Opinion of Advocate General Hogan delivered on 15 April 2021.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:297
• Date: 15 April 2021
• Celex Number: 62019CC0650
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

HOGAN

delivered on 15 April 2021 (1)

Case C‑650/19 P

Vialto Consulting Kft.

v

European Commission

(Appeal – Action for damages – Non-contractual liability – Pre-Accession Assistance Instrument – Decentralised management – Investigation of the European Anti-Fraud Office (OLAF) – On-the-spot checks – Regulation (Euratom, EC) No 2185/96 – Article 7 – Access to computer data – Digital forensic operation – Legitimate expectations – Right to be heard – Non-material damage)

I. Introduction

1. By its appeal, Vialto Consulting Kft. (‘Vialto’ or ‘the appellant’) seeks the setting aside of the judgment of the General Court of the European Union of 26 June 2019, Vialto Consulting v Commission (T‑617/17, not published, EU:T:2019:446; ‘the judgment under appeal’). In that judgment, the General Court dismissed its action seeking compensation for the damage it had 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 its exclusion from the contract for the provision of services bearing the reference TR2010/0311.01-02/001.

2. This appeal raises an important question in relation to the way in which OLAF carries out its external investigations and, more specifically, the limits of digital forensic operations. It also provides an opportunity to clarify the impact of commitments given by OLAF at the beginning of an on-the-spot check in the light of the principle of legitimate expectations and the scope of the right to be heard in proceedings involving several authorities, such as OLAF, the Commission and a national authority.

3. The importance of the Court’s judgment in the present appeal proceedings for OLAF’s future administrative practice when conducting external investigations should therefore not be underestimated. Before examining the legal issues thereby presented on this appeal, it is first necessary, however, to address the relevant legal context.

II. Legal context

A. Regulation (Euratom, EC) No 2185/96

4. Article 4 of Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities (2) states that:

‘On-the-spot checks and inspections shall be prepared and conducted by the Commission in close cooperation with the competent authorities of the Member State concerned, which shall be notified in good time of the object, purpose and legal basis of the checks and inspections, so that they can provide all the requisite help. To that end, the officials of the Member State concerned may participate in the on-the-spot checks and inspections.

In addition, if the Member State concerned so wishes, the on-the-spot checks and inspections may be carried out jointly by the Commission and the Member State’s competent authorities’.

5. Article 7 of Regulation No 2185/96 specifies what Commission inspectors may do in the context of on-the-spot checks and inspections they carry out. According to that provision:

‘1. Commission inspectors shall have access, under the same conditions as national administrative inspectors and in compliance with national legislation, to all the information and documentation on the operations concerned which are required for the proper conduct of the on-the-spot checks and inspections. They may avail themselves of the same inspection facilities as national administrative inspectors and in particular copy relevant documents.

On-the-spot checks and inspections may concern, in particular:

– professional books and documents such as invoices, lists of terms and conditions, pay slips, statements of materials used and work done, and bank statements held by economic operators,

– computer data,

– production, packaging and dispatching systems and methods,

– physical checks as to the nature and quantity of goods or completed operations,

– the taking and checking of samples,

– the progress of works and investments for which financing has been provided, and the use made of completed investments,

– budgetary and accounting documents,

– the financial and technical implementation of subsidised projects.

2. Where necessary, it shall be for the Member States, at the Commission’s request, to take the appropriate precautionary measures under national law, in particular in order to safeguard evidence.’

B. Regulation (EC) No 718/2007

6. Article 10(1) of Commission Regulation (EC) No 718/2007 of 12 June 2007 implementing Council Regulation (EC) No 1085/2006 establishing an instrument for pre-accession assistance (IPA) (3) states that:

‘Unless otherwise provided for in paragraph 2, 3 and 4, decentralised management, where the Commission confers the management of certain actions on the beneficiary country, while retaining overall final responsibility for general budget execution in accordance with Article 53c of [Council] Regulation (EC, Euratom) No 1605/2002 [of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1)] and the relevant provisions of the EC Treaties, shall apply to the implementation of assistance under the IPA Regulation.’

7. Article 21(1) of that regulation provides:

‘The beneficiary country shall designate the following different bodies and authorities:

…

(f) an operating structure by IPA component or programme,

…’

8. Article 28(1) and (2) of Regulation No 718/2007, entitled ‘Functions and responsibilities of the operating structure’, provides:

‘1. For each IPA component or programme, an operating structure shall be established to deal with the management and implementation of assistance under the IPA Regulation.

The operating structure shall be a body or a collection of bodies within the administration of the beneficiary country.

2. The operating structure shall be responsible for managing and implementing the programme or programmes concerned in accordance with the principle of sound financial management. …’

C. Regulation (EU, Euratom) No 883/2013

9. Article 3 of 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 (4) concerns external investigations made by OLAF. It states that:

‘1. [OLAF] shall exercise the power conferred on the Commission by [Regulation No 2185/96] to carry out on-the-spot checks and inspections in the Member States and, in accordance with the cooperation and mutual assistance agreements and any other legal instrument in force, in third countries and on the premises of international organisations.

…

2. With a view to establishing whether there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union in connection with a grant agreement or decision or a contract concerning Union funding, [OLAF] may, in accordance with the provisions and procedures laid down by [Regulation No 2185/96], conduct on-the-spot checks and inspections on economic operators.

3. During on-the-spot checks and inspections, the staff of the Office shall act, subject to the Union law applicable, in compliance with the rules and practices of the Member State concerned and with the procedural guarantees provided for in this Regulation.

At the request of [OLAF], the competent authority of the Member State concerned shall provide the staff of [OLAF] with the assistance needed in order to carry out their tasks effectively, as specified in the written authorisation referred to in Article 7(2). If that assistance requires authorisation from a judicial authority in accordance with national rules, such authorisation shall be applied for.

The Member State concerned shall ensure, in accordance with [Regulation No 2185/96], that the staff of [OLAF] are allowed access, under the same terms and conditions as its competent authorities and in compliance with its national law, to all information and documents relating to the matter under investigation which prove necessary in order for the on-the-spot checks and inspections to be carried out effectively and efficiently.

…’

D. Guidelines on Digital Forensic Procedures for OLAF Staff

10. The OLAF Guidelines on Digital Forensic Procedures for OLAF Staff (‘the Guidelines on Digital Forensic Procedures’) are internal rules adopted by OLAF which are to be followed by OLAF staff with respect to the identification, acquisition, imaging, collection, analysis and preservation of digital evidence. They are designed to implement, inter alia, Article 7(1) of Regulation No 2185/96 and are available on the OLAF website.

11. Article 4 of the Guidelines on Digital Forensic Procedures is entitled ‘Conducting a digital forensic operation – general procedure’. It provides:

‘…

4.3. At the start of the digital forensic operation, the DES [(Digital Evidence Specialist of OLAF staff)] shall: (1) document and take photographs of all digital media which shall be subject to the forensic operation, as well as the physical surroundings and layout; (2) make an inventory of the digital media. The inventory should be included in the “Digital Forensic Operation Report”, and the photographs attached to it.

4.4. In general, the DES should conduct a full digital forensic acquisition of the devices referred to in 4.3. If feasible, the DES and the investigator should together preview those devices to determine whether they may contain data potentially relevant for the investigation and whether a partial forensic acquisition would be appropriate. If so, the DES may instead conduct a partial forensic acquisition of the data. A short description of the contents and the case reference number added by...