JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

20 May 2010

Case T-261/09 P

European Commission

v

Antonello Violetti and Others

(Appeal — Civil service — Officials — Decision by OLAF to communicate information concerning natural persons to the Italian judicial authorities — Act not adversely affecting the appellants)

Application: appeal brought against the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 28 April 2009 in Joined Cases F-5/05 and F-7/05 Violetti and Others v Commission [2009] ECR-SC I-A-1-83 and II-A-1-473, asking for that judgment to be set aside.

Held: The judgment of the Civil Service Tribunal of the European Union of 28 April 2009 in Joined Cases F-5/05 and F-7/05 Violetti and Others v Commission is set aside in so far as it finds admissible the applications for annulment of the note of 5 August 2003 by which the European Anti-Fraud Office communicated to the Italian judicial authorities information concerning Antonello Violetti, Nadine Schmit and 12 other officials of the European Commission whose names are listed in the annex to the contested judgment. The applications for annulment brought before the Civil Service Tribunal by Mr Violetti, Ms Schmit and the 12 other Commission officials whose names are listed in the annex to the judgment are dismissed. Mr Violetti, Ms Schmit and the 12 other Commission officials whose names are listed in the annex to the judgment are to bear two thirds of their costs relating to the proceedings before the Civil Service Tribunal and their costs relating to the present instance. Regarding the proceedings before the Civil Service Tribunal, the Commission is to bear its own costs and to pay one third of the applicants’ costs at first instance, as well as its own costs relating to the present instance. The Council of the European Union, which intervened at first instance in support of the Commission’s claims, is to bear its own costs.

Summary

1. Officials — Actions — Act adversely affecting an official — Definition — Decision by the European Anti-Fraud Office (OLAF) to communicate information to the national judicial authorities — Not included

(Staff Regulations, Arts 90 and 90a; European Parliament and Council Regulation No 1073/1999, Art. 10(2))

2. Officials — Actions — Act adversely affecting an official — Definition — Decision by the European Anti-Fraud Office (OLAF) to communicate information to the national judicial authorities — Not included

(Staff Regulations, Arts 90 and 90a; European Parliament and Council Regulation No 1073/1999, Art. 8(2), second para.; Commission Decision 1999/396, Art. 4(2))

3. Officials — Actions — Act adversely affecting an official — Definition — Decision by the European Anti-Fraud Office (OLAF) to communicate information to the national judicial authorities — Not included — Opinion of the Disciplinary Committee — Included

(Staff Regulations, Art. 90)

1. Only measures which produce binding legal effects capable of affecting an official’s interests by bringing about a significant change in his legal situation constitute acts adversely affecting him which are therefore open to review.

More specifically, a decision by the European Anti-Fraud Office (OLAF) to communicate information concerning the official in question to the national judicial authorities cannot be regarded as an act adversely affecting him since it does not bring about a significant change in his legal situation, given that the authorities remain free, pursuant to Article 10(2) of Regulation No 1073/1999 concerning investigations conducted by the European Anti-Fraud Office, to assess, in the context of their own powers, the content and significance of that information and, thus, the action to be taken.

The fact that information is communicated in breach of the provisions designed to protect the right of the official who is the subject of that information to defend himself does not affect whether the decision to communicate information may be characterised as an act adversely affecting the official.

That finding does not have the effect of making it impossible for the official concerned by that breach to dispute the decision. Any unlawful act committed by OLAF which is not an act adversely affecting an official may be open to sanction in an action for damages.

Furthermore, should they decide to open an investigation, the national authorities will assess the conclusions to be drawn from that unlawful act, and their assessment may be challenged using national legal remedies, with all the safeguards provided by domestic law, including those deriving from fundamental rights.

(see paras 46, 47, 58-59)

See: C-521/04 P(R) Tillack v Commission [2005] ECR I-3103, paras 32 and 34; T-17/90, T-28/91 and T-17/92 Camara Alloisio and Others v Commission [1993] ECR II-841, para. 39; T-562/93 Obst v Commission [1995] ECR-SC I-A-247 and II-737, para. 23; T-29/03 Comunidad Antónoma de Andalucía v Commission [2004] ECR II-2923, para. 29; T-193/04 R Tillack v Commission [2004] ECR II-3575, paras 43 and 44; T-193/04 Tillack v Commission [2006] ECR II-3995, para. 70

2. A decision by OLAF to communicate information to the national judicial authorities has no binding legal effects either on the career or on the material situation of the official who is the subject of the information in question.

First, it is clear that the second subparagraph of Article 8(2) of Regulation No 1073/1999 concerning investigations conducted by the European Anti-Fraud Office merely provides that information relating to internal investigations may not be communicated, in particular, to persons other than those whose functions require them to know, nor may it be used for purposes other than to prevent fraud, corruption or any other illegal activity. The model decision attached to the Interinstitutional Agreement of 25 May 1999 between the European Parliament, the Council and the Commission, and, as regards Commission officials, Decision 1999/396, both of which concern the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities’ interests, merely require, in the second paragraph of Article 4, that the Secretary-General of the institution must agree that the obligation to invite the person concerned to give his views may be deferred where the needs of the investigation require. It is apparent from this that the applicable provisions do not require the official’s immediate superiors directly responsible for his assessment to be informed of the decision to communicate information. Second, if that assessment took into account the fact that certain information had been communicated to the national authorities, it would constitute an unlawful act such as to justify the annulment of the career development report and does not constitute a binding legal effect resulting from the decision to communicate information.

In those circumstances, the mere possibility that the official’s immediate superiors responsible for his assessment may wrongly be informed that information has been communicated to the national authorities, and may unlawfully take that into account in his assessment, cannot be regarded as an effect of the decision to communicate information which is relevant for whether that decision is characterised as an act adversely affecting the official.

(see paras 62-64)

See: order of 8 March 2007 in C-237/06 P Strack v Commission, not published in the ECR, para. 66; T-4/05 Strack v Commission [2006] ECR-SC I-A-2-83 and II-A-2-361, para. 49

3. The analogy between OLAF’s decision to communicate information concerning an official to the national judicial authorities and the opinion of the Disciplinary Committee, which constitutes an act adversely affecting the official, must be disregarded. Whereas the Disciplinary Committee rules on any breach of duty by the official concerned, particularly in the light of his obligations under the Staff Regulations and, more generally, compliance with EU law, and its opinion may lead the official’s institution to adopt a decision which may be favourable or unfavourable to him, the situation is entirely different with the decision to communicate information, since OLAF merely communicates to the national judicial authorities information which those authorities alone are responsible for assessing from the point of view of criminal law.

(see para. 70)

See: 228/83 F v Commission [1985] ECR 275