12 November 2018 (*)

(Action for annulment and for failure to act — Legal person informing OLAF of potentially reprehensible conduct — OLAF’s decision not to open an investigation — Measure not open to challenge — Inadmissibility — Costs — Equity — Article 135(1) of the Rules of Procedure)

In Case T‑658/17,

Stichting Against Child Trafficking,

established in Nijmegen (Netherlands), represented by E. Agstner, lawyer

applicant,

European Commission,

represented by J. Baquero Cruz and C. Tritz, acting as Agents,

defendant,

REQUEST on the basis of Articles 263 and 265 TFEU seeking, first, annulment of the decision of the European Anti-Fraud Office (OLAF) of 3 August 2017 not to open an administrative investigation in Case OC/2017/0451 and, second, an order requiring OLAF to open an administrative investigation and, depending on the findings of that investigation, to refer the case to the national law enforcement authorities for the purpose of criminal proceedings, and/or to the institutions of the European Union for the purpose of an administrative procedure,

THE GENERAL COURT (Ninth Chamber),

composed of S. Gervasoni (Rapporteur), President, L. Madise and R. da Silva Passos, Judges,

Registrar: E. Coulon,

makes the following

Background to the dispute

On 24 March 2017, the applicant, Stichting Against Child Trafficking, sent an email to the Director-General of the European Anti-Fraud Office (OLAF) regarding the alleged trafficking of children by an Italian adoption agency receiving funding from the European Union. That email contained in particular an internet link enabling the download of a documentary on adoption and child trafficking in the Democratic Republic of Congo and it referred to several media platforms. Other adoption agencies, agents of the Union and Members of the European Parliament were supposedly involved in the facts alleged by the applicant.

On 4 April 2017, OLAF notified the applicant of the opening of a selection procedure in Case OC/2017/0451 and asked it to submit detailed and objectively verifiable information indicating fraud or serious misconduct by EU agents.

By email of 13 April 2017, the applicant asked that the agent in charge of the selection be replaced, referring to the way in which he had handled its previous complaints, and suggested a meeting with OLAF’s agents.

On 26 April 2017, OLAF refused to replace the agent in charge of the selection and invited the applicant to send to it any written documents or information. It told the applicant that a meeting would be organised, if necessary, after examination of the documentary evidence.

By email of 17 May 2017, the applicant refused to submit a complete file to OLAF, claiming that it had already provided a large number of documents in the context of its previous complaints.

By letter of 3 August 2017, OLAF informed the applicant of its decision not to open an investigation in Case OC/2017/0451 (‘the contested decision’). In that letter, it stated that, in accordance with Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by 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), its role was to protect the financial interests of the Union by conducting investigations concerning fraud, corruption and other illegal activities and that it was also responsible for detecting and investigating serious matters relating to the discharge of professional duties by members and staff of the institutions, bodies, offices and agencies of the Union which may result in criminal or disciplinary proceedings. It stated that, as regards decisions to open an investigation, it examined whether the facts fell within one of the investigation policy priorities and took into account the principles of proportionality, subsidiarity/added value and efficient use of its resources. It considered that there was not, in the present case, sufficient suspicion to justify the opening of an investigation and the analysis of the information supplied by the applicant did not allow the detection of fraud, corruption or other illegal activities affecting the financial interests of the European Union or serious misbehaviour of EU staff in relation to which it could launch an administrative investigation.

Procedure and forms of order sought

By application lodged at the Court Registry on 21 September 2017, the applicant brought the present action.

In the application, the applicant claims that the Court should:

–annul the contested decision;

–‘instruct OLAF to open an administrative investigation and depending of its findings pass the matter to national law enforcement for criminal proceedings, and/or to European Institutions for administrative proceedings’;

–order OLAF to pay the costs.

The applicant having initially mentioned OLAF as the defendant against which the action was brought, the Court asked, in a measure of organisation of procedure adopted on 6 December 2017, the applicant to indicate whether it was appropriate to consider the European Commission as a defendant in the present case. Given the applicant’s affirmative answer to this question, the Court decided, on 21 December 2017, to consider the Commission a defendant and notified it of the application.

By a separate document lodged at the Registry of the Court on 22 March 2018, the Commission raised a plea of inadmissibility under Article 130 of the Rules of Procedure of the General Court.

The Commission contends that the Court should:

–dismiss the action as manifestly inadmissible;

–order the applicant to pay the costs.

In its observations on the plea of inadmissibility, the applicant claims that the Court should:

–not dismiss the application;

–in the alternative, not order it to pay the costs.

Law

Pursuant to Article 130(1) and (7) of the Rules of Procedure, the Court may, if the defendant so requests, rule on the question of admissibility without considering the merits of the case. In the present case, as the Commission has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.

In support of the plea of inadmissibility, the Commission submits that the application is manifestly inadmissible for three reasons. First, the contested decision is not a challengeable act for the purpose of Article 263 TFEU. OLAF’s acts concerning the opening or conduct of the investigation are preparatory measures which can subsequently lead to a challengeable decision taken by a national authority or by the institutions of the Union. The report drawn up by OLAF following internal or external investigations does not significantly alter the legal position of the persons named therein. The same is all the more true of the decision not to open an investigation. Furthermore, a complainant or informant does not have an individual right to compel the opening of an investigation and the opening of an investigation is not a decision that is addressed to the complainant or informant or a decision that is of direct concern to him for the purpose of that article. Second, the Commission submits that the application for an order issuing directions is inadmissible, since the EU judicature may not issue directions to the institutions of the Union. Third, even if the application could be construed as an action for failure to act as provided for in Article 265 TFEU, it would be inadmissible since OLAF has taken a position with regard to the measures sought and has informed the applicant thereof.

The applicant does not accept the Commission’s argument.

As a preliminary point, it must be noted, as recalled in paragraph 9 above, that the applicant had initially designated OLAF as defendant.

It must, however, be noted that OLAF, established by Commission Decision 1999/352/EC, ECSC, Euratom of 28 April 1999 (OJ 1999 L 136, p. 20), is an internal department of the European Commission, the independence of which is purely functional and limited to its investigation activities. On that basis, and in the absence of any provision to the contrary, OLAF does not have legal personality and it is the Commission which represents it in legal proceedings. Therefore, an action for annulment directed against a decision of OLAF must be considered to be directed against the Commission alone (see, to that effect, orders of 15 March 2010, GL 2006 Europe v Commission, T‑435/09 R, not published, EU:T:2010:88, paragraph 16 and the case-law cited; of 17 March 2016, Caruz v Commission, T‑599/15, not published, EU:T:2016:170, paragraph 15 and the case-law cited; and of 13 December 2016, Natsionalna asotsiatsia za razvazhdane na mlechni ovtse v Bulgaria and Blu Parfekt v OLAF, T‑761/16, not published, EU:T:2016:753, paragraph 5 and the case-law cited).

Accordingly, the Commission must, as stated by the applicant in response to a measure of organisation of procedure, be considered a defendant in the present case.

In the first place, according to settled case-law, an action for annulment is available against all measures adopted by the institutions, whatever their nature or form, which are intended to have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in its legal position (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 51; and of 19 December 2012, Commission v Planet, C‑314/11 P, EU:C:2012:823, paragraph 94).

Again according to settled case-law, the report and recommendations drawn up by OLAF on completion of an external or internal investigation have no binding legal effect on the persons referred to therein and do not bring about a distinct change in their legal position. The conclusions of OLAF contained in a final report cannot automatically lead to the opening of disciplinary or legal proceedings, since the national authorities, to which the external or internal investigation report is sent, are free to decide the possible action to take on the final report and they are accordingly the only authorities with the power to adopt decisions capable of affecting the legal position of the persons in relation to which the report has recommended that such proceedings be instigated (see, to that effect, orders of 13 July 2004, Comunidad Autónoma de Andalucía v Commission, T‑29/03, EU:T:2004:235, point 37; of 21 June 2017, Inox Mare v Commission, T‑289/16, EU:T:2017:414, paragraph 22; and of 22 January 2018, Ostvesta v Commission, T‑175/17, not published, EU:T:2018:49, paragraph 29 and the case-law cited). As regards OLAF’s decisions to open and conduct an investigation, they constitute, for the persons concerned by those investigations, preparatory or interim measures of any final decision of the competent authorities, which cannot be subject to an action for annulment (see, to that effect, orders of 8 April 2003, Gómez-Reino v Commission, C‑471/02 P(R), EU:C:2003:210, paragraph 65; of 18 December 2003, Gómez-Reino v Commission, T‑215/02, EU:T:2003:352, paragraph 50; and of 9 June 2004, Camós Grau v Commission, T‑96/03, EU:T:2004:172, paragraph 33 and the case-law cited).

Furthermore, it has already been held that the decisions by which OLAF decides to close an investigation, such as OLAF’s final reports, did not directly affect the legal situation of an applicant who had merely provided, as an official acting on the basis of Article 22a of the Staff Regulations of Officials of the European Union or as an informant, information relating to potentially reprehensible conduct (see, to that effect, order of 22 March 2006, Strack v Commission, T‑4/05, EU:T:2006:93, paragraph 51). It has also been held that a decision by OLAF refusing to open an investigation was not capable of being the subject of an action for annulment brought by an undertaking that requested the opening of such an investigation (see, to that effect, order of 22 June 2015, In vivo v Commission, T‑690/13, not published, EU:T:2015:519, paragraph 29).

In that regard, it must be noted that, in accordance with Article 1(1) of Regulation No 883/2013, OLAF’s investigations are carried out in the general interest of the Union to combat fraud, corruption and other illegal activities affecting its financial interests (see, to that effect, order of 22 March 2006, Strack v Commission, T‑4/05, EU:T:2006:93, paragraph 38). Article 5 of that regulation, entitled ‘Opening of investigations’, provides, in its second paragraph, that the decision to open an external investigation is taken by the Director-General, acting on his own initiative or following a request from a Member State concerned or any institution, body, office or agency of the Union and that the decision to open an internal investigation is taken by the Director-General, acting on his own initiative or following a request from the institution, body, office or agency within which the investigation is to be conducted or a request from a Member State. It thus follows from that regulation that natural or legal persons, such as the applicant, may provide to OLAF information relating to reprehensible conduct but cannot oblige OLAF to open an administrative investigation (see, to that effect, order of 22 March 2006, Strack v Commission, T‑4/05, EU:T:2006:93, paragraph 39).

Moreover, Regulation No 883/2013 does not require OLAF to inform any person that has provided information to it of the decision not to open an investigation. Article 5(4) of that regulation merely lays down that where an official, other servant, member of an institution or body, head of office or agency, or staff member, acting in accordance with Article 22a of the Staff Regulations of Officials of the European Union, provides information to OLAF relating to a suspected fraud or irregularity, OLAF must inform that person of the decision whether or not to open an investigation in relation to the facts in question.

In the present case, the contested decision, by which OLAF decided not to open an investigation in Case OC/2017/0451 does not have any binding legal effects on the applicant. First, the applicant is not accused of any unlawful behaviour and the decision does not implicate it. Second, as the person making the accusation, the applicant simply transmitted to OLAF information regarding potentially reprehensible conduct. The fact that OLAF decided, despite the applicant’s wish, not to open an administrative investigation does not make it possible to establish the existence of binding legal effects on the applicant. In these circumstances, that decision does not produce binding legal effects capable of affecting the interests of the applicant, by altering significantly its legal position.

The arguments put forward by the applicant do not affect that finding.

First of all, the applicant claims that the Commission, of which OLAF is part in administrative terms, is the subject of the information submitted and that that institution has no interest in the opening of an investigation. Furthermore, it is of the opinion that it has submitted sufficient evidence to justify the opening of an investigation concerning extremely serious crimes.

Nevertheless, it must be noted that, first, the applicant does not explain how those elements may make it possible to consider the action to be admissible. Second, the applicant’s line of argument must be rejected as having no bearing on the issue, since possible unlawful acts, such as breach of OLAF’s independence or manifest error of assessment, which allegedly vitiate the contested decision, cannot turn that decision into a challengeable measure against which an action for annulment may be brought. It follows from the case-law that the seriousness of an alleged infringement by the institution concerned or the extent of its adverse impact on the observance of fundamental rights cannot justify an exception to the absolute bars to proceedings laid down by the Treaty (order of 10 May 2001, FNAB and Others v Council, C‑345/00 P, EU:C:2001:270, paragraph 40; judgment of 15 January 2003, Philip Morris International v Commission, T‑377/00, T‑379/00, T‑380/00, T‑260/01 and T‑272/01, EU:T:2003:6, paragraph 87, and order of 21 June 2017, Inox Mare v Commission, T‑289/16, EU:T:2017:414, paragraph 43).

Also, the applicant is wrong to claim that, since the contested decision cannot be challenged before the courts of the Member States, the Court should have jurisdiction to hear the present case, unless OLAF and the Commission are to avoid liability.

29On the assumption that the applicant intended to claim infringement of the principle of effective judicial protection, it must be noted that, although the requirement as to legal effects which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in its legal position must be interpreted in the light of the principle of effective judicial protection, an interpretation to that effect cannot go so far as to set aside that requirement without going beyond the jurisdiction conferred by the Treaties on the EU Courts (see, to that effect, judgment of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 81; order of 8 March 2007, Strack v Commission, C‑237/06 P, EU:C:2007:156, paragraph 107, and judgment of 20 May 2010, Commission v Violetti and Others, T‑261/09 P, EU:T:2010:215, paragraph 57). Moreover, the fact that the Member States’ courts do not have jurisdiction to adjudicate in relation to the contested decision does not mean that the applicant’s action for annulment before the Court satisfies the conditions of admissibility laid down by Article 263 TFEU. Besides, the Commission does not, contrary to the applicant’s claims, avoid all liability in respect of administrative investigations conducted by OLAF, since, in accordance with the forms of redress laid down in the Treaties, even though individuals cannot bring an action for annulment against measures that have no binding legal effects, they are not however denied access to justice, since an action for non-contractual liability remains available if the conduct at issue is of such a nature as to entail liability for the Union (see, to that effect, judgments of 4 October 2006, Tillack v Commission, T‑193/04, EU:T:2006:292, paragraphs 97 and 99; of 20 May 2010, Commission v Violetti and Others, T‑261/09 P, EU:T:2010:215, paragraph 69, and order of 27 November 2013, Oikonomopoulos v Commission, T‑483/13 R, not published, EU:T:2013:614, paragraph 33).

30Finally, the applicant claims that it operates in the field of human rights, in the interest of children, who have no legal voice of their own. It states that in the absence of an investigation, it may incur liability, and accordingly it is directly and individually concerned. It adds that, if despite investigative journalism and the actions of organisations working in the field of human rights, no investigation is carried out, the concept of the rule of law would be deprived of effectiveness.

31Nevertheless, the fact that the applicant is active in the field of human rights, relies on evidence produced by journalists and has set itself the objective of fighting against child trafficking does not demonstrate that the contested decision has binding legal effects on it. The interest of the applicant in fighting against child trafficking, however legitimate it may be, is not sufficient to consider that it should have standing to bring annulment proceedings against the contested decision, which was taken within a legal framework intended to protect the financial interests of the Union and does not modify, significantly, its legal position (see, to that effect and by analogy, as regards the non-material interest of the applicant in establishing the truth, order of 8 March 2007, Strack v Commission, C‑237/06 P, EU:C:2007:156, paragraph 66). As for the applicant’s claim that it may incur liability should there be no investigation, no information with which to assess whether it is well founded has been provided. The applicant does not explain on which basis it may incur liability because of the absence of an administrative investigation, when Regulation No 883/2013 does not provide that an applicant can request the opening of an administrative investigation and, in any event, only OLAF is competent to decide whether or not to open an investigation. Finally, neither the fact that the applicant operates in the field of human rights nor the defence of the values of the rule of law enable the Court to hold that the applicant can oblige OLAF to open an administrative investigation within the framework of Article 5 of that regulation.

32It follows that the application presented by the applicant on the basis of Article 263 TFEU must be rejected as inadmissible.

33In the second place, as regards the application submitted on the basis of the third paragraph of Article 265 TFEU, it must be recalled that that provision grants natural and legal persons the possibility of bringing an action for failure to act where an institution, the Commission in the present case, as stated in paragraphs 17 and 18 above, has failed to address to those persons any act other than a recommendation or an opinion.

34Legal and natural persons may only rely on that form of redress for the purpose of obtaining a declaration that an institution, body or agency of the Union has failed to adopt acts whose lawfulness they are also able to challenge by means of an action for annulment provided for in Article 263 TFEU (see, to that effect, judgment of 26 November 1996, T. Port, C‑68/95, EU:C:1996:452, paragraph 59, and order of 22 September 2016, Gaki v Commission, C‑130/16 P, not published, EU:C:2016:731, paragraph 17).

35Inasmuch as the applicant’s form of order seeking annulment of the contested decision on the basis of Article 263 TFEU is not admissible for the reasons stated in paragraphs 19 to 31 above, the same is true of the application made by the applicant on the basis of Article 265 TFEU.

36Therefore, the application submitted on the basis of Article 265 TFEU must be rejected as inadmissible.

37Last, it is apparent from settled case-law that, in a review of legality under Article 263 TFEU, the Court has no jurisdiction to issue directions to the institutions, bodies, offices and agencies of the Union (see, to that effect, judgments of 9 June 1983, Verzyck v Commission, 225/82, EU:C:1983:165, paragraph 19; of 8 July 1999, DSM v Commission, C‑5/93 P, EU:C:1999:364, paragraph 36, and order of 4 June 2015, Mirelta Ingatlanhasznosító v Commission and Ombudsman, C‑576/14 P, not published, EU:C:2015:370, paragraph 15).

38Consequently, the applicant’s form of order seeking that OLAF be required to open an administrative investigation and, depending on the findings of that investigation, to refer the case to the national law enforcement authorities for the purpose of criminal proceedings, or to the institutions of the European Union for the purpose of an administrative procedure, must be rejected.

39It follows from all the foregoing considerations that the action must be dismissed.

40Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

41However, according to Article 135(1) of the Rules of Procedure, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his own costs, or even that he is not to be ordered to pay any.

42The applicant, which has been unsuccessful, asks not to be ordered to pay the costs and argues that it is a charitable organisation acting in the interests of children subject to trafficking and adopted against their will. Nevertheless, the fact that the applicant is a charitable organisation acting in the interests of children is not, in itself, such as to justify, in the present case, the application of Article 135(1) of the Rules of Procedure.

43Consequently, the applicant must be ordered to pay the costs, in accordance with the form of order sought by the Commission, pursuant to Article 134(1) of the Rules of Procedure.

On those grounds,

hereby orders:

1.The action is dismissed as inadmissible.

2.Stichting Against Child Trafficking shall pay the costs.

Luxembourg, 12 November 2018.

Registrar

President

Language of the case: English.