Opinion of the Advocate General — ECLI:EU:C:2018:782
Date: 2018-09-27
Language of the case: English;French
Subject matter: Development cooperation;External relations
Procedure: Appeal - unfounded;Action for annulment - successful;Action for damages;Appeal - successful
Origin: Belgium

summary of the content of those letters. 94 It should be noted that the Commission received that report on 15 December 2014, that is to say the day before the adoption of the contested decision. 95 See point 81 of this Opinion. 96 However, as stated in recital 24 thereof, Regulation No 833/2013 protects the rights of the person under investigation by giving that person the opportunity to comment on facts concerning him during the investigation. Accordingly, under the sixth subparagraph of Article 9(2), the person concerned has the right of access to the record of his interview with OLAF so that he may either approve the record or add observations. 97 To that effect, concerning the disclosure of OLAF documents in the course of the administrative activity of an EU institution, see, inter alia, judgments of 26 May 2016, International Management Group v Commission (T‑110/15, EU:T:2016:322, paragraphs 22, 24 and 32 to 37); of 18 May 2017, Panzeri v Parliament (T‑166/16, not published, EU:T:2017:347, paragraph 98); and of 19 June 2018, Le Pen v Parliament (T‑86/17, not published, EU:T:2018:357, paragraphs 81 to 84). 98 With regard to the fact that the contested decision adversely affects IMG, see the arguments relating to the challengeable nature of that act set out in point 41 et seq. of this Opinion. 99 It must be stated that, in my opinion, it has not been established that this was the case here. 100 See, by analogy, the case-law of the General Court referred to in footnote 97 of this Opinion. 101 See, in particular, paragraph 142 of the judgment in Case T‑29/15 (paragraph relating to the second branch of the third plea in law put forward before the General Court which is the subject of the fourth ground of appeal raised in the present case C‑183/17 P analysed here), but also paragraphs 85 and 92 of that judgment (relating to the sixth plea in law put forward before the General Court). 102 See the summary of the facts set out in paragraphs 6 to 8 of the judgment in Case T‑29/15. 103 See paragraphs 92 in fine and 138 in fine of the judgment in Case T‑29/15. 104 See paragraphs 85 to 89 of the judgment in Case T‑29/15 (see also footnote 71 of this Opinion). 105 See also, by analogy, judgments of 18 May 2017, Panzeri v Parliament (T‑166/16, not published, EU:T:2017:347, paragraphs 99 and 100), and of 19 June 2018, Le Pen v Parliament (T‑86/17, not published, EU:T:2018:357, paragraphs 85 and 86). 106 See the Opinion of Advocate General Trstenjak in C.A.S. v Commission (C‑204/07 P, EU:C:2008:175, point 100 et seq.) and the earlier opinions referred to therein. 107 It is apparent from settled case-law that the assessment of facts does not constitute, save where the clear sense of the evidence has been distorted, a question of law which is subject, as such, to review by the Court of Justice in the context of an appeal, it being specified that that distortion must be obvious from the documents in the Court’s file, without any need to carry out a new assessment of the facts. See, inter alia, judgments of 16 November 2017, Ludwig-Bölkow-Systemtechnik v Commission (C‑250/16 P, EU:C:2017:871, paragraph 39), and of 28 June 2018, Andres (insolvency of Heitkamp BauHolding) v Commission (C‑203/16 P, EU:C:2018:505, paragraph 77). 108 Namely, according to IMG, the precautionary measures of 26 February 2014 and the letter of 25 April 2014, by which the Commission informed IMG of the adoption of those measures. 109 I would point out that, as is apparent from paragraphs 8 and 135 of the judgment in Case T‑29/15, before the letter of 25 April 2014, the Commission had exchanged a number of letters with IMG, from 16 December 2013 to 4 April 2014, regarding its status as an international organisation. 110 See point 80 et seq. of this Opinion. 111 IMG relies on the case-law of the General Court referred to in paragraph 139 of the judgment in Case T‑29/15, which refers to the judgment of 8 October 2015, Secolux v Commission (T‑90/14, not published, EU:T:2015:772, paragraph 34 and the case-law cited). 112 See, inter alia, judgments of 16 June 2016, SKW Stahl-Metallurgie and SKW Stahl-Metallurgie Holding v Commission (C‑154/14 P, EU:C:2016:445, paragraphs 69 to 75); of 20 December 2017, Prequ’ Italia (C‑276/16, EU:C:2017:1010, paragraph 62); of 14 June 2018, Makhlouf v Council (C‑458/17 P, not published, EU:C:2018:441, paragraphs 42 to 46); of 13 December 2013, Hungary v Commission (T‑240/10, EU:T:2013:645, paragraphs 84 and 85); and of 19 June 2018, Le Pen v Parliament (T‑86/17, not published, EU:T:2018:357, paragraphs 87 to 91). 113 In the following terms: ‘even if the Commission should have informed it of the adoption of the contested decision, it is nevertheless the case that [IMG] has not put forward any argument, and nor does it appear from the case file before the Court, that, if the Commission had informed [IMG] of its intention to adopt the contested decision, the outcome of the procedure would have been different’ (paragraph 143 in fine of the judgment in Case T‑29/15; see also paragraph 139 in fine of that judgment). The last few words used are, admittedly, ambiguous; knowing that the phrase ‘could have been’ is usually used in the aforementioned case-law. Nevertheless, the reasoning behind that unfortunate wording establishes that the General Court did apply the appropriate test and did not therefore commit an error of law. 114 Under the third ground of appeal, IMG expressly criticises paragraphs 117 to 122 of the judgment in Case T‑381/15. 115 IMG puts forward grounds for complaint in this regard in both its appeal and its reply. 116 However, I would point out that I disagree with the arguments put forward against that ground of appeal by the Commission, in the first place in its response, according to which there could not have been an infringement of the rights of the defence, in so far as the letter of 8 May 2015 did not constitute an act adversely affecting IMG (in that regard, see point 43 et seq. of this Opinion). 117 See, by analogy, so far as concerns the decision of 16 December 2014 at issue in Case C‑183/17 P, point 83 et seq. of this Opinion, in addition to the case-law referred to therein. 118 In accordance with the case-law referred to in footnote 107 of this Opinion. 119 In my opinion, IMG’s unauthorised access to that report which was made possible by a leak (see paragraphs 174 and 177 of the judgment in Case T‑381/15), to which the Commission refers in its response, cannot remedy that procedural irregularity, given that, in any event, IMG had access to it only after the intervention of the letter at issue, namely 12 December 2015, according to the information provided by the Commission at the hearing. 120 See the analysis in paragraph 117 et seq. of the judgment in Case T‑381/15. So far as concerns, more specifically, the grounds of appeal according to which IMG ‘could not know of the reservations made by the Member States’ and the General Court distorted the evidence in the file by considering (in paragraph 122) that nothing prevented IMG from ‘directly questioning [those States] and asking them to provide it with a declaration that they were members of it’, I would point out that it is apparent from the evidence in the file and examined by the General Court that the Commission had given it a series of information in this connection, in particular in the letter of 25 April 2014 (see paragraph 85), with the result that the alleged distortion has not been established in my opinion. 121 In this regard, IMG refers to the same case-law as that on which it relied in Case C‑183/17 P (see footnote 91 of this Opinion). 122 See, inter alia, the case-law cited in footnote 92 of this Opinion. In my opinion, the judgment of the General Court of 5 October 2016, ECDC v CJ (T‑395/15 P, not published, EU:T:2016:598), which is relied on by IMG, cannot lead (and, in particular, paragraph 55 et seq., in my opinion) to an approach other than that resulting from that predominant case-law. 123 To that effect, IMG relies on the judgment of the General Court of 5 October 2016, ECDC v CJ (T‑395/15 P, not published, EU:T:2016:598, paragraph 72), and the judgment of the Civil Service Tribunal of 8 October 2015, DD v FRA, F‑106/13 and F‑25/14 (EU:F:2015:118, paragraphs 65 and 93). 124 In addition to the judgment of 8 October 2015, Secolux v Commission (T‑90/14, not published, EU:T:2015:772, paragraph 34) referred to in paragraph 114 of the judgment in Case T‑381/15, see the case-law cited in footnote 112 of this Opinion. 125 In that regard, see, inter alia, judgments of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 140); of 16 June 2016, SKW Stahl-Metallurgie and SKW Stahl-Metallurgie Holding v Commission (C‑154/14 P, EU:C:2016:445, paragraph 69); and of 19 June 2018, Le Pen v Parliament (T‑86/17, not published, EU:T:2018:357, paragraph 88 et seq.). 126 See, by analogy, on the scope and appropriateness of the analysis carried out by the General Court with regard to the possible impact of a procedural irregularity, Opinion of Advocate General Trstenjak in C.A.S. v Commission (C‑204/07 P, EU:C:2008:175, points 107 to 109). 127 That is to say if IMG had acquainted itself with the final OLAF report before the letter at issue. 128 See, paragraphs 119 to 123 of the judgment in Case T-381/15, where the General Court notes, inter alia, that IMG laments the fact that it was not given the opportunity to allay the doubts regarding its financial soundness, even though the Commission did not base the letter of 8 May 2015 on such grounds; that, admittedly, IMG did not receive the final OLAF report beforehand, but that the Commission disregarded that fact in the letter at issue, considering there to be doubts, and not certainties, regarding the legal status of IMG; and that, whatever the purpose of the questions put to the member States by OLAF and the Commission, IMG had the opportunity effectively to exercise its rights of defence by directly questioning the States whose declarations gave rise to doubts regarding its status as an international organisation.