ORDER OF THE GENERAL COURT (Sixth Chamber)
20 May 2021 (*)
(Action for annulment – Protection of the European Union’s financial interests – OLAF investigation – Legal professional privilege – Act not open to challenge – Preparatory act – Inadmissibility)
In Case T‑482/20,
LG,
and the other applicants whose names are listed in the annex, (1) represented by A. Sigal and M. Teder, lawyers,
applicants,
v
European Commission, represented by T. Adamopoulos and J. Baquero Cruz, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU for annulment of the decision that the European Anti-Fraud Office (OLAF) allegedly adopted tacitly in an email of 26 May 2020, by which OLAF allegedly rejected the claim for protection of the confidentiality of communications between lawyers and their clients regarding communications between the applicants and their lawyers,
THE GENERAL COURT (Sixth Chamber),
composed of A. Marcoulli, President, S. Frimodt Nielsen (Rapporteur) and J. Schwarcz, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1        From 16 to 20 September 2019, in the context of an investigation, the European Anti-Fraud Office (OLAF) carried out an on-the-spot check at the offices of the applicants in Estonia and Germany. The purpose of the check was to investigate suspicions of fraud or any other irregularity affecting the EU’s financial interests committed by one of the applicants and the persons or entities linked to it, in relation to, in particular, three EU projects from which the applicants had benefited.
2        In emails of 17 and 19 September 2019, OLAF listed several categories of documents and materials (both physical and electronic) to which it required access during the on-the-spot check.
3        In two emails of 19 September 2019, the applicants informed OLAF that the materials it had seized and copied included the applicants’ correspondence with law firms that had advised and represented them. They pointed out to OLAF that that correspondence was covered by the confidentiality of communications between lawyers and their clients (‘legal professional privilege’).
4        Having regard to the emails of 19 September 2019, the OLAF team which had carried out the on-the-spot check in Estonia placed the hard drive containing the material in question in a sealed envelope and took it to Brussels (Belgium).
5        By email of
27 September 2019, the applicants informed OLAF that the materials it had seized and copied included several thousand emails exchanged between the applicants and their outside counsel from 2011 to 2019. In that same email, they proposed a protocol for reducing the number of emails in respect of which legal professional privilege was claimed.
6        In a letter of 5 November 2019, OLAF acknowledged, in principle, the right to legal professional privilege but did not accept the protocol proposed by the applicants. In OLAF’s view, according to the applicable case-law, in particular the judgment of 17 September 2007, Akzo Nobel Chemicals and Akcros Chemicals v Commission (T‑125/03 and T‑253/03, EU:T:2007:287), confirmed on appeal by the judgment of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission (C‑550/07 P, EU:C:2010:512) (‘the
Akzo Nobel case-law’), the applicants were required to give OLAF sufficient information to prove that their claim for protection of confidentiality was valid, ‘for example, details of the recipients of the correspondence in question as well as the purpose and context in which such correspondence/documents [had been] exchanged’ for each email in respect of which confidentiality was claimed. To that end, OLAF proposed its own protocol in order to address that issue of confidentiality.
7        By email of
13 November 2019, the applicants replied to OLAF, stating that the emails exchanged with outside counsel should be regarded as privileged solely on the basis of the email domains of the senders and addressees. The applicants also pointed out that the analysis of each of those thousands of emails would impose an unreasonable burden on their lawyers and themselves.
8        The parties held a telephone conference on 18 December 2019 to discuss the claim for legal professional privilege. The conference yielded no agreement.
9        By letter of 20 January 2020, the applicants repeated their claim for
legal professional privilege
in respect of the communications with their lawyers and lodged a complaint alleging procedural shortcomings in OLAF’s investigation.
10      In the same letter of 20 January 2020, the applicants refused to provide information relating to the context, content or subject matter of the data at issue in order to justify their claim for confidentiality. They once more proposed to agree on a mutually acceptable protocol which would allow narrowing down the list of documents in respect of which legal professional privilege was claimed. In addition, the applicants made the following request: ‘Should OLAF reject both [the applicants’ claim for legal professional privilege], and [their] alternative compromise proposal, [they expect] OLAF to issue a formal decision rejecting [their claim], enabling [the applicants] to refer the matter to the General Court.’ However, the applicants stated that they had ‘no objection whatsoever for any other material seized by OLAF to be separated from the material [in respect of which legal professional privilege was claimed]’, and that they also had ‘no objection [to OLAF using] the vast majority of the material OLAF has seized which [did] not involve correspondence with [a] sensitive domain [connected to legal professional privilege]’.
11      By letter of 17 February 2020, OLAF rejected the applicants’ views on the confidentiality of communications with their lawyers and the protocol proposed by the applicants to narrow down the scope of their claim for legal professional privilege.
12      By letter of 28 February 2020, the applicants repeated their earlier request that OLAF issue a formal decision rejecting their claim for legal professional privilege and complained that it was attempting to influence the discussions relating to the claim for protection through threats.
13      In its reply dated
24 April 2020 to the applicants’ letter of 28 February 2020, OLAF described the protocol that it had decided to apply with regard to the claim for legal professional privilege. The protocol can be summarised as follows:
(i)      OLAF would open the sealed envelope, extract and index the data;
(ii)      OLAF would tag and exclude from searches the emails in respect of which confidentiality was claimed and the investigators would have access to the indexed data excluding those emails;
(iii)      after the indexation of the data, the applicants would be provided with the opportunity to justify their claim for protection of confidentiality by submitting ‘appropriate justifications’;
(iv)      if OLAF does not receive ‘appropriate justifications on the content and context in which [the] correspondence [at issue] was exchanged’, it will give its investigators full access to all data including the data in respect of which confidentiality was claimed.
14      The applicants replied on 4 May 2020, requesting more information on the exact procedure contemplated by OLAF and emphasised that, should it disagree with their claim for legal professional privilege, OLAF should issue a formal decision rejecting that claim and allow the applicants time to challenge such a decision before the General Court.
15      By letter of 12 May 2020, OLAF provided the additional information requested by the applicants and reiterated that the protocol set out in its letter of 24 April 2020 would be followed. It offered the applicants the opportunity for a representative to be present physically when the envelope was opened or to participate via videoconference.
16      By email of 18 May 2020, OLAF informed the applicants that on 28 May 2020 the sealed envelope would be checked in order to ensure that it had not been opened since the inspection of the applicants’ offices. On the same day, the envelope would be opened and it would be verified that the data
remained intact. In addition, OLAF observed that the applicants had not replied to its offer for the applicants to have a representative present physically when the envelope was opened. The email contained a link enabling participation via videoconference.
17      By email of 19 May 2020, the applicants stated that they would not be present physically when the envelope was opened, but they reiterated their concerns regarding how the OLAF investigators would be prevented from having access to the data in respect of which the applicants had claimed confidentiality. In the absence of additional clarifications in that regard, the applicants objected to the opening of the envelope. They also repeated their request for a formal decision rejecting the claim for protection of confidentiality.
18      By email of 26 May 2020, OLAF emphasised that the procedure envisaged for 28 May 2020 consisted only in the opening of the sealed envelope and the extraction of the data from the hard drive contained in the envelope for the purpose of verifying that the data remained intact. OLAF stated that the indexation of the data and the separation of the data
concerned by the claim for legal professional privilege would take place at a later stage. It also took note of the fact that the applicants objected to the opening of the envelope and explained that, in its view, the envelope could be opened without their consent. It stated that, once the indexation had been carried out, the list of potentially confidential emails would be communicated to the applicants in order to provide them with a final opportunity to justify their claim for confidentiality, ‘as explained in [the] letter of 12 May 2020’. It noted that, in accordance with its proposed protocol, its investigators would not have access, once the indexation had been completed, to the data in respect of which the applicants claimed legal professional privilege. Finally, it stated ‘that it [was] not foreseen at [that] stage to adopt a challengeable act’.
19      By email of 5 June 2020, OLAF informed the applicants that it had completed the first stage of the protocol, that is, the opening of the sealed envelope, on 28 May 2020, and that it had extracted the data from the hard drive retrieved from the envelope. The procedure followed was described in a Digital Forensic Examination Report, attached to that email.
Events subsequent to the action being brought
20      On 30 July 2020, OLAF’s digital-evidence specialist indexed the data on the hard drive extracted on 28 May 2020 from the envelope and identified the data in respect of which confidentiality had been claimed by the applicants in order to exclude them from any subsequent search and ensure that they would not be available to OLAF’s investigators.
21      On 13 October 2020, the OLAF forensic team made a copy of the data seized, including only the data in respect of which confidentiality had not been claimed, in order to allow its investigators to continue their work on the basis of those uncontested data alone.
22      On 30 November 2020, OLAF wrote to the applicants to inform them of the actions it had taken on 30 July and 13 October 2020. It also assured them that the data potentially covered by professional privilege would not be consulted pending the resolution of the dispute regarding those data.
23      By letter of 4 December 2020, the applicants asked OLAF whether it intended to issue a decision on the data at issue.
They also confirmed their refusal to provide additional justifications regarding their claim for legal professional privilege.
24      On 5 January 2021, OLAF wrote to the applicants, stating that its investigators still did not and would not have access to the data at issue, that it did not at this stage intend to consult those data and that, for the time being, it did not consider it necessary to define its position on the data at issue, as the investigation was proceeding exclusively on the basis of the uncontested data.
Procedure and forms of order sought
25      By application lodged at the Court Registry on 27 July 2020, the applicants brought the present action, by which they seek the annulment of the email sent by OLAF on 26 May 2020. According to the applicants, that email constitutes a tacit decision by which OLAF rejected their claim for legal professional privilege so long as no additional justification was provided by the applicants and confirmed its intention to proceed with the protocol as described in its letter of 24 April 2020.
26      By separate document lodged at the Court Registry on 2 November 2020, the Commission raised a plea of inadmissibility pursuant to Article 130 of the Rules of Procedure of the General Court.
27      The applicants lodged their observations on the plea of inadmissibility on 7 January 2021, asking, inter alia, whether that plea had been lodged out of time.
28      The applicants claim that the Court should:
–        declare the action admissible;
–        deliver a judgment by default upholding the pleas raised before the Court, in particular the plea seeking the annulment of OLAF’s tacit decision of 26 May 2020;
–        order the Commission to pay the costs, whether their action is upheld or whether it is dismissed on grounds of inadmissibility or on the ground that there is no need to adjudicate.
29      The Commission contends that the Court should:
–        dismiss the action as manifestly inadmissible or, in any event, as inadmissible;
–        order the applicants to pay the costs.
Law
30      Under Article 130(1) and (7) of the Rules of Procedure, the Court may, if the defendant so requests, rule on the question of admissibility without going to the substance of the case.
31      In the present case, since the Commission has requested the Court to give a ruling on inadmissibility, and the Court considers that it has sufficient information available to it from the material in the file, the Court has decided to give a ruling on that request without taking further steps in the proceedings.
32      As a preliminary matter, it is appropriate to rule on the applicants’ form of order seeking from the Court a judgment by default.
The applicants’ request that the Court deliver a judgment by default in their favour
33      The applicants submit that the Commission raised its plea of inadmissibility after the expiry of the time limit provided for by the Rules of Procedure of the General Court, without the Commission having requested an extension of that period in accordance with those rules or the President of the General Court having taken a decision accepting the plea of inadmissibility despite its allegedly having been lodged out of time. The applicants infer therefrom that they are entitled to ask the Court to deliver a judgment by default in their favour pursuant to Article 123 of its Rules of Procedure.
34      In that regard, it should be noted that it is apparent from a combined reading of Article 81 and Article 130(1) of the Rules of Procedure that a plea of inadmissibility raised by the defendant must be made by separate document within two months from the service of the application. In accordance with Article 60
of those rules, that period may be extended by a single period of 10 days on account of distance (see order of 23 March 2017, Gollnisch v Parliament, T‑624/16, not published, EU:T:2017:243, paragraph 32).
35      In addition, according to the third paragraph of Article 6 of the Decision of the General Court of 11 July 2018 on the lodging and service of procedural documents by means of e-Curia (OJ 2018 L 240, p. 72), ‘a procedural document shall be served at the time when the intended recipient (representative or assistant) requests access to that document. In the absence of any request for access, the document shall be deemed to have been served on the expiry of the seventh day following the day on which the notification email was sent’.
36      In the present case, it is apparent from the e-Curia application that the Commission requested access to the application on 24 August 2020 at 7.57. As a result, the period for lodging the plea of inadmissibility started to run from that date and, having regard to the rules set out in paragraphs 34 and 35 above, expired on 3 November 2020 at midnight. As the Commission lodged the plea of inadmissibility at the Court Registry on 2 November 2020, it must be held that it is admissible (see, to that effect, order of 21 March 2018, Eco-Bat Technologies and Others v Commission, T‑361/17, not published, EU:T:2018:173, paragraphs 15 to 19).
37      Since the conditions of Article 123(1) of the Rules of Procedure are not met, inasmuch as the Commission lodged a plea of inadmissibility within the prescribed period, the applicants’ request seeking from the Court a judgment by default must be rejected.
The plea of inadmissibility
38      In its plea of inadmissibility, the Commission submits that the email of 26 May 2020 does not constitute an act capable of adversely affecting the applicants by bringing about a distinct change in their legal position.
According to the Commission, in the email at issue, OLAF informed the applicants that, in order to be able to proceed with its investigation, it would open the sealed envelope so as to be able to separate the material potentially covered by legal professional privilege from the rest of the material acquired during the inspection carried out in September 2019. According to the Commission, that communication simply conveys information on the subsequent steps of the investigation, without OLAF defining its position on the merits of the applicants’ claim regarding legal professional privilege,
while ensuring that information allegedly covered by that privilege would not be accessed by OLAF investigators.
39      Moreover, the Commission points out that, in their letter of 20 January 2020, the applicants had stated that they would not object to the data at issue being separated from the other data and to OLAF using the data seized, on condition that it did not involve confidential communications between lawyers and clients.
40      The Commission infers therefrom that OLAF’s email of 26 May 2020 is merely a preparatory act with no binding legal effects and, in particular, with no effect on the applicants’ claims relating to legal professional privilege. The Commission submits that, as a result, that email is not challengeable and the applicants’ action must be dismissed as manifestly inadmissible.
41      Last, in response to the applicants’ arguments relying on Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), the Commission recalls that it is settled case-law that the purpose of that provision is not to modify the system of judicial protection set out in the Treaties, inter alia with regard to actions brought by natural and legal persons pursuant to Article 263 TFEU. The Commission submits that the contested act has no impact on the legal professional privilege claimed by the applicants and therefore cannot adversely affect it. As a result, there is no adverse effect on their right to effective judicial protection.
42      In their application and their observations on the plea of inadmissibility, the applicants submit that OLAF’s email of 26 May 2020 is a challengeable act, on the ground that it constitutes a tacit decision by which OLAF rejected their claim for legal professional privilege so long as no appropriate justifications were provided by the applicants and it confirmed its intention to proceed with the protocol as described in its letter of 24 April 2020.
43      According to the applicants, as they do not intend to provide any further information on the communications with outside counsel, their claim for protection of confidentiality has, in essence, already been rejected. As a result, the email at issue will inevitably result in privileged emails being disclosed to OLAF under its protocol, which would constitute, within the meaning of the Akzo Nobel case-law, a definitive breach of the applicants’ rights independent of the final outcome of OLAF’s investigation.
44      Moreover, the applicants point out that, in the email of 26 May 2020, OLAF stated ‘that it [was] not foreseen at [that] stage to adopt a challengeable act’, without replying to their repeated requests for a formal decision on the issue of the confidentiality of the data at issue. They infer therefrom that they could no longer expect OLAF to write to them on the subject of the detailed rules governing access to those data.
45      Last, the applicants rely on the principle of effective judicial protection enshrined in Article 47 of the Charter.
46      It must be borne in mind that, according to settled case-law, any measures adopted by the institutions of the European Union, whatever their form, which are intended to have binding legal effects, are regarded as actionable measures, within the meaning of Article 263 TFEU (see judgment of 13 February 2014, Hungary v Commission, C‑31/13 P, EU:C:2014:70, paragraph 54 and the case-law cited).
47      Those binding legal effects of a measure must be assessed in accordance with objective criteria, such as the contents of that measure, taking into account, as appropriate, the context in which it was adopted (see judgment of 13 February 2014, Hungary v Commission, C‑31/13 P, EU:C:2014:70, paragraph 55 and the case-law cited).
48      In the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, in principle an act is open to review only if it is a measure definitively laying down the position of the institution on the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision (see, to that effect, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 10, and of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 42).
49      It would be otherwise only if acts or decisions adopted in the course of the preparatory proceedings not only bore all the legal characteristics referred to above but in addition were themselves the culmination of a special procedure distinct from that intended to permit the institution to take a decision on the substance of the case (see, to that effect, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 11, and of 21 June 2012, Spain v Commission, T‑264/10 and T‑266/10, not published, EU:T:2012:315, paragraph 12).
50      Moreover, whilst measures of a purely preparatory character may not themselves be the subject of an action for annulment, any legal defects therein may be relied upon in an action directed against the definitive act for which they represent a preparatory step, which guarantees effective and complete judicial protection (see, to that effect, judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 12; order of 15 March 2019, Silgan Closures and Silgan Holdings v Commission, T‑410/18, EU:T:2019:166, paragraph 15).
51      It should also be borne in mind that, according to the Akzo Nobel case-law, where an undertaking relies on legal professional privilege for the purpose of opposing the seizure of a document in the course of an investigation, the decision rejecting that request produces legal effects for that undertaking, by bringing about a distinct change in its legal position. That decision in effect withholds from the undertaking the protection provided by EU law and is definitive in nature and independent of any final decision establishing an infringement (see judgment of 17 September 2007, Akzo Nobel Chemicals and Akcros Chemicals v Commission, T‑125/03 and T‑253/03, EU:T:2007:287, paragraph 46 and the case-law cited).
52      The Commission’s plea of inadmissibility based on the fact that there is no challengeable act must be examined in the light of those principles.
53      In the present case, it should be borne in mind that, in the email of 26 May 2020, OLAF stated that the only actions envisaged for 28 May 2020 were the opening of the sealed envelope and the extraction of the data from the hard drive contained in the envelope, for the purpose of verifying that the data remained intact. OLAF explained that their indexation and the separation of the data in respect of which the applicants had claimed confidentiality would take place at a later stage. It also noted that the applicants objected to the opening of the envelope and stated that, in its view, the envelope could be opened without their consent. It explained that, once the indexation had been carried out, the list of potentially confidential emails would be communicated to the applicants in order to provide them with a final opportunity to justify their claim for confidentiality, ‘as explained in [the] letter of 12 May 2020’. It pointed out that the application of the protocol it had proposed would prevent its investigators from having access to those emails in respect of which the applicants claimed legal professional privilege. Last, it noted that it did not at that stage intend to adopt a challengeable act.
54      In the light of that information, it should be stated, in the first place, that, as regards the potential effects of the email of 26 May 2020 on the uncontested data, resulting from the fact that the measures described in that email give the OLAF investigators the opportunity to consult those data, it is sufficient to note that the applicants have not claimed that those data were covered by legal professional privilege, or by similar protection under EU law (see, by analogy, judgment of 14 November 2012, Nexans France and Nexans v Commission, T‑135/09, EU:T:2012:596, paragraphs 129 and 130).
55      In the second place, as regards the effects of the email of 26 May 2020 on the data at issue, it should be stated in the light of the documents in the case file that, although those data were, admittedly, extracted from the hard drive retrieved from
the sealed envelope, they remain inaccessible to the OLAF investigators. Given the protocol established by OLAF and the IT precautions it took (see paragraphs 13, 18 and 19 above), the confidentiality of the data was not compromised when the sealed envelope was opened and it is not possible that the OLAF investigators have access to those data. Moreover, it should be noted that the applicants – who did not, admittedly, have all the necessary information to be ensured that the confidentiality of the data at issue would be respected in the future – do not argue that the OLAF investigators consulted the data at issue and thereby breached legal professional privilege.
56      Therefore, the email at issue is not definitive in nature and independent of any final decision within the meaning of the Akzo Nobel case-law recalled in paragraph 51 above and is therefore not challengeable in that respect.
57      In addition, the non-definitive nature of the email of 26 May 2020 with regard to the data at issue means that the email at issue is a preparatory act which, in the light of all the case-law recalled in paragraphs 46 to 51 above, is not challengeable either.
58      The email of 26 May 2020 does not contain a definitive position adopted by OLAF as to whether the data it seized and in respect of which the applicants claim legal professional privilege are fully or partly covered by such privilege.
59      The email of 26 May 2020 merely states that the opening of the sealed envelope and the extraction of the data from the hard drive contained therein will take place on 28 May 2020 – admittedly, despite the applicants’ objections to that opening, but in compliance with a procedure protecting the confidentiality of the data at issue with regard to the OLAF investigators. The applicants moreover explained to OLAF that, subject to the protection of the confidentiality of the data in respect of which they had claimed legal professional privilege, in particular by means of the separation of those data, they did not object to OLAF’s use of the other data seized.
60      The email of 26 May 2020 also explains that, after the indexation of the data seized, OLAF would communicate the list of potentially confidential emails to the applicants in order to provide them with a final opportunity to justify their claim for confidentiality, ‘as explained in [the] letter of 12 May 2020’. That letter refers to the protocol described in the letter of 24 April 2020, which sets out that, should OLAF not receive ‘appropriate justifications’ for the claim for confidentiality, its investigators would have access to all the data, including those in respect of which confidentiality has been claimed.
61      The fact remains that, on 26 May 2020, the date of the email in question which, moreover, does nothing more than refer to the protocol proposed by OLAF in its letter of 24 April 2020, the latter had not adopted a definitive decision refusing to regard the data at issue or part of the data at issue as confidential. Were OLAF to adopt such a decision, the applicants would be entitled to bring an action for annulment under
Article 263 TFEU. In the context of such an action, the applicants could rely on the potentially unlawful nature of the steps which led to the adoption of that definitive decision, including those resulting from the email of 26 May 2020.
62      As a result, the email at issue is not a challengeable act, since it cannot be challenged on the basis of the Akzo Nobel case-law and constitutes a preparatory act in the course of OLAF’s investigation without adversely affecting the rights from which the applicants might benefit under legal professional privilege.
63      Last, the applicants rely on the right to an effective remedy enshrined in Article 47 of the Charter in order to substantiate the admissibility of their action.
64      It is sufficient to recall, as the Commission correctly does, that, according to settled case-law, Article 47
of the Charter is not intended to change the system of judicial review laid down by the Treaties, particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union (order of 29 January 2020, Silgan Closures and Silgan Holdings v Commission, C‑418/19 P, not published, EU:C:2020:43, paragraph 44, and judgment of 30 April 2020, Izba Gospodarcza Producentów i Operatorów Urządzeń Rozrywkowych v Commission, C‑560/18 P, EU:C:2020:330, paragraph 62). As explained above, the email at issue does not contain a decision resolving the issue of the confidentiality of the communications between the applicants and their lawyers and therefore does not constitute a challengeable act. The applicants’ right to an effective remedy therefore cannot be relied on to frustrate the application of the rules of admissibility to the present action.
65      As a result, the plea of inadmissibility raised by the Commission must be upheld and the application for annulment of the email of 26 May 2020 must be dismissed as inadmissible.
Costs
66      Should the Court rule that the action is inadmissible, the applicants claim that the Commission should be ordered to pay the costs regardless. In that regard, they submit that they asked OLAF repeatedly for a formal decision rejecting their claim for legal professional privilege in respect of the data at issue, that OLAF never clearly committed to adopting such a decision before any consultation of the data and, consequently, they had no other choice but to bring the present action in order to protect their rights.
67      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, according to Article 135(1) of the Rules of Procedure, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his or her own, or even that he or she is not to be ordered to pay any.
68      In the present case, it must be stated that the applicants repeatedly requested OLAF to adopt a formal decision on their claim for legal professional privilege in respect of the data at issue in order to enable them to bring an action before the Court. They made that request, inter alia, in their letters of 20 January, 28 February and 4 May 2020 as well as in their email of 19 May 2020. It was, admittedly, open to OLAF to continue its investigation while protecting the confidentiality of the data at issue. However, with regard to the applicants, it was for OLAF
to commit expressly to adopting, prior to consulting the data at issue, a formal decision rejecting in full or in part their claim for legal professional privilege, in order to give them the opportunity to challenge that rejection before the Courts of the European Union. However, OLAF never made a clear commitment to that effect, despite the repeated requests of the applicants, thereby maintaining doubt on their part as to the application of the protocol described in the letter of 24 April 2020 and as to potential access by the OLAF investigators to all the data, including the data in respect of which confidentiality had been claimed. That doubt may be a reason for the present action having been brought.
69      Having regard to the foregoing considerations, in particular OLAF’s conduct, to which the emergence of the present dispute may be attributable, the Court considers it fair in the circumstances of the case to order each party to bear its own costs (see, to that effect, judgments of 28 May 2020, Korporaciya “Masternet” v EUIPO – Stayer Ibérica (STAYER), T‑681/18, not published, EU:T:2020:222, paragraph 46, and of 28 May 2020, Aurea Biolabs v EUIPO – Avizel (AUREA BIOLABS), T‑724/18 and T‑184/19, EU:T:2020:227, paragraph 93).
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1.      The action is dismissed as inadmissible.
2.      LG and the other applicants whose names are listed in the annex shall bear their own costs.
3.      The European Commission shall bear its own costs.
Luxembourg, 20 May 2021.
E. Coulon
A. Marcoulli
Registrar
President
*      Language of the case: English.
1      The list of the other applicants is annexed only to the version sent to the parties.