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JUDICIAL REVIEW OF INVESTIGATIVEACTS OFTHE EUROPEANANTI-FRAUD
OFFICE (OLAF):A SEARCH FORA BALANCE
JAN F.H. INGHELRAM*
1. Introduction
OLAF, structurally a part of the European Commission, was
established byCommission Decision of 28 April 19991 in the wake of
the incidents thattriggered the resignation of the Santer
Commission. Its competences areprimarily governed by Regulation No
1073/1999 of the European Parliamentand of the Council of 25 May
1999.2
OLAF has far-reaching powers of investigation, which include,
amongstothers, the power to obtain unannounced access to premises
of economicoperators and offices of EU officials as well as to
documents and computerdata held by them.When carrying out internal
investigations, OLAF also hasthe power to assume custody of such
documents and data.3Moreover, whereasOLAF has to rely on the
assistance of Member State authorities to have itspowers of
investigation enforced, if necessary, in the context of
external
* LL.M, Dr. iur., Rfrendaire at the ECJ. The views expressed in
this article are entirelypersonal. The article is inspired by and
further develops the analysis on judicial review inInghelram, Legal
and Institutional Aspects of the European Anti-Fraud Office (OLAF)
AnAnalysis with a Look Forward to a European Public Prosecutors
Office (Europa LawPublishing, 2011). The author is grateful to
C.W.A. Timmermans and P.-J. Loewenthal for theirvaluable comments
on an earlier draft.
1. O.J. 1999, L 136/20, hereinafter the OLAF Decision.2. O.J.
1999, L 136/1, hereinafter the OLAF Regulation. See on OLAF e.g.
Braum,
Justizfrmigkeit und europische Betrugsermittlung Bemerkungen zum
Fall Eurostat (EuGT-48/05, Urteil vom 8. 7. 2008), (2009) JZ,
298304, Groussot and Popov, Whats wrongwithOLAF?Accountability, Due
Process and Criminal Justice in European Anti-Fraud Policy, 47CML
Rev. (2010), 605643, and Stefanou, White and Xanthaki, OLAF at the
Crossroads Action against EU fraud. Its main mission is to carry
out administrative investigations in theMember States and in third
countries (external investigations) as well as within the
EUinstitutions, bodies, offices and agencies (internal
investigations), in view of the protection ofthe EUs financial
interests. (Hart, 2011).
3. See, in relation to external investigations, Council Reg.
(Euratom, EC) No 2185/96 of 11Nov. 1996 concerning on-the-spot
checks and inspections carried out by the Commission inorder to
protect the European Communities financial interests against fraud
and otherirregularities, O.J. 1996, L 292/2 (applicable to OLAF
investigations by virtue of the OLAFRegulation,Art. 3), and, in
relation to internal investigations, OLAF Regulation,Art. 4(2),
firstindent.
Common Market Law Review 49: 601628, 2012. 2012 Kluwer Law
International. Printed in the United Kingdom.
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investigations,4 this enforcement is essentially in the hands of
OLAF itselfwhen it carries out investigations in the EU
institutions, bodies, offices andagencies.5 Particularly in the
latter context, OLAFs powers of investigationmay therefore be
viewed as approaching policing measures.6
Such extensive powers of investigation undoubtedly serve an
effectiveprotection of the EUs financial interests, an area in
which OLAF has becomea major player. The other side of the coin,
however, is that the exercise of suchpowers is likely to affect the
lives and careers of persons under investigation aswell as touch
upon their fundamental rights, especially the rights of thedefence
and the right to privacy.7 The question which is the subject of
thisarticle is what role judicial review can or should play in
effectively protectingthe fundamental rights of persons under
investigation by OLAF, taking intoaccount the specific
investigative mission of that Office.The main part of this article
will consist of an overview of the different
kinds of judicial review which could be relevant in relation to
measures takenby OLAF in the exercise of its investigative mission
(hereinafter: OLAFinvestigative acts), thereby following the
distinction between direct andindirect judicial review (sections 2
and 3 below). This overview will befollowed by considerations on
the possible contribution of the fundamentalright to an effective
remedy, as provided for by Article 47 of the Charter ofFundamental
Rights of the EU, to the debate on judicial review of
OLAFinvestigative acts (section 4 below), before arriving at some
concludingremarks (section 5 below).
2. Direct judicial review
Direct judicial review occurs when an OLAF investigative act is
the object ofan action before a court. This kind of review is
exercised by the EU courts.Possible judicial actions include the
action for annulment and the action fordamages, combined, if
necessary, with a request for interim relief. However,before
discussing these procedures (see 2.2 to 2.4 below), a
particularityresulting from OLAFs special organizational structure
should be mentioned.
4. See Council Reg. No 2185/96, Art. 9, and OLAF Regulation,
Art. 6(6).5. See further on the enforcement of OLAFs powers of
investigation, Inghelram, op. cit.
supra note *, pp. 100101.6. Wade, OLAF and the push and pull
factors of a European criminal justice system,
(2008) Eucrim The European Criminal Law Associations Forum,
128132, 129.7. See further Inghelram, op. cit. supra note *, pp.
8892, 103107, 127168.
CML Rev. 2012602 Inghelram
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2.1. The European Commission as the defending party
Any action relating to an OLAF investigative act must be brought
against theEuropean Commission, not against OLAF directly, as the
latter does not havelocus standi before the EU courts.8 This
results from the fact that OLAF isstructurally a part of the
Commission. As such, OLAF can be best comparedto a
Directorate-General of that institution. Its position is
neverthelessparticular as it has far-reaching independence, insofar
as its investigativemission is concerned, including from the
institution to which it belongs.9 TheCommission is therefore
legally responsible for investigative acts adopted byOLAF, although
it cannot give any instructions to the latter.It is true that OLAFs
lack of locus standi before the EU courts does not
appear to have hampered judicial review of its investigative
acts as comparedto the situation in which those acts would have
been acts of the Commissionitself. Indeed, there do not as yet seem
to have been any problems in relation tothe execution of a judgment
of the EU courts byOLAFwhere the Commissionlost an OLAF-related
case. This particularity may nevertheless have
practicalconsequences, not only for the Commission, which has to
assume legalresponsibility for acts overwhich it has no influence,
but also forOLAF,whichmay have less control over decisions to be
taken in procedural matters, such asthe decision whether or not to
lodge an appeal against a judgment in anOLAF-related case.On amore
theoretical level, the situation in relation to the judicial review
of
OLAF investigative acts seems to be at odds with solutions
adopted in otherareas. For instance, for quite some time, satellite
agencies have been grantedlocus standi as a defendant before the EU
courts,10 in linewith theMeroni caselaw,11 notwithstanding the fact
that, with representatives of the Commissionon their administrative
or governing boards or councils,12 they are, in practice,less
independent from the Commission than OLAF.
8. CaseT-435/09R,GL2006Europev.Commission, [2010]ECRII-32*,
paras. 1316.How-ever,
theadministrativeprocedurewhichEUofficialsmust followbefore
introducinganaction incourt takes place before the Director-General
of OLAF. See on the particularities of that proce-dure, which will
not be dealt with further in this article, Inghelram, op. cit.
supra note *, pp.215216, 218220.
9. OLAF Decision, Art. 3, and OLAF Regulation, Art. 12(3).10.
See e.g.Art. 63 of Council Reg. (EC)No 40/94 of 20Dec. 1993 on the
Community trade
mark, O.J. 1994, L 11/1 (now replaced byArt. 65 of Council Reg.
(EC) No 207/2009 of 26 Feb.2009 on the Community trade mark, O.J.
2009, L 78/1).
11. Case 9/56,Meroni v.HighAuthority, [1958] ECR133, and the
parallel judgment in Case10/56, Meroni v. High Authority, [1958]
ECR 157.
12. See e.g. Art. 26(1) of Reg. (EC) No 881/2004 of the European
Parliament and of theCouncil of 29 Apr. 2004 establishing a
European railway agency (Agency Regulation), O.J.2004, L 164/1, as
amended by Reg. (EC) No 1335/2008 of 16 Dec. 2008, O.J. 2008, L
354/51.
Judicial review of OLAF 603
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Moreover, in Sogelma v. EuropeanAgency for Reconstruction
(EAR),13 theEUGeneral Court14 lifted all doubts as to whether locus
standi for the satelliteagencies should be expressly provided for
by the EU legislator. According tothe Court, this is not the case,
since it is a general principle that any act of aCommunity body
intended to produce legal effects vis--vis third parties mustbe
open to judicial review.15 Interestingly, one of the findings made
by theEU General Court was that, as a general rule, actions must be
directedagainst the bodywhich enacted the
contestedmeasure.16Moreover, the Courtrejected the EARs argument
that the action should have been introducedagainst the Commission,
precisely on the grounds that the latter had played nopart in the
decision-making process.17
This idea of having the author of a measure or decision appear
before theEU courts also underlies the ECJs case law on the
non-contractual liability ofthe EU.18 Notwithstanding that it is
the EU which has to make good damagecaused by its institutions and
that the EU is represented by the Commission,19
the ECJ has ruled that under the [EU] legal system . . . it is
in the interests ofa good administration of justice that where [EU]
liability is involved by reasonof the act of one of its
institutions, it should be represented before the Court bythe
institution or institutions against which the matter giving rise to
liability isalleged.20 This reasoning, based on the interests of a
good administration ofjustice, would seem to be readily applicable
to OLAF.It is, however, unlikely that the current solution, in
which the Commission
acts as the defending party before the EU courts where OLAF
investigativeacts are concerned, will change in the near
future.Although President Barrososuggested in September 2009 that
now that it is well established, OLAFshould be given full
independence outside the Commission,21 theCommissions latest
proposal of 17 March 2011 for an amendment of the
13. Case T-411/06, Sogelma v. European Agency for Reconstruction
(EAR), [2008] ECRII-2771.
14. The name EUGeneral Court will be used even if the judgments
were rendered beforethe entry into force of the Treaty of Lisbon,
when this judicial body was known as the Courtof First Instance of
the European Communities.
15. Para 37. The EU General Court referred in this respect to
Case C-294/83, LesVerts v.Parliament, [1986] ECR 1339.
16. Para 49.17. Para 51.18. Arts. 268 (ex 235 EC) and 340(2) (ex
288(2) EC) TFEU.19. Art. 335 TFEU (ex 282 EC).20. Joined Cases C-63
to 69/72, Werhahn Hansamhle and Others v. Council and
Commission, [1973] ECR 1229, para 7.21. Political Guidelines for
the next Commission, at p. 37; see (last visited on 5Jan.
2012).
CML Rev. 2012604 Inghelram
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OLAF Regulation22 does not provide for any change to OLAFs
currentinstitutional structure as a part of the Commission. Perhaps
the establishmentof a European Public Prosecutors Office will
provide the occasion for achange in this respect.23
2.2. The action for annulment
2.2.1. General trend: Inadmissibility of an action for
annulmentagainst an OLAF investigative act
Actions for annulment, which, if honoured, result in the act of
the EU entitybeing declared void, have been introduced against OLAF
investigative acts bynon-EU officials under Article 263(4) TFEU (ex
230(4) EC) and by EUofficials under Article 270 TFEU (ex 236 EC)
and Article 91 of the StaffRegulations24 in the past. These actions
have consistently been declaredinadmissible.25 This has been the
outcome in cases involving a decision toopen an investigation;26
acts performed in the course of an investigation;27 afinal report
drawn up by OLAF;28 a decision to close an investigation;29
adecision of OLAF not to annul investigative acts which had
beenaccomplished by one of its investigators who was allegedly in a
situation ofconflict of interest;30 a refusal by OLAF to inform a
person of certaininvestigative acts concerning the latter and to
allow the latter to defend himself
22. COM(2011)135 final.23. Suggestions that OLAF may become a
part of a European Public Prosecutors Office
have been made earlier, see further e.g. Groussot and Popov, op.
cit. supra note 2, 640 andStefanou, White and Xanthaki, op. cit.
supra note 2, p. 180.
24. Reg. No 31 (EEC), 11 (EAEC), laying down the Staff
Regulations of Officials and theConditions of Employment of Other
Servants of the European Economic Community and theEuropean Atomic
Energy Community, O.J. 1962, 45/1385, as last amended by Council
Reg.(EC) No 160/2009 of 23 Feb. 2009, O.J. 2009, L 55/1.
25. On the contrary, with regard to non-investigativeOLAF acts,
there are cases in which anaction for annulment has been declared
admissible, see Joined Cases T-391/03 & 70/04,Franchet and Byk
v.Commission, [2006] ECR II-2023, on access to information held by
OLAFunder Reg. (EC) No. 1049/2001 of the European Parliament and of
the Council of 30May 2001regarding public access to European
Parliament, Council and Commission documents, O.J.2001, L
145/43.
26. Case T-215/02, Gmez-Reino v. Commission, [2003] ECR-SC
I-A-345, para 50. Seealso Case C-471/02 P(R), Gmez-Reino v.
Commission, [2003] ECR I-3207, para 65.
27. Gmez-Reino v. Commission (T-215/02) , cited previous note,
para 50.28. Case T-29/03, Comunidad Autnoma de Andaluca v.
Comission, [2004] ECR II-2923,
para 40, Case T-4/05, Strack v. Commission, [2006] ECR-SC
I-A-2-83, para 51, and CaseC-237/06 P, Strack v. Commission, [2007]
ECR I-33*, para 63.
29. Strack v. Commission (T-4/05 & C-237/06 P), cited
previous note, paras. 51 and 63respectively.
30. Case T-96/03, Cams Grau v. Commission , [2004] ECR-SC
I-A-157, para 38.
Judicial review of OLAF 605
CornelHighlight
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in the context of the investigation;31 and OLAFs forwarding to
an EUinstitution of the report concluding an internal
investigation32 or to nationalprosecuting authorities of
information on internal investigations.33 Theserulings were
unaffected by the fact that procedural irregularities
andinfringements of essential procedural requirements had been
raised in theaction for annulment.34
The reason for a finding of inadmissibility in all these
caseswas the fact thatthe OLAF acts at issue were deemed not to
bring about a distinct change in theapplicants legal position. In
essence, it follows from the provisions of theOLAF Regulation in
particular the 13th recital in the preamble andArticle 9 that the
findings of OLAF set out in a final report do not automatically
leadto the initiation of judicial or disciplinary proceedings,
since the competentauthorities are free to decide what action to
undertake pursuant to a finalreport and, accordingly, are the only
ones that have the power to adoptdecisions capable of affecting the
legal position of persons in relation to whicha report recommends
proceedings be instigated.35 In Tillack v. Commission,36the EU
General Court added that Article 10(2) of the OLAF Regulationmerely
provides for the forwarding of information to national
judicialauthorities, which remain free, in the context of their own
powers, to assess thecontent and significance of that information
and to determine the action to betaken if necessary. Consequently,
the possible initiation of legal proceedingsfollowing the
forwarding of information by OLAF and the subsequent legalacts
belong to the sole and exclusive responsibility of the national
authorities.The inadmissibility of actions for annulment against
OLAF investigative
acts has provoked some surprise37 and criticism.38 It is
nevertheless difficult to
31. Gmez-Reino v. Commission (T-215/02), cited supra note 26,
para 55.32. Ibid., para 50.33. CaseT-193/04, Tillack v.Commission,
[2006] ECR II-3995, para 82, and CaseT-261/09
P, Commission v. Violetti and Others, judgment of 20 May 2010,
nyr, para 73. See also CaseC-521/04 P(R), Tillack v. Commission,
[2005] ECR I-3103, para 34.
34. Case T-309/03, Cams Grau v. Commission, [2006] ECR II-1173,
para 55.35. Comunidad Autnoma de Andaluca, cited supra note 28,
para 37; Cams Grau, cited
supra note 34, para 51, and Tillack (T-193/04), cited supra note
33, para 69.36. Tillack (T-193/04), cited supra note 33, para
70.37. See e.g. Prie and Spitzer on Art. 280 EC in von der Groeben
and Schwarze (Eds.),
Kommentar zum Vertrag ber die Europische Union und zur Grndung
der EuropischenGemeinschaft, 6th ed. (Nomos, 2004), Vol. 4, p.
1224. The authors contend that it will have tobe admitted that an
OLAF final report affects the legal position of a person. A certain
surprisethat this was not the case seems to result from an
apparently last minute reference to the Orderin CaseT-215/02
R,Gmez-Reino v.Commission, [2002] ECR-SC I-A-199, which was the
firstcase in which the admissibility of an action for annulment of
an OLAF investigative act hadbeen dealt with.
38. See, in particular with regard to Tillack (T-193/04), cited
supra note 33, Wakefield,Good governance and the European
Anti-Fraud Office, 12 EPL (2006), 549575, and the
CML Rev. 2012606 Inghelram
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contest the starting point of these decisions. Indeed, it is
settled case law thatonly measures the legal effects of which are
binding on, and capable ofaffecting the interests of, the applicant
by bringing about a distinct change inhis legal position are acts
or decisions which may be the subject of an actionfor
annulment.39
In this respect, it has been constantly held that, although this
test foradmissibility must be interpreted in light of the principle
of effective judicialprotection, such an interpretation cannot have
the effect of setting aside thetest without going beyond the
jurisdiction conferred by the Treaty on the EUcourts.40
Furthermore, where the case law has ruled that it is not the
moralinterests of the applicant but his legal position which needs
to be affected bythe act involved in order for the action for
annulment to be admissible,41 thiscase law is also based on the
traditional approach to admissibility.Thus far, there is only one
exception to the general trend of considering
actions for annulment against OLAF investigative acts
inadmissible, which isthe ruling of the Civil ServiceTribunal
inVioletti andOthers v.Commission.42The case had as its origin an
internal investigation by OLAF into the high rateof accidents
declared by members of personnel at the Ispra-site (Italy) of
theEuropean Commission and the equivalent high rate of invalidity
pensionsgranted to those members of personnel. In the context of
that investigation,OLAF forwarded information to the Italian
judicial authorities under Article10(2) of the OLAF Regulation. The
plaintiffs asked for the annulment of thedecision to forward the
information before the Civil Service Tribunal. One oftheir
arguments was that they should have been heard by OLAF before
thelatter took its decision. The Civil Service Tribunal agreed and
declared theiraction admissible and well-founded.
annotation byWakefield, 45 CML Rev. (2008), 199221. See also
Hetzer, Fight against fraudand protection of fundamental rights in
the European Union, 14 European Journal of Crime,Criminal Law and
Criminal Justice (2006), 2045, 44, according to whom
[c]ertaininvestigative acts ought to have been described as
potentially adversely affecting the personconcerned so as to make
them amenable to review before the investigation was concluded,
andBitter, Zwangsmittel im Recht der Europischen Union: Geteilte
Rechtsmacht in Europa, inZuleeg (Ed.), Europa als Raum der
Freiheit, der Sicherheit und des Rechts (Nomos, 2007), pp.1819.
39. See e.g. Case C-362/08 P, Internationaler Hilfsfonds
v.Commission, [2010] ECR I-669,para 51, and Case C-131/03 P,
Reynolds Tobacco and Others v. Commission, [2006] ECRI-7795, para
54.
40. See e.g. Reynolds Tobacco, cited previous note, para 81, and
Tillack (T-193/04), citedsupra note 33, para 80.
41. Cams Grau, cited supra note 34, para 56, and Strack
(C-237/06 P), cited supra note 28,paras. 6466.
42. Joined Cases F-5/05 & 7/05, Violetti and Others v.
Commission, judgment of 28 April2009, nyr.
Judicial review of OLAF 607
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In its reasoning on the admissibility, the Civil Service
Tribunal essentiallyfocused on the interplay between the
fundamental right of effective judicialprotection and the rights of
the defence. It also referred to the fact that thenature of
judicial protection is altered by the decision of the Director of
OLAFto forward information to the national judicial authorities.
Indeed, whereaspossible judicial protection is exercised by the EU
courts before this decisionis taken, it is exercised by national
courts thereafter.43
An appeal was brought before the EU General Court by the
Commissionagainst the ruling of the Civil Service Tribunal, which
led to an annulment ofthe ruling by the General Court in Commission
v. Violetti and Others.44 Thearguments of the Court were, as to
their substance, the same as thoseunderpinning the reasoning in
previous rulings finding actions for annulmentagainst OLAF
investigative acts inadmissible. The Court added, however, thatits
ruling did not imply that an action for annulment would never
beadmissible against an OLAF investigative act.45
2.2.2. Some further reflectionsIn the current case law, the
inadmissibility of actions for the annulment ofOLAF investigative
acts is essentially supported by the fact that thetransmission of
information (or a final report) by OLAF to national or
EUauthorities does not imply the existence of any obligation upon
theseauthorities to initiate proceedings against the person
mentioned in thatinformation (or report). Moreover, the EU General
Court has pointed out inCommission v. Violetti and Others46 that
even if such an obligation were toexist, this would not necessarily
transform the transmission of informationinto an act bringing about
a distinct change in the applicants legal position, asthe decision
(taken by an EU institution) to introduce a case in court is not
suchan act.47
From that perspective, it is indeed difficult to contest that
the transmissionby OLAF of information or of a report to national
or EU authorities does notbring about a distinct change in the
legal position of a personmentioned in thatinformation or in the
report. The question remains, however, whether this is asufficient
ground for considering an action for annulment against any
OLAFinvestigative act resulting in or related to such a report to
be inadmissible. Inparticular, if an OLAF investigative act
deprived a person of the effectiveexercise, or of the benefit, of a
fundamental right, would this circumstance not
43. Ibid., para 76.44. Commission v. Violetti and Others, cited
supra note 33.45. Ibid., para 71.46. Commission v. Violetti and
Others, cited supra note 33.47. Para 66, with reference to Reynolds
Tobacco, cited supra note 39, para 58.
CML Rev. 2012608 Inghelram
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be tantamount to bringing about a distinct change in the legal
position of thatperson, thus allowing for an action for annulment
against such an act to beadmissible? It is argued here that this
question can (sections 2.2.3 to 2.2.5below) or even should (section
4 below) be answered in a positive way.
2.2.3. The Rendo case: depriving a person of the effective
exercise of hisprocedural rights = bringing about a distinct change
in the legalposition of that person
The Rendo case48 sheds an interesting light on the notion of an
act bringingabout a distinct change in the legal position of a
person. In that case, theCommission had adopted a decision finding
that there had been aninfringement ofArticle 85 EEC by a company
set up by electricity-generatingcompanies in the Netherlands.The
plaintiffs were local electricity distributioncompanies in that
sameMember State, and had asked for the annulment of theCommissions
decision, insofar as it had not ruled on certain import andexport
restrictions applied by the electricity generating companies to
thedistribution companies, including the applicants. The Commission
haddecided to deal with the issue of those restrictions under
Article 169 EEC inthe context of infringement proceedings against
the Netherlands, rather thanunder Article 85 EEC.The General Court
was faced with the question whether, in relation to the
import restrictions covering a certain period, the plaintiffs
action forannulment was directed against an act which brought about
a distinct changein the legal position of the applicants and
therefore admissible. It noted thatneither the operative part nor
the grounds of the Commissions decisionexpressly and definitively
rejected the applicants complaint as regards theimport restrictions
imposed on the distribution companies.49 In this respect,that
decision did not therefore constitute such an act in relation to
those importrestrictions.Nevertheless, according to theGeneral
Court, the Commissions deferral of
consideration of the issue until proceedings were brought under
Article 169EEC a proof of which the Court found in section 50 of
the Commissionsdecision had the effect of interrupting the
procedure under Article 85 EECfor a considerable period of time. In
consequence, some of the issues raised bythe applicants in their
complaint concerning imports of electricity had beentaken out of
that procedure, in which the applicants had specific
proceduralrights, and left to proceedings underArticle 169 EEC, in
which the applicantshad no such rights.50 The deferral had legal
effects in that it affect[ed] the
48. Case T-16/91, Rendo and Others v. Commission, [1992] ECR
II-2417.49. Ibid., para 41.50. Ibid., para 53.
Judicial review of OLAF 609
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applicants procedural rights51 and thus constituted a decision
against whichan action for annulment was admissible.The ruling is
particularly interesting since it suggests that the mere fact
for
an EU institution to deprive persons of the effective exercise
of theirprocedural rights52 may constitute an act bringing about a
distinct change inthe legal position of that person and thus an act
against which an action forannulment is admissible.This reasoning
may be transposable to the context of judicial review of
OLAF investigative acts. Thus, even if an OLAF investigative act
may, initself, not produce binding legal effects for a person under
investigation, theimplicit decision of OLAF accompanying that act
to by all hypotheses deprive that person of the effective exercise
of his procedural rights may wellbe an act bringing about a
distinct change in the legal position of that person.
2.2.4. Depriving a person of the effective exercise, or of the
benefit, of afundamental right = bringing about a distinct change
in the legalposition of that person?
The above reasoning may have further effects if it is applied to
fundamentalrights. In particular, the following question arises: if
an act adopted by an EUinstitution by which a person is deprived of
the effective exercise of hisprocedural rights constitutes an act
bringing about a distinct change in thelegal position of that
person, is this not a fortiori true for an act of an
EUinstitutionwhich deprives a person of the effective exercise of
his fundamentalrights?The importance of fundamental rights can
hardly be doubted. With the
entry into force of theTreaty of Lisbon, the Charter of
Fundamental Rights ofthe EU became a legally binding instrument53
and the EU stated its intentionto accede to the ECHR.54 Moreover,
in Kadi,55 the ECJ ruled that it is aconstitutional principle that
all EU acts must respect fundamental rights,thus recognizing for
the first time the existence of a principle of this kind.Moreover,
the protection of fundamental rights, including the review by theEU
judicature of the lawfulness of EU measures as regards their
consistency
51. Ibid., para 55, emphasis added. The General Courts ruling
has been partially set asideby the judgment in Case C-19/93 P,
Rendo and Others v. Commission, [1995] ECR I-3319, butnot in
relation to the part of the judgment of the General Court discussed
in this section. Thispart is still considered relevant in academic
circles, see Lenaerts, Arts, Maselis and Bray,Procedural Law of the
European Union, 2nd ed. (Sweet & Maxwell, 2006), p. 227.
52. Terminology used by the EU General Court, Rendo, cited supra
note 48, para 54.53. Art. 6(1) TEU.54. Art. 6(2) TEU.55. Joined
Cases C-402 & 415/05 P, Kadi and Al Barakaat International
Foundation v.
Council and Commission, [2008] ECR I-6351, para 285.
CML Rev. 2012610 Inghelram
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with those fundamental rights, forms part of the very
foundations of the EUlegal order.56
Given the importance attached to the protection of fundamental
rights andto the role of the EU courts in reviewing the lawfulness
of EU measures asregards their consistencywith those fundamental
rights, it would, at first sight,appear to be a paradox that an act
of an EU institution depriving a person of theeffective exercise,
or of the benefit, of a fundamental right could be qualifiedas a
mere fact, not producing any legal effect for that person,
theconsequence of which would be that the door is closed for an
otherwiseefficient instrument of judicial review, namely the action
for annulment.Moreover, from a strictly legal perspective,
depriving a person of the
effective exercise or the benefit of a fundamental right
amounts, in fact, totaking away, entirely or partly, that right
from its beneficiary. For instance, ifthe investigation report is
sent to national authorities57 without previouslyhearing the person
under investigation, that person may well have thepossibility to
make observations in relation to that report during
subsequentnational administrative or judicial proceedings in which
the OLAF findingsare used. However, that same persons right to be
heard as defined by Article41(2) of the Charter of Fundamental
Rights of the EU, which is a right to behonoured by the
institutions, bodies offices and agencies of the Union,58 is,in
practice, taken away in relation to that report by themere
transmission of thereport in such circumstances. Taking away the
right of a person is normally anact which produces legal effects
for that person.An implicit confirmation of the idea that an act
depriving a person of the
effective exercise or the benefit of a fundamental right may, as
such, constitutean act bringing about a distinct change in that
persons legal position can befound in the answer given by the
Council and the Commission to the CivilServiceTribunals question
inVioletti59 as towhat kind ofOLAF acts could bequalified as acts
bringing about a distinct change in a persons legal position.Those
institutions provided as examples the searching of personal
effectsduring access to the office of a third-party official or
other servant, the seizureof such personal effects, the questioning
of a third-party official or otherservant during which OLAF used
unlawful methods, or the clandestinetapping of the telephone of a
third-party official or other servant. The reasonwhy only EU
officials or agents who are not under investigation by OLAFcould,
under these circumstances, file an action for annulment, was,
according
56. Ibid., para 304.57. OLAF Regulation, Art. 9.58. This follows
fromArt. 41(1) of the Charter.59. Violetti and Others v.
Commission, cited supra note 42.
Judicial review of OLAF 611
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to the Council and the Commission, that these persons could not
indirectlychallenge the legality of these acts at a later stage of
the procedure.60
The Civil Service Tribunal rejected, in substance, the notion
that an OLAFinvestigative act could not be qualified as an act
bringing about a distinctchange in the legal position of a person
under investigation, merely becausethat person could indirectly
challenge the legality of an OLAF investigativeact at a later stage
of the procedure.61
In this respect, it indeed appears that the acts mentioned by
the Council andthe Commission have the same effect on an EU agent
or official, whether theyare under investigation by OLAF or not.
Moreover, EU agents and officialswho are under investigation by
OLAF cannot always indirectly challenge thelegality of an OLAF
investigative act at a later stage of the procedure. Anobvious
example is the situation ofVioletti and the other plaintiffs. There
wasno act at a later stage of the procedure on the occasion of
which the legality ofthe OLAF investigative act could have been
challenged, since the judge incharge of preliminary investigations
at the District Court inVarese decided todiscontinue the
proceedings.62
As to the examples provided by the Council and the Commission,
the CivilService Tribunal considered these examples did not
demonstrate that thetransmission of information at issue in that
case was not an act bringing abouta distinct change in the
applicants legal position.63 Nevertheless, theseexamples remain
interesting regardless of whether the distinction between EUagents
and officials who are under investigation by OLAF and those who
arenot is relevant. Indeed, those examples all relate to acts which
interfere withthe fundamental rights of a person, either the
fundamental right to privacy(search of personal effects,
clandestine tapping of the telephone) and possiblythe fundamental
right to property (seizure of personal effects), as well as
thefundamental right to liberty and security (questioning with use
of unlawfulmethods). In other words, the examples cited by the
Council and theCommission in fact suggest that OLAF investigative
acts may be consideredas acts producing legal effects for a person
merely because they interfere withthat persons fundamental
rights.This interpretation does not seem to imply an overruling of
the ECJs
consistent case law64 according to which the principle of
effective judicialprotection cannot in itself modify the conditions
to which the legal remediesprovided by the Treaties are subject.
Indeed, the condition that an act should
60. Ibid., para 66.61. Ibid., para 88.62. Ibid., para 28.63.
See, to that effect, ibid., para 89.64. See supra note 40.
CML Rev. 2012612 Inghelram
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bring about a distinct change in a persons legal position for an
action forannulment to be admissible remains unaffected. Only the
meaning of thiscondition in a context where the act interferes with
fundamental rights is atissue.In the same way, this interpretation
does not substantially modify the
meaning of the condition, provided by Article 263(4) TFEU (ex
230(4) EC),that an act other than a regulatory act, and which is
not addressed to a person,must be of direct and individual concern
to that person for an action forannulment filed by the latter
against that act to be admissible.65 It is indeeddifficult to deny
that an OLAF investigative act in relation to a person
underinvestigation66 is of direct and individual concern to that
person, especially ifthat act interferes with his fundamental
rights.Furthermore, it is not at all certain that based on the
above interpretation the
EU courts would be overrun by a large amount of new actions for
annulment.An act of an EU institution which raises problems in
relation to fundamentalrights is often already an act bringing
about a distinct change in the applicantslegal position, even
before the question of the relevance of the fundamentalrights issue
for the admissibility of the action for annulment can arise.
Anexample in this respect is the ruling in Kadi,67 where there was
no doubt thatthe measures freezing applicants funds brought about a
distinct change intheir legal position.68 The question of whether
the issue of fundamental rightswas relevant for the admissibility
of the action was therefore not examined bythe ECJ, as the EU
General Court pointed out in Commission v. Violetti
andOthers.69
2.2.5. Limited scope of reviewMoreover, since only the act
depriving a person of the effective exercise, or ofthe benefit, of
a fundamental right would be an act bringing about a distinctchange
in the legal position of that person against which the action
forannulment would be admissible, the scope of review would be
limited to thatspecific act. To take the above mentioned example of
a transmission of the
65. This condition overlaps with the one that the act must be
capable of bringing about adistinct change in the legal position of
the applicant, see Joined Cases C-463 & 475/10 P,Deutsche Post
and Germany v. Commission, judgment of 13 Oct. 2011, nyr, para
38.
66. Other than an EU official, to whomArt. 263(4) TFEU does not
apply.67. Kadi, cited supra note 55.68. It is, nevertheless,
worthwhile to note that freezing a persons funds is tantamount
to
depriving that person of the effective exercise, or of the
benefit, of his fundamental right toproperty. Considered from that
perspective, the Kadi case may possibly be seen as
implicitlyconfirming the proposed interpretation that an act of an
EU institution depriving a person of theeffective exercise, or of
the benefit, of a fundamental right constitutes an act bringing
about adistinct change in the legal position of that person.
69. Commission v. Violetti and Others, cited supra note 33, para
56.
Judicial review of OLAF 613
-
investigation report to national authorities without previously
hearing theperson under investigation, this would mean that only
the legality of the act oftransmission without hearing could be
subject to judicial review and not thelegality of the investigation
report itself. As consistently held in the case law,the latter
would remain an act incapable of bringing about a distinct change
inthe legal position, and thus not open to judicial review via the
action forannulment. In practical terms, this would also imply
that, in relation to thetransmission of the investigation report to
the national authorities, only aviolation of the right to be heard
could be examined by the competent EUcourt.Another hypothetical
example illustrating the limited scope of judicial
review is that of an investigative act by which, during an
office search,personal effects of an EU official are taken into
custody.70As suggested abovein relation to the examples given by
the Council and the Commission inVioletti, such an act could be
considered as depriving a person of the benefit ofhis fundamental
right to privacy and/or to property. Since only that specific
actcould arguably be qualified as an act bringing about a distinct
change in thelegal position of that official, review would be
limited to examining that actand its compatibility with the
fundamental right to privacy and/or to property.There would,
however, be no grounds for examining the legality of
theinvestigation as a whole at that occasion.This limited scope of
review appears to find a justification in the case law
on preparatory acts. According to this case law, intermediate
measures whoseaim is to prepare the final decision do not, in
principle, bring about a distinctchange in the legal position of
the applicant, and an action for annulmentagainst them is therefore
inadmissible.71 This case law appears relevant for allOLAF
investigative acts prior to the adoption of the investigation
report, asthese can be considered preparatory to that report, but
not for the investigationreport itself, which has explicitly been
found not to be a measure preparatoryto administrative or judicial
proceedings liable to be initiated pursuant to it.72
Even if the case law on preparatory acts effectively supports
the conclusionthat an action for annulment against an OLAF
investigative act (prior to theinvestigation report) is, as a
general rule, inadmissible, it also justifies, to acertain extent,
why this would not be true if an investigative act depriving
aperson of the effective exercise, or of the benefit, of a
fundamental right is atstake.
70. One could think of a private mobile phone.71. See e.g.
Deutsche Post, cited supra note 65, para 50.72. Cams Grau, cited
supra note 34, para 49. For a different view, see the earlier case
of
Gmez-Reino (T-215/02), cited supra note 26, para 50.
CML Rev. 2012614 Inghelram
-
In IBM v. Commission,73 the ECJ indeed explained its case law
onpreparatory acts by ruling that an action for annulment against
such acts mightmake it necessary for it to arrive at a decision on
questions on which thedefending EU institution had not yet had an
opportunity to state its positionand would as a result anticipate
the arguments on the substance of the case,confusing different
procedural stages both administrative and judicial. Anaction for
annulment at that stage would thus be incompatible with the
systemof division of powers between that institution and the Court
and the system ofremedies laid down by the Treaty, as well as the
requirements of the soundadministration of justice and the proper
course of the administrative procedureto be followed by the
former.74
However, reviewing the legality under the fundamental right to
privacyand/or to property of an investigative act by which, during
an office search,personal effects of an EU official are taken into
custody which is theexample taken above does not draw the competent
EU court into anticipatingthe arguments on the substance of any
case.75 As an act depriving a person ofthe effective exercise, or
of the benefit, of a fundamental right, theinvestigative act and
the specific legal issue raised by it are, in fact, definitive,even
if this act prepares the adoption of another measure, namely
theinvestigation report.76
Furthermore, it would be difficult to argue that an OLAF
investigative act,as an intermediate measure, is not capable of
forming the subject-matter of anaction for annulment since the
illegality attaching to thatmeasure can be reliedon in support of
an action against the final decision for which it represents
apreparatory step.77 As already pointed out above in relation to
the situation ofVioletti and others, it is not at all sure, at the
stage of the investigation, thatsuch a final decision will actually
be adopted. Moreover, the fundamentalright to an effective remedy
requires more than just the remote possibility ofintroducing an
action against a final decision in order to be able to concludethat
sufficient judicial protection exists in relation to such an
intermediatemeasure (see section 4 below).
73. Case 60/81, IBM v. Commission, [1981] ECR 2639.74. To that
effect, para 20, confirmed in Deutsche Post, cited supra note 65,
para 51.75. See also, by analogy, Deutsche Post, cited supra note
65, para 52.76. See for a similar analysis of the notion of
preparatory act, Goffin, Une decision de
refus peut-elle tre un acte prparatoire?, 30 CDE (1994), 239245,
242. Furthermore, in IBMv. Commission, cited supra note 73, para
23, the ECJ suggested that judicial review at an earlystage of an
act to be qualified as preparatory may become necessary in
exceptionalcircumstances, where the measures concerned lack even
the appearance of legality. This maybe another reason for
considering an action for the annulment of an OLAF investigative
act tobe admissible, provided the condition referred to by the
Court is fulfilled.
77. Deutsche Post, cited supra note 65, para 53.
Judicial review of OLAF 615
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It follows from the above that the scope of review under the
action forannulment would be limited to a kind of fundamental
rights check ofindividual OLAF investigative acts and not extend to
the legality of theinvestigation as a whole. Moreover, even if it
were to be established that anOLAF investigative act deprived a
person of the effective exercise, or thebenefit, of a fundamental
right, this would not yet mean that this fundamentalright was also
violated. The latter would be a question relating to the merits
ofthe case, where possible justifications for the interference with
a fundamentalright become relevant.A step in the direction of
specifically considering the protection of
fundamental rights relevant when determining the existence of an
act bringingabout a distinct change in the legal position of the
applicant was taken by theEU General Court in Planet v.
Commission,78 where the absence of a right tobe heard was found to
be one of the elements supporting the Courtsconclusion that the
applicants registration by the Commission in certaincategories of
its early warning system constituted such an act.
2.3. The action for damages
In order to obtain judicial protection against OLAF
investigative acts,applicants have, thus far, been more successful
by filing actions for damagesunder Articles 268 TFEU (ex 235 EC)
and 340(2) TFEU (ex 288(2) EC).79
According to this latter provision, in the case of
non-contractual liability, theEU is, in accordance with the general
principles common to the laws of theMember States, to make good any
damage caused by its institutions or by itsservants in the
performance of their duties.Actions for damages are not subject to
the admissibility criterion,
applicable to actions for annulment, which requires that the
contested actbrings about a distinct change in the legal position
of the applicant. A right toreparation exists where three
conditions aremet: the rule of law infringedmustbe intended to
confer rights on persons; the breach must be sufficientlyserious;
and there must be a direct causal link between the breach of
theobligation and the damage sustained by the injured parties.80
According tocertain cases, less stringent conditions may apply if
the action for damages isfiled by an EU official or agent
underArticle 270 TFEU (ex 236 EC). In sucha case, the applicant
would not have to prove the existence of a sufficiently
78. Case T-320/09, Planet v. Commission, order of 13 Apr. 2011,
nyr, para 52. An appealagainst this order is currently pending, see
Case C-314/11 P, Commission v. Planet, O.J. 2011,C 238/12.
79. Or, insofar as EU official and agents are concerned, under
Art. 270 TFEU (ex 236 EC)and Art. 91 of the Staff Regulations.
80. Case C-352/98 P, Bergaderm and Goupil v. Commission, [2000]
ECR I-5291, para 42.
CML Rev. 2012616 Inghelram
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serious breach of a rule of law intended to confer rights on
persons, but merelythe fact that the allegedly wrongful act
committed by an EU institution wasillegal.81
Although the EU as a legal person is liable, it is represented
before the EUcourts by the institution or institutions against
which the matter giving rise toliability is alleged.82 A request
for damages allegedly suffered by reason ofOLAFs conduct must
therefore be addressed to the Commission.83
The burden of proof in relation to the existence of a breach of
an obligation,of a causal link and of damage sustained lies with
the applicant.84
Nevertheless, where a harmful event may have been the result of
a number ofdifferent causes and where the EU institution has
adduced no evidence toestablish to which of those causes the event
is imputable, although it is bestplaced to provide such evidence,
the uncertainty which remains will beconstrued against it. This
mitigation of the burden of proof on the applicantalso applies in
OLAF-related cases.85
Up until now, compensation86 has been granted for a violation by
OLAF ofthe obligation of impartiality,87 for unauthorized leaks by
OLAF ofconfidential information,88 as well as for an infringement
by OLAF of theright to be heard.89
2.4. Interim relief
Actions brought before the EU courts do not have suspensory
effect.90
However, if they consider that circumstances so require, the EU
courts mayorder at the request of the applicant that the
application of the contested act besuspended.91 Moreover, they may
in any cases before them prescribe anynecessary interim measures.92
The purpose of this interim relief is to prevent
81. See on this debate Case C-17/11 RX, decision of 8 Feb. 2011,
nyr.82. Werhahn Hansamhle, cited supra note 20, para 7.83. This is
also true for EU staff working for other institutions than the
Commission, see
Cams Grau, cited supra note 34, para 66.84. Case T-48/05,
Franchet and Byk v. Commission, [2008] ECR II-1585, paras. 182
and 397.85. Ibid., para 183.86. Ranging from 3 000 euros to 10
000 euros. In Franchet and Byk, cited supra note 84, a
lump sum of 56 000 euros was granted, but for various breaches
of obligations by both OLAFand the Commission.
87. Cams Grau v. Commission, cited supra note 34.88. Case
T-259/03, Nikolaou v. Commission, [2007] ECR II-99*, and Franchet
and Byk v.
Commission, cited supra note 84.89. Franchet and Byk v.
Commission, cited supra note 84.90. Art. 278 TFEU (ex 242 EC).91.
Ibid.92. Art. 279 TFEU (ex 243 EC).
Judicial review of OLAF 617
-
that the time needed to establish the existence of a right does
not ultimatelyhave the effect of irremediably depriving the right
of substance by eliminatingany possibility of exercising it. The
purpose of interim protection is thereforeto achieve the
fundamental objective of every legal system, namely,
theeffectiveness of judicial protection.93
General features of interim relief are its provisional and
ancillary nature.Due to their provisional character, themeasures
ordered cease to produce theireffects as soon as final judgment is
given.94The judicial protection granted byway of interim relief is
therefore always of a temporary nature. It can, however,constitute
a very effective form of legal protection, due to the power which
thePresidents of the respective EU courts possess to adapt the
measure ordered tothe legal protection needed, as well as the
possibility of ordering interim reliefmeasures within an extremely
short period of time.95
The ancillary nature of interim relief implies that an
application to suspendthe operation of any measure adopted by an EU
institution is admissible onlyif the applicant is challenging that
measure in proceedings before thecompetent EU court. An application
for the adoption of any other interimmeasure is admissible only if
it is made by a party to a case before thecompetent EU court and
relates to that case.96
2.4.1. Interim relief in the framework of actions for
annulmentThe ancillary nature of interim relief also implies that a
claim for such reliefwill be refused if the main action, in the
framework of which the claim forrelief has been made, is found to
be prima facie inadmissible.97 This isparticularly relevant for
interim relief sought in the framework of actions forannulment
against OLAF investigative acts. Indeed, the current general
trendin the case law is that such actions are inadmissible. Based
on this
93. Opinion of A.G. Tesauro in Case C-213/89, Factortame and
Others, [1990] ECRI-2433, para 18.
94. See e.g. Case C-440/01 P(R), Commission v. Artegodan, [2002]
ECR I-1489, para 60.95. Kapteyn andVerLoren vanThemaat, The Law of
the European Union and the European
Communities, 4th ed. (Kluwer Law International, 2008), at p.
503, footnote 474, cite theexample of Case 50/69 R, Germany v.
Commission, [1969] ECR 449, in which the applicationhad been
received on 3 Oct. 1969 and the order had been given on 5 Oct.
1969, which was,moreover, a Sunday.
96. Art. 83(1) of the Rules of Procedure of the ECJ, Art. 104(1)
of the Rules of Procedureof the EUGeneral Court andArt. 102(1) of
the Rules of Procedure of the Civil ServiceTribunal.
97. See e.g. Case C-329/99 P(R), Pfizer Animal Health v.
Council, [1999] ECR I-8343,para 89.
CML Rev. 2012618 Inghelram
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interpretation, EU courts have until now refused to grant
interim relief in theframework of actions for annulment against
OLAF investigative acts.98
However, provided this admissibility hurdle can be overcome,
there do notseem to be any further obstacles of principle against
interim relief beinggranted in the context of actions for annulment
against OLAF investigativeacts.This would imply that if the general
conditions for interim relief aremet99
the operation of an OLAF investigative act could theoretically
be suspendedpending the court proceedings on the action for
annulment, which wouldprevent this act from being used in further
proceedings during that sameperiod. Other interimmeasures could
also be taken, even a mere reminder thatexisting provisions have to
be complied with.100
2.4.2. Interim relief in the framework of actions for damagesThe
limited possibility to claim interim relief in the framework of
actions forannulment against OLAF investigative acts raises the
question to what extentinterim relief may be granted in the
framework of actions for damages. Asmentioned above, such actions
currently constitute the most obvious meansfor obtaining judicial
protection in the context of OLAF investigations.It is somewhat
surprising to see how underdeveloped the phenomenon of
interim relief is in the framework of actions for damages. The
vast majority ofinterim relief is granted by EU courts in the
context of main proceedings, theobject of which is an action for
annulment. In fact, at first sight, there does notseem to be a
single case in which interim relief has been granted
specificallyand only in the context of an action for damages.In
theory, however, the case law does not exclude the possibility of
interim
relief being granted in the framework of actions for damages.
InAntonissen,101 the President of the ECJ ruled that an absolute
prohibition onobtaining a measure granting (by way of advance) a
part of the compensationclaimed in the main proceedings and seeking
to protect the applicants
98. See e.g. Gmez-Reino v. Commission, cited supra note 37, para
48, Case T-193/04 R,Tillack v. Commission, [2004] ECR II-3575,
paras. 46 and 47, and Tillack (C-521/04 P(R)),cited supra note 33,
para 34.
99. Essentially, the three conditions for granting interim
relief are (1) that the order forinterim relief is justified prima
facie in fact and in law (fumus boni juris); (2) that the order
isurgent in that, in order to avoid serious and irreparable damage
to the applicants interests, itmust be made and produce its effects
before the decision is given in the main proceedings(urgency); and
(3) that the applicants interest in the imposition of interim
measures outweighsthe other interests at stake in the proceedings
(balance of interest), see Castillo de la Torre,Interim measures in
Community Courts: Recent trends, 44 CML Rev. (2007), 273353,
283.
100. Case T-203/95 R, Connolly v. Commission, [1995] ECR
II-2919, para 25.101. Case C-393/96 P (R), Antonissen v. Council
and Commission, [1997] ECR I-441,
paras. 36 and 37.
Judicial review of OLAF 619
-
interests until judgment is rendered, irrespective of the
circumstances of thecase, would not be compatible with the right of
individuals to complete andeffective judicial protection under EU
law, which implies in particular thatinterim protection must be
available to them if it is necessary for the fulleffectiveness of
the definitive future decision.The question whether a measure other
than granting (by way of advance) a
part of the compensation could be ordered through interim relief
in theframework of an action for damages, was left explicitly
unanswered inComos-Tank.102 Moreover, in Connolly,103 the President
of the EU GeneralCourt suggested in rather general terms that, in
the context of an applicationfor interim measures connected with an
action for damages, the applicantshould have the possibility of
obtaining a measure to prevent future damagewhich might be serious
and irreparable.Theoretically, interim relief by way of suspension
of the operation of a
measure, ordered in the framework of an action for damages, does
not seementirely impossible. In fact,Article 278TFEU (ex 242 EC)
does not establish,at least not explicitly, a link between the
possibility of suspending theapplication of a measure and a
specific kind of (main) proceedings. In anycase, the wording of
Article 279 TFEU (ex 243 EC) is so broad (may in anycases before it
prescribe any necessary interim measures104) that it may
alsoinclude measures of suspension if necessary.105
Moreover, the fact that, contrary to an action for annulment, a
successfulaction for damages does not have a legal impact on the
measure which formsthe subject of the main proceedings does not
seem to be a sufficient reason fordenying interim relief byway of
suspension of the operation of that measure inthe framework of an
action for damages. The situation in this respect can becompared to
the possibility, firmly established in the case law, of interim
reliefordered in the framework of an action for infringement, based
on Article 258TFEU (ex 226 EC) or on Article 108 TFEU (ex 88
EC).106 The fact that the
102. Joined Cases C-51 & 59/90 R, Comos-Tank and Others v.
Commission, [1990] ECRI-2167, para 33.
103. Cited supra note 100, para 23.104. Emphasis added.105. See
Hoskins, The Relationship between the Action for Damages and the
Award of
Interim Measures in Heukels and McDonnell (Eds.), The Action for
Damages in CommunityLaw (Kluwer Law International, 1997), 264265.
He states the argument that Art. 186 EC(laterArt. 243 EC and
nowArt. 279TFEU) should not be used to provide for a broader right
ofsuspension than is expressly provided in Art. 185 EC (later Art.
242 EC and now Art. 278TFEU) appears rather pedantic, particularly
in light of the very broad discretion granted tothe EU courts by
what is nowArt. 279 TFEU. Moreover, according to the same author,
the twoTreaty provisions should not be interpreted in such a way as
to defeat the effective protection ofEU rights.
106. See e.g. Case C-573/08 R, Commission v. Italy, [2009] ECR
I-217*.
CML Rev. 2012620 Inghelram
-
judgment finding the failure to fulfil obligations is
declaratory in nature doesnot preclude the imposition of interim
measures. In the same way, one couldargue that the fact that the
judgment grants compensation should not precludethe imposition of
interim measures. Indeed, an interlocutory order by one ofthe the
EU courts does not derive its binding force from that courts power
togive judgment in the main proceedings.107
Furthermore, it would seem difficult to derive an argument
against thepossibility of suspending the operation of ameasure in
the context of an actionfor damages from the actions objective,
which is to compensate past damage,not to prevent new damage from
arising. As indicated earlier, the President ofthe EU General Court
already suggested in Connolly108 that an interimmeasure to prevent
future damage which might be serious and irreparable,could be
granted in the context of an action for damages.Moreover, it is
settledcase law that an injured party must show reasonable
diligence in limiting theextent of the loss or damage, or risk
having to bear the loss or damage himself,and that he must, as a
general rule, avail himself in time of all the legalremedies
available to him.109 With this obligation in mind, it would be
rathersurprising if the case law closed the door for an efficient
remedy forpreventing future serious and irreparable damage on the
grounds that theobjective of the action for damages would be
exclusively to compensate pastdamage.Finally, it does not appear
that an argument for not granting a suspension of
the operation of a measure in the context of an action for
damages can bedrawn from the settled case law that the urgency of
an application for interimmeasures must be assessed in relation to
the necessity for an interim order toprevent serious and
irreparable harm to the party applying for thosemeasures,110 and
that purely pecuniary damage cannot, in principle, beregarded as
irreparable or even as difficult to repair since it may be the
subjectof subsequent financial compensation.111 Such an argument
would imply that,because the action for damages is intended to
grant financial compensation,damage compensated by such an action
can never be qualified as irreparable.However, the case law does
not support such a view. It has indeed considereddamage that is
difficult to quantify as irreparable.112 In particular, the fact
ofirreparably affecting a persons honour and reputation which is
precisely the
107. Castillo de la Torre, op. cit. supra note 99, 280.108.
Connolly, cited supra note 100.109. See, to that effect, Case
C-445/06, Danske Slagterier, [2009] ECR I-2119, paras.
6061.110. See e.g. Case C-60/08 P(R), Cheminova and Others v.
Commission, [2009] ECR
I-43*, para 62.111. Ibid., para 63.112. See e.g. Comos-Tank,
cited supra note 102, para 24.
Judicial review of OLAF 621
-
kind of damage to which OLAF investigations may give rise has
alreadybeen considered as an irreversible damage justifying the
taking of an order forinterim relief.113
By way of conclusion, it should not be excluded, at least from a
theoreticalpoint of view, that interim relief can actually be
granted in the framework of anaction for damages for breach of an
obligation by OLAF, whether this interimrelief takes the form of a
measure granting (by way of advance) a part of thecompensation
claimed in the main proceedings, or even of a suspension of
theapplication of the OLAF investigative measure. Such an
application forsuspension was, in substance, at issue in Tillack114
but the President of the EUGeneral Court dismissed the application
on the grounds that the applicant hadnot established to the
required legal standards that his application for damageswas not
manifestly unfounded. The President did not consider the
questionwhether the other conditions for granting relief had been
satisfied.
3. Indirect judicial review
Judicial review ofOLAF investigative acts can also be exercised
indirectly, i.e.during a court case dealing with a subsequent act
or decision of an authorityother than OLAF, which is entirely or
partly based on an OLAFinvestigative act. This indirect judicial
review can be exercised by an EU courtor a national court.
3.1. Indirect judicial review by an EU court
When a decision of an EU institution is partly or entirely based
on anOLAF investigative act, this act may be reviewed in the
context of judicialproceedings before an EU court against that
decision. The legality of theinvestigative act may indeed affect
the legality of the decision taken on thebasis of that act.An
example of this kind of review can be found inCPEM
v.Commission,115
in which the applicant asked for the annulment of a Commission
decisioncancelling the assistance from the European Social Fund
previously granted tothe applicant.The decision had been taken on
the basis of anOLAF report, andone of the arguments of the
applicant was that his rights of defence had beenviolated in the
context of the OLAF investigation. Other examples are Spain v.
113. Connolly, cited supra note 100, paras. 4244.114. Tillack
(T-193/04 R), cited supra note 98, paras. 4963.115. Case T-444/07,
CPEM v. Commission, [2009] ECR II-2121, paras. 4256.
CML Rev. 2012622 Inghelram
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Commission,116 in which the correctness of OLAFs findings was at
issue in acase in which Spain had asked for the annulment in part
of a Commissiondecision excluding from EU financing certain
agricultural expenditure, aswell as Commission v. Cresson,117 in
which the defendant argued that thenecessary authorizations for the
OLAF members of staff who participated inthe investigation had been
missing. However, in all these cases, the argumentsof the
applicants relating to the legality of OLAF investigative acts
weredismissed for various reasons.
3.2. Indirect judicial review by a national court
Where an OLAF investigative act lies at the basis of a decision
taken by anational authority, this act may be reviewed in the
context of judicialproceedings before a national court against that
decision. In this context, therelationship between the courts of
the Member States and the ECJ and, inparticular, the preliminary
ruling procedure under Article 267 TFEU (ex 234EC), which
constitutes the essence of this relationship, becomes relevant.
3.2.1. Interpretation of an OLAF(-related) actIf an OLAF
investigative act is being used in national court proceedings,
theremay be a need to interpret either this act or OLAF legal
instruments for thenational court to be able to give judgment. In
that case, the national court can or in some cases must118 ask the
ECJ to give a preliminary rulingconcerning the interpretation of
that act or of those legal instruments. The factthat an OLAF
investigative act is not a legally binding act cannot be anobstacle
in this respect. Article 267 TFEU (ex 234 EC) indeed confers on
theECJ jurisdiction to give a preliminary ruling on the validity
and interpretationof all acts of the EU institutions without
exception.119
The judgment in which the ECJ gives a preliminary ruling is
binding on thenational court for the purposes of the decision to be
given in the mainproceedings.120 Aside from this specific effect,
such a judgment may, ofcourse, present an overall interest for the
interpretation of OLAFscompetences.
116. Case T-259/05, Spain v. Commission, [2009] ECR II-95*,
paras. 129150.117. Case C-432/04, Commission v. Cresson, [2006] ECR
I-6387, paras. 85 and 102.118. Art. 267(3) TFEU.119. Case C-322/88,
Grimaldi, [1989] ECR 4407, para 8.120. See e.g. Case C-446/98,
Fazenda Pblica, [2000] ECR I-11435, para 49.
Judicial review of OLAF 623
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3.2.2. Validity of an OLAF(-related) actDuring national
proceedings based on OLAF investigative acts, a question asto the
validity of these acts may arise. Such was the case in Thomson
SalesEurope,121 which appears to be the first preliminary reference
ever in relationto the OLAF Regulation. In that case, the Tribunal
dInstance de Paris hassubmitted several questions to the ECJ on the
validity of an OLAFinvestigation in Thailand.In any event, a
national court is not in the position to declare an OLAF
investigative act invalid.122 Indeed, national courts have no
jurisdiction todetermine that acts of an EU institution are
invalid.123 A national court musttherefore submit a request for a
preliminary ruling on the validity of aninvestigative OLAF act to
the ECJ, which has to determine that the act isactually invalid for
the national court to be able to rule that nationalproceedings have
been affected by an invalid OLAF act.Nevertheless, the rule that
national courts may not determine that EU acts
are invalid may have to be qualified in the case of proceedings
relating to anapplication for interim measures.124 Indeed, national
courts are not precludedfrom granting interim relief, inter alia,
by making a positive orderprovisionally disapplying an EU
regulation, to settle or regulate the disputedlegal positions or
relationships with reference to a national administrativemeasure
based on an EU regulation which is the subject of a reference for
apreliminary ruling on its validity.125 The question whether this
reasoningcould also allow a national court to make a positive order
provisionallydisapplying an OLAF act has not yet been answered.
However, given the ratiolegis of this case law, which is the need
for legal protection pending delivery ofa judgment of the ECJ which
alone has the jurisdiction to declare an EU actinvalid,126 the
answer cannot be negative from the outset.This questionmay beof
practical relevance when national proceedings are initiated against
a personon the basis of an OLAF investigation report of which that
person contests itsvalidity. If the answer to the above question is
positive, a national judge wouldbe competent to provisionally set
aside the report, which would normally leadto a temporary halt of
any proceedings based on that report.In any case, certain
conditions must be observed when a national court
orders any interim relief, including a positive measure
rendering the contestedact provisionally inapplicable. In
particular, that court must entertain serious
121. Pending Case C-348/11, Thomson Sales Europe, O.J. 2011, C
282/5.122. Tillack (T-193/04), cited supra note 33, para 80.123.
Case 314/85, Foto-Frost, [1987] ECR 4199, para 20.124. Case
C-461/03, Gaston Schul Douane-expediteur, [2005] ECR I-10513, para
18.125. Case C-465/93, Atlanta Fruchthandelsgesellschaft and Others
(I), [1995] ECR
I-3761, paras. 26 and 30.126. Ibid., para 21.
CML Rev. 2012624 Inghelram
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doubts as to the validity of the EU act and, where the validity
of the contestedmeasure is not already at issue before the ECJ,
itself refer that question to theCourt; there must be urgency and a
threat of serious and irreparable damage tothe applicant; and the
national court must take due account of the EUinterest.127
4. The fundamental right to an effective remedy
According to Article 47 of the Charter of Fundamental Rights of
the EU,[e]veryonewhose rights and freedoms guaranteed by the law of
theUnion areviolated has the right to an effective remedy before a
tribunal in compliancewith the conditions laid down in this Article
. . . .It follows from the preceding overview that there is, in
principle, a remedy
against possible violations by OLAF of fundamental rights,
albeit in the formof an action for damages.128 However, according
to Article 47, this remedymust also be effective. The case law of
the ECJ on interim relief confirmsthat the need for judicial
protection to be effective requires that this protectioncan be
given quickly if necessary.Moreover, a situation in which the
legality of an OLAF investigative act
could, in practice, only be contested before the judge reviewing
the decisionsubsequently taken on the basis of theOLAF
investigationmaywell, in certaincircumstances, be problematic under
Article 47 of the Charter if, as Article52(3) of the Charter
requires, this provision is given the same meaning andscope as
Article 6 ECHR.Indeed, in Socit Canal Plus and Others v. France,129
the European Court
of Human Rights found thatArticle 6 ECHRwas violated in a
situation wherethe applicants could only contest search and seizure
orders pronouncedagainst them by the liberties and detention judge
in a competition case if anappeal was lodged against the decision
on the merits taken by the competitionauthority. According to the
Court, this made the possibility of obtainingjudicial review of
these orders uncertain, since both the adoption of a decisionon the
merits and the introduction of an appeal against that decision were
first
127. Ibid., paras. 3233.128. On the question whether such an
action could qualify as an appropriate remedy in all
circumstances, see, however, Van Dijk, Van Hoof, Van Rijn and
Zwaak (Eds.), Theory andPractice of the European Convention onHuman
Rights, 4th ed. (Intersentia, 2006), p. 559.Withreference to the
judgment of 7 July 1989 of the European Court of Human Rights in
Case TreTraktrerAB v. Sweden, SeriesA no. 159, para 49, these
authors mention that the possibility ofinstituting judicial
proceedings for damages does not substitute for the right to refer
theunderlying dispute to a court under Art. 6 ECHR.
129. Judgment of 21 Dec. 2010, no. 29408/08.
Judicial review of OLAF 625
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required. Moreover, several years passed between the search and
seizureorders and the decision on the merits. The Court stressed
thatArticle 6 ECHRrequires appropriate redress, which necessarily
implies the certainty, inpractice, that effective judicial review
can be obtained and, moreover, within areasonable period of
time.130
Applied to the OLAF context, this case law may require the
availability ofmore or less immediate judicial review, at least
when investigative actsinterfering with fundamental rights, such as
searches and (acts equivalent to)seizures, are at issue. Qualifying
anOLAF investigative act depriving a personof the effective
exercise, or of the benefit, of a fundamental right as an
actbringing about a distinct change in the legal position of that
person, and thusmaking the introduction of an action for annulment,
combined with a requestfor interim relief, against that act
possible may therefore not just be atheoretical solution, but also
a legal necessity.
5. Concluding remarks
In exercising its investigative activities, OLAF is subject to
judicial control,thus far exercised by the EU courts through action
for damages cases. Thequestion remains, however, whether this
procedure allows for a sufficientprotection of fundamental rights
in all circumstances. Judicial protection isobtained long after the
contested investigative act and the act as such is notaffected by
the EU courts ruling; only compensation for the prejudice createdby
that act is obtained.Compared to this situation, it goes without
saying that the protection of
fundamental rights would be better ensured if an OLAF
investigative actwhich by all hypotheses violates these rights can
first be suspended andthen declared void through the action for
annulment combined with a requestfor interim relief, so as to
deprive that act immediately of any effect.At first sight, this
solution runs up against the current case law on the
(in)admissibility of OLAF investigative acts. However, it is
argued above that,in limited circumstances, an action for annulment
could be consideredadmissible against an OLAF investigative act,
thereby respecting the currentcase law, in particular that on
preparatory acts. This could be the case if anOLAF investigative
act is shown to have deprived the applicant of the
effectiveexercise, or of the benefit, of a fundamental right, thus
opening a reviewlimited to examining the compatibility of that
specific act with fundamental
130. Ibid., para 40.
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rights. This solution might possibly strike a balance between
safeguarding theefficiency of OLAF investigations on the one hand
and protectingfundamental rights on the other. Moreover, the latter
interest is not only to thebenefit of persons under investigation
but also of OLAF,whose legitimacy canonly increase when fundamental
rights are (seen to be) effectively protected.
Judicial review of OLAF 627