Opinion of Advocate General Kokott delivered on 15 July 2021.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:625
• Date: 15 July 2021
• Celex Number: 62020CC0351
• Court: Court of Justice (European Union)

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 15 July 2021 (1)

Case C‑351/20 P

Liviu Dragnea

v

European Commission

(Appeal – European Regional Development Fund – Romanian 2007-2013 Regional Operational Programme – Investigations conducted by the European Anti-Fraud Office (OLAF) – Investigation reports – Call for the national anti-corruption authority to open an investigation into embezzlement of EU funds – National investigation procedure – Request for an investigation to be opened into the conduct of previous OLAF investigations – Request to inspect files and access documents – Refusal – Action for annulment – Admissibility)

I. Introduction

1. In order to protect the financial interests of the Union, the European Anti-Fraud Office (‘OLAF’) has extensive powers of investigation. Regulation (EU, Euratom) No 883/2013 concerning investigations by OLAF (2) therefore provides for fundamental procedural guarantees for persons under such investigation. They are intended to ensure that their rights are safeguarded during investigative measures by OLAF, it being common ground that such investigations affect the rights of the persons concerned.

2. On the other hand, as far as I can see, the question of whether and, if so, to what extent the final reports prepared by OLAF on completion of its investigations can be challenged before the Courts of the European Union has not yet been clarified definitively. That question can ultimately be left to one side in these appeal proceedings, as it is irrelevant for the purpose of giving judgment in this case. Irrespective of whether the appellant could have challenged the two OLAF reports concerned by this case before the General Court, his action would have been out of time.

3. However, the question around which these appeal proceedings revolve concerns the associated problem of the grant of access to investigation files to a person who considers himself to be a person concerned by the investigations, but who was not classed as a person concerned within the meaning of Regulation No 883/2013 by OLAF. The main question that arises is how the right of inspection of the files, on the one hand, and the right of access to Commission documents in accordance with Regulation (EC) No 1049/2001, (3) on the other hand, interact in this case.

II. Legal background

A. Regulation No 883/2013

4. It follows from Article 1(1) of Regulation No 883/2013 that the aim of the powers of investigation of OLAF is to step up the fight against fraud, corruption and any other illegal activity affecting the financial interests of the European Union.

5. According to Article 2, point 4, of Regulation No 883/2013, ‘“administrative investigations” (“investigations”) shall mean any inspection, check or other measure undertaken by [OLAF] in accordance with Articles 3 and 4, with a view to achieving the objectives set out in Article 1 and to establishing, where necessary, the irregular nature of the activities under investigation …’.

6. According to Article 2, point 5, of Regulation No 883/2013, a ‘person concerned’ by an OLAF investigation means ‘any person or economic operator suspected of having committed fraud, corruption or any other illegal activity affecting the financial interests of the Union and who is therefore subject to investigation by [OLAF]’.

7. Articles 3 and 4 of Regulation No 883/2013 provide for OLAF to conduct external investigations on the spot in the Member States, in third countries and on the premises of international organisations, and internal investigations within the institutions, bodies, offices and agencies of the European Union.

8. Article 5 of Regulation No 883/2013 is entitled ‘Opening of investigations’ and paragraphs 1, 2 and 4 of that article read as follows:

‘1. The Director-General may open an investigation when there is a sufficient suspicion, which may also be based on information provided by any third party or anonymous information, that there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union. The decision by the Director-General whether or not to open an investigation shall take into account the investigation policy priorities and the annual management plan of [OLAF] established in accordance with Article 17(5). That decision shall also take into account the need for efficient use of [OLAF’s] resources and for proportionality of the means employed. With regard to internal investigations, specific account shall be taken of the institution, body, office or agency best placed to conduct them, based, in particular, on the nature of the facts, the actual or potential financial impact of the case, and the likelihood of any judicial follow-up.

2. The decision to open an external investigation shall be taken by the Director-General, acting on his own initiative or following a request from a Member State concerned or any institution, body, office or agency of the Union.

The decision to open an internal investigation shall be taken by the Director-General, acting on his own initiative or following a request from the institution, body, office or agency within which the investigation is to be conducted or from a Member State.

…

4. Within two months of receipt by [OLAF] of a request as referred to in paragraph 2, a decision whether or not to open an investigation shall be taken. It shall be communicated without delay to the Member State, institution, body, office or agency which made the request. Reasons shall be given for a decision not to open an investigation. If, on the expiry of that period of two months, [OLAF] has not taken any decision, [OLAF] shall be deemed to have decided not to open an investigation.

Where an official, other servant, member of an institution or body, head of office or agency, or staff member, acting in accordance with Article 22a of the Staff Regulations, provides information to [OLAF] relating to a suspected fraud or irregularity, [OLAF] shall inform that person of the decision whether or not to open an investigation in relation to the facts in question.’

9. Article 9 of Regulation No 883/2013 lists procedural guarantees for the benefit of persons under investigation by OLAF. Paragraph 4 provides in particular for a person to be given the opportunity to comment before conclusions referring to that person by name are drawn up.

10. Article 11 of Regulation No 883/2013 (‘Investigation report and action to be taken following investigations’) states that, on completion of an investigation by [OLAF], a report shall be drawn up that gives account in particular of the procedural steps followed, the facts established and their preliminary classification in law and includes any recommendations as to whether or not action should be taken by the EU institutions or the competent authorities of the Member States.

B. Regulation No 1049/2001

11. Article 6 of Regulation No 1049/2001 is entitled ‘Applications’ and paragraph 1 of that article reads as follows:

‘1. Applications for access to a document shall be made in any written form, including electronic form, in one of the languages referred to in Article 314 of the EC Treaty and in a sufficiently precise manner to enable the institution to identify the document. The applicant is not obliged to state reasons for the application.’

12. Article 7 of Regulation No 1049/2001 is entitled ‘Processing of initial applications’ and paragraphs 1, 2 and 4 of that article read as follows:

‘An application for access to a document shall be handled promptly. An acknowledgement of receipt shall be sent to the applicant. Within 15 working days from registration of the application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal and inform the applicant of his or her right to make a confirmatory application in accordance with paragraph 2 of this Article.

2. In the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution’s reply, make a confirmatory application asking the institution to reconsider its position.

…

4. Failure by the institution to reply within the prescribed time limit shall entitle the applicant to make a confirmatory application.’

13. Article 8 of Regulation No 1049/2001 is entitled ‘Processing of confirmatory applications’ and paragraphs 1 and 3 of that article read as follows:

‘1. A confirmatory application shall be handled promptly. Within 15 working days from registration of such an application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal. In the event of a total or partial refusal, the institution shall inform the applicant of the remedies open to him or her, namely instituting court proceedings against the institution and/or making a complaint to the Ombudsman, under the conditions laid down in Articles 230 and 195 of the EC Treaty, respectively.

…

3. Failure by the institution to reply within the prescribed time limit shall be considered as a negative reply and entitle the applicant to institute court proceedings against the institution and/or make a complaint to the Ombudsman, under the relevant provisions of the EC Treaty.’

III. Background to the appeal

A. Procedure before OLAF and contested letter

14. On 10 February 2015, OLAF opened two investigations (OF/2015/0124/B5 and OF/2015/0125/B5) into suspected fraud in relation to two road construction projects awarded by Teleorman County Council, Romania, and financed by the European Regional Development Fund (ERDF) (‘the previous investigations’). (4)

15. In its final reports on those investigations of 30 May 2016 (OF/2015/0124/B5) and 16 September 2016 (OF/2015/0125/B5), OLAF concluded that two...