JUDGMENT OF THE COURT (Tenth Chamber)
30 November 2023 (*)
(Appeal – Investigation by the European Anti-Fraud Office (OLAF) – OLAF Communication to national customs authorities – OLAF investigation report – Access to the OLAF file – Regulation (EU, Euratom) No 883/2013 – Regulation (EC) No 1049/2001 – Action for annulment – Admissibility – Actions for damages – Unlawfulness of the conduct alleged)
In Case C‑787/22 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 29 December 2022,
‘Sistem ecologica’ production, trade and services d.o.o. Srbac, established in Srbac (Bosnia and Herzegovina), represented by D. Diris and D. Rjabynina, advocaten,
appellant,
the other party to the proceedings being:
European Commission, represented by J. Baquero Cruz, F. Blanc and T. Materne, acting as Agents,
defendant at first instance,
THE COURT (Tenth Chamber),
composed of Z. Csehi, President of the Chamber, I. Jarukaitis and D. Gratsias (Rapporteur), Judges,
Advocate General: N. Emiliou,
Registrar: A. Calot Escobar,
having regard to the written procedure,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1        By its appeal,
‘Sistem ecologica’ production, trade and services d.o.o. Srbac seeks to have set aside the judgment of the General Court of the European Union of 19 October 2022, Sistem ecologica v Commission (T‑81/21, EU:T:2022:641; ‘the judgment under appeal’), by which the latter dismissed its action seeking, first, annulment of the final investigation report adopted by the European Anti-Fraud Office (OLAF) on 8 December 2020 (‘the final report’) and of OLAF’s decisions contained in a communication sent on 9 June 2020 to the Member States (‘the communication of 9 June 2020’), and in letters of 25 November, 27 November, 8 December and 21 December 2020 and, second, compensation in respect of the damage allegedly suffered by the appellant.
Legal context
International law
2        The Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and Bosnia and Herzegovina, of the other part (OJ 2015 L 164, p. 2; ‘the EU-BH Agreement’), was signed on 16 June 2008 at Luxembourg and approved on behalf of the European Union and the European Atomic Energy Community by Council and Commission Decision (EU, Euratom) 2015/998 of 21 April 2015 (OJ 2015 L 164, p. 548). Under Article 2 of that decision, the President of the Council of the European Union is to make, on behalf of the EU, the following notification:
‘As a consequence of the entry into force of the Treaty of Lisbon on 1 December 2009, … references to “the European Community” in the text of the Agreement are, where appropriate, to be read as “the European Union”‘.
3        It is apparent from the preamble to that agreement that, in the text thereof, the term ‘Community’ refers to both the ‘European Community’, replaced by the European Union, and the ‘European Atomic Energy Community’.
4        Headed ‘Customs’, Article 97 of the EU-BH Agreement states:
‘The Parties shall establish cooperation in this area with a view to guarantee compliance with the provisions to be adopted in the area of trade and to achieve the approximation of the customs system of Bosnia and Herzegovina to that of the Community, thereby helping to pave the way for the liberalisation measures planned under this Agreement and for the gradual approximation of the customs legislation of Bosnia and Herzegovina to the acquis.
Cooperation shall take due account of priority areas related to the Community acquis in the field of customs.
The rules on mutual administrative assistance between the Parties in the customs field are laid down in Protocol 5.’
5        Article 124 of that agreement provides, in paragraph 1 thereof:
‘In the fields covered by this Agreement and without prejudice to any special provisions contained therein:
(a)      the arrangements applied by Bosnia and Herzegovina in respect of the Community shall not give rise to any discrimination between the Member States, their nationals, companies or firms;
…’
6        Headed ‘Definitions’, Article 1 of Protocol 5 on mutual administrative assistance in customs matters, annexed to that agreement (‘Protocol 5’), provides:
‘For the purposes of this Protocol:
…
(b)      “applicant authority” means a competent administrative authority which has been designated by a Party for this purpose and which makes a request for assistance on the basis of this Protocol;
(c)      “requested authority” means a competent administrative authority which has been designated by a Party for this purpose and which receives a request for assistance on the basis of this Protocol;
…’
7        Article 7 of that protocol, headed ‘Execution of requests’, is worded as follows:
‘1.      In order to comply with a request for assistance, the requested authority shall proceed, within the limits of its competence and available resources, as though it were acting on its own account or at the request of other authorities of that same Party, by supplying information already possessed, by carrying out appropriate inquiries or by arranging for them to be carried out. This provision shall also apply to any other authority to which the request has been addressed by the requested authority when the latter cannot act on its own.
2.      Requests for assistance shall be executed in accordance with the legal or regulatory provisions of the requested Party.
…
4.      Duly authorised officials of a Party involved may, with the agreement of the other Party, be involved and subject to the conditions laid down by the latter, be present at inquiries carried out in the latter’s territory.’
European Union law
Regulation (EC, Euratom) No 2988/95
8        Article 9(1) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1) provides:
‘Without prejudice to the checks carried out by the Member States in accordance with their national laws, regulations and administrative provisions and without prejudice to the checks carried out by the Community institutions in accordance with the [FEU] Treaty, and in particular Article [287] thereof, the [European] Commission shall, on its responsibility, have checks carried out on:
(a)      the conformity of administrative practices with Community rules;
(b)      the existence of the necessary substantiating documents and their concordance with the Communities’ revenue and expenditure as referred to in Article 1;
(c)      the circumstances in which such financial transactions are carried out and checked.’
Regulation (Euratom, EC) No 2185/96
9        Article 2 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 (OJ 1996 L 292, p. 2.) provides:
‘The Commission may carry out on-the-spot checks and inspections pursuant to this Regulation:
–        for the detection of serious or transnational irregularities or irregularities that may involve economic operators acting in several Member States, or
–        where, for the detection of irregularities, the situation in a Member State requires on-the-spot checks and inspections to be strengthened in a particular case in order to improve the effectiveness of the protection of financial interests and so to ensure an equivalent level of protection within the Community, or
–        at the request of the Member State concerned.’
10      Article 8(1) of that regulation states:
‘Information communicated or acquired in any form under this Regulation shall be covered by professional secrecy and protected in the same way as similar information is protected by the national legislation of the Member State that received it and by the corresponding provisions applicable to the Community institutions.
Such information may not be communicated to persons other than those within the Community institutions or in the Member States whose functions require them to know it nor may it be used by Community institutions for purposes other than to ensure effective protection of the Communities’ financial interests in all Member States. …’
Regulation (EC) No 515/97
11      In accordance with Article 17(2) of Council Regulation (EC) No 515/97 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters (OJ 1997 L 82, p. 1), the Commission is to communicate to the competent authorities in each Member State, as soon as it becomes available, any information that would help them to enforce customs or agricultural legislation.
Regulation (EC) No 1049/2001
12      Headed ‘Exceptions’, Article 4 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) provides, in paragraph 2 thereof, that the institutions are to refuse access to a document where disclosure would undermine the protection of, inter alia, the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure of the document sought.
13      Under Article 7(2) of the regulation, ‘in the event of a total or partial refusal [of the application for access to documents], the applicant may, within 15 working days of receiving the institution’s reply, make a confirmatory application asking the institution to reconsider its position’.
Regulation (EU, Euratom) No 883/2013
14      Recitals 10, 12, 18, 23, 31 and 47 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 (OJ 2013 L 248, p. 1) read as follows:
‘(10)      The operational efficiency of [OLAF] depends greatly on cooperation with the Member States. There is a need for the Member States to identify their competent authorities which are able to provide [OLAF] with the assistance needed in the performance of its duties. In cases where a Member State has not set up a specialist department at national level with the task of coordinating the protection of the financial interests of the Union and the fight against fraud, a service (the anti-fraud coordination service) should be designated to facilitate effective cooperation and exchange of information with [OLAF].
…
(12)      These investigations must be conducted in accordance with the Treaties […], and with full respect for human rights and fundamental freedoms, in particular the principle of fairness, for the right of persons involved to express their views on the facts concerning them and for the principle that the conclusions of an investigation may be based solely on elements which have evidential value. To that end, the institutions, bodies, offices and agencies should lay down the terms and conditions under which internal investigations are to be conducted.
…
(18)      Investigations should be conducted under the authority of the Director-General, in full independence from the institutions, bodies, offices and agencies and from the Supervisory Committee. …
…
(23)      The procedural guarantees and fundamental rights of persons concerned and of witnesses should be respected without discrimination at all times and at all stages of both external and internal investigations, in particular when information about ongoing investigations is provided. …
…
(31)      It is for the competent authorities of the Member States or the institutions, bodies, offices or agencies, as the case may be, to decide what action should be taken on completed investigations on the basis of the final investigation reports drawn up by [OLAF].
…
(47)      The Director-General should put in place an internal advisory and control mechanism, including a legality check, with particular reference to the obligation to respect the procedural guarantees and fundamental rights of the persons concerned and the national law of the Member States concerned.’
15      Article 1 of Regulation No 883/2013, headed ‘Objectives and tasks’, provides, in paragraph 1 thereof:
‘In order to step up the fight against fraud, corruption and any other illegal activity affecting the financial interests of the European Union and of the European Atomic Energy Community (hereinafter referred to collectively, when the context so requires, as “the Union”), [OLAF] shall exercise the powers of investigation conferred on the Commission by:
(a)      the relevant Union acts; and
(b)      the relevant cooperation and mutual assistance agreements concluded by the Union with third countries and international organisations.’
16      Under Article 2 of that regulation, headed ‘Definitions’:
‘For the purposes of this Regulation, the following definitions shall apply:
…
(4)      “administrative investigations” (“investigations”) shall mean any inspection, check or other measure undertaken by [OLAF] in accordance with Articles 3 and 4, with a view to achieving the objectives set out in Article 1 and to establishing, where necessary, the irregular nature of the activities under investigation; those investigations shall not affect the powers of the competent authorities of the Member States to initiate criminal proceedings;
(5)      “person concerned” shall mean any person or economic operator suspected of having committed fraud, corruption or any other illegal activity affecting the financial interests of the Union and who is therefore subject to investigation by [OLAF];
…’
17      Article 3 of that regulation, under the heading ‘External investigations’, states in paragraph 1 thereof:
‘[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.
As part of its investigative function, [OLAF] shall carry out the checks and inspections provided for in Article 9(1) of Regulation [No 2988/95] 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.’
18      Article 7 of that regulation, entitled ‘Investigations procedure’, provides, in paragraph 7 thereof:
‘Where necessary, it shall be for the competent authorities of the Member States, at [OLAF]’s request, to take the appropriate precautionary measures under their national law, in particular measures for the safeguarding of evidence.’
19      Article 9 of Regulation No 883/2013, headed ‘Procedural guarantees’, is worded as follows:
‘1.      In its investigations [OLAF] shall seek evidence for and against the person concerned. Investigations shall be conducted objectively and impartially and in accordance with the principle of the presumption of innocence and with the procedural guarantees set out in this Article.
2.      [OLAF] may interview a person concerned or a witness at any time during an investigation. Any person interviewed shall have the right to avoid self-incrimination.
…
[OLAF] shall draw up a record of the interview and give the person interviewed access to it so that the person interviewed may either approve the record or add observations. [OLAF] shall give the person concerned a copy of the record of the interview.
…
4.      ‘… once the investigation has been completed and before conclusions referring by name to a person concerned are drawn up, that person shall be given the opportunity to comment on facts concerning him.
To that end, [OLAF] shall send the person concerned an invitation to comment either in writing or at an interview with staff designated by [OLAF]. That invitation shall include a summary of the facts concerning the person concerned … and shall indicate the time limit for submitting comments, which shall not be less than 10 working days from receipt of the invitation to comment. That notice period may be shortened with the express consent of the person concerned or on duly reasoned grounds of urgency of the investigation. The final investigation report shall make reference to any such comments.
…’
20      Article 10 of that regulation, headed ‘Confidentiality and data protection’, provides, in paragraph 1 thereof, that information transmitted or obtained in the course of external investigations, in whatever form, is to be protected by the relevant provisions.
21      Article 11 of that regulation, headed ‘Investigation report and action to be taken following investigations’ provides, in paragraphs 1 and 7 thereof:
‘1.      On completion of an investigation by [OLAF], a report shall be drawn up, under the authority of the Director-General. That report shall give an account of the legal basis for the investigation, the procedural steps followed, the facts established and their preliminary classification in law, the estimated financial impact of the facts established, the respect of the procedural guarantees in accordance with Article 9 and the conclusions of the investigation.
The report shall be accompanied by recommendations of the Director-General on whether or not action should be taken. Those recommendations shall, where appropriate, indicate any disciplinary, administrative, financial and/or judicial action by the institutions, bodies, offices and agencies and by the competent authorities of the Member States concerned, and shall specify in particular the estimated amounts to be recovered, as well as the preliminary classification in law of the facts established.
…
7.      … if, on completion of an investigation, no evidence has been found against the person concerned, the Director-General shall close the investigation regarding that person and inform that person within 10 working days.
…’
22      Under Article 12(1) of that regulation, OLAF may transmit to the competent authorities of the Member States concerned information obtained in the course of external investigations in due time to enable them to take appropriate action in accordance with their national law. The first subparagraph of Article 12(2) states that the Director-General is to transmit to the judicial authorities of the Member State concerned information obtained by OLAF, in the course of internal investigations, concerning facts which fall within the jurisdiction of a national judicial authority.
23      Article 17 of Regulation No 883/2013, headed ‘Director-General’ states, in paragraphs 3 and 7 thereof:
‘3.      The Director-General shall neither seek nor take instructions from any government or any institution, body, office or agency in the performance of his duties with regard to the opening and carrying-out of external and internal investigations or to the drafting of reports following such investigations. …
…
7.      The Director-General shall put in place an internal advisory and control procedure, including a legality check, relating, inter alia, to the respect of procedural guarantees and fundamental rights of the persons concerned and of the national law of the Member States concerned, …’
Background to the dispute
24      The background to the dispute is set out in paragraphs 2 to 21 of the judgment under appeal and, for the purposes of the present proceedings, may be summarised as follows.
25      An analysis of the trend in imports of biodiesel into the European Union since 2015 led OLAF to suspect the existence of fraud relating, in particular, to imports of biodiesel into the European Union presented as relating to biodiesel produced from used cooking oil from Bosnia and Herzegovina – which were eligible for preferential customs duties of 0% – when they in fact originated from the United States and should have been subject to conventional, anti-dumping and countervailing duties. On the basis of those suspicions, OLAF and the Croatian customs authorities conducted random inspections of the contents of certain containers coming from the United States bound for Bosnia and Herzegovina that were presented as transporting ‘used cooking oils’. Those checks revealed that the contents in fact ranged between 93.5% and 97.4% biodiesel.
26      On 23 August 2019, OLAF opened an investigation concerning, inter alia, a possible evasion of the conventional, countervailing and anti-dumping duties imposed on imports of biodiesel into the European Union.
27      On 4 September 2019, OLAF, first, sent the Member States, pursuant to Regulation No 515/97, a communication by way of which it informed them of its suspicions of fraud and requested their assistance and, second, requested the assistance of the United States authorities pursuant to the Agreement between the European Community and the United States of America on customs cooperation and mutual assistance in customs matters (OJ 1997 L 222, p. 17).
28      On 18 September 2019, OLAF also sought the cooperation of the authorities of Bosnia and Herzegovina in accordance with Protocol 5. Further to that request, OLAF, together with representatives of certain Member States, took part in an investigative mission in Bosnia and Herzegovina, participating in that regard in an on-the-spot inspection conducted by the Indirect Taxation Authority of Bosnia and Herzegovina (‘the ABFI’) at the appellant’s premises on 4 December 2019 (‘the inspection of 4 December 2019’).
29      Pursuant to Regulation No 515/97, OLAF sent the Member States the communication of 9 June 2020 by way of which it forwarded to them the preliminary results of the investigation. In that communication, OLAF stated that the appellant was the biodiesel export company present in Bosnia and Herzegovina and that there had been no biodiesel production in Bosnia and Herzegovina, since the imported biodiesel actually originated from the United States. OLAF requested that the Member States concerned, given the applicable limitation periods, urgently take all appropriate precautionary measures to protect the financial interests of the European Union, by applying the relevant provisions of the Union Customs Code and its implementing regulations.
30      Further to that communication, the Belgian customs authorities imposed on a biodiesel importer, by way of precautionary measures, the payment of EUR 3 026 388.74, corresponding to the conventional, countervailing and anti-dumping duties applicable to an import of biodiesel from the United States. That importer brought legal actions against the appellant before the courts of the Netherlands and of the United Kingdom of Great Britain and Northern Ireland.
31      By letter of 7 October 2020, pursuant to Article 9(4) of Regulation No 883/2013, OLAF invited the appellant to comment, in writing and within a period of 10 working days, on the facts concerning it, as set out in the summary attached to that letter. The appellant submitted its observations on 16 October 2020. It disputed the merits of OLAF’s claims and, furthermore, argued that the procedural guarantees provided for in that regulation had not been observed. It claimed, inter alia, that OLAF should have allowed it to submit its comments before OLAF adopted its findings and communicated them to the national authorities.
32      On 27 October 2020, the appellant requested that OLAF send it certain documents contained in its file and that a meeting be held. On 25 November 2020, OLAF refused to grant the appellant’s request on the grounds that Regulation No 883/2013 did not afford the person concerned a right to access the file, and that it had been deemed appropriate to give the appellant the opportunity to comment in writing. In addition, it offered the appellant a further opportunity to submit written comments no later than 30 November 2020.
33      On 27 November 2020, the Director-General of OLAF replied to the appellant’s complaint which, it is claimed, was contained in the latter’s comments of 16 October 2020. He stated, inter alia, that neither the Commission nor OLAF was obliged to allow the person concerned to express its views before a communication to the competent national authorities is made pursuant to Article 17(2) of Regulation No 515/97.
34      On 8 December 2020, OLAF adopted the final report which found, first, that the exports of ‘used cooking oils’ from the United States to the Netherlands were in fact biodiesel and, second, that the biodiesel exported by the appellant, although Bosnia and Herzegovina was declared as its origin, came in reality from the United States; this constituted an evasion of the applicable conventional, countervailing and anti-dumping duties. On the same day, OLAF closed its investigation and made recommendations for follow-up actions.
35      On 14 December 2020, the appellant sent OLAF a complaint concerning the breach of the its procedural guarantees in the course of the investigation. On 21 December 2020, the Director of OLAF replied that that complaint would not be investigated since a complaint cannot be submitted once the investigation has been closed. He added that the appellant had had the opportunity to put forward its views during the procedure and that a previous complaint had been investigated.
The procedure before the General Court and the judgment under appeal
36      By application lodged with the Registry of the General Court on 3 February 2021, the appellant brought an action seeking (i) annulment of the OLAF ‘decision’ set out in the communication of 9 June 2020; (ii) a declaration finding unlawful OLAF’s failure to take, with regard to the appellant, the measures laid down by the relevant rules, namely to notify it of the decision to open inquiries or an investigation concerning it individually, to inform it of inquiries or investigations liable to implicate it personally, and to enable it to express its views on all the facts concerning it before conclusions relating to it individually are drawn from those inquiries or investigations; (iii) annulment of the decision taken by OLAF on 25 November 2020 refusing the appellant’s request for access to its investigation file; (iv) annulment of the decision taken by OLAF on 25 November 2020 to consider the appellant’s comments of 16 October 2020 as a complaint; (v)
annulment of the decision taken by OLAF on 27 November 2020 rejecting the alleged complaint; (vi) annulment of the decision taken by OLAF on 8 December 2020 to close the investigation concerning the appellant; (vii) annulment of the decision taken by OLAF on 21 December 2020 not to consider the appellant’s ‘complaints’ of 14 December 2020 as ‘complaints’; (viii) a declaration that the information and data relating to the appellant and any relevant evidence forwarded to the national authorities constitute inadmissible evidence, including OLAF’s ‘mission report of 16 January 2020’, the communication of 9 June 2020 and the final report; (ix) a declaration that all investigative procedures carried out in the investigation further to the aforementioned decisions were unlawful; (x) a declaration that the conclusions drawn from those investigations were unlawful; (xi) a declaration that all information forwarded to the national authorities, including the communication of 9 June 2020 and the final report, was unlawful; and (xii) that the Commission be ordered to pay to the appellant the amount of EUR 3 026 388.74 in compensation in respect of damage suffered on account of OLAF’s unlawful conduct and damage caused to the appellant’s professional activities and reputation. In its reply, the appellant requested that the General Court order the Commission to pay to it, in the alternative, the amount of EUR 1 000 000 in legal expenses, assessed provisionally, and compensation for the damage suffered, established by the General Court ex aequo et bono.
37      In the first place, it is apparent from paragraphs 27 to 29 of the judgment under appeal that the General Court held that it did not have jurisdiction to hear and determine the appellant’s second and eighth to eleventh heads of claim, on the ground that these all constituted a request that the General Court deliver a declaratory judgment.
38      In the second place, in paragraph 38 of the judgment under appeal, the General Court noted, as a preliminary point, that although the appellant did not formally seek annulment of the final report, it was apparent from the application, as a whole, that the appellant disputed the lawfulness of the investigation conducted by OLAF, which had led to the adoption of the final report, with the result that the action had be understood as also being directed against the final report. Following that preliminary observation, the General Court examined, in paragraphs 39 to 47 of that judgment, the claims for annulment of the final report and the decision to close the investigation, made by OLAF on 8 December 2020, and rejected those claims as inadmissible. In essence, the General Court found that the final report and the recommendations associated with it were not binding on those to whom they were addressed, since it is for the competent authorities of the Member States or the
institutions, bodies, offices or agencies of the European Union, as the case may be, to decide what action should be taken on completed investigations on the basis of the final investigation reports drawn up by OLAF, on the basis of the final investigation reports prepared by that office. As to the closure of the investigation, the General Court ruled that the scope of the investigation was not independent of that report.
39      In paragraph 48 of the judgment under appeal, the General Court held that, for reasons similar to those relied on in respect of the final report and the closure of the investigation, all the acts adopted by OLAF in connection with its investigation were equally incapable of forming the subject matter of an action for annulment. After examining, in paragraphs 49 to 52, 53 to 55 and 56 to 64 of that judgment, respectively, the admissibility of the appellant’s heads of claim for annulment directed against, first, the communication of 9 June 2020, second, OLAF’s letters of 25 and 27 November 2020 and of 21 December 2020 and, third, OLAF’s letter of 25 November 2020, the General Court found, in paragraph 65 of that judgment, that the appellant’s action, in so far as it had been brought under Article 263 TFEU, had to be dismissed as inadmissible, since it was directed against acts incapable of forming the subject matter of an action for annulment.
40      In the third place, in paragraphs 66 to 183 of the judgment under appeal, the General Court examined the appellant’s claim for compensation and found, in paragraph 184 of that judgment, that this had to be rejected as unfounded, without it being necessary to rule on the admissibility of the additional claim for compensation submitted by the appellant at the reply stage. In essence, the General Court found that none of the 12 pleas in law raised by the appellant in its action allowed the existence of unlawful conduct on the part of OLAF to be established. In that connection, the General Court more specifically examined (i) in paragraphs 74 to 88 of that judgment, the argument put forward by the appellant in the context of its third, fourth and twelfth pleas, concerning alleged unlawfulness vitiating the review of 4 December 2019; (ii) in paragraphs 89 to 116 of that judgment, the appellant’s arguments in the context of its fifth, eighth and twelfth pleas, concerning an alleged infringement of its rights of defence; (iii) in paragraphs 124 to 152 of the judgment under appeal, the arguments put forward by the appellant in the context of its first and tenth pleas, in relation to an alleged breach of the principles of transparency, independence and diligence; (iv) in paragraphs 153 to 163 of that judgment, the appellant’s arguments in the context of its second plea, in relation to alleged bias on the part of the Director-General of OLAF; (v) in paragraphs 164 to
173 of that judgment, the arguments put forward by the appellant in the context of its sixth and seventh pleas, in relation to the disclosure of information in the press; and (vi) in paragraphs 174 to 180 of that judgment, the appellant’s arguments in the context of its eleventh plea, concerning an allegedly insufficient statement of reasons.
The form of order sought by the appellant before the Court of Justice
41      The appellant claims that the Court should set aside the judgment under appeal and order the Commission to pay the costs.
42      The Commission did not lodge a response within the time period prescribed under Article 172 of the Rules of Procedure of the Court of Justice.
The appeal
43      In support of its appeal, the appellant relies on seven grounds of appeal claiming (i) infringement of Article 263 TFEU, Regulations
Nos 883/2013 and 1049/2001, as well as a failure to state reasons and contradictory reasoning in the examination of the admissibility of the action for annulment; (ii) infringement of Article 124 of the EU-BH Agreement, Article 7(2) and (4) of Protocol 5, Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’) read in conjunction with Article 51 thereof, and Regulation No 883/2013; (iii) infringement of the right to avoid self-incrimination; (iv) infringement of Regulation No 883/2013 in so far as concerns OLAF’s internal advisory and control mechanism; (v) failure to state reasons and contradictory reasoning, in so far as concerns the right to be heard; (vi) failure to state reasons in so far as concerns the impartiality of the Director-General of OLAF; and (vii) infringement of the rights of the defence and contradictory reasoning in so far as concerns the samples taken by the Croatian customs authorities at OLAF’s request.
The first ground of appeal: infringement of Article 263 TFEU, Regulations Nos 883/2013 and 1049/2001, as well as a failure to state reasons and contradictory reasoning in the examination of the admissibility of the action for annulment
The appellant’s arguments
44      The first ground of appeal is subdivided into three parts.
45      By the first part of its first ground of appeal, the appellant challenges paragraphs 50 and 52 of the judgment under appeal. It submits that, inasmuch as it ruled that the appellant’s claim for annulment of the communication of 9 June 2020, the General Court erred in law or, in the alternative, relied on grounds which contradict those of the order of 13 April 2011, Planet v Commission (T‑320/09, EU:T:2011:172). As was the case in the matter giving rise to that order, it is implicitly apparent from Article 7 of Regulation No 883/2013 that the national authorities have a duty to take precautionary measures at OLAF’s request, as the latter expressly requested in that communication. OLAF’s requests set out in the communication of 4 September 2019, referred to in paragraph 27 of the present judgment, and in that of 9 June 2020, necessarily affect relations between OLAF and national authorities, with the result that those communications in fact produced effects outside OLAF and placed the appellant in an unfavourable position compared with that in which it found itself previously.
46      By the second part of its first ground of appeal, the appellant submits that the General Court relied on contradictory reasoning. On the one hand, in paragraphs 40 to 42 of the judgment under appeal, the General Court held, it is submitted, that the final report – which is not binding on those to whom it is addressed – does not constitute an act open to challenge by way of an action for annulment, since an act capable of being challenged does not depend on the significance which the contested act may have in practice, but solely on the question whether or not it produces binding legal effects. On the other hand, in paragraph 47 of that judgment, the General Court held that the closure of the OLAF investigation was not independent in scope from the final report, with the result that the heads of claim submitted in respect of that closure were also inadmissible.
47      Thus, in the appellant’s submission, the General Court made the challengeable nature of the decision to close the OLAF investigation subject to that of the final report, whereas it had stated that that nature was not to depend on the question whether or not that decision produced binding legal effects.
48      The appellant submits that that decision differs substantively from the final report, in so far as the national authorities and the institutions, bodies, offices or agencies of the European Union are competent to decide neither whether an OLAF investigation is complete nor whether to reopen that investigation, since such a decision may only be made by OLAF itself. Furthermore, a decision to close the investigation precludes the appellant submitting counterevidence to or being heard by OLAF and, more generally, exercising its rights of defence. Consequently, that decision produces binding legal effects.
49      By the third part of its first ground of appeal, the appellant takes issue with paragraphs 60
to 65 of the judgment under appeal. On the basis of paragraphs 73 to 75 of the judgment of 13 January 2022, Dragnea v Commission (C‑351/20 P, EU:C:2022:8), the appellant submits that OLAF should have examined its request for access to certain documents on the OLAF file in the light of Regulation No 1049/2001 and that it was therefore bound to inform the appellant of its right to make a confirmatory application under Article 7(2) of that regulation. In the absence of such information, the appellant took the view that OLAF had definitively established its position of refusing to grant the access sought, with the result that OLAF’s letter of 25 November 2020 should have been regarded as a definitive act capable of forming the subject matter of an action for annulment.
50      It is submitted that the General Court’s finding that no right of access was provided by Regulation No 883/2013 and that a request for access to documents under Regulation No 1049/2001 would necessarily fail, since the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001 relating to inspections, investigations and audits was applicable, contradicts the case-law cited in paragraph 41 of the judgment under appeal, under which the concept of an act capable of being challenged by way of an action for annulment does not depend on the significance which the contested act may have in practice, but solely on the question whether or not it produces binding legal effects.
Findings of the Court
–       First part of the first ground of appeal
51      As a preliminary point, it should be recalled that, according to the settled case-law of the Court, an action for annulment may be brought, on the basis of the first paragraph of Article 263 TFEU, against any provision or measure adopted by the institutions, bodies, offices or agencies of the European Union, whatever form it may take, which is intended to produce binding legal effects capable of affecting the interests of a natural or legal person by bringing about a distinct change in their legal position (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9, and of 21 January 2021, Germany v Esso Raffinage, C‑471/18 P, EU:C:2021:48, paragraph 63).
52      By the first part of its first ground of appeal, the appellant submits, in essence, that it follows from Article 7 of Regulation No 883/2013 that an OLAF communication, such as the communication of 9 June 2020, produces binding legal effects, with the result that it constitutes an act capable of forming the subject matter of an action for annulment.
53      In that connection, it should be noted that, in paragraph 51 of the judgment under appeal, the General Court held that the communication of 9 June 2020 formed part of the implementation by OLAF of its obligation under Article 17(2) of Regulation No 515/97 to communicate to the competent authorities in each Member State, as soon as it becomes available, any information that would help them to enforce customs or agricultural legislation, and that that communication was also linked to Article 12(1) of Regulation No 883/2013, under which ‘[OLAF] may transmit to the competent authorities of the Member States concerned information obtained in the course of external investigations in due time to enable them to take appropriate action in accordance with their national law’.
54      By contrast, the General Court did not refer to Article 7(7) of Regulation No 883/2013, which provides that, where necessary, it is to be for the competent authorities of the Member States, at OLAF’s request, to take the appropriate precautionary measures under their national law, in particular measures for the safeguarding of evidence.
55      However, even if the communication of 9 June 2020 were, as the appellant argues, to be understood as comprising a request from OLAF under Article 7(7) of Regulation No 883/2013, such a circumstance does not support the conclusion that that communication constitutes an act producing binding legal effects, capable of forming the subject matter of an action for annulment brought under Article 263 TFEU.
56      It can in fact be inferred from the reference, made in Article 7(7) of Regulation No 883/2013, to measures ‘under their national law’, that such measures may be taken by the Member State only where the conditions laid down in respect of the adoption thereof under national law are met. It therefore cannot be considered that a request made by OLAF under that provision imposes, on the Member State concerned, a ‘duty’ to adopt those measures in any event. Such a request must instead be understood as an invitation, addressed by OLAF to the Member State concerned, to ascertain, on the basis of the evidence and information disclosed by that office, whether the conditions justifying the adoption of precautionary measures provided for under the national law of the Member State have been met. It is only if that is indeed the case that that Member State will take the measures sought. The person concerned will be able, where necessary, to challenge such measures before the national courts, on which it will be incumbent, if need be, to make a reference to the Court of Justice for a preliminary ruling.
57      Furthermore, the General Court did not err in law when it found, in paragraph 50 of the judgment under appeal, that there was no parallel to be drawn between the case before it and that which gave rise to the order of 13 April 2011, Planet v Commission (T‑320/09, EU:T:2011:172). As is clear from paragraph 44 of the judgment of 19 December 2012, Commission v Planet (C‑314/11 P, EU:C:2012:823), by which the Court dismissed the appeal brought against that order, the finding of the General Court, according to which the warning about the company at issue in the second case had brought about a distinct change in the legal situation of that company, was based on a review of the specific circumstances of that case.
58      As the General Court essentially ruled in paragraph 50 of the judgment under appeal, those circumstances present no similarities with those of the case at hand. In the case which gave rise to the order of 13 April 2011, Planet v Commission (T‑320/09, EU:T:2011:172), the warning at issue implied the existence of a duty, for the Commission’s competent official, to take reinforced monitoring measures with regard to the company subject to that warning, in the context of the negotiation, between that company and the Commission, of a grant agreement. As is clear, more specifically, from paragraphs 48 to 54 of the judgment of 19 December 2012, Commission v Planet (C‑314/11 P, EU:C:2012:823), that warning had affected the scope for negotiation of that company, which had been made subject to additional conditions in order to conclude that agreement with the Commission and, accordingly, had found itself, from the time of the contested warning, in a different situation to that in which it had found itself previously.
59      However, unlike the conclusion of an contract, the terms of which ultimately depend on the agreement of the contracting parties, which each of them may freely give or decline to give, the communication of 9 June 2020 could only have the effect of inciting, where applicable, certain member States to adopt measures provided for under their national law, and only if they considered, on the basis of the information and evidence forwarded by OLAF, that the conditions laid down by that law for adopting such measures were met. Moreover, as has already been observed in paragraph 56 of the present judgment, the individual subject to such measures may challenge them before the national courts and, in that context, rely on any relevant argument or item of evidence, capable of calling into question the information or evidence forwarded by OLAF.
60      In those circumstances, the fact, relied on by the appellant, that the communication of 9 June 2020 negatively affected its relations with the national authorities, assuming that is established, was not sufficient for it to be considered that an action for annulment under Article 263 TFEU could be brought against that communication. Any such negative consequences would be the result not of that communication, per se, but of the information and evidence disclosed, inasmuch as these would imply the right or obligation, for the authorities concerned, to adopt measures provided for under their national law. Furthermore, unlike a Commission officer dealing with a warning such as that at issue in the case that gave rise to the order of 13 April 2011, Planet v Commission (T‑320/09, EU:T:2011:172), the national authorities do not find themselves in a relationship of hierarchical subordination to OLAF and are required to act, further to communications from the latter, only where the conditions provided for by the applicable provisions of their national law are met.
61      It follows from all the foregoing considerations that the first part of the first ground of appeal is unfounded and must, consequently, be rejected.
–       Second part of the first ground of appeal
62      By the second part of its first ground of appeal, the appellant submits, in essence, that the closure of the OLAF investigation concerning it produced binding legal effects on the appellant, inasmuch as that closure deprived it of the possibility of submitting counterevidence to OLAF and of exercising its rights of defence. According to the appellant, the General Court failed to take account, in paragraph 47 of the judgment under appeal, of those binding legal effects arising from the closure of the investigation, which is in contradiction with paragraphs 40 to 42 of that judgment, from which it is apparent that the challengeable nature of an act depends solely on the question of whether or not it produces such effects.
63      In that connection, it should be recalled that, in paragraph 38 of the judgment under appeal, the General Court noted that while the appellant did not formally seek annulment of the final report, its action was to be understood as also being directed against that report. Under those circumstances, in paragraphs 39 to 46 of that judgment, the General Court examined the admissibility of the appellant’s action, in so far as that action sought annulment of that report. The General Court observed, in paragraph 40 of that report, that the final OLAF report and the recommendations associated with it are not binding on those to whom they are addressed, since it is for the competent authorities of the Member States or the institutions, bodies, offices or agencies of the European Union, as the case may be, to decide what action should be taken on completed investigations on the basis of the final investigation reports drawn up by OLAF, as recital 31 of Regulation No 883/2013 recalls. Whilst admitting, in paragraph 39 of that judgment, that that report and those recommendations were likely to have a considerable practical impact on the administrative and judicial proceedings which may be conducted by the authorities of the Member States against the appellant, the General Court pointed out, in paragraph 41 of the judgment under appeal, that the concept of an act capable of being challenged by way of an action for annulment does not depend on the significance which the contested act may have in practice, but solely on its potential binding legal effects. Thus, the General Court found, in paragraphs 42 and 46 of that judgment, respectively, that the report did not constitute an act open to challenge and that the appellant’s action had to be dismissed as inadmissible, in so far as it was directed against that report.
64      In paragraph 47 of the judgment under appeal, the General Court added that that finding had to be extended to the closure of OLAF’s investigation, on the ground that the scope of the investigation was not independent of that report since it was apparent, according to the General Court, from Article 11(1) and (7) of Regulation No 883/2013 that the adoption of the final report was one of the grounds for closing an OLAF investigation.
65      Contrary to the appellant’s submissions, the General Court’s reasoning, set out in paragraph 47 of the judgment under appeal, is neither vitiated by an error of law nor does it contradict paragraphs 40 to 42 of that judgment.
66      First, the General Court rightly considered that an OLAF investigation report did not produce binding legal effects. Just like OLAF communications and for reasons similar to those set out in paragraph 56 of the present judgment, an OLAF investigation report does not impose a duty, on the national authorities to which that report is addressed, to adopt certain measures. Those authorities will adopt measures further to the communication/disclosure of that report only if they take the view that such adoption is justified in the light of the applicable provisions of the national law concerned as well as the information and evidence replied upon in that report.
67      Second, equally rightly, the General Court essentially held, in the light of the wording of Article 11(1) of Regulation No 883/2013, that the closure of an investigation, further to the adoption, by OLAF, of a final investigation report, did not constitute an OLAF decision the scope of which was not independent of that report, but was instead the inevitable and automatic consequence of that adoption.
68      Third and finally, contrary to the appellant’s claims, there is no contradiction between, on the one hand, paragraphs 40 to 42 of the judgment under appeal and, on the other hand, paragraph 47 thereof. By relying on that alleged contradiction, the appellant submits, in essence, that the closure of the investigation produced binding legal effects on it, since that closure deprived the appellant of its ‘right’ to submit arguments and supplementary evidence to OLAF.
69      It is, however, clear that Regulation No 883/2013 makes no provision for the right, for a ‘person concerned’ such as the appellant, to present, continuously and as it sees fit, arguments and ‘supplementary’ evidence in the context of an investigation conducted by OLAF. Article 9(4) of that regulation provides solely for the right, for such a person, to be given the opportunity to comment on the facts concerning him or her before the conclusions referring by name to that person are drawn up and, consequently, before the adoption, by OLAF, of its final investigation report.
70      As is apparent from paragraphs 11 and 12 of the judgment under appeal, which have not been challenged by the appellant in the present appeal, OLAF did in fact comply with its obligation pursuant to that provision to invite the appellant to submit its comments on the facts concerning it, with the result that the closure of the investigation did not deprive the appellant of any right which it had had previously.
71      Consequently, the second part of the first ground of appeal must be rejected as unfounded.
–       Third part of the first plea in law
72      By the third part of its first ground of appeal, the appellant challenges the grounds set out in paragraphs 60 to 65 of the judgment under appeal, on which the General Court dismissed its action for annulment as inadmissible, in so far as it was directed against OLAF’s letter of 25 November 2020, by way of which the latter had rejected the appellant’s request seeking disclosure of certain documents on the investigation file.
73      In paragraph 48 of the judgment under appeal, the General Court held that, ‘for similar reasons’ to those set out in paragraphs 38 to 47 of that judgment, it had to ‘be held that all the acts adopted by OLAF in connection with its investigation [were] equally incapable of forming the subject matter of an action for annulment’.
74      As regards, more specifically, OLAF’s letter of 25 November 2020, the General Court observed, in paragraph 56 of the judgment under appeal, that the action brought against that letter could not be declared admissible on the ground that that letter amounted to a refusal to grant a request made under Regulation No 1049/2001. After having summarised, in paragraphs 57 to 59 of that judgment, the lessons to be drawn from paragraphs 63, 64, 67 to 72, 73, 75 and 76 of the judgment of 13 January 2022, Dragnea v Commission (C‑351/20 P, EU:C:2022:8), the General Court held, in paragraph 60 of the judgment under appeal, that reasoning, based on OLAF’s obligation to examine of its own motion the request for access to the file pursuant to Regulation No 883/2013 which was also sent to it as a request for access to documents under Regulation No 1049/2001, cannot be extended to a situation in which the latter classification could not, in any event, lead to the disclosure of the documents requested.
75      It is apparent from paragraphs 61 to 63 of the judgment under appeal that, according to the General Court, that is the case where the request is made in the course of the investigation by a ‘person concerned’ within the meaning of Article 2(5) of Regulation No 883/2013, in so far as Article 9 of that regulation makes no provision for a right for such a person to access the file. The General Court concluded that, where OLAF has refused to grant a request for access to the file made by a person concerned during the investigation, a request for access to documents under Regulation No 1049/2001 would necessarily fail, since the exception in the third indent of Article 4(2) of Regulation No 1049/2001, which covers the protection of inspections, investigations and audits, is therefore applicable.
76      As the appellant essentially claims, the grounds of the judgment under appeal summarised in the two preceding paragraphs of the present judgment do not justify the finding that OLAF’s letter of 25 November 2020 does not constitute an act capable of forming the subject matter of an action for annulment, and contradict, in part, the grounds set out in paragraphs 63 to 76 of the judgment of 13 January 2022, Dragnea v Commission (C‑351/20 P, EU:T:2022:8).
77      In the first place, in so far as that letter amounts to a rejection, it must be appraised in the light of the nature of the request to which it constitutes a reply (see, to that effect, judgments of 8 March 1972, Nortgetreide v Commission, 42/71, EU:C:1972:16, paragraph 5, and of 24 November 1992, Buckl and Others v Commission, C‑15/91 and C‑108/91, EU:C:1992:454, paragraph 22).
78      In that connection, admittedly, it is clear from the case-law of the Court that if the EU institution concerned is not in a position to grant a request addressed to it, since there is no provision enabling it to adopt a decision such as that sought by the author of the request, the letter by which, as a courtesy, that author is informed of that impossibility cannot be treated in the same way as the communication of a decision for the purposes of Article 263 TFEU (judgment of 15 September 2022, PNB Banka v ECB, C‑326/21 P, EU:C:2022:693, paragraph 93 and the case-law cited). However, in the present case, there is no doubt that OLAF is competent to decide whether or not to disclose documents contained in the file for one of its investigations to a person who submits a request to it.
79      In the second place, it is clear from paragraphs 63 to 76 of the judgment of 13 January 2022, Dragnea v Commission (C‑351/20 P, EU:C:2022:8), first, that, where a person submits to OLAF a request for access to documents under Regulation No 883/2013, that office is required to examine that request also in the light of Regulation No 1049/2001, even where that request is made exclusively under Regulation No 883/2013 without reference to Regulation No 1049/2001 and, second, that if OLAF fails to inform that person of his or her right to make a confirmatory application under Article 7(2) of Regulation No 1049/2001, that person is entitled to take the view that OLAF has definitively established its position, which consists in rejecting the request for access to documents, with the result that the letter by way of which OLAF informs that person of its refusal to grant that request is capable of forming the subject matter of an action for annulment.
80      Contrary to the General Court’s ruling, those considerations also apply in the case where a request for access to documents is made by a ‘person concerned’ within the meaning of Article 2(5) of Regulation No 883/2013, in so far as neither that regulation nor the judgment of 13 January 2022, Dragnea v Commission (C‑351/20 P, EU:C:2022:8) makes a distinction in that regard.
81      It would in fact be paradoxical if, unlike any other person, a person concerned, within the meaning of that provision, could not benefit from an possible right of access to documents under Regulation No 1049/2001.
82      Furthermore, the possibility, referred to by the General Court, that a request for access to OLAF documents might come up against the exception relating to documents where disclosure would undermine the purpose of inspections, investigations and audits, laid down in the third indent of Article 4(2) of Regulation No 1049/2001, concerns the merits of the refusal to grant a request for access to documents and not whether the decision not to grant that request is open to challenge.
83      It follows that the third part of the first ground of appeal must be upheld and the judgment under appeal set aside, in so far as the General Court dismissed the appellant’s action as inadmissible, inasmuch as that action sought annulment of OLAF’s letter of 25 November 2020 refusing to grant the appellant access to certain documents on OLAF’s file.
The second ground of appeal: infringement of Article 124 of the EU-BH Agreement, Article 7(2) and (4) of Protocol 5, Article 21 of the Charter, read in conjunction with Article 51 thereof, and Regulation No 883/2013
The appellant’s arguments
84      The appellant takes issue with paragraphs 82 to 87 of the judgment under appeal, with regard to the alleged unlawful conduct vitiating the inspection of 4 December 2019. It submits that the interpretation and application, by the General Court, of Article 7(2) and (4) of Protocol 5
are vitiated by an error of law, in that the General Court found that that inspection could not give rise to unlawful conduct attributable to OLAF.
85      In the first place, the appellant submits that the General Court interpreted Article 7(2) of Protocol 5 as meaning that the application of the fundamental rights and procedural guarantees conferred on a person by EU law is set aside where that person resides or is established outside the territory of the European Union or where OLAF conducts an investigation outside that territory.
Such an interpretation constitutes, in the appellant’s submission, an infringement of the principle of non-discrimination, expressly referred to in recitals 10, 12 and 23 of Regulation No 883/2013. It also infringes Article 124 of the EU-BH Agreement, as well as Article 21 of the Charter, read in conjunction with Article 51 thereof. Furthermore, Article 7(2) of Protocol 5 is confined to providing that requests for assistance are to be executed in accordance with the legal or regulatory provisions of the requested party, without stating that only those provisions are to apply.
86      In the second place, the appellant submits that the interpretation, by the General Court, of Article 7(4) of Protocol 5 infringes Article 17 of Regulation No 883/2013, read in the light of recital 18 of that regulation. Furthermore, that Article 7(4) does not involve a shift of responsibility to the party on the territory of which an investigation is conducted for errors made by the officers of the other party, who took part in that investigation, especially where those errors arose beyond the  scope and conditions set by the former party. Consequently, Article 7(4) does not discharge OLAF from its responsibility for infringements of provisions of the Charter or Regulation No 883/2013, committed in the context of investigations conducted outside the territory of the European Union or in respect of persons concerned who reside or are established outside that territory.
87      In the alternative, the appellant submits that the General Court should either have ascertained whether the lawfulness of the inspection of 4 December 2019 had been challenged before the national courts of Bosnia and Herzegovina, or have afforded the appellant the opportunity to demonstrate that such proceedings were ongoing, which was indeed the case. Having failed either to ascertain whether that was the case or to afford the appellant that opportunity, the General Court was, in the appellant’s submission, unable to establish that that inspection did not give rise to unlawful conduct attributable to OLAF, or that OLAF was entitled to refer thereto in the final report.
Findings of the Court
88      It should be noted that paragraphs 82 to 87 of the judgment under appeal, at which the second ground of appeal is directed, are set out in the section of that judgment devoted to the examination of the allegedly unlawful conduct vitiating the inspection of 4 December 2019, on which the appellant relies in support of the claim for compensation in its action.
In particular, it is clear from paragraphs 74 to 77 of the judgment under appeal that, in the context of its third, fourth and twelfth pleas in law, the appellant claimed that, during that inspection, conducted under the direction of OLAF, the relevant rules of EU law – namely Articles 7 and 9 of Regulation No 883/2013 – had not been observed.
89      In paragraphs 82 and 83 of the judgment under appeal, the General Court held that, in accordance with Article 7(2) of Protocol 5, the conduct of the inspection of 4 December 2019 was under the responsibility of the ABFI, despite the presence of OLAF officials, and that the lawfulness of that inspection was not governed by EU law but by the law of Bosnia and Herzegovina. The General Court concluded, in paragraphs 84 and 85 of that judgment, that the lawfulness of that inspection was a question which fell within the scope of the national law of Bosnia and Herzegovina, which the Courts of the European Union did not have jurisdiction to review, and that it was for the appellant to challenge the lawfulness of that inspection before the national courts of Bosnia and Herzegovina. The General Court added, in paragraph 86 of that judgment, that on-the-spot inspections – depending on whether they are carried out in a Member State or in a third country – are not comparable situations, with the result that the appellant’s argument alleging breach of the principle of non-discrimination could not be accepted. On the basis of those considerations, the General Court found, in paragraph 87 of that judgment, that the inspection of 4 December 2019 could not give rise to unlawful conduct attributable to OLAF.
90      The appellant challenges that assessment made by the General Court, by submitting, in essence, that the General Court wrongly and in breach of Protocol 5, Regulation No 883/2013 and the principle of non-discrimination, rejected the application of the fundamental rights and procedural guarantees enshrined in EU law with regard to persons residing or established outside the territory of the European Union.
91      It is clear that that line of argument is based on a misreading of the judgment under appeal.
92      Admittedly, the Courts of the European Union have jurisdiction, in accordance with Article 268 and the second paragraph of Article 340 TFEU, to hear claims for compensation, such as that made by the appellant before the General Court, seeking compensation for harm allegedly suffered as a result of the conduct of OLAF officials, including where they participate in an inspection conducted by the authorities of a third country. Furthermore, in the present case, the mere fact that such an inspection is governed by the law of the third county concerned does not exempt those officials from the obligation to observe the relevant provisions of EU law, including those intended to safeguard fundamental rights and to confer certain procedural guarantees on the person concerned by the inspection.
93      However, in the present case, the appellant did not rely, in support of the claim for compensation in its action, on any specific conduct, allegedly contrary to EU law, on the part of the OLAF officials who participated in the inspection of 9 December 2019, as is confirmed, moreover, by the summary of the appellant’s arguments before the General Court set out in paragraphs 74 to 77 of the judgment under appeal. The appellant claimed instead, as stated in paragraph 75 of that judgment, that that inspection had been conducted under the direction of OLAF, with the result that the allegedly unlawful conduct affecting that inspection was, as a consequence, attributable to that office.
94      Furthermore, it is clear from paragraph 82 of that judgment that the General Court essentially held that the inspection of 4 December 2019 had been conducted not under the direction of OLAF but that of the ABFI, as provided by Protocol 5. This is an assessment of the facts which cannot, except in the event of distortion of the facts and evidence – which has in no way been claimed by the appellant in the present case – be challenged in the context of an appeal. That is the context into which the finding, set out in paragraph 84 of that judgment, that the Courts of the European Union do not have jurisdiction to review the lawfulness of such an inspection, fits.
95      It follows that the appellant misreads the judgment under appeal when it claims that the General Court held that the fundamental rights and procedural guarantees provided for by EU law could be relied upon, in respect of OLAF officials, by a person residing or established in a third country. That judgment does not contain any such ground.
96      The argument, put forward in the alternative by the appellant, that the General Court should have ascertained whether the appellant had challenged the lawfulness of the inspection of 4 December 2019 before the courts having jurisdiction in Bosnia and Herzegovina, also cannot succeed. It was not necessary for the General Court to ascertain whether that was in fact the case, since the outcome of any action brought by the appellant before the courts of Bosnia and Herzegovina would not have had any impact on the merits of the claim for compensation brought before the General Court by the appellant.
97      Even if the ABFI had conducted the inspection of 4 December 2020 in a manner contrary to the law of Bosnia and Herzegovina, that mere fact cannot, in any event, give rise to non-contractual liability on the part of the European Union.
98      Consequently, the second ground of appeal must be rejected as unfounded.
The third ground of appeal: infringement of the right to avoid self-incrimination
The appellant’s arguments
99      The appellant submits that it follows from the arguments that it submitted in the context of the second ground of appeal that the General Court’s interpretation of Article 7(2) and (4) of Protocol 5 also constitutes an infringement of the right to avoid self-incrimination, enshrined in Article 9(2) of Regulation No 883/2013, Article 48(1) of the Charter, and Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950. In the appellant’s submission, it is apparent from the reasons set out in paragraphs 84 to 88 of the judgment under appeal that that right applies only to investigations conducted on the territory of the European Union or to persons residing or established on that territory. This gives rise to an unlawful restriction of that right.
Findings of the Court
100    It is sufficient to observe that, like the second ground of appeal, which is directed against the same grounds of the judgment under appeal, the third ground of appeal is predicated on a misreading of that judgment.
101    The General Court did not, in fact, find that the right to avoid self-incrimination applies only to investigations conducted on the territory of the European Union and may only be relied upon by persons residing or established on the territory. As is clear from paragraphs 93 and 94 of the present judgment, the General Court instead found that the investigation of 4 December 2019 had been conducted by, and under the responsibility of, the ABFI, with the result that any unlawful conduct during that inspection – including any infringement of the right to avoid self-incrimination – cannot
incur the non-contractual liability of the European Union, since the appellant has failed to rely on any specific conduct, on the part of OLAF officials who participated in that inspection, which may constitute an infringement of its right to avoid self-incrimination.
102    Consequently, the third ground of appeal must be rejected as being unfounded.
The fourth ground of appeal: infringement of Regulation No 883/2013 in so far as concerns the OLAF internal advisory and control mechanism
The appellant’s arguments
103    The appellant submits that, by stating, in paragraph 111 of the judgment under appeal, that Regulation No 883/2013 did not provide that the person concerned could lodge a complaint regarding the manner in which the procedural guarantees referred to in Article 9 of that regulation had been applied, the General Court erred in law. According to the appellant, a complaints procedure was introduced pursuant to Article 17(7) of that regulation, read in the light of recital 47 of that regulation.
Findings of the Court
104    Paragraph 111 of the judgment under appeal forms part of the grounds on which the General Court rejected the appellant’s arguments, put forward in support of its claim for compensation, that OLAF had infringed its right to be heard, on account of the refusal on the part of the Director-General of OLAF to investigate the appellant’s complaint of 14 December 2020. The General Court noted in that paragraph that Regulation No 883/2013, in the version applicable to the case which gave rise to that judgment, did not provide that the person concerned, within the meaning of that regulation, could lodge a complaint regarding the manner in which the procedural guarantees referred to in Article 9 of that regulation had been applied, and that such a mechanism had been set up by OLAF itself. The General Court went on to add, in paragraph 112 of that judgment, that OLAF had not infringed the rules which it had itself laid down, by refusing, on 21 December 2020, to investigate the complaint, since those rules precluded any possibility of lodging a complaint once the investigation concerned had been closed.
105    The line of argument advanced by the appellant in the context of its fourth ground of appeal, even if it were well founded, cannot justify the setting aside of the judgment under appeal.
106    Even if it were accepted, as the appellant essentially claims, that it is apparent from Article 17(7) of Regulation No 883/2013, in the version applicable to the facts of the case, that there is an obligation, for the Director-General of OLAF, to make provision for the possibility that a person concerned, within the meaning of that regulation, may lodge a complaint regarding the manner in which the procedural guarantees provided for in that regulation had been applied, the fact remains that it would be for the Director-General of OLAF to set the rules for lodging and examining such a complaint. In that context, the Director-General of OLAF could make provision to the effect that no complaints could be lodged following the closure of the investigation, and all the more so given that, at that late stage, the examination of any complaint would be irrelevant, since OLAF had already completed its investigation and sent the final report to the those to whom that report was addressed.
107    In that connection, it should be added that a person concerned by an OLAF investigation, such as the appellant, may rely on possible infringements, by OLAF, of the procedural guarantees provided for in Article 9 of Regulation No 883/2013, before the addressees of the investigation report concerned. It is then for those addressees, when examining the action to be taken on that report, to ascertain whether such infringements were in fact committed and, if so, first, to take account thereof when assessing the reliability of OLAF’s findings and of the information and evidence that the latter has gathered and, second, to take, where necessary, the appropriate measures to remedy such infringements.
108    In the light of the foregoing considerations, the fourth ground of appeal must be rejected as ineffective.
The fifth ground of appeal: failure to state reasons and contradictory reasoning as to the appellant’s right to be heard
The appellant’s arguments
109    In the first place, the appellant submits that the judgment under appeal is vitiated by a failure to state reasons, since the General Court failed to address the appellant’s argument that its right to be heard had been infringed on account o the fact that OLAF had not heard the appellant after sending the communication of 9 June 2020 to the Member States, the consequence of which was, it is submitted, that the appellant was not informed in a timely and effective manner of all the information in the file, so that it might be able to defend itself in full knowledge of the facts.
110    In the second place, the appellant submits that there is a contradiction between, on the one hand, paragraphs 95 and 110 of the judgment under appeal, from which it is apparent that, according to the General Court, it is only after its investigation that OLAF is required to hear the person concerned, and not during that investigation, and, on the other hand, paragraphs 112 and 156 of that judgment, from which it is apparent that OLAF’s complaints procedure does not apply to closed investigations, with the result that the person concerned may lodge a complaint and be heard only during the investigation. In the appellant’s submission, it follows that the General Court’s findings concerning (i) the appellant’s right to be heard and (ii) its right to lodge a complaint are intrinsically contradictory and that, consequently, the General Court erred in law by finding, in paragraph 113 of that judgment, that OLAF had not infringed the appellant’s right to be heard.
Findings of the Court
111    It should be observed that the fifth ground of appeal is divided into two parts. By the first part of that ground of appeal, the appellant essentially submits that the General Court infringed the obligation to state reasons, since it failed to address the appellant’s argument alleging infringement, on the part of OLAF, of its right to be heard, on account of the fact that OLAF did not hear the appellant before sending the communication of 9 June 2020 to the Member States.
112    That first part of the ground of appeal must be rejected as unfounded. The General Court in fact referred to that argument twice, in paragraphs 94 and 100 of the judgment under appeal. In paragraphs 94 to 99 of that judgment, it set out the ground on which, in its view, OLAF had complied with the obligation, under Article 9(4) of Regulation No 883/2013, to hear the appellant after and not during its investigation. Next, in paragraphs 101 to 110 of that judgment, the General Court set out the reasons why it considered that an obligation, for OLAF, to hear the appellant prior to the communication of 9 June 2020 also did not follow from Article 41(2)(a) of the Charter. Accordingly, contrary to the appellant’s submissions, the General Court did address that argument and set out to the requisite legal standard, in the judgment under appeal, the grounds on which it considered that that argument could not be upheld.
113    By the second part of its fifth ground of appeal, the appellant relies on a contradiction between, on the one hand, paragraphs 95 and 110 of the judgment under appeal, from which it is apparent that, according to the General Court, it is only after its investigation that OLAF is required to hear the person concerned, and not during that investigation, and, on the other hand, paragraphs 112 and 156 of that judgment, from which it is apparent that OLAF’s complaints procedure does not apply to closed investigations, with the result that the person concerned may lodge a complaint only during the investigation.
114    These two findings are not, in fact, contradictory. A distinction must be made between the opportunity, for a person concerned, to lodge, during an investigation, a complaint in order to assert its claims as to any irregularities or infringements of his or her rights arising from the manner in which the investigation has been conducted, and the obligation, for OLAF, stemming from Article 9(4) of Regulation No 883/2013, to hear that person after its investigation. That obligation is independent of that person availing himself or herself of that opportunity.
115    It follows that the second part of the fifth ground of appeal and, therefore, that ground in its entirety, must be dismissed as unfounded.
The sixth ground of appeal: failure to state reasons as regards the impartiality of the Director-General of OLAF
The appellant’s arguments
116    The appellant submits that the General Court disregarded Article 41 of the Charter and breached the obligation to state reasons, in so far as, in paragraph 161 of the judgment under appeal, it found, without citing relevant case-law, that the requirement of impartiality did not require that the right to be heard be exercised before an authority that is different from, or entirely independent of, that which conducted the investigation, and that General Court rejected the appellant’s argument that OLAF had breached that requirement, which is enshrined in Article 41 of the Charter, in so far as the Director-General of OLAF, who conducted the investigation concerning the appellant, had failed to demonstrate the requisite impartiality in examining the complaints lodged by the latter.
Findings of the Court
117    It should be observed that paragraphs 161
and 162 of the judgment under appeal, at which the sixth ground of appeal is directed, are set out in the section of that judgment devoted to the examination of the appellant’s second plea in law before the General Court, alleging bias on the part of the Director-General of OLAF.
118    More specifically, as is clear from paragraph 157 of that judgment, the grounds set out in paragraphs 161 and 162 relate to the question of possible bias on the past of the Director of OLAF in so far as concerns the examination of the complaint which, it is submitted, was set out in the appellant’s comments of 16 October 2020, to which the Director-General of OLAF replied on 27 November 2020.
119    As is clear from paragraph 153 of the judgment under appeal, the appellant claimed before the General Court that the Director-General of OLAF could not be regarded as impartial when examining the complaints made by the appellant, since he was involved in the investigations concerning the appellant. In paragraph 161 of that judgment, the General Court rejected that argument, by stating that the requirement of impartiality does not require that the right to be heard be exercised before an authority that is different from, or entirely independent of, that which conducted the investigation. It went on to add, in paragraph 162 of that judgment, that the appellant had failed to adduce any evidence capable of demonstrating, in its specific case, an objective factor – such as a conflict of interests – capable of giving rise to a legitimate doubt, in the eyes of third parties, as to the impartiality of the Director of OLAF.
120    Since the appellant relies on Article 41 of the Charter, it should be recalled that that provision states, in paragraph 1 thereof, that every person has the right to have his or her affairs handled impartially by the institutions, bodies, offices and agencies of the European Union.
121    The requirement of impartiality has two components, namely, on the one hand, subjective impartiality, by virtue of which no member of the institution concerned may show bias or personal prejudice and, on the other hand, objective impartiality, under which there must be sufficient guarantees to exclude any legitimate doubt as to possible bias on the part of the institution concerned. Furthermore, it is apparent from the case-law of the Court that prior knowledge of the facts by those called upon to participate in the adoption of a judicial or administrative decision is not, in itself, capable of vitiating that decision with a procedural defect of lack of impartiality (judgment of 21 October 2021, Parliament v UZ, C‑894/19 P, EU:C:2021:863, paragraphs 54 and 55).
122    In the light of that case-law, the General Court did not infringe Article 41 of the Charter when it found, in paragraphs 161 and 162 of the judgment under appeal, in essence, that the fact that the Director-General of OLAF, on account of the nature of his duties, was ‘involved’ in the investigation conducted by OLAF in respect of the appellant was not sufficient to demonstrate a lack of impartiality on the part of the Director-General and that, consequently, since the appellant had failed to adduce any supplementary evidence capable of giving rise to a legitimate doubt in that regard, the appellant’s argument alleging bias on the part of the Director of OLAF, had to be rejected.
123    The appellant further submits that the General Court infringed the obligation to state reasons, on the ground that it failed to cite any case-law in support of the findings set out in paragraphs 161 and 162 of the judgment under appeal. In that connection, it is sufficient to observe that that obligation in no way required that the General Court cite case-law in support of each of its findings.
124    It follows from the foregoing that the sixth ground of appeal must be rejected as unfounded.
The seventh ground of appeal: infringement of the rights of the defence and contradictory reasoning, in so far as concerns the sampling carried out by the Croatian customs authorities at OLAF’s request
The appellant’s arguments
125    The appellant challenges paragraphs 182 and 183 of the judgment under appeal, by submitting that the General Court erred in law in so far as concerns the interpretation of the rights of the defence, enshrined in Article 9(1) of Regulation No 883/2013 or, in the alternative, that that judgment is vitiated by contradictory reasoning.
126    The appellant recalls that, after examining the new evidence submitted by the appellant on 20 January 2022, the General Court stated, in paragraph 182 of the judgment under appeal that, contrary to what OLAF found, nine, and
not eight,
containers from the United States and bound for Bosnia and Herzegovina had been subject to checks in the context of the inspections referred to in paragraph 25 of the present judgment. In the appellant’s submission, the General Court nevertheless found, in paragraph 183 of the judgment under appeal, that the lack of precision as to the number of containers checked was irrelevant, since all the checks yielded the same finding, namely the presence of biodiesel instead of the ‘used cooking oils’ declared.
127    According to the appellant, in accordance with Article 9(1) of Regulation No 883/2013, OLAF ought to have disclosed to the appellant all material evidence in its possession. By failing to do so and by misleading the appellant and all Member States as to the exact number of samples taken, OLAF infringed the appellant’s rights of defence. The General Court erred in law by failing to find that there had been such an infringement.
128    In the alternative, the appellant submits that the General Court’s findings in paragraphs 182 and 183 of the judgment under appeal are in contradiction with those, set out in paragraphs 44, 55 and 107 of that judgment, from which it is apparent that any infringement of the appellant’s rights of defence during the OLAF investigation was to be brought before the national courts, which might be called upon to refer questions to the Court of Justice for a preliminary ruling. However, in paragraphs 182 and 183 of the judgment under appeal, the General Court itself
assessed the evidence produced by the appellant.
Findings of the Court
129    It should be observed that, after having stated, in paragraph 181 of the judgment under appeal, that the appellant had failed to demonstrate that one of the cumulative conditions to be satisfied if the non-contractual liability of the European Union is to be incurred – namely, as is apparent from paragraph 70 of that judgment, that relating to the unlawfulness of the conduct alleged against OLAF – had indeed been satisfied, the General Court added, in paragraph 182 of that judgment, that that finding was not invalidated by the taking into account of the new evidence submitted by the appellant on 20 January 2022, which related to the samples taken by the Croatian authorities at OLAF’s request on certain containers from the United States bound for Bosnia and Herzegovina.
130    The General Court observed that it was apparent from that evidence that, nine containers, and not eight, had been subject to checks carried out by the Croatian customs authorities. It went on to add, however, that, without there being any need to consider the admissibility of that evidence, it was sufficient to point out that the lack of precision as to the number of containers checked was irrelevant, since all the checks yielded the same finding, namely the presence of biodiesel instead of the ‘used cooking oils’ declared.
131    The appellant submits that the General Court failed to find there to have been an infringement of its rights of defence as a result of the fact that OLAF did not provide the appellant with all material evidence in its possession, and misled the appellant as to the exact number of the samples.
132    However, it is not apparent from the judgment under appeal that the appellant relied, before the General Court, on an infringement of its rights of defence on the ground that OLAF failed to inform it that a ninth container had been subject to checks during the inspections referred to in paragraph 25 of the present judgment. Moreover, a reading of the application before the General Court – which is included in the file in the case at first instance transmitted to the Court of Justice pursuant to Article 167(2) of the Rules of Procedure – confirms that such a plea in law or argument was not relied upon before the General Court.
133    The appellant’s letter of 20 January 2022, which accompanied the evidence referred to in paragraphs 182 and 183 of the judgment under appeal and is also contained in that file, indicated that that evidence was produced in support of the first, second, sixth, twelfth and fourteenth pleas in the appellant’s action before the General Court.
134    However, only the twelfth plea in that action alleged infringement of the appellant’s rights of defence, but on different grounds, which are summarised in paragraph 91 of the judgment under appeal.
135    It follows that, under the guise of an alleged error of law on the part of the General Court, the appellant seeks to raise, for the first time at the appeal stage, a new plea in law not raised before the General Court.
136    According to settled case-law, the jurisdiction of the Court of Justice when examining an appeal is limited to the legal review of findings made in relation to the pleas and arguments debated before the General Court. A party cannot, therefore, put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court since that would allow that party to bring before the Court of Justice, whose jurisdiction in appeal proceedings is limited, a wider case than that heard by the General Court (judgment of 2 February 2023, Spain and Others v Commission, C‑649/20 P, C‑658/20 P and C‑662/20 P, EU:C:2023:60, paragraph 29 and the case-law cited).
137    It follows that the seventh ground of appeal must be rejected as inadmissible, in so far as it concerns an alleged infringement of the appellant’s rights of defence as a result of the fact that OLAF did not inform the latter that the checks at issue concerned nine, and not eight, containers.
138    The appellant also relies on a contradiction in the grounds of the judgment under appeal on account of the fact that, in paragraphs 182 and 183 of that judgment, the General Court itself examined the evidence submitted by the appellant, whereas it is apparent from paragraphs 44, 55 and 107 of that judgment that the question whether any infringement of the appellant’s rights during the OLAF investigation affected the validity of the final report was to be brought before the national courts, which could refer questions to the Court of Justice for a preliminary ruling thereon.
139    In that connection, it is sufficient to note that these two parts of the judgment under appeal are not contradictory. The possibility for the appellant to ask the national courts to refer questions to the Court as to the validity of the final report in the light, in particular, of an alleged infringement of the appellant’s rights of defence, to which the General Court alluded in paragraphs 44, 55 and 107 of the judgment under appeal, in no way means that the General Court was not entitled to assess evidence produced before it by the appellant in support of its claim for compensation.
140    It follows that the seventh ground of appeal must be rejected as in part inadmissible and in part unfounded.
141    Under those circumstances, the judgment under appeal must be set aside, in so far as the General Court dismissed the appellant’s action as inadmissible, inasmuch as that action sought annulment of OLAF’s letter of 25 November 2020 refusing to grant the appellant access to certain documents on OLAF’s file, and inasmuch as the General Court ruled on the costs related to that part of the action; the appeal must be dismissed as to the remainder.
The action before the General Court
142    In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the decision of the General Court is set aside, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits.
143    In the present case, in the light, in particular, of the fact that the action for annulment brought by the appellant in Case T‑81/21 is based on grounds which have been the subject of an adversarial debate before the General Court and the examination of which does not require the adoption of any additional measure of organisation of procedure or investigation of the case, the Court of Justice considers that that action is ready for adjudication and that a final ruling must be given on it, within the limits of the matter before it, namely the application for annulment of OLAF’s letter of 25 November 2020 refusing to grant the appellant access to certain documents on OLAF’s file (see, by analogy, judgment of 2 September 2021, Ja zum Nürburgring v Commission, C‑647/19 P, EU:C:2021:666, paragraph 112 and the case-law cited).
144    In support of that application, the appellant relied on twelve pleas in law before the General Court. However, only the eighth plea, alleging infringement of Article 41(2)(b) of the Charter, the ninth plea, alleging infringement of Regulation No 1049/2001, and the eleventh plea, alleging infringement of the obligation to state reasons, concern that application.
The eleventh plea in law
145    By the eleventh plea in law, which it is appropriate to examine in the first place, the appellant essentially claims that OLAF failed to provide sufficient reasons for its refusal to grant the appellant access to the investigation file. According to the appellant, OLAF failed to set out exact reasons for that refusal and confined itself to relying, generally, on grounds of confidentiality and professional secrecy.
146    Those arguments cannot succeed. It is apparent from a reading of OLAF’s letter of 25 November 2020 that the latter set out, to the requisite legal standard, the reasons for which it considered itself unable to grant the appellant’s request that certain documents on the OLAF file be disclosed to it.
147    In essence, OLAF noted that Regulation No 883/2013 did not grant persons concerned by an investigation a right of access to the file and that the absence of such access did not constitute an infringement of Article 41(2) of the Charter. It added that granting such access could undermine OLAF’s work and recalled that, in the event that information should be forwarded, by OLAF, to the national authorities, additional rights are conferred on such persons, including the right of access to the file.
148    Such a statement of reasons enabled the appellant to understand the ground on which its request had been rejected and, if appropriate, to challenge the merits thereof. Accordingly, it must be found that OLAF complied with the obligation to state reasons, with the result that the appellant’s eleventh plea in law must be rejected.
The eighth plea in law
149    By the eighth plea in law in its action, the appellant claims that, by rejecting its request for access to the file, OLAF infringed its right, enshrined in Article 41(2)(b) of the Charter, of access to the file concerning it.
150    According to the case-law of the Court, respect for the rights of the defence, enshrined in Article 41(2) of the Charter, constitutes a fundamental right which is an integral part of the EU legal order. That right includes the right of every person to be heard before any individual measure which would affect him or her adversely is taken, and the right of access to the file while respecting the legitimate interests of confidentiality (see, to that effect, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 98 and 99).
151    The Court has held that Article 9(4) of Regulation No 883/2013 – which lays down the obligation for OLAF, once the investigation has been completed and before conclusions referring by name to a person concerned are drawn up, to give that person the opportunity to comment on facts concerning him or her – puts into effect the right, enshrined in Article 41(2)(a) of the Charter, of every person to be heard before any individual measure which would affect him or her adversely is taken (see, to that effect, judgment of 30 September 2021, Court of Auditors v Pinxten, C‑130/19, EU:C:2021:782, paragraphs 167 and 168).
152    However, as regards the opportunity, for a person concerned by an OLAF investigation, to have access to the latter’s file, it should be recalled, first, that pursuant to Article 10 of Regulation No 883/2013, read in conjunction with Article 8(1) of Regulation No 2185/96, information transmitted or obtained in the course of external OLAF investigations is confidential and, second, that, aside from the right of the person concerned to have access to the record of his or her interview with OLAF, in order to approve that record or add observations, in accordance with Article 9(2) and (4) of Regulation No 883/2013, the latter regulation makes no provision for such a person to have a right of access to the file.
153    In that connection, it should be observed that, as is clear from both Article 41(2)(b) of the Charter and the case-law cited in paragraph 150 of the present judgment, the right of every person to have access to his or her file is to be exercised while respecting the legitimate interests of confidentiality and of professional and business secrecy.
154    It must also be borne in mind that the fact that an OLAF investigation which leads to the adoption, by the latter, of an investigation report does not, in itself, entail the taking of individual measures which adversely affect a given person, within the meaning of Article 41(2)(a) of the Charter. More specifically, the second subparagraph of Article 11(1) of Regulation No 883/2013 provides that the OLAF report is to be accompanied by ‘recommendations’ of the Director-General of OLAF, for the attention of the EU institutions, bodies, offices and agencies and of the competent authorities of the Member States concerned. In fact, as is clear from paragraph 66 of the present judgment, an OLAF investigation report does not produce binding legal effects.
155    It cannot, therefore, be considered that Article 41(2)(b) of the Charter requires that every person concerned by an OLAF investigation be granted access to the OLAF file, prior to the adoption of OLAF’s final report.
156    At that early stage, before the person concerned has been made subject to concrete measures which adversely affect him or her, or even the subject of recommendations concerning him or her, it may be difficult, or even impossible, to reconcile such access with the obligation to maintain confidentiality incumbent on OLAF pursuant to the provisions referred to in paragraph 152 of the present judgment.
157    Furthermore, it must be pointed out that an institution body, office or agency of the European Union which intends to follow up on OLAF’s recommendations by taking individual measures liable adversely to affect a person is required to respect, beforehand, that person’s rights of defence, enshrined in Article 41(2) of the Charter, of which the right of access to his or her file forms part.
158    As to the Member States, it admittedly follows from the wording of Article 41 of the Charter that it is not addressed to them (judgment of 17 July 2014, YS and Others, C‑141/12 and C‑372/12, EU:C:2014:2081, paragraph 67). The fact remains that, according to the case-law of the Court, when they take measures which come within the scope of European Union law, the authorities of the Member States are also, as a rule, subject to the obligation to observe the rights of the defence of addressees of decisions which significantly affect their interests (judgment of 10 September 2013, G. and R.,
C‑383/13 PPU, EU:C:2013:533, paragraph 35).
159    It should be added that respect for the rights of defence of a person concerned by an OLAF investigation must be viewed broadly, with the result that, if such a person was able to exercise those rights effectively before the adoption of an act which adversely affects him or her, the fact that that person was prevented from exercising those rights effectively at the stage of the OLAF investigation does not, in itself, demonstrate that that person’s rights of defence have been infringed (see, to that effect, judgment of 30 September 2021, Court of Auditors v Pinxten, C‑130/19, EU:C:2021:782, paragraphs 170 to 173).
160    In the light of all the foregoing considerations, it must be found that OLAF, rightly and without infringing Article 41(2) of the Charter, took the view that it was not required to grant the appellant access to the documents, contained in OLAF’s file, the disclosure of which was requested by the appellant on 27 October 2020.
161    Accordingly, the eight plea in law in the appellant’s action is unfounded and must be rejected.
The ninth plea in law
162    The ninth plea in law in the appellant’s action is put forward in the alternative and alleges infringement of Regulation No 1049/2001.
163    While acknowledging that the exception, provided for in the third indent of Article 4(2) of that regulation, which relates to documents where disclosure would undermine the protection of the purpose of inspections, investigations and audits, was liable to apply and that OLAF could have relied, in that regard, in a general presumption such as that recognised by the Court in paragraph 61 of the judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau (C‑139/07 P, EU:C:2010:376), the appellant takes the view that the documents in respect of which it sought disclosure were not covered by such a presumption, since its legal representative ought to be been placed in a position such as to safeguard the appellant’s rights of defence vis-à-vis OLAF, the authorities of the Member States, and its customers.
164    In that connection, it should be recalled that the third indent of Article 4(2) of Regulation No 1049/2001 provides that the institutions are to refuse access to a document where disclosure would undermine the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure.
165    The existence of a general presumption, whereby the disclosure of the documents on the file for an investigation conducted by OLAF would, in principle, undermine the purpose of investigations within the meaning of the third indent of Article 4(1) of Regulation No 1049/2001, must be recognised on the basis of paragraph 61 of the judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau (C‑139/07 P, EU:C:2010:376).
166    In the present case, it must be held, in the first place, that the appellant’s request of 27 October 2020, seeking disclosure of certain documents contained in the OLAF file, in no way indicated that that request was submitted on the basis of Regulation No 1049/2001. However, for the reasons set out in paragraphs 79 to 81 of the present judgment and in accordance with the ruling of the Court in paragraphs 63 to 76 of the judgment of 13 January 2022, Dragnea v Commission (C‑351/20 P, EU:C:2022:8), OLAF was required to examine that request in the light not only of Regulation No 883/2013, but also of Regulation No 1049/2001.
167    In the second place, it should be observed that, although OLAF’s letter of 25 November 2020, by way of which OLAF rejected that request, makes no explicit reference to Regulation No 1049/2001 or, more specifically, to the exception provided for in the third indent of Article 4(2) thereof, according to that letter, OLAF took the view that ‘granting access to documents which are in OLAF’s file or issued by OLAF itself in this framework could indeed be harmful to [OLAF’s] work’.
168    It follows that OLAF essentially took the view that the disclosure of the documents sought by the appellant would undermine the purpose of its investigation, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001. Accordingly, OLAF’s refusal to disclose to the appellant the documents requested by the latter on 27 October 2020 does not constitute an infringement of Regulation No 1049/2001, bearing in mind that OLAF could rely, in that connection, on the general presumption referred to in paragraph 165 of the present judgment.
169    The appellant’s argument that the documents sought were not covered by that general presumption, on the ground that these had been requested by its legal representative, in order to safeguard the appellant’s rights of defence, shows a misunderstanding of the case-law arising from the judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau (C‑139/07 P, EU:C:2010:376), and cannot be accepted.
170    It is admittedly apparent from paragraph 62 of that judgment that the general presumption recognised by the Court in paragraph 61 of that judgment does not preclude the right, for interested parties, to demonstrate that a specific document the disclosure of which is sought is not covered by that general presumption or that there is an overriding public interest in disclosure of the document concerned, by virtue of Article 4(2) of Regulation No 1049/2001.
171    However, the appellant has failed to put forward any argument capable of demonstrating that the documents the disclosure of which it sought were not covered by that general presumption or that there was an overriding public interest in disclosure of those documents. It has confined itself to claiming that those documents were requested by its legal representative, who needed them in order to ensure the safeguarding of the appellant’s rights of defence.
172    In that connection, it is sufficient to note that, in order to determine whether a document falls within the scope of one of the exceptions to the right of access to documents laid down in Article 4(1) to (3) of Regulation No 1049/2001, only the content of the document requested is relevant; neither the identity of the person requesting the document nor the use that person intends to make of the document, if its disclosure is obtained, could justify the application of one of the exceptions (judgment of 29 October 2020, Intercept Pharma and Intercept Pharmaceuticals v EMA, C‑576/19 P, EU:C:2020:873, paragraphs 36 and 37).
173    Accordingly, the ninth plea in law in the appellant’s action must be rejected as unfounded and, consequently, that action must be dismissed in so far as it seeks annulment of OLAF’s letter of 25 November 2020.
Costs
174    Under Article 184(2) of the Rules of Procedure, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs.
175    Under Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
176    Since the appellant has been unsuccessful, it must be ordered to pay the costs incurred in the proceedings at first instance, relating to the part of the action seeking annulment of OLAF’s letter of 25 November 2020 refusing to grant the appellant access to certain documents on OLAF’s file. As regards the costs related to the present appeal, in so far as the Commission did not lodge a response within the time period prescribed, the appellant must be ordered to bear its own costs.
On those grounds, the Court (Tenth Chamber) hereby:
1.      Annuls the judgment of the General Court of the European Union of 19 October 2022, Sistem ecologica v Commission (T‑81/21, EU:T:2022:641), in so far as the General Court dismissed as inadmissible the action brought by ‘Sistem ecologica’ production, trade and services d.o.o. Srbac, inasmuch as that action sought annulment of the letter of the European Anti-Fraud Office (OLAF) of 25 November 2020 refusing to grant ‘Sistem ecologica’ production, trade and services d.o.o. Srbac access to certain documents on OLAF’s file, and in so far as the General Court ruled on the costs relating to that part of that action;
2.      Dismisses the appeal as to the remainder;
3.      Dismisses the application for annulment of OLAF’s letter of 25 November 2020 refusing to grant ‘Sistem ecologica’ production, trade and services d.o.o. Srbac access to certain documents on OLAF’s file;
4.      Orders ‘Sistem ecologica’ production, trade and services d.o.o. Srbac to pay the costs incurred in the proceedings at first instance relating to the part of the action seeking annulment of OLAF’s letter of 25 November 2020 refusing to grant ‘Sistem ecologica’ production, trade and services d.o.o. Srbac access to certain documents on OLAF’s file; orders ‘Sistem ecologica’ production, trade and services d.o.o. Srbac to bear its own costs relating to the present appeal.
Csehi
Jarukaitis
Gratsias
Delivered in open court in Luxembourg on 30 November 2023.
A. Calot Escobar
Z. Csehi
Registrar
President of the Chamber
*      Language of the case: English.