25 February 2021 (*1)

(Appeal – Action for damages – Non-contractual liability of the European Union – Allegedly illegal conduct of the European Commission and the European Anti-Fraud Office (OLAF) – Termination of office of a Member of the Commission – Procedural rules governing the OLAF investigation – Opening of an investigation – Right to be heard – OLAF Supervisory Committee – Presumption of innocence – Assessment of the alleged damage)

In Case C‑615/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 16 August 2019,

John Dalli, residing in St. Julian’s (Malta), represented by L. Levi and S. Rodrigues, avocats,

applicant,

the other party to the proceedings being:

European Commission, represented by J.‑P. Keppenne and J. Baquero Cruz, acting as Agents,

defendant at first instance,

THE COURT (First Chamber),

composed of J.‑C. Bonichot, President of the Chamber, L. Bay Larsen (Rapporteur), C. Toader, M. Safjan and N. Jääskinen, Judges,

Advocate General: M. Szpunar,

Registrar: Calot Escobar,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 22 September 2020,

gives the following

By his appeal, Mr John Dalli seeks to have set aside the judgment of the General Court of the European Union of 6 June 2019, Dalli v Commission (T‑399/17, not published, EU:T:2019:384; ‘the judgment under appeal’), by which the General Court dismissed his action seeking compensation for the damage he allegedly suffered as a result of allegedly unlawful conduct on the part of the European Commission and the European Anti-Fraud Office (OLAF) in connection with the termination of his office as a Member of the Commission on 16 October 2012.

Legal context

Regulation (EC) No 1073/1999

Article 1(3) of 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) provided:

‘Within the institutions, bodies, offices and agencies established by, or on the basis of, the Treaties (hereinafter “the institutions, bodies, offices and agencies”), the Office shall conduct administrative investigations for the purpose of:

–fighting fraud, corruption and any other illegal activity affecting the financial interests of the European Community,

–investigating to that end serious matters relating to the discharge of professional duties such as to constitute a dereliction of the obligations of officials and other servants of the Communities liable to result in disciplinary or, as the case may be, criminal proceedings, or an equivalent failure to discharge obligations on the part of members of institutions and bodies, heads of offices and agencies or members of the staff of institutions, bodies, offices or agencies not subject to the Staff Regulations of officials and the Conditions of employment of other servants of the European Communities (“the Staff Regulations”).’

3.3

Article 2 of that regulation stated:

‘Within the meaning of this Regulation, “administrative investigations” (hereinafter “investigations”) shall mean all inspections, checks and other measures undertaken by employees of [OLAF] in the performance of their duties, in accordance with Articles 3 and 4, with a view to achieving the objectives set out in Article 1 and to establishing, where necessary, the irregular nature of the activities under investigation. These investigations shall not affect the powers of the Member States to bring criminal proceedings.’

4.4

Articles 3 and 4 of that regulation set out the rules applicable, respectively, to external and internal investigations by OLAF.

Article 6 of that regulation stated that the Director of OLAF is to direct the conduct of investigations.

Article 9(1) of Regulation No 1073/1999 was worded as follows:

‘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.’

7.7

Article 11(1) and (6) to (8) of that regulation provided:

‘1. The Supervisory Committee shall reinforce [OLAF]’s independence by regular monitoring of the implementation of the investigative function.

At the request of the Director or on its own initiative, the committee shall deliver opinions to the Director concerning the activities of [OLAF] without however interfering with the conduct of investigations in progress.

…

7. The Director shall forward to the Supervisory Committee each year [OLAF]’s programme of activities … The Director shall inform the committee of cases requiring information to be forwarded to the judicial authorities of a Member State.

8. The Supervisory Committee shall adopt at least one report on its activities per year which it shall send to the institutions. The committee may submit reports to the European Parliament, the Council, the Commission and the Court of Auditors on the results of [OLAF]’s investigations and the action taken thereon.’

Decision 1999/396/EC, ECSC, Euratom

8.8

The first paragraph of Article 4 of Commission Decision 1999/396/EC, ECSC, Euratom 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), provides:

‘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.’

Rules of Procedure of the OLAF Supervisory Committee

Article 13(5) of the Rules of Procedure of the OLAF Supervisory Committee (OJ 2011 L 308, p. 114), states:

‘Cases requiring information to be forwarded to the judicial authorities of a Member State shall be examined on the basis of the information provided by the Director-General of OLAF and in accordance with Regulation (EC) No 1073/1999. Follow-up shall also be carried out on this basis.

In particular, before the information is sent, the Supervisory Committee shall request access to the investigations in question in order to ascertain whether fundamental rights and procedural guarantees are being complied with. Once the Secretariat has obtained access to the documents within a time period guaranteeing compliance with this function, the rapporteurs appointed to examine the cases shall prepare their presentation at the Committee’s plenary session. …

The Committee shall appoint rapporteurs to examine these investigations and, if necessary, issue an opinion.’

Regulation (EU, Euratom) No 883/2013

10.10

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), repeals and replaces Regulation No 1073/1999.

11.11

Article 7(4) of Regulation No 883/2013 is worded as follows:

‘Where an investigation combines external and internal elements, Articles 3 and 4 shall apply respectively.’

The OLAF instructions to its staff and on investigative procedures

12.12

Article 5 of the OLAF Instructions to Staff on Investigative Procedures, in the version applicable at the time of the facts (‘the OLAF Instructions’), provided:

‘1. The Investigation Selection and Review Unit may, where necessary, contact the source and the EU institution, body, office or agency concerned in order to obtain clarification and further documentation concerning the initial information. It may also consult databases and other relevant sources available to OLAF. Where it is necessary to collect additional information to support the selection process, the Investigation Selection and Review Unit may use, inter alia, the following means:

(a)Collecting documents and information;

(b)Collecting information in the framework of operational meetings;

(c)Taking statements from any person able to provide relevant information;

(d)Carrying out fact-finding missions in Member States.

3. The opinion on the opening of an investigation or coordination case shall be based on whether the information falls within OLAF’s competency to act, the information is sufficient to justify the opening of an investigation or coordination case and falls within the Investigative Policy Priorities (IPP) established by the Director-General.

4. In assessing whether OLAF is competent to act, consideration must be given to relevant EU Regulations, Decisions, Interinstitutional Agreements and other legal instruments relating to the protection of the financial and other interests of the EU. In evaluating whether the information is sufficient to open an investigation or coordination case, consideration must be given to the reliability of the source and the credibility of the allegations. In addition, all information collected during the selection process must be taken into account in justifying the opening of an investigation or coordination case. The IPP set out the criteria to be applied in determining whether an information falls within an established investigative priority.

13.13

Article 11(6) of the OLAF Instructions stated:

‘Members of the investigation unit carry out the following investigative activities upon production of the Director-General’s written act showing their identity and capacity, and the investigative activity they are authorised and mandated to carry out:

‘Members of the investigation unit carry out the following investigative activities upon production of the Director-General’s written act showing their identity and capacity, and the investigative activity they are authorized and mandated to carry out:

(a)Interviews with persons concerned;

(b)Inspections of premises;

(c)On-the-spot checks;

(d)Forensic operations;

(e)Checks and inspections under sectoral rules.’

14.14

Article 12(3) of the OLAF Instructions stated:

‘Where the investigation unit envisages conducting an investigative activity outside the existing scope of the investigation or coordination case, it must submit a request for a decision to extend the scope to the Investigation Selection and Review Unit. The Investigation Selection and Review Unit must verify the proposed extension of the scope and provide an opinion to the Director-General on the basis of which he may take a decision.’

Background to the dispute

By Decision 2010/80/EU of the European Council of 9 February 2010 appointing the European Commission (OJ 2010 L 38, p. 7), Mr Dalli was appointed a Member of the Commission for the period from 10 February 2010 to 31 October 2014. He was assigned by the President of the Commission the portfolio of Health and Consumer Protection.

16.16

On 25 May 2012, following the receipt by the Commission, on 21 May 2012, of a complaint from the company Swedish Match (‘the complainant’), containing allegations concerning Mr Dalli’s conduct, OLAF initiated an investigation (‘the OLAF investigation’).

17.17

On 16 July and 17 September 2012, Mr Dalli was heard by OLAF.

18.18

On 15 October 2012, the OLAF report was sent to the Secretary-General of the Commission, for the attention of the President of that institution. That report was accompanied by a letter signed by the Director-General of OLAF (‘the OLAF Director’), summarising the main findings of the investigation.

On 16 October 2012, Mr Dalli met with the President of the Commission. Later that same day, the latter informed the Prime Minister of the Republic of Malta and the Presidents of the European Parliament and of the Council of the European Union of Mr Dalli’s resignation. The Commission also issued a press release announcing that resignation.

By application lodged at the Registry of the General Court on 24 December 2012, Mr Dalli brought an action for annulment of the ‘oral decision of 16 October 2012 of termination of [his] office with immediate effect, taken by the President of the Commission’ and for compensation for damage suffered of a symbolic EUR 1 for non-material damage and, on a provisional basis, of EUR 1913396 for material damage.

That application was dismissed by the judgment of the General Court of 12 May 2015, Dalli v Commission (T‑562/12, EU:T:2015:270).

As regards, first, the claim for annulment, the General Court found that Mr Dalli had submitted his resignation verbally, as no request for his resignation within the meaning of Article 17(6) TEU had been made by the President of the Commission. Since the existence of that request, which constituted the act contested by the appellant, had not been established, the General Court held that the application for annulment had to be dismissed as inadmissible.

As regards, secondly, the claims for compensation, the General Court considered that, since it had found that the existence of such a claim was not proven, no illegality on that ground could be found against that institution in that regard. As regards the allegation that the appellant’s consent was vitiated, put forward as a subsidiary plea in the context of the claim for annulment, the General Court observed that it had not been established. It concluded that Mr Dalli’s allegations of wrongful conduct on the part of the Commission or its President had not been established and therefore dismissed the claims for compensation as unfounded.

On 21 June 2015, Mr Dalli lodged an appeal against that judgment. That appeal was dismissed by order of 14 April 2016, Dalli v Commission (C‑394/15 P, not published, EU:C:2016:262).

The action before the General Court and the judgment under appeal

By application lodged at the Registry of the General Court on 28 June 2017, Mr Dalli brought an action for an order that the Commission pay him damages of an amount estimated, on a provisional basis, at EUR 1000000 as compensation for damage, in particular non-material damage, which he suffered as a result of allegedly illegal conduct of the Commission and OLAF, connected with the termination of his office as a Member of the Commission on 16 October 2012.

In support of that application, Mr Dalli put forward seven complaints relating to the unlawfulness of OLAF’s conduct alleging, first, the unlawfulness of the decision to open the investigation, secondly, flaws in the characterisation of the investigation and the extension of that investigation, thirdly, breach of the principles governing the gathering of evidence and distortion and falsification of the evidence, fourthly, breach of the rights of the defence, of Article 4 of Decision 1999/396 and of Article 18 of the OLAF Instructions, fifthly, infringement of Article 11(7) of Regulation No 1073/1999 and of Article 13(5) of the Rules of Procedure of the OLAF Supervisory Committee, sixthly, breach of the principle of the presumption of innocence, infringement of Article 8 of Regulation No 1073/1999 and of Article 339 TFEU and breach of the right to the protection of personal data and, seventhly, infringement of Article 4 of that regulation, of Article 4 of Decision 1999/396 and of the Memorandum of Understanding concerning a code of conduct to ensure timely exchange of information between OLAF and the Commission with respect to OLAF internal investigations in the Commission. In addition, Mr Dalli put forward two complaints relating to the unlawfulness of the Commission’s conduct.

By separate document lodged at the Registry of the General Court on 13 September 2017, the Commission raised a plea of inadmissibility.

By the judgment under appeal, the General Court, having dismissed that plea of inadmissibility, rejected all the complaints raised by Mr Dalli against OLAF and the Commission.

Moreover, for the sake of completeness, the General Court held that Mr Dalli had not established either the existence of a sufficiently direct causal link between the conduct complained of and the alleged damage, or the existence of the latter.

Consequently, the General Court dismissed the action brought by Mr Dalli in its entirety.

Forms of order sought

By his appeal, Mr Dalli claims that the Court should:

–set aside the judgment under appeal;

–order compensation for the damage, in particular the non-material damage, suffered by him and which can be estimated, on a provisional basis, at EUR 1000000; and

–order the Commission to pay the costs of both sets of proceedings.

The Commission contends that the Court should:

–dismiss the appeal, and

–order Mr Dalli to pay the costs incurred before the Court of Justice and the General Court.

The appeal

Mr Dalli raises seven grounds of appeal. The first to sixth grounds of appeal relate to the rejection of the first six complaints raised at first instance concerning OLAF’s conduct. The seventh ground of appeal relates to the findings of the General Court concerning the reality of the damage alleged and the existence of a causal link between that institution’s conduct and the damage relied on.

As a preliminary point, the Commission points out that, although it did not consider it useful, for reasons of procedural economy, to bring a cross-appeal, it nevertheless considers that the action at first instance should have been dismissed as inadmissible and that the Court of Justice could examine of its own motion the error committed in that regard by the General Court.

In that regard, in the present case, the Court considers it appropriate to rule from the outset on the merits of the case (see, by analogy, judgments of 23 October 2007, Poland v Council, C‑273/04, EU:C:2007:622, paragraph 33, and of 7 March 2013, Switzerland v Commission, C‑547/10 P, EU:C:2013:139, paragraph 47).

Furthermore, the Commission submits that all the grounds of appeal put forward by Mr Dalli are ineffective.

The ineffectiveness of all of the grounds of appeal

Arguments of the parties

The Commission notes that in order for the Union to incur non-contractual liability, three conditions must be met, namely the unlawfulness of the conduct of which the Union institution is accused, the occurrence of actual damage and the existence of a causal link between that conduct and that damage. Where one of those conditions is lacking, the claim for compensation should be dismissed without the need to examine the other two.

The first to sixth grounds relied on in support of the appeal relate to the conduct of which OLAF is accused, while the seventh ground concerns only the existence of non-material damage. The Commission considers that Mr Dalli thus does not put forward any ground relating to the condition that there must be a causal link between OLAF’s conduct and the alleged damage. In the Commission’s view, Mr Dalli cannot claim that the seventh ground of appeal also relates to that causal link since, in his appeal, he refers specifically, in the arguments developed in support of that plea, to paragraph 225 of the judgment under appeal, which relates only to the damage, and does not dispute the grounds relating to the absence of a causal link set out in paragraph 224 of the judgment under appeal.

It follows that the grounds of appeal submitted by Mr Dalli do not call into question the basis on which the General Court found that the causal link between OLAF’s conduct and the damage alleged by Mr Dalli had not been established. Since that ground is sufficient to justify the operative part of the judgment under appeal, those grounds of appeal are ineffective and, for that reason, the appeal should be dismissed in its entirety.

Mr Dalli claims that that line of argument should be rejected.

Findings of the Court

It is apparent from the Court’s settled case-law that the Union may incur non-contractual liability under the second paragraph of Article 340 TFEU only if a number of conditions are fulfilled, namely the unlawfulness of the conduct alleged against the Union institution, the fact of damage and the existence of a causal link between the conduct of that institution and the damage complained of (judgment of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union, C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraph 147 and the case-law cited).

As the Court has previously held, if any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions for non-contractual liability on the part of the Union (judgment of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union, C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraph 148 and the case-law cited).

In the present case, it is not disputed that the grounds put forward by Mr Dalli relate to the conditions relating to the unlawfulness of the conduct of which OLAF is accused and the reality of the damage relied on by Mr Dalli. By contrast, the parties disagree as to whether the seventh ground invoked in support of the appeal also relates, in part, to the condition that there must be a causal link between that conduct and that damage.

In that regard, in the first place, the Commission cannot infer from the fact that Mr Dalli referred only to paragraph 225 of the judgment under appeal in the arguments developed in support of the seventh ground of appeal that, by that ground, he does not call into question the findings of the General Court concerning the existence of a causal link between the conduct of OLAF and the damage invoked.

First, it should be noted that the General Court did not, in paragraph 224 of the judgment under appeal, carry out a full examination of that condition. The General Court confined itself, in that paragraph, to finding that Mr Dalli had not adduced any evidence to establish the existence of the non-material damage alleged and to ruling out the existence of a link between the termination of his duties within the Commission and the damage invoked. By contrast, it did not find, in general, that Mr Dalli had not established the existence of a link between OLAF’s conduct and that damage.

Secondly, the General Court considered, in paragraph 225 of the judgment under appeal, that the appellant had not shown that ‘the conduct of which it complains was, by reason of its gravity, such as to cause [him] damage …’. The General Court thus concluded that Mr Dalli had not proved either the reality of the damage or the existence of a causal link between that conduct and the damage.

The conclusion that the appellant had not established the existence of a sufficiently direct causal link between the conduct complained of and the alleged damage is, moreover, set out only in paragraph 226 of the judgment under appeal.

In the second place, by his seventh ground of appeal, Mr Dalli submits, inter alia, that the General Court erred in law by failing to take account of the case-law of the Courts of the Union, from which it follows that, where a person is publicly associated with a fault or where injurious assessments of him or her are widely disseminated, he or she suffers non-material damage by reason of the harm done to his or her reputation.

By that ground, therefore, Mr Dalli submits that it is sufficient to characterise the existence of such conduct on the part of the institutions in order to establish both the existence of damage and a causal link between that conduct and that damage.

In those circumstances, it must be considered that, by the seventh ground of appeal, Mr Dalli calls into question the finding of the General Court that the causal link between OLAF’s conduct and the damage alleged by the appellant was not established. Accordingly, the Commission’s argument that all the grounds put forward by Mr Dalli in support of his appeal are ineffective must be rejected.

– Arguments of the parties

By the first part of the first ground of appeal, Mr Dalli submits that the General Court erred in law in holding, in paragraphs 56 to 58 of the judgment under appeal, that neither Article 1(3) of Regulation No 1073/1999 nor Article 5 of the OLAF Instructions constitute rules of Union law conferring rights on individuals.

The first of those provisions would establish in a clear and precise manner an obligation for OLAF to open an investigation only in the presence of ‘sufficiently serious suspicions’ and ‘serious matters’. The Court confirmed, in the judgments of 10 July 2003, Commission v ECB (C‑11/00, EU:C:2003:395), and of 10 July 2003, Commission v EIB (C‑15/00, EU:C:2003:396), the existence of such an obligation, which protects persons likely to be subject to an OLAF investigation.

As regards the second of those provisions, it makes the opening of an OLAF investigation subject to a series of clear and precise conditions. Since it thus produces effects on third parties, its status as a general or internal rule does not rule out the possibility that it could confer rights on individuals.

The Commission contends that the first part of the first plea should be rejected as unfounded or, in any event, ineffective.

– Findings of the Court

It should be recalled 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 that is intended to confer rights on individuals (judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 29 and the case-law cited).

In that regard, it should be noted, in the first place, that the General Court held, in paragraph 56 of the judgment under appeal, that Article 1(3) of Regulation No 1073/1999 cannot be regarded as such a rule of law, since it merely sets out the objectives and functions of OLAF in the context of administrative investigations.

The argument put forward by Mr Dalli that this assessment is vitiated by an error of law, on the ground that it fails to take account of the fact that that provision makes the opening of an OLAF investigation subject to the fulfilment of two conditions, namely the existence of ‘sufficiently serious suspicions’ and the existence of ‘serious matters’, cannot succeed.

First, that provision specifies that OLAF administrative investigations are ‘for the purpose’ of ‘investigating … serious matters’ liable to prosecution. Since, under the terms of the same provision, the purpose of an OLAF investigation is thus to investigate serious facts, the existence of such facts cannot be regarded as a precondition for the opening of such an investigation.

Secondly, while it is indeed clear from the Court’s case-law that an OLAF investigation can be opened only when there are sufficiently serious suspicions of fraud or corruption or other illegal activities likely to damage the financial interests of the Union (see, to that effect, judgments of 10 July 2003, Commission v ECB, C‑11/00, EU:C:2003:395, paragraph 141, and of 10 July 2003, Commission v EIB, C‑15/00, EU:C:2003:396, paragraph 164), that condition does not result, as noted by the Advocate General in point 50 of his Opinion, from Article 1(3) of Regulation No 1073/1999, which does not refer to the concept of ‘sufficiently serious suspicions’.

In the second place, the General Court held, in paragraph 57 of the judgment under appeal, that Article 5 of the OLAF Instructions does not constitute a rule of law intended to confer rights on individuals, relying on the classification of those instructions as ‘internal rules’ and on the fact that that article describes the selection procedure put in place within OLAF with a view to ensuring that its investigations are conducted in a logical and consistent manner.

It follows that the assessment made by the General Court in that paragraph is not based solely on the classification of that article as an ‘internal rule’, but is also based on its content.

It follows from the very terms of Article 5 of the OLAF Instructions that the purpose of the instructions is to define the conditions for issuing an opinion to the Director of OLAF in the context of a selection procedure and lists elements to be taken into account in that procedure, without laying down any preconditions for the opening of an investigation by OLAF.

In those circumstances, Mr Dalli cannot validly claim that the General Court erred in law in holding that that article does not constitute a rule of law intended to confer rights on individuals.

Consequently, the first part of the first ground of appeal must be rejected as unfounded.

– The second part of the first ground of appeal

– Arguments of the parties

By the second part of the first ground of appeal, Mr Dalli claims that the General Court wrongly held that the duty of care had not been breached.

In the first place, in paragraph 68 of the judgment under appeal, the General Court distorted the facts by failing to specify that the ‘very short period of time’ or ‘short time’ between the transmission of the information contained in the complaint and the decision to open the investigation corresponded not to a day, but to a few hours.

In the second place, contrary to what is apparent from paragraph 68, it could not be inferred from the opinion of the Investigation Selection and Review Unit that that unit carried out investigations into the complainant and two other persons involved in the complaint, since the OLAF Supervisory Committee (‘the Supervisory Committee’) indicated that it did not find any evidence of the existence of any verifications, by OLAF, other than those relating to the existence of the persons and companies whose names appeared in the complaint. OLAF therefore did not carry out the scrutiny which it should have done.

In the third place, the judgment under appeal is insufficiently reasoned, in that it does not set out the reasons why the opinion expressed by the Supervisory Committee was not taken into account.

In the fourth place, the General Court erred in law in holding that OLAF had carried out a sufficient examination of the allegations set out in the complaint against Mr Dalli before deciding to open an investigation in that regard.

The General Court thus failed to set out sufficiently the factual elements referred to by Mr Dalli and the reason why they could not be assessed prior to the opening of the investigation, even though checks could have been carried out in particular as to the position adopted by the complainant in the files before Mr Dalli and as to the complainant’s relations with the Commission.

Furthermore, the General Court’s assessment in paragraph 73 of the judgment under appeal, according to which OLAF could open an investigation on the basis of information set out in a complaint where that information was precise and detailed, without carrying out the checks necessary to assess the credibility of those allegations, is erroneous. Similarly, the General Court should have held, in paragraph 74 of that judgment, that OLAF was under an obligation to satisfy itself that there was no conflict of interest, even if such a conflict did not clearly result from the information received.

The Commission contends that the second part of the first ground of appeal should be rejected as being, in part, inadmissible and, in part, unfounded.

– Findings of the Court

First, as regards Mr Dalli’s claim that, in paragraph 68 of the judgment under appeal, the General Court distorted the facts, it should be borne in mind that, as is clear from the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, the appeal is limited to questions of law. The General Court therefore has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The assessment of those facts and that evidence thus does not, save where they are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 28 May 2020, Asociación de fabricantes de morcilla de Burgos v Commission, C‑309/19 P, EU:C:2020:401, paragraph 10 and the case-law cited).

In paragraph 68 of the judgment under appeal, the General Court did not specifically mention the length of the period elapsing between the receipt of information from the Commission and the opening of the OLAF investigation.

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