Judgment of the General Court (Sixth Chamber) of 6 June 2019.John Dalli v European Commission.Non-contractual liability — Investigation by OLAF — Sufficiently serious breach of a rule of law conferring rights on individuals — Non-material damage — Causal link.Case T-399/17.

Judgment of the General Court (Sixth Chamber) of 6 June 2019 –Dalli v Commission

(Case T‑399/17)

(Non-contractual liability — Investigation by OLAF — Sufficiently serious breach of a rule of law conferring rights on individuals — Non-material damage — Causal link)

1. Judicial proceedings — Res judicata — Scope — Inadmissibility of a second action — Conditions — Parties, subject matter and cause of the two actions identical

(see paras 27-30, 33, 34)

2. Non-contractual liability — Conditions — Unlawfulness — Injury — Causal link — One of the conditions not satisfied — Claim for compensation dismissed in its entirety

(Art. 340, second para. TFEU)

(see paras 45, 46)

3. Non-contractual liability — Conditions — Unlawfulness — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Whether illegal act in question regulatory or administrative — Irrelevant

(Art. 340, second para. TFEU)

(see paras 47-49)

4. Non-contractual liability — Conditions — Unlawfulness — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Rule of law intended to confer rights on individuals — Concept — Internal rules of the European Anti-Fraud Office (OLAF) on the procedure for selecting cases — Not included

(Art. 340, second para. TFEU; European Parliament and Council Regulation No 1073/1999, Art. 1(3))

(see paras 56-58)

5. Non-contractual liability — Conditions — Unlawfulness — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Rule of law intended to confer rights on individuals — Concept — Right to sound administration and duty of care — Included

(Art. 340, second para. TFEU; Charter of Fundamental Rights of the European Union, Art. 41; Staff Regulations of Officials, Arts 11 and 11a)

(see paras 59, 200)

6. European Anti-Fraud Office (OLAF) — Powers — Investigations — Jurisdiction to conduct an investigation on the failure of officials, agents and heads of bodies or institutions of the European Union to meet their duties

(European Parliament and Council Regulation No 1073/1999, Recital 5 and Art. 1(3); Commission Decision 1999/352, Art. 2(1))

(see para. 62)

7. European Anti-Fraud Office (OLAF) — Investigations — Opening — Conditions — Need for serious circumstances — Not included

(European Parliament and Council Regulation No 1073/1999, Arts 1 (3) and 5)

(see para. 63)

8. European Anti-Fraud Office (OLAF) — Investigations — Opening — Conditions — Serious suspicions relating to acts of fraud, corruption or other illegal activities detrimental to the financial interests of the Union — Concept — Allegations of serious matters which may constitute a dereliction of the obligations of Members of the institutions — Included

(European Parliament and Council Regulation No 1073/1999, Arts 1 (3) and 5)

(see para. 64)

9. European Anti-Fraud Office (OLAF) — Investigations — Opening — Conditions — Procedure for selecting cases — Obligation to ascertain whether the information in question is sufficient, the reliability of the source and the credibility of the allegations — Scope

(European Parliament and Council Regulation No 1073/1999, Arts 1 (3) and 5)

(see paras 69-71)

10. European Anti-Fraud Office (OLAF) — Investigations — Scope — Extension — Lawfulness

(European Parliament and Council Regulation No 1073/1999, Art. 5)

(see paras 83-89)

11. Non-contractual liability — Conditions — Unlawfulness — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Rule of law intended to confer rights on individuals — Concept — Right to respect for private life and the confidentiality of communications — Included

(Art. 340, second para. TFEU; Charter of Fundamental Rights of the European Union, Art. 7)

(see para. 100)

12. Non-contractual liability — Conditions — Unlawfulness — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Rule of law intended to confer rights on individuals — Concept — Rules relating to the protection of personal data by the EU institutions — Included

(Art. 340, second para. TFEU; European Parliament and Council Regulation No 45/2001, Arts 11 and 12)

(see paras 120, 171)

13. Non-contractual liability — Conditions — Unlawfulness — Burden of proof

(Art. 340, second para. TFEU)

(see para. 126)

14. Non-contractual liability — Conditions — Unlawfulness — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Rule of law intended to confer rights on individuals — Concept — Obligation for the European Anti-Fraud Office (OLAF) to inform a person concerned by an investigation and allow him to present his comments — Included

(Art. 340, second para. TFEU; Commission Decision 1999/396, Art. 4)

(see paras 134-136, 187)

15. European Anti-Fraud Office (OLAF) — Investigations — Forwarding of the information gathered to the national authorities — Obligation to notify the Supervisory Committee of the European Anti-Fraud Office previously — Scope

(European Parliament and Council Regulation No 1073/1999, Art. 11(7))

(see paras 150, 152, 153, 161)

16. Non-contractual liability — Conditions — Unlawfulness — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Rule of law intended to confer rights on individuals — Concept — Principle of the presumption of innocence and EU officials and other servants’ duty of confidentiality — Included

(Arts 339 and 340, second para. TFEU; Charter of Fundamental Rights of the European Union, Art. 48(1); European Parliament and Council Regulation No 1073/1999, Art. 8(2))

(see paras 168-170)

17. Non-contractual liability — Conditions — Unlawfulness — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Rule of law intended to confer rights on individuals — Concept — Rules governing the opening of internal investigations by the European Anti-Fraud Office (OLAF) — Not included

(Art. 340, second para. TFEU; European Parliament and Council Regulation No 1073/1999, Art. 4)

(see para. 187)

18. Non-contractual liability — Conditions — Unlawfulness — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Rule of law intended to confer rights on individuals — Concept — Obligation of the European Anti-Fraud Office (OLAF) to exercise its powers of investigation in full independence — Included

(Art. 340, second para. TFEU; Commission Decision 1999/352, Art. 3)

(see para. 209)

19. European Anti-Fraud Office (OLAF) — Investigations — Obligation to comply with the obligation of independence — Scope — Requirement not to take instructions from any third party — Concept of instructions — Notes from the Commission sent to the European Anti-Fraud Office seeking priority treatment of a case and the state of progress in the investigation — Precluded

(Commission Decision 1999/352, Art. 3)

(see paras 211, 212)

20. Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject matter of the dispute — Brief summary of the pleas in law on which the application is based — Action seeking compensation for loss caused by an EU institution — Minimum requirements

(Statute of the Court of Justice, Arts 21, first para. and 53, first para.; Rules of Procedure of the General Court, Art. 76(d))

(see para. 221)

21. Non-contractual liability — Conditions — Causal link — Concept — Burden of proof

(Art. 340, second para. TFEU)

(see paras 222, 223, 225)

22. Judicial proceedings — Measures of organisation of procedure — Request for production of documents — Discretion of the Courts of the Union

(Rules of Procedure of the General Court, Art. 90(1))

(see para. 229)

Re:

Action under Article 268 TFEU seeking compensation for damage allegedly suffered by the applicant as a result of the illegal conduct of the Commission and the European Anti-Fraud Office (OLAF), connected with the termination of his office as a Member of the Commission on 16 October 2012.

Operative part

The Court:

1. Dismisses the action;

2. Orders Mr John Dalli to bear his own costs as well as those incurred by the European Commission.