Order — ECLI:EU:T:2004:311
Date: 2004-10-15
Language of the case: English
Court formation: President of the Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Provisions governing the Institutions
Concepts: Application for interim measures: suspension of operation of the contested measure and other interim measures;General;Intervention
Procedure: Action for annulment;Application for interim measures - unfounded;Action for damages
Origin: Germany

summary of the pleas raised. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any further information. In order to guarantee legal certainty and the sound administration of justice it is necessary, in order for an action to be admissible, that the essential matters of law and fact relied on should be stated, at least in summary form, coherently and intelligibly in the application itself (Case T-38/96 Guérin automobiles v Commission [1997] ECR II-1223, paragraph 41, and Case T-157/01 Danske Busvognmænd v Commission [2004] ECR II-917, paragraph 45). 90 In order to satisfy those requirements, an application seeking compensation for damage allegedly caused by a Community institution must contain information making it possible to identify the conduct alleged against the institution, the reasons for which the applicant considers there is a causal link between the conduct and the damage it claims to have suffered, and the nature and extent of that damage (Case T-387/94 Asia Motor France and Others v Commission [1996] ECR II-961, paragraph 107, and Joined Cases T-215/01, T-220/01 and T-221/01 Calberson GE v Commission [2004] ECR II-587, paragraph 176). 91 In the present case, it must first be pointed out that the claim in the application seeking damages for the harm allegedly suffered is very brief. It does, however, make it possible to identify two instances of alleged misconduct of OLAF, which the applicant claims caused him harm. The first is OLAF’s ‘complaint’ to the Belgian judicial authorities. The second is constituted by OLAF’s press releases of 27 March 2002 and 30 September 2003, the statements of the OLAF spokesman which were published in the European Voice magazine of 4 April 2002, and the statements of the Director of OLAF on Stern TV on 24 March 2004. 92 Next, it is apparent from the application that the harm which the applicant claims to have suffered as a result of the various alleged instances of misconduct by OLAF consists of detriment to his professional reputation and standing in professional circles. The application also makes it possible to identify the extent of the harm allegedly caused by OLAF. 93 Finally, the applicant mentions the existence of a causal link between the alleged harm and the various instances of misconduct of which OLAF is accused. 94 In addition, it is apparent from the arguments developed by the Commission on the well-foundedness of the action that it was properly able to prepare its defence in respect of the conditions for bringing an action for non-contractual liability of the Community. 95 It is thus necessary to dismiss the Commission’s claim that the application does not satisfy the requirements of Article 44(1)(c) of the Rules of Procedure. 96 In relation to the claim for damages regarding OLAF’s ‘complaint’, the Commission also submits that that claim is inadmissible since it is closely linked to an action for annulment which itself is inadmissible. 97 In that regard, the action to establish liability is an autonomous form of action, with a particular purpose to fulfil within the system of legal remedies and subject to conditions of use dictated by its specific purpose. Although actions for annulment and for failure to act seek a declaration that a legally binding measure is unlawful or that such a measure has not been taken, an action to establish liability seeks compensation for damage resulting from a measure or from unlawful conduct, attributable to a Community institution or body (Case C‑234/02 P Médiateur v Lamberts [2004] ECR I‑2803, paragraph 59, and the case-law cited). 98 Thus, individuals who, by reasons of the conditions as to admissibility laid down under the fourth paragraph of Article 230 EC, cannot contest directly certain Community acts or measures, none the less have the opportunity of putting in issue conduct lacking the features of a decision, which accordingly cannot be challenged by way of an action for annulment, by bringing an action for non-contractual liability under Article 235 EC and the second paragraph of Article 288 EC, where such conduct is of such a nature as to entail liability for the Community (Phillip Morris International and Others v Commission, paragraph 123, and Camós Grau v Commission, paragraph 78). 99 Therefore, the admissibility of the action for damages brought by the applicant seeking compensation for the non-material harm which he allegedly suffered as a result of the misconduct which OLAF is accused of must be considered independently of the action for annulment. 100 It follows from the above that the applicant’s claims seeking damages for the harm which he allegedly suffered as a result of OLAF’s alleged misconduct are admissible. Substance – Arguments of the parties 101 The applicant considers that the unlawful administrative acts consist, first of all, of the ‘complaint’ which OLAF made to the Belgian judicial authorities. That complaint was unlawful because it infringed several procedural requirements and the fundamental right of freedom of the press. The applicant also refers to the OLAF press releases of March 2002 and September 2003. In that regard, the Ombudsman stated that the press release of March 2002, based on rumours, was a clear act of maladministration and infringed the principle of proportionality. As such, that press release must be viewed as an unlawful administrative act. The press release of September 2003 was also an act of maladministration and infringed the principle of proportionality by repeating the allegations made in the press release of March 2002. Lastly, the applicant refers to the statements of the OLAF spokesman, as published in the European Voice magazine of 4 April 2002, and to those of the Director of OLAF on Stern TV on 24 March 2004. They are capable of damaging the applicant’s reputation and, being based on mere rumours, also infringe the principle of sound administration. 102 The applicant also submits that OLAF overstepped the discretion which it enjoys. In view of the seriousness of the misconduct, OLAF’s conduct must be regarded as a sufficiently serious breach of a rule of Community law. 103 The applicant claims to have suffered significant non-material damage in the form of harm to his professional reputation and standing in professional circles. First, it is much more difficult to gain information from the sources which he makes use of in order to practise his profession. Secondly, sales of his articles to magazines and newspapers are seriously impeded. OLAF’s actions have thus seriously damaged the applicant’s career prospects. In addition, the existence of non-material damage is particularly apparent where false accusations lead to criminal investigations, searches and seizures, as in the present case. He asks the Court to fix the exact amount of pecuniary compensation, with the objective of both compensating him and acting as a deterrent to the Commission. The applicant provisionally proposes the sum of EUR 250 000. 104 As regards the causal link, the applicant claims that the damage to his reputation was caused by OLAF’s press releases and subsequent announcements, culminating in OLAF’s complaint to the Belgian judicial authorities, which led to the search of his home and office. OLAF’s investigators provided the judicial authorities with guidance and, in the complaint, gave them misleading information as to the urgency of the need for action. The fact that the Belgian authorities may have acted negligently does not compromise the merits of the application. 105 With respect to OLAF’s press releases and other public statements, the applicant points out that OLAF rarely publishes press releases announcing the opening of an investigation. Furthermore, everybody interested in the matter identified the applicant at once as the journalist who had bribed a Community official. Moreover, the facts as they are known today are even more serious than those investigated by the Ombudsman in 2003. In fact, OLAF misinformed the Ombudsman by alleging that it had received information from reliable sources, including Members of the European Parliament, while its only source was Mr G. 106 In his reply, the applicant points out that the public allegations by OLAF not only constitute an act of maladministration but also an infringement of the principles of sound administration, the presumption of innocence and the right to a fair trial. The publication of press releases about ongoing investigations constitutes a breach of Article 8 of Regulation No 1073/1999, since information forwarded or obtained in the course of internal investigations is subject to professional secrecy. 107 The Commission argues that both claims for damages are unfounded. 108 As regards, first, the claim for compensation relating to the forwarding of information to the Belgian and German judicial authorities, it argues that OLAF did not infringe any rule of law. Furthermore, the applicant has failed to establish the existence of a sufficiently serious breach of the limits imposed on OLAF’s discretion. 109 As to the existence of the damage claimed, the application provides no concrete information as to the applicant’s particular professional situation. The applicant is an employee of Stern magazine and his reputation has not suffered as a result of the search and seizure undertaken by the Belgian authorities. 110 Most importantly, the applicant has failed to establish any causal link between the forwarding of information by OLAF and the harm he claims to have suffered. Two sovereign and discretionary acts of the Belgian authorities break any causal link: the initiation of criminal investigations; and the search and seizure. Only the latter constitute the direct and determining cause of the damage claimed. Had the search, which falls within the discretionary power of the national authorities, not taken place, the anonymity of the applicant’s informants would not have been put at any risk. If the applicant considers that he has suffered harm as a result of the search, his remedy is to sue the Belgian State for such damages. 111 As regards, second, the claim for compensation relating to the press releases and other public statements, the Commission maintains that OLAF did not contravene any rule of law affecting the applicant and, in particular, his reputation. In particular, the press release of 27 March 2002 does not refer to the name of any journalist or newspaper. It was only in a press release issued by Stern on 28 March 2002 that that magazine claimed to have exclusive possession of the documents disclosed and that the name of the journalist was revealed. Furthermore, the press release of 27 March 2002 described the main object of the investigation in the most neutral way possible. There was nothing untrue or disproportionate in it. To argue that OLAF’s spokesman went too far is tantamount to denying OLAF any right at all to issue a press release confirming that an investigation has been initiated and indicating its subject-matter. In the alternative, the Commission submits that there was no manifest and grave transgression by OLAF of the limits imposed on its discretion in the way it conducts its relations with the media. 112 The Commission also claims that there is, in any event, no causal link between the press release of 27 March 2002 and any harm to the applicant’s reputation. Even on the assumption that, on its being issued, OLAF’s press release could have been understood by the public as referring to the applicant, Stern’s press release published the next day broke any causal link. 113 Lastly, as regards the findings of the Ombudsman, the Commission claims that the factual basis on which he made his recommendation in 2003 is different from that on which the Commission relies before the Court in these proceedings. In addition, the identification by the Ombudsman of an instance of maladministration does not amount to a judicial determination of a breach of the applicant’s rights by the Commission. In particular, the Ombudsman did not address the question whether OLAF had committed a sufficiently serious breach of a rule of law. Furthermore, the Ombudsman applied rules on the burden of proof which were different from those governing actions for non-contractual liability under Article 235 EC and the second paragraph of Article 288 EC. The Ombudsman and the Community Courts apply different criteria and methods of scrutiny, reflecting their quite different nature and function. 114 The IFJ argues that OLAF manifestly overstepped the limits of its discretion in forwarding information to the German and Belgian judicial authorities on the basis of nothing more than rumours and speculation. Such a discretion should have been exercised by having regard in particular to the provisions of Regulation No 1073/1999 and the rights and freedoms of those concerned. 115 The intervener considers that OLAF has contravened the freedom of the press, the right to respect for private life, the EC Treaty, the European Convention for the Protection of Human Rights and Fundamental Freedoms, Regulation No 1073/1999 and certain rules of procedure. – Findings of the Court 116 It is settled case-law that the non-contractual liability of the Community for the unlawful acts of its bodies, for the purposes of the second paragraph of Article 288 EC, depends on fulfilment of a set of conditions, namely: the unlawfulness of the conduct alleged against the institutions, the fact of damage and the existence of a causal link between that conduct and the damaged complained of (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16; Case T-175/94 International Procurement Services v Commission [1996] ECR II‑729, paragraph 44; Case T-336/94 Efisol v Commission [1996] ECR II-1343, paragraph 30; and Case T-267/94 Oleifici Italiani v Commission [1997] ECR II-1239, paragraph 20). 117 As regards the first of those conditions, the case-law requires there to be a sufficiently serious breach of a rule of law intended to confer rights on individuals (Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 42). As regards the requirement that the breach must be sufficiently serious, the decisive test for determining whether that requirement is met is whether the Community institution concerned has manifestly and gravely disregarded the limits on its discretion. Where that institution has only a considerably reduced or even no discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach (Case C‑132/00 P Commission v Camar and Tico [2002] ECR I‑11355, paragraph 54, and Joined Cases T‑198/95, T‑171/96, T‑230/97, T‑174/98 and T‑225/99 Comafrica and Dole Fresh Fruit Europe v Commission [2001] ECR II‑1975, paragraph 134). 118 In relation to the condition concerning the causal link, the Community may be held responsible only for damage which is a sufficiently direct consequence of the misconduct of the institution concerned (Joined Cases 64/76 and 113/76, 167/78 and 239/78, 27/79, 28/79 and 45/79 Dumortier Frères and Others v Council [1979] ECR 3091, paragraph 21, and Case T‑333/01 Meyer v Commission [2003] ECR II‑117, paragraph 32). By contrast, it is not the responsibility of the Community to compensate for every harmful consequence, even one remote from the conduct of its bodies (see, to that effect, Dumortier Frères and Others v Council, paragraph 21). 119 If one of those conditions is not satisfied the action must be dismissed in its entirety without its being necessary to examine the other conditions (Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraphs 19 and 81, and Case T‑170/00 Förde-Reederei v Council and Commission [2002] ECR II‑515, paragraph 37). 120 It is in the light of that case-law that it needs to be assessed whether the various arguments raised by the applicant are well founded. 121 As a preliminary point, the protection of family life, the freedom of the press, the principle of the presumption of innocence and the right to a fair trial, which are fundamental rights, confer rights on individuals which are enforced by the Community Courts. In that regard, the applicant alleges two instances of misconduct of OLAF which, being distinct from one another, must be examined separately. 122 First, as regards the application for damages for the harm allegedly suffered as a result of OLAF’s ‘complaint’, it has been found that it was the task of the judicial authorities to decide what action should be taken in respect of the information forwarded by OLAF on the basis of Article 10(2) of Regulation No 1073/1999, even though that forwarding of information is in no way binding upon them (see paragraph 70 above). Consequently, the conduct of the national judicial authorities, which decided, in the context of their own prerogatives, to initiate legal proceedings and then to carry out investigations, caused the harm allegedly suffered by the applicant. 123 In addition, the applicant does not explain how forwarding information, which is confidential in nature and in respect of which a breach of confidentiality is not alleged, to national judicial authorities could harm his professional reputation and standing in professional circles. 124 It follows that the applicant has not established the existence of a sufficiently direct causal link between the forwarding of the information by OLAF to the Belgian judicial authorities pursuant to Article 10(2) of Regulation No 1073/1999 and the damage claimed. 125 The condition requiring a causal link between the damage alleged and OLAF’s conduct in order for the Community to incur non-contractual liability not having been satisfied in this case, the action for damages relating to OLAF’s ‘complaint’ must be dismissed without it being necessary to examine the other conditions governing that liability. 126 Second, as regards the application for damages to make good the damage allegedly resulting from OLAF’s press releases, the applicant refers to the draft recommendation of the Ombudsman of 10 June 2003 and the latter’s recommendation of 20 November 2003, holding that there had been maladministration, and infers that the press release of 27 March 2002 constitutes ‘as such’, an ‘unlawful administrative act’ and that the press release of 30 September 2003 represents a new instance of maladministration, which, by reiterating the allegations made in the earlier press release, also infringes the principle of proportionality. 127 In that regard, first, the principle of sound administration, which is the only principle alleged to have been breached in this context, does not, in itself, confer rights upon individuals (Case T‑196/99 Area Cova and Others v Council and Commission [2001] ECR II‑3597, paragraph 43), except where it constitutes the expression of specific rights such as the right to have affairs handled impartially, fairly and within a reasonable time, the right to be heard, the right to have access to files, or the obligation to give reasons for decisions, for the purposes of Article 41 of the Charter of fundamental rights of the European Union, proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1), which is not the case here. 128 For the sake of completeness, the classification as an ‘act of maladministration’ by the Ombudsman does not mean, in itself, that OLAF’s conduct constitutes a sufficiently serious breach of a rule of law within the meaning of the case-law. In the institution of the Ombudsman, the Treaty has given citizens of the Union, and more particularly officials and other servants of the Community, an alternative remedy to that of an action before the Community Courts in order to protect their interests. That alternative non-judicial remedy meets specific criteria and does not necessarily have the same objective as judicial proceedings (Case T-209/00 Lamberts v Ombudsman [2002] ECR II-2203, paragraph 65). 129 Also, in view of the autonomy granted to OLAF by Regulation No 1073/1999 and of the general objective of press releases of providing information to the public, OLAF enjoys discretion as regards the appropriateness and content of its press releases in respect of its investigatory activities. 130 In addition, it is apparent from an examination of the wording of the press release of 27 March 2002 that the only passage which could possibly be deemed prejudicial is worded as follows: ‘According to information received by [OLAF], a journalist has received a number of documents relating to the so-called “van Buitenen affair”. It is not inconceivable that payment may have been made to somebody within OLAF (or possibly another EU institution) for these documents. …’ 131 Even supposing that those with knowledge of the case could make the connection with the applicant, those allegations, formulated in a hypothetical way, without indicating the applicant’s name or the name of the magazine for which he worked, do not constitute a manifest and grave disregard, by OLAF, of the limits of its discretion. Furthermore, it was Stern itself which, in its press release of 28 March 2002, cited the applicant’s name. The applicant’s identity, in relation to OLAF’s investigations, was thus not revealed by OLAF but by his employer Stern magazine. Therefore, the damage that the applicant allegedly suffered to his professional reputation and standing in professional circles, in respect of that publication, cannot be attributed to OLAF. Consequently, the press release in dispute does not amount to a sufficiently serious breach of Community law by OLAF. 132 For its part, OLAF’s press release of 30 September 2003, which was published following the European Ombudsman’s draft recommendation of 18 June 2003, seeks to tone down the allegations contained in the press release of 27 March 2002. It thus states: ‘… OLAF’s enquiries have not yet been completed, but to date, [OLAF] has not obtained proof that such a payment was made.’ Therefore, that press release does not constitute a sufficiently serious breach of a rule of law any more than the previous one. 133 The same conclusion must be drawn in relation to the statement of the OLAF spokesman which was cited in the European Voice magazine of 4 April 2002, according to which OLAF ‘had prima facie evidence that a payment might have been made’, since the cautiousness of the words used does not establish the existence of a sufficiently serious breach of Community law. As for the statement of the Director of OLAF on Stern TV on 24 March 2004, the applicant does not provide any means of verifying its content. 134 Moreover, the applicant does not develop any legal arguments in his application which make it possible to assess how exactly the publication of the press releases and other public statements by OLAF could be classified as a ‘sufficiently serious breach’ of a rule of law. 135 It follows from the above that the applicant has failed to show the existence of a sufficiently serious breach of Community law attributable to OLAF capable of causing him harm. Therefore, his claim for damages in relation to the press releases and OLAF’s other public statements must be dismissed without its being necessary to assess whether the applicant has actually suffered the damage alleged and the extent of that damage. 136 Consequently, the action for damages must be dismissed in its entirety. The request for the production of documents 137 The applicant requests the Court to order the Commission to provide a complete copy of the ‘complaints’ forwarded by OLAF to the German and Belgian judicial authorities. 138 In that regard, during the proceedings before the Court, the Commission produced the letters addressed to the German and Belgian judicial authorities on 11 February 2004, in an unexpurgated version. 139 Therefore, there is no need to adjudicate on that request, which has become devoid of purpose. 140 It follows from all the foregoing that the action must be dismissed in its entirety. Costs 141 Under Article 87(2) 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, and the Commission has applied for costs, the applicant must pay the costs incurred by the Commission, including those relating to the interlocutory proceedings, in addition to its own costs. 142 Under the third subparagraph of Article 87(4) of the Rules of Procedure, the IFJ, which has intervened in these proceedings, is to bear its own costs. On those grounds, THE COURT OF FIRST INSTANCE (Fourth Chamber) hereby: 1. Dismisses the action; 2. Declares it unnecessary to give judgment on the request for the production of documents; 3. Orders the applicant to pay his own costs and the costs incurred by the Commission, including those relating to the interlocutory proceedings; 4. Orders the International Federation of Journalists to bear its own costs. Legal Lindh Vadapalas Delivered in open court in Luxembourg on 4 October 2006. Registrar President E. Coulon H. Legal * Language of the case: English.