Parties

Grounds

Operative part



Parties

In Case T-48/05,

Yves Franchet, a former official of the Commission of the European Communities, residing in Nice (France),

Daniel Byk, an official of the Commission of the European Communities, residing in Luxembourg (Luxembourg),

represented by G. Vandersanden and L. Levi, lawyers,

applicants,

v

Commission of the European Communities, represented by J.‑F. Pasquier, acting as Agent,

defendant,

APPLICATION for compensation for the material and non-material damage alleged to have been sustained as a consequence of the errors alleged to have been committed by the Commission and OLAF in the investigations into the ‘Eurostat’ case,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of M. Jaeger, President, V. Tiili (Rapporteur) and T. Tchipev, Judges,

Registrar: K. Pocheć, Administrator,

having regard to the written procedure and further to the hearing on 3 October 2007,

gives the following

Judgment

Grounds

Legal framework

1. The European Anti-Fraud Office (OLAF), established by Commission Decision 1999/352/EC, ECSC, Euratom of 28 April 1999 (OJ 1999 L 136, p. 20), is responsible, in particular, for carrying out internal administrative investigations within the institutions intended to investigate serious facts linked to the performance of professional activities which may constitute a breach of obligations by officials and servants of the Communities likely to lead to disciplinary and, in appropriate cases, criminal proceedings.

2. Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by OLAF (OJ 1999 L 136, p. 1) governs the inspections, checks and actions undertaken by OLAF’s agents in the exercise of their duties. The investigations conducted by OLAF consist of ‘external’ investigations, that is to say, those carried out outside the Community institutions, and ‘internal’ investigations, that is to say, those carried out within those institutions.

3. Recital 10 in the preamble to Regulation No 1073/1999 provides:

‘… these investigations must be conducted in accordance with the Treaty and in particular with the Protocol on the [P]rivileges and [I]mmunities of the European Communities, while respecting the Staff Regulations of officials and the conditions of employment of other servants of the European Communities … 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; … to that end the institutions, bodies, offices and agencies must lay down the terms and conditions under which such internal investigations are conducted; … 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’.

4. Recital 13 in the preamble to Regulation No 1073/1999 provides:

‘… it is for the competent national authorities or the institutions, bodies, offices or agencies, as the case may be, to decide what action should be taken on completed investigations on the basis of the report drawn up by [OLAF]; … it should nevertheless be incumbent upon the Director of [OLAF] to forward directly to the judicial authorities of the Member State concerned information acquired by [OLAF] in the course of internal investigations concerning situations liable to result in criminal proceedings’.

5. Article 4 of Regulation No 1073/1999 is worded as follows:

‘Internal investigations

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 [the P]rivileges and [I]mmunities 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. Under Article 6(5) of Regulation No 1073/1999:

‘Investigations shall be conducted continuously over a period which must be proportionate to the circumstances and complexity of the case.’

7. Article 8 of Regulation No 1073/1999, entitled ‘Confidentiality and data protection’, is worded as follows:

‘1. Information obtained in the course of external investigations, in whatever form, shall be protected by the relevant provisions.

2. Information forwarded or obtained in the course of internal investigations, in whatever form, shall be subject to professional secrecy and shall enjoy the protection given by the provisions applicable to the institutions of the European Communities.

Such information may not be communicated to persons other than those within the institutions of the European Communities or in the Member States whose functions require them to know, nor may it be used for purposes other than to prevent fraud, corruption or any other illegal activity.

3. The Director shall ensure that [OLAF]’s employees and the other persons acting under his authority observe the Community and national provisions on the protection of personal data, in particular those provided for in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. [OJ 1995 L 281, p. 31].

4. The Director of [OLAF] and the members of the Supervisory Committee referred to in Article 11 shall ensure that this Article and Articles 286 [EC] and 287 [EC] are applied.’

8. Article 9 of Regulation No 1073/1999, entitled ‘Investigation report and action taken following investigations’, provides:

‘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.’

9. Article 10 of Regulation No 1073/1999, entitled ‘Forwarding of information by [OLAF]’, provides:

‘1. Without prejudice to Articles 8, 9 and 11 of this Regulation and to the provisions of Regulation (Euratom, EC) No 2185/96, [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.’

10. Article 11 of Regulation No 1073/1999, entitled ‘Supervisory Committee’, provides:

‘1. The Supervisory Committee shall reinforce [OLAF]’s independence by regular monitoring of the implementation of the investigative function.

At the request of the Director or on its own initiative, the committee shall deliver opinions to the Director concerning the activities of [OLAF], without however interfering with the conduct of investigations in progress.

…

7. The Director shall forward to the Supervisory Committee each year [OLAF]’s programme of activities referred to in Article 1 of this Regulation. The Director shall keep the committee regularly informed of [OLAF]’s activities, its investigations, the results thereof and the action taken on them. Where an investigation has been in progress for more than nine months, the Director shall inform the Supervisory Committee of the reasons for which it has not yet been possible to wind up the investigation, and of the expected time for completion. The Director shall inform the committee of cases where the institution, body, agency or office concerned has failed to act on the recommendations made by it. The Director shall inform the committee of cases requiring information to be forwarded to the judicial authorities of a Member State.

…’

11. The second and third subparagraphs of Article 12(3) of Regulation No 1073/1999 provide:

‘The Director shall report regularly to the European Parliament, the Council, the Commission and the Court of Auditors on the findings of investigations carried out by [OLAF], whilst respecting the confidentiality of those investigations, the legitimate rights of the persons concerned and, where appropriate, national provisions applicable to judicial proceedings.

The above institutions shall ensure that the confidentiality of the investigations conducted by [OLAF] is respected, together with the legitimate rights of the persons concerned, and, where judicial proceedings have been instituted, that all national provisions applicable to such proceedings have been adhered to.’

12. 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) prescribes in Article 4 the procedure for informing the interested party, in the following terms:

‘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.’

13. Under Article 2 of the Rules of Procedure of OLAF’s Supervisory Committee (OJ 2000 L 41, p. 12), entitled ‘Compliance with the law’:

‘The Committee shall ensure that OLAF activities are conducted in full compliance with human rights and fundamental freedoms and in accordance with the Treaties and with secondary legislation, including the Protocol on the Privileges and Immunities of the European Communities and the Staff Regulations of officials.’

14. Under Article 14(1) to (3) of the Rules of Procedure of OLAF’s Supervisory Committee:

‘1. Meetings of the Supervisory Committee shall not be held in public. Its proceedings, and documents of any description giving rise to those proceedings, shall be confidential, unless the Supervisory Committee decides otherwise.

2. Documents and information submitted by the Director of OLAF shall be subject to the provisions of Article 287 [EC] on the protection of confidentiality.

3. The Supervisory Committee shall act on the basis of documents and draft opinions, reports, or decisions.’

15. Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), signed in Rome on 4 November 1950, concerning the right to a fair trial, provides:

‘…

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

…’

16. The Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1; ‘the Charter), provides:

‘ Article 41

Right to good administration

1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union.

2. This right includes:

– the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;

– the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;

– the obligation of the administration to give reasons for its decisions.

3. Every person has the right to have the Community make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.

…

Article 48

Presumption of innocence and right of defence

1. Everyone who has been charged shall be presumed innocent until proved guilty according to law.

2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed.’

Facts

17. The applicants, Mr Yves Franchet and Mr Daniel Byk, are, respectively, the former Director-General and the former Director of Eurostat (Statistical Office of the European Communities).

18. A number of Eurostat internal audits revealed possible irregularities in its financial management. Consequently, OLAF initiated a number of investigations concerning, in particular, the contracts concluded by Eurostat with Eurocost, Eurogramme, Datashop, Planistat and CESD Communautaire and the subsidies granted to those companies.

19. On 4 July 2002, OLAF forwarded to the Luxembourg judicial authorities a file relating to the investigation concerning Eurocost and another file relating to the investigation concerning Eurogramme.

20. On 13 November 2002, Mr Franchet wrote to the Director-General of OLAF, in the following terms:

‘…

I learn from Cocobu that you have provided them with information concerning the files which you had sent to the Luxembourg judicial authorities and which I do not have; I read in the magazine Stern that you have identified “a whole series of cases” in Eurostat, in respect of which your services have communicated nothing to me.

…’

21. On 13 March 2003, the Parliament adopted a resolution concerning the Eurostat case.

22. On 19 March 2003, the Director-General of OLAF sent the French judicial authorities a letter concerning the ‘Forwarding of information relating to matters liable to be characterised as criminal CMS No IO/2002/0510 – Eurostat/Datashop/Planistat’ (‘the letter of 19 March 2003’), together with a note by two OLAF investigators, addressed on the same date to the Director-General of OLAF, concerning ‘Denouncement of matters liable to be characterised as criminal CMS No IO/2002/0510 – Eurostat/Datashop/Planistat’ (‘the note of 19 March 2003’).

23. On 3 April 2003, the Director-General of OLAF sent a summary note for the attention of the Secretary-General of the Commission concerning the ongoing investigations relating to Eurostat.

24. On 19 May 2003, the applicants requested the Commission to provide ‘assistance pursuant to Article 24 of the Staff Regulations to preserve [their] reputation and [their] rights of defence vis-à-vis those at the origin of, and those responsible for spreading, that inaccurate information’ and asked to be relieved of their duties in order to be able to ensure their defence.

25. On 21 May 2003, the applicants were transferred at their own request.

26. On 26 May 2003, the applicants sent two letters to the Director-General of OLAF and requested, in particular, to be informed ‘as soon as possible of the complaints and charges drawn up by OLAF’ concerning them in order to ensure respect for the rights of the defence in the context of the hearings set for the end of June 2003. They thus sought access to the entire file. They emphasised that they had not been informed, or been heard, before the files were forwarded to the national judicial authorities. They further stated that ‘it also appear[ed] obvious that confidential matters ha[d] been leaked to the press by OLAF, those leaks having been, where appropriate, intentionally organised in the context of a campaign of denigration and accusation by Eurostat, or indeed by other highly placed persons within the Commission’.

27. On the same date, the applicants also sent two letters to OLAF’s Supervisory Committee informing it that they had learned from the press that OLAF had handed over to the national judicial authorities a file containing charges referring to ‘offences of misappropriation, receiving misappropriated funds and forming a criminal association’, that they had never been heard by OLAF and that leaks had taken place. They requested the Supervisory Committee to ‘rule on the unacceptable conduct of OLAF, which ha[d] either organised those leaks or ha[d] failed to take all necessary measures to avoid them, thus incurring full liability towards [the applicants] … and, furthermore, to ensure that their fundamental rights would henceforth be fully respected’.

28. On 26 May 2003, the applicants again sent two letters, to the Secretary-General of the Commission and to a Director-General of the Commission respectively, requesting the Commission to specify the terms of the assistance which it had undertaken to afford them. They also requested that they be able to consult any material relating to the OLAF file that might be at the Commission’s disposal.

29. On 5 June 2003, the applicants approached the Director-General of OLAF and requested access to the file before the hearings set for the end of June 2003.

30. On 11 June 2003, the Commission instructed its Internal Audit Service (‘the IAS’) to examine contracts concluded and subsidies granted by Eurostat in the context of the monitoring of the budget discharge procedure. The IAS prepared three reports, the first dated 7 July, the second dated 24 September and the third dated 22 October 2003.

31. In June and July 2003, the Committee on Budgetary Control of the Parliament (Cocobu) met and exchanged views on the Eurostat case with, among others, certain Members of the Commission.

32. On 18 June 2003, the applicants again approached the Director-General of OLAF, emphasising that the ‘right to be heard presume[d] that the person concerned be informed of the complaints against him and that he would have access to the file’ and pointing out that the hearings set for the end of June would therefore be unable to take place properly. They stated that ‘[w]hen access to the file [could] be achieved and when counsel and their clients [could] have sufficient time to examine the evidence, the hearings [could] continue’.

33. On 23 June 2003, at a first hearing by OLAF, Mr Franchet lodged a preliminary statement with a legal memorandum relating to the rights of the defence. On 25 and 26 June 2003, he was heard by OLAF concerning the Eurocost case. On 26 and 27 June 2003, he was heard concerning the Datashop and Planistat cases and, on 2 July 2003, concerning the CESD Communautaire case.

34. On 1 July 2003, Mr P., a Head of Unit in the Secretariat-General of the Commission, sent a note for the attention of the Members of the Commission concerning the Cocobu meeting and also the exchange of views with the Secretary-General of the Commission and the Director-General of OLAF on 30 June 2003.

35. On 3 and 4 July 2003, Mr Byk was heard by OLAF concerning the Datashop and Planistat files. He also lodged a preliminary statement with a legal memorandum relating to the rights of the defence.

36. On 9 July 2003, the Commission decided to initiate disciplinary proceedings against the applicants. Those proceedings were immediately suspended owing to the fact that the OLAF investigation was still in progress. The Commission also set up a multidisciplinary operational team known as a ‘task force’ (‘the task force’).

37. On the same date, the Commission issued a press release, entitled ‘The Commission takes action on financial mismanagement in Eurostat’ (IP/03/979).

38. On 17 July 2003, the applicants sent letters to the President of the Commission, informing him of their situation.

39. On 22 July 2003, the applicants sent a letter to the Commission describing the faults which they alleged it to have committed and claiming that it was liable. They also requested the Commission to forward to them the documents cited in the decisions initiating the disciplinary proceedings.

40. The minutes of the hearings of the applicants at the end of June and the beginning of July were drawn up on 11 August 2003.

41. On 24 September 2003, the Director-General of OLAF sent the President of the Commission a ‘summary of the Eurostat cases now closed’. According to the covering memorandum, ‘this summary memorandum c[ould] not in any way be regarded as constituting a final investigation report within the meaning of Regulation No 1073/1999’ and that its ‘sole purpose [was] to highlight the main findings of the investigations carried out’.

42. That summary, accompanied by a report entitled ‘Report of the Eurostat task force (TFES) – Summary and conclusions’ and by an information note concerning Eurostat, based on the second intermediary report drawn up by the IAS, were sent to the Parliament on the same date.

43. On 25 September 2003, OLAF drew up the final investigation reports, within the meaning of Article 9 of Regulation No 1073/1999, in the Eurocost, Datashop, Planistat and CESD Communautaire cases.

44. On the same date, the President of the Commission was heard by Cocobu and also addressed the Conference of Presidents of Parliamentary Groups of the Parliament.

45. On 25 September 2003, the applicants sent a letter to the Commission, referring to the documents forwarded to the Parliament on 24 September 2003. In that letter, the applicants maintained that ‘it [was] unacceptable that [they] should be publicly implicated without having access to the documents which charge[d] them’ and raised the question whether ‘it [was] normal that, once again, [they] should learn from the press that they [were] accused of misconduct’. By that letter, the applicants further requested the Commission to forward those reports to them, together with the documents requested by the letter of 22 July 2003, namely:

‘– the note of 3 April 2003 (004201) and the notes of 19 March 2003 (003441 and 003440) drawn up by OLAF;

– the report of [the Budget] DG of 4 July 2003 (“DGBUDG Report – Analysis of audit reports on Eurostat systems for grants and procurement”);

– the Commission’s [IAS] report of 7 July 2003 (‘First Interim Report – IAS examination of Eurostat contracts and grants: reportable events’);

– the three reports drawn up by [the IAS], the task force and OLAF for the hearing by the [President of the Commission] on 25 September 2003’.

46. On 1 October 2003, the Commission adopted a decision on the reorganisation of Eurostat, with effect from 1 November 2003. It was decided to abolish one directorate and one post as director.

47. On 10 October 2003, the applicants received a copy of the final reports of 25 September 2003 in the Eurocost, Datashop and CESD Communautaire cases and a copy of the three documents communicated to the Parliament on 24 September 2003 referred to at paragraph 42 above. On the same date, the applicants received the documents referred to in the decisions initiating the disciplinary proceedings and requested in the letters of 22 July and 25 September 2003, with the exception of the letter and note of 19 March 2003, on the ground that ‘this [concerned] the letter sent by OLAF to the French judicial authorities in Paris and that letter therefore form[ed] an integral part of a domestic investigation’.

48. On 23 October 2003, the applicants lodged a request pursuant to Article 90(1) of the Staff Regulations of Officials of the European Communities, in the version applicable to the present case (‘the Staff Regulations’), seeking compensation for the damage sustained as a consequence of the faults committed by the Commission, including those attributable to OLAF.

49. By decision of 10 May 2004, received by the applicants on 17 May 2004, the appointing authority rejected that request.

50. On 19 May 2004, the applicants lodged a complaint on the basis of Article 90(2) of the Staff Regulations against the decision of 10 May 2004. On 5 August 2004, the applicants supplemented their complaint.

51. By decision of 27 October 2004, notified to the applicants by letter of 3 November 2004, the appointing authority expressly rejected that complaint.

Procedure and forms of order sought by the parties

52. By application lodged at the Registry of the Court of First Instance on 28 January 2005, the applicants brought the present action.

53. Upon hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure and, within the framework of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of the Court of First Instance, requested the parties to produce certain documents and to answer certain written questions. The parties complied in part with those requests within the prescribed periods.

54. By order of 6 June 2007, in accordance with Article 65(b), Article 66(1) and the second subparagraph of Article 67(3) of the Rules of Procedure, the Court ordered the Commission to produce all the documents transmitted to the French judicial authorities in connection with the Eurostat case and stated that those documents would not be communicated to the applicants at that stage. The Commission complied with that request.

55. On 11 June 2007, the Commission lodged its observations on the applicants’ answers to the questions and requests to produce documents to the Court. On the same date, the applicants lodged their observations on the Commission’s answers to those questions and requests.

56. The parties submitted oral argument and their answers to the oral questions put by the Court at the hearing on 3 October 2007.

57. At the hearing, the parties confirmed that, among the documents produced by the Commission following the measure of inquiry ordered by the Court, the only documents which the applicants did not have at their disposal were the annexes to the note of 19 March 2003, the complaint of 10 July 2003 and the final Planistat report. The applicants agreed that the Court could, if necessary, use the information in those documents, which had not been communicated to them, and a note to that effect was recorded in the minutes. The Court considered it necessary to use only the documents which the applicants had at their disposal.

58. At the hearing, following the Court’s request, the Commission lodged an OLAF memo dated 16 May 2003. The applicants did not object to the lodging of that memo and a note to that effect was recorded in the minutes.

59. The applicants claim that the Court should:

– order the Commission to pay them a sum provisionally evaluated at EUR 1 million to compensate them for their material and non-material damage;

– order the Commission to pay the costs.

60. The Commission contends that the Court should:

– dismiss the action;

– order the applicants to pay the costs.

Law

61. In support of their action for compensation, the applicants rely on errors made by both OLAF and the Commission, serious material and non-material damage and a direct causal link between the alleged errors and the damage flowing therefrom.

62. As a preliminary point, the Commission disputes the production by the applicants of certain documents of OLAF’s Supervisory Committee which are annexed to the application.

63. The Commission also contends that the action for damages is premature in part.

I – The claim that certain annexes to the application should be removed from the file

A – Arguments of the parties

64. The Commission claims that certain documents of OLAF’s Supervisory Committee which are produced by the applicants in support of their action should be removed from the file, namely six annexes to the application.

65. The Commission contends that the documents in question are internal documents and are not intended to be made public. Furthermore, they were obtained by the applicants by unlawful means and should therefore be removed from the file, together with the references to and the quotations from the annexes in the application (Joined Cases 197/80 to 200/80, 243/80, 245/80 and 247/80 Ludwigshafener Walzmühle Erling and Others v Council and Commission [1981] ECR 3211, paragraphs 13 to 16).

66. The Commission stresses that internal confidential documents can be produced by applicants in support of their actions only where the applicants are able to show that they obtained the documents by lawful means.

67. In the present case, the documents in question are indeed internal documents of OLAF’s Supervisory Committee and, pursuant to Article 14 of its Rules of Procedure, are confidential. The Supervisory Committee never decided to waive the confidentiality attaching to those documents and make them public, nor, likewise, to communicate them to the applicants in the context of their defence. Since the documents are intended to remain purely internal, the fact that they are not marked ‘confidential’ does not deprive them of their confidential nature.

68. In any event, in the Commission’s submission, the applicants must state by what lawful means they were able to obtain those documents, for example by submitting a request for access and receiving a favourable response from OLAF’s Supervisory Committee. The fact that the applicants produce an affidavit stating that they did not remove, or steal, or intercept any internal document produced by the secretariat of OLAF’s Supervisory Committee, which the Commission has never accused them of having done, does not show that they obtained the documents lawfully.

69. Last, the Commission maintains that none of those documents is capable of proving in any way whatsoever the alleged errors of OLAF or the Commission.

70. The applicants deny that the documents are confidential or that they obtained them by unlawful means.

71. The applicants submit that if, in a file such as that in the present case, in which compensation for damage is sought, it were not possible to comment on or to have access to documents which actually prove the errors committed by OLAF and by the Commission, which are essential elements for the purpose of establishing liability, it is clear that there would be a serious and actual breach of full respect for the rights of the defence and effective judicial protection.

72. The applicants maintain that the documents in question support their position with respect to their criticisms of the functioning of OLAF, which is the real reason why the Commission objects to the production of the documents.

B – Findings of the Court

73. The Commission claims that certain annexes to the application are confidential internal documents of OLAF’s Supervisory Committee which were not obtained lawfully by the applicants. Those annexes consist of the following documents:

– the minute of the appearance of the Secretary-General of the Commission before OLAF’s Supervisory Committee on 3 September 2003; the Secretary-General was not advised that his intervention was being recorded and later obtained an assurance from the Chairman of the Supervisory Committee that the document would remain purely internal to the Supervisory Committee and its secretariat;

– the note from the secretariat of the Supervisory Committee to the Chairman of that committee and one of its members, dated 5 March 2003;

– the note from the secretariat of the Supervisory Committee to the Chairman of that committee, dated 27 May 2003;

– the minutes of the meeting of 2 and 3 September 2003 of the Supervisory Committee;

– the report of the Supervisory Committee, of 15 January 2004, delivered at the request of the Parliament concerning questions of procedure raised by the investigations carried out in the Eurostat case;

– the information note of the secretariat of the Supervisory Committee, of 10 October 2003, on the progress of OLAF’s investigations in the Eurostat case and their repercussions on the situation of OLAF.

74. It must be observed that 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 file.

75. There is no provision that expressly prohibits evidence obtained unlawfully, for example in breach of fundamental rights, from being taken into account.

76. Admittedly, in Ludwigshafener Walzmühle Erling and Others v Council and Commission , paragraph 65 above, on which the Commission relies, the Court of Justice found that, as there was doubt both as to the nature of the contested document and as to whether the interveners had obtained it by proper means, the document must be removed from the file (paragraph 16).

77. Thus, as a general rule, an institution is entitled to request the removal of an internal document where it was not obtained by proper means by the person who relies on it. An internal document is confidential by nature, unless the institution in which it originates agrees to disclose it.

78. However, in its subsequent case-law, the Court of Justice did not preclude that even internal documents may, in certain cases, be lawfully placed in a case-file (orders of 19 March 1985 in Case 232/84 Tordeur and Others (not published in the ECR), paragraph 8, and of 15 October 1986 in Case 31/86 LAISA v Council (not published in the ECR), paragraph 5). Furthermore, the Court of First Instance has on occasion agreed to take account of documents which had not been shown to have been obtained by proper means.

79. Thus, in certain situations, it was not necessary for the applicant to show that it had obtained by lawful means the confidential document relied on in support of its argument. The Court considered, on the balance of the interests to be protected, that it was necessary to consider whether particular circumstances, such as the decisive nature of the production of the document for the purposes of reviewing the lawfulness of the procedure leading to the adoption of the contested measure (see, to that effect, Case T‑192/99 Dunnett and Others v EIB [2001] ECR II‑813, paragraphs 33 and 34) or of establishing the existence of a misuse of powers (see, to that effect, Case T‑280/94 Lopes v Court of Justice [1996] ECR-SC I-A‑77 and II‑239, paragraph 59), constituted grounds for not withdrawing a document.

80. It must be held that, in the present case, the specific nature of the present action permits the conclusion that the documents in question must remain in the file. Those documents are necessary for the purpose of appraising OLAF’s conduct in the investigations relating to Eurostat. Accordingly, the particular nature of the present action, in which the applicants seek to establish the illegality of OLAF’s conduct, justifies the non-removal of those documents (see, to that effect, Dunnett and Others v EIB , paragraph 79 above, paragraphs 33 and 34).

81. In that regard, it must be borne in mind that the documents in question consist of preparatory documents of OLAF’s Supervisory Committee, whose task, pursuant to Article 2 of its Rules of Procedure, is to ensure ‘that OLAF activities are conducted in full compliance with human rights and fundamental freedoms and in accordance with the Treaties and with secondary legislation, including the Protocol on the Privileges and Immunities of the European Communities and the Staff Regulations of officials’, and a minute of the appearance of the Secretary-General of the Commission before that committee. It must further be noted that the applicants are in a difficult situation with respect to showing that OLAF’s conduct was unlawful. Last, it must be observed that those documents are capable of demonstrating the facts of which the applicants accuse OLAF and may thus be important for the resolution of the present dispute.

82. Consequently, in the light of the nature of the documents in question and of the particular circumstances of the dispute, the claim that they should be removed from the file must be rejected.

II – The premature nature of the action

A – Arguments of the parties

83. The Commission asserts that most of the applicants’ claims concerning alleged irregularities during the investigation procedure are premature.

84. The Commission explains that it did not allege that the action is inadmissible but that it claims that the action is premature because, it maintains, certain of the applicants’ pleas, concerning procedural errors committed by the Commission or by OLAF, can be assessed only in the light of the consequences which those errors might have on any final decision that might be taken in the criminal or disciplinary proceedings (Joined Cases T‑10/92 to T‑12/92 and T‑15/92 Cimenteries CBR and Others v Commission [1992] ECR II‑2667, paragraph 48) and, moreover, because, even on the assumption that errors might be attributed to the Commission or to OLAF, the assessment of the damage sustained would vary according to the terms of the criminal and/or disciplinary decisions concerning them. Thus, the assessment of the alleged non-material damage is correlated to the applicants’ degree of ‘guilt’ and the consequences of the errors made by OLAF or by the Commission, on the assumption that they are established, could not be appraised without taking account of any errors made by the applicants.

85. The Commission refers to Case 90/78 Granaria v Council and Commission [1979] ECR 1081, paragraph 6, and submits that the Court may give a decision at an early stage of the proceedings on the question whether the conduct of OLAF or of the Commission has been such as to entail the liability of the Community, while possibly, depending on the nature of the errors established, reserving consideration of the question of the extent of the non-material damage for a later stage.

86. The applicants deny that the action is premature and state that the Commission’s pleadings are unclear in that regard.

87. The applicants contend that the action satisfies all the conditions as to admissibility and substance necessary to engage the liability of the Commission and to enable the Court to exercise its power of review.

88. There is no reason to consider that an action for compensation is incidental to the initiation of a disciplinary procedure and/or to investigations conducted by the judicial authorities of a Member State. It would be contrary to the principle of the right to proper judicial protection and to the proper administration of justice if a future and uncertain event could in itself influence and paralyse an action for compensation, with the consequence that the damage would increase and the persons concerned would be deprived of the right to seek compensation for the damage.

89. The applicants contend that the damage which they have sustained has been real and current since the errors were made by the Commission and that it increases as time passes.

B – Findings of the Court

90. It is common ground that the national judicial proceedings are still pending. However, the outcome of those proceedings cannot affect the present proceedings. Indeed, in the present case the question is not whether or not the facts of which the applicants are accused are established, as that question does not fall within the jurisdiction of the Court. Thus, in the present case the issue is not whether or not the applicants made errors in the course of their employment, but an examination is required of the way in which OLAF conducted and completed an investigation which refers to the applicants by name and attributes to them liability for the irregularities established publicly well before a final decision, and also of the way in which the Commission conducted itself in the context of that investigation. Nor, if the applicants are found not guilty by the national judicial authorities, would such a finding necessarily make good any damage that they would then also have sustained.

91. Accordingly, since the alleged damage relied on in the present action is distinct from the damage that might be confirmed by a finding of not guilty by the national judicial authority, the claims for compensation cannot be rejected as premature with the consequence that the applicants would be able to submit such a claim only after any definitive decisions had been taken by the national judicial authorities.

92. Consequently, as the action is not premature, there is no need to reserve examination of the questions relating to the nature and extent of the damage for a later stage.

III – The incurring of the non-contractual liability of the Community

93. It has consistently been held that in order for the Commission to incur non-contractual liability for the unlawful conduct of its organs, within the meaning of the second paragraph of Article 288 EC, a number of conditions must be satisfied, namely: the unlawfulness of the conduct alleged against the institutions, the fact of damage and the existence of a causal link between the alleged conduct and the damage complained of (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16; Case T‑175/94 International Procurement Services v Commission [1996] ECR II‑729, paragraph 44; Case T‑336/94 Efisol v Commission [1996] ECR II‑1343, paragraph 30; and Case T‑267/94 Oleifici Italiani v Commission [1997] ECR II‑1239, paragraph 20).

94. If any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions (Case T‑170/00 Förde-Reederei v Council and Commission [2002] ECR II‑515, paragraph 37; see, to that effect, Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraph 81).

95. As regards the first of those conditions, the case-law requires that there has been a sufficiently serious breach of a rule of law intended to confer rights on individuals (Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraph 42). As regards the requirement that the breach be sufficiently serious, the decisive test for determining that that requirement is satisfied is whether the Community institution concerned manifestly and gravely disregarded the limits on its discretion. Where that institution has only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach (Case C‑312/00 P Commission v Camar and Tico [2002] ECR I‑11355, paragraph 54, and Joined Cases T‑198/95, T‑171/96, T‑230/97, T‑174/98 and T‑225/99 Comafrica and Dole Fresh Fruit Europe v Commission [2001] ECR II‑1975, paragraph 134).

96. The applicants assert that errors were made both by OLAF and by the Commission and that the Commission alone can be held liable for all of those errors. OLAF made errors vis-à-vis both the applicants and the Commission.

97. Thus, the Court considers that it must examine first of all the question whether OLAF and/or the Commission committed sufficiently serious breaches of a rule of law intended to confer rights on individuals.

A – The illegality of OLAF’s conduct

1. The errors made when OLAF forwarded the files relating to the Eurostat case to the French and Luxembourg judicial authorities

a) Arguments of the parties

98. First of all, the applicants emphasise the clear distinction that exists, as regards the forwarding of the information by OLAF, between external investigations and internal investigations. They refer to the confusion between the nature of the investigation and the nature of the forwarding of the information to the French judicial authorities on 19 March 2003. According to the statement of the Director-General of OLAF before the Cocobu on 30 June 2003, the file in question was an ‘external file’ which none the less mentioned the applicants’ names. However, the investigation was purely internal, which required that the institution concerned be informed before any external transmission.

99. The applicants contend that OLAF therefore characterised its internal investigations as external investigations in order to cover procedural errors relating to the fact that neither the Commission nor OLAF’s Supervisory Committee had been informed in advance that the Eurostat file had been forwarded to the French and Luxembourg judicial authorities by OLAF.

100. Nor, next, were the applicants informed in advance that the Datashop and Planistat files were being forwarded to the French judicial authorities by OLAF, and Mr Franchet was not informed that the Eurocost file, in which Mr Byk was not implicated, was being forwarded to the Luxembourg judicial authorities.

101. Accordingly, OLAF deliberately disregarded the principle of sound administration, the inter partes principle, the rights of the defence and the requirement of an investigation that considers the evidence for and against the parties concerned, enshrined, inter alia, in the ECHR and the Charter.

102. The applicants also rely on Article 4 of Decision 1999/396 and refer in that regard to the decision of the European Ombudsman of 26 April 2002 on complaint 781/2001/IJH as it relates to OLAF, according to which ‘this provision requires OLAF, before reaching a conclusion unfavourable to a person who is being investigated, to inform the person concerned of the allegation against him and the facts on which it is based and to give him the opportunity to express his views’; the Ombudsman also considered that ‘[t]his [was] a normal part of a fair and effective investigation procedure’ and that, ‘[m]oreover, testimony that ha[d] not been subject to challenge in this way [would] normally lack evidential value’.

103. In the applicants’ submission, the Commission interprets Articles 4 and 10 of Regulation No 1073/1999 and Article 4 of Decision 1999/396 too restrictively and thus fails to respect fundamental rights. According to such an interpretation, OLAF’s decision to defer informing the institution is not in principle amenable to review and OLAF could thus take such a decision to exempt itself, without any real limit in time, from any obligation to inform.

104. Indeed, neither OLAF nor the Commission has ever explained why absolute secrecy was required or what justification there was for the alleged need to defer informing the Commission, with the exception of the summary note on the ongoing investigations relating to Eurostat, sent by the Director-General of OLAF to the Secretary-General of the Commission on 3 April 2003 (see paragraph 23 above). As regards the need to defer informing the official concerned, so far as the applicants are aware, the Secretary-General never expressed the agreement required by the second paragraph of Article 4 of Decision 1999/396.

105. The applicants also rely on a proposal for a regulation of the European Parliament and of the Council of 10 February 2004 amending Regulation No 1073/1999 (COM(2004) 103 final) and on a draft interinstitutional agreement of 14 August 2003 aimed at establishing a code of conduct in order to ensure a timely exchange of information between OLAF and the Commission with respect to internal investigations (SEC(2003) 871 consolidated), which establish, in particular, the obligation to give substance to information by OLAF. Likewise, according to the proposal for a regulation amending Regulation No 1073/1999, the official involved should be heard at the time when information is forwarded to the national judicial authorities, which does not constitute an amendment of the existing regulation, as it merely enshrines the fundamental principles contained, notably, in the Charter, as the Commission observed. The applicants note that they were heard by OLAF because they requested a hearing and not because OLAF invited them to be heard.

106. Last, in the applicants’ submission, OLAF ‘steered’ the French judicial authorities by already characterising as criminal offences certain facts which it had thought it could identify in the Eurostat case, which is contrary to its role of conducting administrative investigations. The note of 19 March 2003 to the French judicial authorities contains a veritable legal analysis in French law of the facts reported and characterises them as criminal offences under French law, and thus goes further than merely forwarding information as provided for in Regulation No 1073/1999.

107. In the first place, the Commission contends that the applicants cannot rely on OLAF’s obligation to inform it, to hear them or to inform them before transmitting information to national judicial authorities, whatever the type of the investigation (internal or external).

108. The Commission maintains that, under Article 10 of Regulation No 1073/1999, OLAF must forward to the judicial authorities of the Member State concerned the information obtained during internal investigations into matters liable to result in criminal proceedings, whereas it merely has the option to forward the information obtained in the course of external investigations. That article contains no requirement to inform the institution concerned or any officials that may be implicated at the same time as, or before, the information is forwarded to the national judicial authorities.

109. The Commission refers to Article 4(5) of Regulation No 1073/1999 and observes that the failure to inform the institution to which officials who may be personally involved belong may be justified by the need to defer that information. Even on the assumption that such deferral may not be justified in the present case, any failure to inform the Commission has no effect on the lawfulness of the proceedings concerning the applicants provided that the applicants were not in any way harmed by that failure to inform.

110. As regards the applicants’ right to be heard or informed, the Commission maintains that, pursuant to Article 4 of Decision 1999/396, the information of an official who may be personally implicated is subject to the condition that it would not be harmful to the investigation, which is a matter for OLAF’s discretion. The obligation to enable the person concerned to express his views on all the facts which concern him is decisive at the time when OLAF draws conclusions at the close of the investigation and may be deferred, in certain specific cases, only in agreement with the President of the Commission or its Secretary-General, but not at the time when, on the basis of Article 10 of Regulation No 1073/1999, OLAF forwards information to the judicial authorities of a Member State in the course of the investigation.

111. Furthermore, in accordance with Article 4 of Decision 1999/396, the applicants were enabled to express their views on all the facts which concerned them before OLAF drew the conclusions from the investigations concerning them.

112. Contrary to the applicants’ contention, it is incorrect to assert that an OLAF decision to defer the information due to the institution is not as a matter of principle amenable to review, but that such review can be carried out only at the close of the investigation if no further action is taken, or at the close of the criminal and/or disciplinary procedures. Accordingly, in the Commission’s submission, the failure to inform is justified by the need for absolute secrecy for the purposes of the investigation or by the need to resort to methods of investigation falling within the jurisdiction of a national judicial authority, and to purport to review that justification at an earlier stage would amount to ‘demolishing it’.

113. The Commission further emphasises that an error can arise only from a breach of the legal framework existing at the material time and not from a breach of a provision contained in a proposal for a new legal framework that is submitted after the material time.

114. In the second place, the Commission contends that any criminal characterisation which OLAF gives to the facts which it forwards to a national judicial authority is merely an indication which is not binding on that authority. Such a characterisation is merely the expression of the views of the OLAF agents responsible for such a file, as the matter can be forwarded to a judicial authority only where OLAF considers that the facts in issue are capable of being characterised as criminal. The Commission emphasises that the national judicial authorities to which OLAF refers the case are entirely free to accept and/or limit the scope of the matter referred to them and that it is not for OLAF to give any directions whatsoever to those authorities.

115. Furthermore, the applicants have misread paragraph 3.4.3 of the Commission report of 2 April 2003 on the evaluation of the activities of OLAF (COM(2003) 154 final). The Commission never intended to say that a reference to a national judicial authority had the effect of binding that authority with respect to the results of OLAF’s fieldwork, quite the contrary.

b) Findings of the Court

The characterisation of the investigations

116. It must be borne in mind that, under Regulation No 1073/1999, the investigations carried out by OLAF consist of external investigations, that is to say, investigations outside the Community institutions, and internal investigations, that is to say, investigations carried out within those institutions. The procedural rules to be followed by OLAF differ according to the nature of the investigation.

117. The applicants maintain that OLAF characterised its internal investigations as external investigations in order to cover procedural errors. They claim that the investigation was purely internal, which required that the institution concerned, OLAF’s Supervisory Committee and the officials implicated be informed before any information was forwarded to any external authority.

118. The Court finds that in effect there was confusion as to the nature of the different investigations in question while they were in progress.

119. In that regard, it follows from the summary note of 3 April 2003 (see paragraph 23 above) that OLAF had characterised as internal investigations the investigations relating to the Eurocost case (forwarded to the Luxembourg judicial authorities) and the Datashop case (forwarded to the French judicial authorities). In the ‘summary of the Eurostat cases now closed’, the investigation pursued in the Eurocost case had been characterised as an internal investigation, that relating to the Eurogramme case as an external investigation, that relating to the CESD Communautaire as an internal investigation and that relating to the Datashop case as an internal investigation. That summary note also states that the internal investigation relating to the Datashop network revealed the central role of Planistat, and for that reason OLAF opened an external investigation with respect to that company on 18 March 2003.

120. However, it is apparent from the note of 1 July 2003 (see paragraph 34 above) concerning the Cocobu meeting and the exchange of views with the Secretary-General of the Commission and the Director-General of OLAF of 30 June 2003 that that characterisation was not clear. According to that note, the Director-General of OLAF had observed that the internal and external parts overlapped in the Eurostat case and, more specifically, that in the Eurocost and Eurogramme cases the external part was almost closed, that it had been forwarded to the Luxembourg judicial authorities and that the Datashop and Planistat cases displayed the same overlap between the external and internal parts.

121. Furthermore, in OLAF’s Supervisory Committee’s report of 15 January 2004, drafted at the request of the Parliament concerning questions of procedure raised in the investigations relating to Eurostat, the Supervisory Committee stated that:

‘OLAF also experienced difficulties in implementing the provisions of the rules on internal investigations, on the one hand, and external investigations, on the other. Initially, OLAF opened external investigations and it was only when it became apparent that officials might be involved that internal investigations were opened. This purely administrative division of the same files gave rise to confusion.’

122. It is apparent from the file that, at least at the end of the investigations, the Eurocost, Datashop and CESD Communautaire cases were internal cases, while the Eurogramme and Planistat cases were external cases. However, it is also apparent from the file that the Datashop and Planistat cases were closely linked.

123. It is important to determine the nature of the forwarding of the file to the French judicial authorities on 19 March 2003. In that regard, it should be observed that the fact that, in the letter and note of 19 March 2003, the reference mentions the Planistat external case (opened the previous day), and not the Datashop internal case, is irrelevant. Such a fact cannot breach procedural obligations linked with the internal investigations when officials are involved. Furthermore, in spite of the reference to an external case in the note of 19 March 2003, the investigators refer to the relevant provision of Regulation No 1073/1999 concerning the forwarding of the information obtained by OLAF in internal investigations. In the letter of 19 March 2003, it is not expressly stated whether the investigation is an internal or an external investigation. According to its subject, however, it concerned the ‘[f]orwarding of information relating to matters liable to be characterised as criminal’, which corresponds to the terms of Article 10(2) of Regulation No 1073/1999 on the forwarding of information obtained during internal investigations into matters liable to result in criminal proceedings. Thus, the fact that there is no mention of the internal case being referred to the national judicial authorities does not have the consequence that the rights of defence of the persons mentioned in that note can be ignored. In any event, after the case reference, there is a reference to ‘Eurostat/Datashop/Planistat’. Furthermore, the Director-General of OLAF himself stated in his note of 3 April 2003 (see paragraph 23 above) that the Datashop internal case, in which officials were involved, had been forwarded to the prosecution authorities in Paris (France).

124. Consequently, it must be considered that, for the purposes of these proceedings, the forwarding of the Eurocost case to the Luxembourg judicial authorities on 4 July 2002 concerned an internal investigation, as did the forwarding of the Datashop – Planistat file to the French judicial authorities on 19 March 2003.

125. Thus, the Court must examine whether OLAF infringed a rule of law conferring rights on individuals when it forwarded the internal investigation files to the national judicial authorities.

Informing the applicants, the Commission and OLAF’s Supervisory Committee

– Informing the applicants

126. The applicants claim that they were not informed in advance that the Datashop – Planistat file was being forwarded to the French judicial authorities, nor was Mr Franchet informed that the Eurocost file, in which Mr Byk was not implicated, was being forwarded to the Luxembourg judicial authorities. Accordingly, OLAF deliberately disregarded the principle of sound administration, the inter partes principle, the rights of the defence and the requirement of an investigation of the incriminating and exonerating evidence enshrined, in particular, in the ECHR and the Charter. They also refer to Article 4 of Decision 1999/396.

127. The Court observes that provision is made for informing the officials concerned only in the context of internal investigations, in Article 4 of Decision 1999/396, whereby the Commission defined the implementation of the terms and conditions for internal investigations.

128. It is clear from the provisions of the first paragraph of Article 4 of Decision 1999/369 that the official concerned must be informed rapidly that he may be personally implicated, as long as this would not be harmful to the investigation, and that, in any event, conclusions referring by name to an official 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 (order of the President of the Court of Justice in Case C‑471/02 P(R) Gómez-Reino v Commission [2003] ECR I‑3207, paragraph 63).

129. Failure to apply those provisions, which lay down the conditions under which observance of the rights of defence of the official concerned may be reconciled with the requirements of confidentiality inherent in any investigation of that kind, constitutes an infringement of the essential procedural requirements applicable to the investigation procedure (order in Gómez-Reino v Commission , paragraph 128 above, paragraph 64).

130. However, Article 4 of Decision 1999/396 does not expressly concern the forwarding of information to the national judicial authorities and therefore does not impose any obligation to inform the official concerned before such information is forwarded. Under Article 10 of Regulation No 1073/1999, OLAF may (in the case of external investigations) or must (in the case of internal investigations) forward information to the national judicial authorities. The forwarding of that information may therefore precede the ‘conclusions drawn at the close of the investigation’, which are normally included in the investigation report.

131. Furthermore, according to the order in Gómez-Reino v Commission , paragraph 128 above, paragraph 68, the conclusions drawn by OLAF once the investigation has been completed, which refer to an official by name, within the meaning of Article 4 of Decision 1999/396, are bound to be those contained in a report drawn up under the authority of the Director of OLAF, as laid down in Article 9 of Regulation No 1073/1999, and the actions which may be taken following the internal investigation by the institution concerned may be inter alia disciplinary and legal.

132. Thus, it is quite possible to take the view that, at the time when the information was forwarded to the national judicial authorities, there was no report within the meaning of Article 9 of Regulation No 1073/1999 that was submitted to the Commission by OLAF and that personally implic ated the applicants.

133. However, it is still appropriate to examine whether the ‘information’ forwarded to the Luxembourg and French judicial authorities must be understood as meaning that it contains ‘conclusions referring by name’ to the applicants.

134. As regards, first, the forwarding of the Eurocost file to the Luxembourg judicial authorities on 4 July 2002, it is stated in the covering note that neither Mr Franchet nor the representatives of Eurocost have been heard by OLAF, and that that is a deliberate decision, in order not to compromise the outcome of the judicial investigation. Thus, there is no doubt that Mr Franchet was not heard concerning that file before it was forwarded to the Luxembourg judicial authorities.

135. In that note, it is stated that Mr Franchet is one of the founders, and has also been president, vice-president and a member of Eurocost, that he was regularly present at general meetings of Eurocost and that he signed the contract of employment of the Director of Eurocost at the time when he was president. The Director-General of OLAF emphasises that there is a potential conflict of interests and that the findings of an internal audit reveal numerous irregularities and cases of fraud against Eurostat by the management of Eurocost. Concerning ‘accounting manipulations designed to conceal fraud against Eurostat’, it is stated that the existence of tacit agreements with Eurostat on that matter was mentioned. The ‘double and even triple financing of certain costs’ are also mentioned.

136. It must be observed that that covering note, which expressly mentions Mr Franchet concerning a potential conflict of interests, must be interpreted as containing ‘conclusions referring by name’ to Mr Franchet. In that regard, it is also appropriate to emphasise that, in the note of 3 April 2003 (see paragraph 23 above), the Director-General of OLAF stated that, ‘[b]y letter of 10 July 2002, the Luxembourg public prosecutor did not object to the officials charged being heard by the OLAF investigators’ and that ‘the Director-General [of Eurostat] might be involved’.

137. As regards, second, the forwarding of the Datashop – Planistat file to the French judicial authorities on 19 March 2003, it is common ground that the applicants were neither informed nor able to express their views on the file before it was forwarded to those authorities. Next, it must be borne in mind that the letter of 19 March 2003 had as its subject the ‘[f]orwarding of information relating to matters liable to be characterised as criminal’ and the accompanying note ‘[d]enouncement of matters liable to be characterised as criminal’.

138. In the letter of 19 March 2003, the Director-General of OLAF states that, subject to the assessment of the French judicial authorities, ‘it would appear that OLAF has unearthed fraudulent activities which have harmed the Community budget and which are liable to be characterised as criminal’, explaining that ‘[t]he investigation has revealed that these matters were the work of the operators of the company Planistat Europe SA, whose registered office is in Paris, with the active complicity of European officials’.

139. In the note of 19 March 2003, it is stated, in the context of a ‘[h]istory of the matters covered by the investigation’, at paragraph 2.3, entitled ‘Findings made during the investigation’, that a report of the Eurostat internal audit dated September 1999 concerning the Datashops in Brussels (Belgium), Luxembourg (Luxembourg) and Madrid (Spain), on the basis of which the OLAF investigation had begun, ‘ha[d] revealed numerous irregularities committed in the context of the management of those three Datashops in the years 1996 to the end of 1999’ and that, ‘[i]n this case, a significant part of the turnover “declared” by those three Datashops – between 50 and 55% – was placed in a slush fund the use of which was subject to the authorisation of an official of [Eurostat]’.

140. That note also states that ‘[t]he only persons with an overall view of that whole case are the management of Groupe Planistat and probably Mr Byk, Head of Unit at Eurostat, of French nationality’; that false invoices ‘were paid from the slush fund … after being approved by Mr Daniel Byk, Director at Eurostat, of French nationality’; that ‘[a]pproximately [EUR] 922 500 ha[d] thus been invoiced and paid’; and that, ‘by using slush funds, Eurostat ha[d] thus settled a significant deficit of Planistat Europe SA which ought normally have remained the responsibility of the Commission’s contracting partner’; the note further stated that ‘the slush fund ha[d] also been used to pay restaurant, hotel and travel expenses … incurred by certain Eurostat officials, including Mr Byk’.

141. In the description of the criminal offences in question, at paragraph 3.1, entitled ‘Breach of trust’, the note states:

‘The setting-up by certain Community officials of a network of economic operators, one of the objectives of which is to conceal from the Commission part of the revenues from the sale of products or of Community statistical services, may constitute the misappropriation “of funds, securities or any property whatsoever” as provided for in Article 314-1 of the Criminal Code, defining breach of trust. All of the constituent elements of the offence were carried out jointly by the Community officials, the management of the Planistat group and the management of the Datashops concerned. The Community officials could not fail to be aware of the financial regulation in force, which obliged them to hand over the revenues in full.

Furthermore, the same Community officials used the sums in question for purposes incompatible with the Community interest in so far as that money was clearly used to pay expenses not provided for in the contract between Planistat Europe SA and the Commission, or even those officials’ personal expenses. The fraudulent intent follows from that use for purposes other than Community purposes.’

142. After dealing with the issue of the offence of breach of trust, concerning Planistat, the note states at paragraph 3.3, entitled ‘Criminal association’:

‘According to Article 450-1 of the Criminal Code, “[a] criminal association consists of any group formed or any conspiracy established with a view to the preparation, marked by one or more material actions, of one or more serious offences or one or more less serious offences punishable by at least five years’ imprisonment …”

It remains to be determined whether that characterisation may also be applied in the context of the present case, in so far as the looting of Community funds could not have taken place without the association of the officials, the management of Planistat and the management of Datashops who committed offences of breach of trust.

…’

143. Last, at paragraph 3.5, entitled ‘Application of French law to offences committed abroad by French nationals’, the note states:

‘…

In the context of the present case, Mr Yves Franchet, Director of Eurostat, and Mr Daniel Byk, Head of Unit at Eurostat, both officials of the European Commission, based in Luxembourg, who may have set up the system in whole or in part, are of French nationality.

All the elements developed above permit the assertion that OLAF is faced with a vast enterprise of looting of Community funds having as its basis a series of facts capable, subject to the assessment of the competent judicial authority, of being characterised as criminal.

It is therefore appropriate to forward the present note and the documents annexed thereto to the [p]ublic [p]rosecutor in Paris.’

144. It is clear from the note of 19 March 2003 that it contains ‘conclusions referring by name’ to the applicants.

145. Consequently, before the Eurocost file was forwarded to the Luxembourg judicial authorities, as regards Mr Franchet, and before the Datashop – Planistat file was forwarded to the French judicial authorities, as regards Mr Franchet and Mr Byk, the latter were entitled, in principle, to be informed and heard with respect to the facts concerning them, on the basis of Article 4 of Decision 1999/396.

146. However, that article provides for an exception 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. In such cases, the obligation to invite the official concerned to give his views may be deferred in agreement with the Secretary-General of the Commission. Thus, in order to defer informing the official concerned, the twofold condition consisting of the need to maintain absolute secrecy for the purpose of the investigation and the requirement to use investigative procedures falling within the remit of a national judicial authority must be satisfied. In addition, it is necessary to obtain the prior agreement of the Secretary-General of the Commission.

147. In that regard, as concerns the forwarding of the Eurocost file to the Luxembourg judicial authorities, it follows from a letter of 2 August 2002 from the Secretary-General of the Commission to the Director-General of OLAF that the former agreed that the persons concerned should not be informed. The Secretary-General gave the following reasons: ‘[p]ending the outcome of the discussions between [their] services about the way to improve existing procedures, [he could] mark [his] agreement with [the] proposal [of the Director-General of OLAF] not to inform the parties concerned in the case cited above’. Thus, the Secretary-General of the Commission did not mention either of the conditions referred to above. In any event, his consent was given after the file in question had been forwarded.

148. As regards the forwarding of the Datashop – Planistat file to the French judicial authorities, it follows from the note of 3 April 2003, which therefore post-dated the forwarding of the file on 19 March 2003, that the Director-General of OLAF stated in that note that officials of Eurostat and of the Office for Official Publications of the European Communities were involved, that that part had been transmitted to the French judicial authorities and that it was appropriate to defer informing the officials in accordance with Article 4 of Decision 1999/396 owing to the necessity to maintain absolute secrecy for the purposes of the investigation. However, there is no reference to the second condition referred to above.

149. Furthermore, in answer to a written question put by the Court, the Commission confirmed that its Secretary-General ‘ha[d] not had the opportunity to give his agreement to defer the obligation to invite the applicants to express their views’.

150. Consequently, the conditions for the application of the exception provided for in Article 4 of Decision 1999/396, which allows OLAF to defer informing the person concerned, were not satisfied in this case.

151. It must be observed that the obligation to seek and obtain the agreement of the Secretary-General of the Commission is not a mere formality that might, in an appropriate case, be complied with at a later stage. The requirement to obtain such agreement would lose its rationale, which is to ensure that the rights of defence of the officials concerned are respected, that OLAF can defer informing them only in truly exceptional cases and that the assessment of that exceptional nature is not a matter solely for OLAF but also requires the assessment of the Secretary-General of the Commission.

152. In those circumstances, OLAF infringed Article 4 of Decision 1999/396 and the applicants’ rights of defence when it forwarded the Datashop – Planistat file to the French judicial authorities and it also infringed that article and Mr Franchet’s rights of defence when it forwarded the Eurocost file to the Luxembourg judicial authorities.

153. It is incontestable that the rule of law infringed in this case, which provides that persons being investigated must be informed and enabled to express their views on all the facts which concern them, confers rights on individuals (see, to that effect and by analogy, the judgment of 12 September 2007 in Case T‑259/03 Nikolaou v Commission (not published in the ECR), paragraph 263).

154. Admittedly, Article 4 of Decision 1999/396 confers a margin of discretion on OLAF in cases necessitating the maintenance of absolute secrecy for the purposes of the investigation and requiring the use of investigation procedures falling within the remit of a national judicial authority (see, by analogy, Nikolaou v Commission , paragraph 153 above, paragraph 264). However, as regards the procedures for the adoption of the decision to defer informing the officials concerned, OLAF has no discretion. Nor does OLAF have any discretion as regards the verification of the conditions for the application of Article 4 of Decision 1999/396.

155. As stated above, the terms and conditions for the application of that exception were not observed in the present case, as OLAF did not refer to the implementation of such investigation procedures and did not seek, let alone obtain, the agreement of the Secretary-General of the Commission in a timely manner to defer the mandatory invitation to the official concerned by the investigation to express his views.

156. In those circumstances, by failing to fulfil its obligation to inform the official concerned, OLAF committed a sufficiently serious breach of a rule of law conferring rights on individuals.

– Informing the Commission

157. The applicants claim that the Commission was not informed in advance that the Eurostat files were being forwarded to the Luxembourg and French judicial authorities by OLAF. The Court considers that that argument must be taken to mean that it is necessary to determine whether the Commission had to be informed other than as provided for in Article 4 of Decision 1999/396, so that its Secretary-General could give his agreement, which was examined above.

158. In that regard, it must be borne in mind that, pursuant to Article 10 of Regulation No 1073/1999, OLAF is to forward to the judicial authorities of the Member State concerned the information obtained during internal investigations into matters liable to result in criminal proceedings, while, in the context of external investigations, the forwarding of such information is purely optional. In the present case, it should be noted that the investigation reports had not yet been drawn up and that, accordingly, the forwarding of the files consisted initially in the forwarding of information, even though the files contained conclusions referring by name to the applicants, and not in the forwarding of investigation reports, governed by Article 9 of Regulation No 1073/1999. Under Article 10(3), the forwarding to the institution concerned of the information obtained during internal investigations is also optional. That article contains no requirement to inform the institution concerned at the same time as, or before, the information is forwarded to the national judicial authorities.

159. The requirement to inform the institution concerned in the context of internal investigations is provided for in Article 4(5) of Regulation No 1073/1999. However, that provision prescribes no time-limit for providing that information. It does not provide, for example, that the institution concerned must be informed before the information is forwarded to the national judicial authorities. Furthermore, it contains an exception in cases requiring absolute secrecy for the purposes of the investigation. In such a case, OLAF may defer informing the institution. It is apparent from the file that OLAF considered that, at least as regards the Datashop – Planistat file, it was necessary to maintain absolute secrecy for the purposes of the investigation (see the note of 3 April 2003, cited at paragraph 23 above). It should be observed that it is within OLAF’s discretion to decide whether that exception must be applied.

160. In the present case, OLAF was not required to inform the Commission before forwarding the information to the national judicial authorities on the basis of Article 4(5) of Regulation No 1073/1999.

161. Accordingly, OLAF did not infringe Articles 4 and 10 of Regulation No 1073/1999 by not informing the Commission before forwarding the information to the national judicial authorities.

162. In any event, the applicants have not demonstrated how the fact that the Commission was not informed before the information was forwarded to the national judicial authorities adversely affected their rights, subject to the considerations developed in the context of the application of Article 4 of Decision 1999/396. The provisions referred to in the preceding paragraph do not contain rules of law conferring rights on individuals which are enforced by the Community Courts.

– Informing OLAF’s Supervisory Committee

163. The applicants claim that OLAF’s Supervisory Committee, too, was not informed before information was forwarded to the Luxembourg and French judicial authorities.

164. In that regard, the Court observes that, pursuant to Article 11(7) of Regulation No 1073/1999, in the context of the regular monitoring of the implementation of the investigative function carried out by the Supervisory Committee, ‘[t]he Director [of OLAF] shall inform the committee of cases requiring information to be forwarded to the judicial authorities of a Member State’. It should be observed that the wording of that provision indicates that the committee must be informed before the information is forwarded to the national judicial authorities. Otherwise, it would not refer to ‘cases requiring information to be forwarded’, an expression which refers to a future event. That interpretation is also supported by the declaration of the Chairman of OLAF’s Supervisory Committee before the House of Lords Select Committee on the European Union of 19 May 2004, where the Chairman stated that ‘OLAF ha[d] an obligation to tell the [Supervisory Committee] before it refer[red] anything to a judicial authority’.

165. It follows from the Commission’s answer to the written question put by the Court that on 25 October 2002 the Director-General of OLAF informed the Supervisory Committee that the Eurocost and Eurogramme files had been forwarded to the Luxembourg judicial authorities, that is to say, he informed the Supervisory Committee after the information had been forwarded on 4 July 2002. Likewise, on 24 March 2003 the Supervisory Committee was informed that the Datashop – Planistat file had been forwarded to the French judicial authorities, and was thus also informed after the information had been forwarded on 19 March 2003.

166. Accordingly, OLAF infringed Article 11(7) of Regulation No 1073/1999. However, it is still necessary to examine whether that provision contained a rule of law conferring rights on individuals which are enforced by the Community Courts.

167. In that regard, it must be borne in mind that, even though, under Article 11(1) of Regulation No 1073/1999, OLAF’s Supervisory Committee does not interfere with the conduct of investigations in progress, pursuant to Article 2 of its Rules of Procedure, it is to ensure ‘that OLAF activities are conducted in full compliance with human rights and fundamental freedoms and in accordance with the Treaties and with secondary legislation, including the Protocol on the Privileges and Immunities of the European Communities and the Staff Regulations of officials’.

168. Thus, the Supervisory Committee’s task is to protect the rights of persons who are the subject of OLAF investigations. Therefore, it cannot be disputed that the requirement to consult that committee before forwarding information to the national judicial authorities is intended to confer rights on the persons concerned.

169. Accordingly, it must be held that, by infringing Article 11(7) of Regulation No 1073/1999, OLAF infringed a rule of law conferring rights on individuals.

170. Furthermore, since Article 11(7) of Regulation No 1073/1999 provides that the obligation to inform the Supervisory Committee is unconditional and leaves no margin of discretion, the infringement is sufficiently serious.

Influence brought to bear on the national judicial authorities

171. The applicants claim that OLAF ‘steered’ the French judicial authorities by already characterising as criminal facts which it had believed it could identify in the Eurostat case, which is contrary to its role of carrying out administrative investigations.

172. The Court observes that the action taken by the national authorities in response to the information forwarded to them by OLAF is within their sole and entire responsibility. It is thus for those authorities themselves to ascertain whether such information justifies or requires the bringing of criminal proceedings. Consequently, judicial protection against such proceedings must be ensured at national level with all the guarantees provided by domestic law, including those which follow from the fundamental rights that, as an integral part of the general principles of Community law, must also be observed by the Member States when they implement Community rules (judgments in Case 5/88 Wachauf [1989] ECR 2609, paragraph 19, and Joined Cases C‑20/00 and C‑64/00 Booker Aquaculture and Hydro Seafood [2003] ECR I‑7411, paragraph 88, and order of the President of the Court of Justice in Case C‑521/04 P(R) Tillack v Commission [2005] ECR I‑3103, paragraph 38).

173. The applicants’ argument relating to the influence brought to bear on the national judicial authorities is therefore inoperative.

2. The disclosure of information by OLAF

a) Arguments of the parties

174. The applicants take issue with OLAF for having breached the obligation to maintain confidentiality, laid down, in particular, in Articles 8 and 12 of Regulation No 1073/1999, the principle of sound administration, and the principle of the presumption of innocence. First, there were leaks with respect to the forwarding of the Datashop – Planistat file to the French judicial authorities. The applicants learned from the press in May 2003 of the accusations against them and of the fact that the matter had been referred to the French judicial authorities.

175. Second, those leaks continued. In the applicants’ submission, the leaks are based on matters deriving either from the report and the information communicated to the national judicial authorities, or directly from the applicants’ interviews with OLAF’s investigators between 23 June and 4 July 2003. The origin of the leaks is therefore well established. The explanations provided to OLAF’s investigators were to be found the following day or a few days later, transcribed, almost word for word, in the press.

176. The communication by OLAF, on 24 September 2003, to the President of the Commission of the ‘summary of the Eurostat cases now closed’ also constitutes a breach of the obligation of confidentiality. That document was not communicated to the applicants and the Director-General of OLAF must have been aware that it would be used publicly by the President of the Commission the following day and had been circulated publicly in the Parliament on the previous day.

177. Furthermore, OLAF publicly – including by leaks to the press – designated the applicants as being guilty of a number of criminal offences, which encouraged belief in their guilt and prejudged the assessment of the facts by the French court, thus breaching the principle of the presumption of innocence. The Director-General of OLAF made statements to the press and before Cocobu, characterising the case as grave and serious; his statements thus contained a judgment on the case, although the investigations were still in progress. Accordingly, OLAF also failed to respect the obligation to maintain confidentiality.

178. The Commission disputes the applicants’ arguments and asserts that it is for them to demonstrate the truth of their accusation or their charge, which is seriously detrimental to OLAF’s honour.

179. As regards the communication of the ‘summary of the Eurostat cases now closed’ of 24 September 2003, the Commission refers to Article 10 of Regulation No 1073/1999 and states that, even if the investigation concerned was an external investigation, OLAF was also entitled to forward the information to the Commission, since the Commission was concerned from the aspect of the protection of the Community’s financial interests.

180. Last, the Commission contends that the complaint concerning breach of the presumption of innocence is wholly unfounded. OLAF could not take any judicial or disciplinary decision against the applicants, as it is not a judicial or disciplinary organ. Even if a breach of the presumption of innocence might also emanate from other public authorities, the applicants have not demonstrated in what circumstances OLAF designated the applicants publicly as being guilty of a number of criminal offences.

b) Findings of the Court

The leaks

181. The applicants maintain, first, that there were leaks with respect to the communication of the Datashop – Planistat file to the French judicial authorities and, second, that those leaks continued.

182. The Court observes that, according to the case-law, it is for the applicant, in an action for damages, to establish that the conditions on which the Community incurs non-contractual liability within the meaning of the second paragraph of Article 288 EC are satisfied (Case T‑273/01 Innova Privat-Akademie v Commission [2003] ECR II‑1093, paragraph 23, and Case T‑146/01 DLD Trading v Council [2003] ECR II‑6005, paragraph 71). Thus, in so far as the applicants have not established in the present case that the publication of information concerning the investigation of which they had been the subject resulted from the disclosure of information attributable to OLAF, such publication could not in principle be construed against OLAF (see, to that effect, Nikolaou v Commission , paragraph 153 above, paragraph 141).

183. The strict application of that rule may be mitigated, however, where a harmful event may have been the result of a number of different causes and where the Community institution has adduced no evidence enabling it to be established to which of those causes the event was imputable, although it was best placed to provide evidence in that respect, so that the uncertainty which remains must be construed against it (see, to that effect, Joined Cases 169/83 and 136/84 Leussink-Brummelhuis v Commission [1986] ECR 2801, paragraphs 16 and 17). It is appropriate to adopt that approach when examining whether the applicants have established that certain information had been disclosed by OLAF or one of its servants, without prejudice, at this stage of the Court’s assessment, to whether any such disclosures constitute unlawful conduct on the part of OLAF (see, to that effect, Nikolaou v Commission , paragraph 153 above, paragraph 142).

– The existence and the content of the leaks

184. It should be observed that the existence of leaks must be considered an acknowledged fact in the present case. The Commission itself admitted at the hearing that ‘there [had been] a communication to the national judicial authorities, [that] there [had] certainly been leaks at one time or another which [had] meant that, some weeks later, it [had] appeared in the press’. In spite of that general admission of the existence of leaks, the Commission insists that it is for the applicants to demonstrate that leaks originating in OLAF took place. The applicants, for their part, accept that they have no documentary evidence that a particular person was at the origin of the leaks, but assert that a body of indicia and presumptions indicate that there had been leaks from OLAF.

185. In that regard, it should be noted that the minute of the appearance of the Secretary-General of the Commission before OLAF’s Supervisory Committee on 3 September 2003 mentions the existence of leaks. It is appropriate to cite a passage from that minute, which the Commission had sought to have removed from the file and which demonstrates the existence of difficulties:

‘As regards the problems of hearing the persons, I fully agree, it is a real problem. It can all work if confidentiality is maintained. If there is really confidentiality, a file drawn up by OLAF is sent to the prosecution and it is for the prosecution to determine whether or [not] the persons must be heard. That is all very well if there are no leaks. Unfortunately, at the moment, [in] OLAF, everything [gets out]. Thus, the so-called confidentiality – [let’s say] I am [Mr Franchet or Mr Byk], I [read] in the Financial Times that I am accused of having plundered Community funds. I’m sorry, but your reputation is destroyed. There is no way, even if [they are completely cleared] later, those people, they are destroyed, professionally and even personally. Therefore, it is serious, all that. One is playing with [people’s] careers, the[ir] personal life, the[ir] integrity. Therefore, in my opinion, so long as leaks have not been avoided, it is necessary to pay great attention to what one writes and to what one says; one must be somewhat prudent.’

186. Furthermore, according to the note from the secretariat of OLAF’s Supervisory Committee for the attention of the Chairman of the Supervisory Committee, dated 27 May 2003:

‘Various articles which have appeared, in particular, in the German press, and then in the French press, have referred to the forwarding of the information from OLAF to the prosecution authorities in Paris.

The leaks in the German press appear to have been well synchronised, with, on the one hand, the visits to Germany of certain OLAF officials and, on the other, the ceremonies marking Eurostat’s [50th] anniversary.

The attached article from the newspaper Libération , published on 22 May 2003, was, it appears, drawn up on the sole basis of the communication by OLAF to the prosecution authorities in Paris. The article is signed by two journalists based in Brussels, giving the impression that the leak originated in Brussels and not in Paris.’

187. Likewise, according to the report of OLAF’s Supervisory Committee of 15 January 2004, drafted at the request of the Parliament concerning procedural questions raised by the investigations relating to Eurostat:

‘The conduct of this case was marked by the communication to the press and to the institutions by OLAF, intentionally or unintentionally, of information and statements which, as they adversely affected the individual rights of the persons under investigation, and also the proper conduct of the investigation, ought to have been treated confidentially.’

188. It also follows from the note of 1 July 2003 (see paragraph 34 above) that the leaks were an accepted fact for the Director-General of OLAF, since he had stated: ‘As regards the leaks, the Commission’s security service is investigating.’

189. In those circumstances, it must be observed that the existence of leaks is already sufficiently established on the basis of the documents cited above.

190. In their answer to a written question put by the Court, the applicants state that the information and the terms used in OLAF’s letter and note of 19 March 2003 form the basis of a first series of articles or public comments in the media or by Members of the European Parliament who clearly had access to those documents. They cite a number of press articles in that regard.

191. In its observations on the applicants’ answer, the Commission disputes the fact that the press articles produced prove the existence of leaks, in particular from OLAF, and states that the applicants are making an assertion without proof. The Commission claims that there is nothing in those articles to confirm that OLAF was the source of the leaks relating to the communication made to the French judicial authorities on 19 March 2003 or to any other event.

192. In that regard, the Court observes that the press articles produced by the applicants support the existence of the leaks. They contain references, in particular, to a ‘well-informed source’ and also direct quotations from the letter and note of 19 March 2003 sent to the French judicial authorities.

193. It is still appropriate to cite certain of those articles in order to examine the content of the leaks in greater detail.

194. According to an article which appeared in the Süddeutsche Zeitung on 26 April 2003:

‘It ought to be a holiday. On 16 May the Statistical Office of the European Communities will be 50 years old …

It may be, however, that the holiday will be less grand than expected. Just before that great jubilee, the management of Eurostat is under fire from the critics. According to information received by the Süddeutsche Zeitung , internal audits have led to serious accusations. These relate to “slush funds” that drained funds from bodies financed by the European Union. For some months OLAF … has been actively investigating the matter.

… From 1999 at the latest, at least EUR 900 000 – corresponding to the income from those “Data Shops” were diverted from official accounts. Senior officials are suspected of having diverted funds for themselves from those slush funds.

Too little is still known about the details. All the participants must be presumed innocent until the contrary has been proved. If the accusations were to persist, one would then be dealing with a particularly audacious fraud. …

Suspicion has also fallen on the management, headed by the Frenchman Yves Franchet. Franchet is one of the founders of the company Eurocost, which has long received financial assistance from the [s]tatistical [o]ffice. As the European Parliament stated in March, Eurocost is accused, in particular, of having fiddled its accounts. …

With this new accusation of slush funds, the Eurostat case could be revived. According to a Member of the European Parliament, Ms S.: “If this serious charge is confirmed, the case will then assume a new dimension” …’

195. On 16 May 2003, another article in the Financial Times reported that:

‘French prosecutors have opened a criminal investigation into allegations of a “vast enterprise of looting” of European Union funds, involving the two most senior officials of Eurostat …

…

… news of the French inquiry broke in the midst of this week’s five-day celebrations marking Eurostat’s 50th anniversary …

The investigation by the Tribunal de Grande Instance in Paris is so far not directed against any individuals. However, it was launched in response to a probe by OLAF … against two high-ranking French officials – Yves Franchet, Eurostat’s long-serving [D]irector-[G]eneral, and Daniel Byk, a direct