-
ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE
15 October 2004 (1)
(Application for interim measures -� Application for interim relief and for suspension of operation of a measure)
applicant,
v
Commission of the European Communities, represented by C. Docksey and C. Ladenburger, acting as Agents, with an address for service in Luxembourg,
defendant,
APPLICATION for suspension of any further implementation or
action pursuant to the alleged complaint of the European Anti-Fraud
Office (OLAF) of 11 February 2004 to the Belgian and German judicial
authorities and for an order that OLAF refrain from obtaining,
inspecting, examining or hearing the contents of any documents and
information in the possession of the Belgian judicial authorities
following the search of the applicant's home and office carried out on
19 March 2004,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES
makes the following
Order
Legal context
- 1
Regulation (EC) No 1073/1999 of the European Parliament and of the
Council of 25 May 1999 concerning investigations conducted by the
European Anti-Fraud Office (OLAF) (OJ 1999 L 136, p. 1) governs
inspections, checks and other measures undertaken by OLAF employees in
the performance of their duties.
- 2
Article 10 of Regulation No 1073/1999 is headed -�Forwarding of
information by the Office-�. Article 10(2) provides as follows:-�Without
prejudice to Articles 8, 9 and 11 of this Regulation, the Director of
the Office shall forward to the judicial authorities of the Member State
concerned the information obtained by the Office 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.-�
Facts
- 3
The applicant is a journalist, employed by the German magazine Stern.
- 4
He wrote two articles, published in Stern on 28 February and 7
March 2002 respectively, concerning allegations of irregularities
recorded by a European Communities official, Mr Van Buitenen. The
articles-� terms showed that the applicant had detailed knowledge of the
content of a memorandum dated 31 August 2001 drafted by Mr Van
Buitenen (-�the Van Buitenen memorandum-�) and of two confidential
internal OLAF notes on that memorandum, dated 31 January and 14
February 2002 (-�the internal notes-�).
- 5
On 12 March 2002 OLAF opened an internal investigation, in accordance
with Article 4(1) of Regulation No 1073/1999, in order to identify the
European Communities officials or other servants at the source of the
leak that had resulted in disclosure of the Van Buitenen memorandum and
the internal notes.
- 6
In a press release of 27 March 2002 announcing the opening of the
investigation, OLAF stated that -�it [was] not excluded that payment may
have been made to somebody within OLAF (or possibly another EU
institution) for these documents-�.
- 7
Stern issued a press release on 28 March 2002 in which it
confirmed that it was in possession of the Van Buitenen memorandum and
the internal notes but denied that any of its collaborators had paid
money to an official or other servant of the Commission for providing
those documents.
- 8
After requesting OLAF to withdraw the accusations of bribery directed
against him, on 22 October 2002 the applicant complained to the European
Ombudsman. On 18 June 2003 the European Ombudsman submitted his draft
recommendation to OLAF, in which he concluded that the making of
allegations of bribery without a reliable factual basis, in the press
release of 27 March 2002, constituted an instance of maladministration
and that OLAF should consider withdrawing the allegations of bribery
that were referred to in the press release. In response to that
recommendation, OLAF issued a press release on 30 September 2003
entitled -�OLAF clarification regarding an apparent leak of information-�
and informed the European Ombudsman thereof. The Ombudsman adopted his
decision on 20 November 2003, including in its conclusions a
critical remark.
- 9
On 11 February 2004 OLAF, on the basis of Article 10(2) of Regulation No
1073/1999, forwarded information to the prosecuting authorities in
Brussels (Belgium) and Hamburg (Germany) setting out the results of the
internal investigation opened on 12 March 2002.
- 10
Following the forwarding of that information, an investigation for
breach of professional secrecy was opened in Belgium. On 19 March 2004,
the Belgian federal police searched the home and the office of the
applicant upon the instructions of the examining magistrate in Brussels.
Numerous documents and other belongings of the applicant were seized.
On 23 March 2004 the applicant brought proceedings challenging the
seizure before the examining magistrate entrusted with the case, who
rejected his application. The applicant brought an appeal against that
decision before the chambre des mises en accusation (Chamber for
Indictments) in April 2004.
Procedure
- 11
By application lodged at the Registry of the Court of First Instance on
1 June 2004, the applicant brought an action for annulment of
the measure by which OLAF forwarded certain information to the Brussels
and Hamburg prosecuting authorities on 11 February 2004 (-�the contested
measure-�) and for compensation for the injury caused to him by that
decision and related acts adopted by OLAF.
- 12
By separate document, lodged at the Court Registry on 4 June 2004, the
applicant requested the President of the Court of First Instance, in
accordance with Article 243 EC:
- -�
- to order the suspension, in whole or in part, of any further
implementation or action pursuant to OLAF-�s -�complaint-� of 11 February
2004 to the Belgian and German judicial authorities;
- -�
- to order that OLAF refrain from obtaining, inspecting, examining or
hearing the contents of any documents and information in the possession
of the Belgian judicial authorities as a result of their search of the
applicant-�s home and office on 19 March 2004, and their seizure of his
files, computer and other records;
- -�
- pending further enquiry and pending the receipt of observations on
behalf of OLAF, to order that OLAF refrain with immediate effect from
taking any action pursuant to its complaints of 11 February 2004,
without prejudice to how the Court may rule with respect to the above
two claims;
- -�
- to order the Commission to pay the costs;
- -�
- to take such other or further steps as justice may require.
- 13
By document lodged at the Registry on 17 June 2004, the International
Federation of Journalists (IFJ) applied for leave to intervene in
support of the forms of order sought by the applicant.
- 14
On 21 June 2004 the Commission submitted its written observations on the application for interim measures.
- 15
On 28 June 2004 the applicant lodged his observations on the IFJ-�s
application for leave to intervene. The Commission did not lodge such
observations within the time that it was allowed.
- 16
On 19 July 2004 an informal meeting attended by the applicant and the
Commission took place before the President of the Court of First
Instance. At that meeting the parties undertook to consider the
possibility of a friendly settlement of the dispute. By letter lodged at
the Court Registry on 30 July 2004, the Commission submitted its
observations on the possibility of a friendly settlement. On
9 August 2004 the applicant lodged his response to the
Commission-�s observations.
- 17
In light of the observations lodged by the Commission and the applicant,
the President of the Court of First Instance invited the intervener to
lodge its observations on the application for interim measures.
- 18
The intervener lodged its statement in intervention on 7 September 2004.
- 19
On 14 and 15 September 2004 the applicant and the Commission lodged
their respective observations on the IFJ-�s statement in intervention.
Law
- 20
By virtue of, first, Articles 242 EC and 243 EC and, second, Article
225(1) EC, the Court of First Instance may, if it considers that
circumstances so require, order that application of the contested act be
suspended or prescribe any necessary interim measures.
- 21
Article 104(2) of the Rules of Procedure of the Court of First Instance
provides that an application for interim measures must state the
circumstances giving rise to urgency and the pleas of fact and law
establishing a prima facie case for the interim measures applied for.
Those conditions are cumulative, so that an application for interim
measures must be dismissed if either of them is not fulfilled (order in
Case C-�268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30). Where appropriate, the judge hearing such an
application must also weigh up the interests involved (order in Case
C-445/00 R Austria v Council [2001] ECR I-�1461, paragraph 73).
The application for leave to intervene
- 22
Under the second paragraph of Article 40 of the Statute of the Court of
Justice, applicable to the Court of First Instance by virtue of the
first paragraph of Article 53 of the Statute, the right of private
parties to intervene is subject to the condition that they establish an
interest in the result of the case.
- 23
An interest in the result of the case means a direct, present interest
in grant of the forms of order sought by the party whom the intervener
wishes to support (order in Case C-186/02 P Ramondín and Ramondín Cápsulas v Commission
[2003] ECR I-�2415, paragraph 7). In order to grant leave to
intervene, it must be checked that the intervener is directly affected
by the measure at issue and that his interest in the result of the case
is established (see the order in Joined Cases C-151/97 P(I) and C-157/97
P(I) National Power and PowerGen v British Coal and Commission [1997] ECR I-�3491, paragraph 53).
- 24
In accordance with settled case-law, representative associations whose
object is to protect their members in cases raising questions of
principle liable to affect those members are allowed to intervene (National Power and PowerGen, cited above, paragraph 66, order in Case C-151/98 P Pharos v Commission [1998] ECR I-�5441, paragraph 6, and order in Case T-53/01 R Poste Italiane v Commission [2001]
ECR II-�1479, paragraph 51). More specifically, an association may
be allowed to intervene in a case if it represents an appreciable number
of undertakings active in the sector concerned, its objects include
protection of its members-� interests, the case may raise questions of
principle affecting the functioning of the sector concerned and the
interests of its members may therefore be affected to an appreciable
extent by the forthcoming judgment or order (see, to this effect, the
order in Case T-87/92 Kruidvat v Commission [1993] ECR II-�1375, paragraph 14).
- 25
It should be noted, finally, that the adoption of a broad interpretation
of the right of associations to intervene is intended to facilitate
assessment of the context of cases whilst avoiding multiple individual
interventions which would compromise the effectiveness and proper course
of the procedure (NationalPower and PowerGen, paragraph 66).
- 26
The IFJ has applied for leave to intervene in support of the forms of
order sought by the applicant. It states that it is an international
trade union organisation, in the form of an international
non-profit-making organisation, that it represents an appreciable number
of members, that its objects and activities include representing its
members and defending the professional and social rights of journalists
at a global level and that the present case raises questions of
principle of such a kind as to affect its members.
- 27
The applicant states that he has no objection to the IFJ-�s application. The Commission did not lodge any observations.
- 28
It should be noted first of all that the IFJ has stated, without being
contradicted by the applicant or the Commission, that it represents more
than 500 000 members in 109 countries. The IFJ may therefore be
considered to represent an appreciable number of members in the sector
concerned.
- 29
Second, with regard to the IFJ-�s objects, Section III of its
constitution states that it seeks to -�protect and strengthen the rights
and freedoms of journalists-� and to -�respect and defend freedom of
information, media freedom and the independence of journalism
particularly through research and monitoring of violations and taking
action to defend journalists and their work-�.
- 30
Finally, the present case raises in particular the question whether,
first, the forwarding, under Article 10(2) of Regulation No 1073/1999,
by a Community organ to national authorities of information liable to
result in the disclosure of a journalist-�s sources may, in certain
circumstances, be considered unlawful and, second, its forwarding may be
such as to cause harm to the career and reputation of the journalist
who used those sources that may be made good in an action for damages.
More specifically, the question is raised in the present case as to
whether and, if so, in what circumstances, the President of the Court
could be led to adopt interim measures designed to compel a Community
institution to refrain from having any contact at all with national
judicial authorities concerning a judicial investigation opened by them.
Given that the position which the President of the Court might adopt on
those questions potentially concerns the scope of the principle of the
protection of journalists-� sources, it is liable to affect the
conditions under which the IFJ-�s members operate.
- 31
Since the IFJ-�s interests are therefore liable to be affected by the
position adopted by the President of the Court, its application for
leave to intervene should be granted.
Prima facie admissibility of the application for annulment
- 32
It is settled case-law that, in principle, the issue of the
admissibility of the action before the court adjudicating on the merits
should not be examined in proceedings for interim measures, so as not to
prejudge the main action. It may nevertheless appear necessary, when it
is contended that the main application to which the application for
interim measures relates is manifestly inadmissible, to establish
whether there are any grounds for concluding prima facie that the main
application is admissible (orders in Case 376/87 R Distrivet v Council [1988] ECR 209, paragraph 21, and Case T-�392/02 R Solvay Pharmaceuticals v Council [2003] ECR II-�1825, paragraph 53).
- 33
It should therefore be ascertained whether there are any grounds for
concluding prima facie that the application for annulment made by the
applicant in the main proceedings is admissible.
Arguments of the parties
- 34
The Commission contends that the application for annulment is manifestly
inadmissible. In its submission, the contested measure does not
constitute a challengeable act. The application is directed against
letters sent by OLAF to the Belgian and German authorities by which OLAF
merely forwarded to them information obtained by it during internal
investigations into matters liable to result in criminal proceedings.
The forwarding of this information did not as such produce any binding
legal effects so as to affect the interests of the applicant by bringing
about a distinct change in his legal position. This analysis is also
confirmed by the judgment in Joined Cases T-377/00, T-379/00, T-380/00,
T-�260/01 and T-272/01 Philip Morris International v Commission [2003] ECR II-�1 and by the orders in Case T-215/02 Gómez-Reino v Commission [2003] ECR II-0000 and Case T-29/03 Comunidad Autónoma de Andalucía v Commission [2004] ECR II-0000.
- 35
The applicant submits that the actions of the Belgian authorities flow
directly from the decision of OLAF to file a complaint against him. He
observes that OLAF is a most important organ whose activities enjoy the
firm support of the Member States. Not to have given effect to a request
by OLAF to seize -�evidence-� could therefore have seemed to be a breach
by the Kingdom of Belgium of the duty of loyal cooperation set forth in
Article 10 EC.
- 36
The applicant adds that for the time being there is no reliable Belgian
judicial means of preventing OLAF from gaining access to the seized
documents. There is nothing to prevent OLAF from intervening as a civil
party in the proceedings before the Belgian courts and requesting access
to the documents and information seized during the searches. Even
before any formal charge is laid by the Belgian authorities, OLAF may
request access to the file from the Principal Crown Prosecutor who,
although he has a margin of discretion in the matter, is likely to
accede to such a request. Consequently, the present case requires
judicial review at Community level (judgments in Case 294/83 Les Verts v Parliament [1986] ECR 1339, paragraph 23, and Case 302/87 Parliament v Council [1988] ECR 5615, paragraph 20).
- 37
The IFJ, putting forward the same arguments as the applicant, maintains
that the application for annulment is entirely admissible.
Findings of the President of the Court
- 38
Only a measure which produces binding legal effects such as to affect
the interests of an applicant by bringing about a distinct change in his
legal position is an act or decision which may be the subject of an
action for annulment (judgments in Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9, Case C-476/93 P Nutral v Commission [1995] ECR I-�4125, paragraphs 28 and 30, Case T-54/96 Oleifici Italiani and Fratelli Rubino v Commission [1998] ECR II-�3377, paragraph 48, and Joined Cases T-125/97 and T-127/97 Coca-Cola v Commission [2000] ECR II-�1733, paragraph 77).
- 39
In the present instance, the act challenged is the measure by which OLAF
forwarded information to the Belgian and German authorities, in
accordance with Article 10(2) of Regulation No 1073/1999.
- 40
This provision states that -�the Director of the Office shall forward to
the judicial authorities of the Member State concerned the information
obtained by the Office during internal investigations into matters
liable to result in criminal proceedings-�.
- 41
In addition, it is stated in the 13th recital in the preamble to
Regulation No 1073/1999 that -�it is for the competent national
authorities or the institutions, bodies, offices or agencies, as the
case may be, to decide what action should be taken on completed
investigations on the basis of the report drawn up by the Office-�.
- 42
It should also be noted that, in his letter of 11 February 2004
forwarding the information, the Director of OLAF expressed himself in
the following terms:-�-� On the basis of Article 10(2) of
Regulation No 1073/1999 -� and with a view to the possible institution of
judicial proceedings, I enclose the interim report in this case
containing information on matters liable to result in criminal
proceedings.-�
- 43
Far from confirming the applicant-�s analysis, Regulation
No 1073/1999 and the letter of 11 February 2004 thus show that the
forwarding of information by OLAF to the national judicial authorities
does not give rise to any binding legal effect in relation to the
latter, which remain free to decide what action should be taken on
OLAF-�s investigations.
- 44
It is true that the duty to cooperate in good faith set out in Article
10 EC obliges national judicial authorities to treat seriously
information forwarded by OLAF under Article 10(2) of Regulation No
1073/1999. However, that duty does not impose any obligation on the
national authorities to take specific steps if they consider that the
information forwarded by OLAF does not warrant them. Thus, any decision
by the national authorities to take action on information forwarded by
OLAF flows from the independent exercise of the powers vested in those
authorities.
- 45
As regards the argument derived from the right to effective judicial
protection, the applicant has not in any way shown in what way he would
be prevented from contesting the decision of the national judicial
authorities to order a search of his home and his office. On the
contrary, it is clear from the applicant-�s explanations that he brought
proceedings challenging the decision of the examining magistrate
entrusted with the case and that judicial proceedings are currently in
progress at national level. Given the legal remedies which thus remain
available to the applicant at national level, it is not necessary to
consider whether, in exceptional cases, the right to effective judicial
protection can render a Community act open to challenge which otherwise
would not be.
- 46
Since OLAF-�s decision to forward the report at issue to the national
judicial authorities has no binding legal effect, it does not constitute
a challengeable act.
- 47
Consequently it does not appear, at this stage, that there are grounds
for concluding that the application for annulment is prima facie
admissible.
- 48
In view of the foregoing, the President of the Court will examine only
the applicant-�s arguments relating to his application for damages.
Prima facie caseArguments of the parties
- 49
In order to show that his application for damages is prima facie well
founded, the applicant contends that -�the contested measure, [the] March
2002 and September 2003 press releases which infringed the principles
of good administration and proportionality, as well as further public
statements made by OLAF on the ongoing investigation against the
applicant have already seriously harmed the applicant-�s professional
reputation and standing in professional circles-�.
- 50
He adds that he -�is gravely injured in at least two ways-�. First, he
maintains that it -�will be much more difficult for him to obtain new
information from the sources on whom he relies to practise his
profession-�. Second, he submits that he -�will be seriously handicapped
in selling his stories to magazines and newspapers-� and that -�OLAF-�s
actions have thus also damaged [his] career chances and opportunities-�.
He considers that -�all this damage was directly caused by OLAF-�s
unlawful actions-�, and states that -�further details are set forth in the
application in the main action-�.
- 51
The Commission submits that the applicant has not demonstrated that the condition relating to a prima facie case is met here.
Findings of the President of the Court
- 52
It is settled case-law that, in order for the Community to incur
non-contractual liability within the meaning of the second paragraph of
Article 288 EC, a number of conditions must be met: the rule of law
infringed must be intended to confer rights on individuals; the breach
must be sufficiently serious; and there must be a direct causal link
between the breach of the obligation resting on the author of the act
and the damage sustained by the injured parties (see the judgments in
Case C-�352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraphs 41 and 42, and Case C-312/00 P Commission v Camar and Tico
[2002] ECR I-�11355, paragraph 53). If any one of those conditions is
not satisfied, the entire action must be dismissed and it is unnecessary
to consider the other conditions for non-contractual liability on the
part of the Community (judgment in Case C-�104/97 P Atlanta v European Community [1999] ECR I-�6983, paragraph 65).
- 53
With regard to the second condition, the decisive test for finding that a
breach of Community law is sufficiently serious is whether the
Community institution concerned manifestly and gravely disregarded the
limits on its discretion. Where that institution has only considerably
reduced, or even no, discretion, the mere infringement of Community law
may be sufficient to establish the existence of a sufficiently serious
breach (judgments in Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph 28, Joined Cases C-178/94, C-179/94, C-188/94, C-�189/94 and C-190/94 Dillenkofer andOthers [1996] ECR I-4845, paragraph 25, Case C-127/95 Norbrook Laboratories [1998] ECR I-1531, paragraph 109, Case C-424/97 Haim [2000] ECR I-5123, paragraph 38, and Bergaderm and Goupil, cited above, paragraphs 43 and 44).
- 54
So far as concerns the third condition, relating to the causal link, it
is settled case-law that there must be a direct link of cause and effect
between the fault allegedly committed by the institution concerned and
the damage pleaded, the burden of proof of which rests on the applicant
(judgment in Case T-220/96 EVO v Council and Commission
[2002] ECR II-�2265, paragraph 41 and the case-law cited). It has in
addition been made clear that the wrongful conduct of the institution
concerned must be the determining cause of that damage (order in Case
T-201/99 Royal Olympic Cruises and Others v Council and Commission
[2000] ECR II-�4005, paragraph 26, upheld on appeal by order of the
Court of Justice of 15 January 2002 in Case C-49/01 P Royal Olympic Cruises and Others v Council and Commission, not published in the ECR).
- 55
In the present instance, it is apparent from the application for interim
measures that the applicant seeks, in his action on the substance, to
obtain compensation for the damage allegedly sustained by him as a
result of the harm to his career, his reputation and his standing. It
also seems to be apparent from his application that the damage results
from two factors: (i) the contested measure and (ii) the issuing of
OLAF-�s press releases in March 2002 and September 2003.
- 56
As regards, first, the damage alleged to result from the contested
measure, the applicant does not in any way explain in what way there is
prima facie a causal link between the conduct of which the Commission is
accused, namely the simple forwarding by OLAF of information to the
national authorities, and the damage which he claims to have suffered.
- 57
The lack of explanation in this connection is all the more significant
because it has already been found, in paragraph 46 above, that the mere
forwarding of the report in question by OLAF to the national authorities
had no binding effect in relation to the latter, which remained free to
decide what action should be taken following the forwarding of the
report.
- 58
It is clear that, without a decision by the national authorities to open
a judicial investigation, the applicant would not have suffered the
damage that he claims to have suffered. Accordingly, there is no causal
link between the conduct of which the Commission is accused and the
damage allegedly suffered by the applicant.
- 59
It must therefore be concluded, without it being necessary to examine
whether the applicant has demonstrated that he has suffered any damage,
that the applicant has not established to the required legal standard
that the contested measure is such as to give rise to non-contractual
liability on the part of the Community.
- 60
So far as concerns, second, the damage allegedly suffered by the
applicant following the issue by OLAF of the press releases in March
2002 and September 2003, the application for interim measures contains
no matter of law or of fact enabling the President of the Court to
assess in what way the conduct complained of is contrary to the
principles of good administration and of proportionality. It is
sufficient to state, without it being necessary to consider whether
those two rules are such as to confer rights on individuals within the
meaning of the applicable case-law (see paragraph 52 above and, in
particular, the judgment in Case T-�196/99 AreaCova and Others v Council and Commission
[2001] ECR II-�3597, paragraph 43), that the mere fact, pleaded by the
applicant, that in 2003 the European Ombudsman found an -�instance of
maladministration-� does not for all that mean that the principle of good
administration as interpreted by the Community judicature has been
infringed here. It is also to be noted that the facts known to the
European Ombudsman when he gave his final decision, on 20 November
2003, are not necessarily identical to those before the Court of First
Instance today.
- 61
Furthermore, even if the conduct in question were unlawful, the
application for interim measures would not contain any particulars
enabling the President of the Court to assess in what way the issue by
OLAF of the press releases in March 2002 and September 2003 could
be characterised as a -�sufficiently serious breach-� capable of giving
rise to non-contractual liability on the part of the Community (see
paragraph 53 above).
- 62
It follows from the foregoing that, without prejudice to the decision
that the Court will adopt in the main proceedings, in light of the
information available to the President of the Court the applicant has
not established to the required legal standard that his application for
damages is not manifestly unfounded.
- 63
The application for interim measures should accordingly be dismissed
without it being necessary to consider whether the other conditions for
granting relief are satisfied.
On those grounds,
-
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
- 1.
- The application for interim measures is dismissed.
- 2.
- Costs are reserved.
Luxembourg, 15 October 2004.
