Case T‑562/12

John Dalli

v

European Commission

‛Member of the Commission — OLAF investigation — Alleged oral decision of the President of the Commission to require the resignation of the person concerned — Action for annulment — No actionable measure — Inadmissibility — Action for damages’

Summary — Judgment of the General Court (Third Chamber, Extended Composition), 12 May 2015

In an application for withdrawal of documents from the file of a case before the EU judicature, neither the fact that the documents in question may be confidential nor the fact that they may have been obtained unlawfully precludes their remaining in the case-file. First, there is no provision that expressly prohibits evidence obtained unlawfully from being taken into account. Even internal documents may, in certain cases, lawfully be placed on the case-file. Thus, in certain situations, it is not necessary for an applicant to show that he has obtained by lawful means the confidential document relied on in support of his action. It needs to be assessed, when weighing up the interests to be protected, whether particular circumstances, such as the decisive nature of the production of the document for the purpose of reviewing the lawfulness of the procedure leading to the adoption of the contested measure or of establishing the existence of a misuse of powers constitute grounds for not withdrawing a document. (see paras 47, 48)

See the text of the decision. (see paras 56-60)

In an annulment action, where the applicant produces no proof or evidence of the existence of the alleged decision, the application for annulment must be rejected as inadmissible on the ground that there is no challengeable act for the purposes of Article 263 TFEU. In an annulment action against an alleged decision of the President of the Commission to use his power under Article 17(6) TEU to demand the resignation of a Commissioner, the fact that the President told the person concerned, increasingly insistently in the face of the latter’s reluctance and hesitation, that it would be more honourable for him to resign voluntarily than to be asked to do so, does not suffice to establish the existence of the alleged contested decision. As long as a request for resignation under Article 17(6) TEU has not been clearly formulated, there is no request to that effect which is capable of affecting the applicant’s interests by significantly altering his legal situation. (see paras 66, 67, 145, 146)

As regards the prerogative of the Commission President to demand the resignation of a Commissioner, in accordance with Article 17(6) TEU, the history and the ratio legis of that provision show that it covers more particularly the eventuality of a Commissioner refusing to resign voluntarily and on his own initiative in circumstances in which the President of the Commission has lost confidence in him and considers that, were he to remain in office, that would be likely to be detrimental to the institution’s reputation or even its political survival. In that connection, the expression by the President of a firm intention to exercise, if need be, the power to request a Commissioner to resign, which is a discretion conferred on the President of the Commission by the EU Treaty, if the person concerned does not resign voluntarily, cannot be considered to be illegitimate pressure affecting the validity or the voluntary nature of the resignation of the person concerned. Moreover, Article 17(6) TEU does not make either the request from the President of the Commission, or the resignation that must ensue, subject to a particular requirement as to form — for example, that it be in writing. Nor does a procedural requirement of that kind appear to be called for by the general principle of legal certainty, since the burden of proof in respect of a resignation rests, in any event, with the party seeking to rely on that resignation. The same applies, moreover, in the case of the voluntary resignation of a Commissioner. (see paras 128, 141, 142, 157)