Keywords
Summary

Keywords

1. Officials – Actions – Acts adversely affecting an official – Meaning – Measures producing binding legal effects

(Art. 230 EC; European Parliament and Council Regulation No 1073/1999, Art. 9)

2. Officials – Actions for damages – Purpose

(Arts 235 EC, 236 EC and 288 EC; Staff Regulations, Arts 90, 90a and 91; European Parliament and Council Regulation No 1073/1999, Art. 14)

3. Actions for damages – Independent of actions for annulment

(Arts 230, fourth para., EC, 235 EC and 288, second para., EC)

4. Non-contractual liability – Conditions

(Art. 288, second para., EC)

Summary

1. Measures the legal effects of which are binding on and capable of affecting the interests of the applicant by bringing about a distinct change in his legal position are acts or decisions which may be the subject of an action for annulment in terms of Article 230 EC.

That does not apply to a report drawn up by the European Anti-Fraud Office (OLAF) terminating an investigation. Such a report, which does not bring about a distinct change in the legal position of those persons who are referred to in it by name, may not be the subject of an action for annulment brought by those persons. It is true that such a report, which is a completed document, adopted at the end of an autonomous administrative procedure by a service having functional independence, cannot, on that ground, be categorised as a measure preparatory to administrative or judicial proceedings liable to be initiated pursuant to it but which may equally well be initiated at the same time as or before OLAF is involved. However, it has no binding legal effects, because, while it may recommend to the competent authorities of the Member States and the Community institutions that measures be adopted having binding legal effects adversely affecting the persons concerned, its conclusions and recommendations impose no obligation, even of a procedural nature, on those authorities, who are free to decide what action to take pursuant to a final 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 the report recommended that legal or disciplinary proceedings be instigated.

The status of an act adversely affecting the applicant cannot be conferred on such a report by the fact that such a report may be vitiated by procedural irregularities and infringements of essential procedural requirements, since a challenge lies against such failures only in support of an action directed against a previous challengeable act, to the extent that they have influenced its content, and not independently, in the absence of such an act, or by the fact, which is capable of causing harm, that the report may affect the non-material interests of the persons referred to in it by name or, finally, by the fact that it has been adopted, under the authority of the Director, by an act of OLAF.

(see paras 47-51, 55-57)

2. Prior to the entry into force on 1 May 2004 of the new Article 90a of the Staff Regulations, an Article 90a which allows an official to submit a request within the meaning of Article 90(1) of the Staff Regulations to the Director of the European Anti-Fraud Office (OLAF), asking him to take a decision relating to him in connection with an investigation by that Office and since Article 14 of Regulation No 1073/1999 concerning investigations conducted by OLAF is silent on the point, it was not necessary to have regard to the rules set out in the Staff Regulations governing an action for damages brought by an official against the Commission and seeking compensation for damage allegedly caused by a report of that Office, so that the official in question was therefore not obliged to follow the procedure laid down under Article 90 of the Staff Regulations in order to submit such a request for damages.

(see paras 70-71)

3. The action for damages is an independent form of action, with a particular function to fulfil within the system of legal remedies and subject to conditions for its use conceived with a view to its specific purpose. Thus, the inadmissibility of an action for annulment of a report by the European Anti-Fraud Office (OLAF) terminating an investigation, since it relates to the nature of the report, which is not an act adversely affecting the applicant, does not entail the inadmissibility of an action for damages seeking to obtain compensation in respect of a number of heads of claim linked to the drawing up and the adoption of the report, which were vitiated by irregularities and were at the same time unlawful.

Individuals who, by reason of the conditions as to admissibility laid down under the fourth paragraph of Article 230 EC, cannot contest directly certain Community acts or measures, none the less have the opportunity of putting in issue conduct lacking the features of a decision, which accordingly cannot be challenged by way of an action for annulment, by bringing an action for non-contractual liability under Article 235 EC and the second paragraph of Article 288 EC, where such conduct is of such a nature as to entail liability for the Community. In an action for damages of that kind, it is open to them to put forward unlawful acts which have been committed when an administrative report is drawn up and adopted, even though that report is not a decision directly affecting the rights of the persons mentioned therein.

(see paras 77-80)

4. As regards the liability of the Community for damage caused to an individual by a breach of Community law for which a Community institution or organ is responsible, a right to reparation is conferred where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the author of the act and the damage sustained by the injured parties.

In that regard, the requirement of impartiality, to which the institutions are subject in carrying out investigative tasks of the kind which are entrusted to the European Anti-Fraud Office (OLAF), constitutes a rule which is intended to confer rights on individuals.

A fault capable of giving rise to liability on the part of the Community arises where there is a serious and manifest breach by OLAF of the requirement of impartiality resulting, in the present case, in the existence of a conflict of interest on the part of an investigator who had exercised a decisive influence in the conduct of the investigation, the one-sided and biased orientation of which led, in the final report, to an erroneous appraisal of the precise responsibility of the relevant services of the institution and, accordingly, of their members, with no consequence being drawn by OLAF in the content of the report from its decision to remove the investigator from the investigation.

(see paras 100, 102, 125, 127-128, 131, 140-141)