62018TJ0138_RES
Case T‑138/18
Fernando De Esteban Alonso
v
European Commission
Judgment of the General Court (Fifth Chamber), 11 June 2019
(Civil service — Former officials — Investigation by OLAF — ‘Eurostat’ case — Forwarding to the national judicial authorities of information relating to matters liable to result in criminal proceedings — Failure to inform in advance the officials potentially concerned — Damage allegedly sustained as a result of the conduct of OLAF and the Commission in the course of the proceedings — Non-material, physical and material harm — Causal link)
Officials — Non-contractual liability of the institutions — Conditions — Unlawfulness — Damage — Causal link — Burden of proof
(Art. 340, second para., TFEU)
(see paragraph 45)
Actions brought by officials — Actions for damages — Origin — Employment relationship — Legal basis
(Arts 268, 270 and 340 TFEU; Staff Regulations, Arts 90 and 91)
(see paragraph 46)
European Anti-Fraud Office (OLAF) — Investigations — Internal investigations — Meaning — Forwarding by OLAF of information relating to officials to national judicial authorities — Included
(Commission Decision 1999/396, Art. 4, first para.)
(see paragraph 55)
European Anti-Fraud Office (OLAF) — Investigations — Internal investigations — Obligation to inform the interested party of the possibility of his personal implication — Scope — Infringement — Consequences
(Charter of Fundamental Rights of the European Union, Art. 41(2)(a); European Parliament and Council Regulation No 1073/1999, Art. 10; Commission Decision 1999/396, Art. 4, first para.)
(see paragraphs 56-63)
European Anti-Fraud Office (OLAF) — Investigations — Internal investigations — Obligation to inform the interested party of the possibility of his personal implication — Power to derogate — Conditions
(Commission Decision 1999/396, Art. 4, second para.)
(see paragraphs 78-80)
Actions brought by officials — Prior administrative complaint — Correspondence between the complaint and the application — Same subject matter and legal basis — Submissions and arguments not made in the complaint but closely related to it — Admissibility
(Staff Regulations, Arts 90 and 91)
(see paragraphs 90-92, 94)
European Anti-Fraud Office (OLAF) — Investigations — Internal investigations — Possibility for the Commission to bring a civil action and complaint before a national judicial authority concerning the facts covered by the investigation prior to its closure — None
(Staff Regulations, Annex IX, Art. 25; European Parliament and Council Regulation No 1073/1999, Art. 9(2) and (4))
(see paragraphs 98-109)
Commission — Powers — Right of access to the courts — Lodging of an appeal and an appeal in cassation against a decision delivered by a national court against an official of the Union — Breach of the right to good administration and of the duty of care — None save in exceptional circumstances
(Charter of Fundamental Rights of the European Union, Art. 47)
(see paragraphs 111-115)
Officials — Non-contractual liability of the institutions — Non-material damage — Causal link — Burden of proof
(Art. 340, second para., TFEU)
(see paragraph 122)
Officials — Non-contractual liability of the institutions — Damage — Damage for which compensation is available — Costs incurred for the purpose of national judicial proceedings — Conditions
(Art. 340, second para., TFEU)
(see paragraphs 126, 127)
Résumé
In the judgment in De Esteban Alonso v Commission (T‑138/18), delivered on 11 June 2019, the General Court ordered the Commission to pay damages to a former official for the non-material harm he suffered as a result of the illegal conduct of that institution and of the European Anti-Fraud Office (OLAF) in the context of the transmission of information to national judicial authorities and of national criminal proceedings against him.
As from 1996, Eurostat ensured the dissemination of statistics to the public through the Office for Official Publications of the European Communities and a network of sales outlets (‘datashops’) under tripartite contracts. In 1999, an internal audit found irregularities in the financial management of certain of those contracts. Following several investigations conducted by OLAF in that regard, OLAF transmitted to the French judicial authorities information by means of a note, that transmission concerning an internal investigation within the meaning of Decision 1999/396. (
1
) The Commission, subsequently, filed a complaint against X before the public prosecutor of the Republic at the tribunal de grande instance de Paris. It also brought a civil action in the context of those criminal proceedings.
In 2008, on the instructions of that prosecutor, the applicant, a former director of Eurostat, was interviewed as a witness by the French judicial police, then placed in police custody and charged with breach of trust for misappropriation of funds accruing to the Community budget. In 2013, the investigating judge at the tribunal de grande instance de Paris issued an order in respect of all the defendants in the ‘Eurostat’ case, including the applicant, ruling that there was no need to adjudicate in the criminal proceedings. The Commission, as a civil party, brought an unsuccessful appeal before the cour d’appel de Paris and, subsequently, before the French Cour de cassation. In 2018, the applicant brought an action before the General Court seeking compensation for the harm suffered as a result of the conduct of OLAF and the Commission. In that context, the Court was required to adjudicate on, first, breach by OLAF of the applicant’s rights of defence and infringement of Decision 1999/396, since the applicant had not been heard before the transmission of information by OLAF to the French authorities and, second, infringement by the Commission of Regulation No 1073/1999, (
2
) breach of the right to good administration and of the duty of care, by having brought a civil action before the French courts before the closure of OLAF’s investigation and by pursuing the legal proceedings up to the cassation stage.
As regards the alleged conduct of OLAF, the Court held that Article 4 of Decision 1999/396 must be interpreted in accordance with Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, with the result that it lays down, in the first place, a general obligation — applicable throughout the investigation — to inform the interested party as soon as his possible ‘implication’ emerges, unless this would be harmful to the investigation. In the second place, that obligation to inform becomes all the more important where the conclusions refer to an official by name. According to the Court, given the applicant’s hierarchical position, at the time of the relevant facts, within the group of persons named in the information transmitted by OLAF to the French authorities, he should have been treated as a person referred to by name for the purposes of the first paragraph of Article 4 of Decision 1999/396. The applicant’s implication, given his duties and role, was furthermore confirmed in the order of the investigating judge of the tribunal de grande instance de Paris ruling that there was no need to adjudicate in the criminal proceedings. Therefore, in the absence of a reason capable of justifying OLAF’s failure to inform the applicant of the transmission of that information, the Court held that OLAF had not complied with its obligation under the first sentence of the first paragraph of Article 4.
As regards the Commission’s alleged conduct, the Court ruled that it infringed Article 9(4) of Regulation No 1073/1999 by bringing a civil action in the context of the criminal proceedings and by lodging complaints before the French courts before OLAF’s final report was delivered, without having sufficient and conclusive evidence in its defence. According to the Court, although there is no express rule prohibiting that conduct, the fact remains that the objective pursued by the rules governing disciplinary proceedings, namely the objective of protecting the official concerned by ensuring that the institution concerned has, before initiating proceedings against him, precise and relevant elements in its defence, is applicable by analogy to national judicial proceedings, in accordance with the spirit and the letter of Regulation No 1073/1999.
Furthermore, the Court rejected the complaint alleging breach of the right to good administration and of the duty of care of the Commission because it pursued the legal proceedings against the applicant up to the cassation stage, by considering that those principles could in no case impose on it the obligation not to defend the economic interests of the institution and not to contest the decisions of the French judicial authorities. In the absence of exceptional circumstances, such an extension does not constitute wrongful administration.
As regards the damages claimed by the applicant, the Court noted that the applicant suffered non-material harm as a direct result of the conduct of the Commission and OLAF which caused injury to his honour and professional reputation on account of the fact that the Commission suggested that he had acted unlawfully in the performance of his duties and gave the impression to his personal and professional circle that he was implicated in fraudulent acts. That harm also caused a feeling of injustice, powerlessness and frustration because, when OLAF transmitted the information to the French authorities, the applicant was unable to express or defend himself in relation to the facts on the basis of which he was prosecuted. Therefore, the Court decided, ex aequo et bono, that compensation of EUR 62000 constituted appropriate recompense for the harm suffered.
(
1
)	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).
(
2
)	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).