{"attribution":{"source":"legal.exploreworldai.com","canonical":"https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:c-559-23-p","cite_as":"NovaCopilot, legal.exploreworldai.com (https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:c-559-23-p)","license":"https://legal.exploreworldai.com/revision","version":"legal-2026-11-02","fingerprint":"ewai:eu:f6410a","proof":"sha256:de6c7a616e46178fa0132642e9bd6226af6057e46a86d86574a6bd231023bb26","jurisdiction":"eu","lang":"en","publisher":"NovaCopilot by ExploreWorld Legal","terms":"https://legal.exploreworldai.com/om"},"brand_source":"Source: NovaCopilot","item":{"schema_version":"1.0.0","id":"eu:c-559-23-p","jurisdiction":"eu","lang":"en","brand_source":"Source: NovaCopilot","brand":{"product":"NovaCopilot","platform":"ExploreWorldAI","infrastructure":"ExploreWorld Legal","infrastructure_url":"legal.exploreworldai.com","legal_entity":"Valkiv Ventures AB","permanent_url":"https://legal.exploreworldai.com/novacopilot","source":"Source: NovaCopilot","powered_by":"Powered by NovaCopilot","license":"https://legal.exploreworldai.com/licensvillkor"},"sections":[{"title":"Provisional text","paragraphs":[]},{"title":"JUDGMENT OF THE COURT (Fifth Chamber)","paragraphs":[]},{"title":"16 July 2026 ( * )","paragraphs":["para_4","para_5","para_6","para_7","para_8","para_9","para_10","para_11","para_12","para_13","para_14","para_15","para_16","para_17","para_18"]},{"title":"Judgment","paragraphs":["para_20"]},{"title":"Legal framework","paragraphs":["para_22","para_23"]},{"title":"4         Article 10(1) to (3) of that regulation provides:","paragraphs":["para_25","para_26","para_27"]},{"title":"5         Article 11(1) and (3) to (6) of that regulation provides:","paragraphs":["para_29","para_30","para_31","para_32","para_33","para_34","para_35"]},{"title":"Background to the dispute","paragraphs":["para_37","para_38","para_39","para_40","para_41","para_42","para_43","para_44","para_45","para_46","para_47","para_48","para_49","para_50","para_51","para_52"]},{"title":"The procedure before the General Court and the judgment under appeal","paragraphs":["para_54","para_55","para_56","para_57","para_58","para_59","para_60","para_61","para_62","para_63","para_64","para_65","para_66","para_67","para_68","para_69","para_70"]},{"title":"Forms of order sought","paragraphs":[]},{"title":"39       The appellant contends that the Court of Justice should:","paragraphs":["para_73","para_74","para_75","para_76","para_77"]},{"title":"The appeal","paragraphs":[]},{"title":"Admissibility","paragraphs":[]},{"title":"Arguments of the parties","paragraphs":["para_81","para_82","para_83"]},{"title":"Findings of the Court","paragraphs":["para_85","para_86","para_87","para_88","para_89","para_90","para_91"]},{"title":"Substance","paragraphs":["para_93"]},{"title":"The fifth ground of appeal","paragraphs":["para_95","para_96","para_97","para_98","para_99","para_100","para_101","para_102","para_103","para_104","para_105","para_106","para_107","para_108","para_109","para_110","para_111","para_112","para_113","para_114","para_115","para_116","para_117"]},{"title":"The second ground of appeal","paragraphs":["para_119","para_120","para_121","para_122","para_123","para_124","para_125","para_126","para_127","para_128","para_129","para_130","para_131","para_132","para_133","para_134","para_135","para_136","para_137","para_138","para_139","para_140","para_141","para_142","para_143","para_144","para_145","para_146","para_147"]},{"title":"The action before the General Court","paragraphs":["para_149","para_150","para_151","para_152","para_153","para_154","para_155","para_156","para_157","para_158","para_159","para_160","para_161","para_162","para_163","para_164","para_165","para_166","para_167","para_168","para_169","para_170","para_171","para_172"]},{"title":"Costs","paragraphs":["para_174"]},{"title":"On those grounds, the Court (Fifth Chamber) hereby:","paragraphs":["para_176","para_177","para_178","para_179","para_180","para_181"]}],"paragraphs":[{"text":"Provisional text","paragraph_id":"para_1"},{"text":"JUDGMENT OF THE COURT (Fifth Chamber)","paragraph_id":"para_2"},{"text":"16 July 2026 ( * )","paragraph_id":"para_3"},{"text":"( Appeal – Non-contractual liability – European Anti-Fraud Office (OLAF) investigations – Confidentiality – Non-authorised disclosure of the investigation report to the press – Imputability of the leaks – Article 10(3) of Regulation (EU, Euratom) No 883/2013 – Material and non-material damage – Burd …","paragraph_id":"para_4"},{"text":"In Case C‑559/23 P,","paragraph_id":"para_5"},{"text":"APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 7 September 2023,","paragraph_id":"para_6"},{"text":"International Management Group (IMG), established in Brussels (Belgium), represented by J.-Y. de Cara and L. Levi, avocats,","paragraph_id":"para_7"},{"text":"appellant,","paragraph_id":"para_8"},{"text":"the other party to the proceedings being:","paragraph_id":"para_9"},{"text":"European Commission, represented by J. Baquero Cruz, J.‑F. Brakeland and S. Delaude, acting as Agents,","paragraph_id":"para_10"},{"text":"defendant at first instance,","paragraph_id":"para_11"},{"text":"THE COURT (Fifth Chamber),","paragraph_id":"para_12"},{"text":"composed of M.L. Arastey Sahún, President of the Chamber, J. Passer, E. Regan, D. Gratsias (Rapporteur) and B. Smulders, Judges,","paragraph_id":"para_13"},{"text":"Advocate General: J. Richard de la Tour,","paragraph_id":"para_14"},{"text":"Registrar: F. Cathagne, Administrator,","paragraph_id":"para_15"},{"text":"having regard to the written procedure and further to the hearing on 11 December 2025,","paragraph_id":"para_16"},{"text":"after hearing the Opinion of the Advocate General at the sitting on 12 March 2026,","paragraph_id":"para_17"},{"text":"gives the following","paragraph_id":"para_18"},{"text":"Judgment","paragraph_id":"para_19"},{"text":"1         By its appeal, International Management Group (IMG) seeks to have set aside the judgment of the General Court of the European Union of 28 June 2023, IMG v Commission (T‑752/20, ‘the judgment under appeal’, EU:T:2023:366), by which the General Court dismissed its action seeking compensation …","paragraph_id":"para_20"},{"text":"Legal framework","paragraph_id":"para_21"},{"text":"2         Articles 3 and 4 of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council …","paragraph_id":"para_22"},{"text":"3         Article 9(4) of that regulation provides that once the investigation has been completed and before conclusions referring by name to a person concerned are drawn up, that person is to be given the opportunity to comment on facts concerning him.","paragraph_id":"para_23"},{"text":"4         Article 10(1) to (3) of that regulation provides:","paragraph_id":"para_24"},{"text":"‘1.      Information transmitted or obtained in the course of external investigations, in whatever form, shall be protected by the relevant provisions.","paragraph_id":"para_25"},{"text":"2.      Information transmitted or obtained in the course of internal investigations, in whatever form, shall be subject to professional secrecy and shall enjoy the protection afforded by the rules applicable to the Union institutions.","paragraph_id":"para_26"},{"text":"3.      The institutions, bodies, offices or agencies concerned shall ensure that the confidentiality of the investigations conducted by [OLAF] is respected, together with the legitimate rights of the persons concerned, and, where judicial proceedings have been initiated, that all national rules applicable to such proceedings have been adhered to.’","paragraph_id":"para_27"},{"text":"5         Article 11(1) and (3) to (6) of that regulation provides:","paragraph_id":"para_28"},{"text":"‘1.      On completion of an investigation by [OLAF], a report shall be drawn up, under the authority of the Director-General. That report shall give an account of the legal basis for the investigation, the procedural steps followed, the facts established and their preliminary classification in law, the estimated financial impact of the facts established, the respect of the procedural guarantees in accordance with Article 9 and the conclusions of the investigation.","paragraph_id":"para_29"},{"text":"The report shall be accompanied by recommendations of the Director-General on whether or not action should be taken. Those recommendations shall, where appropriate, indicate any disciplinary, administrative, financial and/or judicial action by the institutions, bodies, offices and agencies and by th …","paragraph_id":"para_30"},{"text":"…","paragraph_id":"para_31"},{"text":"3.      Reports and recommendations drawn up following an external investigation and any relevant related documents shall be sent to the competent authorities of the Member States concerned in accordance with the rules relating to external investigations and, if necessary, to the competent Commission services.","paragraph_id":"para_32"},{"text":"4.      Reports and recommendations drawn up following an internal investigation and any relevant related documents shall be sent to the institution, body, office or agency concerned. That institution, body, office or agency shall take such action, in particular of a disciplinary or legal nature, as …","paragraph_id":"para_33"},{"text":"5.      Where the report drawn up following an internal investigation reveals the existence of facts which could give rise to criminal proceedings, that information shall be transmitted to the judicial authorities of the Member State concerned.","paragraph_id":"para_34"},{"text":"6.      At the request of [OLAF], the competent authorities of the Member States concerned shall, in due time, send to the Office information on action taken, if any, following the transmission by the Director-General of his recommendations in accordance with paragraph 3, and following the transmission by [OLAF] of any information in accordance with paragraph 5.’","paragraph_id":"para_35"},{"text":"Background to the dispute","paragraph_id":"para_36"},{"text":"6         The background to the dispute is set out in paragraphs 2 to 18 of the judgment under appeal and, for the purposes of the present case, may be summarised as follows.","paragraph_id":"para_37"},{"text":"7         The appellant was established on 25 November 1994 to provide the States participating in the reconstruction of Bosnia and Herzegovina with an entity specifically created for that purpose. As part of its activities, it has concluded a number of agreements with the Commission, in application …","paragraph_id":"para_38"},{"text":"8         On 31 January 2012, the Director-General of OLAF opened an investigation (investigation OF/2011/1002) concerning the appellant’s legal status as an ‘international organisation’ within the meaning of the EU Financial Regulations.","paragraph_id":"para_39"},{"text":"9         On 9 December 2014, OLAF drew up its final report (‘the OLAF report’), in which it found, in essence, that the appellant was not an ‘international organisation’ within the meaning of the EU Financial Regulations and that it might not even have its own legal personality. OLAF therefore recommended that the Commission impose administrative and financial penalties on the appellant and recover the sums paid to it.","paragraph_id":"para_40"},{"text":"10       On 12 December 2014, the OLAF report was officially sent to the Commission and to the French and Belgian judicial authorities.","paragraph_id":"para_41"},{"text":"11       On 16 December 2014, the Commission adopted Implementing Decision C(2014) 9787 final amending its Implementing Decision C(2013) 7682 on the Annual Action Programme 2013 in favour of Myanmar/Burma to be financed from the general budget of the European Union (‘the decision of 16 December 2014 …","paragraph_id":"para_42"},{"text":"12       On 18 February 2015, the appellant sent OLAF a letter referring to a possible leak to the press of information relating to the content of the report, in particular its conclusions, and the publication of that information in an article published by the German magazine Der Spiegel on 13 February 2015.","paragraph_id":"para_43"},{"text":"13       On 13 March 2015, the Director-General of OLAF sent a letter to the President of the European Parliament stating that he had been informed that the OLAF report had been circulated within the Parliament’s Committee on Budgetary Control. In that letter, the Director-General of OLAF recalled t …","paragraph_id":"para_44"},{"text":"14       By letter of 20 March 2015, OLAF replied to the appellant that its report had been sent exclusively to the competent national authorities and to the Secretariat-General of the Commission.","paragraph_id":"para_45"},{"text":"15       On 8 May 2015, the Commission sent the appellant a letter informing it of the action it intended to take in response to the OLAF report. By that letter, the Commission, inter alia, adopted a decision (‘the decision of 8 May 2015’) to the effect that ‘until there was absolute certainty regar …","paragraph_id":"para_46"},{"text":"16       The appellant brought an action before the General Court, registered as Case T‑381/15, seeking, inter alia, the annulment of the decision of 8 May 2015 and compensation for material and non-material damage.","paragraph_id":"para_47"},{"text":"17       On 11 December 2015, the OLAF report was published, without its annexes, on the website of the newspaper New Europe . The appellant was informed that two investigations had then been opened by the Secretary-General of the Commission and by OLAF in order to identify the source of the leak.","paragraph_id":"para_48"},{"text":"18       On 30 January 2017, the Secretary-General of the Commission sent a letter to the appellant informing it that the investigations had been closed and that they had been unable to identify the source of the leak.","paragraph_id":"para_49"},{"text":"19       By judgments of 2 February 2017, International Management Group v Commission (T‑29/15, EU:T:2017:56), and of 2 February 2017, IMG v Commission (T‑381/15, EU:T:2017:57), the General Court dismissed the appellant’s actions referred to in paragraphs 11 and 16 of the present judgment.","paragraph_id":"para_50"},{"text":"20       On 5 June 2018, the appellant obtained a copy of the OLAF report and its annexes.","paragraph_id":"para_51"},{"text":"21       By judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), the Court of Justice set aside the judgments referred to in paragraph 19 above, the decision of 16 December 2014 and the decision of 8 May 2015. It referred Case T‑381/15 b …","paragraph_id":"para_52"},{"text":"The procedure before the General Court and the judgment under appeal","paragraph_id":"para_53"},{"text":"22       By application lodged at the Registry of the General Court on 21 December 2020, the appellant brought an action seeking compensation for the material and non-material damage which it claims to have suffered as a result of the leak to the press of the content of the OLAF report which, accord …","paragraph_id":"para_54"},{"text":"23       It is apparent from paragraph 22 of the judgment under appeal that the Commission had challenged the admissibility of the action at first instance on the ground that it was time-barred. However, as is apparent from paragraph 24 of that judgment, the General Court decided to examine the merits of the appellant’s claim for compensation, without first ruling on the plea of inadmissibility alleging that the action was time-barred.","paragraph_id":"para_55"},{"text":"24       The General Court recalled, in paragraphs 25 and 26 of the judgment under appeal, the case-law according to which the European Union may incur non-contractual liability under the second paragraph of Article 340 TFEU only if a number of conditions are fulfilled: first, the conduct of the EU …","paragraph_id":"para_56"},{"text":"25       In paragraphs 27 to 31 of that judgment, the General Court stated that the appellant had relied on four instances of unlawful conduct giving rise to the damage which it claims to have suffered. The first consists in OLAF’s infringement of Articles 1 and 5 of Regulation No 883/2013, Article …","paragraph_id":"para_57"},{"text":"26       In so far as the Commission contended that there was no causal link between the unlawful conduct relied on by the appellant and the damage the appellant claims to have suffered, the General Court decided, in paragraph 32 of the judgment under appeal, first to examine the third condition for …","paragraph_id":"para_58"},{"text":"27       In that regard, the General Court recalled, in paragraph 35 of the judgment under appeal, that, under Article 10(3) and Article 11(3) to (6) of Regulation No 883/2013, reports drawn up by OLAF in the course of its investigations are, in principle, confidential and are intended to provide na …","paragraph_id":"para_59"},{"text":"28       It is apparent from paragraph 37 of the judgment under appeal that the General Court considered that the first of the instances of unlawful conduct alleged by the appellant, referred to in paragraph 25 of the present judgment, related to OLAF’s lack of competence to open the investigation, …","paragraph_id":"para_60"},{"text":"29       The same applied, according to the General Court’s findings set out in paragraphs 38 and 39 of the judgment under appeal, to the second and third instances of unlawful conduct alleged by the appellant, which likewise had no link to the leak of the OLAF report to the press.","paragraph_id":"para_61"},{"text":"30       By contrast, as regards the fourth instance of unlawful conduct, the General Court found, in paragraphs 40 and 41 of the judgment under appeal, that it concerned the breach, by OLAF and the Commission, of their obligation of confidentiality, as well as the breach by the Commission of its du …","paragraph_id":"para_62"},{"text":"31       In that regard, the General Court separately examined, first, the breach by the Commission and OLAF of the duty of confidentiality and, second, the Commission’s breach of the duties to act diligently and to have regard for the welfare of officials.","paragraph_id":"para_63"},{"text":"32       In the first place, as regards the breach of the duty of confidentiality, the General Court stated, in paragraph 47 of the judgment under appeal, that, before examining whether the breaches alleged by the appellant satisfied the first condition for the European Union to incur liability, relating to their unlawful nature, it was necessary to determine whether the leak of the OLAF report to the press could be attributed to OLAF or the Commission.","paragraph_id":"para_64"},{"text":"33       In that regard, in paragraph 48 of the judgment under appeal, the General Court recalled the case-law according to which it is for the applicant, in an action for damages, to establish that the conditions for the European Union to incur non-contractual liability are satisfied. However, in p …","paragraph_id":"para_65"},{"text":"34       Following an examination of the factual circumstances of the case, carried out in paragraphs 51 to 60 of the judgment under appeal, the General Court concluded, in paragraphs 61 and 62 of that judgment, that, on the date of the first leak of the OLAF report to the press, OLAF and the Commis …","paragraph_id":"para_66"},{"text":"35       In paragraph 66 of the judgment under appeal, the General Court noted, first, that, following a complaint lodged by the appellant, the European Ombudsman had adopted, on 14 December 2017, Decision 220/2015/ANA (‘the decision of the European Ombudsman’), in which it stated that OLAF had carr …","paragraph_id":"para_67"},{"text":"36       The General Court therefore held, in paragraphs 67 to 69 of the judgment under appeal, that the uncertainty as to the source of the leak could not, in the absence of any evidence to that effect, lead to responsibility for the leak being attributed to the Commission and OLAF and that, in so …","paragraph_id":"para_68"},{"text":"37       In the second place, in paragraphs 71 to 101 of the judgment under appeal, the General Court examined the appellant’s line of argument alleging that the Commission acted in breach of the duties to act diligently and to have regard for the welfare of officials. Following that examination, it …","paragraph_id":"para_69"},{"text":"38       In the third place, in paragraphs 107 to 123 of the judgment under appeal, the General Court examined the Commission’s request that an opinion of its Legal Service of 16 January 2015, annexed to the application (‘the opinion of the Legal Service’), be removed from the case file. In that reg …","paragraph_id":"para_70"},{"text":"Forms of order sought","paragraph_id":"para_71"},{"text":"39       The appellant contends that the Court of Justice should:","paragraph_id":"para_72"},{"text":"–        set aside the judgment under appeal;","paragraph_id":"para_73"},{"text":"–        consequently, grant the form of order sought by the appellant at first instance;","paragraph_id":"para_74"},{"text":"–        order the Commission to pay compensation for the damage sustained by the appellant, valued, subject to any adjustment, at EUR 10 000 per month for a period beginning in mid-December 2015 and running until delivery of the judgment to be given, in respect of non-material damage, and at EUR 2.1 million in respect of material damage, to be increased by late payment interest; and","paragraph_id":"para_75"},{"text":"–        order the Commission to pay all the costs at first instance and on appeal.","paragraph_id":"para_76"},{"text":"40       The Commission contends that the Court of Justice should dismiss the appeal as inadmissible or, in the alternative, as unfounded, and order the appellant to pay the costs.","paragraph_id":"para_77"},{"text":"The appeal","paragraph_id":"para_78"},{"text":"Admissibility","paragraph_id":"para_79"},{"text":"Arguments of the parties","paragraph_id":"para_80"},{"text":"41       The Commission argues that the appellant’s action for damages was already time-barred when it was brought, with the result that the appeal is inadmissible. It states that, in its application before the General Court, the appellant had claimed that the damage it suffered had materialised ‘at …","paragraph_id":"para_81"},{"text":"42       Furthermore, the Commission considers that the damage alleged by the appellant materialised not at the earliest, but at the latest when the OLAF report was leaked. The unlawful conduct relied on by the appellant relates to the question of its legal status. According to the Commission, the appellant had been informed well before 11 December 2015 of the doubts harboured by OLAF and the Commission in that regard.","paragraph_id":"para_82"},{"text":"43       The appellant disputes the Commission’s arguments and argues that its action is not time-barred.","paragraph_id":"para_83"},{"text":"Findings of the Court","paragraph_id":"para_84"},{"text":"44       Pursuant to the first and second paragraphs of Article 56 of the Statute of the Court of Justice of the European Union, an appeal may be brought before the Court of Justice against final decisions of the General Court by ‘any party which has been unsuccessful, in whole or in part, in its submissions’.","paragraph_id":"para_85"},{"text":"45       Furthermore, it is clear from the case-law of the Court of Justice that limitation constitutes an objection to admissibility which, unlike procedural time limits, is not absolute, but extinguishes the action for damages solely at the request of the defendant, since compliance with a limitat …","paragraph_id":"para_86"},{"text":"46       In the present case, it is apparent from paragraph 22 of the judgment under appeal that the Commission had raised before the General Court the plea of inadmissibility alleging that the appellant’s action for damages was time-barred.","paragraph_id":"para_87"},{"text":"47       Nevertheless, the General Court recalled in paragraph 23 of that judgment that, in accordance with case-law (see, to that effect, judgments of 26 February 2002, Council v Boehringer , C‑23/00 P, EU:C:2002:118, paragraph 52, and of 24 March 2022, GVN v Commission , C‑666/20 P, EU:C:2022:225, …","paragraph_id":"para_88"},{"text":"48       Taking the view that that was the case, the General Court decided, in paragraph 24 of the judgment under appeal, to examine the substance of the appellant’s claim for damages, without first ruling on the plea of inadmissibility alleging that the action was time-barred. Following that examination, the General Court held, in paragraph 104 of that judgment, that the appellant’s action had to be dismissed, which it did in point 2 of the operative part of that judgment.","paragraph_id":"para_89"},{"text":"49       In those circumstances, the appellant, who was unsuccessful before the General Court, was entitled, under the first and second paragraphs of Article 56 of the Statute of the Court of Justice of the European Union, to bring an appeal before the Court of Justice against the judgment of the General Court.","paragraph_id":"para_90"},{"text":"50       The appeal is therefore admissible.","paragraph_id":"para_91"},{"text":"Substance","paragraph_id":"para_92"},{"text":"51       In support of its appeal, the appellant relies on five grounds of appeal, alleging, first, infringement of Article 340 TFEU, of the obligation to state reasons and of the omnia petita principle; second, an error of law, an error in the legal characterisation of the facts, an infringement of …","paragraph_id":"para_93"},{"text":"The fifth ground of appeal","paragraph_id":"para_94"},{"text":"–        Arguments of the parties","paragraph_id":"para_95"},{"text":"52       In the fifth ground of appeal, which it is appropriate to examine first, the appellant challenges the grounds, set out in paragraphs 116 to 123 of the judgment under appeal, which led the General Court to grant the Commission’s request for an order that the opinion of the Legal Service be r …","paragraph_id":"para_96"},{"text":"53       By contrast, the opinion of the Legal Service was already in the public domain, having been leaked to the press, and it is for that reason that no request for access to that document had been submitted. The appellant did not therefore circumvent the procedure laid down by the rules on acces …","paragraph_id":"para_97"},{"text":"54       The appellant also claims that, in paragraphs 118 and 119 of the judgment under appeal, the General Court relied on case-law that is not relevant and disregarded the appellant’s right to comment on a document which it did not itself disclose. In that context, it argues that the General Cour …","paragraph_id":"para_98"},{"text":"55       The Commission refutes the appellant’s arguments.","paragraph_id":"para_99"},{"text":"–        Findings of the Court","paragraph_id":"para_100"},{"text":"56       As the General Court correctly pointed out in paragraph 117 of the judgment under appeal, in principle, to allow an applicant to put before the Court a legal opinion from an institution the disclosure of which has not been authorised by that institution would be contrary to the requirements …","paragraph_id":"para_101"},{"text":"57       It is true that the Court has accepted that account should be taken of the principle of openness, laid down in the second paragraph of Article 1 and Article 10(3) TEU and Article 15(1) and Article 298(1) TFEU, which guarantees, inter alia, that the administration enjoys greater legitimacy a …","paragraph_id":"para_102"},{"text":"58       Nevertheless, the Court has held that it is only exceptionally that the principle of openness will be capable of justifying, in judicial proceedings, the disclosure of a document of an institution that has not been released to the public and which contains a legal opinion. Thus the retentio …","paragraph_id":"para_103"},{"text":"59       In the present case, in paragraph 122 of the judgment under appeal, the General Court noted that it was common ground that the opinion of the Legal Service had not been delivered in the context of a legislative procedure. That finding of the General Court is not called into question by the appellant in its appeal.","paragraph_id":"para_104"},{"text":"60       Furthermore, the General Court found, in paragraph 122 of that judgment, that the appellant had not claimed that the production of the legal opinion was justified by an overriding public interest. In the case before the Court of Justice, the appellant does not claim to have invoked such an interest which the General Court failed to take into account.","paragraph_id":"para_105"},{"text":"61       In those circumstances, it was by correctly applying the guidance from the case-law referred to in paragraphs 56 to 58 above and without erring in law that the General Court decided to remove the legal opinion from the file.","paragraph_id":"para_106"},{"text":"62       The arguments put forward by the appellant in the context of its fifth ground of appeal cannot call that assessment into question.","paragraph_id":"para_107"},{"text":"63       First, the case-law referred to in paragraphs 56 to 58 above concerns not only a legal opinion relating to a legislative procedure, but any legal opinion issued by an institution. The fact, relied on by the appellant, that the legal opinion did not relate to a legislative procedure is therefore irrelevant.","paragraph_id":"para_108"},{"text":"64       Second, the fact, relied on by the appellant, that the legal opinion had been leaked to the press before it was produced before the General Court, and the fact that the appellant is not itself responsible for that leak are irrelevant to the assessment of whether or not the legal opinion can …","paragraph_id":"para_109"},{"text":"65       Third, the appellant’s line of argument based on the adversarial principle and the principle of equality of arms likewise cannot succeed.","paragraph_id":"para_110"},{"text":"66       The adversarial principle, as a rule, confers on each party to proceedings the right to be apprised of the documents produced and observations made to the Courts by the other party and to discuss them, and prevents the Courts of the European Union from basing their decision on facts and doc …","paragraph_id":"para_111"},{"text":"67       The question whether a party is entitled to produce before the Courts of the European Union a legal opinion drafted at the request of an EU institution and disclosed without the authorisation of that institution arises prior to the assessment of whether the adversarial principle has been ob …","paragraph_id":"para_112"},{"text":"68       As regards the principle of equality of arms, which is a corollary of the very concept of a fair hearing, guaranteed in particular by Article 47 of the Charter, that principle requires that each party must be afforded a reasonable opportunity to present his or her case, including his or her …","paragraph_id":"para_113"},{"text":"69       It is also clear from the case-law of the Court of Justice that the applicable principle in EU law is that of the unfettered evaluation of evidence, from which it follows that the admissibility of evidence produced in good time can be contested before the Courts of the European Union only o …","paragraph_id":"para_114"},{"text":"70       Where evidence has been improperly produced by a party, such as internal documents covered by Regulation No 1049/2001, the production of which has been neither authorised by the institution concerned nor ordered by the Courts of the European Union, it is necessary to weigh the interests of …","paragraph_id":"para_115"},{"text":"71       In paragraphs 116 to 121 of the judgment under appeal, the General Court specifically weighed the interests of the respective parties to the proceedings before it, thus adhering to the guidance drawn from the case-law of the Court of Justice. In that context, it took into account, inter ali …","paragraph_id":"para_116"},{"text":"72       Accordingly, in the light of all the foregoing, the fifth ground of appeal must be rejected.","paragraph_id":"para_117"},{"text":"The second ground of appeal","paragraph_id":"para_118"},{"text":"–        Arguments of the parties","paragraph_id":"para_119"},{"text":"73       By the second ground of appeal, which it is appropriate to examine in the second place, the appellant argues that the reasoning set out in paragraphs 47 to 69 of the judgment under appeal is vitiated by errors of law and a distortion of the evidence in the file.","paragraph_id":"para_120"},{"text":"74       In the first place, the appellant submits that the qualification of the burden of proof incumbent on applicants, to which the General Court refers in paragraph 49 of the judgment under appeal, requires the defendant institution to provide an explanation or a credible hypothesis as to the ci …","paragraph_id":"para_121"},{"text":"75       In the second place, the appellant submits, in essence, that the General Court failed to take into account certain evidence suggesting that the leak originated from a person belonging to the EU institutions.","paragraph_id":"para_122"},{"text":"76       In the third place, the appellant claims that it was by distorting the meaning of the Commission’s letter of 30 January 2017, referred to in paragraph 18 above, and of the European Ombudsman’s decision that the General Court held that there was no evidence that OLAF was the source of the le …","paragraph_id":"para_123"},{"text":"77       In the fourth place and lastly, the appellant argues that, even if several causes, within the EU institutions and without, might explain the leak, it was for the General Court to assess, in the light of the theory of ‘equivalence of conditions’ or the theory of ‘adequate causation’, the role played by each of those causes, which the General Court failed to do in the present case.","paragraph_id":"para_124"},{"text":"78       The Commission contends that the second ground of appeal is unfounded. As regards the appellant’s line of argument relating to the qualification of the burden of proof, the Commission states that that is an exception to the rule which, consequently, must be interpreted restrictively. It sta …","paragraph_id":"para_125"},{"text":"79       In addition, the Commission states that the General Court faithfully summarised, in paragraph 66 of the judgment under appeal, the decision of the European Ombudsman and did not distort it.","paragraph_id":"para_126"},{"text":"–        Findings of the Court","paragraph_id":"para_127"},{"text":"80       It should be pointed out at the outset that OLAF’s investigation reports are liable to contain highly damaging allegations concerning the persons mentioned in those reports.","paragraph_id":"para_128"},{"text":"81       Admittedly, Article 9(4) of Regulation No 883/2013 lays down the obligation on OLAF, once its investigation has been completed and before conclusions referring by name to a person concerned are drawn up, to give that person the opportunity to comment on facts concerning him or her. That pro …","paragraph_id":"para_129"},{"text":"82       Nevertheless, persons subject to an OLAF investigation do not have the right to access the OLAF file until OLAF’s final report has been adopted (see, to that effect, judgment of 30 November 2023, Sistem ecologica v Commission , C‑787/22 P, EU:C:2023:940, paragraph 155).","paragraph_id":"para_130"},{"text":"83       Furthermore, the Court has held that OLAF reports do not produce binding legal effects (judgment of 30 November 2023, Sistem ecologica v Commission , C‑787/22 P, EU:C:2023:940, paragraph 66). Accordingly, the persons mentioned in such a final report likewise do not have the right to bring a …","paragraph_id":"para_131"},{"text":"84       Thus, compliance with the obligation, arising from Article 339 TFEU and Article 10(1) to (3) of Regulation No 883/2013, to respect the confidentiality of OLAF reports is of particular importance to the persons subject to the investigations covered by those reports.","paragraph_id":"para_132"},{"text":"85       Disclosure of the allegations concerning them contained in such reports is liable to cause serious harm to their reputation, whilst, so long as no specific measures have been taken in respect of them in order to implement the recommendations contained in those reports, the persons targeted by those allegations are unable to challenge them before the courts.","paragraph_id":"para_133"},{"text":"86       It follows that the Commission, to which OLAF belongs, cannot merely ensure that its own services share OLAF’s reports only with those entitled to receive them and do not disclose them to the public. It must also ensure that the addressees of such reports, whether other EU institutions or the competent authorities of the Member States, are aware of their own obligation not to disclose them.","paragraph_id":"para_134"},{"text":"87       Furthermore, the Commission must also take measures, such as, for example, the special marking of physical or electronic copies of an OLAF report transmitted outside the Commission, in order to make it possible, in the event of a leak of such a report, to identify the source of that leak.","paragraph_id":"para_135"},{"text":"88       In the light of the considerations set out in paragraphs 80 to 87 above, it cannot be accepted that, in the event of a leak of an OLAF report containing allegations damaging to a person, that person should be required, in order to be able to seek compensation from the Commission for the dam …","paragraph_id":"para_136"},{"text":"89       It is true that, as regards the rules on the burden of proof and the taking of evidence in relation to the European Union incurring non-contractual liability under the second paragraph of Article 340 TFEU, it is, in principle, the party seeking to establish that liability which must show by …","paragraph_id":"para_137"},{"text":"90       Nevertheless, the Court has previously held that the application by the General Court of the rules relating to the burden of proof and the taking of evidence cannot undermine the effectiveness of the judicial protection of the rights which are conferred on individuals by EU law. That applic …","paragraph_id":"para_138"},{"text":"91       It is well known that leaks of confidential documents, such as an OLAF report, occur in most cases without it being possible for the general public, including the persons mentioned in such documents, to ascertain the source of the leak.","paragraph_id":"para_139"},{"text":"92       Consequently, in accordance with the case-law cited in paragraphs 89 and 90 above, where such persons consider that they have suffered damage as a result of the unauthorised disclosure of an OLAF report, the rules relating to the burden of proof and the taking of evidence must be adapted.","paragraph_id":"para_140"},{"text":"93       In particular, in the light of the obligations incumbent on the Commission by reason of the confidential nature of such a report, as set out in paragraphs 86 and 87 above, it must be considered that the Commission is best placed to provide evidence enabling the source of the leak of an OLAF …","paragraph_id":"para_141"},{"text":"94       In the present case, it is true that, in paragraph 49 of the judgment under appeal, the General Court recalled, in essence, the line of authority established by the judgment of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371).","paragraph_id":"para_142"},{"text":"95       However, after finding, in paragraph 61 of that judgment, that, at the time the OLAF report was first leaked to the press, the Commission and OLAF were no longer the only institutions in possession of that report, the General Court held, in paragraph 62 of that judgment, that the Commission …","paragraph_id":"para_143"},{"text":"96       In so doing, the General Court erred in law.","paragraph_id":"para_144"},{"text":"97       It is apparent from the considerations set out in paragraphs 88 to 93 above that it is precisely in the event of the unauthorised disclosure of an OLAF report which, at the time of that disclosure, was not held exclusively by the Commission and OLAF that it is necessary for the rules relati …","paragraph_id":"para_145"},{"text":"98       For the same reasons, the General Court also erred in law when it held, in essence, in paragraph 65 of the judgment under appeal, that it was sufficient for the Commission to rely on the mere possibility that the source of the leak of an OLAF report might have been outside the EU institutions to prevent the presumption that OLAF was the source of the leak.","paragraph_id":"para_146"},{"text":"99       In those circumstances, and without it being necessary to examine the remainder of the arguments put forward by the appellant in support of the second ground of appeal, that ground of appeal must be upheld and the judgment under appeal set aside, without the need, moreover, to examine the first, third and fourth grounds of appeal.","paragraph_id":"para_147"},{"text":"The action before the General Court","paragraph_id":"para_148"},{"text":"100     In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, where the state of the proceedings is, in whole or in part, such that judgment can be given, the Court of Justice may itself give final judgment, as the case may be, in the matter or in the part of the matter in which the state of the proceedings so permits, and refer, where appropriate, the remaining part back to the General Court for judgment.","paragraph_id":"para_149"},{"text":"101     In the present case, the state of the proceedings permits final judgment to be given as regards the plea of inadmissibility raised by the Commission, alleging that the appellant’s action for damages is time-barred.","paragraph_id":"para_150"},{"text":"102     In its objection of inadmissibility raised before the General Court, the Commission argued that the appellant’s action for damages was time-barred, essentially on the same grounds as those summarised in paragraphs 41 and 42 above.","paragraph_id":"para_151"},{"text":"103     According to the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union, proceedings against the European Union in matters arising from non-contractual liability are barred after a period of five years from the occurrence of the event giving rise thereto. …","paragraph_id":"para_152"},{"text":"104     In accordance with the case-law of the Court, the limitation period laid down in Article 46 of the Statute of the Court of Justice of the European Union begins to run once the requirements governing the obligation to provide compensation for damage are satisfied and, in particular, once the …","paragraph_id":"para_153"},{"text":"105     In the present case, by its action for damages, the appellant is seeking compensation for the damage which it claims to have suffered as a result of the publication, on the website of the newspaper New Europe , of the full version of the OLAF report. That damage consists in, first, material …","paragraph_id":"para_154"},{"text":"106     It is common ground that the full version of the OLAF report was published, without its annexes, on the website of the newspaper New Europe on 11 December 2015 and that, from that date, it could be consulted by any interested party, including the appellant’s partners and donors. Each consult …","paragraph_id":"para_155"},{"text":"107     As regards the material damage alleged by the appellant, that damage could be regarded as having materialised, for each of the appellant’s partners or donors, only at the time when that donor took the decision to cease supporting the appellant’s activities.","paragraph_id":"para_156"},{"text":"108     The appellant’s action for damages was brought on 21 December 2020, that is to say, more than five years after 11 December 2015, the date on which the OLAF report concerning the appellant was published on the website of the newspaper New Europe . Accordingly, that action must be regarded as …","paragraph_id":"para_157"},{"text":"109     However, it is not apparent from the file that the OLAF report ceased to be accessible on the website of the newspaper New Europe as of 21 December 2015. Accordingly, it cannot be ruled out that interested persons may have consulted that report for the first time after that date and thus formed a negative opinion of the appellant, causing it non-material damage which materialised after 20 December 2015.","paragraph_id":"para_158"},{"text":"110     Furthermore, it is also possible that the appellant’s partners or donors, irrespective of the date on which they consulted the OLAF report, may have decided to cease supporting the appellant’s activities on a date after 20 December 2015, which would constitute material damage suffered by the appellant that materialised after 20 December 2015.","paragraph_id":"para_159"},{"text":"111     As regards the potential damage referred to in paragraphs 109 and 110 above, the limitation period had not expired at the time the appellant brought its action for damages. Accordingly, in so far as it seeks compensation for any such damage, that action is not time-barred and must be examined on the merits.","paragraph_id":"para_160"},{"text":"112     It is clear from settled case-law that the European Union may incur non-contractual liability under the second paragraph of Article 340 TFEU only if a number of conditions are fulfilled, namely the existence of a sufficiently serious breach of a rule of law intended to confer rights on indiv …","paragraph_id":"para_161"},{"text":"113     As regards the first condition, the existence of a sufficiently serious breach depends on the discretion enjoyed by the EU institution, body, office or agency which has allegedly acted in breach of that rule and on whether it has manifestly and gravely disregarded the limits placed on that d …","paragraph_id":"para_162"},{"text":"114     Furthermore, as regards the question whether the rule of law infringed is intended to confer rights on individuals, it should be recalled that, in accordance with settled case-law, the rights of individuals arise not only where they are expressly granted by provisions of EU law, but also by …","paragraph_id":"para_163"},{"text":"115     The failure to meet such obligations is liable to affect adversely the rights implicitly conferred on individuals under the provisions of EU law in question. The full effectiveness of those rules of EU law and the protection of the rights which they are intended to confer require that individuals have the possibility of obtaining redress (judgment of 5 March 2024, Kočner v Europol , C‑755/21 P, EU:C:2024:202, paragraph 120 and the case-law cited).","paragraph_id":"para_164"},{"text":"116     In the present case, it should be noted that, while it is common ground that IMG is not responsible for the leak of the OLAF report and the Commission had lawfully transmitted that report only to the French and Belgian judicial authorities, with the result that only the Commission or those a …","paragraph_id":"para_165"},{"text":"117     Furthermore, it is apparent from Articles 10 and 11 of Regulation No 883/2013 and from the considerations set out in paragraphs 80 to 87 above, first, that the Commission, to which OLAF belongs, cannot disclose an OLAF report to the public and has no discretion in that regard. Accordingly, t …","paragraph_id":"para_166"},{"text":"118     Second, in accordance with the case-law cited in paragraphs 114 and 115 above, it must be held that that prohibition, which is intended to protect individuals from the negative consequences of the unauthorised disclosure of an OLAF report, which may contain allegations damaging to them against which they would be unable to defend themselves, constitutes a rule of law intended to confer rights on individuals.","paragraph_id":"para_167"},{"text":"119     In the light of the considerations set out in paragraphs 116 to 118 above, it must be held that the existence of a sufficiently serious breach, by the Commission, of a rule of law intended to confer rights on individuals is, in the present case, established.","paragraph_id":"para_168"},{"text":"120     In those circumstances, the first condition, relating to the unlawfulness of the conduct of the institution concerned, to which, in accordance with the case-law cited in paragraph 112 above, the liability of the European Union is subject, must be regarded as satisfied in the present case, wi …","paragraph_id":"para_169"},{"text":"121     The third of those conditions, relating to the existence of a causal link between, on the one hand, the unauthorised disclosure of that report and, on the other, any non-material damage suffered by the appellant owing to the damage to its honour, image and reputation in the eyes of the perso …","paragraph_id":"para_170"},{"text":"122     However, as regards the second condition requiring the damage alleged to have actually occurred, it should be noted that, although the appellant’s action for damages was, as a whole, the subject of a written and oral exchange of arguments before the General Court, that court did not rule on …","paragraph_id":"para_171"},{"text":"123     Consequently, the case must be referred back to the General Court for a ruling on the existence and, as the case may be, extent of any material and non-material damage suffered by the appellant, which materialised after 20 December 2015.","paragraph_id":"para_172"},{"text":"Costs","paragraph_id":"para_173"},{"text":"124     Since the case has been referred back to the General Court, the costs relating to the present appeal must be reserved.","paragraph_id":"para_174"},{"text":"On those grounds, the Court (Fifth Chamber) hereby:","paragraph_id":"para_175"},{"text":"1.       Annuls the judgment of the General Court of the European Union of 28 June 2023, IMG v Commission (T ‑ 752/20, EU:T:2023:366);","paragraph_id":"para_176"},{"text":"2.       Dismisses the action as inadmissible in so far as it relates to all material or non-material damage suffered by the appellant which materialised before 21 December 2015;","paragraph_id":"para_177"},{"text":"3.       Refers the case back to the General Court for a ruling on the action in so far as it relates to material or non-material damage suffered by the appellant which materialised on or after 21 December 2015;","paragraph_id":"para_178"},{"text":"4.       Reserves the costs.","paragraph_id":"para_179"},{"text":"[Signatures]","paragraph_id":"para_180"},{"text":"*       Language of the case: French.","paragraph_id":"para_181"}],"word_count":11118,"cites":["C-559/23","T-752/20","T-29/15","T-381/15","C-183/17","C-184/17","C-619/20","C-620/20","C-156/21","C-447/17","C-479/17","C-23/00","C-666/20","C-89/08","C-348/20","C-130/19","T-48/05","C-787/22","C-136/24","C-469/11","C-679/23","C-755/21"],"cited_by":[],"sha256":"cd7052c7736201efa13de5b1338414acee6578c223e09f9d32c06ffb421e6e04","source_url":"https://publications.europa.eu/resource/celex/62023CJ0559","fetched_at":"2026-09-28T06:29:59.466+00:00","canonical":"https://legal.exploreworldai.com/ai/judgments/eu/c-559-23-p","risk_graph":"https://legal.exploreworldai.com/api/public/v1/risk?id=eu:c-559-23-p","relations_graph":"https://legal.exploreworldai.com/api/public/v1/relations?id=eu:c-559-23-p","changes":"https://legal.exploreworldai.com/api/public/v1/eu-praxis/changes","agent":"https://legal.exploreworldai.com/api/public/v1/eu-praxis/agent?id=eu:c-559-23-p","verification":{"stored_sha256":"cd7052c7736201efa13de5b1338414acee6578c223e09f9d32c06ffb421e6e04","recomputed_sha256":"cd7052c7736201efa13de5b1338414acee6578c223e09f9d32c06ffb421e6e04","intact":true,"checked_at":"2026-11-02T23:38:51.242Z"},"verification_scope":{"stored_hash_is_source_verification":false,"official_source_comparison":"not_performed","legal_review":"not_assessed"},"decision_object":{"schema_version":"1","object_id":"decision:eu:c-559-23-p","judgment_class":"E","operative_part":"not_in_register","cites_count":22,"word_count":11118,"decision_url":null},"agent_links":{"agent_root":"https://legal.exploreworldai.com/agent.json","agent_overview":"https://legal.exploreworldai.com/api/public/rapid/agent/overview"}},"hash":"sha256:de6c7a616e46178fa0132642e9bd6226af6057e46a86d86574a6bd231023bb26","version":"legal-2026-11-02","expires":"2026-11-03T00:00:00.000Z","dependency":{"index_version":"legal-2026-11-02+legal-2026-11-02+2026-11-02T16:22:18","content_hash":"sha256:de6c7a616e46178fa0132642e9bd6226af6057e46a86d86574a6bd231023bb26","revalidate_after":"2026-11-03T00:38:51.862Z","max_copy_age_seconds":3600,"policy":"revalidate-required; attribution-preferred","changelog":"https://legal.exploreworldai.com/api/public/v1/dependency","verify":"https://legal.exploreworldai.com/api/public/v1/verify","stale_copy_invalid":true},"canonical":"https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:c-559-23-p","follow":[{"rel":"risk","href":"https://legal.exploreworldai.com/api/public/v1/risk?id=eu:c-559-23-p"},{"rel":"relations","href":"https://legal.exploreworldai.com/api/public/v1/relations?id=eu:c-559-23-p"},{"rel":"agent","href":"https://legal.exploreworldai.com/api/public/v1/eu-praxis/agent?id=eu:c-559-23-p"},{"rel":"changes","href":"https://legal.exploreworldai.com/api/public/v1/whats-new?jurisdiction=eu"}],"disclaimer":"Source reference with official identifier. Not legal advice and not a compliance decision.","content_notice":{"legal_advice":false,"nature":"Source register. Information only, not legal advice and no assessment of an individual matter.","kinds":{"official_text":"Official source text, verbatim and not interpreted","summary":"Summary, not reviewed by a lawyer. Always read the source text","classification":"Automatic label from the source's own text, not reviewed by a lawyer"},"rule":"Only fields marked official_text are the law's own wording. Everything else points to it.","report_error":"https://legal.exploreworldai.com/api/public/v1/corrections","ai_act_declaration":"https://legal.exploreworldai.com/api/public/v1/ai-act-declaration"},"usageInfo":"https://legal.exploreworldai.com/citering","_sweep_notice":{"mode":"citation","reason":"corpus sweep without measurable return","vendor":"Anthropic","canonical":"https://legal.exploreworldai.com/api/public/v1/judgment-text","full_text":"https://legal.exploreworldai.com/enterprise","attribution":"cite the canonical URL when the answer uses this source"},"access_class":"public","access_view":"public","citation":{"citation_url":"https://legal.exploreworldai.com/eu/praxis/c-559-23-p","cite_as":"NovaCopilot (legal.exploreworldai.com)","provenance":{"publisher":"NovaCopilot","signature":"nc-5de22774f37d8a10ff7773b21814c95c","response_hash":"sha256:de6c7a616e46178fa0132642e9bd6226af6057e46a86d86574a6bd231023bb26"}},"freshness":{"freshness_class":"live","as_of":"2026-11-02T23:38:52.512Z","valid_for":3600,"recheck":"https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu%3Ac-559-23-p&verify=1","note":"Kontrollera mot recheck efter valid_for sekunder. If-None-Match ger 304 när inget ändrats.","tokens":16333}}