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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Santiago Gomez-Reino v Commission of the European Communities [2002] EUECJ C-471/02 (08 April 2003) URL: http://www.bailii.org/eu/cases/EUECJ/2003/C47102.html Cite as: [2002] EUECJ C-471/02, [2002] EUECJ C-471/2 |
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ORDER OF THE PRESIDENT OF THE COURT
8 April 2003 (1)
(Appeal - Procedure for interim relief - Conditions for admissibility of the application for interim measures - Officials - Investigative powers of the European Anti-Fraud Office (OLAF) - Rights of the defence)
In Case C-471/02 P(R),
Santiago Gómez-Reino, official of the Commission of the European Communities, residing in Brussels (Belgium), represented by M.-A. Lucas, avocat,
the other party to the proceedings being:
Commission of the European Communities, represented by H.P. Hartvig and J. Currall, acting as Agents, with an address for service in Luxembourg,
THE PRESIDENT OF THE SIXTH CHAMBER OF THE COURT,
replacing the President of the Court pursuant to the second paragraph of Article 85 of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 118 of those rules,
after hearing Advocate General Jacobs,
makes the following
Legal framework
1. On completion of an investigation carried out by the Office, 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 the Office on the action that should be taken.
...
4. Reports drawn up following an internal investigation and any useful related documents shall be sent to the institution ... concerned. The institution ... 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 the Office, within a deadline laid down by him in the findings of his report.
Where the possible implication of a[n] ... official ... 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[n] ... official ... 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.
If, following an internal investigation, no case can be made out against a[n] ... official ... of the Commission against whom allegations have been made, the internal investigation concerning him shall be closed, with no further action taken, by decision of the Director of the Office, who shall inform the interested party in writing.
Where there are new facts which are supported by relevant evidence, disciplinary proceedings may be reopened by the appointing authority on its own initiative or on application by the official concerned.
The Communities shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties.
The facts and the proceedings before the Court of First Instance
5 The applicant, an official of the Commission, was Director of the European Community Humanitarian Office (ECHO) from 1 October 1992 to 31 December 1996.
6 On the basis of a report by the Anti-Fraud Coordination Unit (UCLAF), disciplinary proceedings were opened against the applicant. The aim of those proceedings was inter alia to determine whether the applicant should be held responsible, as director of ECHO, for irregularities committed in the performance of certain contracts concluded by ECHO.
7 On 14 July 1999, the Commission, in its capacity as appointing authority (the appointing authority) adopted the opinion of the Disciplinary Council, that the complaints made against the applicant were not proved, and decided to take no action on the disciplinary proceedings brought against him.
8 After several press articles had called into question the applicant's honesty and integrity or expressed doubts as to the regularity and objectivity of the disciplinary proceedings brought against him, the applicant, by application lodged at the Court Registry on 27 April 2000, sought, first, the annulment of several express or implied Commission decisions relating to the requests for assistance which he submitted under Article 24 of the Regulations in respect of those press articles and in respect of the statements, considered defamatory of him, made by certain officials and members of the European Parliament, and, second, damages (Case T-108/00).
9 On the same day, by a separate document, the applicant applied for interim relief in order to avoid serious and irreparable damage as a result of the decision of which he seeks annulment (Case T-108/00 R).
10 After the parties had informed the Court that an amicable agreement had been reached in the proceedings for interim relief, Case T-108/00 R was removed from the Court register by order of the President of the Court of 3 July 2000. In accordance with the amicable agreement, the Commission sent letters clarifying the situation to the press bodies concerned and sent copies of those letters to the President of the Committee on Budgetary Control of the European Parliament (Cocobu). It was stated inter alia in each of those letters that the decision taken in [the disciplinary proceedings against the applicant] is final, in the absence of fresh evidence, of which there is none in this case.
11 By order of 12 September 2001, Case T-108/00 was removed from the Court register.
12 On 13 November 2000, a Danish television channel broadcast a programme entitled The Aid Jackals which called in question the applicant's honesty and integrity and expressed doubts as to the regularity and objectivity of the disciplinary proceedings brought against him. Having been requested to do so, the Commission assisted the applicant, pursuant to Article 24 of the Regulations, in the action brought against the programme's producers by sending a letter to the television channel similar in content to the letters sent under the amicable agreement reached in Case T-108/00 R.
13 On 13 February 2001, Mr van Buitenen, an official of the Commission, sent a note to several members of the Commission, amongst them Mr Kinnock, expressing his reaction to the programme broadcast by the Danish television channel and asking the addressees questions regarding the regularity of the disciplinary proceedings brought against the applicant and the possible consequences of irregularities in those proceedings.
14 In August 2001, Mr van Buitenen sent OLAF and the Commission a report containing numerous claims concerning alleged irregularities (Mr van Buitenen's report). In June 1999, OLAF also received documents from a lawyer which also referred to irregularities within the Commission.
15 According to a Commission press release dated 26 February 2002, both OLAF and the Directorate-General (DG) for Personnel and Administration have begun work to determine whether that document [Mr van Buitenen's report] contains evidence on which to open a formal investigation. It also emerges that OLAF sent a summary of its report to the DG [for Personnel and Administration] on 15 February 2000 and that it [the report] was forwarded on the same day to the President of the Committee on Budgetary Control of the European Parliament (Cocobu). The press release also states that decisions will be adopted as to the appropriate action to be taken on Mr van Buitenen's document.
16 By press release dated 28 February 2002, the Commission announced inter alia that an internal investigation was under way in respect of UCLAF and that additional checks were considered necessary in four cases.
17 Articles in the German, English and French press disseminated information concerning the existence and progress of inquiries carried out by OLAF in response to Mr van Buitenen's report.
18 By memo dated 7 March 2002 sent to Mr N. Kinnock, Member of the Commission, Mr R. Kendall, President of the OLAF Supervisory Committee, and Mr F.-H. Brüner, Director of OLAF, the applicant stated that he had learned of press articles referring to OLAF's preparation of a report/memo ... apparently sent ... to the Commission and the European Parliament (Cocobu) and calling into question the conduct of the disciplinary proceedings brought against him. He stated that, since he was not informed of Mr van Buitenen's report nor of OLAF's report/memo, his rights of defence were infringed and he requested access to those documents. Furthermore, he requested, first, the Commission's assistance pursuant to Article 24 of the Regulations in the light of a statement made by Mrs Stauner, in the magazine Stern, and, secondly, disclosure of the new facts supported by relevant evidence which could justify the reopening of the disciplinary proceedings against him or, in the alternative, the Commission's assistance pursuant to Article 24 of the Regulations with respect to a statement contained in the newspaper Le Monde.
19 On 11 March 2002, during a meeting of Cocobu held in camera, Mr Kinnock presented a Commission document containing, under the heading Proposals and Recommendations, the following: In relation to the allegations against a former Director-General of ECHO, the documents handed over to OLAF by van Buitenen and in 1999 by a lawyer and which have now surfaced should carefully be examined by OLAF in the active file, in order to evaluate whether the new facts could justify new measures against the person mentioned.
20 Mr Kinnock, in his reply dated 8 April 2002 to the applicant's memo of 7 March 2002, informed him that the Commission, in accordance with Article 24 of the Regulations, had sent a statement to the magazine Stern. He also stated as follows: With regard to the copy documents which you request, namely, the section of Mr van Buitenen's report and the section of OLAF's assessment of the report, I should point out that, if OLAF were to open an investigation concerning ECHO, you would enjoy the rights associated with the opening of such an investigation, in accordance with the provisions of Article 4 of Decision 1999/396. He also stated that the applicant's implicit reference to Article 11 of Annex IX to the Regulations was irrelevant if disciplinary proceedings were not reopened.
...
21 It was in those circumstances that, by application lodged at the Registry of the Court of First Instance on 15 July 2002, the applicant brought an action in which he claimed that the Court should:
1. declare unlawful OLAF's failure to take, in regard to him, the measures laid down by the relevant rules, namely, to notify him of the decision to open inquiries or an investigation concerning him individually, to inform him of inquiries or investigations liable to implicate him personally, and to enable him to express his views on all the facts concerning him before conclusions relating to him individually are drawn from those inquiries or investigations;
2. annul the decisions taken by the Director of OLAF and by the Commission, and disclosed by the Commission's press release of 26 February 2002, to open or reopen, in September 2001, on the basis of [Mr] van Buitenen's report of 31 August 2001, investigations or inquiries on the ECHO case or the proceedings to which it gave rise, or as to the existence of fresh evidence in that case;
3. annul any investigative procedures carried out in those investigations or inquiries;
4. annul any conclusions drawn from those investigations or inquiries, in particular, the report of 31 January 2002 by OLAF's judges unit and the Office's report of 15 February;
5. annul the decision of OLAF's Director, disclosed in the Commission's press release of 28 February 2002, to open a formal investigation against former officials of UCLAF, in particular the investigation coordinator in the ECHO case, because of obstacles they put in the way of the inquiries made by the UCLAF investigator in charge of that case;
6. annul the unnotified or unpublished decision of OLAF's Director, which is revealed in the document submitted by the Vice-President of the Commission to Cocobu at its meeting of 11 March and his letters of 12 and 15 April to the President of that [C]ommittee, to open an inquiry into the alleged manipulation of the proceedings in the ECHO case by a cartel of high-ranking officials, of which [the applicant] was a member;
7. annul the unpublished or unnotified decision of OLAF's Director, disclosed in the same documents, to reopen an investigation against [the applicant] in the ECHO case on the basis of so-called fresh evidence in that case, which could justify reopening or resuming disciplinary proceedings against him;
8. annul any investigative procedures carried out in those investigations;
9. annul any conclusions drawn from those investigations;
10. annul the Commission's decision, of which he was notified in a letter of 8 April 2002 from its Vice-President, in so far as it rejects his requests for assistance of 8 March 2002 and previous requests or does not fulfil its obligation automatically to provide that assistance by appropriate means;
11. declare unlawful the repeated failure to assist the applicant after that date, either at his request or of its own motion;
12. annul the implied decision taken by OLAF's Director on 7 July 2002 rejecting the applicant's complaints of 8 March against the decisions and related failure to take measures laid down by the rules applicable to the Office, which he requests should be annulled or declared unlawful, or rejecting his claims that OLAF should adopt in regard to him measures laid down by the rules applicable to the Office;
13. annul the express decision of 8 April 2002 in which the Commission rejected the applicant's complaints against the decisions and incidences of failure to take measures laid down by the Regulations, which he requests should be annulled or declared unlawful, or rejecting his claims that OLAF should adopt in regard to him measures laid down by the Regulations;
14. order the Commission to pay him EUR 1 000 000 as compensation for non-material damage and damage to his career, assessed provisionally, together with interest at the rate of 8% per annum from 1 March 2002 until full payment;
15. order the Commission to pay the costs.
22 By a separate document, lodged at the Court Registry on the same day, the applicant brought an action for interim measures, claiming that the Court should:
1. order OLAF and the Commission to disclose [to him]:
(a) the passages and annexes of [Mr] van Buitenen's report of 31 August 2001 which concern him directly or indirectly, individually or with others, on account of the ECHO case or the proceedings to which it gave rise, or which are regarded as fresh evidence in that case;
(b) the document by which, in June 1999, a lawyer sent OLAF 63 pages of internal documents relating to the matter, and those documents;
(c) any decisions to open inquiries or investigations on the basis of those documents;
(d) any investigative procedures carried out in those investigations or inquiries;
(e) any conclusions drawn from those inquiries or investigations, in particular the confidential report of 31 January 2002 of the members of OLAF's judges unit and OLAF's report of 15 February 2002 to the Commission and to Cocobu;
(f) any follow-up decisions or action by the Commission on those reports, particularly the document submitted on 11 March 2002 by the Vice-President of the Commission to Cocobu at its meeting held in camera on 11 March 2002;
(g) any decisions, taken on the basis of those documents, conclusions, reports or follow-up decisions, to open formal investigations or to carry out inquiry procedures adopted on the basis of those documents, conclusions, reports or follow-up decisions;
(h) any investigative procedures carried out in those investigations or inquiries;
(i) any conclusions drawn from those inquiries or investigations;
2. suspend the decisions taken by the Director of OLAF and by the Commission, and disclosed by the Commission's press release of 26 February 2002, to open or reopen, in September 2001, on the basis of [Mr] van Buitenen's report of 31 August 2001, investigations or inquiries on the ECHO case or the proceedings to which it gave rise, or as to the existence of fresh evidence in that case;
3. suspend any investigative procedures carried out in those investigations or inquiries;
4. suspend any conclusions drawn from those investigations or inquiries, in particular, the report of 31 January 2002 by OLAF's judges unit and the Office's report of 15 February, and also the document presented by the Vice-President of the Commission at a meeting of Cocobu held in camera on 11 March 2002;
5. suspend OLAF's decision, disclosed in the press release of 28 February 2002, to open a formal investigation against former officials of UCLAF, in particular the investigation coordinator in the ECHO case, because of obstacles they put in the way of the inquiries made by the UCLAF investigator in charge of that case;
6. suspend or prohibit the decision of OLAF's Director, the adoption or risk of adoption of which is revealed in the document submitted by the Vice-President of the Commission to Cocobu at its meeting held in camera on 11 March, in his letters of 12 and 15 April to the President of that [c]ommittee and from the report of 18 June 2002 of the Supervisory Committee, to open an investigation into the alleged manipulation of the proceedings in the ECHO case by a cartel of high-ranking officials, of which [the applicant] was a member;
7. suspend or prohibit the decision of OLAF's Director, the adoption or risk of adoption of which is revealed in the same documents and in the letter of 8 April 2002 from the Vice-President of the Commission to the applicant, to reopen an investigation against [the applicant] in the ECHO case on the basis of so-called fresh evidence in that case, which could justify reopening or resuming disciplinary proceedings against him;
8. suspend or prohibit any investigative procedures which have been or might be carried out in those investigations;
9. suspend or prohibit any conclusions which have been or might be drawn from those investigations;
10. order the Commission to send to the former members or officials of the Commission, to the press bodies and to the members of the European Parliament that approved or supported the allegations made by Mr Rivando and Mr van Buitenen against [the applicant] and the actions taken upon them by OLAF, and in particular to the Danish and Swedish television networks, to [Ms] [A.] Gradin and [Ms] [R.] Bjerregard, to Stern, to [Ms] Stauner and to
11. [Mr] Rhule, with a copy for maximum circulation to the main press bodies, including those of the European institutions, and to the President of Cocobu, a letter telling them that neither [Mr] van Buitenen's report of 31 August 2001 nor any other information sent to OLAF or to the Commission revealed fresh evidence on which to open, reopen or resume disciplinary proceedings against [the applicant] in the ECHO case or cases connected with it, reaffirming his complete innocence of the disciplinary complaints which had been made against him and denouncing those of their comments by which they had called into question or had appeared to call into question his acquittal and the validity of the proceedings against him, without prejudice to any legal action which might be taken in response to them;
12. order the Commission to pay the costs.
23 The Commission submitted its written observations on the application for interim relief on 7 August 2002.
24 The parties presented oral argument at the hearing held on 27 September 2002.
The order under appeal
43 In the present case, the applicant, who brought his application under Article 91 of the Regulations, maintains that he is adversely affected by three series of measures (see paragraphs 32 to 37 above), namely OLAF's decisions to open administrative investigations, OLAF's conclusions of 31 January and 15 February 2002 and, in the alternative, investigative procedures carried out by OLAF.
44 However, it is not possible to uphold that assessment, because the applicant has still failed to adduce evidence of the existence of any measure adversely affecting him. The explanations furnished by the parties at the hearing, far from supporting the applicant's argument, confirmed the absence of any measure having an adverse effect.
45 In that regard, it should be pointed out that Article 4 of Decision 1999/396 lays down the requirement that an official of the Commission should be heard before OLAF formulates conclusions implicating him individually. As for the moment at which the official concerned must be heard, that provision distinguishes between two situations. Although the official concerned must be informed rapidly as long as this would not be harmful to the investigation, OLAF must, in any event, give the official concerned the opportunity to express his views before conclusions referring to him by name are drawn at the end of the investigation.
46 Furthermore, the conclusions drawn by OLAF at the end of the investigation, referred to in the second situation in Article 4, are bound to be those contained in the report drawn up under the authority of the Director of that office, as provided in Article 9 of Regulation No 1073/1999. According to that regulation, that report and any useful related documents shall be sent to the institution concerned, which shall take such action, in particular disciplinary or legal, on the internal investigation as its results warrant.
47 Yet, when questioned by the President of the Court, the Commission stated at the hearing that there was no report, within the meaning of Article 9 of Regulation No 1073/1999, sent to it by OLAF and implicating the applicant individually. It should also be pointed out that the applicant is not subject to any action, disciplinary or legal, taken on the basis of an OLAF report implicating him. In that connection, it should also be pointed out that Mr Kinnock, a member of the Commission, expressly stated, in his letter of 8 April 2002, that the applicant would enjoy all the benefits conferred by Article 4 of Decision 1999/396 if OLAF's conclusions were to refer to him by name, which must mean that, as far as Mr Kinnock knew, no measure of that kind had been taken.
The appeal
- set aside the order under appeal;
- give a ruling itself on the application for interim relief of 15 July 2002, upholding the claims set out therein;
- in the alternative, refer the case to the Court of First Instance for a new ruling on that application;
- order the Commission to pay the costs of the proceedings at first instance and of the appeal.
The first plea, alleging failure to state sufficient reasons
Arguments of the parties
Findings of the Court
The second plea, alleging infringement of the rules concerning the burden of proof and the right to a fair hearing
Arguments of the parties
Findings of the Court
The third plea, alleging that the judge hearing the application for interim relief erred in law by holding that the principle of observance of the rights of the defence did not apply before OLAF drew conclusions referring to the appellant by name
Arguments of the parties
Findings of the Court
Costs
On those grounds,
THE PRESIDENT OF THE SIXTH CHAMBER OF THE COURT,
replacing the President of the Court pursuant to the second paragraph of Article 85 of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 118,
hereby orders:
1. The appeal is dismissed.
2. Costs are reserved.
Luxembourg, 8 April 2003.
R. Grass
Registrar
1: Language of the case: French.