ORDER OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

9 June 2004

Case T-96/03

Manel Camós Grau

v

Commission of the European Communities

(Investigation of the European Anti-Fraud Office (OLAF) concerning the management and financing of the Institute for European-Latin American Relations – Possible conflict of interests with regard to an investigator – Decision to remove the investigator from the team – Action for annulment – Preparatory measures – Inadmissibility)

Full text in French II - 0000

Application:         for, first, annulment of the decision of the European Anti-Fraud Office (OLAF) of 17 May 2002 to remove one of the investigators from the investigation concerning the Institute for European-Latin American Relations in order to avoid any apparent conflict of interests, without annulling the measures adopted by the investigator, and also the decision implicitly rejecting the applicant’s complaint of 29 July 2002 against that decision and, second, damages by way of compensation for the non-material damage and damage to his career allegedly sustained as a consequence of those decisions.

Held:         The application is dismissed as inadmissible. The parties are ordered to bear their own costs.

Summary

1.     Officials – Actions – Act adversely affecting an official – Preparatory measure – Internal investigation by the European Anti-Fraud Office (OLAF) – Decision refusing to call into question the measures adopted by an investigator while removing him from the inquiry team because of a possible conflict of interests – Inadmissibility

(Staff Regulations, Arts 90 and 91; Regulation No 1073/1999 of the European Parliament and of the Council, Art. 14; Commission Decision 1999/396, Art. 4)

2.     Officials – Actions – Act adversely affecting an official – Decision rejecting a complaint – Pure and simple rejection – Confirmation of act adversely affecting the applicant – Action inadmissible

(Staff Regulations, Art. 91(1))

3.     Officials – Actions – Claim for compensation related to a claim for annulment – Inadmissibility of claim for annulment resulting in inadmissibility of claim for compensation

(Staff Regulations, Arts 90 and 91)

1.     The provisions of 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 lay down the conditions under which observance of the rights of the defence of the official concerned may be reconciled with the requirements of confidentiality inherent in any investigation of that kind. Failure to apply those provisions therefore constitutes an infringement of the essential procedural requirements applicable to the investigation procedure. However, the consequence of those provisions is not that the preparatory or interim measures which, for that official, are constituted by the opening and conducting of an internal investigation, may be the subject of a separate action, different from that which the party concerned is entitled to bring against the authority’s final decision. If an action is brought against the final decision, the official concerned may rely on any infringement of the essential procedural requirements which, in his view, marred the investigation procedure.

More particularly, a decision to withdraw an investigator from the investigation team because of a potential conflict of interests, but without calling into question the measures already adopted by that investigator, merely constitutes an interim measure which cannot be the subject of a separate action. Furthermore, that decision is not a measure that can be separated from the investigation procedure and that would form part of a different procedure. The reference in Article 14 of Regulation No 1073/1999 concerning investigations carried out by the European Anti-Fraud Office (OLAF) to the provisions of the Staff Regulations concerning complaints and appeals by officials does not mean that there is a procedure which is separate from the investigation, but is intended to make certain provisions of the Staff Regulations concerning legal remedies applicable to disputes relating to acts of OLAF adversely affecting those concerned, as it expressly states. That reference cannot, in any event, make it possible for acts which do not adversely affect the officials concerned to be brought before the Court.

(see paras 32-33, 35-37)

See: C‑471/02 P (R) Gómez-Reino v Commission [2003] ECR I‑3207, paras 63, 64 and 65

2.     Every decision purely and simply rejecting a complaint, whether it be express or implied, only confirms the act or failure to act to which the complainant takes exception and is not, by itself, a decision which may be challenged.

(see para. 40)

See: 371/87 Progoulis v Commission [1988] ECR 3081, para. 17 and the case-law cited

3.     In actions brought by officials, a claim for compensation must be rejected where it is closely related to a claim for annulment which has itself been rejected as inadmissible.

(see para. 44)

See: T-72/92 Benzler v Commission [1993] ECR II‑347, para. 21 and the case-law cited