62019CJ0591
JUDGMENT OF THE COURT (First Chamber)
10 June 2021 (
*1
)
(Appeal – Civil service – Internal investigation by the European Anti-fraud Office (OLAF) – Forwarding of information by OLAF to the national judicial authorities – Filing of a complaint by the European Commission – Concepts of an official who is ‘referred to by name’ and ‘implicated’ – Failure to inform the interested party – Commission’s right to file a complaint with the national judicial authorities before the conclusion of OLAF’s investigation – Action for damages)
In Case C‑591/19 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 1 August 2019,
European Commission, represented by B. Mongin and J. Baquero Cruz, acting as Agents,
appellant,
the other party to the proceedings being:
Fernando De Esteban Alonso, residing in Saint-Martin-de-Seignanx (France), represented by C. Huglo, avocat,
applicant at first instance,
THE COURT (First Chamber),
composed of J.‑C. Bonichot (Rapporteur), President of the Chamber, L. Bay Larsen, C. Toader, M. Safjan and N. Jääskinen, Judges,
Advocate General: A. Rantos,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after hearing the Opinion of the Advocate General at the sitting on 27 January 2021,
gives the following
Judgment
1
By its appeal, the European Commission seeks to have set aside the judgment of the General Court of the European Union of 11 June 2019, De Esteban Alonso v Commission (T‑138/18, EU:T:2019:398) (‘the judgment under appeal’), by which the General Court ordered it to pay Mr Fernando De Esteban Alonso the sum of EUR 62000 as compensation for the non-material harm which he claims to have sustained as a result of the unlawful conduct of the European Anti-fraud Office (OLAF) and the Commission.
Legal context
2
OLAF, which was established by Commission Decision 1999/352/EC, ECSC, Euratom of 28 April 1999 (OJ 1999 L 136, p. 20), is responsible, inter alia, pursuant to Article 2 of that decision, for carrying out administrative investigations within the institutions intended to combat fraud, corruption and any other illegal activity adversely affecting the Union’s financial interests and for investigating serious facts linked to the performance of professional activities which may constitute a breach of obligations by officials and servants of the Union likely to lead to disciplinary and, in appropriate cases, criminal proceedings.
Regulation (EC) No 1073/1999
3
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) governed the inspections, checks and other measures undertaken by employees of OLAF in the performance of their duties. The investigations conducted by OLAF consist of ‘external’ investigations – those carried out outside the EU institutions – and ‘internal’ investigations – those carried out within those institutions. That regulation, which applies ratione temporis to the facts of the present case, was repealed and replaced by Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by OLAF (OJ 2013 L 248, p. 1).
4
Recital 10 of Regulation No 1073/1999 stated:
‘Whereas these investigations must be conducted in accordance with the Treaty and in particular with the Protocol on the privileges and immunities of the European Communities, while respecting the Staff Regulations of officials and the conditions of employment of other servants … and with full respect for human rights and fundamental freedoms, in particular the principle of fairness, for the right of persons involved to express their views on the facts concerning them and for the principle that the conclusions of an investigation may be based solely on elements which have evidential value; whereas to that end the institutions, bodies, offices and agencies must lay down the terms and conditions under which such internal investigations are conducted; whereas consequently the Staff Regulations should be amended in order to lay down the rights and obligations of officials and other servants as regards internal investigations.’
5
Article 4 of that regulation, headed ‘Internal investigations’, provided:
‘1.   In the areas referred to in Article 1, [OLAF] shall carry out administrative investigations within the institutions, bodies, offices and agencies …
These internal investigations shall be carried out subject to the rules of the Treaties, in particular the Protocol on privileges and immunities of the European Communities, and with due regard for the Staff Regulations under the conditions and in accordance with the procedures provided for in this Regulation and in decisions adopted by each institution, body, office and agency. The institutions shall consult each other on the rules to be laid down by such decisions.
…
5.   Where investigations reveal that a member, manager, official or other servant may be personally involved, the institution, body, office or agency to which he belongs shall be informed.
In cases requiring absolute secrecy for the purposes of the investigation or requiring recourse to means of investigation falling within the competence of a national judicial authority, the provision of such information may be deferred.
…’
6
Article 9 of that regulation, headed ‘Investigation report and action taken following investigations’, provided:
‘1.   On completion of an investigation carried out by [OLAF], the latter shall draw up a report, under the authority of the Director, specifying the facts established, the financial loss, if any, and the findings of the investigation, including the recommendations of the Director of [OLAF] on the action that should be taken.
2.   In drawing up such reports, account shall be taken of the procedural requirements laid down in the national law of the Member State concerned. Reports drawn up on that basis shall constitute admissible evidence in administrative or judicial proceedings of the Member State in which their use proves necessary, in the same way and under the same conditions as administrative reports drawn up by national administrative inspectors. They shall be subject to the same evaluation rules as those applicable to administrative reports drawn up by national administrative inspectors and shall be of identical value to such reports.
3.   Reports drawn up following an external investigation and any useful related documents shall be sent to the competent authorities of the Member States in question in accordance with the rules relating to external investigations.
4.   Reports drawn up following an internal investigation and any useful related documents shall be sent to the institution, body, office or agency concerned. The institution, body, office or agency shall take such action, in particular disciplinary or legal, on the internal investigations, as the results of those investigations warrant, and shall report thereon to the Director of [OLAF], within a deadline laid down by him in the findings of his report.’
7
Article 10 of Regulation No 1073/1999, headed ‘Forwarding of information by [OLAF]’, stated:
‘1.   Without prejudice to Articles 8, 9 and 11 of this Regulation and to the provisions of [Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 on on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities (OJ 1996 L 292, p. 2)], [OLAF] may at any time forward to the competent authorities of the Member States concerned information obtained in the course of external investigations.
2.   Without prejudice to Articles 8, 9 and 11 of this Regulation, the Director of [OLAF] shall forward to the judicial authorities of the Member State concerned the information obtained by [OLAF] during internal investigations into matters liable to result in criminal proceedings. Subject to the requirements of the investigation, he shall simultaneously inform the Member State concerned.
3.   Without prejudice to Articles 8 and 9 of this Regulation, [OLAF] may at any time forward to the institution, body, office or agency concerned the information obtained in the course of internal investigations.’
Decision 1999/396/EC, ECSC, Euratom
8
Commission Decision 1999/396/EC, ECSC, Euratom of 2 June 1999 concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities’ interests (OJ 1999 L 149, p. 57) provides, in Article 4, headed ‘Informing the interested party’:
‘Where the possible implication of a Member, official or servant of the Commission emerges, the interested party shall be informed rapidly as long as this would not be harmful to the investigation. In any event, conclusions referring by name to a Member, official or servant of the Commission may not be drawn once the investigation has been completed without the interested party’s having been enabled to express his views on all the facts which concern him.
In cases necessitating the maintenance of absolute secrecy for the purposes of the investigation and requiring the use of investigative procedures falling within the remit of a national judicial authority, compliance with the obligation to invite the Member, official or servant of the Commission to give his views may be deferred in agreement with the President of the Commission or its Secretary-General respectively.’
Background to the dispute
9
Mr De Esteban Alonso is a former official of the Commission who has been retired since 1 August 2006 and who, inter alia, served as Director of the Information technology, Publications and External Relations Directorate at the Statistical Office of the European Union (Eurostat) from 1 January 1993 to 31 January 1997, before being appointed to another post at the Commission.
10
In order to distribute statistical data, Eurostat relied on the Office for Official Publications of the European Communities (OPOCE), which in 1996 had set up a network of sales outlets called ‘datashops’. The relationships between Eurostat, OPOCE and each datashop were organised by financial agreements. A Eurostat internal audit in September 1999 found irregularities in the financial management of contracts and gave rise to suspicions of misappropriation of funds. OLAF was informed on 17 March 2000 and opened a number of investigations.
11
In one of those investigations, which concerned the ‘Eurostat-Datashop-Planistat’ case, the Director-General of OLAF forwarded to the French judicial authorities, in a note dated 19 March 2003, information relating to matters liable to be characterised as criminal (‘the note of19 March 2003’). Mr Yves Franchet and Mr Daniel Byk, Director-General of Eurostat and Head of Unit at Eurostat, respectively, on that date and at the time of the facts at issue, were the only persons named in that note.
12
On 4 April 2003, the public prosecutor at the tribunal de grande instance de Paris (Regional Court, Paris, France) opened an investigation file in relation to the offences of misappropriation and complicity in breach of trust. The previous day, the Director-General of OLAF had sent a summary note to the Secretary-General of the Commission relating to the ongoing investigations concerning Eurostat. On 10 July 2003, the Commission filed a complaint ‘against X’ with the public prosecutor and applied to join the proceedings as a civil party.
13
On 25 September 2003, OLAF delivered its final report in the ‘Eurostat-Datashop-Planistat’ case, which was forwarded to the French judicial authorities. Mr De Esteban Alonso was not named in that report.
14
On 29 January 2004, in answer to a request from the public prosecutor, the Commission authorised the waiving of Mr De Esteban Alonso’s immunity, in accordance with the second paragraph of Article 17 of the Protocol on privileges and immunities. Mr De Esteban Alonso was not informed.
15
On 9 September 2008, following his examination as a witness by the police, Mr De Esteban Alonso was taken into police custody and, on the following day, placed under formal investigation for breach of trust.
16
On 9 September 2013, the investigating judge of the tribunal de grande instance de Paris (Regional Court, Paris) made an order (‘the dismissal order’) dismissing the proceedings against all the persons under investigation, including Mr De Esteban Alonso. The Commission’s appeal against that order was dismissed by the Cour d’appel de Paris (Court of Appeal, Paris, France) by judgment of 23 June 2014. By judgment of 15 June 2016, the Cour de cassation (Court of Cassation, France) dismissed the Commission’s appeal against that judgment.
17
On 15 September 2008, and then on 12 December 2013, Mr De Esteban Alonso submitted requests for assistance under Article 24 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), which the Commission refused. Mr De Esteban Alonso brought an action against the second refusal, which was dismissed by the European Union Civil Service Tribunal by order of 15 July 2015, De Esteban Alonso v Commission (F‑35/15, EU:F:2015:87), which, on appeal, was upheld by the General Court by judgment of 9 September 2016, De Esteban Alonso v Commission (T‑557/15 P, not published, EU:T:2016:456).
18
On 22 December 2016, Mr De Esteban Alonso lodged a claim under Article 90(1) of the Staff Regulations for compensation for the harm sustained as a result of OLAF’s and the Commission’s conduct. The appointing authority dismissed that claim as unfounded and Mr De Esteban Alonso filed a complaint against that decision to dismiss his claim. By decision of 29 November 2017, the appointing authority rejected that complaint.
The procedure before the General Court and the judgment under appeal
19
By document lodged at the General Court Registry on 28 February 2018, Mr De Esteban Alonso brought an action under Article 270 TFEU for compensation for the non-material, physical and material harm which he claims to have sustained as a result of errors made by OLAF and the Commission on the grounds, first, that he was not heard before the evidence against him was forwarded to the French authorities and, second, that the Commission prolonged the criminal proceedings against him without proper justification. In his estimation, that harm amounted to EUR 1 102 291.68.
20
By the judgment under appeal, the General Court found that the three conditions on which the liability of the European Union depends, namely the unlawfulness of the institutions’ alleged conduct, the actual harm suffered and the existence of a causal link between the conduct and the alleged harm were satisfied as regards part of the non-material harm. It therefore upheld in part Mr De Esteban Alonso’s in respect of that head of damage and ordered the Commission to pay him the sum of EUR 62000.
21
As regards the unlawful nature of OLAF’s and the Commission’s conduct, the General Court found, first, that OLAF had infringed the first paragraph of Article 4 of Decision 1999/396 and the rights of the defence when it forwarded the ‘Eurostat-Datashop-Planistat’ file to the French judicial authorities or, at least, had failed to comply with its obligation to inform Mr De Esteban Alonso in accordance with that provision. In view of the position which he held at the material time, Mr De Esteban Alonso should, according to the General Court, have been ‘treated in the same way’ as the persons ‘referred to by name’ in the conclusions drawn upon completion of OLAF’s investigation, for the purposes of the second sentence of the first paragraph of Article 4 of Decision 1999/396, or at least should have been regarded as being implicated in the matters that had given rise to that investigation and, accordingly, informed rapidly, pursuant to the first sentence of the first paragraph of Article 4 of that decision. Second, the General Court concluded that the Commission had infringed Article 9(4) of Regulation No 1073/1999 by filing a complaint and applying to join the proceedings before the French courts as a civil party before OLAF’s final report had been delivered, even though it did not have sufficient evidence.
22
As regards the non-material harm sustained by Mr De Esteban Alonso and the causal link between the unlawful conduct referred to above and that harm, the General Court held, in the first place, that the fact that the Commission had filed the complaint and applied to join the proceedings before the French judicial authorities as a civil party before OLAF’s investigation had been closed had damaged Mr De Esteban Alonso’s honour and professional reputation. In the second place, the General Court concluded that the fact that OLAF had forwarded the note of 19 March 2003 to those authorities without Mr De Esteban Alonso having been heard or, at the very least, informed had caused him non-material harm by depriving him of the opportunity to defend himself and to express his views on the facts that had led to the proceedings against him.
Forms of order sought by the parties before the Court of Justice
23
By its appeal, the Commission claims that the Court should set aside the judgment under appeal, dismiss the action brought at first instance by Mr De Esteban Alonso and order him to pay all of the costs of both sets of proceedings.
24
Mr De Esteban Alonso contends, primarily, that the Court should dismiss the appeal and, in the event that the judgment under appeal is set aside, uphold his action brought before the General Court in its entirety. He also contends that the Court should order the Commission to pay all of the costs.
The appeal
25
In support of its claims, the Commission raises three grounds of appeal.
The first ground of appeal
Arguments of the parties
26
The first ground of appeal alleges that the General Court erred in its legal characterisation of the facts by holding that Mr De Esteban Alonso should have been treated in the same way as the persons referred to by name in the note of 19 March 2003 or, at the very least, should have been regarded as being implicated in the acts complained of and, on that basis, informed of the investigations that might involve him, in accordance with Article 4 of Commission Decision 1999/396. The Commission submits that he does not fall within either category of persons.
27
The Commission claims that the note of 19 March 2003 did not name Mr De Esteban Alonso and nor did OLAF have any evidence in 2003 to suggest that he was implicated. In its judgment of 8 July 2008, Franchet and Byk v Commission (T‑48/05, EU:T:2008:257), the General Court concluded that there was an obligation to inform the two officials concerned in that case only because the note of 19 March 2003 contained conclusions which referred to them by name. That is precisely what distinguishes them from Mr De Esteban Alonso, who was not named in the note.
28
In order to be able to conclude that Mr De Esteban Alonso should nevertheless be treated in the same way as a person referred to by name or, at the very least, as being implicated, in paragraphs 76 and 83 of the judgment under appeal, respectively, the General Court relied on a body of information which was unknown to OLAF on the date on which the note of 19 March 2003 was forwarded and which appeared only in the dismissal order made by the national court 10 years later. However, the legality of a measure is to be assessed in the light of the information known to its author on the date of its adoption. The General Court unlawfully substituted itself for OLAF by examining the legality of the Commission’s conduct in the light of facts of which OLAF was unaware.
29
The only fact that was proven and indisputable on the date when that note was forwarded was that Mr De Esteban Alonso had been a Director at Eurostat from January 1993 until January 1997, a position which, hierarchically, placed him between two suspected officials. According to the Commission, that fact is not a sufficient basis for finding that ‘the implication [of Mr De Esteban Alonso] was more than likely’, as set out in paragraph 71 of the judgment under appeal, or that he should ‘be treated in the same way as the persons referred to by name in OLAF’s conclusions’, as the General Court stated in paragraph 77 of that judgment. The General Court confused persons whose evidence could be used in the investigation with those in relation to whom there were sufficiently serious suspicions. Those two categories of persons are in different legal situations, in particular as regards procedural safeguards. Similarly, on the date on which that note was forwarded, OLAF did not have sufficient evidence to be able to regard Mr De Esteban Alonso as being ‘implicated’. The ‘possibility of implication’ cannot be inferred from the mere fact that Mr De Esteban Alonso held a specific position within the service concerned.
30
According to Mr De Esteban Alonso, although he was not ‘referred to by name’ in the conclusions of the OLAF report, he was nonetheless ‘implicated’. The note of 19 March 2003 referred to him implicitly, but necessarily, given his capacity as Director of Information technology, Publications and External Relations and as Mr Byk’s superior. That is why an investigation file concerning him was opened on 4 April 2013 after OLAF forwarded the note to the French judicial authorities. Similarly, he was placed under formal investigation on the basis of the information contained in the note. Contrary to what is claimed by the Commission in its appeal, the General Court relied on the information that was contained in the note and merely corroborated by the dismissal order.
31
In its reply, the Commission contends that the note of 19 March 2003 contains no implicit reference to Mr De Esteban Alonso. As at that date, not even a remote connection had been established between Mr De Esteban Alonso and the subject of the investigation.
32
In his rejoinder, Mr De Esteban Alonso states that the Commission had discharged him from his duty of confidentiality, without his having been informed, from 29 January 2004, long before he was asked to appear before the investigating judge, which shows that the Commission was fully aware that he was implicated from the outset by the note of 19 March 2003.
Findings of the Court
33
By its first ground of appeal, the Commission claims that the General Court erred in its legal characterisation of the facts by regarding Mr De Esteban Alonso as being ‘referred to by name’, within the meaning of the first paragraph of Article 4 of Decision 1999/396, in the note of 19 March 2003 or, at the very least, as being ‘implicated’, within the meaning of that provision, which led to the obligation on OLAF to inform him of the possible case against him.
34
At the outset, it should be recalled that, as set out in that provision, ‘where the possible implication of a Member, official or servant of the Commission emerges, the interested party shall be informed rapidly as long as this would not be harmful to the investigation’ and ‘in any event, conclusions referring by name to a Member, official or servant of the Commission may not be drawn once the investigation has been completed without the interested party’s having been enabled to express his views on all the facts which concern him’.
35
That provision draws a distinction between two situations to which it attaches different legal consequences. First, a Commission official who is referred to by name by an OLAF investigation must be heard before conclusions concerning him are drawn on completion of the investigation. Second, a Commission official who is implicated must be informed rapidly as long as this would not be harmful to the investigation.
36
In either case, having regard to the purpose of Decision 1999/396 concerning the terms and conditions for internal investigations, a Commission official may be regarded as falling within the situations referred to in Article 4 of that decision only during an OLAF investigation or, at the latest, on its completion.
37
As regards, first, Mr De Esteban Alonso being treated in the same way as persons referred to by name, it is clear that he is not named in the note of 19 March 2003.
38
It is therefore by giving a broad interpretation to the concept of a person ‘referred to by name’ that the General Court gave Mr De Esteban Alonso that status. According to paragraph 77 of the judgment under appeal, such treatment is justified in view of the position he held at the material time, which meant that, hierarchically, he was positioned between his direct superior, Mr Franchet, Director of Eurostat, and his subordinate, Mr Byk, Head of Unit, both of whom were named in the note of 19 March 2003.
39
However, as the Advocate General observed in points 40 and 41 of his Opinion, such a broad interpretation of the concept of an official ‘referred to by name’ has the effect of confusing that concept with that of an official or servant who is ‘implicated’ and renders ineffective the distinction between the two scenarios set out in the first paragraph of Article 4 of Decision 1999/396. Consequently, the classification of Mr De Esteban Alonso as an official ‘referred to by name’ is based on an erroneous interpretation of that provision.
40
Accordingly, on the basis of an erroneous interpretation of the first paragraph of Article 4 of Decision 1999/396, the General Court erred in the legal characterisation of the facts by holding that Mr De Esteban Alonso was ‘referred to by name’ in the note of 19 March 2003, within the meaning of that provision.
41
As regards, second, the classification of Mr De Esteban Alonso as an official who was ‘implicated in the matters which gave rise to the present case’, adopted in the alternative by the General Court in paragraph 83 of the judgment under appeal, the following observations must be made.
42
In view of the temporal element attached to that classification, as is apparent from paragraph 36 above, the General Court could not, as the Commission submits, rely on information derived from the dismissal order.
43
From the findings of fact made in paragraphs 75 and 76 of the judgment under appeal, it follows only that it is apparent from the note of 19 March 2003 and from OLAF’s final report that Mr De Esteban Alonso held a senior position at Eurostat close to two persons named in that note and final report and that the note referred to ‘Community officials’ who were implicated without clearly identifying them. While those factors might have suggested that Mr De Esteban Alonso was capable of providing useful information in the context of a criminal investigation, they were not sufficient for him to be regarded as being ‘implicated’, that is to say, in the present case, as being a possible joint perpetrator of the fraudulent acts or breach of trust suspected to have been committed.
44
In that regard, it should be noted that Mr De Esteban Alonso’s personal liability for the matters complained of was so unclear from the note of 19 March 2003 and from OLAF’s final report that he was not placed under formal investigation by the French judicial authorities until 9 September 2008, and only after he was examined as a witness. The complaint against X filed by the Commission on 10 July 2003 with an application to join the proceedings as a civil party is not such as to call in question that assessment, since it was not directed at him personally.
45
It follows that the General Court’s assessment was vitiated by a second error in the legal characterisation of the facts when it held that, in the light of the outcome of the investigation, Mr De Esteban Alonso should be regarded as being implicated in the facts which were subject to investigation.
46
It follows from the foregoing that the first ground of appeal must be upheld.
The second ground of appeal
Arguments of the parties
47
The second ground of appeal alleges that the General Court erred in law in finding, in paragraphs 97 to 109 of the judgment under appeal, that Article 9(4) of Regulation No 1073/1999 prevented the Commission from filing a complaint and applying to join the proceedings before the national judicial authorities as a civil party before OLAF’s final report was lodged.
48
In the first place, Article 9(4) of Regulation No 1073/1999 merely provides that the institutions are to take ‘such action, in particular disciplinary or legal, as the results of the investigations warrant’, and does not prevent the Commission from referring the matter to the national criminal courts before the closure of OLAF’s investigation.
49
In the second place, the General Court’s interpretation leads to the paradoxical situation, not envisaged by the legislation, that, while there is no ongoing OLAF investigation, an institution is entirely free to file a complaint at any time, whereas it automatically loses that right as soon as an OLAF investigation has been opened until that investigation has been concluded.
50
In the third place, the complaint is not final and can be amended at any time.
51
In the fourth place, the Commission’s right to file a complaint and apply to join proceedings as a civil party arises directly from primary law, since it is enshrined in Article 335 TFEU, pursuant to which the Union, ‘represented by the Commission’, ‘enjoys the most extensive legal capacity accorded to legal persons under their laws … [and] may in particular … be a party to legal proceedings’. That right cannot be limited in any way by secondary legislation. It should therefore be open to the Commission to file a complaint at any time if it considers it appropriate to do so and provided that the conditions laid down by national law are satisfied.
52
In the fifth place, in paragraph 100 of the judgment under appeal, the General Court wrongly inferred from Article 25 of Annex IX to the Staff Regulations that information could not be forwarded to a judicial authority allowing national criminal proceedings to be initiated or extended before the closure of OLAF’s investigation.
53
In the sixth place, beyond the General Court’s erroneous interpretation of Article 9(4) of Regulation No 1073/1999, the Commission submits that there is no valid reason for limiting the Commission’s right to file a complaint before the national courts. First, under French law, apart from cases where the complainant has sufficient evidence to bring the matter directly before the criminal court by means of a direct summons, the complaint is the only way for the complainant to obtain compensation. Second, a complaint under French law is not necessarily filed against identified persons. It could be lodged against X, which the Commission specifically took the precaution to do in the present case. Third, it may be necessary to file a complaint at the beginning of an investigation in order to safeguard the Commission’s rights, irrespective of the uncertainties of an administrative investigation over which the Commission does not have control, particularly as regards its duration. Practically, the General Court’s interpretation has the consequence of transferring to OLAF the power to file a complaint, which the EU legislature never envisaged.
54
Mr De Esteban Alonso maintains that the General Court held, in paragraphs 123 to 125 of the judgment of 8 July 2008, Franchet and Byk v Commission (T‑48/05, EU:T:2008:257), that the note of 19 March 2003 concerned an internal investigation. It was on the basis of that note that his immunity was waived and he was called as a witness in the context of the execution of letters rogatory. Consequently, in accordance with that judgment and the internal provisions specific to OLAF, he should have been informed and heard regarding the facts concerning him before that note was forwarded to the French judicial authorities.
55
The protections afforded by disciplinary proceedings must necessarily apply, particularly where the action taken in an internal investigation leads to the matter being referred to a national judicial authority. The obligation to await the conclusions of the internal investigation report before referring the matter to a court and the obligation to allow the person who is the subject of that investigation to be informed of the complaints made against him are procedural guarantees which are essential for the protection of fundamental rights and do not deprive the Commission of its right to effective judicial protection. Accordingly, paragraph 109 of the judgment under appeal is not vitiated by an error of law.
Findings of the Court
56
As a preliminary point, it should be recalled that, under Article 9(4) of Regulation No 1073/1999, ‘reports drawn up following an internal investigation and any useful related documents shall be sent to the institution, body, office or agency concerned’ and ‘the institution, body, office or agency shall take such action, in particular disciplinary or legal, on the internal investigations, as the results of those investigations warrant, and shall report thereon to the Director of [OLAF], within a deadline laid down by him in the findings of his report’.
57
First of all, it is clear that, as the General Court observed in paragraph 100 of the judgment under appeal, neither the aforementioned provision nor any other provision expressly prohibits the institution concerned from referring the matter to the judicial authority before the end of OLAF’s investigation if it considers that it has information or material that might warrant the opening of a judicial investigation or constitute evidence relevant to such an investigation.
58
Next, as the Advocate General observed in point 59 of his Opinion, nor can such a prohibition be inferred from the wording of Article 9(4) of Regulation No 1073/1999. That provision merely lays down an obligation on the institution concerned to take such action, in particular legal action, as the results of OLAF’s internal investigations warrant, and is not intended to limit the Commission’s power to initiate legal proceedings before the end of OLAF’s investigation or participate, in particular as a civil party, in judicial proceedings.
59
Lastly, neither the fact, even if it were established, that the Commission was unable to initiate disciplinary proceedings before OLAF’s investigations had been closed, nor Article 25 of Annex IX to the Staff Regulations, which provides that, ‘where the official is prosecuted for those same acts, a final decision shall be taken only after a final judgment has been handed down by the court hearing the case’, concerns the question whether an institution such as the Commission may file a complaint before the national judicial authority before the end of OLAF’s investigation. Consequently, the General Court erred in considering that it could find support for its interpretation of Article 9(4) of Regulation No 1073/1999.
60
It follows from the foregoing that the General Court erred in law in finding that Article 9(4) of Regulation No 1073/1999 prohibits the Commission from filing a complaint and applying to join the proceedings before a national court as a civil party before the delivery of OLAF’s final report.
61
However, although Article 9(4) of Regulation No 1073/1999 does not limit the Commission’s right to file a complaint against one of its officials, the Commission must take into account its duty to have regard for that official’s welfare. That duty reflects the balance of the reciprocal rights and obligations established by the Staff Regulations in the relationship between civil servants and their administration. Together with the principle of sound administration, it implies in particular that when the authority takes a decision concerning the situation of an official, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned (judgments of 23 October 1986, Schwiering v Court of Auditors, 321/85, EU:C:1986:408, paragraph 18, and of 4 February 1987, Maurissen v Court of Auditors, 417/85, EU:C:1987:61, paragraph 12).
62
In the light of its duty to have regard for the welfare of officials, where an OLAF investigation has been opened and is still ongoing, the Commission may file a complaint against one of its officials in which that official is named without running the risk of making an error of assessment only if the results of that investigation are already sufficiently foreseeable to be anticipated and it appears somewhat doubtful that that official is implicated. In the present case, however, no such criticism for having done so can be levelled against the Commission, since the complaint it filed with its application to join the proceedings as a civil party did not refer to Mr De Esteban Alonso, but was directed against X.
63
It follows from the foregoing that the second ground of appeal must also be upheld.
The third ground of appeal
Arguments of the parties
64
By the third ground of appeal, which is raised in the alternative, the Commission submits that the General Court could not uphold Mr De Esteban Alonso’s action for damages in the absence of a sufficiently direct causal link between the Commission’s conduct and the harm alleged.
65
According to the judgment of 4 October 2006, Tillack v Commission (T‑193/04, EU:T:2006:292, paragraph 70), OLAF’s final reports constitute only recommendations or opinions which do not have the effect of binding the national judicial authority as to the action to be taken. It is for the national judicial authorities alone to decide on the type of action to be taken. Referring to paragraphs 122 to 125 of that judgment, the Commission maintains that, for that reason, the General Court was entitled to hold that the applicant had not established the existence of a sufficiently direct causal link between the forwarding of information by OLAF to the national judicial authorities, pursuant to Article 10(2) of Regulation No 1073/1999, and the harm alleged. That reasoning should apply by analogy to the Commission’s complaint against X and the application to join the proceedings as a civil party at issue in the present case.
66
Furthermore, neither the note of 19 March 2003 nor OLAF’s final report named Mr De Esteban Alonso nor enabled him to be identified as having participated in the facts complained of. Moreover, the Commission filed a complaint against X and not against Mr De Esteban Alonso. It was only after the intervention of the national authorities and, specifically, the decision to place him under formal investigation that Mr De Esteban Alonso was directly implicated. The forwarding of the note of 19 March 2003 was therefore not the cause of the ‘feeling of injustice, helplessness and frustration’ of which Mr De Esteban Alonso complains, contrary to what is stated in paragraph 131 of the judgment under appeal. The General Court also erred, in paragraph 130 of that judgment, in attributing the harm to Mr De Esteban Alonso’s honour and professional reputation to the Commission’s complaint, rather than to his being placed under formal investigation by the judicial authorities.
67
Mr De Esteban Alonso states that non-material harm resulting from an agent’s state of uncertainty and anxiety, unduly prolonged by a Commission decision, has previously been recognised by case-law. In its judgment of 8 July 2008, Franchet and Byk v Commission (T‑48/05, EU:T:2008:257), the General Court held that the applicants had suffered feelings of injustice and frustration and sustained a slur on their honour and professional reputation on account of the unlawful conduct of OLAF and the Commission and, consequently, ordered the Commission to make good that non-material harm. In the present case, the decision to initiate judicial proceedings even though OLAF’s internal investigation was not yet closed, then to appeal against the dismissal order and to lodge an appeal on a point of law, although the Commission did not have sufficiently precise and relevant information, necessarily caused very serious damage to Mr De Esteban Alonso’s integrity and professional reputation.
Findings of the Court
68
According to the third ground of appeal, the General Court erred in law in upholding the applicant’s action for damages when there was no causal link between, on the one hand, the forwarding of the note of 19 March 2003 to the French judicial authorities and the Commission’s decision to file a complaint ‘against X’ without informing Mr De Esteban Alonso and, on the other, the non-material harm alleged by him.
69
It is true that the General Court held, in paragraph 130 of the judgment under appeal, that the fact that the Commission filed a complaint and applied to join the proceedings before the French judicial authorities as a civil party before the closure of OLAF’s investigation had caused Mr De Esteban Alonso damage to his honour and professional reputation and that that harm was the direct result of the Commission’s conduct. In the following paragraph of its judgment, the General Court held that the fact that OLAF forwarded to those judicial authorities the note of 19 March 2003 implicating Mr De Esteban Alonso without him having been heard or, at the very least, informed caused him non-material damage resulting from not having been able to defend himself or express his views on the facts which led to the proceedings against him, and that that harm was the result of OLAF’s unlawful conduct.
70
However, neither the damage to Mr De Esteban Alonso’s honour and professional reputation nor the feeling of injustice, helplessness and frustration which he experienced, according to paragraph 131 of the judgment under appeal, resulting from the fact that he was not given the opportunity to be heard, is the direct consequence of OLAF’s or the Commission’s conduct. It should be borne in mind that the note of 19 March 2003 neither named Mr De Esteban Alonso nor enabled him to be identified and that the Commission’s complaint, in addition to being directed not against him but against X, did not name him either. It is, by contrast, the placing of Mr De Esteban Alonso under formal investigation, which was decided upon by the French authorities in 2008, and then his trial, which directly caused the harm alleged.
71
It follows that the General Court erred in finding a direct causal link between OLAF’s and the Commission’s conduct during 2003 and the non-material harm sustained by Mr De Esteban Alonso.
72
Accordingly, the third ground of appeal must also be upheld.
73
It follows from all of the foregoing that the judgment under appeal must be set aside.
The action before the General Court
74
Under the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, where the Court of Justice quashes the decision of the General Court, it may itself give final judgment in the matter where the state of the proceedings so permits.
75
In the present case, it is appropriate for the Court to give final judgment in the matter, as the state of the proceedings so permits.
76
It follows from the foregoing that OLAF did not act unlawfully in deciding to forward the note of 19 March 2003 to the national judicial authorities and that the Commission did not infringe Article 9(4) of Regulation No 1073/1999 by filing a complaint and applying to join the proceedings before those authorities as a civil party on 10 July 2003. Furthermore, as the General Court held, the applicant has not demonstrated to the requisite legal standard that the Commission committed a wrongful act by challenging the dismissal order before the French criminal courts, on appeal and then in cassation proceedings.
77
Consequently, the first condition for the European Union to incur liability, namely the unlawfulness of the institutions’ alleged conduct, has not been satisfied. The action must therefore be dismissed, without the need to examine the other conditions for the European Union to incur liability.
Costs
78
Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and where the Court itself gives final judgment in the case, it is to make a decision as to the costs.
79
In the present case, account must be taken of the fact that the applicant was placed under formal investigation in criminal proceedings initiated by OLAF and the Commission which lasted eight years and which did not proceed to judgment. In those circumstances, each party must be ordered to bear its own costs relating to both the proceedings at first instance and on appeal.
On those grounds, the Court (First Chamber) hereby:
1.
Sets aside the judgment of the General Court of the European Union of 11 June 2019, De Esteban Alonso v Commission (T‑138/18, EU:T:2019:398);
2.
Dismisses the action in Case T‑138/18;
3.
Orders each party to bear its own costs relating to both the proceedings at first instance and on appeal.
[Signatures]
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*1
)	Language of the case: French.