Opinion of Advocate General Rantos delivered on 27 January 2021.#European Commission v Fernando De Esteban Alonso.#Appeal – Civil service – Internal investigation by the European Anti-fraud Office (OLAF) – Forwarding of information by OLAF to the national judicial authorities – Filing of a complaint by the European Commission – Concepts of an official who is ‘referred to by name’ and ‘implicated’ – Failure to inform the interested party – Commission’s right to file a complaint with the national judicial authorities before the conclusion of OLAF’s investigation – Action for damages.#Case C-591/19 P.

1.

By its appeal, the European Commission seeks to have set aside the judgment of the General Court of the European Union of 11 June 2019, De Esteban Alonso v Commission (T‑138/18, EU:T:2019:398; ‘the judgment under appeal’), whereby the General Court ordered the Commission to pay Mr Fernando De Esteban Alonso (‘the applicant’) the sum of EUR 62000 as compensation for the non-material damage which he had suffered as a result of the unlawful conduct of the European Anti-Fraud Office (OLAF) and the Commission, in the context of the forwarding of information to national judicial authorities and national criminal proceedings initiated against him.

2.

The present appeal provides the Court with the opportunity to rule, for the first time, on the scope of Article 4 of Decision 1999/396/EC, ECSC, Euratom, ( 2 ) as regards the communication by OLAF of information relating to an investigation to the national judicial authorities before that investigation has been completed and, in addition, on the scope of Article 9(4) of Regulation (EC) No 1073/1999 ( 3 ) as regards the Commission’s involvement in criminal proceedings before the investigation by OLAF has been completed. ( 4 )

3.

OLAF, established by Commission Decision 1999/352/EC, ECSC, Euratom of 28 April 1999, ( 5 ) is responsible, inter alia, pursuant to Article 2 of that decision, for carrying out administrative investigations within the institutions intended to combat fraud, corruption and any other illegal activity adversely affecting the EU’s financial interests and for investigating serious facts linked to the performance of professional activities which may constitute a breach of obligations by officials and servants of the Union likely to lead to disciplinary and, in appropriate cases, criminal proceedings.

4.

Regulation No 1073/1999 governs the checks, inspections and other measures undertaken by employees of OLAF in the performance of their duties. The investigations carried out by OLAF consist in ‘external’ investigations (outside the EU institutions) and ‘internal’ investigations (within the institutions). That regulation, which was applicable ratione temporis to the facts of the present case, was repealed by Regulation No 883/2013.

5.

Recital 10 of Regulation No 1073/1999 provided:

‘Whereas these investigations must be conducted in accordance with the Treaty and in particular with … Protocol [(No 7)] on the privileges and immunities of the [European Union ( 6 )], while respecting the Staff Regulations of officials[ ( 7 )] and the conditions of employment of other servants … and with full respect for human rights and fundamental freedoms, in particular, the principle of fairness, for the right of persons involved to express their views on the facts concerning them and for the principle that the conclusions of an investigation may be based solely on elements which have evidential value; whereas to that end the institutions, bodies, offices and agencies must lay down the terms and conditions under which such internal investigations are conducted; whereas consequently the Staff Regulations should be amended in order to lay down the rights and obligations of officials and other servants as regards internal investigations’.

6.

Article 4 of that regulation, entitled ‘Internal investigations’, was worded as follows, in paragraphs 1 and 5:

‘1.   In the areas referred to in Article 1, [OLAF] shall carry out administrative investigations within the institutions, bodies, offices and agencies …

These internal investigations shall be carried out subject to the rules of the Treaties, in particular … Protocol [(No 7)] on privileges and immunities of the European Communities, and with due regard for the Staff Regulations under the conditions and in accordance with the procedures provided for in this Regulation and in decisions adopted by each institution, body, office and agency. The institutions shall consult each other on the rules to be laid down by such decisions.

…

5.   Where investigations reveal that a member, manager, official or other servant may be personally involved, the institution, body, office or agency to which he belongs shall be informed.

In cases requiring absolute secrecy for the purposes of the investigation or requiring recourse to means of investigation falling within the competence of a national judicial authority, the provision of such information may be deferred.’

7.

Article 9 of that regulation, entitled ‘Investigation report and action taken following investigations’, provided:

‘1.   On completion of an investigation carried out by [OLAF], the latter shall draw up a report, under the authority of the Director, specifying the facts established, the financial loss, if any, and the findings of the investigation, including the recommendations of the Director of [OLAF] on the action that should be taken.

2.   In drawing up such reports, account shall be taken of the procedural requirements laid down in the national law of the Member State concerned. Reports drawn up on that basis shall constitute admissible evidence in administrative or judicial proceedings of the Member State in which their use proves necessary, in the same way and under the same conditions as administrative reports drawn up by national administrative inspectors. They shall be subject to the same evaluation rules as those applicable to administrative reports drawn up by national administrative inspectors and shall be of identical value to such reports.

3.   Reports drawn up following an external investigation and any useful related documents shall be sent to the competent authorities of the Member States in question in accordance with the rules relating to external investigations.

4.   Reports drawn up following an internal investigation and any useful related documents shall be sent to the institution, body, office or agency concerned. The institution, body, office or agency shall take such action, in particular disciplinary or legal, on the internal investigations, as the results of those investigations warrant, and shall report thereon to the Director of [OLAF], within a deadline laid down by him in the findings of his report.’

8.

Article 10 of that regulation, entitled ‘Forwarding of information by [OLAF]’, stated:

‘1.   Without prejudice to Articles 8, 9 and 11 of this Regulation and to the provisions of Regulation (Euratom, EC) No 2185/96,[ ( 8 )] [OLAF] may at any time forward to the competent authorities of the Member States concerned information obtained in the course of external investigations.

2.   Without prejudice to Articles 8, 9 and 11 of this Regulation, the Director of [OLAF] shall forward to the judicial authorities of the Member State concerned the information obtained by [OLAF] during internal investigations into matters liable to result in criminal proceedings. Subject to the requirements of the investigation, he shall simultaneously inform the Member State concerned.

3.   Without prejudice to Articles 8 and 9 of this Regulation, [OLAF] may at any time forward to the institution, body, office or agency concerned the information obtained in the course of internal investigations.’

9.

Decision 1999/396 sets out, in Article 4, the procedure for informing the interested party in the context of internal investigations carried out by OLAF, in the following terms:

‘Where the possible implication of a Member, official or servant of the Commission emerges, the interested party shall be informed rapidly as long as this would not be harmful to the investigation. In any event, conclusions referring by name to a Member, official or servant of the Commission may not be drawn once the investigation has been completed without the interested party’s having been enabled to express his views on all the facts which concern him.

In cases necessitating the maintenance of absolute secrecy for the purposes of the investigation and requiring the use of investigative procedures falling within the remit of a national judicial authority, compliance with the obligation to invite the Member, official or servant of the Commission to give his views may be deferred in agreement with the President of the Commission or its Secretary-General respectively.’

10.

The applicant is a former official of the Commission who, inter alia, served as Director of the ‘Information technology, Publications and External Relations’ Directorate at the Statistical Office of the European Union (‘Eurostat’), from 1 January 1993 until 31 January 1997, before being appointed to another post at the Commission.

11.

In order to distribute statistical data, Eurostat relied on the Publications Office of the European Communities (OPOCE), which in 1996 had set up a network of sales outlets called ‘datashops’. The relationships between Eurostat, OPOCE and each datashop were organised by financial agreements. When a Eurostat internal audit in September 1999 found irregularities in the financial management and led to suspicions of misappropriation of funds, OLAF was informed on 17 March 2000 and opened a number of investigations.

12.

In one of those investigations, concerning the ‘Eurostat-Datashop-Planistat’ case, the Director-General of OLAF forwarded to the French judicial authorities, in a note dated 19 March 2003, information relating to matters liable to be characterised as criminal (‘the note of 19 March 2003’). That note referred by name to Mr Franchet, the Director-General of Eurostat at the time of the facts at issue and as at the date of that note, and Mr Byk, a Head of Unit at Eurostat at the time of those facts who had become Director of Eurostat by the date of that note. The applicant was not mentioned in the note.

13.

On 4 April 2003, the public prosecutor at the Tribunal de grande instance de Paris (Regional Court, Paris, France) opened an investigation file in relation to the offences of misappropriation and complicity in breach of trust. On 3 April 2003, the Director-General of OLAF sent a summary note for the attention of the Secretary-General of the Commission concerning the ongoing investigations relating to Eurostat. On 10 July 2003, the Commission filed a complaint against X and applied to join the proceedings as a civil party.

14.

On 25 September 2003, OLAF delivered its final report in the ‘Eurostat-Datashop-Planistat’ case, which was forwarded to the French judicial authorities. The applicant was not named in that report either.

15.

On 29 January 2004, in answer to a request from the French public prosecutor, the Commission authorised the waiving of the applicant’s immunity, in accordance with the second paragraph of Article 17 of the Protocol on privileges and immunities. The applicant was not informed. The Commission subsequently initiated disciplinary proceedings against the applicant.

16.

On 9 September 2008, following his hearing, to which he had been called as a witness by the French criminal investigation police, the applicant was taken into custody and, on the following day, was placed under formal investigation for breach of trust.

17.

On 9 September 2013, the investigating judge of the Tribunal de grande instance de Paris (Regional Court, Paris) made an order (‘the dismissal order’) dismissing the proceedings against all the persons under investigation, including the applicant. The Commission, as a civil party, lodged an appeal against that order, which was dismissed by the Cour d’appel de Paris (Court of Appeal, Paris, France) by judgment of 23 June 2014, and subsequently lodged an appeal in cassation against that judgment; the Cour de cassation (Court of Cassation, France) dismissed that appeal by judgment of 15 June 2016.

18.

On 15 September 2008, and then on 12 December 2013, the applicant submitted requests for assistance based on Article 24 of the Staff Regulations, which the Commission refused. In response to the second refusal, the applicant first lodged a complaint, which was rejected by the appointing authority, and then brought an action, which was dismissed by the European Union Civil Service Tribunal by order of 15 July 2015, ( 9 ) which, on appeal, was upheld by the General Court by judgment of 9 September 2016. ( 10 )

19.

On 22 December 2016, the applicant lodged a claim, under Article 90(1) of the Staff Regulations, for compensation for the damage sustained as a result of OLAF’s and the Commission’s conduct. The appointing authority dismissed that claim as unfounded and the applicant lodged a complaint against the decision to dismiss his claim. By decision of 29 November 2017, the appointing authority rejected that complaint as unfounded.

20.

By document lodged at the Registry of the General Court on 28 February 2018, the applicant brought an action under Article 270 TFEU for compensation for the non-material, physical and material harm which he claimed to have sustained as a result of errors made by OLAF and the Commission, on the grounds, first, that he had not been heard before the evidence against him was forwarded to the French authorities and, second, that the Commission continued the criminal proceedings against him without proper justification. That harm amounted, according to the applicant, to EUR 1102 291.68, plus EUR 3000 by way of non-recoverable costs and expenses.

21.

By the judgment under appeal, the General Court found that the three conditions on which the liability of the Union depends, namely the unlawfulness of the alleged conduct of the institutions, the actual harm suffered and the existence of a causal link between the conduct and the alleged harm were satisfied. It therefore upheld the applicant’s claim in part and ordered the Commission to pay him the sum of EUR 62000 by way of compensation for the non-material harm which he sustained as a result of the unlawful conduct of the Commission and OLAF.

22.

As regards, specifically, the unlawful nature of OLAF’s and the Commission’s conduct, the General Court stated, as a preliminary point, that where the European Union acts as employer, it is subject to increased liability, in the form of the duty to make reparation for damage caused to its staff by any unlawful act committed in its role as employer. ( 11 ) In the first place, the General Court concluded that OLAF infringed the first paragraph of Article 4 of Decision 1999/396 and the applicant’s rights of defence when it forwarded the ‘Eurostat-Datashop-Planistat’ file to the French judicial authorities ( 12 ) or, at least, failed to comply with its obligation to inform the applicant in accordance with that provision. ( 13 ) In view of the position which the applicant held at the material time, he should have been ‘treated in the same way’ as the persons ‘referred to by name’ in the conclusions drawn upon completion of the investigation carried out by OLAF, for the purposes of the second sentence of the first paragraph of Article 4 of that decision, ( 14 ) or, in any event, he should have been regarded as being implicated in the matters that had given rise to that investigation and, accordingly, informed rapidly, within the meaning of the first sentence of the first paragraph of Article 4 of that decision. ( 15 ) In the second place, the General Court concluded that the Commission had infringed Article 9(4) of Regulation No 1073/1999 by joining the proceedings as a civil party and by filing complaints before the French courts before OLAF’s final report had been delivered, without having available sufficient and conclusive exculpatory evidence concerning the applicant. ( 16 )

23.

As regards the non-material damage sustained by the applicant, and the causal link between the infringements found and that damage, in the first place, the General Court concluded that the fact that the Commission had joined the proceedings as a civil party and had filed complaints before the French courts before OLAF’s investigation had been completed had harmed the applicant’s honour and his professional reputation and that that harm was a direct result of the Commission’s conduct. ( 17 ) In the second place, the General Court concluded that the fact that OLAF had forwarded to the French judicial authorities the note of 19 March 2003 implicating the applicant without having heard him or, at the very least, informed him had caused him non-material harm because he had been unable to express his views or to defend himself in relation to the facts that had led to the proceedings against him and that that harm resulted from OLAF’s unlawful conduct. ( 18 )

24.

On 1 August 2019, the Commission lodged an appeal against the judgment under appeal. It claims that the Court should set aside the judgment under appeal and dismiss the action at first instance, and order the applicant to pay the costs of both sets of proceedings.

25.

The applicant contends that the Court should dismiss the appeal and, in the alternative, uphold in its entirety the claim which he submitted before the General Court ( 19 ) and order the Commission to pay the costs of both sets of proceedings.

26.

In support of its appeal, the Commission relies on three grounds of appeal: the first alleges an incorrect legal characterisation of the facts in the light of Article 4 of Decision 1999/396; the second alleges an error of law in the interpretation of Article 9(4) of Regulation No 1073/1999; and the third, which is submitted in the alternative, alleges that there is no causal link between the conduct and the harm relied on.

27.

As a preliminary point, it should be observed that, according to settled case-law, the European Union may incur liability only if a number of conditions are fulfilled relating to the illegality of the conduct of the institutions that is complained of, the fact of damage and the existence of a causal link between the conduct and the damage relied on. ( 20 ) The cumulative nature of those conditions means that, where one of them is not satisfied, the non-contractual liability of the Union cannot be incurred. ( 21 )

28.

As regards, specifically, the condition relating to what is alleged to be the unlawful conduct of the institution, agency or body concerned, in the judgment under appeal, the General Court correctly stated that, in accordance with the settled case-law of the General Court, ( 22 ) where the Union acts as employer, it is subject to increased liability in the form of the duty to make reparation for damage caused to its staff by any unlawful act committed in its role as employer, ( 23 ) without there being any need to consider whether the act in question constitutes a sufficiently serious breach of a rule of law intended to confer rights on individuals. ( 24 ) That assertion has not been contested in the present case.

29.

The condition relating to a causal link concerns a sufficiently direct causal nexus between the conduct of the EU institutions and the damage, the burden of proof of which rests on the applicant, so that the conduct complained of must be the determining cause of the damage. ( 25 )

30.

It is in the light of those considerations that I must examine the three grounds of appeal, concerning, first, the unlawful nature of OLAF’s conduct in the light of Article 4 of Decision 1999/396; second, the unlawfulness of the Commission’s conduct in the light of Article 9(4) of Regulation No 1073/1999; and, third, the causal link between that conduct and the non-material harm recognised by the General Court.

31.

By its first ground of appeal, the Commission takes issue with the General Court for having erred in law by regarding the applicant as being ‘implicated’ or ‘referred to by name’, within the meaning of the first paragraph of Article 4 of Decision 1999/396. The applicant replies that, although he was not ‘referred to by name’ in the conclusions of OLAF’s report, he appeared to be ‘implicated’ in the note of 19 March 2003, since it was after the forwarding of that note, which contained an implicit reference to him, and on the basis of the information contained in it, that the public prosecutor at the Tribunal de grande instance de Paris (Regional Court, Paris) had opened the investigation file referring to him by name.

32.

In order to examine this plea, it is appropriate to address, by way of preliminary point, the interpretation of the first paragraph of Article 4 of Decision 1999/396 and then to examine the General Court’s findings that the applicant (i) was to be treated in the same way as a person ‘referred to by name’ in the ‘conclusions … drawn once the investigation has been completed’, within the meaning of the second sentence of that provision, and (ii) was in any event ‘implicated’ in the matters that had given rise to OLAF’s investigation and should therefore have been ‘informed rapidly’, within the meaning of the first sentence of that provision.

33.

The first paragraph of Article 4 of Decision 1999/396, which lays down the procedure for informing the interested parties in OLAF’s internal investigations, provides, inter alia, that where, in the course of an investigation, the ‘implication’ of an official emerges, the interested party is to be informed rapidly as long as this would not be harmful to the investigation and, moreover, that conclusions ‘referring by name’ to an official of the Commission may not be drawn once the investigation has been competed without the interested party’s having been enabled to express his or her view on all the facts which concern him or her.

34.

That provision therefore governs two separate scenarios, to which different consequences are attached. The first scenario envisages, in particular, the situation in which, in the course of an investigation, the possible ‘implication’ of an official emerges, while the second envisages, in particular, the situation in which the conclusions drawn once the investigation has been completed ‘refer by name’ to an official. While the application of the first concept requires a substantial assessment of the circumstances in order to verify whether there is material capable of demonstrating the implication of the person concerned, the application of the second concept calls for a verification, which is more strict, of whether a person is or is not mentioned in the conclusions drawn once the investigation has been completed. ( 26 )

35.

In my view, the distinction between those two scenarios is particularly important in the light of the different legal consequences attached to them: on the one hand, the obligation to inform rapidly the person whose implication emerges and, on the other, the obligation to allow the person referred to by name to be heard. In addition, the two scenarios are also distinguished as concerns the time when the obligations referred to apply: the first sentence of the first paragraph of Article 4 of Decision 1999/396 lays down a very general obligation to inform the person implicated ‘rapidly’, while the second sentence of that provision states that the person referred to must be heard before the conclusions on completion of the investigation are drawn and must therefore be referring to the conclusions contained in a report drawn up under the authority of the Director of OLAF. ( 27 )

36.

In the present case, the General Court found, first, that the applicant should have been treated in the same way as a person ‘referred to by name’, and should therefore have been heard within the meaning of the second sentence of the first paragraph of Article 4 of Decision 1999/396, ( 28 ) and, second, that that person should, at the very least, have been regarded as being implicated and should therefore have been informed rapidly, within the meaning of the first sentence of that provision. ( 29 ) It is therefore appropriate to examine those two findings of the General Court, which form the subject matter of the Commission’s complaints, in the light of the interpretation of the first paragraph of Article 4 of Decision 1999/396 set out above.

37.

In the judgment under appeal, the General Court found, primarily, that, in view of the position which he held at the material time, the applicant should have been ‘treated … in the same way as’ the persons referred to by name in OLAF’s conclusions. ( 30 ) The General Court based that finding on the following two factors.

38.

First, the note of 19 March 2003 drew attention to the fact that the applicant was hierarchically positioned between his manager, Mr Franchet, the Director-General of Eurostat, and his subordinate, Mr Byk, a Head of Unit. Therefore, even though he was not referred to by name in the final report drawn up following OLAF’s investigation, the French criminal authorities would inevitably have been led to suspect that the applicant was implicated in the matters described in that report. ( 31 ) Second, the note of 19 March 2003 emphasised that a part of the datashops’ turnover misappropriated in favour of Eurostat was placed in a ‘slush fund’, the use of which was subject to the authorisation of an official of Eurostat whom the note did not name but who could be identified from the dismissal order, since there was no doubt as to the identity of the persons implicated in the matters described in that note. ( 32 )

39.

The General Court therefore based its finding that the applicant should be ‘treated in the same way as’ a person ‘referred to by name’ on both the position which the applicant held, namely his role as a person hierarchically positioned between the two persons referred to by name in OLAF’s investigation, and the powers which that position conferred on him, in particular the power to authorise the use of the ‘slush fund’ forming the subject matter of that investigation.

40.

In the first place, it seems to me that, in taking that approach, the General Court confused the two scenarios forming the subject matter of the first paragraph of Article 4 of Decision 1999/396. It applied, for the purpose of examining the concept of a person ‘referred to by name’, the same factual assessment of the circumstances as that required for the purpose of examining the concept of an individual who is ‘implicated’. In other words, the General Court interpreted the concept of a person ‘referred to by name’ very broadly, in such a way as to treat it as equivalent to the concept of an individual who is ‘implicated’. ( 33 )

41.

To my mind, that interpretation has the effect of rendering ineffective the distinction between the two scenarios set out in the first paragraph of Article 4 of Decision 1999/396 and of confusing the obligation to ‘inform rapidly’ an official who is implicated in the course of the investigation of the contested facts with the obligation to hear a person who is referred to by name before the final report is adopted. It therefore seems to me that that interpretation runs counter to the very wording of the provision that is being interpreted.

42.

In the second place, the General Court also confused the different times at which the existence of the two abovementioned scenarios are to be assessed. As the General Court established, on 4 April 2003 the public prosecutor of the Tribunal de grande instance de Paris (Regional Court, Paris) opened an investigation following communication of the note of19 March 2003. ( 34 ) That note, which is the act which, in the applicant’s submission, adversely affected him, ( 35 ) does not contain any conclusions drawn ‘once the investigation has been completed’, as the final report was not adopted until 25 September 2003.

43.

However, the General Court did not take account of that circumstance and, in its assessment, ( 36 ) it relies, without distinction, on findings made in the final report and in the note of 19 March 2003, ( 37 ) findings which, moreover, according to the General Court, were ‘supported’ by the dismissal order, which was adopted on 21 January 2013 – nearly 10 years after the note of 19 March 2003 was adopted – following the investigation carried out by the French judicial authorities. ( 38 ) Thus, the General Court’s interpretation fails to take account of the distinction, which is quite clear from the first paragraph of Article 4 of Decision 1999/396, between, on the one hand, the adoption of the final report, which triggers OLAF’s obligation to hear the persons referred to beforehand, and, on the other, the adoption of any other act adopted previously in the context of OLAF’s investigation, such as the note of 19 March 2003, which merely triggers the obligation to ‘inform rapidly’ the persons implicated. ( 39 )

44.

I therefore consider that the General Court erred in law in its interpretation of the first paragraph of Article 4 of Decision 1999/396.

45.

In the judgment under appeal, the General Court found, as a subsidiary issue, that the applicant should, at the very least, have been regarded as being ‘implicated’ in the matters that had given rise to OLAF’s investigation and, accordingly, been informed rapidly, in so far as it had not been established that that would have been harmful to the investigation. ( 40 )

46.

In that regard, first, I recall that the first sentence of the first paragraph of Article 4 of Decision 1999/396 provides, inter alia, that an official whose implication emerges as a possibility is to be ‘informed rapidly’ as long as that would not be harmful to the investigation. Second, I observe that Article 10(2) of Regulation No 1073/1999 specifically governs the forwarding of information to the judicial authorities and provides that the Director of OLAF is to forward to the judicial authorities of the Member State concerned the information obtained by OLAF during internal investigations into matters liable to result in criminal proceedings. That provision does not lay down any time limit or condition for the forwarding of that information. To my mind, that provision constitutes a lex specialis by reference to the first paragraph of Article 4 of Decision 1999/396 as regards the forwarding of information to the judicial authorities.

47.

However, it does not follow from either the first paragraph of Article 4 of Decision 1999/396, applied by analogy by the General Court to the present case, or Article 10(2) of Regulation No 1073/1999, which specifically prescribes the forwarding of information to the judicial authorities, that the official who is implicated must necessarily be informed before the information is forwarded by the Director of OLAF to the judicial authorities. Nor does it follow from either the judgment under appeal or the case file that the forwarding of information to the judicial authorities in the present case adversely affected the applicant’s rights of defence, during OLAF’s investigation or during the judicial investigation by the French authorities, or that OLAF’s conduct constituted a breach of other norms or general principles. ( 41 )

48.

I therefore consider that the General Court erred in law in interpreting the first paragraph of Article 4 of Decision 1999/396 as meaning that, where the implication of an official emerges, that official is to be informed before the relevant information is forwarded to the judicial authorities within the meaning of Article 10(2) of Regulation No 1073/1999.

49.

Consequently, I consider that the first ground of appeal must be upheld.

50.

By its second ground of appeal, the Commission takes issue with the General Court for having made an error of law in its interpretation of Article 9(4) of Regulation No 1073/1999, in that it concluded, by contrary inference, from that provision that the Commission was prohibited from applying to join the criminal proceedings as a civil party and from filing a complaint before a national court before any OLAF investigation had been completed. The Commission maintains that there is no valid reason for limiting the Commission’s power to apply to join proceedings as a civil party or to file a complaint before the national courts. The applicant contends that it was on the basis of the note of 19 March 2003, sent to the French judicial authorities, which was adopted in the context of an OLAF internal investigation, that he was summoned in connection with the national criminal investigation and, therefore, that he should have been informed and heard concerning the matters relating to him before that note was forwarded to the authorities in question, in compliance with the principle of the rights of the defence and the presumption of innocence.

51.

In the judgment under appeal, the General Court concluded, in essence, that the Commission should not have applied to join the criminal proceedings as a civil party and lodged a complaint before the French courts before OLAF’s investigation concerning the same matters had been completed, in order to protect the officials concerned, since, without the conclusions of OLAF’s investigation, the Commission would have been unable to take an informed decision. ( 42 ) The General Court arrived at that conclusion by applying to the national judicial proceedings, by analogy, the ‘reasoning’ according to which the Commission may not initiate disciplinary proceedings before an OLAF investigation has been closed, reasoning which, according to the General Court, is based on Article 9(4) of Regulation No 1073/1999, as interpreted in the judgment of 8 July 2008, Franchet and Byk v Commission. ( 43 )

52.

To my mind, however, the reasoning applied by analogy by the General Court is vitiated by an error of law. It should be pointed out that the second sentence of Article 9(4) of Regulation No 1073/1999 merely establishes that ‘the institution, body, office or agency shall take such action, in particular disciplinary or legal, on the internal investigations, as the results of those investigations warrant’. In addition, as may be seen from the title of Article 9 of that regulation, the provision in question regulates, in particular, ‘action taken following investigations’ by OLAF, while, moreover, that regulation relates only to investigations carried out by OLAF. Therefore, having regard to a textual and contextual interpretation, the second sentence of Article 9(4) of Regulation No 1073/1999 is not intended either to regulate or to limit the powers and discretion of the Commission with respect to the possibility of initiating judicial proceedings or of participating in judicial proceedings, in particular as a civil party, irrespective of the Commission’s powers and duties with respect to the action taken following OLAF’s investigations.

53.

The General Court itself acknowledges that there is no express rule prohibiting the Commission from applying to join proceedings as a civil party or from initiating criminal proceedings against an official before OLAF has delivered its final report on the investigation. However, it considers that the reasoning applied in the disciplinary proceedings may also apply by analogy to national legal proceedings, which in its view is in keeping with the spirit and the letter of Regulation No 1073/1999. ( 44 )

54.

In that regard, I note that the General Court does not explain the legal bases that would support that analogy in the present case. The reasoning to which it refers is confined to (i) following the conclusion which it had reached in the judgment of 8 July 2008, Franchet and Byk v Commission; ( 45 ) (ii) relying on Article 25 of Annex IX to the Staff Regulations; ( 46 ) and (iii) recalling the wording of Article 9(4) of Regulation No 1073/1999. ( 47 )

55.

As regards, first, the judgment of 8 July 2008, Franchet and Byk v Commission, ( 48 ) it is clear that in that judgment the General Court found that the Commission had infringed the rules prohibiting the initiation of disciplinary proceedings before OLAF’s investigations have been closed, ( 49 ) basing that finding principally on the application of Article 5(2) and (7) of Commission Decision C(2002) 540 of 19 February 2002 on the conduct of administrative inquiries and disciplinary procedures, ( 50 ) and merely referring in the interest of completeness to Article 9(4) of Regulation No 1073/1999, ( 51 ) without drawing any particular conclusion from that provision.

56.

In any event, on the assumption that Article 9(4) of Regulation No 1073/1999 could in itself constitute a ground for prohibiting the Commission from initiating a disciplinary procedure before OLAF’s investigation has been closed, that is not sufficient to justify, without further explanation, applying that provision by analogy to national judicial proceedings, as the General Court did. ( 52 ) In my view, the two scenarios are fundamentally different: on the one hand, the disciplinary procedure, which is administered by the Commission in its capacity as investigator and authority empowered to take decisions, and the specific purpose of which is to establish whether an official is liable in the light of his or her disciplinary obligations; on the other, judicial proceedings, opened at the initiative of the national judicial authorities and administered by them, which have a different objective, namely to establish whether criminal offences have been committed, and over which the Commission has no control.

57.

Although, in the first scenario, it is right that the Commission is required to await the closure of OLAF’s investigation before initiating a disciplinary procedure, in the second, conversely, it may be appropriate, where there is material leading to the suspicion that criminal offences have been committed, to refer the matter immediately to the national judicial authority, to enable it to engage without delay in pursuing those presumed to be responsible, irrespective of whether a parallel disciplinary procedure is initiated by the Commission.

58.

As regards, second, Article 25 of Annex IX to the Staff Regulations, to which the General Court refers, it is sufficient to state that that provision is of no relevance in the present case. It is apparent from that provision that ‘where the official is prosecuted for those same acts, a final decision shall be taken only after a final judgment has been handed down by the court hearing the case’. In other words, that provision provides that the disciplinary procedure is to be suspended where criminal proceedings are pending but not that any criminal prosecution is to be suspended where a disciplinary procedure is pending. At most, the existence of that provision shows that, contrary to the approach taken by the General Court, criminal proceedings take priority over any disciplinary proceedings conducted by the Commission.

59.

Third, although, in the words of Article 9(4) of Regulation No 1073/1999, the institution concerned ‘must’ take such legal action as the results of the report of the OLAF investigation warrant, in so far as that report constitutes evidence necessary for that procedure, ( 53 ) it does not follow by contrary inference from that provision that the Commission ‘cannot’, before the end of OLAF’s investigation, refer the matter promptly to the judicial authority if it considers that it has information or material that might trigger a judicial investigation or constitute evidence of use for that investigation.

60.

Nor, moreover, do I consider that the other facts relied on by the General Court in the interest of completeness can call that conclusion into question. The fact that the Commission was aware that the information available to it at that stage did not enable it to draw any conclusions as to the officials concerned ( 54 ) and that it was necessary to ensure observance of the principle of the presumption of innocence in the case in question ( 55 ) did not prevent, but rather justified, the filing by the Commission of a complaint against X, which did not mention the applicant, nor did it prevent the Commission from applying to join the proceedings as a civil party. ( 56 ) That applies a fortiori because the Commission was applying to join as a civil party proceedings which had already been initiated after the matter had been referred to OLAF ( 57 ) and had received a detailed report from the Director of OLAF in which the latter stated that he had received information from the French courts on the basis of which he considered it necessary that the Commission should file a complaint ‘to prevent the financial claim from being limited solely to the offences of misappropriation committed in France and to allow the Commission to seek compensation for the whole of the damage suffered in Luxembourg and Brussels, too’, ( 58 ) notwithstanding the fact that, according to Article 87 of the French Code of Criminal Procedure, it is possible to join the proceedings as a civil party at any time during the course of an investigation. ( 59 )

61.

Accordingly, although it cannot be precluded that, in certain circumstances, the application of other rules or general principles of EU law, such as, in particular, the rights of the defence or the principle of the presumption of innocence, might make it appropriate or necessary for the Commission to await the results of the OLAF investigation before initiating judicial proceedings against an official, there is nothing in the case file to indicate that such principles could be applied or, still less, that they were breached in the present case.

62.

In conclusion, I am of the view that the circumstances relied on by the General Court did not justify the application by analogy of Article 9(4) of Regulation No 1073/1999 in the present case, in the sense of limiting the possibility for the Commission to file a complaint against X or to apply to join as a civil party judicial proceedings initiated after the matter had been referred to OLAF. ( 60 )

63.

In the light of all of the foregoing, I propose that the second ground of appeal be upheld.

64.

By its third ground of appeal, which is raised in the alternative, the Commission maintains that the General Court erred in law in allowing the action in spite of the absence of a causal link between, on the one hand, the forwarding of the note of 19 March 2003 and the Commission’s decision to file a complaint against X without having informed the applicant, and, on the other, the damage claimed by the applicant, since that damage is merely the result of the initiatives of the French judicial authorities, over which neither the Commission nor OLAF had any influence. The applicant replies that, in his capacity as a senior EU official, he was the subject of particularly serious and unfounded charges during a procedure which gave his former colleagues and his team the impression that he had committed reprehensible acts and that he was involved in a European financial scandal. He thus sustained non-material damage in the form of harm to his reputation and his honour.

65.

In the judgment under appeal, the General Court found, first, that the fact that the Commission had joined the proceedings as a civil party and had filed a complaint before the French courts before OLAF’s investigation had been closed had caused the applicant to sustain harm to his honour and his professional reputation and that that harm was the direct result of the Commission’s conduct ( 61 ) and, second, that the fact that OLAF had forwarded to the French judicial authorities the note of 19 March 2003 implicating the applicant without having heard or, at the very least, informed him had caused him non-material harm sustained as a result of having been unable either to express his views or to defend himself in relation to the facts which had led to the proceedings against him and that that harm resulted from OLAF’s unlawful conduct. ( 62 )

66.

To my mind, the General Court’s reasoning cannot be endorsed.

67.

First of all, it seems clear to me that the damage taken into account by the General Court, in particular the harm to the applicant’s honour and professional reputation, ( 63 ) and the feeling of injustice, helplessness and frustration, ( 64 ) were the direct consequence of his being investigated by the French judicial authorities and are not the result of the respective conduct of OLAF and the Commission, a fortiori because he was not referred to either in the note of 19 March 2003 or in the Commission’s complaint against X, and that the Commission’s participation in the proceedings as a civil party related to judicial proceedings that had already been initiated by the French judicial authorities.

68.

Next, it is clear that, contrary to the applicant’s assertion that he had been the subject of ‘particularly serious and unfounded charges’, ( 65 ) neither the note of 19 March 2003 nor the complaint against X and the Commission’s participation in the proceedings as a civil party can be treated as ‘charges’. In fact, the Commission merely informed the French judicial authorities of matters that might constitute criminal offences, without even mentioning the applicant as the possible perpetrator of those offences, while it was incumbent on those authorities, following a preliminary investigation of the case, to decide to place the persons alleged to be responsible for those offences under investigation and therefore to ‘charge’ them. ( 66 )

69.

Furthermore, even on the assumption that what is alleged to be the unlawful conduct of OLAF or the Commission constituted an essential condition (a conditio sine qua non) of the occurrence of the damage claimed, in the sense that the information provided to the French judicial authorities was decisive for the initiation of the proceedings by those authorities, that would not suffice to establish a sufficiently direct causal link. As stated in the preceding point, it is the initiation of the judicial investigation, with which the damage which the applicant claims to have sustained is associated and which is within the exclusive remit of the French judicial authorities, that constitutes the determining cause of that damage, within the meaning of the Court’s settled case-law. ( 67 )

70.

I therefore propose that the third ground of appeal be upheld.

71.

Under the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, where the Court of Justice quashes the decision of the General Court, it may itself give final judgment in the matter where the state of the proceedings so permits.

72.

In the present case, as established in the examination of the three grounds of appeal, the General Court erred in law in assessing the first and third conditions that must be fulfilled in order for the Union to incur non-contractual liability, conditions that were the subject of inter partes argument before the General Court and examination of which does not require the adoption of any additional measure of organisation of procedure or of investigation of the case.

73.

On the basis of the analysis carried out in this Opinion, the applicant’s action before the General Court should be dismissed, either on the ground that the condition that the conduct of OLAF and the Commission complained of must be unlawful is not fulfilled or, in the alternative, on the ground that there is no causal link between that conduct and the harm relied on.

74.

Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and where the Court itself gives final judgment in the case, it is to make a decision as to the costs.

75.

In accordance with Article 138(1) of those rules, which is applicable to the proceeding on appeal pursuant to Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicant has been unsuccessful, I propose that he be ordered, in addition to bearing his own costs, to pay those incurred by the Commission in respect of both the proceedings at first instance and the proceedings on appeal, in accordance with the form of order sought by the Commission.

76.

In the light of the foregoing, I propose that the Court should: