In the context of an annulment action, lack of jurisdiction on the part of the institution which adopted a contested measure represents a ground for annulment as a matter of public policy, which should be raised by the EU Court of its own motion, even if neither party has requested it to do so. As regards the question of lack of power of the institution which adopted the measure on the basis of which the contested measure was taken, whilst the EU judicature is not obliged to raise that question of its own motion, it may be called upon to do so. That may be the case on the basis of the information in the file or if there is a manifest defect, in other words if the EU judicature can easily detect it and identify it as such.

It does not follow either from the provisions of Article 274 EC or from those of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (‘the Financial Regulation’) that the Commission has the express power, with a view to combating fraud and any other unlawful activity adversely affecting the financial interests of the Union, to adopt Decision 2008/969 instituting the early warning system for the use of authorising officers of the Commission and the executive agencies. Article 274 EC does indeed provide that the Commission is to implement the budget, in accordance with the provisions of the regulations made pursuant to Article 279 EC. That article provides for recourse to the ordinary legislative procedure. However, the Financial Regulation, the legal basis of which is Article 279 EC, does not make reference to a system such as the early warning system. That regulation merely provides, in Article 95(1), for the institution of a central database relating to candidates and tenderers who are in one of the mandatory exclusion situations envisaged by the regulation.

Similarly, notwithstanding the fact that a warning system may be a tool useful to the Commission’s tasks as guardian and executive of the EU budget, that cannot permit the conclusion that an implicit power exists to adopt Decision 2008/969. Whilst the Commission is authorised to organise its internal functioning in order to ensure the greatest efficiency possible, in accordance with Articles 51 and 59(2) of the Financial Regulation, the fact remains that its powers of self-regulation are limited by the powers conferred on it. Whereas internal measures have legal effects only within the internal sphere of the administration and do not create any right or obligation for the benefit of third parties, that is not the case with Decision 2008/969, which is capable of producing external legal effects.

Moreover, while the EU legislature created a legal basis for the exclusion warnings, it did not consider it appropriate to do so for the other warnings set out in Decision 2008/969. Moreover, unlike W5 warnings which are based on objective and, to a certain extent, proven factors, the entry of W1a or W1b warnings is the consequence of an OLAF investigation despite the fact that findings of fraud or administrative errors have not yet been established. Furthermore, it is not possible, without disregarding such fundamental rights as the presumption of innocence under Article 48(1) of the Charter of Fundamental Rights of the European Union, to accept the adage qui potest majus potest et minus. Unlike exclusion warnings, it cannot be disputed that W1a and W1b warnings concern a situation where investigations are still ongoing and thus in which no court has yet established guilt. Accordingly, if the Commission considers it necessary to take preventive measures at an early stage, it needs, all the more so for that reason, a legal basis permitting the creation of such a warning system and the taking of the relevant measures, a system which respects the rights of the defence, the principle of proportionality and the principle of legal certainty, the latter meaning that the rules of law must be clear and precise and predictable in their effect, in particular where they can have adverse consequences for individuals and undertakings.

(see paras 43, 45, 58, 59, 61-67)