Contents
Judgment of the General Court (Fifth Chamber)11 June 2019note(Civil service — Former officials — Investigation by OLAF — Eurostat case — Forwarding to the national judicial authorities of information concerning matters liable to result in criminal proceedings — Failure to inform in advance the officials potentially concerned — Damage allegedly sustained as a result of the conduct of OLAF and the Commission in the course of the proceedings — Non-material, physical and material harm — Causal link)Case T‑138/18,Fernando De Esteban Alonso, former official of the European Commission, residing in Saint-Martin-de-Seignanx (France), represented by C. Huglo, lawyer,vEuropean Commission, represented by R. Striani and J. Baquero Cruz, acting as Agents,THE GENERAL COURT (Fifth Chamber),composed of D. Gratsias, President, I. Labucka and I. Ulloa Rubio (Rapporteur), Judges,Registrar: E. Coulon,gives the following
Judgment
Legal framework
1The European Anti-Fraud Office (OLAF), established by Commission Decision 1999/352/EC, ECSC, Euratom of 28 April 1999 (OJ 1999 L 136, p. 20), is responsible inter alia for carrying out internal administrative investigations intended to investigate serious facts linked to the performance of professional activities which may constitute a breach of obligations by officials and servants of the European Union likely to lead to disciplinary and, in appropriate cases, criminal proceedings.
2Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by OLAF (OJ 1999 L 136, p. 1) governs the inspections, checks and actions undertaken by OLAF’s agents in the exercise of their duties. The investigations conducted by OLAF consist of ‘external’ investigations, that is to say, those carried out outside the European Union institutions, and ‘internal’ investigations, that is to say, those carried out within those institutions. That regulation was repealed by Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by OLAF (OJ 2013 L 248, p. 1).
3Recital 10 of Regulation No 1073/1999 provided:‘Whereas these investigations must be conducted in accordance with the Treaty and in particular with the Protocol on the privileges and immunities of the European Communities, while respecting the Staff Regulations of officials and the conditions of employment of other servants of the European Communities …, 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’.
4Recital 13 of Regulation No 1073/1999 provided:‘Whereas it is for the competent national authorities or the institutions, bodies, offices or agencies, as the case may be, to decide what action should be taken on completed investigations on the basis of the report drawn up by [OLAF]; whereas it should nevertheless be incumbent upon the Director of [OLAF] to forward directly to the judicial authorities of the Member State concerned information acquired by [OLAF] in the course of internal investigations concerning situations liable to result in criminal proceedings’.
5Recital 16 of Regulation No 1073/1999 provided:‘Whereas, to ensure that the findings of investigations conducted by the Office’s employees are taken into account and that the requisite follow-up action is taken, the reports should have the status of admissible evidence in administrative and judicial proceedings; whereas, to that end, they should be drawn up in a manner compatible with the rules governing administrative reports in the Member States’.
6Article 4 of Regulation No 1073/1999 was worded as follows:‘Internal investigations1. 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 the Protocol 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.…5. Where investigations reveal that a member, manager, official or other servant may be personally involved, the institution, body, office or agency to which he belongs shall be informed.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.…’
7Article 9 of Regulation No 1073/1999, entitled ‘Investigation report and action taken following investigations’, provides: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.2. In drawing up such reports, account shall be taken of the procedural requirements laid down in the national law of the Member State concerned. Reports drawn up on that basis shall constitute admissible evidence in administrative or judicial proceedings of the Member State in which their use proves necessary, in the same way and under the same conditions as administrative reports drawn up by national administrative inspectors. They shall be subject to the same evaluation rules as those applicable to administrative reports drawn up by national administrative inspectors and shall be of identical value to such reports.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.’
8Article 10 of Regulation No 1073/1999, entitled ‘Forwarding of information by [OLAF]’, provided: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.2. Without prejudice to Articles 8, 9 and 11 of this Regulation, the Director of [OLAF] shall 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. Subject to the requirements of the investigation, he shall simultaneously inform the Member State concerned.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.’
9Commission 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) prescribes in Article 4 the procedure for informing the interested party, 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.’
10Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, concerning the right to a fair trial, provides:2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.3.Everyone charged with a criminal offence has the following rights:(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;(b) to have adequate time and facilities for the preparation of his defence;…’
11The Charter of Fundamental Rights of the European Union (‘the Charter’) provides:‘Article 41Right to good administration1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union.2.This right includes:– the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;– the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;– the obligation of the administration to give reasons for its decisions.3. Every person has the right to have the Community make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.…Article 48Presumption of innocence and right of defence1. Everyone who has been charged shall be presumed innocent until proved guilty according to law.2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed.’
Facts giving rise to the dispute
12The applicant, Mr Fernando De Esteban Alonso, is a former official of the European Commission who has, inter alia, served as Director of the ‘Information technology, Publications and External Relations’ Directorate at the Statistical Office of the European Union (‘Eurostat’).
13Since 1996, Eurostat has been disseminating to the public statistical data gathered through the Publications Office of the European Union, which set up a network of sales outlets called ‘datashops’ (‘the datashops’). The relationships between Eurostat, the Publications Office of the European Union and each datashop were organised on the basis of tripartite agreements. The datashops established a complex invoicing arrangement which permitted Eurostat to receive up to 55% of the invoice price for data placed on the market.
14In September 1999, an internal audit found irregularities in the financial management of the agreements concluded by Eurostat with the companies Eurocost, Eurogramme, Datashop, Planistat and CESD Communautaire, allowing payments to be made into a ‘financial envelope’ not subject to the budgetary rules of the Commission. As a consequence of that report, the matter was referred to OLAF on 17 March 2000 by the Directorate-General responsible for financial supervision. OLAF initiated a number of investigations concerning, in particular, the contracts concluded by Eurostat with Eurocost, Eurogramme, Datashop, Planistat and CESD Communautaire and the subsidies granted to those companies. In the course of one of those investigations, OLAF gathered information showing that a financial arrangement put in place through the tripartite agreements with the Luxembourg (Luxembourg), Brussels (Belgium) and Madrid (Spain) datashops permitted amounts which should have been properly classified as EU budget ‘receipts’ to avoid such classification.
15On 19 March 2003, the Director-General of OLAF sent the French judicial authorities a letter concerning the ‘Forwarding of information relating to matters liable to be characterised as criminal CMS No IO/2002/0510 — Eurostat/Datashop/Planistat’, together with a note by two OLAF investigators, addressed on the same date to the Director-General of OLAF, concerning ‘Denouncement of matters liable to be characterised as criminal CMS No IO/2002/0510 — Eurostat/Datashop/Planistat’ (‘the note of 19 March 2003’). Following the forwarding of that information, the French public prosecutor at the Tribunal de Grande Instance de Paris (Regional Court, Paris, France) opened, on 4 April 2003, an investigation file in relation to the offences of misappropriation and complicity in breach of trust.
16On 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.
17On 10 July 2003, the Commission filed a complaint against X with the French public prosecutor at the Tribunal de Grande Instance de Paris (Regional Court, Paris). That institution also applied to join the proceedings as a civil party.
18On 25 September 2003, OLAF’s internal investigation into the ‘Datashop — Planistat’ case was closed. The final investigation report and its annexes were submitted to the French judicial authority.
19On 29 January 2004, in response to a request from the public prosecutor’s office, the Commission authorised the waiving of the applicant’s immunity in accordance with Article 17(2) of Protocol No 7 on the privileges and immunities of the European Union. Subsequently, the Commission initiated disciplinary proceedings against the applicant (No 04/001).
20On 7 July 2008, on the instructions of the French public prosecutor at the Tribunal de Grande Instance de Paris (Regional Court, Paris), and in the context of the execution of letters rogatory No 2268/03/19, the applicant was called as a witness by the French judicial police to attend a hearing on offences relating to the Commission.
21On 9 September 2008, at the hearing, the applicant was taken into custody and, on the following day, 10 September 2008, he was placed under investigation for breach of trust for having, ‘in L[uxembourg], B[elgium,] and S[pain], from 1995 to 1997, … misappropriated a part of the funds accruing to the Community budget in order to establish a parallel fund linked to [datashops] in L[uxembourg], B[russels] and M[adrid], given instructions for the use of those funds and [made possible] the over-invoicing of company [C.] for statistical work’.
22On 15 September 2008, after being placed under investigation, the applicant submitted to the Commission a first request for assistance under Article 24 of the Staff Regulations of Officials of the European Union, in the version applicable to the facts of the case (‘the Staff Regulations’). That request was rejected by a Commission decision of 17 December 2008.
23On 18 February 2009, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the rejection of the request for assistance. The complaint against that refusal of assistance was rejected by decision of the appointing authority of 1 April 2009.
24On 21 January 2013, the French Public Prosecutor’s Office made an application for the dismissal of the proceedings against all persons under investigation, including the applicant. This was followed by a dismissal order of 9 September 2013 made by the investigating judge of the Tribunal de Grande Instance de Paris (‘the dismissal order’).
25On 17 September 2013, the Commission, as a civil party, appealed against the dismissal order.
26On 12 December 2013, the applicant submitted to the Commission a second request for assistance based on Article 24 of the Staff Regulations. That second request for assistance was rejected by decision of the Commission of 6 May 2014.
27By judgment of 23 June 2014, the cour d’appel de Paris (Court of Appeal, Paris) held that the Commission’s appeal was unfounded and upheld the dismissal order on the ground, in essence, that ‘the facts complained of … relate[d] to an infringement of European budgetary rules, which persisted as a result of negligence [in the] checks and an indifference to financial control’, that ‘the mere fact that provisions relating to financial control and Community budgetary rules were disregarded [was] not sufficient to constitute [a misappropriation of Community funds]’, that ‘there [was] insufficient evidence against anyone to indicate that there ha[s] been a breach of trust [and] that it [was] not possible to classify the acts in question as any other criminal offence, in particular as forgery and use of forged documents, … since no element of intent ha[s] been established’.
28On 27 June 2014, the Commission appealed in cassation against the judgment confirming the dismissal (see paragraph 27 above).
29On 28 July 2014, the applicant lodged a complaint against the second refusal of assistance, based on Article 24 of the Staff Regulations. On 18 August 2014, that complaint was supplemented. By decision of 21 November 2014, the appointing authority rejected the applicant’s supplemented complaint.
30By application lodged at the Registry of the Civil Service Tribunal on 24 February 2015 (Case F‑35/15), the applicant brought an action seeking, first, annulment of the decision of the appointing authority of 21 November 2014 rejecting his complaint concerning the request for assistance under Article 24 of the Staff Regulations and, secondly, an order that the Commission pay him the provisional sum of EUR 17 242.51.
31By order of 15 July 2015, De Esteban Alonso v Commission (F‑35/15, EU:F:2015:87), the Civil Service Tribunal dismissed the action. On 16 September 2015, the applicant lodged an appeal against that decision.
32By letter of 10 April 2016, the ‘Investigations and Disciplinary Matters’ Office of the Commission notified the applicant of its decision to close the file relating to him.
33By judgment of 15 June 2016, the Cour de cassation (Court of Cassation, France), dismissed the Commission’s appeal.
34By judgment of 9 September 2016, De Esteban Alonso v Commission (T‑557/15 P, not published, EU:T:2016:456), the Court dismissed the appeal brought by the applicant against the order of 15 July 2015, De Esteban Alonso v Commission (F‑35/15, EU:F:2015:87).
35On 22 December 2016 the applicant lodged a claim for compensation for the damage allegedly sustained as a result of the conduct of the Commission, pursuant to Article 90(1) of the Staff Regulations. By decision of 3 May 2017, the appointing authority rejected that claim as unfounded.
36On 1 August 2017, the applicant lodged a complaint against that rejection of his claim for compensation for the damage allegedly sustained as a result of the conduct of the Commission.
37By decision of 29 November 2017, the appointing authority rejected the complaint as unfounded.
Procedure and forms of order sought
38By application lodged at the Registry of the General Court on 28 February 2018, the applicant brought the present action.
39On 18 January 2019, by way of measures of organisation of procedure provided for in Article 89(3)(a) and (d) of its Rules of Procedure, the General Court requested that the Commission reply to questions and provide documents relating to the case. The Commission complied with that request on 6 February 2019.
40Under Article 106(3) of the Rules of Procedure, if no request for a hearing has been submitted by the main parties within three weeks after service of notification of the close of the written part of the procedure, the General Court may decide to rule on the action without an oral part of the procedure. In the present case, since the Court considers that it has sufficient information available to it from the material in the file, it has decided, in the absence of such a request, to give a decision on the action without an oral part of the procedure.
41The applicant claims, in essence, that the Court should:– order OLAF to ‘produce the note of 19 March 2003 relating to the case in Franchet and Byk v Commission, T‑48/05 and order the Commission to pay him the amount of EUR 1102 291.68 in respect of the non-material, physical and material harm he allegedly suffered’;– order the Commission to pay the amount of EUR 3000 in respect of non-recoverable costs and the costs of the proceedings.
42The Commission contends that the Court should:– dismiss the application as unfounded in its entirety; and– order the applicant to pay the costs.
Law
43In support of his action, the applicant argues that OLAF and the Commission disregarded the principle of good administration, the duty of care and the rights of the defence, as laid down in the Charter and the provisions of Regulation No 1073/1999. The applicant relies, in essence, on the existence of errors committed by OLAF and by the Commission on the basis, first, that he was not heard before the evidence against him was forwarded to the French authorities and, secondly, that the Commission continued the criminal proceedings against him without proper justification. According to the applicant, those errors caused him serious material, non-material and physical harm, which had a direct causal link to the alleged errors committed by OLAF and by the Commission.
44The Commission disputes the applicants’ arguments.
Preliminary observations
45It is clear from settled case-law that, in the context of an action for compensation brought by an official or by a servant, the European Union may be held liable for damages only if a number of conditions are satisfied as regards the unlawfulness of the alleged conduct of the institutions, the actual harm suffered and the existence of a causal link between the act and the damage alleged to have been suffered (see judgment of 16 December 2010, Commission v Petrilli, T‑143/09 P, EU:T:2010:531, paragraph 45 and the case-law cited). Those three conditions are cumulative, which means that where one of them is not met, there can be no Union liability (judgment of 13 December 2018, UP v Commission, T‑706/17, not published, EU:T:2018:924, paragraph 72).
46In that regard, it must be pointed out that disputes involving the civil service under Article 270 TFEU and Articles 90 and 91 of the Staff Regulations, including those seeking compensation for damage caused to an official or other member of staff, are governed by particular and special rules that differ from those arising from the general principles on the non-contractual liability of the Union under Article 268 TFEU and the second paragraph of Article 340 TFEU. It is clear from the Staff Regulations in particular that, unlike any other individual, an official or other member of the Union’s staff is connected to the institution to which he belongs by a legal relationship of employment involving a balance of specific reciprocal rights and obligations, which is reflected in the institution’s duty to have regard for the welfare of the person concerned. That balance is essentially intended to preserve the relationship of trust that must exist between the institutions and their officials in order to guarantee to the public that tasks in the public interest entrusted to the institutions are performed effectively. It follows that 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 (see judgment of 16 December 2010, Commission v Petrilli, T‑143/09 P, EU:T:2010:531, paragraph 46 and the case-law cited).
47In the present case, the applicant maintains that the three conditions required for the Union to incur non-contractual responsibility are satisfied. The Court considers it appropriate to examine, first, the condition relating to the illegality of the conduct alleged against OLAF and the Commission, secondly, the condition relating to the harm suffered and, lastly, the condition relating to a causal link between the two preceding elements.
The illegality of the conduct of OLAF and of the Commission
48The applicant submits that errors were committed both by OLAF and by the Commission. He argues in that regard that they disregarded the principle of good administration, the duty of care and the rights of the defence, as laid down in the Charter and the provisions of Decision 1999/396.
49In the first place, the applicant claims that OLAF infringed his rights of defence and Article 4 of Decision 1999/396. He points out, first of all, that the Court, in its judgment of 8 July 2008, Franchet and Byk v Commission (T‑48/05, EU:T:2008:257, paragraph 124), relating to the same ‘Eurostat’ case, stated that the note of 19 March 2003, forwarded by OLAF to the French judicial authorities, constituted an internal investigation. The applicant submits in that regard that, since that note concerned an internal investigation which had been opened in relation to him, he should have been informed and heard with respect to the facts concerning him before the note was forwarded, pursuant to Article 4 of Decision 1999/396 and as established by the case-law of the General Court in Franchet and Byk v Commission. He claims, furthermore, that, under the rules governing OLAF’s internal investigations, OLAF committed a sufficiently serious breach of a rule of law conferring rights on individuals, by failing to defer the obligation to invite the applicant to express his views in agreement with the Secretary-General of the Commission if the administration considered that the investigation could not be communicated to him.
50In the second place, the applicant argues that the Commission infringed the rules governing disciplinary proceedings laid down by Regulation No 1073/1999, by participating in the proceedings before the French national courts, as a civil party, prior to the closure of OLAF’s internal investigation.
51In the third place, the applicant maintains that the Commission infringed the right to good administration and the duty of care by prolonging the legal proceedings against him, up until the matter was brought before the Cour de cassation (Court of Cassation), without producing sufficient evidence against him.
52The Commission argues that it has not made an error of such a kind as to incur liability and contends that the present plea should be rejected.
The illegality of OLAF’s conduct
53The applicant argues that he should have been informed and heard with respect to the facts concerning him before OLAF forwarded the note of 19 March 2003 to the French judicial authorities. He bases his claims on the judgment of 8 July 2008, Franchet and Byk v Commission (T‑48/05, EU:T:2008:257), in which the Court characterised the investigation carried out by OLAF as an internal investigation and held that, under the first paragraph of Article 4 of Decision 1999/396, by failing to fulfil its obligation to inform the official concerned, OLAF had committed a sufficiently serious breach of a rule of law conferring rights on individuals.
54The Commission argues that the applicant was in neither of the two situations provided for by Article 4 of Decision 1999/396, since the information contained in the note of 19 March 2003 sent by OLAF to the national authorities neither personally implicated him nor referred to him by name.
55As a preliminary point, it should be pointed out that provision is made for informing the officials concerned by the investigation only in the context of internal investigations, in accordance with Article 4 of Decision 1999/396. In that regard, it must be noted that, as the Court held in paragraph 124 of the judgment of 8 July 2008, Franchet and Byk v Commission (T‑48/05, EU:T:2008:257), the forwarding of the Datashop — Planistat file to the French judicial authorities on 19 March 2003 concerned an internal investigation. Consequently, that provision is also applicable to the present case.
56It is clear from the provisions of the first paragraph of Article 4 of Decision 1999/396 that the official concerned must be informed rapidly that he may be personally implicated, as long as this would not be harmful to the investigation, and that, in any event, 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 views on all the facts which concern him.
57Failure to apply those provisions, which lay down the conditions under which observance of the rights of defence of the official concerned may be reconciled with the requirements of confidentiality inherent in any investigation of that kind, constitutes an infringement of the essential procedural requirements applicable to the investigation procedure (judgment of 8 July 2008, Franchet and Byk v Commission, T‑48/05, EU:T:2008:257, paragraph 129).
58However, Article 4 of Decision 1999/396 does not expressly concern the forwarding of information to the national judicial authorities and therefore does not impose any obligation to inform the official concerned before such information is forwarded. Under Article 10 of Regulation No 1073/1999, OLAF may (in the case of external investigations) or must (in the case of internal investigations) forward information to the national judicial authorities. The forwarding of that information may therefore precede the ‘conclusions drawn at the close of the investigation’, which are normally included in the investigation report (judgment of 8 July 2008, Franchet and Byk v Commission, T‑48/05, EU:T:2008:257, paragraph 130).
59It should be recalled that, in the judgment of 8 July 2008, Franchet and Byk v Commission (T‑48/05, EU:T:2008:257, paragraph 132), the Court took the view that, at the time when the information was forwarded to the national judicial authorities, there was no report within the meaning of Article 9 of Regulation No 1073/1999 that was submitted to the Commission by OLAF and that personally implicated the applicants in that case. However, the Court pointed out that the note of 19 March 2003 forwarded to the French national judicial authorities contained ‘conclusions referring by name’ to Mr Yves Franchet and Mr Daniel Byk and that before the Datashop — Planistat file was forwarded to the French judicial authorities, the latter were entitled, in principle, to be informed and heard with respect to the facts concerning them, on the basis of Article 4 of Decision 1999/396 (judgment of 8 July 2008, Franchet and Byk v Commission, T‑48/05, EU:T:2008:257, paragraph 145).
60The Court concluded, in Franchet and Byk v Commission, that, in spite of the fact that Article 4 of Decision 1999/396 provides for an exception in cases necessitating the maintenance of absolute secrecy for the purposes of the investigation, according to which the obligation to invite the official concerned to give his views may be deferred in agreement with the Secretary-General of the Commission, the conditions for the application of that exception were not observed and that, consequently, by failing to fulfil its obligation to inform the official concerned, OLAF had committed a sufficiently serious breach of a rule of law conferring rights on individuals.
61In the present case, the Commission argues that the case-law cited cannot apply to the applicant since the information contained in the note of 19 March 2003 sent by OLAF to the national authorities neither personally implicated him nor referred to him by name.
62In that regard, it should be recalled that the first paragraph of Article 4 of Decision 1999/396 lays down the procedure for informing the interested party, 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.’
63That provision must be interpreted in accordance with Article 41(2)(a) of the Charter, with the result that it lays down, in the first place, a general obligation — applicable throughout the investigation — to inform the interested party as soon as his possible ‘implication’ emerges, unless this would be harmful to the investigation. In the second place, that obligation to inform the official concerned becomes particularly important (‘in any event’) in the case of ‘conclusions referring by name to [an] official’. In such a case, the person concerned must be able to express his views on all the facts which concern him before OLAF draws conclusions as to the investigation referring to him by name.
64It is therefore necessary to examine whether the applicant’s possible ‘implication’ is apparent from the information forwarded in the note of 19 March 2003 to the French judicial authorities or whether that information may be regarded as ‘conclusions referring by name to’ the applicant within the meaning of the first paragraph of Article 4 of Decision 1999/396.
65It should be noted at the outset that the applicant requested that the Court order OLAF to produce ‘in full and complete form’ the note of 19 March 2003 placed on the file in Franchet and Byk v Commission, T‑48/05, EU:T:2008:257. However, assuming that the applicant is, by that request, essentially asking the Court to adopt a measure of organisation of procedure in relation to the Commission, it should be pointed out that, in the present case, the note was annexed by the Commission to its defence (Annex B.2) and that the list of annexes accompanying the note and the annexes in question were requested by the Court by way of measures of organisation of procedure.
66It must be pointed out, first of all, that, in the letter accompanying the note of 19 March 2003, the Director-General of OLAF stated that, subject to the assessment of the French judicial authorities, ‘it would appear that OLAF has unearthed fraudulent activities which have harmed the Community budget and which are liable to be characterised as criminal’, explaining that ‘the investigation has revealed that these matters were the work of the operators of the company Planistat Europe SA, whose registered office is in Paris, with the active complicity of European officials’.
67Moreover, in the note of 19 March 2003, annexed to the aforementioned letter, it was stated, in the context of a ‘history of the matters covered by the investigation’, at paragraph 2.3, entitled ‘Findings made during the investigation’, that a report of the Eurostat internal audit dated September 1999 concerning the Datashops in Brussels, Luxembourg and Madrid, on the basis of which the OLAF investigation had begun, ‘ha[d] revealed numerous irregularities committed in the context of the management of those three Datashops in the years 1996 to the end of 1999’ and that, ‘in this case, a significant part of the turnover “declared” by those three Datashops — between 50 and 55% — was placed in a slush fund the use of which was subject to the authorisation of an official of [Eurostat]’.
68That note also stated that ‘the slush fund ha[d] also been used to pay restaurant, hotel and travel expenses … incurred by certain Eurostat officials, including Mr Byk’.
69Next, in the description of the criminal offences, at paragraph 3.1, entitled ‘Breach of trust’, the note stated:‘The setting-up by certain Community officials of a network of economic operators, one of the objectives of which is to conceal from the Commission part of the revenues from the sale of products or of Community statistical services, may constitute the misappropriation “of funds, securities or any property whatsoever” as provided for in Article 314-1 of the [French] Criminal Code, defining breach of trust. All of the constituent elements of the offence were carried out jointly by the Community officials, the management of the Planistat group and the management of the Datashops concerned. The Community officials could not fail to be aware of the financial regulation in force, which obliged them to hand over the revenues in full.Furthermore, the same Community officials used the sums in question for purposes incompatible with the Community interest in so far as that money was clearly used to pay expenses not provided for in the contract between Planistat Europe SA and the Commission, or even those officials’ personal expenses. The fraudulent intent follows from that use for purposes other than Community purposes.’
70Finally, the note stated at paragraph 3.3, entitled ‘Criminal association’:‘According to Article 450-1 of the Criminal Code, “a criminal association consists of any group formed or any conspiracy established with a view to the preparation, marked by one or more material actions, of one or more serious offences or one or more less serious offences punishable by at least five years’ imprisonment …”It remains to be determined whether that characterisation may also be applied in the context of the present case, in so far as the looting of Community funds could not have taken place without the association of the officials, the management of Planistat and the management of Datashops who committed offences of breach of trust.…’
71In that regard, it should be pointed out that, in addition to the fact, already established by the judgment of 8 July 2008, Franchet and Byk v Commission (T‑48/05, EU:T:2008:257), that the note of 19 March 2003 contains ‘conclusions referring by name to’ Mr Franchet and Mr Byk, it is apparent from the same note that other ‘Community officials’, including the applicant, are implicated for the purposes of the first paragraph of Article 4 of Decision 1999/396. It should be pointed out that, in the light of the statements in the note concerning ‘Community officials’, and taking into account the fact that the applicant was the Director of the ‘Information technology, Publications and External Relations’ Directorate and the superior of Mr Byk, a person referred to by name in the note, the implication of the applicant was more than likely, which is why the applicant should at the very least have been informed rapidly by OLAF. That statement is supported by the fact that, first, following the forwarding of the note of 19 March 2003 to the French judicial authorities by the Director of OLAF, the French public prosecutor at the Tribunal de Grande Instance de Paris (Regional Court, Paris) opened, on 4 April 2003, an investigation file concerning the applicant and other officials in relation to the offences of concealing a breach of trust and complicity in it and that, secondly, following the forwarding of that information, the applicant was taken into custody and placed under investigation by the French judicial authorities without having been informed or heard beforehand.
72The Commission maintains in that regard that OLAF’s report, by referring only to ‘Community officials’ working at Eurostat, remained very vague as to the individuals involved and that it was not possible to identify either of those officials personally. According to the Commission, OLAF left the French courts a wide discretion as to what action should be taken on the information provided, as regards both the subject matter of the investigation and the persons under investigation.
73It must be pointed out that, contrary to what the Commission claims, both the purpose of the information and the identity of the persons under investigation were quite apparent from OLAF’s report, leaving the French courts with little room for manoeuvre as regards the applicant’s involvement.
74As regards the purpose of the information, that information was of sufficient detail, as is apparent from the title of the document, ‘Report concerning matters liable to be characterised as criminal’, and from the content of paragraph 2 of that report, ‘history of the matters covered by the investigation’.
75As regards the applicant’s involvement, it must be stated, first, that the report identifies the direct involvement of Mr Franchet, the Director of Eurostat and the applicant’s manager, and Mr Byk, the unit head and the applicant’s subordinate. Accordingly, since the applicant is hierarchically positioned between Mr Franchet and Mr Byk, even though he is not referred to by name in the report, the French criminal authorities would necessarily be led to suspect that the applicant is implicated in the matters described in that report. That assertion is also supported by the dismissal order, which highlights the applicant’s professional relationship with Mr Byk. The dismissal order states that ‘from 1994 [Mr Byk] was working under the control of [the applicant]’ and that the applicant was ‘Mr Byk’s superior’ (pages 13 and 21).
76Secondly, the criminal offences reported in the note of 19 March 2003 clearly show that the applicant was implicated because of his duties and role within Eurostat, and this is supported by the dismissal order. In paragraph 2.3 of the note of 19 March 2003 on the ‘Findings made during the investigation’, it is stated, in the fourth subparagraph, that ‘in this case, a significant part of the turnover “declared” by those three Datashops — between 50 and 55% — was placed in a slush fund the use of which was subject to the authorisation of an official of [Eurostat]’. As is clear from page 9 of the dismissal order, ‘the commercial director of MESSAGERIES DU LIVRE requested that Eurostat, represented by … or Mr DE ESTEBAN, authorise payment of the invoices issued’. It should be noted that, as is apparent from the case file, that authorisation could be granted by only five persons, including a person referred to by name in the note and the applicant. Moreover, on page 15 of the dismissal order, it is explained that ‘until 1998 … financial reserve transactions were carried out under the control [of the applicant], Mr Byk’s supervisor.’ As a result, there was no doubt as to the identity of the persons implicated in the matters described in the note sent by OLAF. The same considerations apply to the statements that ‘certain Community officials [set up] a network of economic operators, one of the objectives of which is to conceal from the Commission part of the revenues’, and that ‘the same Community officials used the sums in question’ (page 7 of the note of 19 March 2013, paragraph 3.1 Breach of trust). By virtue of their functions within Eurostat, the implicated persons described had a role as economic operators who — also by virtue of their functions — were capable of disposing of the sums in question. Accordingly, the facts described in the note of 19 March 2013 show quite clearly that the applicant, who was the Director of the ‘Information technology, Publications and External Relations’ Directorate of the Commission and Mr Byk’s superior, was implicated.
77In those circumstances, it must therefore be held that, as a consequence of the information forwarded by OLAF in the note of 19 March 2003 to the French judicial authorities, the applicant should have been treated, in view of the position he held at the material time, in the same way as the persons referred to by name in OLAF’s conclusions.
78Moreover, as regards the exception relating to the need to maintain absolute secrecy for the purposes of the investigation, provided for in the second paragraph of Article 4 of Decision 1999/396, it was noted in paragraphs 148 and 149 of the judgment of 8 July 2008, Franchet and Byk v Commission (T‑48/05, EU:T:2008:257), that, in spite of the fact that the Director-General of OLAF had stated in the note of 3 April 2003 that ‘officials of Eurostat and of the Office for Official Publications of the European Communities were involved, that that part had been transmitted to the French judicial authorities and that it was appropriate to defer informing the officials in accordance with Article 4 of Decision 1999/396 owing to the necessity to maintain absolute secrecy for the purposes of the investigation’, the Commission had confirmed, in a written response to the Court, that its Secretary-General had not had the opportunity to give his agreement to defer the obligation to invite Mr Franchet and Mr Byk to express their views.
79In the present case, it should be noted that the Commission confirmed, following a written question put by the Court by way of measures of organisation of procedure, that, as regards the applicant, the matter had not been referred to its Secretary-General, because the applicant was not referred to by name in OLAF’s conclusions and, consequently, his case falls outside the scope of Article 4 of Decision 1999/396. Accordingly, OLAF was neither required to enable the applicant to express his views nor free to defer such a hearing. It must be pointed out that, as is apparent from paragraph 77 above, in the light of the information contained in the note of 19 March 2003 forwarded by OLAF to the French judicial authorities, the applicant should have been treated in the same way as the persons referred to by name in OLAF’s conclusions, for the purposes of the second sentence of the first paragraph of Article 4 of Decision 1999/396.
80Moreover, it must be observed that, according to the case-law, the obligation to seek and obtain the agreement of the Secretary-General of the Commission is not a mere formality that might, in an appropriate case, be complied with at a later stage. The requirement to obtain such agreement would lose its rationale, which is to ensure that the rights of defence of the officials concerned are respected, that OLAF can defer informing them only in truly exceptional cases and that the assessment of that exceptional nature is not a matter solely for OLAF but also requires the assessment of the Secretary-General of the Commission (judgment of 8 July 2008, Franchet and Byk v Commission, T‑48/05, EU:T:2008:257, paragraph 151).
81Consequently, the conditions for the application of the exception provided for in the second paragraph of Article 4 of Decision 1999/396, allowing the deferral of the hearing in question, have likewise not been fulfilled so far as concerns the applicant, who was implicitly but necessarily referred to in the note of 19 March 2013.
82In those circumstances, OLAF infringed Article 4 of Decision 1999/396 and the applicant’s rights of defence when forwarding the Datashop — Planistat file to the French judicial authorities.
83In any event, even assuming that the applicant cannot be treated in the same way as a person referred to by name in OLAF’s conclusions for the purposes of the second sentence of the first paragraph of Article 4 of Decision 1999/396, it must be held that it follows from all the foregoing that the applicant should, at the very least, have been regarded as being implicated in the matters which gave rise to the present case and, accordingly, informed rapidly, in so far as it had not been established that this would have been harmful to the investigation, in accordance with the first sentence of the first paragraph of that article.
84In that regard, it should be noted that the documents in the file do not seem to identify any reason capable of justifying OLAF’s failure to inform the applicant. On the contrary, according to the minutes of the 1613th meeting of the Commission held on 21 May 2003, which are annexed to the defence, the Commission had noted that ‘the Anti-Fraud Office intended to speed up its investigations under way and, in particular, to give officials identified as being potentially involved the opportunity to state their case’. It is apparent from that statement that no compelling reason to maintain the absolute secrecy of the investigation in question had been identified at that stage. Moreover, there appears to be nothing in the file to show that the applicant might have hindered the investigation, if he had been informed of his possible implication in the matter.
85It must therefore be held that OLAF failed to comply with its obligation to inform the applicant, an obligation incumbent on it under the first sentence of the first paragraph of Article 4 of Decision 1999/396.
86The question of the extent to which the illegalities found to exist could have caused the harm alleged by the applicant will be examined in paragraph 122 et seq. below.
The illegality of the Commission’s conduct
87The applicant puts forward two complaints. In the first place, he argues that the Commission, by applying to join the proceedings before the French courts as a civil party prior to the closure of the investigation carried out by OLAF, failed to comply with the rules governing Regulation No 1073/1999.
88In the second place, the applicant argues that the Commission infringed the right to good administration and its duty of care to him, by repeatedly prolonging the legal proceedings, up until the matter was brought before the Cour de cassation (Court of Cassation), without producing sufficient evidence against him.
–The complaint alleging that the Commission failed to comply with the rules under Regulation No 1073/1999, by applying to join the proceedings before the French courts as a civil party prior to the closure of the investigation carried out by OLAF
89The Commission argues that this complaint must be declared inadmissible, since it was raised for the first time in the application submitted to the General Court by the applicant and had not been previously referred to in the pre-litigation stage.
90It should be recalled that, as is apparent from settled case-law, the rule of correspondence between the complaint, under Article 91(2) of the Staff Regulations, and the subsequent application requires that, in order to be admissible, the pleas directed against the act adversely affecting the applicant and raised before the European Union judicature must have already been raised in the pre-litigation procedure, so that the appointing authority was in a position to know the criticisms which the person concerned is making against the contested decision. That rule is justified by the very purpose of the pre-litigation procedure, which is to allow for an amicable settlement of disputes arising between officials and the administration (see judgment of 5 March 2015, Gyarmathy v FRA, F‑97/13, EU:F:2015:7, paragraph 67 and the case-law cited).
91Therefore, in actions brought by officials, claims before the European Union judicature may contain only heads of claim based on the same matters as those raised in the complaint, although those heads of claim may be developed before the European Union Courts by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it (see judgment of 5 March 2015, Gyarmathy v FRA, F‑97/13, EU:F:2015:7, paragraph 68 and the case-law cited).
92Finally, it is important to note that, since the pre-litigation procedure is informal in character and those concerned act, in general, without the assistance of a lawyer at that stage, the administration must not interpret the complaints restrictively but must, on the contrary, examine them with an open mind. Furthermore, Article 91 of the Staff Regulations is not intended to be strictly and definitively binding for the purposes of a possible contentious stage of the procedure, provided that neither the heads of claim nor the relief sought in the complaint are changed in the action brought. However, the fact remains that, in order for the pre-litigation procedure provided for under Article 91(2) of the Staff Regulations to achieve its objective, it is necessary that the appointing authority be in a position to know with sufficient precision the criticisms formulated by the persons concerned against the contested decision (see judgment of 5 March 2015, Gyarmathy v FRA, F‑97/13, EU:F:2015:7, paragraph 69 and the case-law cited).
93In the present case, it must be noted that, both in the claim for compensation and in the complaint, the applicant alleges unlawful acts committed by OLAF and by the Commission as a result of the failure to hear him and inform him of the forwarding of the OLAF file to the French judicial authorities and as a result of the Commission’s doggedness in the proceedings before the French courts, without any new evidence and after he had been cleared by the dismissal order. His legal argument is therefore put forward in two parts throughout the pre-litigation procedure, whereas it is set out in three complaints in the application lodged with the Court. However, it should be pointed out that, in the claim for compensation submitted to the appointing authority on 22 December 2016, the applicant criticised the fact that ‘the Commission applied to join the proceedings as a civil party without being required to do so’ in the context of the complaint relating to the unlawful act committed by the Commission as a result of continuing the criminal proceedings against him after he had been cleared (point 14, second paragraph, page 6, Annex A 11 to the application). Moreover, in the complaint lodged on 1 August 2017 against the appointing authority’s decision to reject his claim for compensation, the applicant states that ‘it is on the basis of that investigation, which was closed on 25 September 2003, that the investigating judge … notified that order to the persons under investigation’ (page 5, Annex A 13). Furthermore, the applicant claims in the complaint that ‘the European Commission has been truly obstinate in the criminal proceedings’ against him (page 6, Annex A 13).
94It follows from the foregoing that, even if the arguments in the second complaint, criticising the fact that the Commission applied to join the proceedings before the French courts as a civil party prior to the closure of the investigation carried out by OLAF, were not raised as a separate head of claim in the complaint, those arguments are based on the same matters as the heads of claim raised in the complaint and were put forward throughout the pre-litigation stage. Moreover, that line of argument is closely linked to the complaint concerning unlawful acts committed by the Commission as a result of the legal steps it took against the applicant, first, in applying to join the proceedings as a civil party and, secondly, in initiating criminal proceedings against the applicant without having sufficient evidence against him. That complaint must therefore be regarded as admissible in accordance with the case-law cited in paragraph 91 above.
95It is therefore necessary to examine whether the Commission, by applying to join the proceedings before the French courts as a civil party prior to the closure of the investigation carried out by OLAF, failed to comply with the rules laid down by Regulation No 1073/1999.
96The Commission argues in that regard that it lodged a complaint and applied to join the proceedings before the French courts as a civil party in response to information received from the Paris public prosecutor’s office, according to which, pursuant to Article 113-8 of the French Code of Criminal Procedure, the Commission has to lodge a complaint with the Paris public prosecutor’s office to prevent the financial claim from being limited solely to the offences of concealment committed in France and to allow the Commission to seek compensation for the whole of the damage suffered in Luxembourg and Brussels too (see Annex B.11).
97In that regard, Article 9(4) of Regulation No 1073/1999 provides as follows in relation to internal investigations:‘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.’
98As regards disciplinary proceedings, in Franchet and Byk v Commission (T‑48/05, EU:T:2008:257, paragraph 351), the Court held that the Commission had breached the rules governing disciplinary proceedings because it initiated the disciplinary proceedings against Mr Franchet and Mr Byk before OLAF’s investigations had been closed. Moreover, the Court recalled that the objective pursued by those rules was, in particular, to protect the official concerned by ensuring that, before initiating disciplinary proceedings, the appointing authority had the precise and relevant evidence, in particular exonerating evidence, established in the investigation conducted by OLAF, which has extensive investigative means. For that reason, the rules governing the disciplinary proceedings referred to constitute rules of law conferring rights on individuals.
99Moreover, the Staff Regulations state, in Article 25 of Annex IX relating to disciplinary proceedings, that ‘where the official is prosecuted for those same acts, a final decision shall be taken only after a final verdict has been reached by the court hearing the case’.
100In the present case, the applicant is calling into question not the fact that disciplinary proceedings were initiated against him, but the fact that the Commission initiated legal proceedings against him before the OLAF investigation had been closed. While it is true that there is no express rule prohibiting the Commission from applying to join proceedings as a civil party or from initiating criminal proceedings against an official until OLAF has delivered its final investigation report, the fact remains that the reasoning set out above with regard to disciplinary proceedings may also apply by analogy to national legal proceedings, which is in keeping with the spirit and the letter of Regulation No 1073/1999.
101Article 9(2) and (4) of Regulation No 1073/1999 provides, first, that ‘reports drawn up … shall constitute admissible evidence in administrative or judicial proceedings of the Member State in which their use proves necessary, in the same way and under the same conditions as administrative reports drawn up by national administrative inspectors’ and, secondly, that ‘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’.
102Thus, in accordance with those provisions, where OLAF has carried out an investigation within the meaning of Regulation No 1073/1999, the institution concerned must take such legal action as the investigation report warrants, in so far as that report constitutes evidence necessary for that procedure.
103Moreover, the Commission, at its meeting of 21 May 2003 (see the minutes of the 1613th meeting of the Commission held on 21 May 2003, pp. 15 and 16), referring to the ‘Eurostat’ case and the OLAF investigation, emphasised ‘the need for compliance with the presumption of innocence’ and stated that ‘the information available to it at this stage did not enable it to draw any conclusions as to the officials concerned’. However, it is apparent from those minutes that the Commission decided ‘to join a civil claim to the criminal proceedings initiated by the French public prosecutor at the Tribunal de Grande Instance de Paris (Regional Court, Paris), following the referral to the Anti-Fraud Office’. To that end, ‘it asked the Budget DG to analyse the action taken on the audit reports drawn up by Eurostat as regards compliance with the Financial Regulation’. Moreover, as stated in paragraph 84 above, the Commission ‘noted that the Anti-Fraud Office intended to speed up its investigations under way and, in particular, to give officials identified as being potentially involved the opportunity to state their case’. The Commission also stated that the Director-General of OLAF expected the results to be available by the end of June 2003. Finally, the Commission ‘asked the Secretary-General to coordinate the various aspects of this matter and to propose the necessary internal measures and procedures’.
104It is clear from those minutes that the Commission was aware at that date, that is to say on 21 May 2003, that it was necessary to ensure observance of the principle of the presumption of innocence in the case in question, since the information at its disposal did not support the conclusion that the officials referred to by name, or indeed the officials potentially implicated, including the applicant, were guilty. Moreover, the Commission decided to join the proceedings as a civil party and, to that end, instructed the Budget Directorate-General to analyse the action taken on the audit reports drawn up by Eurostat and drew attention to the fact that OLAF intended to speed up its investigations and to deliver the findings of the investigations by the end of June 2003. To that end, the Commission had asked the Secretary-General to coordinate that information and to propose the necessary internal measures and procedures.
105However, it is clear from the case file that on 10 July 2003 the Commission filed a complaint against X and applied to join the proceedings as a civil party, before the OLAF investigation had ended and without having any evidence other than that presented by OLAF in the report sent on 19 March 2003 (see Annex B3, Commission decision to file a complaint against X, paragraph 14).
106The OLAF investigation was closed on 25 September 2003 and, subsequently, the final report and its annexes were submitted to the French judicial authority (see Annex B4, OLAF’s final report 295/09/2003). It should be noted that, in the final investigation report, OLAF states that ‘following OLAF’s submission to the Commission’s Legal Service of a detailed report of 22 April 2003, the European Commission authorised the Legal Service to lodge a complaint in respect of the injury suffered’. Nevertheless, it should be noted that that detailed report of 22 April 2003 (see Annex B11, Note for the Commission’s Legal Service) provides no information, indication or evidence as regards the acts and officials potentially subject to criminal liability. That letter from the Director-General of OLAF merely refers to the forwarding of the note of 19 March 2003 to the French authorities and states that he received from the French courts information according to which, pursuant to Article 113-8 of the French Code of Criminal Procedure, the Commission must file a complaint with the Paris public prosecutor’s office to prevent the financial claim from being limited solely to the offences of concealment committed in France and to allow the Commission to seek compensation for the whole of the damage suffered in Luxembourg and Brussels, too.
107Moreover, it should be pointed out that Article 87 of the French Code of Criminal Procedure provides, with regard to joining the proceedings as a civil party if the public prosecutor’s office opens a judicial investigation, that ‘it is possible to join the proceedings as a civil party at any time during the course of the investigation’. Accordingly, the Commission could have waited for OLAF’s investigation to close before joining the proceedings as a civil party and filing a complaint. Furthermore, as was apparent from the minutes of 21 May 2003, the Commission had been informed that ‘the Anti-Fraud Office intended to speed up its investigations under way’ and ‘that the Director-General of the Anti-Fraud Office expected the results to be available by the end of June [2003]’.
108In those circumstances, it must be held that the Commission should not have applied to join the proceedings as a civil party and lodged a complaint before the French national courts prior to the closure of OLAF’s investigation, relating to the same facts, with a view to protecting the officials concerned. Indeed, only by having available the findings of the OLAF investigation would the Commission have been in a position to take an informed decision, having regard to all the evidence uncovered by OLAF, which could include precise and relevant evidence exonerating the officials concerned.
109In the light of the foregoing considerations, it must be held that the Commission infringed Regulation No 1073/1999 and, in particular, Article 9(4) thereof, by joining the proceedings as a civil party and by filing complaints with the French courts before the delivery of OLAF’s final report, without having available sufficient and conclusive exculpatory evidence concerning the persons potentially implicated by the note of 19 March 2003, including the applicant.
110The question of the extent to which that unlawful act caused harm to the applicant will be examined in paragraph 122 et seq. below.
–The complaint alleging infringement of the right to good administration and of the Commission’s duty of care as a result of having prolonged the legal proceedings without having produced sufficient evidence
111In that regard, it should be recalled that the ability to assert one’s rights through the courts and the judicial control which that entails constitute the expression of a general principle of law which underlies the constitutional traditions common to the Member States and which is also laid down in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (judgments of 15 May 1986, Johnston, 222/84, EU:C:1986:206, paragraphs 17 and 18, and of 17 July 1998, ITT Promedia v Commission, T‑111/96, EU:T:1998:183, paragraph 60) and in Article 47 of the Charter. As access to the Court is a fundamental right and a general principle ensuring the rule of law, it is only in wholly exceptional circumstances that the fact that legal proceedings are brought by an institution is capable of constituting an administrative fault (see, to that effect, judgment of 28 September 1999, Frederiksen v Parliament, T‑48/97, EU:T:1999:175, paragraph 97).
112In the present case, it must be held that, whatever the wording of the dismissal order and the judgment of the Cour d’appel de Paris (Court of Appeal, Paris), the circumstances of the case do not appear so exceptional as to warrant the conclusion that the appeal and the appeal in cassation constituted administrative faults on the part of the Commission for the purposes of the case-law referred to above. Moreover, it should be noted that the applicant has not adduced evidence capable of showing that the Commission, by reason of its conduct, committed such a fault.
113It follows that the applicant has no grounds for claiming compensation for material, physical and non-material harm caused by the fact that the Commission challenged the dismissal order before the French criminal courts between 2013 and 2016.
114As regards the infringement of the right to good administration and of the Commission’s duty of care as a result of having prolonged the legal proceedings against the applicant, it should be recalled that, according to the case-law, the duty of care reflects the balance of reciprocal rights and obligations in the relationship between a public authority and its staff. That balance implies in particular that when the authority takes a decision concerning the position of an official, it should take into consideration all the factors that may affect its decision and, when doing so, it should take into account not only the interests of the service but also, in particular, those of the official concerned. That latter obligation is also imposed on the administration by the principle of good administration laid down in Article 41 of the Charter (see, to that effect, judgment of 13 December 2017, Arango Jaramillo and Others v EIB, T‑482/16 RENV, EU:T:2017:901, paragraph 131 (not published and the case-law cited)).
115In the present case, as was pointed out in paragraph 112 above, the Commission did not commit an administrative fault by challenging the dismissal order before the French criminal courts up until the stage of cassation, with a view to defending the economic interests of the institution. Similarly, the duty of care of the administration towards the applicant cannot, under any circumstances, impose on it an obligation not to defend the economic interests of the institution and, consequently, not to challenge the decisions of the French courts. That complaint must therefore be rejected.
Whether the alleged damage was actually sustained and the existence of a causal link
116In the light of the particularly close link, in the circumstances of the present case, between the question whether the applicant sustained damage for which compensation might be awarded and the question of the causal link between the illegalities found and the alleged damage, those two questions must be dealt with together.
117As a preliminary point, the applicant claims that he suffered pecuniary damage resulting from the harm to his reputation and his honour caused by the serious and unfounded accusations made against him, as well as non-material damage resulting from the suffering caused by the fact that proceedings were ceaselessly and recklessly pursued against him by the administration. In his view, that material, non-material and physical harm was caused by the infringement of the rules relating to OLAF’s investigations and by the Commission’s unjustified and disproportionate conduct in relation to him.
118In particular, the applicant submits that, in the case of the material harm, the unlawful conduct of the Commission caused him significant representation costs. He claims in that regard, first, the sum of EUR 39 293.38 for legal costs incurred before the French national courts and the EU courts, and, secondly, the sum of EUR 872.74 for travel expenses incurred during the legal proceedings.
119Next, the applicant claims that the fact that he was placed under investigation and was subject to lengthy criminal proceedings caused him non-material harm. He argues that his honour and professional reputation were damaged because legal proceedings were brought against him before OLAF’s internal investigation had been closed and because, after he had been cleared by the French courts, his innocence was challenged up until the stage of cassation, in the absence of sufficiently precise and relevant evidence. In his view, the proceedings brought against him led his former colleagues and those close to him to believe that he was implicated in a financial scandal. As a result, he is seeking compensation in the amount of EUR 500000 for the non-material harm suffered as a result of the unlawful acts committed by the Commission.
120Lastly, the applicant argues that the serious errors alleged against the EU administration also caused him harm relating to his state of health, since, as a result of the anxiety caused by the criminal proceedings ceaselessly and recklessly initiated against him, he developed a serious illness which has been supported by a medical report. On that basis, he claims the sums of EUR 500000 as compensation for the physical injury suffered as a result of the deterioration in his state of health and EUR 2 125.56 as compensation for all the medical examination costs incurred by him owing to the illness he developed as a consequence of the Commission’s disproportionate and unjustified behaviour towards him.
121The Commission disputes the applicant’s claims.
122It must be borne in mind, as a preliminary point, that, according to the consistent case-law, in order to found a claim for compensation, damage must be a sufficiently direct consequence of the conduct complained of (judgments of 4 October 1979, Dumortier and Others v Council, 64/76, 113/76, 167/78, 239/78, 27/79, 28/79 and 45/79, EU:C:1979:223, paragraph 21; of 27 June 2000, Meyer v Commission, T‑72/99, EU:T:2000:170, paragraph 49, and of 8 July 2008, Franchet and Byk v Commission, T‑48/05, EU:T:2008:257, paragraph 397). It also follows from settled case-law that it is for the person claiming damages to adduce evidence of the causal link (see, to that effect, judgments of 30 January 1992, Finsider and Others v Commission, C‑363/88 and C‑364/88, EU:C:1992:44, paragraph 25; of 30 September 1998, Coldiretti and Others v Council and Commission, T‑149/96, EU:T:1998:228, paragraph 101, and of 8 July 2008, Franchet and Byk v Commission, T‑48/05, EU:T:2008:257, paragraph 397).
123In that regard, it must be borne in mind that, on the one hand, the wrongful conduct of OLAF for which the European Union might incur liability consisted in the forwarding of information to the French judicial authorities without having heard the applicant or, at the very least, having kept him informed (see paragraphs 82 and 85 above). On the other hand, the wrongful conduct of the Commission for which the European Union might incur liability was joining the proceedings as a civil party and bringing a complaint against the applicant prior to the closure of OLAF’s investigation (see paragraph 108 above).
124The applicant has relied on three separate forms of damage in the present case, namely material damage, non-material damage and physical damage. Each of those types of damage must be examined in turn in order to assess the extent to which their existence, on the one hand, and the causal link between them and the conduct alleged against OLAF and the Commission, on the other hand, have been established.
Material damage
125The applicant argues that the unlawful conduct of the Commission caused him significant representation costs. He claims in that regard, first, the sum of EUR 39 293.38 for legal costs incurred before the French national courts and the EU courts, and, secondly, the sum of EUR 872.4 for travel expenses incurred during the legal proceedings.
126In that regard, it should be observed that, as the Commission correctly states, any fees which the applicant incurred for his defence before the EU Courts are not material damage but costs. It must be borne in mind that the costs incurred by the parties for the purpose of the judicial proceedings cannot as such be regarded as constituting damage distinct from the burden of costs (see, to that effect, judgment of 10 June 1999, Commission v Montorio, C‑334/97, EU:C:1999:290, paragraph 54).
127Moreover, as regards any costs corresponding to the conduct of the proceedings before the national courts, it must be held that they cannot be recovered in the context of the present case, in the absence of a causal link between that alleged damage and the errors committed by OLAF and the Commission (see, to that effect, judgment of 10 June 2004, François v Commission, T‑307/01, EU:T:2004:180, paragraph 109). In any event, the question of recovery of the costs incurred at national level falls within the exclusive jurisdiction of the national court, which, in the absence of EU harmonisation measures in that area, must settle such a question pursuant to the provisions of the applicable national law (see, to that effect, judgment of 18 September 1995, Nölle v Council and Commission, T‑167/94, EU:T:1995:169, paragraph 37).
128In those circumstances, the applicant’s claim for compensation for the material damage allegedly suffered must be rejected.
Non-material damage
129The applicant argues that his honour and professional reputation were damaged because legal proceedings were brought against him before OLAF’s internal investigation had been closed and because, after he had been cleared by the French courts, his innocence was challenged up until the stage of cassation, in the absence of sufficiently precise and relevant evidence. In his view, the proceedings brought against him led his former colleagues and those close to him to believe that he was implicated in a financial scandal. As a result, he is seeking compensation in the amount of EUR 500000 for the non-material harm suffered as a result of the unlawful acts committed by the Commission.
130In the present case, it should be pointed out, first of all, that damage was caused to the applicant’s honour and professional reputation by the fact that the Commission applied to join the proceedings before the French courts as a civil party and lodged a complaint with those courts prior to the closure of the investigation carried out by OLAF. The Commission’s conduct caused the applicant non-material harm, because it suggested that he had been culpable in the performance of his duties and led his professional and personal associates to believe that he was implicated in fraudulent activities and a financial scandal. It must therefore be held that that harm is a direct result of the Commission’s conduct and that there is thus a causal link between the conduct and that harm in accordance with the case-law cited in paragraph 122 above.
131Moreover, the fact that OLAF 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 caused him non-material harm sustained as a result of not having been able to express his views or defend himself in relation to the facts which led to the proceedings against him. Indeed, the fact that he was not heard caused him a feeling of injustice, helplessness and frustration. It must be held that that harm results from OLAF’s unlawful conduct and that, consequently, there is a causal link between the alleged harm and the unlawful act committed.
132Finally, as regards the non-material harm suffered by the applicant linked to the fact that criminal proceedings were pursued by the Commission up until the stage of cassation after he had been cleared at first instance by the French courts, while it is certainly true that such uncertainty may have caused disruptions in the applicant’s private life constituting non-material harm, the fact remains that the applicant has not succeeded in demonstrating that that conduct is unlawful. Accordingly, since one of the three conditions required for the European Union to incur non-contractual responsibility is not satisfied with respect to those allegations, the damages claims must be rejected, in accordance with the case-law cited in paragraph 45 above, without there being any need to consider whether the other two conditions are met.
133It is apparent from all the foregoing that the applicant has sustained non-material harm consisting, on the one hand, in damage to his honour and professional reputation and, on the other hand, in a feeling of injustice, helplessness and frustration he experienced. It is therefore appropriate to decide ex æquo et bono that compensation of EUR 62000 constitutes appropriate recompense for that harm.
The physical damage
134The applicant argues that the serious errors alleged against the EU administration caused him harm relating to his state of health, since, as a result of the anxiety caused by the lengthy criminal proceedings recklessly initiated against him, he developed a serious illness which has been supported by a medical report. In those circumstances, he claims the sums of EUR 500000 as compensation for the physical injury suffered as a result of the deterioration in his state of health and EUR 2125 56 as compensation for all the medical examination costs.
135In the present case, it should be noted that, as the applicant himself acknowledged in his pleadings, the deterioration in his state of health had to occur exclusively between 10 September 2008, when he was placed under investigation, and 15 June 2016, when the judgment of the Cour de cassation (Court of Cassation) was delivered. However, even assuming that the evidence adduced by the applicant shows that his state of health deteriorated as a result of the criminal proceedings instituted against him, this cannot alter the fact that the applicant has not established to the requisite legal standard, as is apparent from the present judgment, that the Commission’s conduct seeking to challenge the dismissal order on appeal and then in cassation proceedings was unlawful.
136Consequently, since one of the three conditions required for the European Union to incur non-contractual responsibility is not satisfied, the damages claims must be rejected, in accordance with the case-law cited in paragraph 45 above, without there being any need to consider whether the other two conditions are met.
Costs
Claim relating to non-recoverable costs
137The applicant claimed that the Commission should be ordered to pay the sum of EUR 3000 in respect of ‘non-recoverable costs’.
138The Commission did not express a view in that regard.
139In the present case, it should be pointed out that the applicant does not specify the nature of the non-recoverable costs claimed. However, if the applicant’s claim seeks compensation for the expenses necessarily incurred by him for the purpose of the proceedings, it should be recalled that, under Article 140 of the Rules of Procedure, such expenses are included in the costs of the proceedings (see, to that effect, order of 18 November 2013, Trabelsi v Council, T‑162/12, not published, EU:T:2013:619, paragraphs 32 to 36).
140Consequently, they must be examined together with the claim that the Commission should be ordered to pay the costs.
Decision on costs
141Under Article 134(3) of the Rules of Procedure, the parties are to bear their own costs, where each party succeeds on some and fails on other heads. However, if it appears justified in the circumstances of the case, the General Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party.
142In the present case, since the action has in all essential respects been upheld, the Court decides, on an equitable assessment of the matter, and regard being had to the particular context of the case, that the Commission is to bear its own costs and those incurred by the applicant.
Operative part
On those grounds,THE GENERAL COURT (Fifth Chamber)hereby:
1.Orders the European Commission to pay Mr Fernando De Esteban Alonso the sum of EUR 62000 as compensation for the non-material damage he suffered;
2.Dismisses the remainder of the action;
3.Orders the Commission to bear its own costs and those incurred by Mr De Esteban Alonso.
Delivered in open court in Luxembourg, on 11 June 2019.
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