John Dalli v European Commission.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:133
• Docket Number: C-615/19
• Date: 25 February 2021
• Celex Number: 62019CJ0615
• Court: Court of Justice (European Union)

JUDGMENT OF THE COURT (First Chamber)

25 February 2021 ( *1 )

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

In Case C‑615/19 P,

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

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

applicant,

the other party to the proceedings being:

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

defendant at first instance,

THE COURT (First Chamber),

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

Advocate General: M. Szpunar,

Registrar: Calot Escobar,

having regard to the written procedure,

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

gives the following

Judgment

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

Legal context

Regulation (EC) No 1073/1999

2 Article 1(3) of Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (OJ 1999 L 136, p. 1) provided: ‘Within the institutions, bodies, offices and agencies established by, or on the basis of, the Treaties (hereinafter “the institutions, bodies, offices and agencies”), the Office shall conduct administrative investigations for the purpose of: – fighting fraud, corruption and any other illegal activity affecting the financial interests of the European Community, – investigating to that end serious matters relating to the discharge of professional duties such as to constitute a dereliction of the obligations of officials and other servants of the Communities liable to result in disciplinary or, as the case may be, criminal proceedings, or an equivalent failure to discharge obligations on the part of members of institutions and bodies, heads of offices and agencies or members of the staff of institutions, bodies, offices or agencies not subject to the Staff Regulations of officials and the Conditions of employment of other servants of the European Communities (“the Staff Regulations”).’

3 Article 2 of that regulation stated: ‘Within the meaning of this Regulation, “administrative investigations” (hereinafter “investigations”) shall mean all inspections, checks and other measures undertaken by employees of [OLAF] in the performance of their duties, in accordance with Articles 3 and 4, with a view to achieving the objectives set out in Article 1 and to establishing, where necessary, the irregular nature of the activities under investigation. These investigations shall not affect the powers of the Member States to bring criminal proceedings.’

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

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

6 Article 9(1) of Regulation No 1073/1999 was worded as follows: ‘On completion of an investigation carried out by [OLAF] the latter shall draw up a report, under the authority of the Director, specifying the facts established, the financial loss, if any, and the findings of the investigation, including the recommendations of the Director of [OLAF] on the action that should be taken.’

7 Article 11(1) and (6) to (8) of that regulation provided: ‘1. The Supervisory Committee shall reinforce [OLAF]’s independence by regular monitoring of the implementation of the investigative function. At the request of the Director or on its own initiative, the committee shall deliver opinions to the Director concerning the activities of [OLAF] without however interfering with the conduct of investigations in progress. … 6. The Supervisory Committee shall appoint its chair. It shall adopt its own rules of procedure. … 7. The Director shall forward to the Supervisory Committee each year [OLAF]’s programme of activities … The Director shall inform the committee of cases requiring information to be forwarded to the judicial authorities of a Member State. 8. The Supervisory Committee shall adopt at least one report on its activities per year which it shall send to the institutions. The committee may submit reports to the European Parliament, the Council, the Commission and the Court of Auditors on the results of [OLAF]’s investigations and the action taken thereon.’

Decision 1999/396/EC, ECSC, Euratom

8 The first paragraph of Article 4 of Commission Decision 1999/396/EC, ECSC, Euratom of 2 June 1999 concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities’ interests (OJ 1999 L 149, p. 57), provides: ‘Where the possible implication of a Member, official or servant of the Commission emerges, the interested party shall be informed rapidly as long as this would not be harmful to the investigation. In any event, conclusions referring by name to a Member, official or servant of the Commission may not be drawn once the investigation has been completed without the interested party’s having been enabled to express his views on all the facts which concern him.’

Rules of Procedure of the OLAF Supervisory Committee

9 Article 13(5) of the Rules of Procedure of the OLAF Supervisory Committee (OJ 2011 L 308, p. 114), states: ‘Cases requiring information to be forwarded to the judicial authorities of a Member State shall be examined on the basis of the information provided by the Director-General of OLAF and in accordance with Regulation (EC) No 1073/1999. Follow-up shall also be carried out on this basis. In particular, before the information is sent, the Supervisory Committee shall request access to the investigations in question in order to ascertain whether fundamental rights and procedural guarantees are being complied with. Once the Secretariat has obtained access to the documents within a time period guaranteeing compliance with this function, the rapporteurs appointed to examine the cases shall prepare their presentation at the Committee’s plenary session. … The Committee shall appoint rapporteurs to examine these investigations and, if necessary, issue an opinion.’

Regulation (EU, Euratom) No 883/2013

10 Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ 2013 L 248, p. 1), repeals and replaces Regulation No 1073/1999.

11 Article 7(4) of Regulation No 883/2013 is worded as follows: ‘Where an investigation combines external and internal elements, Articles 3 and 4 shall apply respectively.’

The OLAF instructions to its staff and on investigative procedures

12 Article 5 of the OLAF Instructions to Staff on Investigative Procedures, in the version applicable at the time of the facts (‘the OLAF Instructions’), provided: ‘1. The Investigation Selection and Review Unit may, where necessary, contact the source and the EU institution, body, office or agency concerned in order to obtain clarification and further documentation concerning the initial information. It may also consult databases and other relevant sources available to OLAF. Where it is necessary to collect additional information to support the selection process, the Investigation Selection and Review Unit may use, inter alia, the following means: (a) Collecting documents and information; (b) Collecting information in the framework of operational meetings; (c) Taking statements from any person able to provide relevant information; (d) Carrying out fact-finding missions in Member States. 2. Where the source is a whistleblower, the Investigation Selection and Review Unit shall inform him within 60 days, of the time needed to take appropriate action. 3. The opinion on the opening of an investigation or coordination case shall be based on whether the information falls within OLAF’s competency to act, the information is sufficient to justify the opening of an investigation or coordination case and falls within the Investigative Policy Priorities (IPP) established by the Director-General. 4. In assessing whether OLAF is competent to act, consideration must be given to relevant EU Regulations, Decisions, Interinstitutional Agreements and other legal instruments relating to the protection of the financial and other interests of the EU. In evaluating whether the...