in support of its argument by lawful means; it needs to be considered, on the balance of the interests to be protected, whether particular circumstances, such as the decisive nature of the production of the internal document for the purposes of reviewing the lawfulness of the procedure leading to the adoption of the contested measure or of establishing the existence of a misuse of powers, constitute grounds for not removing a document.

(see paras 77, 79)

2. Claims for compensation in respect of material and non-material damage allegedly suffered by an official by reason of: (1) the way in which the European Anti-Fraud Office (OLAF) conducted and completed an investigation referring to him by name and publicly blames him for irregularities established well before a final decision by the competent national court; and (2) the way in which the Commission conducted itself in the context of that investigation, cannot be rejected as premature, with the effect of disallowing the official from submitting such a claim until after the final decision of the national judicial authorities. The possible result of national legal proceedings cannot affect the outcome before the Community judicature, since, in those claims for compensation, the matter at issue is not whether the facts of which the official is accused are established, or whether he made errors in the course of his employment, but to examine the way in which OLAF conducted its investigation and how the Commission conducted itself in that context, the damage allegedly suffered by the official being distinct from the damage that might be confirmed by a finding of not guilty by the national judicial authorities.

(see paras 90-91)

3. It is clear from the provisions of the first paragraph of Article 4 of Decision 1999/369 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 that the official concerned must be informed rapidly that he may be personally implicated, as long as this would not be harmful to the investigation, and that, in any event, conclusions referring by name to an official 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. Failure to apply those provisions, which lay down the conditions under which observance of the rights of defence of the official concerned may be reconciled with the requirements of confidentiality inherent in any investigation of that kind, constitutes an infringement of the essential procedural requirements applicable to the investigation procedure.

It is true that Article 4 of Decision 1999/396 does not expressly concern the forwarding of information which, by virtue of Article 10(2) and (3) of Regulation No 1073/1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF), OLAF may or must, in respect of external and internal investigations respectively, forward to the national judicial authorities and therefore does not impose any obligation to inform the official concerned before such information is forwarded. However, if such information contains ‘conclusions referring by name’ to the official concerned, the latter must, in principle, be informed and heard with respect to the facts concerning them.

However, that article provides for an exception 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. In such cases, the obligation to invite the official concerned to give his views may be deferred in agreement with the Secretary-General of the Commission. Thus, in order to defer informing the official concerned, the twofold condition consisting of the need to maintain absolute secrecy for the purpose of the investigation and the requirement to use investigative procedures falling within the remit of a national judicial authority must be satisfied. In addition, it is necessary to obtain the prior agreement of the Secretary-General of the Commission. 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. 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 can defer informing them only in truly exceptional cases 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.

(see paras 128-130, 133, 144-146, 151)

4. The rule of law that persons being investigated by the European Anti-Fraud Office (OLAF) must be informed and enabled to express their views on all the facts which concern them confers rights on individuals. Whilst Article 4 of Decision 1999/396 concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities’ interests does confer a margin of discretion on OLAF in cases necessitating the maintenance of absolute secrecy for the purposes of the investigation and requiring the use of investigation procedures falling within the remit of a national judicial authority, with the result that the obligation to invite the official concerned to give his views may be deferred in agreement with the Secretary-General of the Commission, as regards the procedures for adopting the decision to defer informing the officials concerned, and verifying the conditions for applying Article 4 of Decision 1999/396, OLAF has no discretion.

It follows that OLAF commits a sufficiently serious breach of a rule of law conferring rights on individuals where, by not referring to the implementation of such investigation procedures or seeking the agreement of the Secretary-General of the Commission in a timely manner to defer the mandatory invitation to the official concerned by the investigation to express his views, it does not observe either the terms or the conditions for the application of that exception.

That also applies to infringement of the obligation, imposed on OLAF by Article 11(7) of Regulation No 1073/1999 concerning investigations conducted by OLAF, to consult OLAF’s Supervisory Committee before forwarding information to national judicial authorities, which constitutes a sufficiently serious breach of a rule of law intended to confer rights on the persons concerned. Even if, under Article 11(1) of that regulation, the Supervisory Committee does not interfere with the conduct of investigations in progress, it does have the task of protecting the rights of persons who are the subject of investigations, since, pursuant to Article 2 of its Rules of Procedure, it is to ensure ‘that OLAF activities are conducted in full compliance with human rights and fundamental freedoms and in accordance with the Treaties and with secondary legislation, including the Protocol on the Privileges and Immunities of the European Communities and the Staff Regulations of officials’. Furthermore, Article 11(7) of Regulation No 1073/1999 provides that the obligation to inform the Supervisory Committee is unconditional and leaves OLAF no margin of discretion.

(see paras 146, 153-156, 164, 167-170)

5. The European Anti-Fraud Office (OLAF) is not required to inform the institution concerned by an internal investigation before the forwarding to the judicial authorities of the Member State concerned, pursuant to Article 10 of Regulation No 1073/1999, of information obtained liable to result in criminal proceedings. First, the forwarding to the institution concerned of information obtained during internal investigations, according to Article 10(3) of that regulation, is purely optional, and that article contains no requirement to inform the institution concerned at the same time as, or before, the information is forwarded to the national judicial authorities. Secondly, Article 4(5) of that regulation, which provides that the institution concerned must be informed, in the context of internal investigations, where the investigations reveal the possibility of personal involvement of one of its members, managers, officials or agents, prescribes no time-limit for providing that information. Furthermore, it contains an exception in cases requiring, at its discretion, absolute secrecy for the purposes of the investigation, whereby OLAF may defer informing the institution.

Finally, those provisions do not contain rules of law conferring rights on individuals which are enforced by the Community Courts.

(see paras 158-159, 162)

6. In a compensation action seeking reparation for the material and non-material damage allegedly suffered by an official by reason of the conduct and the conclusion of an investigation by the European Anti-Fraud Office (OLAF), a plea alleging influence exercised upon the national judicial authorities on the forwarding to them, under Article 10(2) of Regulation No 1073/1999, of information concerning the investigation, and according to which OLAF ‘steered’ those authorities by already characterising notified facts as criminal, is inoperative. 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 themselves to ascertain 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 domestic 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 paras 171-173)

7. In an action for damages, it is for the applicant to establish that the conditions on which the Community incurs non-contractual liability within the meaning of the second paragraph of Article 288 EC are satisfied. The strict application of that rule may be mitigated, however, where a harmful event may have been the result of a number of different causes and where the Community institution has adduced no evidence enabling it to be established to which of those causes the event was imputable, although it was best placed to provide evidence in that respect, so that the uncertainty which remains must be construed against it.

(see paras 182-183)

8. The principle of the presumption of innocence requires that a person charged with an offence be presumed innocent so long as his guilt has not been proved beyond all reasonable doubt in legal proceedings. However, an institution cannot be prevented from informing the public about investigations in progress opened by the European Anti-Fraud Office (OLAF) in relation to irregularities committed within that institution. It must, however, do so with all the necessary discretion and reserve, while striking a proper balance between the interests of the officials concerned and those of the institution.

An institution’s communication to the public of a press release, giving the public, or at least a part of the public, the impression that an official was involved in irregularities committed within that institution, whereas the culpability of the latter has not yet been proven, is not within the limits of what is justified in the interests of the service and constitutes a sufficiently serious breaches of the presumption of innocence, as the institution has no margin of discretion with respect to compliance with the obligation to respect that presumption.

Similarly, OLAF infringes the principle of the presumption of innocence where, during an investigation procedure against an official, it leaks to the press information reflecting the view that the official is guilty and encourages the public to believe in his guilt before a court has ruled in that respect. By such a leak, OLAF also breaches the obligation to maintain the confidentiality of investigations and, by provoking the disclosure in the press of sensitive elements of the investigations, acts against the interests of sound administration in so far as it enables the public at large to have access, during the investigation procedure, to confidential information of the administration. Those are sufficiently serious breaches of those rules of law, in so far as it is for OLAF to ensure that such leaks, which breach the fundamental rights of the persons concerned, such as the presumption of innocence, do not take place, as the administration has no margin of discretion with respect to compliance with that obligation.

(see paras 216-217, 219, 309-311, 314)

9. The European Anti-Fraud Office (OLAF) is under no obligation to grant a Community official who is alleged to be concerned by an internal investigation – before his appointing authority adopts a final decision adversely affecting him – access to the documents forming the subject-matter of such an investigation or to those drawn up by OLAF itself on that occasion; otherwise, the effectiveness and confidentiality of the mission entrusted to OLAF and OLAF’s independence could be undermined. In particular, the mere fact that part of a confidential investigation file appears to have been unlawfully communicated to the press does not in itself justify any derogation, in favour of the official alleged to be referred to, from the confidentiality of that file and of the investigation conducted by OLAF. Respect for the defence rights of the official in question is sufficiently ensured by Article 4 of Decision 1999/396, which does not require OLAF to grant access to those documents.

That approach is not inconsistent with respect for the right to good administration, provided for in Article 41 of the Charter of Fundamental Rights of the European Union, which states that that right includes the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy. Thus, access to OLAF’s investigation file before the adoption of its final report may be refused, according to that principle, where respect for confidentiality so requires.

Nor is OLAF required to grant access to the final report of the investigation. None of the obligations resulting from Article 4 of Decision 1999/396 is material to that question, and, moreover, regarding the principle of audi alteram partem , the existence of an illegality with regard to OLAF can be established only where the final report is published or in so far as it is followed by the adoption of an act adversely affecting the person concerned. If that report has been sent to the institution and the national judicial authorities concerned, it is for that institution and those authorities, where appropriate, to give the official concerned access to that report in accordance with their own procedural rules in so far as they intend to adopt a measure adversely affecting the official on the basis of the final report.

(see paras 255-260)

10. Even if Regulation No 1073/1999 does not prescribe any specific and binding period for the completion of investigations by the European Anti-Fraud Office (OLAF), the obligation to conduct administrative procedures within a reasonable time is a general principle of Community law which is enforced by the Community Courts and which, moreover, is set forth, as an element of the right to good administration, in Article 41(1) of the Charter of Fundamental Rights of the European Union. Therefore the procedure before OLAF cannot be extended beyond a reasonable time, which must be assessed by reference to the circumstances and the degree of complexity of the case.

Deficiencies in the administrative organisation of the Commission’s services in establishing OLAF, on account of which the officials concerned should not have to suffer, cannot in themselves justify long delays in carrying out the investigation procedures or constitute a ground for exempting the Commission from liability.

(see paras 272-274, 280-281)

11. It is true that, pursuant to the third subparagraph of Article 12(3) of Regulation No 1073/1999, the institutions are to ensure that the confidentiality of the investigations conducted by the European Anti-Fraud Office (OLAF) is respected, together with the legitimate rights of the persons concerned. However, that provision cannot be interpreted as placing the Commission under a general obligation to ensure that OLAF, which carries out its investigations in complete independence, respects confidentiality. That provision must be read together with the preceding subparagraph, which provides that the Director-General of OLAF is to report regularly to the institutions on the findings of those investigations, whilst respecting the same principles. Thus, it follows from Article 12 of Regulation No 1073/1999 that, where the Director-General of OLAF has communicated to the institutions, including the Commission, information concerning the investigations, those institutions must ensure the confidentiality of that information and the legitimate rights of the persons concerned when dealing with that information.

(see para. 299)

12. The fifth paragraph of Article 88 of the Staff Regulations, which precludes the appointing authority from taking a final decision on the administrative situation of the official concerned by ruling on acts forming the subject-matter of simultaneous criminal proceedings so long as the decision of the criminal court concerned has not become final, does not confer any discretion on that authority. That provision enshrines the principle that disciplinary proceedings arising out of a criminal offence must await the outcome of the criminal trial, a rule which is justified, in particular, by the fact that the national criminal courts have greater investigative powers than the appointing authority. Consequently, where the same facts may constitute both a criminal offence and a breach of the official’s obligations under the Staff Regulations, the administration is bound by the findings of fact made by the criminal court in the criminal proceedings. Once that court has established the existence of the facts of the case, the administration can then undertake the legal characterisation of those facts in the light of the concept of a disciplinary offence, ascertaining, in particular, whether they constitute breaches of obligations under the Staff Regulations.

(see paras 341-342)