JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
23 May 2019 (*)
(Non-contractual liability — Anti-dumping — OLAF’s insistence that Member States recover anti-dumping duties relating to any importation of silicon metal originating in Taiwan without proof that that silicon metal originated in China — Regulation (EC) No 398/2004 and Implementing Regulation (EU) No 467/2010 — Causal link)
In Case T‑631/16,
Remag Metallhandel GmbH, established in Steyr (Austria),
Werner Jaschinsky, residing in St. Ulrich bei Steyr (Austria),
represented by M. Lux, lawyer,
applicants,
v
European Commission, represented by A. Caeiros and A. Lewis, acting as Agents,
defendant,
APPLICATION based on Article 268 TFEU, seeking compensation for the damage allegedly suffered by the applicants as a result of the request by the European Anti-Fraud Office (OLAF) that the customs authorities of the Member States recover anti-dumping duties for consignments of silicon exported from Taiwan to the European Union,
THE GENERAL COURT (Sixth Chamber),
composed of G. Berardis, President, D. Spielmann and Z. Csehi (Rapporteur), Judges,
Registrar: N. Shall, Administrator,
having regard to the written part of the procedure and further to the hearing on 16 May 2018,
gives the following
Judgment
Background to the dispute
1        The applicants are, respectively, Remag Metallhandel GmbH, an international trading company established in Austria, which provides, inter alia, silicon for the aluminium industry, and Mr Werner Jaschinsky, the director of that company.
2        On 2 March 2004, the Council of the European Union adopted Regulation (EC) No 398/2004 imposing a definitive anti-dumping duty on imports of silicon originating in the People’s Republic of China (OJ 2004 L 66, p. 15).
3        On 25 May 2010, the Council adopted Implementing Regulation (EU) No 467/2010 imposing a definitive anti-dumping duty on imports of silicon originating in the People’s Republic of China, as extended to imports of silicon consigned from the Republic of Korea, whether declared as originating in the Republic of Korea or not, pursuant to Article 11(2) of Regulation (EC) No 1225/2009 (OJ 2010 L 131, p. 1), and a partial interim review pursuant to Article 11(3) of that latter regulation.
4        After receiving information regarding an alleged transhipment of silicon originating in the People’s Republic of China via Taiwan, with the alleged aim of avoiding the payment of the anti-dumping duties imposed by the abovementioned regulations, on 27 October 2010, the European Anti-Fraud Office (OLAF) sent to the Member States Communication AM 2010/018, by which it informed the Member States that it had suspicions that anti-dumping duties fraud had been committed, and requested them to carry out checks, inviting them, if irregularities were established, to gather evidence, to forward to it to OLAF, and to take measures in order to recover the anti-dumping duties.
5        On 17 November 2010, OLAF opened the investigation file with reference OF/2010/0827 on the alleged fraud.
6        In the course of the investigation at issue, OLAF had a number of exchanges and meetings with the Taiwanese customs authorities responsible for carrying out investigations, namely the Taiwanese Bureau of Foreign Trade (‘the BOFT’) and the Customs’ Department of Investigation (‘the DOI’).
7        OLAF conducted a first mission to Taiwan, from 22 to 27 May 2011.
8        OLAF’s report of 27 July 2011, regarding the first mission at issue, did not contain any recommendation to the Member States. However, OLAF’s addendum of 17 November 2011 to that report, drafted following additional information supplied by the Taiwanese authorities, concluded, in particular, that the companies which had been investigated did not produce silicon and had imported silicon from the People’s Republic of China for it to subsequently be re-exported without any processing or after limited processing, which did not confer on those companies Taiwanese non-preferential origin for the purposes of Article 24 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1). Based on the conclusions of that addendum, OLAF requested the Member States to initiate recovery proceedings for all consignments under investigation and imported up until that date in order to avoid a number of consignments, imported in 2008, becoming time-barred.
9        OLAF conducted a second mission to Taiwan, from 8 to 15 September 2012. During that mission, it visited the processing facilities of the three main exporters working with the first applicant.
10      OLAF’s report of 7 May 2013, regarding the second mission at issue, first, confirmed, in particular, that all of the silicon exported by the three main exporters working with the first applicant had not undergone sufficient processing in Taiwan to meet the origin criteria set out in EU law and was therefore liable to anti-dumping duties, and that the sole aim of the activity in Taiwan was to avoid paying anti-dumping duties and, second, pointed out that the expert instructed by OLAF had concluded that the elimination of impurities was less than 80%. The report did not contain any subsequent recommendation to the Member States.
11      Throughout the investigation, OLAF sent a number of communications to the national customs authorities. In particular, in letters sent to the Zollkriminalamt (Central Customs Investigation Service, Germany) on 26 January 2012 and 4 April 2012, OLAF, whilst acknowledging that it remained to be determined whether the invoked purification process complied with EU law on origin, declared that the consignments at issue were to be regarded as originating in the People’s Republic of China and subject to anti-dumping duties and strongly recommended the continuation of the recovery procedure opened in respect of the consignments from the three main exporters working with the first applicant.
12      By its Implementing Regulation (EU) No 311/2013 of 3 April 2013 extending the definitive anti-dumping duty imposed by Implementing Regulation (EU) No 467/2010 on imports of silicon originating in the People’s Republic of China to imports of silicon consigned from Taiwan, whether declared as originating in Taiwan or not (OJ 2013 L 95, p. 1), the Council extended the anti-dumping duty relating to imports of silicon originating in the People’s Republic of China to imports of silicon consigned from Taiwan, regardless of the declared origin of that material.
13      On 28 November 2013, OLAF issued its final investigation report, which identified the sum of EUR 13 967 606.85 of evaded anti-dumping duties which were recoverable. On 11 December 2013, it decided to close the investigation at issue and recommended the relevant national authorities to undertake appropriate measures to ensure the recovery of that amount.
Procedure and forms of order sought
14      By application lodged at the Court Registry on 2 September 2016, the applicants brought the present action.
15      On 22 December 2016, the Commission lodged its defence. The reply and the rejoinder were lodged within the period prescribed.
16      In the reply, the applicants also made an application for measures of organisation of the procedure.
17      The applicants claim that the Court should:
–        order the Commission to pay compensation for the material and non-material damage suffered, together with default interest at the rate of 8% annually;
–        order the Commission to pay the costs.
18      The Commission contends that the Court should:
–        dismiss the action as inadmissible or as unfounded;
–        order the applicants to pay the costs.
Law
19      In support of the action, the applicants submit that OLAF requested the national authorities to recover anti-dumping duties in breach of Article 220(1) and Article 221(1) of Regulation No 2913/92, the principles of sound administration, the burden of proof and rules of origin as interpreted by the Court in the judgment of 11 February 2010, Hoesch Metals and Alloys (C‑373/08, EU:C:2010:68), and the right of defence.
20      The applicants add that OLAF’s actions, which de facto required the national authorities to adopt post-clearance anti-dumping duties in relation to, in particular, the first applicant, gave rise to the following ten heads of damage:
–        the first concerns the legal costs relating to the disputes, before certain national courts, between the first applicant and the national authorities regarding the recovery of anti-dumping duties;
–        the second concerns travel costs which the first applicant claims to have incurred in order for the second applicant to be able to attend the inspection carried out by OLAF in Taiwan and to be present at the hearings which took place before the courts of certain Member States;
–        the third concerns the loss resulting from the sell-off of the silicon exported from Taiwan which, as a result of OLAF’s requests to recover anti-dumping duties, was considered suspect material;
–        the fourth concerns the financial provision for liabilities for anti-dumping duties in connection with certain anti-dumping cases pending in certain Member States at the end of 2015;
–        the fifth concerns the default interest to which the first applicant claims to be entitled due to the fact that its Slovenian fiscal representative, because of the obligation to pay without delay the anti-dumping duties claimed, blocked all the first applicant’s stocks and forced it to pay the anti-dumping duties upfront in Slovenia;
–        the sixth concerns the costs of additional guarantees provided to a financial institution which, following the requests for payment of the anti-dumping duties, provided a lower line of credit with a rate of interest higher than the previous rate;
–        the seventh concerns the costs arising from the insolvency of two customer companies of the first applicant in Spain, which, having been obliged by the Spanish customs authorities to pay the anti-dumping duties, blocked all open accounts and stopped all deliveries of aluminium alloys, forcing the first applicant to cover that supply from other suppliers at a higher price;
–        the eighth concerns the first applicant’s loss of profit and business value ‘due to OLAF’s actions’, as assessed by a study carried out by a consultancy company dated 19 August 2016;
–        the ninth concerns the non-material loss which the second applicant claims to have suffered as a result of the recovery proceedings initiated by the national authorities following OLAF’s investigation;
–        the tenth concerns the cost of preparing the present action for damages.
21      The Commission pleads that the action is inadmissible and disputes the applicants’ arguments.
Admissibility
22      Without formally raising a plea of inadmissibility, the Commission contends that the action is inadmissible. It submits that OLAF’s final report of 28 November 2013, regardless of its content, was not a measure which altered the legal position of the applicants, since it was not binding on the national authorities to whom it was addressed, and the national authorities began the recovery of anti-dumping duties on the basis of their own decisions. The same applies, a fortiori, with regard to OLAF’s previous communications to the Member States. In those circumstances, the Commission claims that those national authorities are responsible for the damage alleged by the applicants and that the damage thus cannot be considered to have been directly caused by OLAF’s alleged conduct.
23      The Commission adds that OLAF did not act prematurely, but on the basis of the information provided by the Taiwanese authorities and stated facts, and that it was not necessary for OLAF to indicate to the national authorities that its final report of 28 November 2013 was not binding, given that those national authorities knew that only they could bring an action for recovery.
24      The applicants dispute the Commission’s arguments.
25      In that regard, it should be noted that, by the present action, in essence, the applicants dispute OLAF’s overall attitude which, through pressure exerted on the national authorities, led to, or even forced, the latter to pursue the post-clearance recovery of the anti-dumping duties at issue.
26      It should also be recalled that the action to establish liability is an autonomous form of action, with a particular purpose to fulfil within the system of legal remedies and subject to conditions of use dictated by its specific purpose. Although actions for annulment and for failure to act seek a declaration that a legally binding measure is unlawful or that such a measure has not been taken, an action to establish liability seeks compensation for damage resulting from a measure or from unlawful conduct, attributable to an EU institution or body. Thus, individuals who, by reasons of the conditions as to admissibility laid down under the fourth paragraph of Article 263 TFEU, cannot contest directly certain EU acts or measures, nonetheless have the opportunity of putting in issue conduct lacking the features of a decision, which accordingly cannot be challenged by way of an action for annulment, by bringing an action for non-contractual liability under Article 268 TFEU and the second paragraph of Article 340 TFEU, where such conduct is of such a nature as to entail liability for the European Union (see, to that effect, judgment of 4 October 2006, Tillack v Commission, T‑193/04, EU:T:2006:292, paragraphs 97 and 98 and the case-law cited).
27      In those circumstances, the question of whether OLAF’s alleged conduct is unlawful and, in particular, whether its recommendations, whilst not constituting measures intended to produce binding legal effects vis-à-vis third parties, and whilst not binding on the national authorities to whom they were addressed, nevertheless are capable of incurring the liability of the European Union, are part of the substantive assessment and not part of the assessment of whether the action is admissible.
28      In particular, such a question falls under the third and last condition to which the non-contractual liability of the European Union for the unlawful conduct of its bodies, under Article 340 TFEU, is subject, namely that there must be a causal link between the conduct alleged and the damage relied upon (see paragraphs 39 to 65 below).
29      The Commission’s plea of inadmissibility must therefore be rejected.
Substance
The application for measures of organisation of procedure
30      The applicants take the view that they have shown that the Commission had submitted only part of OLAF’s documents and request the Court, under the measure of organisation of procedure referred to in paragraph 16 above, first, to order the Commission to produce all relevant documents in the possession of its services with regard to OLAF’s investigations and findings in relation to the present case and, secondly, to provide the applicants with the opportunity to raise further grounds of damages following the production of those documents. They add that they realised the need to apply for such measures only after examining the documents which the Commission produced in annexes to the defence.
31      The Commission opposes that application.
32      In that regard, it should be noted that the application for measures of organisation of procedure is late because it was made after the first exchange of pleadings, without a valid justification, in breach of the second sentence of Article 88(2) of the Rules of Procedure of the General Court.
33      That finding cannot be called into question by the fact, put forward by the applicants, that they realised the need to apply for the abovementioned measures only after examining the documents which the Commission produced in the defence, when the applicants themselves have merely made an application of a general nature by failing to identify the exact documents to which the Commission allegedly referred in that pleading or which the applicants learned of after examining that pleading.
34      The application for measures of organisation of procedure must therefore be refused.
35      Moreover, the General Court, in order to have sufficient information to assess all the evidence in the file, adopted measures of organisation of procedure in the form of written questions to the parties, as provided for in Article 89(3)(a) of the Rules of Procedure (see paragraph 16 above). In those circumstances, and having regard to the parties’ responses which have provided the Court with sufficient information, there is no need, in any event, to order the measures of organisation of procedure requested by the applicants.
The claim for damages
36      First, it should be recalled that, pursuant to the second paragraph of Article 340 TFEU, in the case of non-contractual liability, the European Union, in accordance with the general principles common to the laws of the Member States, is to make good any damage caused by its institutions or by its servants in the performance of their duties.
37      According to settled case-law, non-contractual liability and the exercise of the right to compensation for damage suffered depend on the satisfaction of a number of conditions, relating to the unlawfulness of the conduct of which the institutions are accused, the fact of damage and the existence of a causal link between that conduct and the damage complained of (judgments of 29 September 1982, Oleifici Mediterranei v EEC, 26/81, EU:C:1982:318, paragraph 16, and of 9 September 2008, FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 106).
38      Where one of those conditions is not fulfilled, including that of the existence of a causal link between the disputed conduct and the damage pleaded, the action must be dismissed in its entirety without there being any need to consider whether the other conditions are met (see judgment of 5 April 2017, CPME and Others v Council, T‑422/13, EU:T:2017:251, paragraph 171 and the case-law cited). Furthermore, the European Union judicature is not required to examine those conditions in any particular order (judgment of 18 March 2010, Trubowest Handel and Makarov v Council and Commission, C‑419/08 P, EU:C:2010:147, paragraph 42; see also, to that effect, judgment of 9 September 1999, Lucaccioni v Commission, C‑257/98 P, EU:C:1999:402, paragraph 13) and may examine, first, the issue of the causal link between the conduct alleged and the losses alleged (see, to that effect, judgment of 18 March 2010, Trubowest Handel and Makarov v Council and Commission, C‑419/08 P, EU:C:2010:147, paragraph 49).
39      In the present case, the Court takes the view that, regardless of whether OLAF’s conduct was wrongful and whether that gave rise to loss, it is appropriate to first deal with the condition relating to the existence of a causal link between the conduct alleged and the losses alleged.
40      As a preliminary point, it should be recalled that the condition under the second paragraph of Article 340 TFEU relating to a causal link concerns a sufficiently direct causal nexus between the conduct of the institutions and the damage, the burden of proof of which rests on the applicant, in such a way that conduct complained of must be the determining cause of the damage (see order of 31 March 2011, Mauerhofer v Commission, C‑433/10 P, not published, EU:C:2011:204, paragraph 127 and the case-law cited).
41      The causal link required for engagement of the European Union’s non-contractual liability under the second paragraph of Article 340 TFEU is established where the damage is the direct consequence of the wrongful act in question (judgment of 28 June 2007, Internationaler Hilfsfonds v Commission, C‑331/05 P, EU:C:2007:390, paragraph 23). The Court must therefore consider whether the unlawful act at issue is the immediate cause of the damage alleged in order to establish the existence of a direct relationship of cause and effect between the conduct of which the European Union is accused and the damage complained of (judgment of 20 January 2010, Sungro v Council and Commission, T‑252/07, T‑271/07 and T‑272/07, EU:T:2010:17, paragraph 49).
42      In the present case, the applicants submit, in essence, that OLAF was liable, by its conduct, for the post-clearance recovery carried out by the national authorities. OLAF put a great amount of pressure on those authorities, aimed at having its recommendations implemented, which was perceived to be an order by those authorities whose usual practice is, furthermore, to follow recommendations and requests from Commission services especially because, in the present case, they did not have sufficient time to carry out their own investigations. In that regard, the applicants point out that Member States are bound by the principle of loyal cooperation laid down in Article 4(3) TEU, and that, pursuant to the second recital of Council Regulation (EC) No 515/97 of 13 March 1997 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 administrative authorities of the Member States are to assist each other and cooperate with the Commission in order to guarantee the proper application of customs and agricultural regulations. In those circumstances, the recovery measures implemented by the national authorities constituted simply the implementation of acts which, because of the pressure exerted by OLAF, became de facto ‘orders’. The applicants add that the existence of a causal link between OLAF’s conduct and the losses alleged is also proven by OLAF’s involvement in the recovery procedure and, in particular, in the national authorities’ preparation of reports, as demonstrated by the exchanges between OLAF and the Netherlands, Slovenian and Austrian customs authorities.
43      Consequently, in order to establish the existence of a causal link between the conduct alleged against OLAF and the various heads of damage alleged by the applicants, it is necessary to verify whether OLAF’s recommendations in the present case were the direct source of the post-clearance recovery carried out by the national authorities.
44      In that regard, it should be noted that, in OLAF’s report of 27 July 2011, it merely concluded, inter alia, that the Taiwanese companies which were the subject of the investigation at issue imported silicon from China to Taiwan and subsequently re-exported it to the European Union, whilst pointing out that the information provided by the Taiwanese authorities was insufficient to establish a link between the imported silicon and the re-exported silicon. In that report, OLAF did not make any recommendation to the national authorities.
45      However, in OLAF’s addendum of 17 November 2011, OLAF concluded that all the consignments of silicon, exported by the companies which were the subject of the investigation at issue, from January 2008 to the day that addendum was drawn up, apart from those which seemingly were exported by the company Chen Ku International, which did not exist, had to be regarded as originating in China and were, consequently subject to anti-dumping duties. OLAF thus recommended the national authorities to:
–        identify the certificates of origin for those consignments for which the number had not yet been communicated to OLAF and to send that information to it as soon as possible;
–        identify the consignments which could not be linked to consignments imported into the Member States and to send that information to OLAF as soon as possible;
–        immediately initiate the proceedings to recover anti-dumping duties on all consignments under investigation which had been imported until the day that addendum was drawn up to avoid the recovery of the duties on a number of consignments, imported in the course of 2008, becoming time-barred;
–        inform OLAF in due course, and preferably before the end of 2011, of the amounts to be recovered.
46      OLAF reiterated those recommendations in its communications to the national authorities, as demonstrated by the recommendation of 11 December 2013, relied on by the applicants, by which OLAF requested, inter alia, the Austrian customs authorities to take any appropriate measure to ensure the recovery of anti-dumping duties.
47      The German, Spanish, Netherlands, Austrian and Slovenian customs authorities subsequently, according to the allegations made by the applicants, followed those recommendations and initiated post-clearance recovery procedures for the anti-dumping duties at issue.
48      In that regard, it should be recalled that it is clear from settled case-law that OLAF’s reports, which are drafted at the end of an external investigation and forwarded to the competent authorities of the Member States do not bring about a distinct change in the legal position of persons who are named in the report and constitute only recommendations or opinions which have no binding legal effects (see order of 21 June 2017, IJV v Commission, T‑737/16, not published, EU:T:2017:453, paragraph 17 and the case-law cited).
49      It is also clear from settled case-law that the OLAF’s findings, which are set out in a final report, cannot lead automatically to the initiation of judicial or disciplinary proceedings, since the competent authorities are free to decide what action to take pursuant to a final report, and the opinion which OLAF provides in that regard imposes no obligation, even of a procedural nature, on the authorities to which it is addressed (see order of 21 June 2017, Inox Mare v Commission, T‑289/16, EU:T:2017:414, paragraph 15 and the case-law cited). Likewise, the national authorities, following the forwarding of information by OLAF, remain free, within the limits of their own powers, to assess the content and full significance of that information and, therefore, to decide what action should be taken upon it (see order of 21 June 2017, Inox Mare v Commission, T‑289/16, EU:T:2017:414, paragraph 16 and the case-law cited).
50      According to the case-law, the application of the substantive customs law of the European Union, including the adoption of decisions requiring post-clearance payment of customs duties not previously levied, comes within the exclusive competence of the national customs authorities, which exercise their own discretion over applications submitted by each importer, in order to take into account any particularity, of fact or of law, that characterises the specific situation of each operator (see order of 21 June 2017, Inox Mare v Commission, T‑289/16, EU:T:2017:414, paragraphs 34 and 35 and the case-law cited).
51      In the light of the principles established by the case-law, it cannot be concluded that, in the circumstances of the present case, OLAF’s recommendations constituted genuine orders to the national authorities or that, at the very least, they could be regarded as such.
52      First, if, as the applicants submit, without OLAF’s actions, the national authorities would not have pursued the post-clearance recovery of the anti-dumping duties, it should be recalled that the mere fact that the allegedly unlawful conduct of OLAF constituted a necessary condition (a sine qua non) for the damage, in the sense that it would not have occurred without that conduct, is not sufficient to establish a sufficiently direct causal link under EU case-law (see, to that effect, order of 12 December 2007, Atlantic Container Line and Others v Commission, T‑113/04, not published, EU:T:2007:377, paragraphs 39 and 40 and the case-law cited).
53      Second, an obligation on the national authorities to comply with OLAF’s recommendations cannot derive from the rules on cooperation between OLAF and the Member States and, in particular, the rules on reporting obligations of Member States as regards following the recommendations of OLAF set out in Articles 11 and 12 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). Article 11(6) and Article 12(3) of that regulation merely establish, in essence, that the competent authorities of the Member States concerned are to send to OLAF information on action taken, if any, following the recommendations and transmission of information by OLAF.
54      Third, the involvement of OLAF in the recovery procedure, in so far as it contributed to the drafting of the expert’s report, if that were to be proven, is irrelevant with regard to the binding effect of OLAF’s actions in relation to decisions adopted by the national authorities in the present case.
55      Fourth, the same is true as regards the applicants’ argument that OLAF went beyond the role and powers conferred on it under Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (OJ 1999 L 136, p. 1), and under Regulation No 515/97. That fact, even if well founded, does not lead to the conclusion that OLAF’s recommendations were, in the present case, binding, nor that they were, furthermore, the direct cause of the damage alleged by the applicants.
56      Fifth, the applicants submit that the existence of a causal link is due, in the present case, to the absence of judicial protection in so far as, as the affected parties, they could not otherwise obtain compensation for the damage suffered.
57      In that regard, it must be stated that that argument is not relevant as regards the proof of existence of a causal link and cannot compensate for the absence of a causal link in the present case. In any event, it should also be noted that, in accordance with the case-law cited in paragraphs 49 and 50 above, it is for the national authorities to decide what action to take on the recommendations forwarded to them by OLAF. It is thus for those authorities to ascertain themselves whether the information received justifies or requires the bringing of proceedings. Consequently, judicial protection against such proceedings must be ensured at national level with all the guarantees provided by national law, including those which follow from the fundamental rights that, as an integral part of the general principles of EU law, must also be observed by the Member States when they implement EU rules. In proceedings brought at national level, the court seised has the possibility, or in some cases the obligation, by means of a request to the Court of Justice for a preliminary ruling under Article 267 TFEU, of putting questions to the Court of Justice, possibly at the instigation of the parties, on the interpretation of provisions of EU law which it considers necessary to enable it to give judgment (see, to that effect, order of 21 June 2017, Inox Mare v Commission, T‑289/16, EU:T:2017:414, paragraph 40 and the case-law cited).
58      Similarly, nor can an alleged obligation on the national authorities to comply with OLAF’s recommendations follow, as the applicants claim, from the existence of minimal chances of obtaining compensation at national level. Such an argument, even if established, cannot affect the rules on the jurisdiction of the EU judicature as regards actions for damages and, in any event, contradicts the principle whereby States must be liable for loss and damage caused to individuals as a result of breaches of EU law for which the States can be held responsible (judgment of 19 November 1991, Francovich and Others, C‑6/90 and C‑9/90, EU:C:1991:428, paragraphs 35 and 36). Furthermore, the applicants have not demonstrated that, in the present case, there was a risk that the national courts which, moreover, according to the applicants’ statements, would have upheld their actions, would refuse to deal with actions for damages on the ground that the national authorities which adopted the annulled recovery measures were not responsible for damage alleged.
59      Sixth, as regards the fact, put forward on several occasions by the applicants, that OLAF had ‘omitted to mention’ that the national authorities not only had a margin of appreciation of the facts, but also that they bore the responsibility for incorrect collection, it must be stated that such a fact has no bearing on the present case, as national authorities are supposed to know what their own powers are.
60      Seventh, with regard to the second applicant’s travel expenses to Taiwan during OLAF’s mission, referred to as part of the second head of damage, it must be stated that they were incurred on that applicant’s initiative and outside the procedural context of OLAF’s investigation and cannot therefore be regarded as essential and directly connected with that investigation and even less as caused by OLAF. Moreover, the applicants have not submitted any evidence indicating the nature and exact amount of those expenses.
61      Eighth, as regards ‘the damage due to OLAF’s actions’, alleged by the applicants in a very general manner as part of the eighth head of damage, without necessarily linking that damage to the recovery action of the national authorities, it must be stated that, in any event, the applicants merely submit that ‘according to [a] study ... conducted using a conservative approach of the future development of margins, the damage due to OLAF’s actions concerning the lost margin/lost business value of [the first applicant] comes to an amount of EUR 8 084 000’ without adding any other explanation.
62      Even if the claim for damages, in so far as it seeks compensation for ‘the damage due to OLAF’s actions’ were admissible under Article 76(d) of the Rules of Procedure, it should be noted that the assessment provided by the study in question is based on the underlying assumption that, given that, before the financial year 2011, the first applicant’s turnover increased at an average annual rate of 21%, ‘according to the information provided by management it would have been reasonable that in the financial year 2011, turnover would have grown again by 23,3%’. It must be stated that such an argument which, furthermore, is not supported by more substantiated evidence, is not sufficient to demonstrate that ‘OLAF’s actions’ are responsible for that alleged damage.
63      Ninth, as regards the tenth head of damage, it should be noted that, in any event, the costs of the present proceedings cannot be recovered as damages (see, to that effect, judgments of 20 January 2010, Sungro v Council and Commission, T‑252/07, T‑271/07 and T‑272/07, EU:T:2010:17, paragraph 69; of 8 November 2011, Idromacchine and Others v Commission, T‑88/09, EU:T:2011:641, paragraph 98, and order of 17 May 2013, FH v Commission, T‑405/12, not published, EU:T:2013:265, paragraphs 37 and 38).
64      Finally, the absence of a direct causal link between OLAF’s conduct and the recovery procedures initiated by the national authorities following OLAF’s investigation, as has been established in paragraphs 42 to 59 above, includes a fortiori the absence of any causal link between OLAF’s conduct and the non-material damage which the second applicant allegedly suffered due to those procedures. In any event, the medical certificate provided by that applicant as the sole piece of evidence is not sufficient to demonstrate that the health problems attested therein are linked to those procedures and, even less, to OLAF’s conduct.
65      It follows from all of the foregoing that OLAF’s abovementioned recommendations were not the determining cause of the damage alleged by the applicants. Therefore, there is no causal link between the conduct alleged and the damage relied upon.
66      There can therefore be no liability on the part of the European Union, since, in accordance with the case-law cited in paragraph 38 above, the non-fulfilment of any one of the three conditions necessary for liability to arise is sufficient for the compensation claim to fail in the judgment in the present case.
67      In the light of all of the foregoing, the action must be dismissed.
Costs
68      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. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Remag Metallhandel GmbH and Mr Werner Jaschinsky to pay the costs.
Berardis
Spielmann
Csehi
Delivered in open court in Luxembourg on 23 May 2019.
E. Coulon
S. Gervasoni
Registrar
President
Table of contents
Background to the dispute
Procedure and forms of order sought
Law
Admissibility
Substance
The application for measures of organisation of procedure
The claim for damages
Costs
*      Language of the case: English.