ORDER OF THE GENERAL COURT (Fourth Chamber)
22 December 2022
(*)
(Civil service – OLAF investigation – Acts adopted by OLAF – Identification of the defendant – No act adversely affecting the applicant – Article 76(d) of the Rules of Procedure – Inadmissibility)
In Case T‑692/21,
AL, represented by R. Rata, lawyer,
applicant,
v
European Commission, represented by T. Bohr, J. Baquero Cruz and A.‑C. Simon, acting as Agents,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos, President, N. Półtorak (Rapporteur) and T. Pynnä, Judges,
Registrar: E. Coulon,
having regard to the written part of the procedure,
makes the following
Order
1        By his action based on Article 270 TFEU, the applicant, AL, seeks, first, the annulment of (i) various acts adopted by the European Anti-Fraud Office (OLAF) in the context of an investigation concerning him and by which OLAF rejected, inter alia, two complaints lodged by him against the final report and
recommendations made in that investigation, (ii) the European Commission’s note of 3 March 2021 by which the Commission had informed him of its intention to recover certain allowances that had been paid to him (‘the note of 3 March 2021’), (iii) the Commission decision of 22 March 2021 by which it decided to recover those allowances (‘the decision of 22 March 2021’), (iv) the Council of the European Union’s internal note of 22 January 2021 recommending the opening of disciplinary proceedings against him (‘the Council’s internal note’) and, secondly, compensation for the material and non-material damage that he claims to have suffered as a consequence of the recovery of various sums from his salary during 2021 and of the alleged illegal conduct of the OLAF investigation concerning him and its ensuing consequences.
Background to the dispute
2        The applicant is an official in the General Secretariat of the Council (‘the GSC’) [confidential]. (1)
3        Following a request made by the applicant, various allowances were granted to him between 2009 and 2019 in so far as his mother and three other persons were treated as dependent children within the meaning of Article 2(4) of Annex VII to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).
4        On 22 July 2020, the applicant was informed by OLAF that he was the subject of an investigation opened at the end of 2016, concerning possible fraud relating to his declaration of family composition and the requirements for obtaining the corresponding family allowances.
5        In December 2020, OLAF provided the applicant and the GSC with the final report of the investigation concerning the applicant (‘OLAF’s final report’) and two recommendations (‘OLAF’s recommendations’). The first concerned the recovery of sums which OLAF considered to have been unduly paid to the applicant by virtue of the allowances referred to in paragraph 3 above and the second concerned the opening of disciplinary proceedings.
6        On 22 January 2021, the Director-General for Administration of the Council sent the Council’s internal note to the Office for the Administration and Payment of Individual Entitlements (PMO), which note contained a number of suggestions for the implementation of OLAF’s recommendations.
7        On 10 February 2021, the Appointing Authority of the Council (AIPN) decided, in accordance with the provisions of Article 3 of Annex IX to the Staff Regulations, to initiate disciplinary proceedings against the applicant.
8        By the note of 3 March 2021, the PMO of the Commission informed the applicant that, following OLAF’s recommendations, the amounts unduly received, corresponding to a total amount, excluding interest, of EUR 142 824.71, would be recovered. The applicant was also informed that he had the opportunity to submit his observations on that decision within 15 days of its notification, failing which that formal notification would be regarded as a final decision.
9        On 19 March 2021, the applicant sent detailed observations to the PMO.
10      By the decision of 22 March 2021, the PMO informed the applicant that, having regard to OLAF’s final report and after analysis of his observations, it had been decided to implement the note of 3 March 2021 and to issue the corresponding recovery order.
11      On 23 March 2021, the applicant lodged a complaint under the second sentence of Article 90a of the Staff Regulations against OLAF’s final report and OLAF’s recommendations, which complaint was registered by OLAF on the same day and rejected by OLAF on 22 July 2021 as inadmissible (‘the rejection of the complaint of 23 March 2021’).
12      On 23 April 2021, the applicant lodged a complaint against, first, the Council’s internal note and, secondly, the decision of 22 March 2021 (‘the complaint of 23 April 2021’). That complaint was rejected as inadmissible, respectively by the GSC on 19 July 2021 and by OLAF, with which it had been lodged, on 22 July 2021 (‘the rejection of the complaint of 23 April 2021’).
13      On 4 June 2021, the applicant lodged a complaint under Article 90(2) of the Staff Regulations, contesting the note of 3 March 2021. That complaint was rejected by the Directorate-General for Human Resources on 4 October 2021, as inadmissible.
14      On 22 June 2021, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the decision of 22 March 2021. That complaint was rejected by the Directorate-General for Human Resources on 22 October 2021.
15      On 27 September 2021, at the end of the disciplinary proceedings, the AIPN of the Council adopted the sanction of removal from post in respect of the applicant, in accordance with Article 9(1)(h) of Annex IX to the Staff Regulations.
16      Following the order of the President of the General Court of 31 March 2022, AL v Council (T‑22/22 R, not published), granting suspension of the operation of the decision of removal from post, the applicant was reinstated in his post with effect from 1 October 2021.
Forms of order sought
17      In the application, the applicant claims, in essence, that the Court should:
–        annul the rejection of the complaint of 23 March 2021 and the rejection of the complaint of 23 April 2021;
–        annul the acts adopted by OLAF in relation to the investigation concerning him;
–        annul the note of 3 March 2021 and the decision of 22 March 2021;
–        order the Commission to pay him EUR 1 127.66 in respect of the sum deducted from his salary for the month of February 2021 and EUR 9 250.05 in respect of the sum deducted from his salary for the months of May to September 2021;
–        order the Commission to pay him the sum of one euro in compensation for the non-material damage suffered as a result of the investigation against him and which led to his dismissal;
–        order the Commission to pay the costs.
18      In the plea of inadmissibility raised under Article 130 of the Rules of Procedure of the General Court, the Commission contends that the Court should:
–        dismiss the action as manifestly inadmissible;
–        order the applicant to pay the costs.
Law
19      Under Article 130(1) and (7) of the Rules of Procedure, on application by the defendant, the Court may decide on inadmissibility or lack of competence without going to the substance of the case. In the present case, since the Commission has applied for a decision on inadmissibility and the Court considers that it has sufficient information from the documents in the file, the Court has decided to rule on that application without taking further steps in the proceedings. Moreover, under Article 126 of the Rules of Procedure, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
The subject matter of the claims for annulment
20      According to settled case-law, claims for annulment formally directed against the decision rejecting a complaint have the effect of bringing before the Court the act against which the complaint was submitted, where those claims, in themselves, have no independent content (see judgment of 26 March 2020, Teeäär v ECB, T‑547/18, EU:T:2020:119, paragraph 24 and the case-law cited).
21      In particular, it is apparent from the case-law that a decision that merely dismisses a complaint as inadmissible, on the ground that there is no act adversely affecting the applicant, has no independent content (see, to that effect, order of 31 March 2020, ZU v EEAS, T‑499/19, not published, EU:T:2020:134, paragraph 48.
22      In the present case, by his first head of claim, the applicant seeks annulment of the rejection of the complaint of 23 March 2021 and of the rejection of the complaint of 23 April 2021. However, first, by the rejection of the complaint of 23 March 2021, the Director-General of OLAF merely rejected that complaint as inadmissible on the ground that it was directed against OLAF’s recommendations and against OLAF’s final report, which did not constitute acts adversely affecting the applicant. Secondly, by the rejection of the complaint of 23 April 2021, the Director-General of OLAF merely rejected that complaint as inadmissible, primarily on the ground that it related to the decision of 22 March 2021 and to the Council’s internal note, which did not fall within his competence and, as a subsidiary ground, that even if that complaint were directed against OLAF’s recommendations, those recommendations did not constitute acts adversely affecting the applicant.
23      It follows that the rejection of the complaint of 23 March 2021 and the rejection of the complaint of 23 April 2021 are purely confirmatory of the measures referred to in those complaints and are, therefore, devoid of any independent content. There is therefore no need to rule specifically on the claims for annulment of the rejection of the complaint of 23 March 2021 and of the rejection of the complaint of 23 April 2021.
24      Consequently, the claim for annulment must be regarded as being directed solely against OLAF’s recommendations and OLAF’s final report, referred to in the complaint of 23 March 2021 and in the second head of claim, the note of 3 March 2021, referred to in the third head of claim, the decision of 22 March 2021, referred to in the complaint of 23 April 2021 and in the third head of claim, and the Council’s internal note, referred to in the complaint of 23 April 2021.
Admissibility of the action
The claims directed against the acts adopted by OLAF
25      The Commission claims, in essence, that an action cannot be directed against acts adopted by OLAF.
It submits, first, that it is apparent from settled case-law that the final report and the recommendations drawn up in the context of OLAF’s investigations do not constitute acts producing legal effects capable of affecting a person’s interests for the purposes of Article 90a of the Staff Regulations. Moreover, it adds that, in the present case, the PMO carried out its own assessment of the dispute with regard to OLAF’s recommendations, which are non-binding.
Secondly, it submits that the applicant may, in any event, contest OLAF’s final report incidentally by bringing an action against an adopted act adversely affecting him and which would be part of the follow-up of that report.
26      The applicant submits that OLAF’s contested acts adversely affect him for three reasons. First, he asserts that the recovery recommendations set out by OLAF directly affected him, since the PMO simply implemented them by commencing recovery of the sums at issue without adopting any decision in that regard prior to March 2021. Thus, he considers that those recommendations caused him financial loss amounting to EUR 1 127.66, which corresponds to the amount recovered directly from his salary in the absence of an independent decision adopted by the PMO. Secondly, he considers that the AIPN was obliged to follow the final report and the recommendations that had been made. Thirdly, he claims that he was kept at grade AST 3 for an excessive length of time because of OLAF’s investigation concerning him.
27      Under Article 91(1) of the Staff Regulations, the Court of Justice of the European Union has jurisdiction in any dispute between the European Union and any person to whom the Staff Regulations apply regarding the legality of an act affecting such person adversely, within the meaning of Article 90(2) of the Staff Regulations.
According to the case-law, an applicant is adversely affected, for the purposes of Article 90(2) of the Staff Regulations, only by measures which produce binding legal effects such as to affect his or her interests by bringing about a distinct change in his or her legal position (see judgment of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 44 and the case-law cited).
28      In that regard, the final nature of an OLAF report in terms of the procedure governing investigations carried out by that office does not thereby confer on it the nature of an act producing binding legal effects (see order of 25 October 2018, UI v Commission, T‑370/18, not published, EU:T:2018:770, paragraph 11 and the case-law cited).
29      The reports by which OLAF’s investigations are completed and the drawing up and delivery of which complete its task contain, apart from the narrative of the facts established, a statement of the findings which are drawn from them and recommendations as to the action, in particular disciplinary measures and those involving criminal proceedings which may, in OLAF’s view, be taken pursuant to the reports. Those conclusions and recommendations are addressed to the competent authorities of the Member States and to the institutions concerned in order that they may decide whether or not to act on them.
While OLAF may recommend in its reports that measures be adopted having binding legal effects adversely affecting the persons concerned, the opinion it provides in that regard imposes no obligation, even of a procedural nature, on the authorities to which it is addressed (order of 25 October 2018, UI v Commission, T‑370/18, not published, EU:T:2018:770, paragraph 12).
30      It is apparent, in that regard, from recital 31 and Article 11(4) of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by 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), that the findings of OLAF which are set out in a final report do not 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 are accordingly the only authorities having the power to adopt decisions capable of affecting the legal position of those persons in relation to which the report recommended that such proceedings be instigated (see order of 25 October 2018, UI v Commission, T‑370/18, not published, EU:T:2018:770, paragraph 13 and the case-law cited).
31      In that context, any infringements of a procedural or substantive nature which are purported to vitiate the final report of an OLAF investigation cannot confer on that report the status of an act adversely affecting the applicant.
A challenge lies against such infringements only in support of an action directed against a subsequent challengeable act, to the extent that they have influenced its content, and not independently, in the absence of such an act (see order of 25 October 2018, UI v Commission, T‑370/18, not published, EU:T:2018:770, paragraph 14 and the case-law cited).
32      In the present case, the applicant is wrong to argue, in particular, that OLAF’s recovery recommendations led automatically to the opening of a financial recovery procedure and, in themselves, caused him financial loss. In accordance with the case-law set out in paragraphs 28 to 31 above, the recovery of the sums at issue stems not from OLAF’s recommendations but from the decision of 22 March 2021, adopted by the PMO.
33      Thus, OLAF’s final report and OLAF’s recommendations cannot be regarded as acts adversely affecting the applicant.
Consequently, the action must be dismissed as inadmissible in so far as it seeks the annulment of those acts.
34      In the light of all the foregoing, the action must be dismissed as inadmissible in so far as it seeks the annulment of the acts adopted by OLAF.
The claims directed against the Council’s internal note
35      According to well-established case-law, any appeal must be brought against the institution from which the act having an adverse effect emanated and is inadmissible against other institutions (see, to that effect, judgment of 4 October 2018, Constantinescu v Parliament, T‑17/17, EU:T:2018:645, paragraph 30, and order of 17 December 2020, IM v EIB and EIF, T‑80/20, not published, EU:T:2020:636, paragraph 25). In the present case, whilst the Council’s internal note emanates from the Council, the applicant brought his action exclusively against the Commission. Consequently, the claims directed against the Council’s internal note must be rejected as manifestly inadmissible.
The claims directed against the note of 3 March 2021 and the decision of 22 March 2021
36      In his third head of claim, the applicant seeks the annulment of the note of 3 March 2021 and of the decision of 22 March 2021.
37      The Commission contends that the action is manifestly inadmissible as regards those two decisions.
The note of 3 March 2021
38      As noted in paragraph 27 above, an applicant is adversely affected, for the purposes of Article 90(2) of the Staff Regulations, only by measures which produce binding legal effects such as to affect his or her interests by bringing about a distinct change in his or her legal position.
39      It should be observed, as the Commission emphasises, that the note of 3 March 2021 sought to inform the applicant of the measures that the PMO was contemplating, following OLAF’s recommendations, concerning the recovery of a number of family allowances that had been paid to him. The informative nature of the note of 3 March 2021 is borne out by the fact that the applicant was given an opportunity, as indicated in that note, to submit observations on those measures within a period of 15 days.
40      Thus, it was only after the applicant had actually submitted his observations on 19 March 2021 that the Commission adopted the decision of 22 March 2021 by which, in essence, it implemented the measures contemplated in the note of 3 March 2021. The note of 3 March 2021, which precedes the decision of 22 March 2021, must therefore be regarded as a preparatory act.
41      Consequently, the note of 3 March 2021 does not contain a definitive position adopted by the Commission and does not therefore constitute an act adversely affecting the applicant, with the result that the action must be dismissed as inadmissible in so far as it seeks annulment of the note of 3 March 2021.
The decision of 22 March 2021
42      It must be borne in mind that, under Article 76(d) of the Rules of Procedure, the application must contain the pleas in law and arguments relied on and a summary of those pleas in law.
Those elements must be sufficiently clear and precise to enable the defendant to prepare its defence and to enable the Court to rule on the action, if necessary without any further information.
In order to guarantee legal certainty and the sound administration of justice it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated coherently and intelligibly in the application itself (order of 13 May 2020, Lucaccioni v Commission, T‑308/19, not published, EU:T:2020:207, paragraph 34, and judgment of 8 December 2021, JP v Commission, T‑247/20, not published, EU:T:2021:871,
paragraph 139).
43      Thus, the applicant is required to set out in a sufficiently systematic manner the arguments relating to each plea in law on which it relies, and the Court is not obliged, because of the lack of structure of the application or lack of rigour on the part of the applicant, to reconstruct the legal structure intended to support a plea by bringing together various diffuse elements of the application, at the risk of reconstructing that plea by giving it a scope which it did not have in the mind of that party. To decide otherwise would be contrary both to the principle of the sound administration of justice and the principle that the subject matter of an action is delimited by the parties and to the defendant’s rights of defence (orders of 13 May 2020, Lucaccioni v Commission, T‑308/19, not published, EU:T:2020:207, paragraph 35, and of 15 February 2022, eSlovensko Bratislava v Commission, T‑425/21, not published, EU:T:2022:79, paragraph 13).
44      In the present case, in so far as he
seeks annulment of the decision of 22 March 2021, it should be noted that the applicant confines himself, in the context of the third plea, to describing the events which preceded that decision, making unstructured assertions to the effect that that decision constitutes a challengeable act and deploring the
consequences of that decision, without providing any legal argument such as to demonstrate its illegality.
45      In that context, the condition laid down in Article 76(d) of the Rules of Procedure, that the application must contain the pleas in law and arguments relied on and a summary of those pleas in law, is therefore manifestly not satisfied.
46      That conclusion is not called into question by the applicant’s argument that the PMO failed to respond expressly, within the period of four months laid down by the second subparagraph of Article 90(2) of the Staff Regulations, to the part of the complaint of 23 April 2021 that seeks to challenge the decision of 22 March 2021. Even if it were to be held that that failure results in the adoption of an implied decision rejecting in part the complaint of 23 April 2021, that finding, even if established, cannot be regarded as an argument capable of calling into question the legality of the decision of 22 March 2021.
47      It follows from the foregoing that the applicant’s head of claim seeking annulment of the note of 3 March 2021 and of the decision of 22 March 2021 is inadmissible.
The claims for damages
48      The applicant seeks, first, compensation for the material damage that he believes he has suffered as a consequence of the recovery of various sums from his salary for the month of February 2021 and then from his salary for the months of May to September 2021 and, secondly, compensation for the non-material damage that he believes he has suffered as a result of the ‘illegal conduct’ of the investigation concerning him and its ensuing consequences.
49      In its plea of inadmissibility, the Commission contends that the applicant’s claim for damages is inadmissible as a consequence of the inadmissibility of the claims for annulment of the contested acts.
50      As pointed out in paragraphs 42 and 43
above, any application must state the subject matter of the proceedings and a summary of the pleas in law relied on.
That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary, without other supporting information.
More specifically, in order to satisfy those requirements, an application for compensation for damage said to have been caused by an EU institution must indicate the evidence from which the conduct which the applicant alleges against the institution can be identified, the reasons why the applicant considers that there is a causal link between the conduct and the damage that it claims to have sustained, and the nature and extent of that damage (see judgment of 7 October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph 53 and the case-law cited).
51      However, in the present case, as regards both the alleged material damage stemming from the sums recovered from the applicant’s salary for the months of February and of May to September 2021 and the non-material damage alleged, it must be held that the applicant has not put forward the slightest argument capable of substantiating his assertions that those recoveries decided by the PMO were illegal, and that OLAF was guilty of illegal acts in the conduct of the investigation concerning the applicant.
52      Thus,
it is not possible, from the wording of the application, to identify with sufficient precision the error or errors which OLAF and the PMO are alleged to have made
and which
are said to have brought about the harm
purportedly
suffered by the applicant.
53      Consequently, the claims for damages must be rejected as inadmissible.
54      It follows from the foregoing that the present action must be dismissed as being, in part, manifestly inadmissible, on the basis of Article 126 of the Rules of Procedure and, in part, inadmissible, on the basis of Article 130 of the Rules of Procedure.
55      In those circumstances, there is no longer any need to rule on the application for leave to intervene lodged by the Council in the present case.
Costs
56      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. Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
57      In addition, under Article 144(10) of the Rules of Procedure, the Council must bear its own costs relating to the application to intervene.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1.      The action is dismissed.
2.      There is no need to rule on the application for leave to intervene lodged by the Council of the European Union.
3.      AL shall bear his own costs and pay the costs incurred by the European Commission.
4.      The Council shall bear its own costs relating to the application for leave to intervene.
Luxembourg, 22 December 2022.
E. Coulon
R. da Silva Passos
Registrar
President
*      Language of the case: English.
1 Confidential information redacted.