Judgment of the General Court (Second Chamber) of 19 October 2022 –

Sistem ecologica v Commission

(Case T‑81/21) ( )

(Regulation (EU, Euratom) No 883/2013 – Investigation into evasion of the conventional, countervailing and anti-dumping duties imposed on imports of biodiesel into the Union – OLAF Communication to national customs authorities – OLAF investigation report – Action for annulment – Act not open to challenge – Claim for compensation – Sufficiently serious breach of a rule of law intended to confer rights on individuals)

1. Action for annulment – Jurisdiction of the EU judicature – Claim for a declaratory judgment – Inadmissibility

(Art. 263 TFEU)

(see paragraph 27)

2. Action for annulment – Actionable measures – Concept – Measures producing binding legal effects – Final report and decision of the European Anti-Fraud Office (OLAF) to close a fraud investigation into conventional, countervailing and anti-dumping duties imposed on imports of biodiesel into the European Union – Not included – Inadmissibility

(Art. 263 TFEU; European Parliament and Council Regulation No 883/2013)

(see paragraphs 37, 40-42, 45, 47)

3. Action for annulment – Actionable measures – Concept – Measures producing binding legal effects – Communication from the European Anti-Fraud Office (OLAF) to national authorities on the preliminary results of its investigation – Letters from OLAF refusing to hold a meeting with or to grant the applicant access to the file concerning it and relating to its complaint – Not included – Inadmissibility

(Art. 263 TFEU; European Parliament and Council Regulations No 1049/2001 and No 883/2013; Council Regulation No 515/97)

(see paragraphs 52, 56-60, 62-65)

4. Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link – Cumulative conditions

(Art. 340, second para., TFEU)

(see paragraphs 68, 69)

5. Non-contractual liability – Conditions – Unlawfulness – Sufficiently serious breach of a rule of law intended to confer rights on individuals – Institution with a reduced or non-existent discretion – Mere infringement of EU law sufficient

(Art. 340, second para., TFEU)

(see paragraph 71)

6. Non-contractual liability – Conditions – Unlawfulness – Sufficiently serious breach of EU law – On-the-spot inspection by the European Anti-Fraud Office (OLAF) in the context of an investigation into evasion of the conventional, countervailing and anti-dumping duties imposed on imports of biodiesel into the European Union – Inspection under national law – Lack of jurisdiction on the part of the EU judicature – Inspection carried out in a Member State and in a third country – Non-comparable situations – No illegality capable of rendering the EU non-contractually liable

(Art. 340, second para., TFEU; Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and Bosnia and Herzegovina, of the other part, Protocol No 5, Art. 7(2); European Parliament and Council Regulation No 883/2013, Art. 9)

(see paragraphs 82-86)

7. Non-contractual liability – Conditions – Unlawfulness – Sufficiently serious breach of EU law – European Anti-Fraud Office (OLAF) investigation into evasion of the conventional, countervailing and anti-dumping duties imposed on imports of biodiesel into the European Union – Inability of the applicant to comment before the OLAF Communication to national authorities on the preliminary results of its investigation was issued – Refusal of the Director-General of OLAF to investigate the applicant’s complaint – Right to sound administration – No infringement of the right to be heard

(Art. 340, second para., TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(a); European Parliament and Council Regulation No 883/2013, Art. 9(4))

(see paragraphs 95, 96, 100-105, 110-113, 156)

8. Non-contractual liability – Conditions – Unlawfulness – Sufficiently serious breach of EU law – European Anti-Fraud Office (OLAF) investigation into evasion of the conventional, countervailing and anti-dumping duties imposed on imports of biodiesel into the Union – Refusal to grant the applicant access to the file concerning it – No infringement of the rights of the defence

(Art. 340, second para., TFEU; European Parliament and Council Regulation No 883/2013, Art. 9(4))

(see paragraphs 115, 116)

9. Non-contractual liability – Conditions – Unlawfulness – Sufficiently serious breach of EU law – European Anti-Fraud Office (OLAF) investigation into evasion of the conventional, countervailing and anti-dumping duties imposed on imports of biodiesel into the Union – Request for access to the applicant’s file – Letter not classified by OLAF of its own motion as a request for access to documents – No illegality capable of rendering the EU non-contractually liable

(Art. 340, second para., TFEU; European Parliament and Council Regulations No 1049/2001 and No 883/2013)

(see paragraphs 119-123)

10. European Anti-Fraud Office (OLAF) – Investigations – Opening – Conditions – Serious suspicions relating to acts of fraud, corruption or other illegal activities detrimental to the financial interests of the Union – Concept – Existence of reasonable suspicion as to the existence of fraud – Included

(European Parliament and Council Regulation No 883/2013, Art. 5(1))

(see paragraphs 142, 146, 150, 151)

11. Non-contractual liability – Conditions – Unlawfulness – Sufficiently serious breach of a rule of law intended to confer rights on individuals – Rule of law intended to confer rights on individuals – Concept – Requirement of impartiality applicable to the European Anti-Fraud Office (OLAF) in an investigation into evasion of the conventional, countervailing and anti-dumping duties imposed on imports of biodiesel into the European Union – Included – Involvement of the Director of OLAF in the investigation – No legitimate doubt as to the impartiality thereof

(Art. 340, second para., TFEU; Charter of Fundamental Rights of the European Union, Art. 41(1); European Parliament and Council Regulation No 883/2013)

(see paragraphs 159-162)

12. Non-contractual liability – Conditions – Unlawfulness – Sufficiently serious breach of a rule of law intended to confer rights on individuals – Rule of law intended to confer rights on individuals – Concept – Principle of the presumption of innocence and the European Anti-Fraud Office (OLAF)’s duty of confidentiality in the context of its investigations – Included

(Art. 340, second para., TFEU; Charter of Fundamental Rights of the European Union, Art. 48(1); European Parliament and Council Regulation No 883/ 2013, Art. 10)

(see paragraph 169)

Operative part

The Court:

1. Dismisses the action;