Case C‑363/22 P

Planistat Europe
and
Hervé-Patrick Charlot

European Commission

Judgment of the Court (Fifth Chamber) of 11 January 2024

(Appeal – Second paragraph of Article 340 TFEU – Non-contractual liability of the European Union – Regulation (EC) No 1073/1999 – Investigations conducted by the European Anti-Fraud Office (OLAF) – External investigation by OLAF – ‘Eurostat’ case – Forwarding by OLAF of information concerning matters liable to result in criminal proceedings to the national judicial authorities before the conclusion of the investigation – Filing of a complaint by the European Commission before the conclusion of the OLAF investigation – National criminal proceedings – Ruling that there is no need to adjudicate which has become final – Concept of a ‘sufficiently serious breach’ of a rule of EU law intended to confer rights on individuals – Material and non-material damage allegedly suffered by the appellants – Actions for damages)

Non-contractual liability – Conditions – Unlawfulness – Sufficiently serious breach of a rule of law intended to confer rights on individuals – Rule of law intended to confer rights on individuals – Concept – Right to sound administration and duty of care – Forwarding by the European Anti-Fraud Office (OLAF) of information concerning matters liable to result in criminal proceedings to the national judicial authorities before the conclusion of the OLAF investigation – Failure by the General Court to verify the credibility and content of the information – Failure by the General Court to verify the intention with which that information was forwarded with a view to the opening of a judicial investigation – Error of law

(Art. 340, second para., TFEU; Charter of Fundamental Rights of the European Union, Art. 41; European Parliament and Council Regulation No 1073/1999, recitals 1, 5, 10 and 13 and Arts 9 and 10)

(see paragraphs 66-80, 93, 94)
Appeal – Appeal upheld – Judgment to be given on the substance by the appeal court – Condition – State of the proceedings which permits final judgment to be given – Absence – Referral of the case back to the General Court

(Statute of the Court of Justice, Art. 61, first para.)

(see paragraph 95)

Résumé

By upholding in part the appeal brought by Planistat Europe SARL and Mr Charlot (‘the appellants’) against the judgment of the General Court in Planistat Europe and Charlot v Commission ( 1 ) (‘the judgment under appeal’), the Court of Justice rules, inter alia, on the scope of the judicial review to be carried out by the General Court in the context of an action to establish non-contractual liability, based on the second paragraph of Article 340 TFEU, first, where the European Anti-Fraud Office (OLAF) forwarded information to the national judicial authorities pursuant to Regulation No 1073/1999 ( 2 ) and allegedly made false accusations, whereas the national courts subsequently dismissed the proceedings against the persons concerned and, secondly, where the European Commission lodged a complaint with an application to join the proceedings as a civil party.

In 1996, the Statistical Office of the European Communities (Eurostat) created a network of sales outlets for statistical information (datashops). In the Member States, those datashops, which lack legal personality, were in principle integrated within the national statistical institutes, with the exception of Belgium, Spain and Luxembourg where they were managed by commercial companies. From 1996 to 1999, Planistat Europe, directed by Mr Charlot, benefited from framework contracts signed with Eurostat for various services including, in particular, the supply of staff within the datashops. From 1 January 2000, Planistat Europe was entrusted with the management of the datashops in Brussels (Belgium), Madrid (Spain) and Luxembourg (Luxembourg).

In September 1999, the Eurostat Internal Audit Service issued a report finding irregularities in Planistat Europe’s management of the datashops. On 17 March 2000, the Commission forwarded that report to OLAF. On 18 March 2003, following an internal investigation, OLAF decided to open an external investigation concerning Planistat Europe and, the following day, forwarded to the French judicial authorities information relating to matters liable, in its view, to be characterised as criminal in the context of the ongoing investigation (‘the note of 19 March 2003’). On that basis, on 4 April 2003, the public prosecutor in Paris (France) opened an investigation file before the investigating judge of the tribunal de grande instance de Paris (Regional Court, Paris, France) in relation to the offences of misappropriation and complicity in breach of trust. That forwarding of information was mentioned in the press in May 2003.

The Commission and OLAF subsequently issued several press releases, only two of which mentioned Planistat Europe. Thus, the press release of 9 July 2003 made reference to Planistat Europe for the first time, whereas, in the press release of 23 July 2003, the Commission confirmed its decision to terminate the contracts concluded with Planistat Europe. On 10 July 2003, the Commission filed a complaint against X with the public prosecutor in Paris for breach of trust and all other offences that could be inferred from the facts set out in that complaint and applied to join the proceedings as a civil party. On 10 September 2003, Mr Charlot was put under investigation for breach of trust and misappropriation. On 23 July 2003, the Commission terminated the contracts concluded with Planistat Europe. On 25 September 2003, OLAF closed both the internal investigation and the external investigation.

On 9 September 2013, the investigating judge of the tribunal de grande instance de Paris (Regional Court, Paris) made an order dismissing the proceedings against all the persons under investigation before the French judicial authorities. The Commission lodged an appeal against that order. By judgment of 23 June 2014, the cour d’appel de Paris (Court of Appeal, Paris, France) dismissed the Commission’s appeal against that order and upheld the dismissal order. By judgment of 15 June 2016, the Cour de cassation (Court of Cassation, France) dismissed the Commission’s appeal against the judgment of the cour d’appel de Paris (Court of Appeal, Paris), thereby bringing the legal proceedings to an end.

On 10 September 2020, the appellants sent the Commission a letter of formal notice calling on it to pay them a sum of money by way of compensation for the damage allegedly suffered as a result, inter alia, of the complaint filed by the Commission and the press releases issued in that regard. On 15 October 2020, the Commission rejected that request, finding that the conditions for the European Union to incur non-contractual liability were not satisfied.

The appellants then brought an action before the General Court under Article 268 TFEU seeking compensation, first, for the non-material damage suffered by Mr Charlot as a result of OLAF’s forwarding to the national authorities of the note of 19 March 2003 and of the complaint lodged by the Commission before those authorities before the OLAF investigation had been closed and, secondly, for the material damage resulting from the termination of the contracts concluded between Planistat Europe and the Commission. In support of that action, the appellants submitted that OLAF and the Commission had, inter alia, infringed the principle of good administration, as enshrined in the Charter of Fundamental Rights of the European Union (‘the Charter’). According to the appellants, the wrongful acts committed by OLAF and the Commission had a direct causal link with the non-material and material damage for which they sought compensation. By the judgment under appeal, the General Court dismissed their action as inadmissible on account of the five-year limitation period laid down in Article 46 of the Statute of the Court of Justice in so far as that action sought compensation for the material damage and non-material damage resulting from the media coverage of Mr Charlot’s name. As to the remainder, the General Court dismissed that action as unfounded in so far as it sought compensation for the non-material damage resulting from the criminal proceedings brought against Mr Charlot before the French judicial authorities. The appellants then brought an appeal before the Court of Justice.

Findings of the Court

After rejecting the appellants’ arguments seeking to call into question the General Court’s application of the rules on limitation periods, the Court of Justice notes, as regards the compensation sought for the non-material damage resulting from the criminal proceedings brought before the French judicial authorities, that the conditions that must be satisfied in order for the European Union to incur non-contractual liability under the second paragraph of Article 340 TFEU include the requirement of a sufficiently serious breach of a rule of law intended to confer rights on individuals. That requirement is satisfied where the institution concerned manifestly and gravely disregarded the limits set on its discretion. The factors to be taken into consideration in that connection are the degree of clarity and precision of the rule breached and the measure of discretion left by that rule to the EU authorities. The right to good administration, enshrined in Article 41 of the Charter, includes a duty of care on the part of the EU administration, which must act with care and caution, and failure to comply with that obligation constitutes a breach of a rule of law intended to confer rights on individuals.

As regards, more specifically, the implications of the principle of good administration and of the duty of care inherent therein, with respect to the possibility for OLAF to forward information to the national judicial authorities, it is apparent from Article 10(1) of Regulation No 1073/1999 that ‘[OLAF] may at any time forward to the competent authorities of the Member States concerned information obtained in the course of external investigations’. It is also apparent from recital 1 of that regulation that that power must be exercised in the light of the objectives of protecting the financial interests of the European Union and combating fraud and any other illegal activities detrimental to the financial interests of the European Union.

In addition, according to recital 5 of that regulation, OLAF’s responsibility extends beyond the protection of financial interests to include all activities relating to safeguarding EU interests against irregular conduct liable to result in administrative or criminal proceedings. It is therefore in order to achieve those objectives that OLAF carries out internal and external investigations, the results of which are, according to Article 9 of that regulation, presented in an investigation report sent to the competent authorities of the Member States, in the case of an external investigation, or to the institution, body, office or agency concerned, in the case of an internal investigation, in accordance with paragraphs 3 and 4 of that article.

In that regard, the Court notes that, in accordance with Article 9(2) of Regulation No 1073/1999, reports drawn up by OLAF ‘shall constitute admissible evidence in administrative or judicial proceedings of the Member State in which their use proves necessary, in the same way and under the same conditions as administrative reports drawn up by national administrative inspectors’. It follows, as confirmed by recital 13 of Regulation No 1073/1999, that the findings of an OLAF investigation set out in a final report do not lead automatically to the initiation of judicial proceedings, since the competent authorities are free to decide what action to take pursuant to that report and are accordingly the only authorities having the power to adopt decisions capable of affecting the legal position of those persons in relation to which that report recommended that such proceedings be instigated. The material supplied by OLAF may be supplemented and verified by the national authorities, which have a wider range of investigative powers than OLAF.

The Court therefore concludes from this that, while it is indeed true that OLAF has not only the power, but also the obligation to forward to the competent national authorities, including judicial authorities, even before the closure of its investigation and the drafting of the final report, any relevant information that may justify the adoption of measures by those authorities, including the opening of a criminal investigation, the fact remains that when it takes the decision to forward such information, OLAF must take account of its duty of care and exercise a certain degree of caution, since OLAF does not act as an ‘ordinary whistle-blower’, but as an office vested with powers of investigation, and such forwarding of information takes place between two authorities with such powers. That is all the more so since bringing the matter before the national authorities may serve as a basis for the initiation of civil and criminal judicial proceedings.

It follows that, in order to comply with its duty of care, OLAF must, before forwarding information to the national authorities under Regulation No 1073/1999, ensure, in accordance with recital 10 of that regulation, that the information in question is sufficiently plausible and credible to justify the adoption, by those authorities, of measures falling within their competence, including, as the case may be, the opening of a judicial investigation. It follows that where, as in the present case, the General Court is called upon to determine whether OLAF has complied with its duty of care as regards the forwarding of information to the national authorities, it must verify that, at the time of that forwarding, OLAF had more than a mere suspicion, without however requiring established proof which no longer requires any investigation.

Accordingly, in the present case, the Court considers that it was for the General Court, first, to verify the credibility and content of the information or material in the note of 19 March 2003 and the intention with which that information or that material was forwarded to the French judicial authorities and, secondly, to determine whether that information or material could justify the opening of a judicial investigation or constitute evidence relevant to such an investigation. To that end, it was for the General Court to establish whether OLAF had sufficiently precise material evidence showing that there were plausible reasons to consider that the information forwarded concerned matters liable to be characterised as criminal.

Taking the view that the General Court did not verify either the credibility and content of the information or the material in the note of 19 March 2003, the intention with which that information or that material was forwarded to the French judicial authorities, or whether that information or that material could justify the opening of a judicial investigation or constitute evidence relevant to such an investigation, the Court of Justice holds that, to that extent, the General Court erred in law. Furthermore, it holds that the General Court erred in law when it rejected as ineffective the appellants’ arguments alleging that OLAF and the Commission made false accusations.

Accordingly, the Court of Justice sets aside the judgment under appeal in so far as, by that judgment, the General Court rejected the appellants’ action, to the extent that it sought compensation for the non-material damage allegedly suffered by Mr Charlot as a result of the criminal proceedings initiated against him before the French judicial authorities. The Court of Justice dismisses the appeal as to the remainder.

Noting that, in the judgment under appeal, the General Court concluded that there was no sufficiently serious breach of a rule of EU law, without going on to examine the other conditions which must all be met in order for the European Union to incur non-contractual liability, the Court of Justice considers, in those circumstances, that the state of the proceedings in the present dispute does not permit final judgment to be given.

Consequently, it refers the case back to the General Court, so that it may carry out a new examination of the possible existence of a sufficiently serious breach of a rule of EU law to incur the European Union’s non-contractual liability. If that examination shows that there is such a breach, the General Court will have the task of examining the other conditions which must be met in order for the European Union to incur non-contractual liability.

( 1 ) Judgment of 6 April 2022, Planistat Europe and Charlot v Commission (T‑735/20, EU:T:2022:220).

( 2 ) 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).