delivered on 27 January 2021 (1)

Case C‑591/19 P

(Appeal – Former official of the European Commission – Investigation by the European Anti-fraud Office (OLAF) – Forwarding to the national judicial authorities of information relating to matters liable to lead to criminal proceedings – Article 4 of Decision 1999/396/EC, ECSC, Euratom – Obligation to inform and hear the interested party – Article 9(4) of Regulation (EC) No 1073/1999 – Commission’s right to file a complaint and to apply to join the proceedings before the national judicial authorities as a civil party – Harm alleged to have been sustained as a result of OLAF’s and the Commission’s conduct during the proceedings – Action for damages – Causal link)

I.Introduction

1.By its appeal, the European Commission seeks to have set aside the judgment of the General Court of the European Union of 11 June 2019, De Esteban Alonso v Commission (T‑138/18, EU:T:2019:398; ‘the judgment under appeal’), whereby the General Court ordered the Commission to pay Mr Fernando De Esteban Alonso (‘the applicant’) the sum of EUR 62000 as compensation for the non-material damage which he had suffered as a result of the unlawful conduct of the European Anti-Fraud Office (OLAF) and the Commission, in the context of the forwarding of information to national judicial authorities and national criminal proceedings initiated against him.

2.The present appeal provides the Court with the opportunity to rule, for the first time, on the scope of Article 4 of Decision 1999/396/EC, ECSC, Euratom, (2) as regards the communication by OLAF of information relating to an investigation to the national judicial authorities before that investigation has been completed and, in addition, on the scope of Article 9(4) of Regulation (EC) No 1073/1999 (3) as regards the Commission’s involvement in criminal proceedings before the investigation by OLAF has been completed. (4)

II.Legal framework

3.OLAF, established by Commission Decision 1999/352/EC, ECSC, Euratom of 28 April 1999, (5) is responsible, inter alia, pursuant to Article 2 of that decision, for carrying out administrative investigations within the institutions intended to combat fraud, corruption and any other illegal activity adversely affecting the EU’s financial interests and for investigating serious facts linked to the performance of professional activities which may constitute a breach of obligations by officials and servants of the Union likely to lead to disciplinary and, in appropriate cases, criminal proceedings.

4.Regulation No 1073/1999 governs the checks, inspections and other measures undertaken by employees of OLAF in the performance of their duties. The investigations carried out by OLAF consist in ‘external’ investigations (outside the EU institutions) and ‘internal’ investigations (within the institutions). That regulation, which was applicable <i>ratione temporis</i> to the facts of the present case, was repealed by Regulation No 883/2013.

5.Recital 10 of Regulation No 1073/1999 provided:

‘Whereas these investigations must be conducted in accordance with the Treaty and in particular with … Protocol [(No 7)] on the privileges and immunities of the [European Union], while respecting the Staff Regulations of officials and the conditions of employment of other servants … and with full respect for human rights and fundamental freedoms, in particular, the principle of fairness, for the right of persons involved to express their views on the facts concerning them and for the principle that the conclusions of an investigation may be based solely on elements which have evidential value; whereas to that end the institutions, bodies, offices and agencies must lay down the terms and conditions under which such internal investigations are conducted; whereas consequently the Staff Regulations should be amended in order to lay down the rights and obligations of officials and other servants as regards internal investigations’.

6.Article 4 of that regulation, entitled ‘Internal investigations’, was worded as follows, in paragraphs 1 and 5:

‘1. In the areas referred to in Article 1, [OLAF] shall carry out administrative investigations within the institutions, bodies, offices and agencies …

These internal investigations shall be carried out subject to the rules of the Treaties, in particular … Protocol [(No 7)] on privileges and immunities of the European Communities, and with due regard for the Staff Regulations under the conditions and in accordance with the procedures provided for in this Regulation and in decisions adopted by each institution, body, office and agency. The institutions shall consult each other on the rules to be laid down by such decisions.

…

In cases requiring absolute secrecy for the purposes of the investigation or requiring recourse to means of investigation falling within the competence of a national judicial authority, the provision of such information may be deferred.’

7.Article 9 of that regulation, entitled ‘Investigation report and action taken following investigations’, provided:

‘1. On completion of an investigation carried out by [OLAF], the latter shall draw up a report, under the authority of the Director, specifying the facts established, the financial loss, if any, and the findings of the investigation, including the recommendations of the Director of [OLAF] on the action that should be taken.

3. Reports drawn up following an external investigation and any useful related documents shall be sent to the competent authorities of the Member States in question in accordance with the rules relating to external investigations.

4. Reports drawn up following an internal investigation and any useful related documents shall be sent to the institution, body, office or agency concerned. The institution, body, office or agency shall take such action, in particular disciplinary or legal, on the internal investigations, as the results of those investigations warrant, and shall report thereon to the Director of [OLAF], within a deadline laid down by him in the findings of his report.’

8.Article 10 of that regulation, entitled ‘Forwarding of information by [OLAF]’, stated:

‘1. Without prejudice to Articles 8, 9 and 11 of this Regulation and to the provisions of Regulation (Euratom, EC) No 2185/96, [OLAF] may at any time forward to the competent authorities of the Member States concerned information obtained in the course of external investigations.

3. Without prejudice to Articles 8 and 9 of this Regulation, [OLAF] may at any time forward to the institution, body, office or agency concerned the information obtained in the course of internal investigations.’

B.Decision 1999/396

9.Decision 1999/396 sets out, in Article 4, the procedure for informing the interested party in the context of internal investigations carried out by OLAF, in the following terms:

‘Where the possible implication of a Member, official or servant of the Commission emerges, the interested party shall be informed rapidly as long as this would not be harmful to the investigation. In any event, conclusions referring by name to a Member, official or servant 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.

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, compliance with the obligation to invite the Member, official or servant of the Commission to give his views may be deferred in agreement with the President of the Commission or its Secretary-General respectively.’

III.Background to the dispute

10.The applicant is a former official of the Commission who, inter alia, served as Director of the ‘Information technology, Publications and External Relations’ Directorate at the Statistical Office of the European Union (‘Eurostat’), from 1 January 1993 until 31 January 1997, before being appointed to another post at the Commission.

11.In order to distribute statistical data, Eurostat relied on the Publications Office of the European Communities (OPOCE), which in 1996 had set up a network of sales outlets called ‘datashops’. The relationships between Eurostat, OPOCE and each datashop were organised by financial agreements. When a Eurostat internal audit in September 1999 found irregularities in the financial management and led to suspicions of misappropriation of funds, OLAF was informed on 17 March 2000 and opened a number of investigations.

12.In one of those investigations, concerning the ‘Eurostat-Datashop-Planistat’ case, the Director-General of OLAF forwarded to the French judicial authorities, in a note dated 19 March 2003, information relating to matters liable to be characterised as criminal (‘the note of 19 March 2003’). That note referred by name to Mr Franchet, the Director-General of Eurostat at the time of the facts at issue and as at the date of that note, and Mr Byk, a Head of Unit at Eurostat at the time of those facts who had become Director of Eurostat by the date of that note. The applicant was not mentioned in the note.

13.On 4 April 2003, the public prosecutor at the Tribunal de grande instance de Paris (Regional Court, Paris, France) opened an investigation file in relation to the offences of misappropriation and complicity in breach of trust. On 3 April 2003, the Director-General of OLAF sent a summary note for the attention of the Secretary-General of the Commission concerning the ongoing investigations relating to Eurostat. On 10 July 2003, the Commission filed a complaint against X and applied to join the proceedings as a civil party.

14.On 25 September 2003, OLAF delivered its final report in the ‘Eurostat-Datashop-Planistat’ case, which was forwarded to the French judicial authorities. The applicant was not named in that report either.

15.On 29 January 2004, in answer to a request from the French public prosecutor, the Commission authorised the waiving of the applicant’s immunity, in accordance with the second paragraph of Article 17 of the Protocol on privileges and immunities. The applicant was not informed. The Commission subsequently initiated disciplinary proceedings against the applicant.

16.On 9 September 2008, following his hearing, to which he had been called as a witness by the French criminal investigation police, the applicant was taken into custody and, on the following day, was placed under formal investigation for breach of trust.

17.On 9 September 2013, the investigating judge of the Tribunal de grande instance de Paris (Regional Court, Paris) made an order (‘the dismissal order’) dismissing the proceedings against all the persons under investigation, including the applicant. The Commission, as a civil party, lodged an appeal against that order, which was dismissed by the Cour d’appel de Paris (Court of Appeal, Paris, France) by judgment of 23 June 2014, and subsequently lodged an appeal in cassation against that judgment; the Cour de cassation (Court of Cassation, France) dismissed that appeal by judgment of 15 June 2016.

18.On 15 September 2008, and then on 12 December 2013, the applicant submitted requests for assistance based on Article 24 of the Staff Regulations, which the Commission refused. In response to the second refusal, the applicant first lodged a complaint, which was rejected by the appointing authority, and then brought an action, which was dismissed by the European Union Civil Service Tribunal by order of 15 July 2015, (9) which, on appeal, was upheld by the General Court by judgment of 9 September 2016. (10)

19.On 22 December 2016, the applicant lodged a claim, under Article 90(1) of the Staff Regulations, for compensation for the damage sustained as a result of OLAF’s and the Commission’s conduct. The appointing authority dismissed that claim as unfounded and the applicant lodged a complaint against the decision to dismiss his claim. By decision of 29 November 2017, the appointing authority rejected that complaint as unfounded.

IV.The procedure before the General Court and the judgment under appeal

20.By document lodged at the Registry of the General Court on 28 February 2018, the applicant brought an action under Article 270 TFEU for compensation for the non-material, physical and material harm which he claimed to have sustained as a result of errors made by OLAF and the Commission, on the grounds, first, that he had not been heard before the evidence against him was forwarded to the French authorities and, second, that the Commission continued the criminal proceedings against him without proper justification. That harm amounted, according to the applicant, to EUR 1102 291.68, plus EUR 3000 by way of non-recoverable costs and expenses.

21.By the judgment under appeal, the General Court found that the three conditions on which the liability of the Union depends, namely the unlawfulness of the alleged conduct of the institutions, the actual harm suffered and the existence of a causal link between the conduct and the alleged harm were satisfied. It therefore upheld the applicant’s claim in part and ordered the Commission to pay him the sum of EUR 62000 by way of compensation for the non-material harm which he sustained as a result of the unlawful conduct of the Commission and OLAF.

22.As regards, specifically, the unlawful nature of OLAF’s and the Commission’s conduct, the General Court stated, as a preliminary point, that where the European Union acts as employer, it is subject to increased liability, in the form of the duty to make reparation for damage caused to its staff by any unlawful act committed in its role as employer. (11) In the first place, the General Court concluded that OLAF infringed the first paragraph of Article 4 of Decision 1999/396 and the applicant’s rights of defence when it forwarded the ‘Eurostat-Datashop-Planistat’ file to the French judicial authorities (12)

or, at least, failed to comply with its obligation to inform the applicant in accordance with that provision. (13) In view of the position which the applicant held at the material time, he should have been ‘treated in the same way’ as the persons ‘referred to by name’ in the conclusions drawn upon completion of the investigation carried out by OLAF, (14) or, in any event, he should have been regarded as being implicated in the matters that had given rise to that investigation and, accordingly, informed rapidly, within the meaning of the first sentence of the first paragraph of Article 4 of that decision. (15)

As regards the non-material damage sustained by the applicant, and the causal link between the infringements found and that damage, in the first place, the General Court concluded that the fact that the Commission had joined the proceedings as a civil party and had filed complaints before the French courts before OLAF’s investigation had been completed had harmed the applicant’s honour and his professional reputation and that that harm was a direct result of the Commission’s conduct. (17) In the second place, the General Court concluded that the fact that OLAF had forwarded to the French judicial authorities the note of 19 March 2003 implicating the applicant without having heard him or, at the very least, informed him had caused him non-material harm because he had been unable to express his views or to defend himself in relation to the facts that had led to the proceedings against him and that that harm resulted from OLAF’s unlawful conduct. (18)

V.The procedure before the Court of Justice and the forms of order sought

24.On 1 August 2019, the Commission lodged an appeal against the judgment under appeal. It claims that the Court should set aside the judgment under appeal and dismiss the action at first instance, and order the applicant to pay the costs of both sets of proceedings.

25.The applicant contends that the Court should dismiss the appeal and, in the alternative, uphold in its entirety the claim which he submitted before the General Court (19) and order the Commission to pay the costs of both sets of proceedings.

VI.Analysis

26.In support of its appeal, the Commission relies on three grounds of appeal: the first alleges an incorrect legal characterisation of the facts in the light of Article 4 of Decision 1999/396; the second alleges an error of law in the interpretation of Article 9(4) of Regulation No 1073/1999; and the third, which is submitted in the alternative, alleges that there is no causal link between the conduct and the harm relied on.

27.As a preliminary point, it should be observed that, according to settled case-law, the European Union may incur liability only if a number of conditions are fulfilled relating to the illegality of the conduct of the institutions that is complained of, the fact of damage and the existence of a causal link between the conduct and the damage relied on. (20) The cumulative nature of those conditions means that, where one of them is not satisfied, the non-contractual liability of the Union cannot be incurred. (21)

28.As regards, specifically, the condition relating to what is alleged to be the unlawful conduct of the institution, agency or body concerned, in the judgment under appeal, the General Court correctly stated that, in accordance with the settled case-law of the General Court, (22) where the Union acts as employer, it is subject to increased liability in the form of the duty to make reparation for damage caused to its staff by any unlawful act committed in its role as employer, (23) without there being any need to consider whether the act in question constitutes a sufficiently serious breach of a rule of law intended to confer rights on individuals. (24) That assertion has not been contested in the present case.

29.The condition relating to a causal link concerns a sufficiently direct causal nexus between the conduct of the EU institutions and the damage, the burden of proof of which rests on the applicant, so that the conduct complained of must be the determining cause of the damage. (25)

30.It is in the light of those considerations that I must examine the three grounds of appeal, concerning, first, the unlawful nature of OLAF’s conduct in the light of Article 4 of Decision 1999/396; second, the unlawfulness of the Commission’s conduct in the light of Article 9(4) of Regulation No 1073/1999; and, third, the causal link between that conduct and the non-material harm recognised by the General Court.

A.First ground of appeal: incorrect legal characterisation of the facts in the light of Article 4 of Decision 1999/396

31.By its first ground of appeal, the Commission takes issue with the General Court for having erred in law by regarding the applicant as being ‘implicated’ or ‘referred to by name’, within the meaning of the first paragraph of Article 4 of Decision 1999/396. The applicant replies that, although he was not ‘referred to by name’ in the conclusions of OLAF’s report, he appeared to be ‘implicated’ in the note of 19 March 2003, since it was after the forwarding of that note, which contained an implicit reference to him, and on the basis of the information contained in it, that the public prosecutor at the Tribunal de grande instance de Paris (Regional Court, Paris) had opened the investigation file referring to him by name.

32.In order to examine this plea, it is appropriate to address, by way of preliminary point, the interpretation of the first paragraph of Article 4 of Decision 1999/396 and then to examine the General Court’s findings that the applicant (i) was to be treated in the same way as a person ‘referred to by name’ in the ‘conclusions … drawn once the investigation has been completed’, within the meaning of the second sentence of that provision, and (ii) was in any event ‘implicated’ in the matters that had given rise to OLAF’s investigation and should therefore have been ‘informed rapidly’, within the meaning of the first sentence of that provision.

1.The interpretation of the first paragraph of Article 4 of Decision 1999/396

33.The first paragraph of Article 4 of Decision 1999/396, which lays down the procedure for informing the interested parties in OLAF’s internal investigations, provides, inter alia, that where, in the course of an investigation, the ‘implication’ of an official emerges, the interested party is to be informed rapidly as long as this would not be harmful to the investigation and, moreover, that 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 or her view on all the facts which concern him or her.

34.That provision therefore governs two separate scenarios, to which different consequences are attached. The first scenario envisages, in particular, the situation in which, in the course of an investigation, the possible ‘implication’ of an official emerges, while the second envisages, in particular, the situation in which the conclusions drawn once the investigation has been completed ‘refer by name’ to an official. While the application of the first concept requires a substantial assessment of the circumstances in order to verify whether there is material capable of demonstrating the implication of the person concerned, the application of the second concept calls for a verification, which is more strict, of whether a person is or is not mentioned in the conclusions drawn once the investigation has been completed. (26)

35.In my view, the distinction between those two scenarios is particularly important in the light of the different legal consequences attached to them: on the one hand, the obligation to inform rapidly the person whose implication emerges and, on the other, the obligation to allow the person referred to by name to be heard. In addition, the two scenarios are also distinguished as concerns the time when the obligations referred to apply: the first sentence of the first paragraph of Article 4 of Decision 1999/396 lays down a very general obligation to inform the person implicated ‘rapidly’, while the second sentence of that provision states that the person referred to must be heard before the conclusions on completion of the investigation are drawn and must therefore be referring to the conclusions contained in a report drawn up under the authority of the Director of OLAF. (27)

36.In the present case, the General Court found, first, that the applicant should have been treated in the same way as a person ‘referred to by name’, and should therefore have been heard within the meaning of the second sentence of the first paragraph of Article 4 of Decision 1999/396, (28) and, second, that that person should, at the very least, have been regarded as being implicated and should therefore have been informed rapidly, within the meaning of the first sentence of that provision. (29) It is therefore appropriate to examine those two findings of the General Court, which form the subject matter of the Commission’s complaints, in the light of the interpretation of the first paragraph of Article 4 of Decision 1999/396 set out above.

2.The General Court’s finding that the applicant should have been treated in the same way as a person ‘referred to by name’ in the ‘conclusions … drawn once [OLAF’s] investigation ha[d] been completed’

37.In the judgment under appeal, the General Court found, primarily, that, in view of the position which he held at the material time, the applicant should have been ‘treated … in the same way as’ the persons referred to by name in OLAF’s conclusions. (30) The General Court based that finding on the following two factors.

38.First, the note of 19 March 2003 drew attention to the fact that the applicant was hierarchically positioned between his manager, Mr Franchet, the Director-General of Eurostat, and his subordinate, Mr Byk, a Head of Unit. Therefore, even though he was not referred to by name in the final report drawn up following OLAF’s investigation, the French criminal authorities would inevitably have been led to suspect that the applicant was implicated in the matters described in that report. (31) Second, the note of 19 March 2003 emphasised that a part of the datashops’ turnover misappropriated in favour of Eurostat was placed in a ‘slush fund’, the use of which was subject to the authorisation of an official of Eurostat whom the note did not name but who could be identified from the dismissal order, since there was no doubt as to the identity of the persons implicated in the matters described in that note. (32)

39.The General Court therefore based its finding that the applicant should be ‘treated in the same way as’ a person ‘referred to by name’ on both the position which the applicant held, namely his role as a person hierarchically positioned between the two persons referred to by name in OLAF’s investigation, and the powers which that position conferred on him, in particular the power to authorise the use of the ‘slush fund’ forming the subject matter of that investigation.

40.In the first place, it seems to me that, in taking that approach, the General Court confused the two scenarios forming the subject matter of the first paragraph of Article 4 of Decision 1999/396. It applied, for the purpose of examining the concept of a person ‘referred to by name’, the same factual assessment of the circumstances as that required for the purpose of examining the concept of an individual who is ‘implicated’. In other words, the General Court interpreted the concept of a person ‘referred to by name’ very broadly, in such a way as to treat it as equivalent to the concept of an individual who is ‘implicated’. (33)

41.To my mind, that interpretation has the effect of rendering ineffective the distinction between the two scenarios set out in the first paragraph of Article 4 of Decision 1999/396 and of confusing the obligation to ‘inform rapidly’ an official who is implicated in the course of the investigation of the contested facts with the obligation to hear a person who is referred to by name before the final report is adopted. It therefore seems to me that that interpretation runs counter to the very wording of the provision that is being interpreted.

42.In the second place, the General Court also confused the different times at which the existence of the two abovementioned scenarios are to be assessed. As the General Court established, on 4 April 2003 the public prosecutor of the Tribunal de grande instance de Paris (Regional Court, Paris) opened an investigation following communication of the note of 19 March 2003. (34) That note, which is the act which, in the applicant’s submission, adversely affected him, (35) does not contain any conclusions drawn ‘once the investigation has been completed’, as the final report was not adopted until 25 September 2003.

43.However, the General Court did not take account of that circumstance and, in its assessment, (36) it relies, without distinction, on findings made in the final report and in the note of 19 March 2003, (37) findings which, moreover, according to the General Court, were ‘supported’ by the dismissal order, which was adopted on 21 January 2013 – nearly 10 years after the note of 19 March 2003 was adopted – following the investigation carried out by the French judicial authorities. (38)

Thus, the General Court’s interpretation fails to take account of the distinction, which is quite clear from the first paragraph of Article 4 of Decision 1999/396, between, on the one hand, the adoption of the final report, which triggers OLAF’s obligation to hear the persons referred to beforehand, and, on the other, the adoption of any other act adopted previously in the context of OLAF’s investigation, such as the note of 19 March 2003, which merely triggers the obligation to ‘inform rapidly’ the persons implicated. (39)

I therefore consider that the General Court erred in law in its interpretation of the first paragraph of Article 4 of Decision 1999/396.

The General Court’s finding that the applicant was in any event ‘implicated’ in the matters that had given rise to OLAF’s investigation and should, accordingly, have been ‘informed rapidly’

45.In the judgment under appeal, the General Court found, as a subsidiary issue, that the applicant should, at the very least, have been regarded as being ‘implicated’ in the matters that had given rise to OLAF’s investigation and, accordingly, been informed rapidly, in so far as it had not been established that that would have been harmful to the investigation. (40)

In that regard, first, I recall that the first sentence of the first paragraph of Article 4 of Decision 1999/396 provides, inter alia, that an official whose implication emerges as a possibility is to be ‘informed rapidly’ as long as that would not be harmful to the investigation. Second, I observe that Article 10(2) of Regulation No 1073/1999 specifically governs the forwarding of information to the judicial authorities and provides that the Director of OLAF is to forward to the judicial authorities of the Member State concerned the information obtained by OLAF during internal investigations into matters liable to result in criminal proceedings. That provision does not lay down any time limit or condition for the forwarding of that information. To my mind, that provision constitutes a lex specialis by reference to the first paragraph of Article 4 of Decision 1999/396 as regards the forwarding of information to the judicial authorities.

However, it does not follow from either the first paragraph of Article 4 of Decision 1999/396, applied by analogy by the General Court to the present case, or Article 10(2) of Regulation No 1073/1999, which specifically prescribes the forwarding of information to the judicial authorities, that the official who is implicated must necessarily be informed before the information is forwarded by the Director of OLAF to the judicial authorities. Nor does it follow from either the judgment under appeal or the case file that the forwarding of information to the judicial authorities in the present case adversely affected the applicant’s rights of defence, during OLAF’s investigation or during the judicial investigation by the French authorities, or that OLAF’s conduct constituted a breach of other norms or general principles. (41)

I therefore consider that the General Court erred in law in interpreting the first paragraph of Article 4 of Decision 1999/396 as meaning that, where the implication of an official emerges, that official is to be informed before the relevant information is forwarded to the judicial authorities within the meaning of Article 10(2) of Regulation No 1073/1999.

Consequently, I consider that the first ground of appeal must be upheld.

Second ground of appeal, alleging an error of law in the interpretation of Article 9(4) of Regulation No 1073/1999

By its second ground of appeal, the Commission takes issue with the General Court for having made an error of law in its interpretation of Article 9(4) of Regulation No 1073/1999, in that it concluded, by contrary inference, from that provision that the Commission was prohibited from applying to join the criminal proceedings as a civil party and from filing a complaint before a national court before any OLAF investigation had been completed. The Commission maintains that there is no valid reason for limiting the Commission’s power to apply to join proceedings as a civil party or to file a complaint before the national courts. The applicant contends that it was on the basis of the note of 19 March 2003, sent to the French judicial authorities, which was adopted in the context of an OLAF internal investigation, that he was summoned in connection with the national criminal investigation and, therefore, that he should have been informed and heard concerning the matters relating to him before that note was forwarded to the authorities in question, in compliance with the principle of the rights of the defence and the presumption of innocence.

In the judgment under appeal, the General Court concluded, in essence, that the Commission should not have applied to join the criminal proceedings as a civil party and lodged a complaint before the French courts before OLAF’s investigation concerning the same matters had been completed, in order to protect the officials concerned, since, without the conclusions of OLAF’s investigation, the Commission would have been unable to take an informed decision. (42) The General Court arrived at that conclusion by applying to the national judicial proceedings, by analogy, the ‘reasoning’ according to which the Commission may not initiate disciplinary proceedings before an OLAF investigation has been closed, reasoning which, according to the General Court, is based on Article 9(4) of Regulation No 1073/1999, as interpreted in the judgment of 8 July 2008, Franchet and Byk v Commission. (43)

In the judgment under appeal, the General Court found, first, that the fact that the Commission had joined the proceedings as a civil party and had filed a complaint before the French courts before OLAF’s investigation had been closed had caused the applicant to sustain harm to his honour and his professional reputation and that that harm was the direct result of the Commission’s conduct (61) and, second, that the fact that OLAF had forwarded to the French judicial authorities the note of 19 March 2003 implicating the applicant without having heard or, at the very least, informed him had caused him non-material harm sustained as a result of having been unable either to express his views or to defend himself in relation to the facts which had led to the proceedings against him and that harm resulted from OLAF’s unlawful conduct. (62)

To my mind, the General Court’s reasoning cannot be endorsed.

First of all, it seems clear to me that the damage taken into account by the General Court, in particular the harm to the applicant’s honour and professional reputation, (63) and the feeling of injustice, helplessness and frustration, (64) were the direct consequence of his being investigated by the French judicial authorities and are not the result of the respective conduct of OLAF and the Commission, a fortiori because he was not referred to either in the note of 19 March 2003 or in the Commission’s complaint against X, and that the Commission’s participation in the proceedings as a civil party related to judicial proceedings that had already been initiated by the French judicial authorities.

Next, it is clear that, contrary to the applicant’s assertion that he had been the subject of ‘particularly serious and unfounded charges’, (65) neither the note of 19 March 2003 nor the complaint against X and the Commission’s participation in the proceedings as a civil party can be treated as ‘charges’. In fact, the Commission merely informed the French judicial authorities of matters that might constitute criminal offences, without even mentioning the applicant as the possible perpetrator of those offences, while it was incumbent on those authorities, following a preliminary investigation of the case, to decide to place the persons alleged to be responsible for those offences under investigation and therefore to ‘charge’ them. (66)

Furthermore, even on the assumption that what is alleged to be the unlawful conduct of OLAF or the Commission constituted an essential condition (a conditio sine qua non) of the occurrence of the damage claimed, in the sense that the information provided to the French judicial authorities was decisive for the initiation of the proceedings by those authorities, that would not suffice to establish a sufficiently direct causal link. As stated in the preceding point, it is the initiation of the judicial investigation, with which the damage which the applicant claims to have sustained is associated and which is within the exclusive remit of the French judicial authorities, that constitutes the determining cause of that damage, within the meaning of the Court’s settled case-law. (67)

I therefore propose that the third ground of appeal be upheld.

VII. The action before the General Court

Under the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, where the Court of Justice quashes the decision of the General Court, it may itself give final judgment in the matter where the state of the proceedings so permits.

In the present case, as established in the examination of the three grounds of appeal, the General Court erred in law in assessing the first and third conditions that must be fulfilled in order for the Union to incur non-contractual liability, conditions that were the subject of inter partes argument before the General Court and examination of which does not require the adoption of any additional measure of organisation of procedure or of investigation of the case.

On the basis of the analysis carried out in this Opinion, the applicant’s action before the General Court should be dismissed, either on the ground that the condition that the conduct of OLAF and the Commission complained of must be unlawful is not fulfilled or, in the alternative, on the ground that there is no causal link between that conduct and the harm relied on.

VIII. Costs

Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and where the Court itself gives final judgment in the case, it is to make a decision as to the costs.

In accordance with Article 138(1) of those rules, which is applicable to the proceeding on appeal pursuant to Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicant has been unsuccessful, I propose that he be ordered, in addition to bearing his own costs, to pay those incurred by the Commission in respect of both the proceedings at first instance and the proceedings on appeal, in accordance with the form of order sought by the Commission.

IX. Conclusion

In the light of the foregoing, I propose that the Court should:

1.Set aside the judgment of the General Court of the European Union of 11 June 2019, De Esteban Alonso v Commission (T‑138/18, EU:T:2019:398);

2.Dismiss the action in Case T‑138/18;

3.Order Mr Fernando De Esteban Alonso to pay the costs of both sets of proceedings.

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(1) Original language: French.

(2) Commission Decision of 2 June 1999 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 (OJ 1999 L 149, p. 57).

(3) Regulation 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).

(4) This provision was replaced by Article 11(4) of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ 2013 L 248, p. 1). So far as the present case is concerned, the new provision is essentially identical to its predecessor.

(5) OJ 1999 L 136, p. 20.

(6) OJ 2016 C 202, p. 266; ‘the Protocol on privileges and immunities’.

(7) Staff Regulations established by Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (OJ, English Special Edition 1968(I), p. 30; ‘the Staff Regulations’).

(8) Council Regulation of 11 November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities (OJ 1996 L 292, p. 2).

(9) F‑35/15, EU:F:2015:87.

(10) T‑557/15 P, not published, EU:T:2016:456.

(11) See the judgment under appeal, paragraph 46.

(12) See the judgment under appeal, paragraph 82.

(13) See the judgment under appeal, paragraph 85.

(14) See the judgment under appeal, paragraph 77.

(15) See the judgment under appeal, paragraph 83.

(16) See the judgment under appeal, paragraph 109.

(17) See the judgment under appeal, paragraph 130.

(18) See the judgment under appeal, paragraph 131.

(19) As the applicant has not lodged a cross-appeal, I consider that the second part of the form of order sought is inadmissible.

(20) See judgment of 10 September 2019, HTTS v Council (C‑123/18 P, EU:C:2019:694, paragraph 32 and the case-law cited).

(21) Judgment of 9 September 1999, Lucaccioni v Commission (C‑257/98 P, EU:C:1999:402, paragraph 63), and order of 12 March 2020, EMB Consulting and Others v ECB (C‑571/19 P, not published, EU:C:2020:208, paragraph 29).

(22) See, in particular, judgment of 2 April 2020, UG v Commission (T‑571/17, not published, under appeal, EU:T:2020:141, paragraph 83 and the case-law cited).

(23) See the judgment under appeal, paragraph 46.

(24) See judgment of 14 June 2018, Spagnolli and Others v Commission (T‑568/16 and T‑599/16, EU:T:2018:347), paragraph 196 and the case-law cited).

(25) See order of 31 March 2011, Mauerhofer v Commission (C‑433/10 P, not published, EU:C:2011:204), paragraph 127 and the case-law cited).

(26) Admittedly, in order to ensure effectively the right to be heard, provided for in the second scenario, it is necessary not to limit the concept of a person ‘referred to by name’ to a purely strict interpretation, which would allow OLAF to escape its obligations by avoiding any mention of the person in question. To my mind, however, the possibility of applying that concept outside the situation in which the person is explicitly referred to in the conclusions is limited to situations involving the misapplication of that norm, in particular to situations in which it is clear that the conclusions drawn on completion of the investigation can refer, as the person responsible for the facts that gave rise to the investigation, only to a person who is immediately identifiable (for example, by reference to his or her post) but who, nonetheless, is not mentioned in those conclusions.

(27) See order of the President of the Court of 8 April 2003, Gómez-Reino v Commission (C‑471/02 P(R), EU:C:2003:210), paragraph 68.

(28) See the judgment under appeal, paragraph 77.

(29) See the judgment under appeal, paragraph 83.

(30) See the judgment under appeal, paragraph 77.

(31) See the judgment under appeal, paragraph 75. According to the General Court, that finding was ‘supported’ by the dismissal order, in which it was stated that from 1994 the applicant was Mr Byk’s superior.

(32) See the judgment under appeal, paragraph 76. In order to arrive at that conclusion, the General Court also relied on the dismissal order, in which it was stated that the applicant, with other persons representing Eurostat, had been asked by a trading partner to authorise payment of the invoices issued, that only five persons, including the applicant, could give such authorisation and that until 1998 transactions on the financial reserve created in Eurostat’s accounts were carried out under the control of the applicant, Mr Byk’s supervisor.

(33) Furthermore, even on a less strict interpretation of the concept of a person ‘referred to by name’, as proposed in footnote 26 above, the circumstances highlighted by the General Court do not in my view demonstrate that the contested facts in OLAF’s conclusions could concern only the applicant, especially since, on the one hand, there were other persons, those ‘referred to by name’, suspected by OLAF and, on the other, the power to authorise use of the ‘slush fund’ forming the subject matter of the investigation was shared with four other persons, one of whom was referred to by name in the note of 19 March 2003. In addition, the fact that the applicant was initially summoned by the French judicial authorities only as a witness and the fact that the dismissal order, adopted at the close of the judicial investigation, found that he had no case to answer, confirm, indirectly and ex post facto, that the fact that OLAF had not referred to the applicant by name was objectively justified by the uncertainty as to his involvement in the contested facts.

(34) See, in particular, the judgment under appeal, paragraphs 15 and 71.

(35) See the judgment under appeal, paragraph 53.

(36) See the judgment under appeal, paragraphs 75 and 76.

(37) I note that, on the point in question, the approach taken by the General Court in the judgment under appeal is consistent with that taken in the judgment of 8 July 2008, Franchet and Byk v Commission (T‑48/05, EU:T:2008:257), which related to the same OLAF investigation and to the application of the same provision, but which was not the subject of an appeal. In that judgment, the General Court, while recognising that the first paragraph of Article 4 of Decision 1999/396 refers to conclusions contained in a report drawn up under the authority of the Director of OLAF (paragraph 131), considered that it was nonetheless necessary to examine whether the information forwarded to the national judicial authorities when there was no report (paragraph 132) must be understood as meaning that it contains conclusions referring by name to the applicants (paragraph 133), without explaining why that was so.

(38) Furthermore, although, as the General Court observes in paragraphs 75 and 76 of the judgment under appeal, the dismissal order mentions certain facts relating to the applicant, it must be stated that they did not prevent the judicial authorities from completely exonerating the applicant, which, contrary to the General Court’s findings, seems rather to justify, ex post facto, the fact that OLAF had not mentioned the applicant by name (see also footnote 33 above).

(39) Furthermore, unlike the obligation to hear the persons mentioned by name, which must precede the final report, the obligation to ‘inform [the persons implicated] rapidly’ can in my view refer only to information provided after the time when the implication of the individual in question emerges, which does not necessarily prevent that information from being provided at the same time as or after the forwarding of information to the judicial authorities.

(40) See the judgment under appeal, paragraph 83.

(41) Furthermore, while taking into account the limits on the jurisdiction of the appellate court in the assessment of the facts, it seems to me to be helpful to observe that the General Court drew the conclusion that the applicant was ‘implicated’ solely from the position which he held and the powers deriving from that position (see points 38 and 39 above), but failed to take account of the fact that OLAF had indicated two other persons by name as being implicated in the matters that had given rise to the investigation. The General Court therefore substituted its own analysis, as regards the assessment of the facts and of the implication of the persons concerned in those matters, for the analysis carried out by OLAF in the context of its powers under Decision 1999/352 and Regulation No 1073/1999, without explaining how OLAF’s investigation was incorrect.

(42) See the judgment under appeal, paragraph 108.

(43) T‑48/05, EU:T:2008:257, paragraph 351. See the judgment under appeal, paragraphs 98 to 102.

(44) See the judgment under appeal, paragraph 100.

(45) T‑48/05, EU:T:2008:257, paragraph 351. See the judgment under appeal, paragraph 98.

(46) See the judgment under appeal, paragraph 99.

(47) See the judgment under appeal, paragraphs 101 and 102.

(48) T‑48/05, EU:T:2008:257.

(49) See judgment of 8 July 2008, Franchet and Byk v Commission (T‑48/05, EU:T:2008:257, paragraphs 350 and 351).

(50) See judgment of 8 July 2008, Franchet and Byk v Commission (T‑48/05, EU:T:2008:257, paragraphs 346 to 348).

(51) See judgment of 8 July 2008, Franchet and Byk v Commission (T‑48/05, EU:T:2008:257, paragraph 349).

(52) See the judgment under appeal, paragraph 100.

(53) See the judgment under appeal, paragraph 102.

(54) See the judgment under appeal, paragraph 103.

(55) See the judgment under appeal, paragraph 104.

(56) See the judgment under appeal, paragraph 105.

(63) See the judgment under appeal, paragraph 130.

(64) See the judgment under appeal, paragraph 131.

(65) See point 64 above.

(66) In his written pleadings, moreover, the applicant associates the alleged harm with ‘the fact that he was placed under investigation’ or ‘the decision to initiate legal proceedings against him’. Clearly, those are matters that can be attributed only to the responsibility of the French judicial authorities. In addition, neither the applicant nor the General Court has established whether – and to what extent – the information contained in the documents of OLAF and the Commission which he disputes, which should, by their nature, be confidential, came into the public domain, and could therefore harm the applicant’s honour and reputation.

(67) See, in particular, the case-law cited in point 29 above.