Sie sind auf Seite 1von 27

Common Market Law Review 49: 601628, 2012.

2012 Kluwer Law International. Printed in the United Kingdom.

JUDICIAL REVIEW OF INVESTIGATIVE ACTS OF THE EUROPEAN


ANTI-FRAUD OFFICE (OLAF): A SEARCH FOR A BALANCE
JAN F.H. INGHELRAM*

1.

Introduction

OLAF, structurally a part of the European Commission, was established by


Commission Decision of 28 April 19991 in the wake of the incidents that
triggered the resignation of the Santer Commission. Its competences are
primarily governed by Regulation No 1073/1999 of the European Parliament
and of the Council of 25 May 1999.2
OLAF has far-reaching powers of investigation, which include, amongst
others, the power to obtain unannounced access to premises of economic
operators and offices of EU officials as well as to documents and computer
data held by them. When carrying out internal investigations, OLAF also has
the power to assume custody of such documents and data.3 Moreover, whereas
OLAF has to rely on the assistance of Member State authorities to have its
powers 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 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.

602

Inghelram

CML Rev. 2012

investigations,4 this enforcement is essentially in the hands of OLAF itself


when it carries out investigations in the EU institutions, bodies, offices and
agencies.5 Particularly in the latter context, OLAFs powers of investigation
may therefore be viewed as approaching policing measures.6
Such extensive powers of investigation undoubtedly serve an effective
protection of the EUs financial interests, an area in which OLAF has become
a major player. The other side of the coin, however, is that the exercise of such
powers is likely to affect the lives and careers of persons under investigation as
well as touch upon their fundamental rights, especially the rights of the
defence and the right to privacy.7 The question which is the subject of this
article is what role judicial review can or should play in effectively protecting
the fundamental rights of persons under investigation by OLAF, taking into
account 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 taken
by OLAF in the exercise of its investigative mission (hereinafter: OLAF
investigative acts), thereby following the distinction between direct and
indirect judicial review (sections 2 and 3 below). This overview will be
followed by considerations on the possible contribution of the fundamental
right to an effective remedy, as provided for by Article 47 of the Charter of
Fundamental Rights of the EU, to the debate on judicial review of OLAF
investigative acts (section 4 below), before arriving at some concluding
remarks (section 5 below).
2.

Direct judicial review

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.

Judicial review of OLAF


2.1.

603

The European Commission as the defending party

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.

604

Inghelram

CML Rev. 2012

Moreover, in Sogelma v. European Agency for Reconstruction (EAR),13 the


EU General Court14 lifted all doubts as to whether locus standi for the satellite
agencies should be expressly provided for by the EU legislator. According to
the Court, this is not the case, since it is a general principle that any act of a
Community body intended to produce legal effects vis--vis third parties must
be open to judicial review.15 Interestingly, one of the findings made by the
EU General Court was that, as a general rule, actions must be directed
against the body which enacted the contested measure.16 Moreover, the Court
rejected the EARs argument that the action should have been introduced
against the Commission, precisely on the grounds that the latter had played no
part in the decision-making process.17
This idea of having the author of a measure or decision appear before the
EU courts also underlies the ECJs case law on the non-contractual liability of
the EU.18 Notwithstanding that it is the EU which has to make good damage
caused 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 of
a good administration of justice that where [EU] liability is involved by reason
of the act of one of its institutions, it should be represented before the Court by
the institution or institutions against which the matter giving rise to liability is
alleged.20 This reasoning, based on the interests of a good administration of
justice, 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 investigative
acts are concerned, will change in the near future. Although President Barroso
suggested in September 2009 that now that it is well established, OLAF
should be given full independence outside the Commission,21 the
Commissions latest proposal of 17 March 2011 for an amendment of the
13. Case T-411/06, Sogelma v. European Agency for Reconstruction (EAR), [2008] ECR
II-2771.
14. The name EU General Court will be used even if the judgments were rendered before
the entry into force of the Treaty of Lisbon, when this judicial body was known as the Court
of First Instance of the European Communities.
15. Para 37. The EU General Court referred in this respect to Case C-294/83, Les Verts 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 <ec.europa.eu/
archives/commission_2004-2009/president/pdf/press_20090903_EN.pdf> (last visited on 5
Jan. 2012).

Judicial review of OLAF

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.

The action for annulment

General trend: Inadmissibility of an action for annulment


against an OLAF investigative act
Actions for annulment, which, if honoured, result in the act of the EU entity
being declared void, have been introduced against OLAF investigative acts by
non-EU officials under Article 263(4) TFEU (ex 230(4) EC) and by EU
officials under Article 270 TFEU (ex 236 EC) and Article 91 of the Staff
Regulations24 in the past. These actions have consistently been declared
inadmissible.25 This has been the outcome in cases involving a decision to
open an investigation;26 acts performed in the course of an investigation;27 a
final report drawn up by OLAF;28 a decision to close an investigation;29 a
decision of OLAF not to annul investigative acts which had been
accomplished by one of its investigators who was allegedly in a situation of
conflict of interest;30 a refusal by OLAF to inform a person of certain
investigative acts concerning the latter and to allow the latter to defend himself
2.2.1.

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 and
Stefanou, 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 the
Conditions of Employment of Other Servants of the European Economic Community and the
European 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-investigative OLAF acts, there are cases in which an
action 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 OLAF
under Reg. (EC) No. 1049/2001 of the European Parliament and of the Council of 30 May 2001
regarding 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. See
also 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 Case
C-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 63
respectively.
30. Case T-96/03, Cams Grau v. Commission , [2004] ECR-SC I-A-157, para 38.

606

Inghelram

CML Rev. 2012

in the context of the investigation;31 and OLAFs forwarding to an EU


institution of the report concluding an internal investigation32 or to national
prosecuting authorities of information on internal investigations.33 These
rulings were unaffected by the fact that procedural irregularities and
infringements of essential procedural requirements had been raised in the
action for annulment.34
The reason for a finding of inadmissibility in all these cases was the fact that
the OLAF acts at issue were deemed not to bring about a distinct change in the
applicants legal position. In essence, it follows from the provisions of the
OLAF Regulation in particular the 13th recital in the preamble and Article 9
that the findings of OLAF set out in a final report do not automatically lead
to the initiation of judicial or disciplinary proceedings, since the competent
authorities are free to decide what action to undertake pursuant to a final
report and, accordingly, are the only ones that have the power to adopt
decisions capable of affecting the legal position of persons in relation to which
a report recommends proceedings be instigated.35 In Tillack v. Commission,36
the EU General Court added that Article 10(2) of the OLAF Regulation
merely provides for the forwarding of information to national judicial
authorities, which remain free, in the context of their own powers, to assess the
content and significance of that information and to determine the action to be
taken if necessary. Consequently, the possible initiation of legal proceedings
following the forwarding of information by OLAF and the subsequent legal
acts 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. Case T-193/04, Tillack v. Commission, [2006] ECR II-3995, para 82, and Case T-261/09
P, Commission v. Violetti and Others, judgment of 20 May 2010, nyr, para 73. See also Case
C-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 Europischen
Gemeinschaft, 6th ed. (Nomos, 2004), Vol. 4, p. 1224. The authors contend that it will have to
be admitted that an OLAF final report affects the legal position of a person. A certain surprise
that this was not the case seems to result from an apparently last minute reference to the Order
in Case T-215/02 R, Gmez-Reino v. Commission, [2002] ECR-SC I-A-199, which was the first
case in which the admissibility of an action for annulment of an OLAF investigative act had
been 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

Judicial review of OLAF

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.

608

Inghelram

CML Rev. 2012

In its reasoning on the admissibility, the Civil Service Tribunal essentially


focused on the interplay between the fundamental right of effective judicial
protection and the rights of the defence. It also referred to the fact that the
nature of judicial protection is altered by the decision of the Director of OLAF
to forward information to the national judicial authorities. Indeed, whereas
possible judicial protection is exercised by the EU courts before this decision
is taken, it is exercised by national courts thereafter.43
An appeal was brought before the EU General Court by the Commission
against the ruling of the Civil Service Tribunal, which led to an annulment of
the ruling by the General Court in Commission v. Violetti and Others.44 The
arguments of the Court were, as to their substance, the same as those
underpinning the reasoning in previous rulings finding actions for annulment
against OLAF investigative acts inadmissible. The Court added, however, that
its ruling did not imply that an action for annulment would never be
admissible against an OLAF investigative act.45
2.2.2. Some further reflections
In the current case law, the inadmissibility of actions for the annulment of
OLAF investigative acts is essentially supported by the fact that the
transmission of information (or a final report) by OLAF to national or EU
authorities does not imply the existence of any obligation upon these
authorities to initiate proceedings against the person mentioned in that
information (or report). Moreover, the EU General Court has pointed out in
Commission v. Violetti and Others46 that even if such an obligation were to
exist, this would not necessarily transform the transmission of information
into an act bringing about a distinct change in the applicants legal position, as
the decision (taken by an EU institution) to introduce a case in court is not such
an act.47
From that perspective, it is indeed difficult to contest that the transmission
by OLAF of information or of a report to national or EU authorities does not
bring about a distinct change in the legal position of a person mentioned in that
information or in the report. The question remains, however, whether this is a
sufficient ground for considering an action for annulment against any OLAF
investigative act resulting in or related to such a report to be inadmissible. In
particular, if an OLAF investigative act deprived a person of the effective
exercise, or of the benefit, of a fundamental right, would this circumstance not
43.
44.
45.
46.
47.

Ibid., para 76.


Commission v. Violetti and Others, cited supra note 33.
Ibid., para 71.
Commission v. Violetti and Others, cited supra note 33.
Para 66, with reference to Reynolds Tobacco, cited supra note 39, para 58.

Judicial review of OLAF

609

be tantamount to bringing about a distinct change in the legal position of that


person, thus allowing for an action for annulment against such an act to be
admissible? It is argued here that this question can (sections 2.2.3 to 2.2.5
below) or even should (section 4 below) be answered in a positive way.
The Rendo case: depriving a person of the effective exercise of his
procedural rights = bringing about a distinct change in the legal
position of that person
The Rendo case48 sheds an interesting light on the notion of an act bringing
about a distinct change in the legal position of a person. In that case, the
Commission had adopted a decision finding that there had been an
infringement of Article 85 EEC by a company set up by electricity-generating
companies in the Netherlands. The plaintiffs were local electricity distribution
companies in that same Member State, and had asked for the annulment of the
Commissions decision, insofar as it had not ruled on certain import and
export restrictions applied by the electricity generating companies to the
distribution companies, including the applicants. The Commission had
decided to deal with the issue of those restrictions under Article 169 EEC in
the context of infringement proceedings against the Netherlands, rather than
under 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 for
annulment was directed against an act which brought about a distinct change
in the legal position of the applicants and therefore admissible. It noted that
neither the operative part nor the grounds of the Commissions decision
expressly and definitively rejected the applicants complaint as regards the
import restrictions imposed on the distribution companies.49 In this respect,
that decision did not therefore constitute such an act in relation to those import
restrictions.
Nevertheless, according to the General Court, the Commissions deferral of
consideration of the issue until proceedings were brought under Article 169
EEC a proof of which the Court found in section 50 of the Commissions
decision had the effect of interrupting the procedure under Article 85 EEC
for a considerable period of time. In consequence, some of the issues raised by
the applicants in their complaint concerning imports of electricity had been
taken out of that procedure, in which the applicants had specific procedural
rights, and left to proceedings under Article 169 EEC, in which the applicants
had no such rights.50 The deferral had legal effects in that it affect[ed] the
2.2.3.

48. Case T-16/91, Rendo and Others v. Commission, [1992] ECR II-2417.
49. Ibid., para 41.
50. Ibid., para 53.

610

Inghelram

CML Rev. 2012

applicants procedural rights51 and thus constituted a decision against which


an 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 their
procedural rights52 may constitute an act bringing about a distinct change in
the legal position of that person and thus an act against which an action for
annulment 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, in
itself, not produce binding legal effects for a person under investigation, the
implicit decision of OLAF accompanying that act to by all hypotheses
deprive that person of the effective exercise of his procedural rights may well
be an act bringing about a distinct change in the legal position of that person.
Depriving a person of the effective exercise, or of the benefit, of a
fundamental right = bringing about a distinct change in the legal
position of that person?
The above reasoning may have further effects if it is applied to fundamental
rights. In particular, the following question arises: if an act adopted by an EU
institution by which a person is deprived of the effective exercise of his
procedural rights constitutes an act bringing about a distinct change in the
legal position of that person, is this not a fortiori true for an act of an EU
institution which deprives a person of the effective exercise of his fundamental
rights?
The importance of fundamental rights can hardly be doubted. With the
entry into force of the Treaty of Lisbon, the Charter of Fundamental Rights of
the EU became a legally binding instrument53 and the EU stated its intention
to accede to the ECHR.54 Moreover, in Kadi,55 the ECJ ruled that it is a
constitutional 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 the
EU judicature of the lawfulness of EU measures as regards their consistency
2.2.4.

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.

Judicial review of OLAF

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.

Ibid., para 304.


OLAF Regulation, Art. 9.
This follows from Art. 41(1) of the Charter.
Violetti and Others v. Commission, cited supra note 42.

612

Inghelram

CML Rev. 2012

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.

Ibid., para 66.


Ibid., para 88.
Ibid., para 28.
See, to that effect, ibid., para 89.
See supra note 40.

Judicial review of OLAF

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.

614

Inghelram

CML Rev. 2012

investigation report to national authorities without previously hearing the


person under investigation, this would mean that only the legality of the act of
transmission without hearing could be subject to judicial review and not the
legality 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 in
the legal position, and thus not open to judicial review via the action for
annulment. In practical terms, this would also imply that, in relation to the
transmission of the investigation report to the national authorities, only a
violation of the right to be heard could be examined by the competent EU
court.
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.70 As suggested above
in relation to the examples given by the Council and the Commission in
Violetti, such an act could be considered as depriving a person of the benefit of
his fundamental right to privacy and/or to property. Since only that specific act
could arguably be qualified as an act bringing about a distinct change in the
legal position of that official, review would be limited to examining that act
and its compatibility with the fundamental right to privacy and/or to property.
There would, however, be no grounds for examining the legality of the
investigation 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 whose
aim is to prepare the final decision do not, in principle, bring about a distinct
change in the legal position of the applicant, and an action for annulment
against them is therefore inadmissible.71 This case law appears relevant for all
OLAF investigative acts prior to the adoption of the investigation report, as
these can be considered preparatory to that report, but not for the investigation
report itself, which has explicitly been found not to be a measure preparatory
to administrative or judicial proceedings liable to be initiated pursuant to it.72
Even if the case law on preparatory acts effectively supports the conclusion
that an action for annulment against an OLAF investigative act (prior to the
investigation report) is, as a general rule, inadmissible, it also justifies, to a
certain extent, why this would not be true if an investigative act depriving a
person of the effective exercise, or of the benefit, of a fundamental right is at
stake.

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.

Judicial review of OLAF

615

In IBM v. Commission,73 the ECJ indeed explained its case law on


preparatory acts by ruling that an action for annulment against such acts might
make it necessary for it to arrive at a decision on questions on which the
defending EU institution had not yet had an opportunity to state its position
and would as a result anticipate the arguments on the substance of the case,
confusing different procedural stages both administrative and judicial. An
action for annulment at that stage would thus be incompatible with the system
of division of powers between that institution and the Court and the system of
remedies laid down by the Treaty, as well as the requirements of the sound
administration of justice and the proper course of the administrative procedure
to be followed by the former.74
However, reviewing the legality under the fundamental right to privacy
and/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 the
example taken above does not draw the competent EU court into anticipating
the arguments on the substance of any case.75 As an act depriving a person of
the effective exercise, or of the benefit, of a fundamental right, the
investigative act and the specific legal issue raised by it are, in fact, definitive,
even if this act prepares the adoption of another measure, namely the
investigation 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 an
action for annulment since the illegality attaching to that measure can be relied
on in support of an action against the final decision for which it represents a
preparatory step.77 As already pointed out above in relation to the situation of
Violetti and others, it is not at all sure, at the stage of the investigation, that
such a final decision will actually be adopted. Moreover, the fundamental
right to an effective remedy requires more than just the remote possibility of
introducing an action against a final decision in order to be able to conclude
that sufficient judicial protection exists in relation to such an intermediate
measure (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 IBM
v. Commission, cited supra note 73, para 23, the ECJ suggested that judicial review at an early
stage of an act to be qualified as preparatory may become necessary in exceptional
circumstances, where the measures concerned lack even the appearance of legality. This may
be another reason for considering an action for the annulment of an OLAF investigative act to
be admissible, provided the condition referred to by the Court is fulfilled.
77. Deutsche Post, cited supra note 65, para 53.

616

Inghelram

CML Rev. 2012

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.

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 damages
under 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, the
EU is, in accordance with the general principles common to the laws of the
Member States, to make good any damage caused by its institutions or by its
servants 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 act
brings about a distinct change in the legal position of the applicant. A right to
reparation exists where three conditions are met: the rule of law infringed must
be intended to confer rights on persons; the breach must be sufficiently
serious; and there must be a direct causal link between the breach of the
obligation and the damage sustained by the injured parties.80 According to
certain cases, less stringent conditions may apply if the action for damages is
filed by an EU official or agent under Article 270 TFEU (ex 236 EC). In such
a 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 appeal
against 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.

Judicial review of OLAF

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

Actions brought before the EU courts do not have suspensory effect.90


However, if they consider that circumstances so require, the EU courts may
order at the request of the applicant that the application of the contested act be
suspended.91 Moreover, they may in any cases before them prescribe any
necessary 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 OLAF
and 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).

618

Inghelram

CML Rev. 2012

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.

Judicial review of OLAF

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.

620

Inghelram

CML Rev. 2012

interests until judgment is rendered, irrespective of the circumstances of the


case, would not be compatible with the right of individuals to complete and
effective judicial protection under EU law, which implies in particular that
interim protection must be available to them if it is necessary for the full
effectiveness 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 the
framework of an action for damages, was left explicitly unanswered in
Comos-Tank.102 Moreover, in Connolly,103 the President of the EU General
Court suggested in rather general terms that, in the context of an application
for interim measures connected with an action for damages, the applicant
should have the possibility of obtaining a measure to prevent future damage
which 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 seem
entirely impossible. In fact, Article 278 TFEU (ex 242 EC) does not establish,
at least not explicitly, a link between the possibility of suspending the
application of a measure and a specific kind of (main) proceedings. In any
case, the wording of Article 279 TFEU (ex 243 EC) is so broad (may in any
cases before it prescribe any necessary interim measures104) that it may also
include measures of suspension if necessary.105
Moreover, the fact that, contrary to an action for annulment, a successful
action for damages does not have a legal impact on the measure which forms
the subject of the main proceedings does not seem to be a sufficient reason for
denying interim relief by way of suspension of the operation of that measure in
the framework of an action for damages. The situation in this respect can be
compared to the possibility, firmly established in the case law, of interim relief
ordered in the framework of an action for infringement, based on Article 258
TFEU (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] ECR
I-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 Community
Law (Kluwer Law International, 1997), 264265. He states the argument that Art. 186 EC
(later Art. 243 EC and now Art. 279 TFEU) should not be used to provide for a broader right of
suspension than is expressly provided in Art. 185 EC (later Art. 242 EC and now Art. 278
TFEU) appears rather pedantic, particularly in light of the very broad discretion granted to
the EU courts by what is now Art. 279 TFEU. Moreover, according to the same author, the two
Treaty provisions should not be interpreted in such a way as to defeat the effective protection of
EU rights.
106. See e.g. Case C-573/08 R, Commission v. Italy, [2009] ECR I-217*.

Judicial review of OLAF

621

judgment finding the failure to fulfil obligations is declaratory in nature does


not preclude the imposition of interim measures. In the same way, one could
argue that the fact that the judgment grants compensation should not preclude
the imposition of interim measures. Indeed, an interlocutory order by one of
the the EU courts does not derive its binding force from that courts power to
give judgment in the main proceedings.107
Furthermore, it would seem difficult to derive an argument against the
possibility of suspending the operation of a measure in the context of an action
for damages from the actions objective, which is to compensate past damage,
not to prevent new damage from arising. As indicated earlier, the President of
the EU General Court already suggested in Connolly108 that an interim
measure to prevent future damage which might be serious and irreparable,
could be granted in the context of an action for damages. Moreover, it is settled
case law that an injured party must show reasonable diligence in limiting the
extent 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 legal
remedies available to him.109 With this obligation in mind, it would be rather
surprising if the case law closed the door for an efficient remedy for
preventing future serious and irreparable damage on the grounds that the
objective of the action for damages would be exclusively to compensate past
damage.
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 be
drawn from the settled case law that the urgency of an application for interim
measures must be assessed in relation to the necessity for an interim order to
prevent serious and irreparable harm to the party applying for those
measures,110 and that purely pecuniary damage cannot, in principle, be
regarded as irreparable or even as difficult to repair since it may be the subject
of 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 considered
damage that is difficult to quantify as irreparable.112 In particular, the fact of
irreparably 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.

622

Inghelram

CML Rev. 2012

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.

Indirect judicial review

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.

Indirect judicial review by an EU court

When a decision of an EU institution is partly or entirely based on an


OLAF investigative act, this act may be reviewed in the context of judicial
proceedings before an EU court against that decision. The legality of the
investigative act may indeed affect the legality of the decision taken on the
basis of that act.
An example of this kind of review can be found in CPEM v. Commission,115
in which the applicant asked for the annulment of a Commission decision
cancelling the assistance from the European Social Fund previously granted to
the applicant. The decision had been taken on the basis of an OLAF report, and
one of the arguments of the applicant was that his rights of defence had been
violated 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.

Judicial review of OLAF

623

Commission,116 in which the correctness of OLAFs findings was at issue in a


case in which Spain had asked for the annulment in part of a Commission
decision excluding from EU financing certain agricultural expenditure, as
well as Commission v. Cresson,117 in which the defendant argued that the
necessary authorizations for the OLAF members of staff who participated in
the investigation had been missing. However, in all these cases, the arguments
of the applicants relating to the legality of OLAF investigative acts were
dismissed 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 a


national authority, this act may be reviewed in the context of judicial
proceedings before a national court against that decision. In this context, the
relationship between the courts of the Member States and the ECJ and, in
particular, the preliminary ruling procedure under Article 267 TFEU (ex 234
EC), which constitutes the essence of this relationship, becomes relevant.
3.2.1. Interpretation of an OLAF(-related) act
If an OLAF investigative act is being used in national court proceedings, there
may be a need to interpret either this act or OLAF legal instruments for the
national 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 ruling
concerning the interpretation of that act or of those legal instruments. The fact
that an OLAF investigative act is not a legally binding act cannot be an
obstacle in this respect. Article 267 TFEU (ex 234 EC) indeed confers on the
ECJ jurisdiction to give a preliminary ruling on the validity and interpretation
of all acts of the EU institutions without exception.119
The judgment in which the ECJ gives a preliminary ruling is binding on the
national court for the purposes of the decision to be given in the main
proceedings.120 Aside from this specific effect, such a judgment may, of
course, present an overall interest for the interpretation of OLAFs
competences.

116.
117.
118.
119.
120.

Case T-259/05, Spain v. Commission, [2009] ECR II-95*, paras. 129150.


Case C-432/04, Commission v. Cresson, [2006] ECR I-6387, paras. 85 and 102.
Art. 267(3) TFEU.
Case C-322/88, Grimaldi, [1989] ECR 4407, para 8.
See e.g. Case C-446/98, Fazenda Pblica, [2000] ECR I-11435, para 49.

624

Inghelram

CML Rev. 2012

3.2.2. Validity of an OLAF(-related) act


During national proceedings based on OLAF investigative acts, a question as
to the validity of these acts may arise. Such was the case in Thomson Sales
Europe,121 which appears to be the first preliminary reference ever in relation
to the OLAF Regulation. In that case, the Tribunal dInstance de Paris has
submitted several questions to the ECJ on the validity of an OLAF
investigation 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 to
determine that acts of an EU institution are invalid.123 A national court must
therefore submit a request for a preliminary ruling on the validity of an
investigative OLAF act to the ECJ, which has to determine that the act is
actually invalid for the national court to be able to rule that national
proceedings 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 an
application for interim measures.124 Indeed, national courts are not precluded
from granting interim relief, inter alia, by making a positive order
provisionally disapplying an EU regulation, to settle or regulate the disputed
legal positions or relationships with reference to a national administrative
measure based on an EU regulation which is the subject of a reference for a
preliminary ruling on its validity.125 The question whether this reasoning
could also allow a national court to make a positive order provisionally
disapplying an OLAF act has not yet been answered. However, given the ratio
legis of this case law, which is the need for legal protection pending delivery of
a judgment of the ECJ which alone has the jurisdiction to declare an EU act
invalid,126 the answer cannot be negative from the outset. This question may be
of practical relevance when national proceedings are initiated against a person
on the basis of an OLAF investigation report of which that person contests its
validity. If the answer to the above question is positive, a national judge would
be competent to provisionally set aside the report, which would normally lead
to 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 contested
act 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.

Judicial review of OLAF

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.

The fundamental right to an effective remedy

According to Article 47 of the Charter of Fundamental Rights of the EU,


[e]veryone whose rights and freedoms guaranteed by the law of the Union are
violated has the right to an effective remedy before a tribunal in compliance
with 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 form
of an action for damages.128 However, according to Article 47, this remedy
must also be effective. The case law of the ECJ on interim relief confirms
that the need for judicial protection to be effective requires that this protection
can 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 decision
subsequently taken on the basis of the OLAF investigation may well, in certain
circumstances, be problematic under Article 47 of the Charter if, as Article
52(3) of the Charter requires, this provision is given the same meaning and
scope as Article 6 ECHR.
Indeed, in Socit Canal Plus and Others v. France,129 the European Court
of Human Rights found that Article 6 ECHR was violated in a situation where
the applicants could only contest search and seizure orders pronounced
against them by the liberties and detention judge in a competition case if an
appeal was lodged against the decision on the merits taken by the competition
authority. According to the Court, this made the possibility of obtaining
judicial review of these orders uncertain, since both the adoption of a decision
on 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 and
Practice of the European Convention on Human Rights, 4th ed. (Intersentia, 2006), p. 559. With
reference to the judgment of 7 July 1989 of the European Court of Human Rights in Case Tre
Traktrer AB v. Sweden, Series A no. 159, para 49, these authors mention that the possibility of
instituting judicial proceedings for damages does not substitute for the right to refer the
underlying dispute to a court under Art. 6 ECHR.
129. Judgment of 21 Dec. 2010, no. 29408/08.

626

Inghelram

CML Rev. 2012

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

In exercising its investigative activities, OLAF is subject to judicial control,


thus far exercised by the EU courts through action for damages cases. The
question remains, however, whether this procedure allows for a sufficient
protection of fundamental rights in all circumstances. Judicial protection is
obtained long after the contested investigative act and the act as such is not
affected by the EU courts ruling; only compensation for the prejudice created
by 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 act
which by all hypotheses violates these rights can first be suspended and
then declared void through the action for annulment combined with a request
for 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 considered
admissible against an OLAF investigative act, thereby respecting the current
case law, in particular that on preparatory acts. This could be the case if an
OLAF investigative act is shown to have deprived the applicant of the effective
exercise, or of the benefit, of a fundamental right, thus opening a review
limited to examining the compatibility of that specific act with fundamental

130. Ibid., para 40.

Judicial review of OLAF

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.

Das könnte Ihnen auch gefallen