Judgment — ECLI:EU:T:2019:384
Date: 2019-06-06
Language of the case: English
Court formation: Sixth Chamber
Subject matter: Provisions governing the Institutions
Procedure: Action for damages - unfounded
Origin: Malta

summary of the facts giving rise to the suspicion that the person under investigation may be personally involved’, it suffices to note, apart from the fact that it is doubtful that the provision at issue of the Memorandum of Understanding confers rights on individuals, that the facts at issue were indicated by the Commission itself to OLAF, so that it appears superfluous that the latter provide it with such a summary. Moreover, the decision to open the investigation refers to information received and the note of 25 May 2012 sent by the Director-General of OLAF to the Secretary-General of the Commission cites that decision as being the source of information. 194 It follows that no evidence allows it to be concluded that OLAF infringed Article 4 of Regulation No 1073/1999, Article 4 of Decision 1999/396 or the Memorandum of Understanding. 195 For those reasons, it is necessary to reject the breach of the right to sound administration invoked by the applicant in the reply, in the context of the present complaint. 196 The seventh complaint must therefore be rejected. The unlawfulness of the Commission’s behaviour 197 As regards the Commission’s behaviour, the applicant puts forward, in essence, two complaints. – First complaint: breach of the principle of sound administration, of the duty to behave in a loyal, impartial and objective manner and to respect the principle of independence 198 The applicant invokes a breach of the principle of sound administration and of the duty to behave in a loyal, impartial and objective manner and to respect the principle of independence. In that regard, he claims in particular, in essence, that the elements communicated by the complainant were allegedly received only 1 week after they were sent and that it is apparent from the OLAF report that, according to a witness, a former Member of the Commission’s staff, who was then a consultant to the complainant, discussed with the Secretary-General of that institution evidence gathered by the complainant before it submitted its report and its allegations to the Commission. That, in the applicant’s contention, constitutes evidence of the breach of the principle of sound administration, a serious conflict of interests, a breach of the independence of the Commission’s staff and unethical behaviour, and also evidence that the tobacco lobby developed a strategy vis-à-vis the Commission in order to frustrate the decision-making process of the Tobacco Directive, which was spearheaded by the applicant. He also invokes Articles 11 and 11a of the Staff Regulations of Officials of the European Union. 199 The Commission disputes the applicants’ arguments. 200 In that regard, it must be noted that the principle of sound administration, where it constitutes the expression of a specific right such as the right to have one’s affairs handled impartially, fairly and within a reasonable time, as provided for in Article 41 of the Charter of Fundamental Rights, must be regarded as a rule of EU law whose purpose is to confer rights on individuals (see, to that effect, with regard to the duty to act with all necessary diligence, which is inherent in the principle of sound administration and obliges the relevant institution to examine carefully and impartially all the relevant facts of the case, judgment of 16 December 2008, Masdar (UK) v Commission, C‑47/07 P, EU:C:2008:726, paragraph 91 and the case-law cited; see also, to that effect, judgments of 4 October 2006, Tillack v Commission, T‑193/04, EU:T:2006:292, paragraph 127, and of 13 November 2008, SPM v Council and Commission, T‑128/05, not published, EU:T:2008:494, paragraph 127). That is so in the present case, since the applicant invokes the principle of sound administration in combination with the right to have the administration behave in an objective, impartial and loyal manner and in the respect of the principle of independence. Contrary to what is contended by the Commission, the same applies to Articles 11 and 11a of the Staff Regulations of Officials of the European Union, since they set out, in essence, obligations seeking to ensure that officials of the Union act independently and to avoid situations of conflicts of interest. 201 In the present case, the applicant puts forward two allegations in support of his complaint. 202 Firstly, the applicant refers, in essence, to the fact that the Secretary-General of the Commission received the complaint dated 14 May 2012 on 21 May. It must at the outset be noted that that fact is, in itself, not capable of leading to the finding of an infringement of the principle of sound administration by the Commission to the detriment of the applicant. The applicant, moreover, does not, in that context, present either evidence or arguments to show unlawful conduct on the part of the Commission. He thus merely poses the question whether it is plausible that the complaint ‘was lost in transit for a week’ or whether it is not more plausible to consider that it was being assessed ‘to develop a strategy of action’ before being officially registered. In any event, there is nothing in the case file to support a finding that the Secretary-General of the Commission received the complaint before 21 May 2012. It is apparent moreover from several elements in the case file that, in the context of exchanges between the Commission and the complainant, the Commission refers to the letter of 14 May 2012 by specifying that it was received on 21 May 2012. In any event, a time for delivery of the complaint, including with delivery by hand, of 1 week does not appear to be unreasonable. As regards the allegation, put forward in the reply, that a time for delivery of the complaint to OLAF of 3 or 4 days cannot be considered to be an immediate transmission as the Commission contends in the statement of defence, it suffices to note that such a period does not in itself appear to be unreasonable and that nothing can be inferred therefrom concerning an alleged infringement of the principle of sound administration. 203 Secondly, the applicant points out that a former Director-General of the Commission’s Legal Service, who is now a consultant for the complainant and a lobbyist for the tobacco industry, and the Secretary-General of the Commission discussed evidence collected by the complainant before the latter sent the complaint to the Commission. It is apparent solely from the interview, carried out by OLAF, of an advisor to the complainant that the former Director-General of the Commission’s Legal Service contacted the Secretary-General of the Commission at the request of the complainant, and that the complainant subsequently submitted the complaint. There is nothing in the case file to support a finding that there was an exchange, whether direct or indirect, relating to the substance of the evidence communicated by the complainant, between the latter and the Commission, before the forwarding of the complaint. The applicant is therefore wrong to claim that it concerns serious evidence of the infringement of the principle of sound administration, a serious conflict of interest, a breach of the independence of the Commission’s staff and unethical conduct as well as unambiguous circumstantial evidence that the tobacco lobby developed a strategy with a view to frustrating the decision making process linked to the Tobacco Products Directive. 204 It follows from the foregoing that there is no evidence allowing it to be established that there is an infringement of the principle of sound administration, of the duty to behave in an objective, impartial and loyal manner and in compliance with the principle of independence or of Articles 11 and 11a of the Staff Regulations of Officials of the European Union. 205 The first complaint must be rejected. – Second complaint: breach of OLAF’s independence 206 The applicant invokes a breach, by the Commission, of OLAF’s independence. In that regard, he refers, in particular, to the fact that the President of the Commission asked the Director-General of OLAF to deal with the case as a matter of priority and then enquired about the state of the investigation, to the fact that the legislative process of the draft Tobacco Directive was subordinated to the chronology of the OLAF investigation and to the fact that the Director-General of OLAF stated on several occasions that he was under pressure. 207 The Commission contests the applicant’s arguments. 208 In that regard, it should be noted that, according to Article 3 of Decision 1999/352, OLAF is to exercise its powers of investigation in complete independence. In exercising these powers, the Director of OLAF is to neither seek nor take instructions from the Commission, any government or any other institution or body. 209 In so far as it guarantees the impartiality, the fairness and objectivity of its investigations, it must be concluded that OLAF’s independence provided for by Article 3 of Decision 1999/352 confers rights on individuals. 210 In the present case, the applicant puts forward several elements seeking to show that the Commission undermined OLAF’s independence. 211 Concerning, firstly, the application to have the case given priority, it should be noted that, according to the note of 25 May 2012 sent to the Director-General of OLAF by the Secretary-General of the Commission, the president of that institution asked the latter to request that the case be given priority by OLAF. Such a request cannot be regarded as an instruction for the purposes of Article 3 of Decision 1999/352, since the request to give the case priority does not relate to its substance, in so far as it is not an order seeking the opening of the investigation and prescribing the meaning to be given to the results of that investigation. 212 As regards, secondly, the fact that the President of the Commission asked the Director-General of OLAF about the stage which had been reached by the investigation, it should be noted that such a question cannot be considered to be an instruction for the purposes of Article 3 of Decision 1999/352, or even to be pressure on OLAF. That could however be the case if such a question had been posed repeatedly and insistently, which is neither demonstrated nor even alleged in the present case. In that context, it should be pointed out that the fact that, approximately 10 days before the closure of the investigation, the Director-General of OLAF informed the Commission that his report was on the point of being sent to it is not relevant in that regard, since the provision of such information to the Commission by OLAF appears to be neither unlawful nor to call into question OLAF’s independence. Likewise, the arguments put forward by the applicant, in particular in the reply, concerning the exchanges between the President of the Commission and the Prime Minister of the Republic of Malta are based on pure conjecture, which is in no way substantiated. 213 As regards, thirdly, the argument relating to the legislative process of the draft Tobacco Directive, it suffices to note that the evidence put forward by the applicant is not capable of establishing any undermining of OLAF’s independence. It follows in any event from the evidence provided by the Commission that the first report in the implementation of the inter-service consultation concerning the draft directive is connected with remaining problems, in particular concerning the legal basis of the draft directive, and that the second report was connected in particular with the holding of a European Council. By contrast, there is nothing to indicate that there is any connection with the investigation. 214 Concerning, fourthly, the fact that the Director-General of OLAF confirmed on several occasions that he was under pressure, the applicant submits, in that regard, that that director-general stated, in order to justify the failure to comply with the time granted to the Supervisory Committee to carry out its review, that that time was shorter given the pressures to which he was subject everywhere. It must be noted that such a vague and generic declaration is not capable of demonstrating specific pressure exerted by the Commission over OLAF, or, a fortiori, a wish on the part of the Commission to undermine OLAF’s independence, for example, by influencing the findings of the investigation. 215 It follows that no evidence adduced by the applicant allows it to be demonstrated that the Commission undermined OLAF’s independence. 216 The second complaint must therefore be rejected. Conclusion on the unlawfulness of the conduct complained of 217 It follows from all of the foregoing that the applicant has not shown the existence of unlawful conduct on the part of OLAF or of the Commission. 218 The Court considers nevertheless that it is appropriate to examine, for the sake of completeness, the existence of the damage alleged and of the causal link. The alleged damage and the causal link 219 The applicant claims that he sustained damage, notably non-material damage, principally as a result of the unlawful behaviour of the Commission, including OLAF, connected with the termination of his office on 16 October 2012. In the applicant’s submission, the existence of the non-material damage is the result of the errors on the part of the Commission and OLAF. That damage was caused by the attack on his reputation and professional integrity in the Commission, in the EU institutions, in his private circles, in Malta, in the European Union and also outside the European Union, the vilification of which he was a victim, the psychological aggravation and stress to which he and his family were subject, his marginalisation from public life, the fact that he is practically unemployable and that he has had no further employment or income since mid-October 2012, the detrimental impact on his health and the state of uncertainty and anxiety in which he finds himself. In the applicant’s submission, there is a direct causal link between the alleged breaches and the damage which he has sustained. 220 The Commission contests the applicants’ arguments. 221 In that regard, it must be borne in mind that, under Article 76(d) of the Rules of Procedure, any application must indicate the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law. An application seeking compensation for damage caused by a EU institution must set out the evidence from which the conduct which the applicant alleges against the institution can be identified, the reasons for which the applicant considers that there is a causal link between the conduct and the damage it claims to have suffered and the nature and extent of that damage (judgment of 13 December 2006, Abad Pérez and Others v Council and Commission, T‑304/01, EU:T:2006:389, paragraph 44). As regards the damage, the application must contain the information which makes it possible to identify the damage alleged and to assess the extent and the nature of that damage (judgment of 30 September 1998, Coldiretti and Others v Council and Commission, T‑149/96, EU:T:1998:228, paragraph 47). That requirement is also applicable to non-material damage (see, to that effect, judgment of 28 February 2013, Inalca and Cremonini v Commission, C‑460/09 P, EU:C:2013:111, paragraph 103). 222 It follows, moreover, from the case-law that the damage for which compensation is sought in an action to establish non-contractual liability on the part of the European Union must be actual and certain, which is for the applicant to prove (see judgment of 9 November 2006, Agraz and Others v Commission, C‑243/05 P, EU:C:2006:708, paragraph 27 and the case-law cited). It is for the applicant to adduce conclusive proof as to the existence and extent of the damage it alleges (see judgment of 16 September 1997, Blackspur DIY and Others v Council and Commission, C‑362/95 P, EU:C:1997:401, paragraph 31 and the case-law cited). 223 The condition relating to the causal link contained in the second paragraph of Article 340 TFEU concerns a sufficiently direct causal nexus between the conduct of the institutions and the damage (judgments of 18 March 2010, Trubowest Handel and Makarov v Council and Commission, C‑419/08 P, EU:C:2010:147, paragraph 53, and of 14 December 2005, Beamglow v Parliament and Others, T‑383/00, EU:T:2005:453, paragraph 193; see also, to that effect, judgment of 4 October 1979, Dumortier and Others v Council, 64/76, 113/76, 167/78, 239/78, 27/79, 28/79 and 45/79, EU:C:1979:223, paragraph 21). It is for the applicant to adduce evidence of a causal link between the conduct complained of and the damage pleaded (see judgment of 30 September 1998, Coldiretti and Others v Council and Commission, T‑149/96, EU:T:1998:228, paragraph 101 and the case-law cited). 224 In the present case, it must be noted that the applicant does not present any evidence establishing the existence of the alleged non-material damage, or the link with the conduct of the Commission or of OLAF. He thus puts forward no evidence to demonstrate the substance of the allegations summarised in paragraph 219 above. The applicant produced only three medical certificates. However, as is stated by the Commission, those certificates cover only January and February 2013 and do not refer to the facts at issue in the present case. In addition, it is apparent from the documents submitted by the Commission that, as of the summer 2013, the applicant was invited by a bank to participate in a day of reflection relating, in essence, to the reform of the health system and the Maltese Government asked him to advise the Maltese minister for health concerning the reorganisation of a hospital. It is thus not established that, as he alleges, the applicant suffered a marginalisation from public life and is practically unemployable, or that his reputation and professional integrity were undermined. Furthermore, in so far as the damage invoked by the applicant results from the Commission’s unlawful conduct in relation to the end of his office, as stated in the application, it is to be noted that it follows from the judgment of 12 May 2015, Dalli v Commission (T‑562/12, EU:T:2015:270), that the applicant resigned voluntarily from his office, so that no damage resulting from the end of that office can be imputed to the Union. Finally, it is necessary to reject the applicant’s claim that the press release of 16 October 2012 establishes a causal link between the resignation and the OLAF report. Apart from the fact that that claim is based on a misreading of that press release, it suffices to note that it is a link between the damage and the alleged misconduct that the applicant must prove and not between the OLAF report and his resignation. 225 Admittedly, it follows from the case-law that, where the applicant has put forward nothing to show the existence of its non-material damage or to establish its extent, it falls to it, at the very least, to prove that the conduct of which it complains was, by reason of its gravity, such as to cause it damage of that kind (see, to that effect, judgments of 16 July 2009, SELEX Sistemi Integrati v Commission, C‑481/07 P, not published, EU:C:2009:461, paragraph 38; of 28 January 1999, BAI v Commission, T‑230/95, EU:T:1999:11, paragraph 39; and of 16 October 2014, Evropaïki Dynamiki v Commission, T‑297/12, not published, EU:T:2014:888, paragraphs 31, 46 and 63). However, in the present case, the applicant has failed to establish those elements. 226 It follows from the foregoing that the applicant has not established the existence of a sufficiently direct causal link between the conduct complained of and the damage alleged, or even the existence of the latter. The requests for measures of organisation of procedure 227 The applicant suggests that the Court might consider it necessary to request, by way of a measure of organisation of procedure, the production of various documents. 228 The Commission considers that those documents are manifestly irrelevant to the outcome of the dispute and that the applicant’s request must be rejected. 229 In that regard, it should be noted that it is for the Court to appraise the usefulness of measures of organisation of procedure (see judgment of 9 March 2015, Deutsche Börse v Commission, T‑175/12, not published, EU:T:2015:148, paragraph 417 and the case-law cited). 230 In the present case, it must be noted that the elements in the case file and the explanations provided during the hearing are sufficient to allow the Court to give a ruling, since it has been able to give a proper ruling on the basis of the forms of order sought, the pleas in law and the arguments put forward during the proceedings and in the light of the documents lodged by the parties. 231 It follows that the requests for measures of organisation of procedure must be rejected and the action dismissed in its entirety. Costs 232 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby: 1. Dismisses the action; 2. Orders Mr John Dalli to bear his own costs as well as those incurred by the European Commission. Berardis Papasavvas Spineanu-Matei Delivered in open court in Luxembourg on 6 June 2019. E. Coulon G. Berardis Registrar President Table of contents Background to the dispute Procedure and forms of order sought Admissibility Substance The unlawfulness of the conduct complained of The unlawfulness of OLAF’s conduct – First complaint: the unlawfulness of the decision to open the investigation – Second complaint: flaws in the characterisation of the investigation and the unlawful extension of the investigation – Third complaint: breach of the principles governing the gathering of evidence and distortion and falsification of the evidence – Fourth complaint: breach of the rights of the defence, of Article 4 of Decision 1999/396 and of Article 18 of the OLAF Instructions – Fifth complaint: infringement of Article 11(7) of Regulation No 1073/1999 and of Article 13(5) of the Supervisory Committee’s Rules – Sixth complaint: breach of the principle of the presumption of innocence, infringement of Article 8 of Regulation No 1073/1999 and of Article 339 TFEU and breach of the right to the protection of personal data – Seventh complaint: infringement of Article 4 of Regulation No 1073/1999, of Article 4 of Decision 1999/396 and of the Memorandum of Understanding The unlawfulness of the Commission’s behaviour – First complaint: breach of the principle of sound administration, of the duty to behave in a loyal, impartial and objective manner and to respect the principle of independence – Second complaint: breach of OLAF’s independence Conclusion on the unlawfulness of the conduct complained of The alleged damage and the causal link The requests for measures of organisation of procedure Costs * Language of the case: English.