Opinion of Advocate General Szpunar delivered on 22 September 2020.

• Jurisdiction: European Union
• Date: 22 September 2020
• Court: Court of Justice (European Union)

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 22 September 2020 (1)

Case C‑615/19 P

John Dalli

v

European Commission

(Appeal – Action for damages – Non-contractual liability – Compensation for damage purportedly suffered by the appellant as a result of allegedly illegal conduct of the Commission and the European Anti-Fraud Office (OLAF) connected with the termination of his office as a Member of the Commission on 16 October 2012)

I. Introduction

1. By his appeal, Mr John Dalli seeks the setting aside of the judgment 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 of the European Union dismissed his action for compensation for the harm purportedly suffered by him as a result of allegedly illegal conduct of the European Commission and the European Anti-Fraud Office (OLAF), connected with the termination of his office as a Member of the Commission.

2. This appeal provides the Court with the opportunity of ruling on several novel issues relating to the investigative tasks of OLAF and the conduct of those investigations. Furthermore, the Court will be called upon to clarify certain aspects of the case-law on the force of res judicata and on the demonstration of the existence of non-material damage.

3. As requested by the Court, I will restrict my analysis in this Opinion to the argument raised by the Commission regarding the inadmissibility of the action before the General Court and to the first ground of appeal, the first part of the third ground of appeal and the fifth and seventh grounds of appeal.

II. Legal context

A. Regulation (EC) No 1073/1999

4. Article 1(3) of Regulation (EC) No 1073/1999, (2) which is applicable to the facts at issue, (3) provides:

‘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”).’

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

6. Article 5 of the regulation provides:

‘External investigations shall be opened by a decision of the Director of the Office, acting on his own initiative or following a request from a Member State concerned.

Internal investigations shall be opened by a decision of the Director of the Office, acting on his own initiative or following a request from the institution, body, office or agency within which the investigation is to be conducted.’

7. Article 6(1) of the same regulation states that the Director of the Office is to direct the conduct of investigations.

8. Article 8(3) of Regulation No 1073/1999 reads as follows:

‘The Director shall ensure that the Office’s employees and the other persons acting under his authority observe the Community and national provisions on the protection of personal data, in particular those provided for in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data ^[(4)^].’

9. Article 11(1) and (7) of that regulation reads thus:

‘1. The Supervisory Committee shall reinforce the Office’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 the Office, without however interfering with the conduct of investigations in progress.

…

7. The Director shall forward to the Supervisory Committee each year the Office’s programme of activities … The Director shall keep the committee regularly informed of the Office’s activities, its investigations, the results thereof and the action taken on them. Where an investigation has been in progress for more than nine months, the Director shall inform the Supervisory Committee of the reasons for which it has not yet been possible to wind up the investigation, and of the expected time for completion. The Director shall inform the committee of cases where the institution, body, agency or office concerned has failed to act on the recommendations made by it. The Director shall inform the committee of cases requiring information to be forwarded to the judicial authorities of a Member State.’

10. Article 14 of the regulation provides:

‘Pending amendment of the Staff Regulations, any official or other servant of the European Communities may submit to the Director of the Office a complaint by virtue of this Article against an act adversely affecting him committed by the Office as part of an internal investigation …

The above provisions shall apply by analogy to the staff of the institutions, bodies, offices and agencies which are not subject to the Staff Regulations.’

B. Rules of Procedure of the OLAF Supervisory Committee

11. Article 13(5) of the Rules of Procedure of the OLAF Supervisory Committee (5) (‘the Rules of Procedure’) 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 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 responsible staff of OLAF may be invited to this session in order to obtain full information.

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

III. The background to the dispute

12. The background to the dispute, as set out in paragraphs 1 to 16 of the judgment under appeal, can be summarised as follows.

13. By Decision 2010/80/EU, (6) Mr Dalli was appointed as a Member of the Commission for the period from 10 February 2010 to 31 October 2014. He was allocated the health and consumer protection portfolio by the President of the Commission.

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

15. Mr Dalli was interviewed by OLAF on 16 July and 15 October 2012.

16. 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, summarising the main findings of the investigation and informing the President of the Commission that those findings were being brought to his knowledge with a view to the possible adoption of measures on the basis of the Code of Conduct for Commissioners (C(2011) 2904).

17. 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.

18. By application lodged at the General Court Registry 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 1 913 396 for material damage.

19. That action was dismissed by the judgment of the General Court of 12 May 2015, Dalli v Commission (T‑562/12, EU:T:2015:270) (‘the judgment in Dalli v Commission’).

20. As regards, first, the claim for annulment, the General Court found that the appellant had resigned voluntarily, 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 was the act challenged by the appellant, had not been established, the General Court considered that the claim for annulment had to rejected as inadmissible. The Court also found that, in any event, even assuming that the appellant were entitled to call into question, in the context of the action, the legality of his resignation on the ground that the appellant’s consent to the resignation was vitiated, this had not been established.

21. As regards, second, the claim for compensation, the General Court considered that, since it had found that the existence of the Commission’s acts challenged in the claim for annulment had not been established, no illegality in that respect and, a fortiori, no serious breach of a rule of law could be found...