Judicial Review of Investigative Acts of the European

JUDICIAL REVIEW OF INVESTIGATIVEACTS OFTHE EUROPEANANTI-FRAUD OFFICE (OLAF):A SEARCH FORA BALANCE

JAN F.H. INGHELRAM*

1. Introduction

OLAF, structurally a part of the European Commission, was established byCommission Decision of 28 April 19991 in the wake of the incidents thattriggered the resignation of the Santer Commission. Its competences areprimarily governed by Regulation No 1073/1999 of the European Parliamentand of the Council of 25 May 1999.2

OLAF has far-reaching powers of investigation, which include, amongstothers, the power to obtain unannounced access to premises of economicoperators and offices of EU officials as well as to documents and computerdata held by them.When carrying out internal investigations, OLAF also hasthe power to assume custody of such documents and data.3Moreover, whereasOLAF has to rely on the assistance of Member State authorities to have itspowers of investigation enforced, if necessary, in the context of external

* LL.M, Dr. iur., Rfrendaire at the ECJ. The views expressed in this article are entirelypersonal. The article is inspired by and further develops the analysis on judicial review inInghelram, Legal and Institutional Aspects of the European Anti-Fraud Office (OLAF) AnAnalysis with a Look Forward to a European Public Prosecutors Office (Europa LawPublishing, 2011). The author is grateful to C.W.A. Timmermans and P.-J. Loewenthal for theirvaluable comments on an earlier draft.

1. O.J. 1999, L 136/20, hereinafter the OLAF Decision.2. O.J. 1999, L 136/1, hereinafter the OLAF Regulation. See on OLAF e.g. Braum,

Justizfrmigkeit und europische Betrugsermittlung Bemerkungen zum Fall Eurostat (EuGT-48/05, Urteil vom 8. 7. 2008), (2009) JZ, 298304, Groussot and Popov, Whats wrongwithOLAF?Accountability, Due Process and Criminal Justice in European Anti-Fraud Policy, 47CML Rev. (2010), 605643, and Stefanou, White and Xanthaki, OLAF at the Crossroads Action against EU fraud. Its main mission is to carry out administrative investigations in theMember States and in third countries (external investigations) as well as within the EUinstitutions, bodies, offices and agencies (internal investigations), in view of the protection ofthe EUs financial interests. (Hart, 2011).

3. See, in relation to external investigations, Council Reg. (Euratom, EC) No 2185/96 of 11Nov. 1996 concerning on-the-spot checks and inspections carried out by the Commission inorder to protect the European Communities financial interests against fraud and otherirregularities, O.J. 1996, L 292/2 (applicable to OLAF investigations by virtue of the OLAFRegulation,Art. 3), and, in relation to internal investigations, OLAF Regulation,Art. 4(2), firstindent.

Common Market Law Review 49: 601628, 2012. 2012 Kluwer Law International. Printed in the United Kingdom.

investigations,4 this enforcement is essentially in the hands of OLAF itselfwhen it carries out investigations in the EU institutions, bodies, offices andagencies.5 Particularly in the latter context, OLAFs powers of investigationmay therefore be viewed as approaching policing measures.6

Such extensive powers of investigation undoubtedly serve an effectiveprotection of the EUs financial interests, an area in which OLAF has becomea major player. The other side of the coin, however, is that the exercise of suchpowers is likely to affect the lives and careers of persons under investigation aswell as touch upon their fundamental rights, especially the rights of thedefence and the right to privacy.7 The question which is the subject of thisarticle is what role judicial review can or should play in effectively protectingthe fundamental rights of persons under investigation by OLAF, taking intoaccount the specific investigative mission of that Office.The main part of this article will consist of an overview of the different

kinds of judicial review which could be relevant in relation to measures takenby OLAF in the exercise of its investigative mission (hereinafter: OLAFinvestigative acts), thereby following the distinction between direct andindirect judicial review (sections 2 and 3 below). This overview will befollowed by considerations on the possible contribution of the fundamentalright to an effective remedy, as provided for by Article 47 of the Charter ofFundamental Rights of the EU, to the debate on judicial review of OLAFinvestigative acts (section 4 below), before arriving at some concludingremarks (section 5 below).

2. Direct judicial review

Direct judicial review occurs when an OLAF investigative act is the object ofan action before a court. This kind of review is exercised by the EU courts.Possible judicial actions include the action for annulment and the action fordamages, combined, if necessary, with a request for interim relief. However,before discussing these procedures (see 2.2 to 2.4 below), a particularityresulting from OLAFs special organizational structure should be mentioned.

4. See Council Reg. No 2185/96, Art. 9, and OLAF Regulation, Art. 6(6).5. See further on the enforcement of OLAFs powers of investigation, Inghelram, op. cit.

supra note *, pp. 100101.6. Wade, OLAF and the push and pull factors of a European criminal justice system,

(2008) Eucrim The European Criminal Law Associations Forum, 128132, 129.7. See further Inghelram, op. cit. supra note *, pp. 8892, 103107, 127168.

CML Rev. 2012602 Inghelram

2.1. The European Commission as the defending party

Any action relating to an OLAF investigative act must be brought against theEuropean Commission, not against OLAF directly, as the latter does not havelocus standi before the EU courts.8 This results from the fact that OLAF isstructurally a part of the Commission. As such, OLAF can be best comparedto a Directorate-General of that institution. Its position is neverthelessparticular as it has far-reaching independence, insofar as its investigativemission is concerned, including from the institution to which it belongs.9 TheCommission is therefore legally responsible for investigative acts adopted byOLAF, although it cannot give any instructions to the latter.It is true that OLAFs lack of locus standi before the EU courts does not

appear to have hampered judicial review of its investigative acts as comparedto the situation in which those acts would have been acts of the Commissionitself. Indeed, there do not as yet seem to have been any problems in relation tothe execution of a judgment of the EU courts byOLAFwhere the Commissionlost an OLAF-related case. This particularity may nevertheless have practicalconsequences, not only for the Commission, which has to assume legalresponsibility for acts overwhich it has no influence, but also forOLAF,whichmay have less control over decisions to be taken in procedural matters, such asthe decision whether or not to lodge an appeal against a judgment in anOLAF-related case.On amore theoretical level, the situation in relation to the judicial review of

OLAF investigative acts seems to be at odds with solutions adopted in otherareas. For instance, for quite some time, satellite agencies have been grantedlocus standi as a defendant before the EU courts,10 in linewith theMeroni caselaw,11 notwithstanding the fact that, with representatives of the Commissionon their administrative or governing boards or councils,12 they are, in practice,less independent from the Commission than OLAF.

8. CaseT-435/09R,GL2006Europev.Commission, [2010]ECRII-32*, paras. 1316.How-ever, theadministrativeprocedurewhichEUofficialsmust followbefore introducinganaction incourt takes place before the Director-General of OLAF. See on the particularities of that proce-dure, which will not be dealt with further in this article, Inghelram, op. cit. supra note *, pp.215216, 218220.

9. OLAF Decision, Art. 3, and OLAF Regulation, Art. 12(3).10. See e.g.Art. 63 of Council Reg. (EC)No 40/94 of 20Dec. 1993 on the Community trade

mark, O.J. 1994, L 11/1 (now replaced byArt. 65 of Council Reg. (EC) No 207/2009 of 26 Feb.2009 on the Community trade mark, O.J. 2009, L 78/1).

11. Case 9/56,Meroni v.HighAuthority, [1958] ECR133, and the parallel judgment in Case10/56, Meroni v. High Authority, [1958] ECR 157.

12. See e.g. Art. 26(1) of Reg. (EC) No 881/2004 of the European Parliament and of theCouncil of 29 Apr. 2004 establishing a European railway agency (Agency Regulation), O.J.2004, L 164/1, as amended by Reg. (EC) No 1335/2008 of 16 Dec. 2008, O.J. 2008, L 354/51.

Judicial review of OLAF 603

Moreover, in Sogelma v. EuropeanAgency for Reconstruction (EAR),13 theEUGeneral Court14 lifted all doubts as to whether locus standi for the satelliteagencies should be expressly provided for by the EU legislator. According tothe Court, this is not the case, since it is a general principle that any act of aCommunity body intended to produce legal effects vis--vis third parties mustbe open to judicial review.15 Interestingly, one of the findings made by theEU General Court was that, as a general rule, actions must be directedagainst the bodywhich enacted the contestedmeasure.16Moreover, the Courtrejected the EARs argument that the action should have been introducedagainst the Commission, precisely on the grounds that the latter had played nopart in the decision-making process.17

This idea of having the author of a measure or decision appear before theEU courts also underlies the ECJs case law on the non-contractual liability ofthe EU.18 Notwithstanding that it is the EU which has to make good damagecaused by its institutions and that the EU is represented by the Commission,19

the ECJ has ruled that under the [EU] legal system . . . it is in the interests ofa good administration of justice that where [EU] liability is involved by reasonof the act of one of its institutions, it should be represented before the Court bythe institution or institutions against which the matter giving rise to liability isalleged.20 This reasoning, based on the interests of a good administration ofjustice, would seem to be readily applicable to OLAF.It is, however, unlikely that the current solution, in which the Commission

acts as the defending party before the EU courts where OLAF investigativeacts are concerned, will change in the near future.Although President Barrososuggested in September 2009 that now that it is well established, OLAFshould be given full independence outside the Commission,21 theCommissions latest proposal of 17 March 2011 for an amendment of the

13. Case T-411/06, Sogelma v. European Agency for Reconstruction (EAR), [2008] ECRII-2771.

14. The name EUGeneral Court will be used even if the judgments were rendered beforethe entry into force of the Treaty of Lisbon, when this judicial body was known as the Courtof First Instance of the European Communities.

15. Para 37. The EU General Court referred in this respect to Case C-294/83, LesVerts v.Parliament, [1986] ECR 1339.

16. Para 49.17. Para 51.18. Arts. 268 (ex 235 EC) and 340(2) (ex 288(2) EC) TFEU.19. Art. 335 TFEU (ex 282 EC).20. Joined Cases C-63 to 69/72, Werhahn Hansamhle and Others v. Council and

Commission, [1973] ECR 1229, para 7.21. Political Guidelines for the next Commission, at p. 37; see (last visited on 5Jan. 2012).


OLAF Regulation22 does not provide for any change to OLAFs currentinstitutional structure as a part of the Commission. Perhaps the establishmentof a European Public Prosecutors Office will provide the occasion for achange in this respect.23

2.2. The action for annulment

2.2.1. General trend: Inadmissibility of an action for annulmentagainst an OLAF investigative act

Actions for annulment, which, if honoured, result in the act of the EU entitybeing declared void, have been introduced against OLAF investigative acts bynon-EU officials under Article 263(4) TFEU (ex 230(4) EC) and by EUofficials under Article 270 TFEU (ex 236 EC) and Article 91 of the StaffRegulations24 in the past. These actions have consistently been declaredinadmissible.25 This has been the outcome in cases involving a decision toopen an investigation;26 acts performed in the course of an investigation;27 afinal report drawn up by OLAF;28 a decision to close an investigation;29 adecision of OLAF not to annul investigative acts which had beenaccomplished by one of its investigators who was allegedly in a situation ofconflict of interest;30 a refusal by OLAF to inform a person of certaininvestigative acts concerning the latter and to allow the latter to defend himself

22. COM(2011)135 final.23. Suggestions that OLAF may become a part of a European Public Prosecutors Office

have been made earlier, see further e.g. Groussot and Popov, op. cit. supra note 2, 640 andStefanou, White and Xanthaki, op. cit. supra note 2, p. 180.

24. Reg. No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and theConditions of Employment of Other Servants of the European Economic Community and theEuropean Atomic Energy Community, O.J. 1962, 45/1385, as last amended by Council Reg.(EC) No 160/2009 of 23 Feb. 2009, O.J. 2009, L 55/1.

25. On the contrary, with regard to non-investigativeOLAF acts, there are cases in which anaction for annulment has been declared admissible, see Joined Cases T-391/03 & 70/04,Franchet and Byk v.Commission, [2006] ECR II-2023, on access to information held by OLAFunder Reg. (EC) No. 1049/2001 of the European Parliament and of the Council of 30May 2001regarding public access to European Parliament, Council and Commission documents, O.J.2001, L 145/43.

26. Case T-215/02, Gmez-Reino v. Commission, [2003] ECR-SC I-A-345, para 50. Seealso Case C-471/02 P(R), Gmez-Reino v. Commission, [2003] ECR I-3207, para 65.

27. Gmez-Reino v. Commission (T-215/02) , cited previous note, para 50.28. Case T-29/03, Comunidad Autnoma de Andaluca v. Comission, [2004] ECR II-2923,

para 40, Case T-4/05, Strack v. Commission, [2006] ECR-SC I-A-2-83, para 51, and CaseC-237/06 P, Strack v. Commission, [2007] ECR I-33*, para 63.

29. Strack v. Commission (T-4/05 & C-237/06 P), cited previous note, paras. 51 and 63respectively.

30. Case T-96/03, Cams Grau v. Commission , [2004] ECR-SC I-A-157, para 38.


CornelHighlight

in the context of the investigation;31 and OLAFs forwarding to an EUinstitution of the report concluding an internal investigation32 or to nationalprosecuting authorities of information on internal investigations.33 Theserulings were unaffected by the fact that procedural irregularities andinfringements of essential procedural requirements had been raised in theaction for annulment.34

The reason for a finding of inadmissibility in all these caseswas the fact thatthe OLAF acts at issue were deemed not to bring about a distinct change in theapplicants legal position. In essence, it follows from the provisions of theOLAF Regulation in particular the 13th recital in the preamble andArticle 9 that the findings of OLAF set out in a final report do not automatically leadto the initiation of judicial or disciplinary proceedings, since the competentauthorities are free to decide what action to undertake pursuant to a finalreport and, accordingly, are the only ones that have the power to adoptdecisions capable of affecting the legal position of persons in relation to whicha report recommends proceedings be instigated.35 In Tillack v. Commission,36the EU General Court added that Article 10(2) of the OLAF Regulationmerely provides for the forwarding of information to national judicialauthorities, which remain free, in the context of their own powers, to assess thecontent and significance of that information and to determine the action to betaken if necessary. Consequently, the possible initiation of legal proceedingsfollowing the forwarding of information by OLAF and the subsequent legalacts belong to the sole and exclusive responsibility of the national authorities.The inadmissibility of actions for annulment against OLAF investigative

acts has provoked some surprise37 and criticism.38 It is nevertheless difficult to

31. Gmez-Reino v. Commission (T-215/02), cited supra note 26, para 55.32. Ibid., para 50.33. CaseT-193/04, Tillack v.Commission, [2006] ECR II-3995, para 82, and CaseT-261/09

P, Commission v. Violetti and Others, judgment of 20 May 2010, nyr, para 73. See also CaseC-521/04 P(R), Tillack v. Commission, [2005] ECR I-3103, para 34.

34. Case T-309/03, Cams Grau v. Commission, [2006] ECR II-1173, para 55.35. Comunidad Autnoma de Andaluca, cited supra note 28, para 37; Cams Grau, cited

supra note 34, para 51, and Tillack (T-193/04), cited supra note 33, para 69.36. Tillack (T-193/04), cited supra note 33, para 70.37. See e.g. Prie and Spitzer on Art. 280 EC in von der Groeben and Schwarze (Eds.),

Kommentar zum Vertrag ber die Europische Union und zur Grndung der EuropischenGemeinschaft, 6th ed. (Nomos, 2004), Vol. 4, p. 1224. The authors contend that it will have tobe admitted that an OLAF final report affects the legal position of a person. A certain surprisethat this was not the case seems to result from an apparently last minute reference to the Orderin CaseT-215/02 R,Gmez-Reino v.Commission, [2002] ECR-SC I-A-199, which was the firstcase in which the admissibility of an action for annulment of an OLAF investigative act hadbeen dealt with.

38. See, in particular with regard to Tillack (T-193/04), cited supra note 33, Wakefield,Good governance and the European Anti-Fraud Office, 12 EPL (2006), 549575, and the


contest the starting point of these decisions. Indeed, it is settled case law thatonly measures the legal effects of which are binding on, and capable ofaffecting the interests of, the applicant by bringing about a distinct change inhis legal position are acts or decisions which may be the subject of an actionfor annulment.39

In this respect, it has been constantly held that, although this test foradmissibility must be interpreted in light of the principle of effective judicialprotection, such an interpretation cannot have the effect of setting aside thetest without going beyond the jurisdiction conferred by the Treaty on the EUcourts.40 Furthermore, where the case law has ruled that it is not the moralinterests of the applicant but his legal position which needs to be affected bythe act involved in order for the action for annulment to be admissible,41 thiscase law is also based on the traditional approach to admissibility.Thus far, there is only one exception to the general trend of considering

actions for annulment against OLAF investigative acts inadmissible, which isthe ruling of the Civil ServiceTribunal inVioletti andOthers v.Commission.42The case had as its origin an internal investigation by OLAF into the high rateof accidents declared by members of personnel at the Ispra-site (Italy) of theEuropean Commission and the equivalent high rate of invalidity pensionsgranted to those members of personnel. In the context of that investigation,OLAF forwarded information to the Italian judicial authorities under Article10(2) of the OLAF Regulation. The plaintiffs asked for the annulment of thedecision to forward the information before the Civil Service Tribunal. One oftheir arguments was that they should have been heard by OLAF before thelatter took its decision. The Civil Service Tribunal agreed and declared theiraction admissible and well-founded.

annotation byWakefield, 45 CML Rev. (2008), 199221. See also Hetzer, Fight against fraudand protection of fundamental rights in the European Union, 14 European Journal of Crime,Criminal Law and Criminal Justice (2006), 2045, 44, according to whom [c]ertaininvestigative acts ought to have been described as potentially adversely affecting the personconcerned so as to make them amenable to review before the investigation was concluded, andBitter, Zwangsmittel im Recht der Europischen Union: Geteilte Rechtsmacht in Europa, inZuleeg (Ed.), Europa als Raum der Freiheit, der Sicherheit und des Rechts (Nomos, 2007), pp.1819.

39. See e.g. Case C-362/08 P, Internationaler Hilfsfonds v.Commission, [2010] ECR I-669,para 51, and Case C-131/03 P, Reynolds Tobacco and Others v. Commission, [2006] ECRI-7795, para 54.

40. See e.g. Reynolds Tobacco, cited previous note, para 81, and Tillack (T-193/04), citedsupra note 33, para 80.

41. Cams Grau, cited supra note 34, para 56, and Strack (C-237/06 P), cited supra note 28,paras. 6466.

42. Joined Cases F-5/05 & 7/05, Violetti and Others v. Commission, judgment of 28 April2009, nyr.


In its reasoning on the admissibility, the Civil Service Tribunal essentiallyfocused on the interplay between the fundamental right of effective judicialprotection and the rights of the defence. It also referred to the fact that thenature of judicial protection is altered by the decision of the Director of OLAFto forward information to the national judicial authorities. Indeed, whereaspossible judicial protection is exercised by the EU courts before this decisionis taken, it is exercised by national courts thereafter.43

An appeal was brought before the EU General Court by the Commissionagainst the ruling of the Civil Service Tribunal, which led to an annulment ofthe ruling by the General Court in Commission v. Violetti and Others.44 Thearguments of the Court were, as to their substance, the same as thoseunderpinning the reasoning in previous rulings finding actions for annulmentagainst OLAF investigative acts inadmissible. The Court added, however, thatits ruling did not imply that an action for annulment would never beadmissible against an OLAF investigative act.45

2.2.2. Some further reflectionsIn the current case law, the inadmissibility of actions for the annulment ofOLAF investigative acts is essentially supported by the fact that thetransmission of information (or a final report) by OLAF to national or EUauthorities does not imply the existence of any obligation upon theseauthorities to initiate proceedings against the person mentioned in thatinformation (or report). Moreover, the EU General Court has pointed out inCommission v. Violetti and Others46 that even if such an obligation were toexist, this would not necessarily transform the transmission of informationinto an act bringing about a distinct change in the applicants legal position, asthe decision (taken by an EU institution) to introduce a case in court is not suchan act.47

From that perspective, it is indeed difficult to contest that the transmissionby OLAF of information or of a report to national or EU authorities does notbring about a distinct change in the legal position of a personmentioned in thatinformation or in the report. The question remains, however, whether this is asufficient ground for considering an action for annulment against any OLAFinvestigative act resulting in or related to such a report to be inadmissible. Inparticular, if an OLAF investigative act deprived a person of the effectiveexercise, or of the benefit, of a fundamental right, would this circumstance not

43. Ibid., para 76.44. Commission v. Violetti and Others, cited supra note 33.45. Ibid., para 71.46. Commission v. Violetti and Others, cited supra note 33.47. Para 66, with reference to Reynolds Tobacco, cited supra note 39, para 58.


be tantamount to bringing about a distinct change in the legal position of thatperson, thus allowing for an action for annulment against such an act to beadmissible? It is argued here that this question can (sections 2.2.3 to 2.2.5below) or even should (section 4 below) be answered in a positive way.

2.2.3. The Rendo case: depriving a person of the effective exercise of hisprocedural rights = bringing about a distinct change in the legalposition of that person

The Rendo case48 sheds an interesting light on the notion of an act bringingabout a distinct change in the legal position of a person. In that case, theCommission had adopted a decision finding that there had been aninfringement ofArticle 85 EEC by a company set up by electricity-generatingcompanies in the Netherlands.The plaintiffs were local electricity distributioncompanies in that sameMember State, and had asked for the annulment of theCommissions decision, insofar as it had not ruled on certain import andexport restrictions applied by the electricity generating companies to thedistribution companies, including the applicants. The Commission haddecided to deal with the issue of those restrictions under Article 169 EEC inthe context of infringement proceedings against the Netherlands, rather thanunder Article 85 EEC.The General Court was faced with the question whether, in relation to the

import restrictions covering a certain period, the plaintiffs action forannulment was directed against an act which brought about a distinct changein the legal position of the applicants and therefore admissible. It noted thatneither the operative part nor the grounds of the Commissions decisionexpressly and definitively rejected the applicants complaint as regards theimport restrictions imposed on the distribution companies.49 In this respect,that decision did not therefore constitute such an act in relation to those importrestrictions.Nevertheless, according to theGeneral Court, the Commissions deferral of

consideration of the issue until proceedings were brought under Article 169EEC a proof of which the Court found in section 50 of the Commissionsdecision had the effect of interrupting the procedure under Article 85 EECfor a considerable period of time. In consequence, some of the issues raised bythe applicants in their complaint concerning imports of electricity had beentaken out of that procedure, in which the applicants had specific proceduralrights, and left to proceedings underArticle 169 EEC, in which the applicantshad no such rights.50 The deferral had legal effects in that it affect[ed] the

48. Case T-16/91, Rendo and Others v. Commission, [1992] ECR II-2417.49. Ibid., para 41.50. Ibid., para 53.


applicants procedural rights51 and thus constituted a decision against whichan action for annulment was admissible.The ruling is particularly interesting since it suggests that the mere fact for

an EU institution to deprive persons of the effective exercise of theirprocedural rights52 may constitute an act bringing about a distinct change inthe legal position of that person and thus an act against which an action forannulment is admissible.This reasoning may be transposable to the context of judicial review of

OLAF investigative acts. Thus, even if an OLAF investigative act may, initself, not produce binding legal effects for a person under investigation, theimplicit decision of OLAF accompanying that act to by all hypotheses deprive that person of the effective exercise of his procedural rights may wellbe an act bringing about a distinct change in the legal position of that person.

2.2.4. Depriving a person of the effective exercise, or of the benefit, of afundamental right = bringing about a distinct change in the legalposition of that person?

The above reasoning may have further effects if it is applied to fundamentalrights. In particular, the following question arises: if an act adopted by an EUinstitution by which a person is deprived of the effective exercise of hisprocedural rights constitutes an act bringing about a distinct change in thelegal position of that person, is this not a fortiori true for an act of an EUinstitutionwhich deprives a person of the effective exercise of his fundamentalrights?The importance of fundamental rights can hardly be doubted. With the

entry into force of theTreaty of Lisbon, the Charter of Fundamental Rights ofthe EU became a legally binding instrument53 and the EU stated its intentionto accede to the ECHR.54 Moreover, in Kadi,55 the ECJ ruled that it is aconstitutional principle that all EU acts must respect fundamental rights,thus recognizing for the first time the existence of a principle of this kind.Moreover, the protection of fundamental rights, including the review by theEU judicature of the lawfulness of EU measures as regards their consistency

51. Ibid., para 55, emphasis added. The General Courts ruling has been partially set asideby the judgment in Case C-19/93 P, Rendo and Others v. Commission, [1995] ECR I-3319, butnot in relation to the part of the judgment of the General Court discussed in this section. Thispart is still considered relevant in academic circles, see Lenaerts, Arts, Maselis and Bray,Procedural Law of the European Union, 2nd ed. (Sweet & Maxwell, 2006), p. 227.

52. Terminology used by the EU General Court, Rendo, cited supra note 48, para 54.53. Art. 6(1) TEU.54. Art. 6(2) TEU.55. Joined Cases C-402 & 415/05 P, Kadi and Al Barakaat International Foundation v.

Council and Commission, [2008] ECR I-6351, para 285.


with those fundamental rights, forms part of the very foundations of the EUlegal order.56

Given the importance attached to the protection of fundamental rights andto the role of the EU courts in reviewing the lawfulness of EU measures asregards their consistencywith those fundamental rights, it would, at first sight,appear to be a paradox that an act of an EU institution depriving a person of theeffective exercise, or of the benefit, of a fundamental right could be qualifiedas a mere fact, not producing any legal effect for that person, theconsequence of which would be that the door is closed for an otherwiseefficient instrument of judicial review, namely the action for annulment.Moreover, from a strictly legal perspective, depriving a person of the

effective exercise or the benefit of a fundamental right amounts, in fact, totaking away, entirely or partly, that right from its beneficiary. For instance, ifthe investigation report is sent to national authorities57 without previouslyhearing the person under investigation, that person may well have thepossibility to make observations in relation to that report during subsequentnational administrative or judicial proceedings in which the OLAF findingsare used. However, that same persons right to be heard as defined by Article41(2) of the Charter of Fundamental Rights of the EU, which is a right to behonoured by the institutions, bodies offices and agencies of the Union,58 is,in practice, taken away in relation to that report by themere transmission of thereport in such circumstances. Taking away the right of a person is normally anact which produces legal effects for that person.An implicit confirmation of the idea that an act depriving a person of the

effective exercise or the benefit of a fundamental right may, as such, constitutean act bringing about a distinct change in that persons legal position can befound in the answer given by the Council and the Commission to the CivilServiceTribunals question inVioletti59 as towhat kind ofOLAF acts could bequalified as acts bringing about a distinct change in a persons legal position.Those institutions provided as examples the searching of personal effectsduring access to the office of a third-party official or other servant, the seizureof such personal effects, the questioning of a third-party official or otherservant during which OLAF used unlawful methods, or the clandestinetapping of the telephone of a third-party official or other servant. The reasonwhy only EU officials or agents who are not under investigation by OLAFcould, under these circumstances, file an action for annulment, was, according

56. Ibid., para 304.57. OLAF Regulation, Art. 9.58. This follows fromArt. 41(1) of the Charter.59. Violetti and Others v. Commission, cited supra note 42.


to the Council and the Commission, that these persons could not indirectlychallenge the legality of these acts at a later stage of the procedure.60

The Civil Service Tribunal rejected, in substance, the notion that an OLAFinvestigative act could not be qualified as an act bringing about a distinctchange in the legal position of a person under investigation, merely becausethat person could indirectly challenge the legality of an OLAF investigativeact at a later stage of the procedure.61

In this respect, it indeed appears that the acts mentioned by the Council andthe Commission have the same effect on an EU agent or official, whether theyare under investigation by OLAF or not. Moreover, EU agents and officialswho are under investigation by OLAF cannot always indirectly challenge thelegality of an OLAF investigative act at a later stage of the procedure. Anobvious example is the situation ofVioletti and the other plaintiffs. There wasno act at a later stage of the procedure on the occasion of which the legality ofthe OLAF investigative act could have been challenged, since the judge incharge of preliminary investigations at the District Court inVarese decided todiscontinue the proceedings.62

As to the examples provided by the Council and the Commission, the CivilService Tribunal considered these examples did not demonstrate that thetransmission of information at issue in that case was not an act bringing abouta distinct change in the applicants legal position.63 Nevertheless, theseexamples remain interesting regardless of whether the distinction between EUagents and officials who are under investigation by OLAF and those who arenot is relevant. Indeed, those examples all relate to acts which interfere withthe fundamental rights of a person, either the fundamental right to privacy(search of personal effects, clandestine tapping of the telephone) and possiblythe fundamental right to property (seizure of personal effects), as well as thefundamental right to liberty and security (questioning with use of unlawfulmethods). In other words, the examples cited by the Council and theCommission in fact suggest that OLAF investigative acts may be consideredas acts producing legal effects for a person merely because they interfere withthat persons fundamental rights.This interpretation does not seem to imply an overruling of the ECJs

consistent case law64 according to which the principle of effective judicialprotection cannot in itself modify the conditions to which the legal remediesprovided by the Treaties are subject. Indeed, the condition that an act should

60. Ibid., para 66.61. Ibid., para 88.62. Ibid., para 28.63. See, to that effect, ibid., para 89.64. See supra note 40.


bring about a distinct change in a persons legal position for an action forannulment to be admissible remains unaffected. Only the meaning of thiscondition in a context where the act interferes with fundamental rights is atissue.In the same way, this interpretation does not substantially modify the

meaning of the condition, provided by Article 263(4) TFEU (ex 230(4) EC),that an act other than a regulatory act, and which is not addressed to a person,must be of direct and individual concern to that person for an action forannulment filed by the latter against that act to be admissible.65 It is indeeddifficult to deny that an OLAF investigative act in relation to a person underinvestigation66 is of direct and individual concern to that person, especially ifthat act interferes with his fundamental rights.Furthermore, it is not at all certain that based on the above interpretation the

EU courts would be overrun by a large amount of new actions for annulment.An act of an EU institution which raises problems in relation to fundamentalrights is often already an act bringing about a distinct change in the applicantslegal position, even before the question of the relevance of the fundamentalrights issue for the admissibility of the action for annulment can arise. Anexample in this respect is the ruling in Kadi,67 where there was no doubt thatthe measures freezing applicants funds brought about a distinct change intheir legal position.68 The question of whether the issue of fundamental rightswas relevant for the admissibility of the action was therefore not examined bythe ECJ, as the EU General Court pointed out in Commission v. Violetti andOthers.69

2.2.5. Limited scope of reviewMoreover, since only the act depriving a person of the effective exercise, or ofthe benefit, of a fundamental right would be an act bringing about a distinctchange in the legal position of that person against which the action forannulment would be admissible, the scope of review would be limited to thatspecific act. To take the above mentioned example of a transmission of the

65. This condition overlaps with the one that the act must be capable of bringing about adistinct change in the legal position of the applicant, see Joined Cases C-463 & 475/10 P,Deutsche Post and Germany v. Commission, judgment of 13 Oct. 2011, nyr, para 38.

66. Other than an EU official, to whomArt. 263(4) TFEU does not apply.67. Kadi, cited supra note 55.68. It is, nevertheless, worthwhile to note that freezing a persons funds is tantamount to

depriving that person of the effective exercise, or of the benefit, of his fundamental right toproperty. Considered from that perspective, the Kadi case may possibly be seen as implicitlyconfirming the proposed interpretation that an act of an EU institution depriving a person of theeffective exercise, or of the benefit, of a fundamental right constitutes an act bringing about adistinct change in the legal position of that person.

69. Commission v. Violetti and Others, cited supra note 33, para 56.


investigation report to national authorities without previously hearing theperson under investigation, this would mean that only the legality of the act oftransmission without hearing could be subject to judicial review and not thelegality of the investigation report itself. As consistently held in the case law,the latter would remain an act incapable of bringing about a distinct change inthe legal position, and thus not open to judicial review via the action forannulment. In practical terms, this would also imply that, in relation to thetransmission of the investigation report to the national authorities, only aviolation of the right to be heard could be examined by the competent EUcourt.Another hypothetical example illustrating the limited scope of judicial

review is that of an investigative act by which, during an office search,personal effects of an EU official are taken into custody.70As suggested abovein relation to the examples given by the Council and the Commission inVioletti, such an act could be considered as depriving a person of the benefit ofhis fundamental right to privacy and/or to property. Since only that specific actcould arguably be qualified as an act bringing about a distinct change in thelegal position of that official, review would be limited to examining that actand its compatibility with the fundamental right to privacy and/or to property.There would, however, be no grounds for examining the legality of theinvestigation as a whole at that occasion.This limited scope of review appears to find a justification in the case law

on preparatory acts. According to this case law, intermediate measures whoseaim is to prepare the final decision do not, in principle, bring about a distinctchange in the legal position of the applicant, and an action for annulmentagainst them is therefore inadmissible.71 This case law appears relevant for allOLAF investigative acts prior to the adoption of the investigation report, asthese can be considered preparatory to that report, but not for the investigationreport itself, which has explicitly been found not to be a measure preparatoryto administrative or judicial proceedings liable to be initiated pursuant to it.72

Even if the case law on preparatory acts effectively supports the conclusionthat an action for annulment against an OLAF investigative act (prior to theinvestigation report) is, as a general rule, inadmissible, it also justifies, to acertain extent, why this would not be true if an investigative act depriving aperson of the effective exercise, or of the benefit, of a fundamental right is atstake.

70. One could think of a private mobile phone.71. See e.g. Deutsche Post, cited supra note 65, para 50.72. Cams Grau, cited supra note 34, para 49. For a different view, see the earlier case of

Gmez-Reino (T-215/02), cited supra note 26, para 50.


In IBM v. Commission,73 the ECJ indeed explained its case law onpreparatory acts by ruling that an action for annulment against such acts mightmake it necessary for it to arrive at a decision on questions on which thedefending EU institution had not yet had an opportunity to state its positionand would as a result anticipate the arguments on the substance of the case,confusing different procedural stages both administrative and judicial. Anaction for annulment at that stage would thus be incompatible with the systemof division of powers between that institution and the Court and the system ofremedies laid down by the Treaty, as well as the requirements of the soundadministration of justice and the proper course of the administrative procedureto be followed by the former.74

However, reviewing the legality under the fundamental right to privacyand/or to property of an investigative act by which, during an office search,personal effects of an EU official are taken into custody which is theexample taken above does not draw the competent EU court into anticipatingthe arguments on the substance of any case.75 As an act depriving a person ofthe effective exercise, or of the benefit, of a fundamental right, theinvestigative act and the specific legal issue raised by it are, in fact, definitive,even if this act prepares the adoption of another measure, namely theinvestigation report.76

Furthermore, it would be difficult to argue that an OLAF investigative act,as an intermediate measure, is not capable of forming the subject-matter of anaction for annulment since the illegality attaching to thatmeasure can be reliedon in support of an action against the final decision for which it represents apreparatory step.77 As already pointed out above in relation to the situation ofVioletti and others, it is not at all sure, at the stage of the investigation, thatsuch a final decision will actually be adopted. Moreover, the fundamentalright to an effective remedy requires more than just the remote possibility ofintroducing an action against a final decision in order to be able to concludethat sufficient judicial protection exists in relation to such an intermediatemeasure (see section 4 below).

73. Case 60/81, IBM v. Commission, [1981] ECR 2639.74. To that effect, para 20, confirmed in Deutsche Post, cited supra note 65, para 51.75. See also, by analogy, Deutsche Post, cited supra note 65, para 52.76. See for a similar analysis of the notion of preparatory act, Goffin, Une decision de

refus peut-elle tre un acte prparatoire?, 30 CDE (1994), 239245, 242. Furthermore, in IBMv. Commission, cited supra note 73, para 23, the ECJ suggested that judicial review at an earlystage of an act to be qualified as preparatory may become necessary in exceptionalcircumstances, where the measures concerned lack even the appearance of legality. This maybe another reason for considering an action for the annulment of an OLAF investigative act tobe admissible, provided the condition referred to by the Court is fulfilled.

77. Deutsche Post, cited supra note 65, para 53.


It follows from the above that the scope of review under the action forannulment would be limited to a kind of fundamental rights check ofindividual OLAF investigative acts and not extend to the legality of theinvestigation as a whole. Moreover, even if it were to be established that anOLAF investigative act deprived a person of the effective exercise, or thebenefit, of a fundamental right, this would not yet mean that this fundamentalright was also violated. The latter would be a question relating to the merits ofthe case, where possible justifications for the interference with a fundamentalright become relevant.A step in the direction of specifically considering the protection of

fundamental rights relevant when determining the existence of an act bringingabout a distinct change in the legal position of the applicant was taken by theEU General Court in Planet v. Commission,78 where the absence of a right tobe heard was found to be one of the elements supporting the Courtsconclusion that the applicants registration by the Commission in certaincategories of its early warning system constituted such an act.

2.3. The action for damages

In order to obtain judicial protection against OLAF investigative acts,applicants have, thus far, been more successful by filing actions for damagesunder Articles 268 TFEU (ex 235 EC) and 340(2) TFEU (ex 288(2) EC).79

According to this latter provision, in the case of non-contractual liability, theEU is, in accordance with the general principles common to the laws of theMember States, to make good any damage caused by its institutions or by itsservants in the performance of their duties.Actions for damages are not subject to the admissibility criterion,

applicable to actions for annulment, which requires that the contested actbrings about a distinct change in the legal position of the applicant. A right toreparation exists where three conditions aremet: the rule of law infringedmustbe intended to confer rights on persons; the breach must be sufficientlyserious; and there must be a direct causal link between the breach of theobligation and the damage sustained by the injured parties.80 According tocertain cases, less stringent conditions may apply if the action for damages isfiled by an EU official or agent underArticle 270 TFEU (ex 236 EC). In sucha case, the applicant would not have to prove the existence of a sufficiently

78. Case T-320/09, Planet v. Commission, order of 13 Apr. 2011, nyr, para 52. An appealagainst this order is currently pending, see Case C-314/11 P, Commission v. Planet, O.J. 2011,C 238/12.

79. Or, insofar as EU official and agents are concerned, under Art. 270 TFEU (ex 236 EC)and Art. 91 of the Staff Regulations.

80. Case C-352/98 P, Bergaderm and Goupil v. Commission, [2000] ECR I-5291, para 42.


serious breach of a rule of law intended to confer rights on persons, but merelythe fact that the allegedly wrongful act committed by an EU institution wasillegal.81

Although the EU as a legal person is liable, it is represented before the EUcourts by the institution or institutions against which the matter giving rise toliability is alleged.82 A request for damages allegedly suffered by reason ofOLAFs conduct must therefore be addressed to the Commission.83

The burden of proof in relation to the existence of a breach of an obligation,of a causal link and of damage sustained lies with the applicant.84

Nevertheless, where a harmful event may have been the result of a number ofdifferent causes and where the EU institution has adduced no evidence toestablish to which of those causes the event is imputable, although it is bestplaced to provide such evidence, the uncertainty which remains will beconstrued against it. This mitigation of the burden of proof on the applicantalso applies in OLAF-related cases.85

Up until now, compensation86 has been granted for a violation by OLAF ofthe obligation of impartiality,87 for unauthorized leaks by OLAF ofconfidential information,88 as well as for an infringement by OLAF of theright to be heard.89

2.4. Interim relief

Actions brought before the EU courts do not have suspensory effect.90

However, if they consider that circumstances so require, the EU courts mayorder at the request of the applicant that the application of the contested act besuspended.91 Moreover, they may in any cases before them prescribe anynecessary interim measures.92 The purpose of this interim relief is to prevent

81. See on this debate Case C-17/11 RX, decision of 8 Feb. 2011, nyr.82. Werhahn Hansamhle, cited supra note 20, para 7.83. This is also true for EU staff working for other institutions than the Commission, see

Cams Grau, cited supra note 34, para 66.84. Case T-48/05, Franchet and Byk v. Commission, [2008] ECR II-1585, paras. 182

and 397.85. Ibid., para 183.86. Ranging from 3 000 euros to 10 000 euros. In Franchet and Byk, cited supra note 84, a

lump sum of 56 000 euros was granted, but for various breaches of obligations by both OLAFand the Commission.

87. Cams Grau v. Commission, cited supra note 34.88. Case T-259/03, Nikolaou v. Commission, [2007] ECR II-99*, and Franchet and Byk v.

Commission, cited supra note 84.89. Franchet and Byk v. Commission, cited supra note 84.90. Art. 278 TFEU (ex 242 EC).91. Ibid.92. Art. 279 TFEU (ex 243 EC).


that the time needed to establish the existence of a right does not ultimatelyhave the effect of irremediably depriving the right of substance by eliminatingany possibility of exercising it. The purpose of interim protection is thereforeto achieve the fundamental objective of every legal system, namely, theeffectiveness of judicial protection.93

General features of interim relief are its provisional and ancillary nature.Due to their provisional character, themeasures ordered cease to produce theireffects as soon as final judgment is given.94The judicial protection granted byway of interim relief is therefore always of a temporary nature. It can, however,constitute a very effective form of legal protection, due to the power which thePresidents of the respective EU courts possess to adapt the measure ordered tothe legal protection needed, as well as the possibility of ordering interim reliefmeasures within an extremely short period of time.95

The ancillary nature of interim relief implies that an application to suspendthe operation of any measure adopted by an EU institution is admissible onlyif the applicant is challenging that measure in proceedings before thecompetent EU court. An application for the adoption of any other interimmeasure is admissible only if it is made by a party to a case before thecompetent EU court and relates to that case.96

2.4.1. Interim relief in the framework of actions for annulmentThe ancillary nature of interim relief also implies that a claim for such reliefwill be refused if the main action, in the framework of which the claim forrelief has been made, is found to be prima facie inadmissible.97 This isparticularly relevant for interim relief sought in the framework of actions forannulment against OLAF investigative acts. Indeed, the current general trendin the case law is that such actions are inadmissible. Based on this

93. Opinion of A.G. Tesauro in Case C-213/89, Factortame and Others, [1990] ECRI-2433, para 18.

94. See e.g. Case C-440/01 P(R), Commission v. Artegodan, [2002] ECR I-1489, para 60.95. Kapteyn andVerLoren vanThemaat, The Law of the European Union and the European

Communities, 4th ed. (Kluwer Law International, 2008), at p. 503, footnote 474, cite theexample of Case 50/69 R, Germany v. Commission, [1969] ECR 449, in which the applicationhad been received on 3 Oct. 1969 and the order had been given on 5 Oct. 1969, which was,moreover, a Sunday.

96. Art. 83(1) of the Rules of Procedure of the ECJ, Art. 104(1) of the Rules of Procedureof the EUGeneral Court andArt. 102(1) of the Rules of Procedure of the Civil ServiceTribunal.

97. See e.g. Case C-329/99 P(R), Pfizer Animal Health v. Council, [1999] ECR I-8343,para 89.


interpretation, EU courts have until now refused to grant interim relief in theframework of actions for annulment against OLAF investigative acts.98

However, provided this admissibility hurdle can be overcome, there do notseem to be any further obstacles of principle against interim relief beinggranted in the context of actions for annulment against OLAF investigativeacts.This would imply that if the general conditions for interim relief aremet99

the operation of an OLAF investigative act could theoretically be suspendedpending the court proceedings on the action for annulment, which wouldprevent this act from being used in further proceedings during that sameperiod. Other interimmeasures could also be taken, even a mere reminder thatexisting provisions have to be complied with.100

2.4.2. Interim relief in the framework of actions for damagesThe limited possibility to claim interim relief in the framework of actions forannulment against OLAF investigative acts raises the question to what extentinterim relief may be granted in the framework of actions for damages. Asmentioned above, such actions currently constitute the most obvious meansfor obtaining judicial protection in the context of OLAF investigations.It is somewhat surprising to see how underdeveloped the phenomenon of

interim relief is in the framework of actions for damages. The vast majority ofinterim relief is granted by EU courts in the context of main proceedings, theobject of which is an action for annulment. In fact, at first sight, there does notseem to be a single case in which interim relief has been granted specificallyand only in the context of an action for damages.In theory, however, the case law does not exclude the possibility of interim

relief being granted in the framework of actions for damages. InAntonissen,101 the President of the ECJ ruled that an absolute prohibition onobtaining a measure granting (by way of advance) a part of the compensationclaimed in the main proceedings and seeking to protect the applicants

98. See e.g. Gmez-Reino v. Commission, cited supra note 37, para 48, Case T-193/04 R,Tillack v. Commission, [2004] ECR II-3575, paras. 46 and 47, and Tillack (C-521/04 P(R)),cited supra note 33, para 34.

99. Essentially, the three conditions for granting interim relief are (1) that the order forinterim relief is justified prima facie in fact and in law (fumus boni juris); (2) that the order isurgent in that, in order to avoid serious and irreparable damage to the applicants interests, itmust be made and produce its effects before the decision is given in the main proceedings(urgency); and (3) that the applicants interest in the imposition of interim measures outweighsthe other interests at stake in the proceedings (balance of interest), see Castillo de la Torre,Interim measures in Community Courts: Recent trends, 44 CML Rev. (2007), 273353, 283.

100. Case T-203/95 R, Connolly v. Commission, [1995] ECR II-2919, para 25.101. Case C-393/96 P (R), Antonissen v. Council and Commission, [1997] ECR I-441,

paras. 36 and 37.


interests until judgment is rendered, irrespective of the circumstances of thecase, would not be compatible with the right of individuals to complete andeffective judicial protection under EU law, which implies in particular thatinterim protection must be available to them if it is necessary for the fulleffectiveness of the definitive future decision.The question whether a measure other than granting (by way of advance) a

part of the compensation could be ordered through interim relief in theframework of an action for damages, was left explicitly unanswered inComos-Tank.102 Moreover, in Connolly,103 the President of the EU GeneralCourt suggested in rather general terms that, in the context of an applicationfor interim measures connected with an action for damages, the applicantshould have the possibility of obtaining a measure to prevent future damagewhich might be serious and irreparable.Theoretically, interim relief by way of suspension of the operation of a

measure, ordered in the framework of an action for damages, does not seementirely impossible. In fact,Article 278TFEU (ex 242 EC) does not establish,at least not explicitly, a link between the possibility of suspending theapplication of a measure and a specific kind of (main) proceedings. In anycase, the wording of Article 279 TFEU (ex 243 EC) is so broad (may in anycases before it prescribe any necessary interim measures104) that it may alsoinclude measures of suspension if necessary.105

Moreover, the fact that, contrary to an action for annulment, a successfulaction for damages does not have a legal impact on the measure which formsthe subject of the main proceedings does not seem to be a sufficient reason fordenying interim relief byway of suspension of the operation of that measure inthe framework of an action for damages. The situation in this respect can becompared to the possibility, firmly established in the case law, of interim reliefordered in the framework of an action for infringement, based on Article 258TFEU (ex 226 EC) or on Article 108 TFEU (ex 88 EC).106 The fact that the

102. Joined Cases C-51 & 59/90 R, Comos-Tank and Others v. Commission, [1990] ECRI-2167, para 33.

103. Cited supra note 100, para 23.104. Emphasis added.105. See Hoskins, The Relationship between the Action for Damages and the Award of

Interim Measures in Heukels and McDonnell (Eds.), The Action for Damages in CommunityLaw (Kluwer Law International, 1997), 264265. He states the argument that Art. 186 EC(laterArt. 243 EC and nowArt. 279TFEU) should not be used to provide for a broader right ofsuspension than is expressly provided in Art. 185 EC (later Art. 242 EC and now Art. 278TFEU) appears rather pedantic, particularly in light of the very broad discretion granted tothe EU courts by what is nowArt. 279 TFEU. Moreover, according to the same author, the twoTreaty provisions should not be interpreted in such a way as to defeat the effective protection ofEU rights.

106. See e.g. Case C-573/08 R, Commission v. Italy, [2009] ECR I-217*.


judgment finding the failure to fulfil obligations is declaratory in nature doesnot preclude the imposition of interim measures. In the same way, one couldargue that the fact that the judgment grants compensation should not precludethe imposition of interim measures. Indeed, an interlocutory order by one ofthe the EU courts does not derive its binding force from that courts power togive judgment in the main proceedings.107

Furthermore, it would seem difficult to derive an argument against thepossibility of suspending the operation of ameasure in the context of an actionfor damages from the actions objective, which is to compensate past damage,not to prevent new damage from arising. As indicated earlier, the President ofthe EU General Court already suggested in Connolly108 that an interimmeasure to prevent future damage which might be serious and irreparable,could be granted in the context of an action for damages.Moreover, it is settledcase law that an injured party must show reasonable diligence in limiting theextent of the loss or damage, or risk having to bear the loss or damage himself,and that he must, as a general rule, avail himself in time of all the legalremedies available to him.109 With this obligation in mind, it would be rathersurprising if the case law closed the door for an efficient remedy forpreventing future serious and irreparable damage on the grounds that theobjective of the action for damages would be exclusively to compensate pastdamage.Finally, it does not appear that an argument for not granting a suspension of

the operation of a measure in the context of an action for damages can bedrawn from the settled case law that the urgency of an application for interimmeasures must be assessed in relation to the necessity for an interim order toprevent serious and irreparable harm to the party applying for thosemeasures,110 and that purely pecuniary damage cannot, in principle, beregarded as irreparable or even as difficult to repair since it may be the subjectof subsequent financial compensation.111 Such an argument would imply that,because the action for damages is intended to grant financial compensation,damage compensated by such an action can never be qualified as irreparable.However, the case law does not support such a view. It has indeed considereddamage that is difficult to quantify as irreparable.112 In particular, the fact ofirreparably affecting a persons honour and reputation which is precisely the

107. Castillo de la Torre, op. cit. supra note 99, 280.108. Connolly, cited supra note 100.109. See, to that effect, Case C-445/06, Danske Slagterier, [2009] ECR I-2119, paras.

6061.110. See e.g. Case C-60/08 P(R), Cheminova and Others v. Commission, [2009] ECR

I-43*, para 62.111. Ibid., para 63.112. See e.g. Comos-Tank, cited supra note 102, para 24.


kind of damage to which OLAF investigations may give rise has alreadybeen considered as an irreversible damage justifying the taking of an order forinterim relief.113

By way of conclusion, it should not be excluded, at least from a theoreticalpoint of view, that interim relief can actually be granted in the framework of anaction for damages for breach of an obligation by OLAF, whether this interimrelief takes the form of a measure granting (by way of advance) a part of thecompensation claimed in the main proceedings, or even of a suspension of theapplication of the OLAF investigative measure. Such an application forsuspension was, in substance, at issue in Tillack114 but the President of the EUGeneral Court dismissed the application on the grounds that the applicant hadnot established to the required legal standards that his application for damageswas not manifestly unfounded. The President did not consider the questionwhether the other conditions for granting relief had been satisfied.

3. Indirect judicial review

Judicial review ofOLAF investigative acts can also be exercised indirectly, i.e.during a court case dealing with a subsequent act or decision of an authorityother than OLAF, which is entirely or partly based on an OLAFinvestigative act. This indirect judicial review can be exercised by an EU courtor a national court.

3.1. Indirect judicial review by an EU court

When a decision of an EU institution is partly or entirely based on anOLAF investigative act, this act may be reviewed in the context of judicialproceedings before an EU court against that decision. The legality of theinvestigative act may indeed affect the legality of the decision taken on thebasis of that act.An example of this kind of review can be found inCPEM v.Commission,115

in which the applicant asked for the annulment of a Commission decisioncancelling the assistance from the European Social Fund previously granted tothe applicant.The decision had been taken on the basis of anOLAF report, andone of the arguments of the applicant was that his rights of defence had beenviolated in the context of the OLAF investigation. Other examples are Spain v.

113. Connolly, cited supra note 100, paras. 4244.114. Tillack (T-193/04 R), cited supra note 98, paras. 4963.115. Case T-444/07, CPEM v. Commission, [2009] ECR II-2121, paras. 4256.


Commission,116 in which the correctness of OLAFs findings was at issue in acase in which Spain had asked for the annulment in part of a Commissiondecision excluding from EU financing certain agricultural expenditure, aswell as Commission v. Cresson,117 in which the defendant argued that thenecessary authorizations for the OLAF members of staff who participated inthe investigation had been missing. However, in all these cases, the argumentsof the applicants relating to the legality of OLAF investigative acts weredismissed for various reasons.

3.2. Indirect judicial review by a national court

Where an OLAF investigative act lies at the basis of a decision taken by anational authority, this act may be reviewed in the context of judicialproceedings before a national court against that decision. In this context, therelationship between the courts of the Member States and the ECJ and, inparticular, the preliminary ruling procedure under Article 267 TFEU (ex 234EC), which constitutes the essence of this relationship, becomes relevant.

3.2.1. Interpretation of an OLAF(-related) actIf an OLAF investigative act is being used in national court proceedings, theremay be a need to interpret either this act or OLAF legal instruments for thenational court to be able to give judgment. In that case, the national court can or in some cases must118 ask the ECJ to give a preliminary rulingconcerning the interpretation of that act or of those legal instruments. The factthat an OLAF investigative act is not a legally binding act cannot be anobstacle in this respect. Article 267 TFEU (ex 234 EC) indeed confers on theECJ jurisdiction to give a preliminary ruling on the validity and interpretationof all acts of the EU institutions without exception.119

The judgment in which the ECJ gives a preliminary ruling is binding on thenational court for the purposes of the decision to be given in the mainproceedings.120 Aside from this specific effect, such a judgment may, ofcourse, present an overall interest for the interpretation of OLAFscompetences.

116. Case T-259/05, Spain v. Commission, [2009] ECR II-95*, paras. 129150.117. Case C-432/04, Commission v. Cresson, [2006] ECR I-6387, paras. 85 and 102.118. Art. 267(3) TFEU.119. Case C-322/88, Grimaldi, [1989] ECR 4407, para 8.120. See e.g. Case C-446/98, Fazenda Pblica, [2000] ECR I-11435, para 49.


3.2.2. Validity of an OLAF(-related) actDuring national proceedings based on OLAF investigative acts, a question asto the validity of these acts may arise. Such was the case in Thomson SalesEurope,121 which appears to be the first preliminary reference ever in relationto the OLAF Regulation. In that case, the Tribunal dInstance de Paris hassubmitted several questions to the ECJ on the validity of an OLAFinvestigation in Thailand.In any event, a national court is not in the position to declare an OLAF

investigative act invalid.122 Indeed, national courts have no jurisdiction todetermine that acts of an EU institution are invalid.123 A national court musttherefore submit a request for a preliminary ruling on the validity of aninvestigative OLAF act to the ECJ, which has to determine that the act isactually invalid for the national court to be able to rule that nationalproceedings have been affected by an invalid OLAF act.Nevertheless, the rule that national courts may not determine that EU acts

are invalid may have to be qualified in the case of proceedings relating to anapplication for interim measures.124 Indeed, national courts are not precludedfrom granting interim relief, inter alia, by making a positive orderprovisionally disapplying an EU regulation, to settle or regulate the disputedlegal positions or relationships with reference to a national administrativemeasure based on an EU regulation which is the subject of a reference for apreliminary ruling on its validity.125 The question whether this reasoningcould also allow a national court to make a positive order provisionallydisapplying an OLAF act has not yet been answered. However, given the ratiolegis of this case law, which is the need for legal protection pending delivery ofa judgment of the ECJ which alone has the jurisdiction to declare an EU actinvalid,126 the answer cannot be negative from the outset.This questionmay beof practical relevance when national proceedings are initiated against a personon the basis of an OLAF investigation report of which that person contests itsvalidity. If the answer to the above question is positive, a national judge wouldbe competent to provisionally set aside the report, which would normally leadto a temporary halt of any proceedings based on that report.In any case, certain conditions must be observed when a national court

orders any interim relief, including a positive measure rendering the contestedact provisionally inapplicable. In particular, that court must entertain serious

121. Pending Case C-348/11, Thomson Sales Europe, O.J. 2011, C 282/5.122. Tillack (T-193/04), cited supra note 33, para 80.123. Case 314/85, Foto-Frost, [1987] ECR 4199, para 20.124. Case C-461/03, Gaston Schul Douane-expediteur, [2005] ECR I-10513, para 18.125. Case C-465/93, Atlanta Fruchthandelsgesellschaft and Others (I), [1995] ECR

I-3761, paras. 26 and 30.126. Ibid., para 21.


doubts as to the validity of the EU act and, where the validity of the contestedmeasure is not already at issue before the ECJ, itself refer that question to theCourt; there must be urgency and a threat of serious and irreparable damage tothe applicant; and the national court must take due account of the EUinterest.127

4. The fundamental right to an effective remedy

According to Article 47 of the Charter of Fundamental Rights of the EU,[e]veryonewhose rights and freedoms guaranteed by the law of theUnion areviolated has the right to an effective remedy before a tribunal in compliancewith the conditions laid down in this Article . . . .It follows from the preceding overview that there is, in principle, a remedy

against possible violations by OLAF of fundamental rights, albeit in the formof an action for damages.128 However, according to Article 47, this remedymust also be effective. The case law of the ECJ on interim relief confirmsthat the need for judicial protection to be effective requires that this protectioncan be given quickly if necessary.Moreover, a situation in which the legality of an OLAF investigative act

could, in practice, only be contested before the judge reviewing the decisionsubsequently taken on the basis of theOLAF investigationmaywell, in certaincircumstances, be problematic under Article 47 of the Charter if, as Article52(3) of the Charter requires, this provision is given the same meaning andscope as Article 6 ECHR.Indeed, in Socit Canal Plus and Others v. France,129 the European Court

of Human Rights found thatArticle 6 ECHRwas violated in a situation wherethe applicants could only contest search and seizure orders pronouncedagainst them by the liberties and detention judge in a competition case if anappeal was lodged against the decision on the merits taken by the competitionauthority. According to the Court, this made the possibility of obtainingjudicial review of these orders uncertain, since both the adoption of a decisionon the merits and the introduction of an appeal against that decision were first

127. Ibid., paras. 3233.128. On the question whether such an action could qualify as an appropriate remedy in all

circumstances, see, however, Van Dijk, Van Hoof, Van Rijn and Zwaak (Eds.), Theory andPractice of the European Convention onHuman Rights, 4th ed. (Intersentia, 2006), p. 559.Withreference to the judgment of 7 July 1989 of the European Court of Human Rights in Case TreTraktrerAB v. Sweden, SeriesA no. 159, para 49, these authors mention that the possibility ofinstituting judicial proceedings for damages does not substitute for the right to refer theunderlying dispute to a court under Art. 6 ECHR.

129. Judgment of 21 Dec. 2010, no. 29408/08.


required. Moreover, several years passed between the search and seizureorders and the decision on the merits. The Court stressed thatArticle 6 ECHRrequires appropriate redress, which necessarily implies the certainty, inpractice, that effective judicial review can be obtained and, moreover, within areasonable period of time.130

Applied to the OLAF context, this case law may require the availability ofmore or less immediate judicial review, at least when investigative actsinterfering with fundamental rights, such as searches and (acts equivalent to)seizures, are at issue. Qualifying anOLAF investigative act depriving a personof the effective exercise, or of the benefit, of a fundamental right as an actbringing about a distinct change in the legal position of that person, and thusmaking the introduction of an action for annulment, combined with a requestfor interim relief, against that act possible may therefore not just be atheoretical solution, but also a legal necessity.

5. Concluding remarks

In exercising its investigative activities, OLAF is subject to judicial control,thus far exercised by the EU courts through action for damages cases. Thequestion remains, however, whether this procedure allows for a sufficientprotection of fundamental rights in all circumstances. Judicial protection isobtained long after the contested investigative act and the act as such is notaffected by the EU courts ruling; only compensation for the prejudice createdby that act is obtained.Compared to this situation, it goes without saying that the protection of

fundamental rights would be better ensured if an OLAF investigative actwhich by all hypotheses violates these rights can first be suspended andthen declared void through the action for annulment combined with a requestfor interim relief, so as to deprive that act immediately of any effect.At first sight, this solution runs up against the current case law on the

(in)admissibility of OLAF investigative acts. However, it is argued above that,in limited circumstances, an action for annulment could be consideredadmissible against an OLAF investigative act, thereby respecting the currentcase law, in particular that on preparatory acts. This could be the case if anOLAF investigative act is shown to have deprived the applicant of the effectiveexercise, or of the benefit, of a fundamental right, thus opening a reviewlimited to examining the compatibility of that specific act with fundamental

130. Ibid., para 40.


rights. This solution might possibly strike a balance between safeguarding theefficiency of OLAF investigations on the one hand and protectingfundamental rights on the other. Moreover, the latter interest is not only to thebenefit of persons under investigation but also of OLAF,whose legitimacy canonly increase when fundamental rights are (seen to be) effectively protected.


Judicial Review of Investigative Acts of the European

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