ECLI:EU:C:2026:598

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JUDGMENT OF THE COURT (Fifth Chamber)

16 July 2026 (*)

( Appeal – Non-contractual liability – European Anti-Fraud Office (OLAF) investigations – Confidentiality – Non-authorised disclosure of the investigation report to the press – Imputability of the leaks – Article 10(3) of Regulation (EU, Euratom) No 883/2013 – Material and non-material damage – Burden of proof – Limitation period for actions for damages – First paragraph of Article 46 of the Statute of the Court of Justice of the European Union – Confidentiality of legal opinions )

In Case C‑559/23 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 7 September 2023,

International Management Group (IMG), established in Brussels (Belgium), represented by J.-Y. de Cara and L. Levi, avocats,

appellant,

the other party to the proceedings being:

European Commission, represented by J. Baquero Cruz, J.‑F. Brakeland and S. Delaude, acting as Agents,

defendant at first instance,

THE COURT (Fifth Chamber),

composed of M.L. Arastey Sahún, President of the Chamber, J. Passer, E. Regan, D. Gratsias (Rapporteur) and B. Smulders, Judges,

Advocate General: J. Richard de la Tour,

Registrar: F. Cathagne, Administrator,

having regard to the written procedure and further to the hearing on 11 December 2025,

after hearing the Opinion of the Advocate General at the sitting on 12 March 2026,

gives the following

Judgment

1 By its appeal, International Management Group (IMG) seeks to have set aside the judgment of the General Court of the European Union of 28 June 2023, IMG v Commission (T‑752/20, ‘the judgment under appeal’, EU:T:2023:366), by which the General Court dismissed its action seeking compensation for the material and non-material damage which it claims to have suffered as a result of the unlawfulness of the conduct of the European Commission and of the European Anti-Fraud Office (OLAF) following a report concerning IMG drawn up by OLAF.

Legal framework

2 Articles 3 and 4 of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ 2013 L 248, p. 1) concern, respectively, external investigations, consisting of on-the-spot checks and inspections carried out by OLAF in the Member States and, in accordance with the cooperation and mutual assistance agreements and any other legal instrument in force, in third countries and on the premises of international organisations, and internal investigations carried out within the institutions, bodies, offices and agencies of the European Union.

3 Article 9(4) of that regulation provides that once the investigation has been completed and before conclusions referring by name to a person concerned are drawn up, that person is to be given the opportunity to comment on facts concerning him.

4 Article 10(1) to (3) of that regulation provides:

‘1. Information transmitted or obtained in the course of external investigations, in whatever form, shall be protected by the relevant provisions.

2. Information transmitted or obtained in the course of internal investigations, in whatever form, shall be subject to professional secrecy and shall enjoy the protection afforded by the rules applicable to the Union institutions.

3. The institutions, bodies, offices or agencies concerned shall ensure that the confidentiality of the investigations conducted by [OLAF] is respected, together with the legitimate rights of the persons concerned, and, where judicial proceedings have been initiated, that all national rules applicable to such proceedings have been adhered to.’

5 Article 11(1) and (3) to (6) of that regulation provides:

‘1. On completion of an investigation by [OLAF], a report shall be drawn up, under the authority of the Director-General. That report shall give an account of the legal basis for the investigation, the procedural steps followed, the facts established and their preliminary classification in law, the estimated financial impact of the facts established, the respect of the procedural guarantees in accordance with Article 9 and the conclusions of the investigation.

The report shall be accompanied by recommendations of the Director-General on whether or not action should be taken. Those recommendations shall, where appropriate, indicate any disciplinary, administrative, financial and/or judicial action by the institutions, bodies, offices and agencies and by the competent authorities of the Member States concerned, and shall specify in particular the estimated amounts to be recovered, as well as the preliminary classification in law of the facts established.

…

3. Reports and recommendations drawn up following an external investigation and any relevant related documents shall be sent to the competent authorities of the Member States concerned in accordance with the rules relating to external investigations and, if necessary, to the competent Commission services.

4. Reports and recommendations drawn up following an internal investigation and any relevant related documents shall be sent to the institution, body, office or agency concerned. That institution, body, office or agency shall take such action, in particular of a disciplinary or legal nature, as the results of the internal investigation warrant, and shall report thereon to [OLAF], within a time limit laid down in the recommendations accompanying the report, and, in addition, at the request of [OLAF].

5. Where the report drawn up following an internal investigation reveals the existence of facts which could give rise to criminal proceedings, that information shall be transmitted to the judicial authorities of the Member State concerned.

6. At the request of [OLAF], the competent authorities of the Member States concerned shall, in due time, send to the Office information on action taken, if any, following the transmission by the Director-General of his recommendations in accordance with paragraph 3, and following the transmission by [OLAF] of any information in accordance with paragraph 5.’

Background to the dispute

6 The background to the dispute is set out in paragraphs 2 to 18 of the judgment under appeal and, for the purposes of the present case, may be summarised as follows.

7 The appellant was established on 25 November 1994 to provide the States participating in the reconstruction of Bosnia and Herzegovina with an entity specifically created for that purpose. As part of its activities, it has concluded a number of agreements with the Commission, in application, inter alia, of the ‘indirect or joint management’ method of implementing the EU budget provided for in the EU Financial Regulations. That method of budget implementation provides that, where the Commission implements the EU budget under joint management – referred to since 2012 as indirect management – certain implementation tasks are to be delegated to international organisations.

8 On 31 January 2012, the Director-General of OLAF opened an investigation (investigation OF/2011/1002) concerning the appellant’s legal status as an ‘international organisation’ within the meaning of the EU Financial Regulations.

9 On 9 December 2014, OLAF drew up its final report (‘the OLAF report’), in which it found, in essence, that the appellant was not an ‘international organisation’ within the meaning of the EU Financial Regulations and that it might not even have its own legal personality. OLAF therefore recommended that the Commission impose administrative and financial penalties on the appellant and recover the sums paid to it.

10 On 12 December 2014, the OLAF report was officially sent to the Commission and to the French and Belgian judicial authorities.

11 On 16 December 2014, the Commission adopted Implementing Decision C(2014) 9787 final amending its Implementing Decision C(2013) 7682 on the Annual Action Programme 2013 in favour of Myanmar/Burma to be financed from the general budget of the European Union (‘the decision of 16 December 2014’). Under the decision of 16 December 2014, a trade development programme in Myanmar/Burma, funded by the European Union, was to be implemented not by the appellant, as previously envisaged, but by another entity. The appellant brought an action before the General Court for the annulment of that decision, registered as Case T‑29/15.

12 On 18 February 2015, the appellant sent OLAF a letter referring to a possible leak to the press of information relating to the content of the report, in particular its conclusions, and the publication of that information in an article published by the German magazine Der Spiegel on 13 February 2015.

13 On 13 March 2015, the Director-General of OLAF sent a letter to the President of the European Parliament stating that he had been informed that the OLAF report had been circulated within the Parliament’s Committee on Budgetary Control. In that letter, the Director-General of OLAF recalled that the OLAF report had not been officially disclosed to the Parliament and asked the President of that institution to take the necessary measures to put an end to the circulation of the document.

14 By letter of 20 March 2015, OLAF replied to the appellant that its report had been sent exclusively to the competent national authorities and to the Secretariat-General of the Commission.

15 On 8 May 2015, the Commission sent the appellant a letter informing it of the action it intended to take in response to the OLAF report. By that letter, the Commission, inter alia, adopted a decision (‘the decision of 8 May 2015’) to the effect that ‘until there was absolute certainty regarding [the appellant’s] status as an international organisation’, its services would not be entering into any new delegation agreement with the appellant using the indirect management method within the meaning of the EU Financial Regulations.

16 The appellant brought an action before the General Court, registered as Case T‑381/15, seeking, inter alia, the annulment of the decision of 8 May 2015 and compensation for material and non-material damage.

17 On 11 December 2015, the OLAF report was published, without its annexes, on the website of the newspaper New Europe. The appellant was informed that two investigations had then been opened by the Secretary-General of the Commission and by OLAF in order to identify the source of the leak.

18 On 30 January 2017, the Secretary-General of the Commission sent a letter to the appellant informing it that the investigations had been closed and that they had been unable to identify the source of the leak.

19 By judgments of 2 February 2017, International Management Group v Commission (T‑29/15, EU:T:2017:56), and of 2 February 2017, IMG v Commission (T‑381/15, EU:T:2017:57), the General Court dismissed the appellant’s actions referred to in paragraphs 11 and 16 of the present judgment.

20 On 5 June 2018, the appellant obtained a copy of the OLAF report and its annexes.

21 By judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), the Court of Justice set aside the judgments referred to in paragraph 19 above, the decision of 16 December 2014 and the decision of 8 May 2015. It referred Case T‑381/15 back to the General Court for a ruling on the appellant’s claim for compensation for the damage allegedly caused by the decision of 8 May 2015. Ruling on the case as referred back to it, the General Court, by judgment of 9 September 2020, IMG v Commission (T‑381/15 RENV, EU:T:2020:406), dismissed the appellant’s action for damages. That judgment was set aside by the judgment of 22 September 2022, IMG v Commission (C‑619/20 P and C‑620/20 P, EU:C:2022:722).

The procedure before the General Court and the judgment under appeal

22 By application lodged at the Registry of the General Court on 21 December 2020, the appellant brought an action seeking compensation for the material and non-material damage which it claims to have suffered as a result of the leak to the press of the content of the OLAF report which, according to the appellant, was vitiated by several illegalities. The appellant alleged material damage, consisting in a reduction in the volume of business entrusted to it by its usual partners and donors, and non-material damage consisting in, first, feelings of injustice and frustration which it claims to have experienced and, second, very serious damage to its honour, image and reputation.

23 It is apparent from paragraph 22 of the judgment under appeal that the Commission had challenged the admissibility of the action at first instance on the ground that it was time-barred. However, as is apparent from paragraph 24 of that judgment, the General Court decided to examine the merits of the appellant’s claim for compensation, without first ruling on the plea of inadmissibility alleging that the action was time-barred.

24 The General Court recalled, in paragraphs 25 and 26 of the judgment under appeal, the case-law according to which the European Union may incur non-contractual liability under the second paragraph of Article 340 TFEU only if a number of conditions are fulfilled: first, the conduct of the EU institution must be unlawful, second, actual damage must have been suffered and, third, there must be a causal link between the institution’s conduct and the damage complained of, with the action having to be dismissed in its entirety where one of those conditions is not satisfied, without the need to examine the remaining conditions.

25 In paragraphs 27 to 31 of that judgment, the General Court stated that the appellant had relied on four instances of unlawful conduct giving rise to the damage which it claims to have suffered. The first consists in OLAF’s infringement of Articles 1 and 5 of Regulation No 883/2013, Article 2 of Commission Decision 1999/352/EC, ECSC, Euratom of 28 April 1999 establishing the European Anti-Fraud Office (OLAF) (OJ 1999 L 136, p. 20), and the duty to act diligently. The second consists in, in the first place, OLAF’s infringement of Articles 53 and 53d of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1), Article 58 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EU, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1), Article 43 of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1) and the duty to act diligently and, in the second place, an error on the part of OLAF in the choice of the legal bases relied on to adopt the recommendations contained in its report. The third consists in an infringement by OLAF of the principle of sound administration, laid down in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), including the principle of impartiality, the rules relating to the taking of evidence, also laid down in Article 8.5 of the Guidelines on Investigation Procedures for OLAF Staff, the right to be heard, circumscribed by Article 9 of Regulation No 883/2013, and the duty to act diligently and the principle of the presumption of innocence. Lastly, the fourth instance of unlawful conduct consists in the infringement by OLAF and the Commission of the duty of confidentiality laid down in Article 10 of Regulation No 883/2013, Article 8 of the guidelines referred to above and Article 339 TFEU, on account of the leak of information from the OLAF report to the press, and in the Commission’s breach of the duty to act diligently and of the duty to have regard for the welfare of officials.

26 In so far as the Commission contended that there was no causal link between the unlawful conduct relied on by the appellant and the damage the appellant claims to have suffered, the General Court decided, in paragraph 32 of the judgment under appeal, first to examine the third condition for the European Union to incur non-contractual liability, namely the condition relating to the existence of a causal link between the conduct of the institution in question and the damage alleged.

27 In that regard, the General Court recalled, in paragraph 35 of the judgment under appeal, that, under Article 10(3) and Article 11(3) to (6) of Regulation No 883/2013, reports drawn up by OLAF in the course of its investigations are, in principle, confidential and are intended to provide national and EU authorities with information and evidence to enable them to assess whether it is appropriate to adopt measures at EU level or for criminal proceedings to be initiated by the national judicial authorities. The General Court concluded, in paragraph 36 of that judgment, that the only damage likely to result directly from the OLAF report was that claimed to have been caused following the disclosure of all or part of that report, in particular as a result of a leak to the press.

28 It is apparent from paragraph 37 of the judgment under appeal that the General Court considered that the first of the instances of unlawful conduct alleged by the appellant, referred to in paragraph 25 of the present judgment, related to OLAF’s lack of competence to open the investigation, which could only have caused the appellant the damage alleged through the leak to the press of information relating to that investigation and to the OLAF report. Therefore, according to the General Court, that first instance of unlawful conduct did not have a sufficiently direct link to the damage alleged by the appellant.

29 The same applied, according to the General Court’s findings set out in paragraphs 38 and 39 of the judgment under appeal, to the second and third instances of unlawful conduct alleged by the appellant, which likewise had no link to the leak of the OLAF report to the press.

30 By contrast, as regards the fourth instance of unlawful conduct, the General Court found, in paragraphs 40 and 41 of the judgment under appeal, that it concerned the breach, by OLAF and the Commission, of their obligation of confidentiality, as well as the breach by the Commission of its duties to act diligently and to have regard for the welfare of officials following the leak of the OLAF report to the press. The General Court considered that the fact that, as a result of that leak, the appellant’s usual partners and donors became aware of the confidential information contained in that report was such as to have raised doubts in their minds as to the appellant’s honesty, legal capacity and legal personality and, therefore, to have caused the appellant the damage for which it was seeking compensation. Consequently, the General Court found that a sufficiently direct causal link between the fourth instance of unlawful conduct and that damage had been established. Therefore, as is apparent from paragraph 42 of the judgment under appeal, the General Court decided to examine the lawfulness of the conduct of the Commission and OLAF complained of solely as regards the fourth instance of unlawful conduct alleged by the appellant.

31 In that regard, the General Court separately examined, first, the breach by the Commission and OLAF of the duty of confidentiality and, second, the Commission’s breach of the duties to act diligently and to have regard for the welfare of officials.

32 In the first place, as regards the breach of the duty of confidentiality, the General Court stated, in paragraph 47 of the judgment under appeal, that, before examining whether the breaches alleged by the appellant satisfied the first condition for the European Union to incur liability, relating to their unlawful nature, it was necessary to determine whether the leak of the OLAF report to the press could be attributed to OLAF or the Commission.

33 In that regard, in paragraph 48 of the judgment under appeal, the General Court recalled the case-law according to which it is for the applicant, in an action for damages, to establish that the conditions for the European Union to incur non-contractual liability are satisfied. However, in paragraph 49 of that judgment, it added that, in accordance with case-law, there is a qualification to that rule where a harmful event may have been the result of a number of different causes and the EU institution has adduced no evidence enabling it to be established to which of those causes the event was imputable, even though that institution was best placed to provide evidence in that regard, with the result that the uncertainty which remains must be construed against it.

34 Following an examination of the factual circumstances of the case, carried out in paragraphs 51 to 60 of the judgment under appeal, the General Court concluded, in paragraphs 61 and 62 of that judgment, that, on the date of the first leak of the OLAF report to the press, OLAF and the Commission were no longer the only institutions in possession of that report and that, consequently, it could not be held that the Commission was best placed, within the meaning of the case-law cited in paragraph 49 of that judgment and recalled in the preceding paragraph, to adduce evidence enabling it to be established to which cause the leak and the resulting damage were attributable.

35 In paragraph 66 of the judgment under appeal, the General Court noted, first, that, following a complaint lodged by the appellant, the European Ombudsman had adopted, on 14 December 2017, Decision 220/2015/ANA (‘the decision of the European Ombudsman’), in which it stated that OLAF had carried out a serious and thorough investigation and that there was no evidence that OLAF was the source of the leak and, second, that the Commission had also conducted an internal investigation with a view to determining the source of the leak, which had failed to identify such a source within the institution.

36 The General Court therefore held, in paragraphs 67 to 69 of the judgment under appeal, that the uncertainty as to the source of the leak could not, in the absence of any evidence to that effect, lead to responsibility for the leak being attributed to the Commission and OLAF and that, in so far as the unlawful conduct allegedly stemming from the leak could not be attributed to the European Union, there was no need to examine whether that leak constituted a sufficiently serious breach of a rule of law intended to confer rights on individuals. The General Court therefore held that the first condition for the European Union to incur liability was not satisfied as regards the alleged breach of the duty of confidentiality.

37 In the second place, in paragraphs 71 to 101 of the judgment under appeal, the General Court examined the appellant’s line of argument alleging that the Commission acted in breach of the duties to act diligently and to have regard for the welfare of officials. Following that examination, it held, in paragraph 102 of that judgment, that the fourth instance of unlawful conduct alleged by the appellant had not been established as regards the alleged breach by the Commission of the duty to have regard for the welfare of officials and the duty to act diligently, which led the General Court to hold, in paragraphs 103 and 104 of that judgment, that the first condition for the European Union to incur liability was not satisfied and that, accordingly, the action had to be dismissed.

38 In the third place, in paragraphs 107 to 123 of the judgment under appeal, the General Court examined the Commission’s request that an opinion of its Legal Service of 16 January 2015, annexed to the application (‘the opinion of the Legal Service’), be removed from the case file. In that regard, after recalling, in paragraphs 117 to 121 of that judgment, the guidance from the case-law of the Court of Justice, in particular the judgment of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97, paragraphs 54 to 56), the General Court noted, in paragraph 122 of that judgment, first, that it was common ground that that opinion had not been delivered in the context of a legislative procedure and, second, that the appellant had not claimed that the production of that opinion was justified by an overriding public interest. The General Court therefore concluded, in paragraph 123 of that judgment, that the Commission’s request should be granted.

Forms of order sought

39 The appellant contends that the Court of Justice should:

– set aside the judgment under appeal;

– consequently, grant the form of order sought by the appellant at first instance;

– order the Commission to pay compensation for the damage sustained by the appellant, valued, subject to any adjustment, at EUR 10 000 per month for a period beginning in mid-December 2015 and running until delivery of the judgment to be given, in respect of non-material damage, and at EUR 2.1 million in respect of material damage, to be increased by late payment interest; and

– order the Commission to pay all the costs at first instance and on appeal.

40 The Commission contends that the Court of Justice should dismiss the appeal as inadmissible or, in the alternative, as unfounded, and order the appellant to pay the costs.

The appeal

Admissibility

Arguments of the parties

41 The Commission argues that the appellant’s action for damages was already time-barred when it was brought, with the result that the appeal is inadmissible. It states that, in its application before the General Court, the appellant had claimed that the damage it suffered had materialised ‘at the earliest when the OLAF report was leaked’, being 11 December 2015, when that report was published on the website of the newspaper New Europe. It follows, according to the Commission, that the limitation period expired on 11 December 2020, whereas the appellant’s action was only brought 10 days later, on 21 December 2020.

42 Furthermore, the Commission considers that the damage alleged by the appellant materialised not at the earliest, but at the latest when the OLAF report was leaked. The unlawful conduct relied on by the appellant relates to the question of its legal status. According to the Commission, the appellant had been informed well before 11 December 2015 of the doubts harboured by OLAF and the Commission in that regard.

43 The appellant disputes the Commission’s arguments and argues that its action is not time-barred.

Findings of the Court

44 Pursuant to the first and second paragraphs of Article 56 of the Statute of the Court of Justice of the European Union, an appeal may be brought before the Court of Justice against final decisions of the General Court by ‘any party which has been unsuccessful, in whole or in part, in its submissions’.

45 Furthermore, it is clear from the case-law of the Court of Justice that limitation constitutes an objection to admissibility which, unlike procedural time limits, is not absolute, but extinguishes the action for damages solely at the request of the defendant, since compliance with a limitation period cannot be raised by a Court of the European Union of its own motion but must be raised by the party affected (judgment of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union, C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraph 99 and the case-law cited).

46 In the present case, it is apparent from paragraph 22 of the judgment under appeal that the Commission had raised before the General Court the plea of inadmissibility alleging that the appellant’s action for damages was time-barred.

47 Nevertheless, the General Court recalled in paragraph 23 of that judgment that, in accordance with case-law (see, to that effect, judgments of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraph 52, and of 24 March 2022, GVN v Commission, C‑666/20 P, EU:C:2022:225, paragraph 24), it was for the General Court to assess whether, in the circumstances of the case, the proper administration of justice justified the dismissal of the appellant’s action on the merits, without ruling on the plea of inadmissibility raised by the Commission.

48 Taking the view that that was the case, the General Court decided, in paragraph 24 of the judgment under appeal, to examine the substance of the appellant’s claim for damages, without first ruling on the plea of inadmissibility alleging that the action was time-barred. Following that examination, the General Court held, in paragraph 104 of that judgment, that the appellant’s action had to be dismissed, which it did in point 2 of the operative part of that judgment.

49 In those circumstances, the appellant, who was unsuccessful before the General Court, was entitled, under the first and second paragraphs of Article 56 of the Statute of the Court of Justice of the European Union, to bring an appeal before the Court of Justice against the judgment of the General Court.

50 The appeal is therefore admissible.

Substance

51 In support of its appeal, the appellant relies on five grounds of appeal, alleging, first, infringement of Article 340 TFEU, of the obligation to state reasons and of the omnia petita principle; second, an error of law, an error in the legal characterisation of the facts, an infringement of Article 340 TFEU and misinterpretation of the concepts of unlawful conduct and imputability, as well as distortion of the file; third, breach of the duty to have regard for the welfare of officials and of the obligation to state reasons; fourth, breach of the duty to act diligently, infringement of Article 10(3) of Regulation No 883/2013 and Article 340 TFEU and misinterpretation of the concept of unlawful conduct; and, fifth, breach of the adversarial principle and of the principle of equality of arms as regards the Commission’s request that the opinion of the Legal Service be removed from the file.

The fifth ground of appeal

– Arguments of the parties

52 In the fifth ground of appeal, which it is appropriate to examine first, the appellant challenges the grounds, set out in paragraphs 116 to 123 of the judgment under appeal, which led the General Court to grant the Commission’s request for an order that the opinion of the Legal Service be removed from the case file. It states that the judgment of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97), cited by the General Court, concerns an opinion of an entirely different nature, specifically, as is apparent from paragraph 35 of that judgment, a legal opinion delivered in the context of the legislative procedure on a politically sensitive subject in a case of exceptional importance.

53 By contrast, the opinion of the Legal Service was already in the public domain, having been leaked to the press, and it is for that reason that no request for access to that document had been submitted. The appellant did not therefore circumvent the procedure laid down by the rules on access to documents. According to the appellant, that opinion, by reason of its nature and the circumstances of its disclosure, did not undermine either confidentiality or any overriding public interest. It is a decisive document relating exclusively to the case at hand.

54 The appellant also claims that, in paragraphs 118 and 119 of the judgment under appeal, the General Court relied on case-law that is not relevant and disregarded the appellant’s right to comment on a document which it did not itself disclose. In that context, it argues that the General Court failed to observe the adversarial principle and the principle of equality of arms. The appellant contends that it would be contrary to those principles if an applicant were unable to challenge all the evidence merely because the dissemination of that evidence had escaped the Commission’s vigilance.

55 The Commission refutes the appellant’s arguments.

– Findings of the Court

56 As the General Court correctly pointed out in paragraph 117 of the judgment under appeal, in principle, to allow an applicant to put before the Court a legal opinion from an institution the disclosure of which has not been authorised by that institution would be contrary to the requirements of a fair hearing and would be tantamount to circumventing the procedure for requesting access to such a document introduced by Regulation (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 (OJ 2001 L 145, p. 43) (see, to that effect, judgment of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 54 and the case-law cited).

57 It is true that the Court has accepted that account should be taken of the principle of openness, laid down in the second paragraph of Article 1 and Article 10(3) TEU and Article 15(1) and Article 298(1) TFEU, which guarantees, inter alia, that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. By allowing divergences between various points of view to be openly debated, it also contributes to increasing those citizens’ confidence in those institutions (judgment of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 55 and the case-law cited).

58 Nevertheless, the Court has held that it is only exceptionally that the principle of openness will be capable of justifying, in judicial proceedings, the disclosure of a document of an institution that has not been released to the public and which contains a legal opinion. Thus the retention, in the file of a particular case, of a document containing a legal opinion from an institution is not justified by any overriding public interest where, first, that legal opinion does not relate to a legislative procedure in respect of which increased openness is required and, secondly, the interest in the document’s retention consists, for the party that produced it, in the ability to rely on that legal opinion in the context of a dispute. In such circumstances, the production of such a legal opinion appears to be guided by the applicant’s own interest in supporting its arguments and not by any overriding public interest, such as the interest in making public the procedure which resulted in the contested measure (see, to that effect, judgment of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 56 and the case-law cited).

59 In the present case, in paragraph 122 of the judgment under appeal, the General Court noted that it was common ground that the opinion of the Legal Service had not been delivered in the context of a legislative procedure. That finding of the General Court is not called into question by the appellant in its appeal.

60 Furthermore, the General Court found, in paragraph 122 of that judgment, that the appellant had not claimed that the production of the legal opinion was justified by an overriding public interest. In the case before the Court of Justice, the appellant does not claim to have invoked such an interest which the General Court failed to take into account.

61 In those circumstances, it was by correctly applying the guidance from the case-law referred to in paragraphs 56 to 58 above and without erring in law that the General Court decided to remove the legal opinion from the file.

62 The arguments put forward by the appellant in the context of its fifth ground of appeal cannot call that assessment into question.

63 First, the case-law referred to in paragraphs 56 to 58 above concerns not only a legal opinion relating to a legislative procedure, but any legal opinion issued by an institution. The fact, relied on by the appellant, that the legal opinion did not relate to a legislative procedure is therefore irrelevant.

64 Second, the fact, relied on by the appellant, that the legal opinion had been leaked to the press before it was produced before the General Court, and the fact that the appellant is not itself responsible for that leak are irrelevant to the assessment of whether or not the legal opinion can be retained in the file. The only relevant question is whether the disclosure of such a document was authorised by the institution concerned or ordered by the Courts of the European Union (see, to that effect, judgment of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 53 and the case-law cited), which, here, was not the case, as the General Court found.

65 Third, the appellant’s line of argument based on the adversarial principle and the principle of equality of arms likewise cannot succeed.

66 The adversarial principle, as a rule, confers on each party to proceedings the right to be apprised of the documents produced and observations made to the Courts by the other party and to discuss them, and prevents the Courts of the European Union from basing their decision on facts and documents which the parties, or one of them, have not had an opportunity to examine and on which they have therefore been unable to comment. It also, as a rule, implies a right for the parties to be apprised of pleas in law raised by those Courts of their own motion, on which they intend basing their decisions, and to discuss them. In order to satisfy the requirements associated with the right to a fair hearing, it is important for the parties to be apprised of, and to be able to debate and be heard on, the matters of fact and of law which will determine the outcome of the proceedings (judgment of 2 December 2009, Commission v Ireland and Others, C‑89/08 P, EU:C:2009:742, paragraphs 55 and 56).

67 The question whether a party is entitled to produce before the Courts of the European Union a legal opinion drafted at the request of an EU institution and disclosed without the authorisation of that institution arises prior to the assessment of whether the adversarial principle has been observed. As is apparent from the case-law cited in the preceding paragraph, that principle concerns not the production, as such, of evidence before the Courts, but the right of each party to be apprised of the documents produced and observations made to the Courts by the other party and, where appropriate, the pleas in law raised by the Courts of their own motion, and to submit its observations thereon.

68 As regards the principle of equality of arms, which is a corollary of the very concept of a fair hearing, guaranteed in particular by Article 47 of the Charter, that principle requires that each party must be afforded a reasonable opportunity to present his or her case, including his or her evidence, under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent (judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 128 and the case-law cited).

69 It is also clear from the case-law of the Court of Justice that the applicable principle in EU law is that of the unfettered evaluation of evidence, from which it follows that the admissibility of evidence produced in good time can be contested before the Courts of the European Union only on the ground that it has been improperly obtained (judgments of 30 September 2021, Court of Auditors v Pinxten, C‑130/19, EU:C:2021:782, paragraph 104, and of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 129).

70 Where evidence has been improperly produced by a party, such as internal documents covered by Regulation No 1049/2001, the production of which has been neither authorised by the institution concerned nor ordered by the Courts of the European Union, it is necessary to weigh the interests of the respective parties to the proceedings in connection with their right to a fair hearing, taking into account the interests protected by the rules that have been breached or circumvented in obtaining that evidence (judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 130).

71 In paragraphs 116 to 121 of the judgment under appeal, the General Court specifically weighed the interests of the respective parties to the proceedings before it, thus adhering to the guidance drawn from the case-law of the Court of Justice. In that context, it took into account, inter alia, as is apparent from paragraph 121 of the judgment under appeal, the fact that the appellant’s production of the legal opinion appeared to be guided by its own interests in substantiating its arguments and not by any overriding public interest.

72 Accordingly, in the light of all the foregoing, the fifth ground of appeal must be rejected.

The second ground of appeal

– Arguments of the parties

73 By the second ground of appeal, which it is appropriate to examine in the second place, the appellant argues that the reasoning set out in paragraphs 47 to 69 of the judgment under appeal is vitiated by errors of law and a distortion of the evidence in the file.

74 In the first place, the appellant submits that the qualification of the burden of proof incumbent on applicants, to which the General Court refers in paragraph 49 of the judgment under appeal, requires the defendant institution to provide an explanation or a credible hypothesis as to the circumstances in which a leak might have occurred. A suggestion by that institution that the unlawful conduct giving rise to a leak may have been attributable to a person outside the EU institutions is not sufficient. Accordingly, the appellant contends that the General Court erred in law and disregarded the guidance drawn from the judgment of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371), by holding, solely on the basis of such a suggestion by the Commission, that the Commission was not best placed to provide evidence of the leak and that, consequently, the case before it differed from that which gave rise to the judgment of 8 July 2008, Franchet and Byk v Commission (T‑48/05, EU:T:2008:257).

75 In the second place, the appellant submits, in essence, that the General Court failed to take into account certain evidence suggesting that the leak originated from a person belonging to the EU institutions.

76 In the third place, the appellant claims that it was by distorting the meaning of the Commission’s letter of 30 January 2017, referred to in paragraph 18 above, and of the European Ombudsman’s decision that the General Court held that there was no evidence that OLAF was the source of the leak. The appellant adds, in that regard, that nothing in the file indicates that the national authorities, to which the OLAF report had been sent, were questioned about the source of the leak in the course of the investigations conducted by OLAF or by the Commission. Moreover, the General Court failed to verify whether those investigations had been conducted diligently and did not respond to an argument by the appellant claiming that that had not been the case.

77 In the fourth place and lastly, the appellant argues that, even if several causes, within the EU institutions and without, might explain the leak, it was for the General Court to assess, in the light of the theory of ‘equivalence of conditions’ or the theory of ‘adequate causation’, the role played by each of those causes, which the General Court failed to do in the present case.

78 The Commission contends that the second ground of appeal is unfounded. As regards the appellant’s line of argument relating to the qualification of the burden of proof, the Commission states that that is an exception to the rule which, consequently, must be interpreted restrictively. It states that, unlike the present case, in the cases giving rise to the judgment of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371), and the judgments cited in paragraphs 48 and 49 of the judgment under appeal, there was specific evidence establishing wrongful conduct on the part of the defendant. It follows, according to the Commission, that, in the present case, the General Court did not merely rely on the possibility that the unlawful conduct might have been attributable to a person outside the EU institutions.

79 In addition, the Commission states that the General Court faithfully summarised, in paragraph 66 of the judgment under appeal, the decision of the European Ombudsman and did not distort it.

– Findings of the Court

80 It should be pointed out at the outset that OLAF’s investigation reports are liable to contain highly damaging allegations concerning the persons mentioned in those reports.

81 Admittedly, Article 9(4) of Regulation No 883/2013 lays down the obligation on OLAF, once its investigation has been completed and before conclusions referring by name to a person concerned are drawn up, to give that person the opportunity to comment on facts concerning him or her. That provision gives effect to the right, enshrined in Article 41(2)(a) of the Charter, of every person to be heard before any individual measure which would affect him or her adversely is taken (see, to that effect, judgment of 30 September 2021, Court of Auditors v Pinxten, C‑130/19, EU:C:2021:782, paragraphs 167 and 168).

82 Nevertheless, persons subject to an OLAF investigation do not have the right to access the OLAF file until OLAF’s final report has been adopted (see, to that effect, judgment of 30 November 2023, Sistem ecologica v Commission, C‑787/22 P, EU:C:2023:940, paragraph 155).

83 Furthermore, the Court has held that OLAF reports do not produce binding legal effects (judgment of 30 November 2023, Sistem ecologica v Commission, C‑787/22 P, EU:C:2023:940, paragraph 66). Accordingly, the persons mentioned in such a final report likewise do not have the right to bring an action for annulment against that report, in accordance with Article 263 TFEU, in order to challenge any damaging allegations concerning them that may be contained in that report.

84 Thus, compliance with the obligation, arising from Article 339 TFEU and Article 10(1) to (3) of Regulation No 883/2013, to respect the confidentiality of OLAF reports is of particular importance to the persons subject to the investigations covered by those reports.

85 Disclosure of the allegations concerning them contained in such reports is liable to cause serious harm to their reputation, whilst, so long as no specific measures have been taken in respect of them in order to implement the recommendations contained in those reports, the persons targeted by those allegations are unable to challenge them before the courts.

86 It follows that the Commission, to which OLAF belongs, cannot merely ensure that its own services share OLAF’s reports only with those entitled to receive them and do not disclose them to the public. It must also ensure that the addressees of such reports, whether other EU institutions or the competent authorities of the Member States, are aware of their own obligation not to disclose them.

87 Furthermore, the Commission must also take measures, such as, for example, the special marking of physical or electronic copies of an OLAF report transmitted outside the Commission, in order to make it possible, in the event of a leak of such a report, to identify the source of that leak.

88 In the light of the considerations set out in paragraphs 80 to 87 above, it cannot be accepted that, in the event of a leak of an OLAF report containing allegations damaging to a person, that person should be required, in order to be able to seek compensation from the Commission for the damage caused to him or her by the publication of the report, to prove that the leak did in fact originate from the Commission, to which OLAF belongs, failing which that person’s action for damages would have to be dismissed as unfounded.

89 It is true that, as regards the rules on the burden of proof and the taking of evidence in relation to the European Union incurring non-contractual liability under the second paragraph of Article 340 TFEU, it is, in principle, the party seeking to establish that liability which must show by way of conclusive proof that the conditions necessary for such liability to be incurred have been satisfied. Accordingly, that party must, in particular, adduce such proof as to the existence and the extent of the damage it alleges. To that end, that party may rely on any form of evidence, since the principle in EU law is that of the unfettered production of evidence (judgment of 18 December 2025, Hamoudi v Frontext, C‑136/24 P, EU:C:2025:977, paragraph 71 and the case-law cited).

90 Nevertheless, the Court has previously held that the application by the General Court of the rules relating to the burden of proof and the taking of evidence cannot undermine the effectiveness of the judicial protection of the rights which are conferred on individuals by EU law. That application also may not lead to the imposition on a party of a burden of proof which is excessive, or even impossible to discharge (probatio diabolica) or to the calling into question of the principle of equality of arms, which implies that each party must be afforded a reasonable opportunity to present its case under conditions that do not place it at a substantial disadvantage vis-à-vis its opponent. Accordingly, in the application of those rules, the General Court must ensure full respect for the right to an effective remedy, as guaranteed by Article 47 of the Charter, by taking into account the particular circumstances of the case before it. If, in the light of those circumstances, it appears that the application of those rules imposes on a party to the dispute a burden of proof which is excessively difficult, if not impossible, to discharge, those rules must be adapted (judgment of 18 December 2025, Hamoudi v Frontex, C‑136/24 P, EU:C:2025:977, paragraphs 77 and 78).

91 It is well known that leaks of confidential documents, such as an OLAF report, occur in most cases without it being possible for the general public, including the persons mentioned in such documents, to ascertain the source of the leak.

92 Consequently, in accordance with the case-law cited in paragraphs 89 and 90 above, where such persons consider that they have suffered damage as a result of the unauthorised disclosure of an OLAF report, the rules relating to the burden of proof and the taking of evidence must be adapted.

93 In particular, in the light of the obligations incumbent on the Commission by reason of the confidential nature of such a report, as set out in paragraphs 86 and 87 above, it must be considered that the Commission is best placed to provide evidence enabling the source of the leak of an OLAF report to be identified or, at the very least, establishing that it cannot reasonably be considered that the leak originated from its own services, which include OLAF. If the Commission does not adduce such evidence, the uncertainty as to the source of the leak must be construed against it, so that the leak must be regarded as attributable to it and as giving rise to its liability (see, by analogy, judgment of 8 October 1986, Leussink v Commission, 169/83 and 136/84, EU:C:1986:371, paragraph 17).

94 In the present case, it is true that, in paragraph 49 of the judgment under appeal, the General Court recalled, in essence, the line of authority established by the judgment of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371).

95 However, after finding, in paragraph 61 of that judgment, that, at the time the OLAF report was first leaked to the press, the Commission and OLAF were no longer the only institutions in possession of that report, the General Court held, in paragraph 62 of that judgment, that the Commission could not be considered best placed, within the meaning of the case-law referred to in the preceding paragraph, to adduce evidence making it possible to establish the cause to which the leak – and the resulting damage – was attributable and that, therefore, the qualification of the rule on the burden of proof provided for by that case-law was not applicable in the present case.

96 In so doing, the General Court erred in law.

97 It is apparent from the considerations set out in paragraphs 88 to 93 above that it is precisely in the event of the unauthorised disclosure of an OLAF report which, at the time of that disclosure, was not held exclusively by the Commission and OLAF that it is necessary for the rules relating to the burden of proof and the taking of evidence to be adapted. If, at that time, only the Commission and OLAF were in possession of that report, it goes without saying that its unauthorised disclosure can only be attributable to them, without it being necessary to adapt the rules relating to the burden of proof and the taking of evidence in order to establish that fact.

98 For the same reasons, the General Court also erred in law when it held, in essence, in paragraph 65 of the judgment under appeal, that it was sufficient for the Commission to rely on the mere possibility that the source of the leak of an OLAF report might have been outside the EU institutions to prevent the presumption that OLAF was the source of the leak.

99 In those circumstances, and without it being necessary to examine the remainder of the arguments put forward by the appellant in support of the second ground of appeal, that ground of appeal must be upheld and the judgment under appeal set aside, without the need, moreover, to examine the first, third and fourth grounds of appeal.

The action before the General Court

100 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, where the state of the proceedings is, in whole or in part, such that judgment can be given, the Court of Justice may itself give final judgment, as the case may be, in the matter or in the part of the matter in which the state of the proceedings so permits, and refer, where appropriate, the remaining part back to the General Court for judgment.

101 In the present case, the state of the proceedings permits final judgment to be given as regards the plea of inadmissibility raised by the Commission, alleging that the appellant’s action for damages is time-barred.

102 In its objection of inadmissibility raised before the General Court, the Commission argued that the appellant’s action for damages was time-barred, essentially on the same grounds as those summarised in paragraphs 41 and 42 above.

103 According to the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union, proceedings against the European Union in matters arising from non-contractual liability are barred after a period of five years from the occurrence of the event giving rise thereto. The period of limitation is interrupted if proceedings are instituted before the Court of Justice of the European Union or if prior to such proceedings an application is made by the aggrieved party to the relevant institution of the European Union. In the latter event, the proceedings must be instituted within the period of two months provided for in Article 263 TFEU, the provisions of the second paragraph of Article 265 TFEU being applicable where appropriate.

104 In accordance with the case-law of the Court, the limitation period laid down in Article 46 of the Statute of the Court of Justice of the European Union begins to run once the requirements governing the obligation to provide compensation for damage are satisfied and, in particular, once the damage to be made good has materialised (judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraph 34 and the case-law cited). Article 60 of the Rules of Procedure of the General Court, which provides that procedural time limits are to be extended on account of distance by a single period of 10 days, does not apply to the limitation period, which is not a procedural time limit (see, to that effect, judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraphs 49 and 59).

105 In the present case, by its action for damages, the appellant is seeking compensation for the damage which it claims to have suffered as a result of the publication, on the website of the newspaper New Europe, of the full version of the OLAF report. That damage consists in, first, material damage, which the appellant claims to have suffered as a result of the reduction in the volume of business entrusted to it by its usual partners and donors and, second, non-material damage, owing to the feelings of injustice and frustration which it claims to have experienced and damage to its honour, image and reputation.

106 It is common ground that the full version of the OLAF report was published, without its annexes, on the website of the newspaper New Europe on 11 December 2015 and that, from that date, it could be consulted by any interested party, including the appellant’s partners and donors. Each consultation by a different person was capable of causing the appellant separate non-material damage, owing to the harm to its reputation in the eyes of the person who consulted the report, non-material damage which must be regarded as having materialised, within the meaning of the case-law cited in paragraph 104 above, at the time of each such consultation.

107 As regards the material damage alleged by the appellant, that damage could be regarded as having materialised, for each of the appellant’s partners or donors, only at the time when that donor took the decision to cease supporting the appellant’s activities.

108 The appellant’s action for damages was brought on 21 December 2020, that is to say, more than five years after 11 December 2015, the date on which the OLAF report concerning the appellant was published on the website of the newspaper New Europe. Accordingly, that action must be regarded as time-barred in so far as it relates to any material or non-material damage suffered by the appellant which materialised before 21 December 2015 and, in so far as it relates to such damage, the action must be dismissed as inadmissible.

109 However, it is not apparent from the file that the OLAF report ceased to be accessible on the website of the newspaper New Europe as of 21 December 2015. Accordingly, it cannot be ruled out that interested persons may have consulted that report for the first time after that date and thus formed a negative opinion of the appellant, causing it non-material damage which materialised after 20 December 2015.

110 Furthermore, it is also possible that the appellant’s partners or donors, irrespective of the date on which they consulted the OLAF report, may have decided to cease supporting the appellant’s activities on a date after 20 December 2015, which would constitute material damage suffered by the appellant that materialised after 20 December 2015.

111 As regards the potential damage referred to in paragraphs 109 and 110 above, the limitation period had not expired at the time the appellant brought its action for damages. Accordingly, in so far as it seeks compensation for any such damage, that action is not time-barred and must be examined on the merits.

112 It is clear from settled case-law that the European Union may incur non-contractual liability under the second paragraph of Article 340 TFEU only if a number of conditions are fulfilled, namely the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals, the fact of damage and the existence of a causal link between the breach of the obligation resting on the author of the act and the damage sustained by the injured parties (judgment of 18 December 2025, WS and Others v Frontex (Joint return operation), C‑679/23 P, EU:C:2025:976, paragraph 60 and the case-law cited).

113 As regards the first condition, the existence of a sufficiently serious breach depends on the discretion enjoyed by the EU institution, body, office or agency which has allegedly acted in breach of that rule and on whether it has manifestly and gravely disregarded the limits placed on that discretion, in view of, inter alia, the degree of clarity and precision of the rule, the difficulties of interpretation or application which may ensue therefrom, and the complexity of the situation to be resolved (see, to that effect, judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 146 and the case-law cited).

114 Furthermore, as regards the question whether the rule of law infringed is intended to confer rights on individuals, it should be recalled that, in accordance with settled case-law, the rights of individuals arise not only where they are expressly granted by provisions of EU law, but also by reason of positive or negative obligations which those provisions impose in a clearly defined manner, whether on individuals, on the Member States or on the EU institutions, bodies, offices and agencies (judgment of 5 March 2024, Kočner v Europol, C‑755/21 P, EU:C:2024:202, paragraph 119 and the case-law cited).

115 The failure to meet such obligations is liable to affect adversely the rights implicitly conferred on individuals under the provisions of EU law in question. The full effectiveness of those rules of EU law and the protection of the rights which they are intended to confer require that individuals have the possibility of obtaining redress (judgment of 5 March 2024, Kočner v Europol, C‑755/21 P, EU:C:2024:202, paragraph 120 and the case-law cited).

116 In the present case, it should be noted that, while it is common ground that IMG is not responsible for the leak of the OLAF report and the Commission had lawfully transmitted that report only to the French and Belgian judicial authorities, with the result that only the Commission or those authorities could be responsible for that leak, the Commission has not produced any evidence capable of demonstrating that it complied with its obligations referred to in paragraphs 86 and 87 above or, at the very least, of establishing that the leak of the OLAF report cannot reasonably be considered to have originated from its own services. Accordingly, it follows from paragraph 93 of the present judgment that responsibility for that leak must be attributed to the Commission.

117 Furthermore, it is apparent from Articles 10 and 11 of Regulation No 883/2013 and from the considerations set out in paragraphs 80 to 87 above, first, that the Commission, to which OLAF belongs, cannot disclose an OLAF report to the public and has no discretion in that regard. Accordingly, the disclosure of an OLAF report, where it is attributable to the Commission, whatever the cause, must be regarded as constituting a sufficiently serious breach, within the meaning of the case-law cited in paragraph 113 above, of the rule of law prohibiting the unauthorised disclosure of OLAF reports.

118 Second, in accordance with the case-law cited in paragraphs 114 and 115 above, it must be held that that prohibition, which is intended to protect individuals from the negative consequences of the unauthorised disclosure of an OLAF report, which may contain allegations damaging to them against which they would be unable to defend themselves, constitutes a rule of law intended to confer rights on individuals.

119 In the light of the considerations set out in paragraphs 116 to 118 above, it must be held that the existence of a sufficiently serious breach, by the Commission, of a rule of law intended to confer rights on individuals is, in the present case, established.

120 In those circumstances, the first condition, relating to the unlawfulness of the conduct of the institution concerned, to which, in accordance with the case-law cited in paragraph 112 above, the liability of the European Union is subject, must be regarded as satisfied in the present case, without it being necessary to rule on the other instances of unlawful conduct relied on by the appellant, referred to in paragraph 25 above, which predate the unauthorised disclosure of the OLAF report.

121 The third of those conditions, relating to the existence of a causal link between, on the one hand, the unauthorised disclosure of that report and, on the other, any non-material damage suffered by the appellant owing to the damage to its honour, image and reputation in the eyes of the persons who consulted that report for the first time after 20 December 2015, and the material damage suffered by the appellant as a result of any decisions to cease supporting its activities taken after that date by it partners and donors, must also be regarded as satisfied.

122 However, as regards the second condition requiring the damage alleged to have actually occurred, it should be noted that, although the appellant’s action for damages was, as a whole, the subject of a written and oral exchange of arguments before the General Court, that court did not rule on whether the damage alleged by the appellant had actually occurred. Furthermore, an examination of the documents in the file relating to the court proceedings at first instance reveals that, as matters stand, the Court of Justice does not have before it all the facts necessary to enable it to carry out, with a sufficient degree of certainty, the complex factual assessments involved in the analysis of the existence and, as the case may be, extent of that damage.

123 Consequently, the case must be referred back to the General Court for a ruling on the existence and, as the case may be, extent of any material and non-material damage suffered by the appellant, which materialised after 20 December 2015.

Costs

124 Since the case has been referred back to the General Court, the costs relating to the present appeal must be reserved.

On those grounds, the Court (Fifth Chamber) hereby:

1. Annuls the judgment of the General Court of the European Union of 28 June 2023, IMG v Commission (T‑752/20, EU:T:2023:366);

2. Dismisses the action as inadmissible in so far as it relates to all material or non-material damage suffered by the appellant which materialised before 21 December 2015;

3. Refers the case back to the General Court for a ruling on the action in so far as it relates to material or non-material damage suffered by the appellant which materialised on or after 21 December 2015;

4. Reserves the costs.

[Signatures]

* Language of the case: French.

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