Beruflich Dokumente
Kultur Dokumente
1.
Introduction
* LL.M, Dr. iur., Rfrendaire at the ECJ. The views expressed in this article are entirely
personal. The article is inspired by and further develops the analysis on judicial review in
Inghelram, Legal and Institutional Aspects of the European Anti-Fraud Office (OLAF) An
Analysis with a Look Forward to a European Public Prosecutors Office (Europa Law
Publishing, 2011). The author is grateful to C.W.A. Timmermans and P.-J. Loewenthal for their
valuable 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 (EuG
T-48/05, Urteil vom 8. 7. 2008), (2009) JZ, 298304, Groussot and Popov, Whats wrong with
OLAF? Accountability, Due Process and Criminal Justice in European Anti-Fraud Policy, 47
CML 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 the
Member States and in third countries (external investigations) as well as within the EU
institutions, bodies, offices and agencies (internal investigations), in view of the protection of
the EUs financial interests. (Hart, 2011).
3. See, in relation to external investigations, Council Reg. (Euratom, EC) No 2185/96 of 11
Nov. 1996 concerning on-the-spot checks and inspections carried out by the Commission in
order to protect the European Communities financial interests against fraud and other
irregularities, O.J. 1996, L 292/2 (applicable to OLAF investigations by virtue of the OLAF
Regulation, Art. 3), and, in relation to internal investigations, OLAF Regulation, Art. 4(2), first
indent.
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Inghelram
Direct judicial review occurs when an OLAF investigative act is the object of
an 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 for
damages, combined, if necessary, with a request for interim relief. However,
before discussing these procedures (see 2.2 to 2.4 below), a particularity
resulting 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.
603
Any action relating to an OLAF investigative act must be brought against the
European Commission, not against OLAF directly, as the latter does not have
locus standi before the EU courts.8 This results from the fact that OLAF is
structurally a part of the Commission. As such, OLAF can be best compared
to a Directorate-General of that institution. Its position is nevertheless
particular as it has far-reaching independence, insofar as its investigative
mission is concerned, including from the institution to which it belongs.9 The
Commission is therefore legally responsible for investigative acts adopted by
OLAF, 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 compared
to the situation in which those acts would have been acts of the Commission
itself. Indeed, there do not as yet seem to have been any problems in relation to
the execution of a judgment of the EU courts by OLAF where the Commission
lost an OLAF-related case. This particularity may nevertheless have practical
consequences, not only for the Commission, which has to assume legal
responsibility for acts over which it has no influence, but also for OLAF, which
may have less control over decisions to be taken in procedural matters, such as
the decision whether or not to lodge an appeal against a judgment in an
OLAF-related case.
On a more theoretical level, the situation in relation to the judicial review of
OLAF investigative acts seems to be at odds with solutions adopted in other
areas. For instance, for quite some time, satellite agencies have been granted
locus standi as a defendant before the EU courts,10 in line with the Meroni case
law,11 notwithstanding the fact that, with representatives of the Commission
on their administrative or governing boards or councils,12 they are, in practice,
less independent from the Commission than OLAF.
8. CaseT-435/09 R, GL2006 Europe v. Commission, [2010] ECR II-32*, paras. 1316. However, the administrative procedure which EU officials must follow before introducing an action in
court takes place before the Director-General of OLAF. See on the particularities of that procedure, 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 20 Dec. 1993 on the Community trade
mark, O.J. 1994, L 11/1 (now replaced by Art. 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. High Authority, [1958] ECR 133, and the parallel judgment in Case
10/56, 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 the
Council 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.
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Inghelram
605
OLAF Regulation22 does not provide for any change to OLAFs current
institutional structure as a part of the Commission. Perhaps the establishment
of a European Public Prosecutors Office will provide the occasion for a
change in this respect.23
2.2.
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Inghelram
607
contest the starting point of these decisions. Indeed, it is settled case law that
only measures the legal effects of which are binding on, and capable of
affecting the interests of, the applicant by bringing about a distinct change in
his legal position are acts or decisions which may be the subject of an action
for annulment.39
In this respect, it has been constantly held that, although this test for
admissibility must be interpreted in light of the principle of effective judicial
protection, such an interpretation cannot have the effect of setting aside the
test without going beyond the jurisdiction conferred by the Treaty on the EU
courts.40 Furthermore, where the case law has ruled that it is not the moral
interests of the applicant but his legal position which needs to be affected by
the act involved in order for the action for annulment to be admissible,41 this
case 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 is
the ruling of the Civil Service Tribunal in Violetti and Others v. Commission.42
The case had as its origin an internal investigation by OLAF into the high rate
of accidents declared by members of personnel at the Ispra-site (Italy) of the
European Commission and the equivalent high rate of invalidity pensions
granted to those members of personnel. In the context of that investigation,
OLAF forwarded information to the Italian judicial authorities under Article
10(2) of the OLAF Regulation. The plaintiffs asked for the annulment of the
decision to forward the information before the Civil Service Tribunal. One of
their arguments was that they should have been heard by OLAF before the
latter took its decision. The Civil Service Tribunal agreed and declared their
action admissible and well-founded.
annotation by Wakefield, 45 CML Rev. (2008), 199221. See also Hetzer, Fight against fraud
and 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]ertain
investigative acts ought to have been described as potentially adversely affecting the person
concerned so as to make them amenable to review before the investigation was concluded, and
Bitter, Zwangsmittel im Recht der Europischen Union: Geteilte Rechtsmacht in Europa, in
Zuleeg (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] ECR
I-7795, para 54.
40. See e.g. Reynolds Tobacco, cited previous note, para 81, and Tillack (T-193/04), cited
supra 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 April
2009, nyr.
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Inghelram
609
48. Case T-16/91, Rendo and Others v. Commission, [1992] ECR II-2417.
49. Ibid., para 41.
50. Ibid., para 53.
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Inghelram
51. Ibid., para 55, emphasis added. The General Courts ruling has been partially set aside
by the judgment in Case C-19/93 P, Rendo and Others v. Commission, [1995] ECR I-3319, but
not in relation to the part of the judgment of the General Court discussed in this section. This
part 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.
611
with those fundamental rights, forms part of the very foundations of the EU
legal order.56
Given the importance attached to the protection of fundamental rights and
to the role of the EU courts in reviewing the lawfulness of EU measures as
regards their consistency with those fundamental rights, it would, at first sight,
appear to be a paradox that an act of an EU institution depriving a person of the
effective exercise, or of the benefit, of a fundamental right could be qualified
as a mere fact, not producing any legal effect for that person, the
consequence of which would be that the door is closed for an otherwise
efficient 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, to
taking away, entirely or partly, that right from its beneficiary. For instance, if
the investigation report is sent to national authorities57 without previously
hearing the person under investigation, that person may well have the
possibility to make observations in relation to that report during subsequent
national administrative or judicial proceedings in which the OLAF findings
are used. However, that same persons right to be heard as defined by Article
41(2) of the Charter of Fundamental Rights of the EU, which is a right to be
honoured by the institutions, bodies offices and agencies of the Union,58 is,
in practice, taken away in relation to that report by the mere transmission of the
report in such circumstances. Taking away the right of a person is normally an
act 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, constitute
an act bringing about a distinct change in that persons legal position can be
found in the answer given by the Council and the Commission to the Civil
Service Tribunals question in Violetti59 as to what kind of OLAF acts could be
qualified as acts bringing about a distinct change in a persons legal position.
Those institutions provided as examples the searching of personal effects
during access to the office of a third-party official or other servant, the seizure
of such personal effects, the questioning of a third-party official or other
servant during which OLAF used unlawful methods, or the clandestine
tapping of the telephone of a third-party official or other servant. The reason
why only EU officials or agents who are not under investigation by OLAF
could, under these circumstances, file an action for annulment, was, according
56.
57.
58.
59.
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Inghelram
to the Council and the Commission, that these persons could not indirectly
challenge the legality of these acts at a later stage of the procedure.60
The Civil Service Tribunal rejected, in substance, the notion that an OLAF
investigative act could not be qualified as an act bringing about a distinct
change in the legal position of a person under investigation, merely because
that person could indirectly challenge the legality of an OLAF investigative
act at a later stage of the procedure.61
In this respect, it indeed appears that the acts mentioned by the Council and
the Commission have the same effect on an EU agent or official, whether they
are under investigation by OLAF or not. Moreover, EU agents and officials
who are under investigation by OLAF cannot always indirectly challenge the
legality of an OLAF investigative act at a later stage of the procedure. An
obvious example is the situation of Violetti and the other plaintiffs. There was
no act at a later stage of the procedure on the occasion of which the legality of
the OLAF investigative act could have been challenged, since the judge in
charge of preliminary investigations at the District Court in Varese decided to
discontinue the proceedings.62
As to the examples provided by the Council and the Commission, the Civil
Service Tribunal considered these examples did not demonstrate that the
transmission of information at issue in that case was not an act bringing about
a distinct change in the applicants legal position.63 Nevertheless, these
examples remain interesting regardless of whether the distinction between EU
agents and officials who are under investigation by OLAF and those who are
not is relevant. Indeed, those examples all relate to acts which interfere with
the fundamental rights of a person, either the fundamental right to privacy
(search of personal effects, clandestine tapping of the telephone) and possibly
the fundamental right to property (seizure of personal effects), as well as the
fundamental right to liberty and security (questioning with use of unlawful
methods). In other words, the examples cited by the Council and the
Commission in fact suggest that OLAF investigative acts may be considered
as acts producing legal effects for a person merely because they interfere with
that 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 judicial
protection cannot in itself modify the conditions to which the legal remedies
provided by the Treaties are subject. Indeed, the condition that an act should
60.
61.
62.
63.
64.
613
bring about a distinct change in a persons legal position for an action for
annulment to be admissible remains unaffected. Only the meaning of this
condition in a context where the act interferes with fundamental rights is at
issue.
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 for
annulment filed by the latter against that act to be admissible.65 It is indeed
difficult to deny that an OLAF investigative act in relation to a person under
investigation66 is of direct and individual concern to that person, especially if
that 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 fundamental
rights is often already an act bringing about a distinct change in the applicants
legal position, even before the question of the relevance of the fundamental
rights issue for the admissibility of the action for annulment can arise. An
example in this respect is the ruling in Kadi,67 where there was no doubt that
the measures freezing applicants funds brought about a distinct change in
their legal position.68 The question of whether the issue of fundamental rights
was relevant for the admissibility of the action was therefore not examined by
the ECJ, as the EU General Court pointed out in Commission v. Violetti and
Others.69
2.2.5. Limited scope of review
Moreover, since only the act depriving a person of the effective exercise, or of
the benefit, of a fundamental right would be an act bringing about a distinct
change in the legal position of that person against which the action for
annulment would be admissible, the scope of review would be limited to that
specific 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 a
distinct 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 whom Art. 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 to
property. Considered from that perspective, the Kadi case may possibly be seen as implicitly
confirming the proposed interpretation that an act of an EU institution depriving a person of the
effective exercise, or of the benefit, of a fundamental right constitutes an act bringing about a
distinct change in the legal position of that person.
69. Commission v. Violetti and Others, cited supra note 33, para 56.
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615
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It follows from the above that the scope of review under the action for
annulment would be limited to a kind of fundamental rights check of
individual OLAF investigative acts and not extend to the legality of the
investigation as a whole. Moreover, even if it were to be established that an
OLAF investigative act deprived a person of the effective exercise, or the
benefit, of a fundamental right, this would not yet mean that this fundamental
right was also violated. The latter would be a question relating to the merits of
the case, where possible justifications for the interference with a fundamental
right become relevant.
A step in the direction of specifically considering the protection of
fundamental rights relevant when determining the existence of an act bringing
about a distinct change in the legal position of the applicant was taken by the
EU General Court in Planet v. Commission,78 where the absence of a right to
be heard was found to be one of the elements supporting the Courts
conclusion that the applicants registration by the Commission in certain
categories of its early warning system constituted such an act.
2.3.
617
serious breach of a rule of law intended to confer rights on persons, but merely
the fact that the allegedly wrongful act committed by an EU institution was
illegal.81
Although the EU as a legal person is liable, it is represented before the EU
courts by the institution or institutions against which the matter giving rise to
liability is alleged.82 A request for damages allegedly suffered by reason of
OLAFs 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 of
different causes and where the EU institution has adduced no evidence to
establish to which of those causes the event is imputable, although it is best
placed to provide such evidence, the uncertainty which remains will be
construed against it. This mitigation of the burden of proof on the applicant
also applies in OLAF-related cases.85
Up until now, compensation86 has been granted for a violation by OLAF of
the obligation of impartiality,87 for unauthorized leaks by OLAF of
confidential information,88 as well as for an infringement by OLAF of the
right to be heard.89
2.4.
Interim relief
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that the time needed to establish the existence of a right does not ultimately
have the effect of irremediably depriving the right of substance by eliminating
any possibility of exercising it. The purpose of interim protection is therefore
to achieve the fundamental objective of every legal system, namely, the
effectiveness of judicial protection.93
General features of interim relief are its provisional and ancillary nature.
Due to their provisional character, the measures ordered cease to produce their
effects as soon as final judgment is given.94 The judicial protection granted by
way 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 the
Presidents of the respective EU courts possess to adapt the measure ordered to
the legal protection needed, as well as the possibility of ordering interim relief
measures within an extremely short period of time.95
The ancillary nature of interim relief implies that an application to suspend
the operation of any measure adopted by an EU institution is admissible only
if the applicant is challenging that measure in proceedings before the
competent EU court. An application for the adoption of any other interim
measure is admissible only if it is made by a party to a case before the
competent EU court and relates to that case.96
2.4.1. Interim relief in the framework of actions for annulment
The ancillary nature of interim relief also implies that a claim for such relief
will be refused if the main action, in the framework of which the claim for
relief has been made, is found to be prima facie inadmissible.97 This is
particularly relevant for interim relief sought in the framework of actions for
annulment against OLAF investigative acts. Indeed, the current general trend
in 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] ECR
I-2433, para 18.
94. See e.g. Case C-440/01 P(R), Commission v. Artegodan, [2002] ECR I-1489, para 60.
95. Kapteyn and VerLoren van Themaat, The Law of the European Union and the European
Communities, 4th ed. (Kluwer Law International, 2008), at p. 503, footnote 474, cite the
example of Case 50/69 R, Germany v. Commission, [1969] ECR 449, in which the application
had 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 Procedure
of the EU General Court and Art. 102(1) of the Rules of Procedure of the Civil Service Tribunal.
97. See e.g. Case C-329/99 P(R), Pfizer Animal Health v. Council, [1999] ECR I-8343,
para 89.
619
interpretation, EU courts have until now refused to grant interim relief in the
framework of actions for annulment against OLAF investigative acts.98
However, provided this admissibility hurdle can be overcome, there do not
seem to be any further obstacles of principle against interim relief being
granted in the context of actions for annulment against OLAF investigative
acts. This would imply that if the general conditions for interim relief are met99
the operation of an OLAF investigative act could theoretically be suspended
pending the court proceedings on the action for annulment, which would
prevent this act from being used in further proceedings during that same
period. Other interim measures could also be taken, even a mere reminder that
existing provisions have to be complied with.100
2.4.2. Interim relief in the framework of actions for damages
The limited possibility to claim interim relief in the framework of actions for
annulment against OLAF investigative acts raises the question to what extent
interim relief may be granted in the framework of actions for damages. As
mentioned above, such actions currently constitute the most obvious means
for 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 of
interim relief is granted by EU courts in the context of main proceedings, the
object of which is an action for annulment. In fact, at first sight, there does not
seem to be a single case in which interim relief has been granted specifically
and 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. In
Antonissen,101 the President of the ECJ ruled that an absolute prohibition on
obtaining a measure granting (by way of advance) a part of the compensation
claimed 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 for
interim relief is justified prima facie in fact and in law (fumus boni juris); (2) that the order is
urgent in that, in order to avoid serious and irreparable damage to the applicants interests, it
must 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 outweighs
the 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.
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kind of damage to which OLAF investigations may give rise has already
been considered as an irreversible damage justifying the taking of an order for
interim relief.113
By way of conclusion, it should not be excluded, at least from a theoretical
point of view, that interim relief can actually be granted in the framework of an
action for damages for breach of an obligation by OLAF, whether this interim
relief takes the form of a measure granting (by way of advance) a part of the
compensation claimed in the main proceedings, or even of a suspension of the
application of the OLAF investigative measure. Such an application for
suspension was, in substance, at issue in Tillack114 but the President of the EU
General Court dismissed the application on the grounds that the applicant had
not established to the required legal standards that his application for damages
was not manifestly unfounded. The President did not consider the question
whether the other conditions for granting relief had been satisfied.
3.
Judicial review of OLAF investigative acts can also be exercised indirectly, i.e.
during a court case dealing with a subsequent act or decision of an authority
other than OLAF, which is entirely or partly based on an OLAF
investigative act. This indirect judicial review can be exercised by an EU court
or a national court.
3.1.
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116.
117.
118.
119.
120.
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625
doubts as to the validity of the EU act and, where the validity of the contested
measure is not already at issue before the ECJ, itself refer that question to the
Court; there must be urgency and a threat of serious and irreparable damage to
the applicant; and the national court must take due account of the EU
interest.127
4.
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required. Moreover, several years passed between the search and seizure
orders and the decision on the merits. The Court stressed that Article 6 ECHR
requires appropriate redress, which necessarily implies the certainty, in
practice, that effective judicial review can be obtained and, moreover, within a
reasonable period of time.130
Applied to the OLAF context, this case law may require the availability of
more or less immediate judicial review, at least when investigative acts
interfering with fundamental rights, such as searches and (acts equivalent to)
seizures, are at issue. Qualifying an OLAF investigative act depriving a person
of the effective exercise, or of the benefit, of a fundamental right as an act
bringing about a distinct change in the legal position of that person, and thus
making the introduction of an action for annulment, combined with a request
for interim relief, against that act possible may therefore not just be a
theoretical solution, but also a legal necessity.
5.
Concluding remarks
627
rights. This solution might possibly strike a balance between safeguarding the
efficiency of OLAF investigations on the one hand and protecting
fundamental rights on the other. Moreover, the latter interest is not only to the
benefit of persons under investigation but also of OLAF, whose legitimacy can
only increase when fundamental rights are (seen to be) effectively protected.