T-200/25

ORDER OF THE GENERAL COURT (Fifth Chamber) 14 January 2026 (*) ( Action for annulment – Protection of the European Union’s financial interests – Administrative investigation conducted by OLAF to support or complement the EPPO’s activity – Article 101(3)(c) of Regulation (EU) 2017/1939 – OLAF Final Report – Act not open to challenge – Inadmissibility ) In Case T‑200/25, Giftrans SRL, established in Valea Drăganului (Romania), Florin Giurgiuman, residing in Valea Drăganului, represented by V. Costa Ramos and A. Șandru, lawyers, applicants, v European Commission, represented by C. Valero and J. Baquero Cruz, acting as Agents, defendant, THE GENERAL COURT (Fifth Chamber), composed of M. Sampol Pucurull, President, T. Pynnä (Rapporteur) and W. Valasidis, Judges, Registrar: V. Di Bucci, makes the following Order 1        By their action under Article 263 TFEU, the applicants, Giftrans SRL and Mr Florin Giurgiuman, seek annulment of the final report of the European Anti-Fraud Office (OLAF) in Case OC/2022/1031/A5 (‘the contested report’).  Background to the dispute 2        The applicants are, respectively, an undertaking incorporated under Romanian law and its director. Giftrans obtained co-financing from the European Regional Development Fund (ERDF), as part of the Integrated Territorial Investment for the Danube Delta, for a project to extend and diversify its activity through the purchase of machinery. 3        In 2021, on the basis of information from Romanian media outlets, OLAF opened an administrative investigation into suspected fraud in connection with projects financed under the Integrated Territorial Investment for the Danube Delta, in accordance with Article 5 of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by [OLAF] and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ 2013 L 248, p. 1). 4        On 13 July 2021, OLAF informed the European Public Prosecutor’s Office (EPPO) of potential fraud linked to those projects, coming within the scope of Article 3 of Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law (OJ 2017 L 198, p. 29). 5        On 27 July 2021, a European Delegated Prosecutor (EDP) opened a criminal investigation on the basis of information received from OLAF. On the same day, he requested OLAF’s assistance, in accordance with Article 101(3)(a) of Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) (OJ 2017 L 283, p. 1). 6        On 10 June 2022, OLAF transmitted an analytical support and operational analysis report in response to the EDP’s request. 7        On 7 December 2022, the EDP asked OLAF to open a complementary administrative investigation, in accordance with Article 101(3)(c) of Regulation 2017/1939, in order to support the ongoing EPPO investigation. 8        On 11 January 2023, OLAF opened complementary investigation OC/2022/1031/A5 in order to verify possible fraud and irregularities, including the fraudulent obtaining of EU funds by the beneficiaries of projects financed as part of the Integrated Territorial Investment for the Danube Delta and the misallocation of those funds contrary to provisions of law. 9        On 8 April 2024, OLAF sent the contested report, which had been drawn up in the context of complementary investigation OC/2022/1031/A5, to the EPPO; in that report, it found that the applicants had engaged in potentially criminal conduct in obtaining EU funding.  Forms of order sought 10      By their action, the applicants claim that the Court should annul the contested report. 11      By a separate document lodged at the General Court Registry on 2 July 2025, the European Commission raised a plea of inadmissibility under Article 130 of the Rules of Procedure of the General Court. 12      The Commission claims that the Court should: –        dismiss the action as inadmissible; –        order the applicants to pay the costs. 13      In their observations on the plea of inadmissibility, the applicants contend that the Court should: –        dismiss the plea of inadmissibility or, in the alternative, reserve its decision until it rules on the merits of the case; –        order the Commission to pay the costs.  Law 14      Pursuant to Article 130(1) and (7) of the Rules of Procedure, the Court may, if the defendant so requests, rule on the question of inadmissibility without considering the merits of the case. 15      In the present case, since the Commission has applied for a decision on inadmissibility and the Court takes the view that it has sufficient information from the documents in the file, the Court has decided to rule on that application without taking further steps in the proceedings. 16      By its plea of inadmissibility, the Commission submits that the contested report cannot be the subject of an action brought by the applicants under Article 263 TFEU since OLAF reports have no binding legal effects on the persons named therein and do not bring about a distinct change in their legal position. OLAF reports merely constitute evidence that may be used in national proceedings which must be evaluated according to the rules on evidence in national law. In any event, the consequences of any alleged unlawfulness in the conduct of an OLAF investigation can still be addressed by the competent national courts in the framework of the national criminal proceedings following a possible indictment decided upon by the EPPO. The applicants will therefore be able to have recourse to the remedies made available by those authorities. 17      The applicants dispute the Commission’s line of argument. First, the contested report produced direct and individual legal effects on the applicants, since it attributes criminal conduct to them and the EDP relied on that report to bring charges against them. Second, the right to effective judicial protection, enshrined in particular in Article 47 of the Charter of Fundamental Rights of the European Union, means that the action against the contested report must be admitted before the Court. 18      Under the first paragraph of Article 263 TFEU, the EU Courts are to review the legality of acts of the institutions, bodies, offices and agencies of the European Union intended to produce legal effects vis-à-vis third parties. 19      It should be recalled that, according to settled case-law, an action for annulment is available in the case of all acts adopted by the institutions, bodies, offices and agencies of the European Union, whatever their nature or form, which are intended to have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in the legal position of the latter (see, to that effect, judgment of 19 December 2012, Commission v Planet, C‑314/11 P, EU:C:2012:823, paragraph 94 and the case-law cited). 20      With regard to OLAF reports and recommendations, it is clear from settled case-law that they have no binding legal effect on the persons referred to therein and do not bring about a distinct change in their legal position (see, to that effect, order of 12 November 2018, Stichting Against Child Trafficking v Commission, T‑658/17, not published, EU:T:2018:799, paragraph 20 and the case-law cited). Such reports and recommendations do not impose a duty on the competent authorities to which they are addressed to adopt certain measures (see, to that effect, judgment of 30 November 2023, Sistem ecologica v Commission, C‑787/22 P, not published, EU:C:2023:940, paragraph 66). 21      By their line of argument, the applicants do not dispute the reasoning followed in the case-law referred to in paragraph 20 above, but claim that that case-law, which was developed prior to the creation of the EPPO, cannot be transposed to the present case. In their view, Article 101(3) of Regulation 2017/1939, read in conjunction with Articles 12c and 12d of Regulation No 883/2013 and with the working arrangement between OLAF and the EPPO of 5 July 2021, created an explicit mechanism of operational integration between those two EU bodies. Thus, the applicants’ legal situation was changed because the contested report described them as accused persons. 22      In that regard, it should be noted that Article 101(3) of Regulation 2017/1939 concerns the possibility for the EPPO to request that OLAF support or complement its activity in an investigation. Articles 12c and 12d of Regulation No 883/2013 concern, respectively, the reporting by OLAF to the EPPO of criminal conduct and the non-duplication of investigations by OLAF and the EPPO. Accordingly, the legislation cited by the applicants is intended to structure cooperation between the EPPO and OLAF. The same applies to the working arrangement between OLAF and the EPPO of 5 July 2021. The fact that an OLAF report has been drawn up following an administrative investigation carried out by OLAF at the request of the EPPO, in accordance with Article 101(3)(c) of Regulation 2017/1939 and Article 12f of Regulation No 883/2013, does not affect the non-binding nature of that report. Accordingly, it cannot be inferred from the rules and working arrangements cited by the applicants that the contested report produces binding legal effects on them and that it is an act open to challenge by means of an action for annulment. 23      It follows from Article 11(3) to (6) of Regulation No 883/2013, read in the light of recital 31 thereof, that it is for the competent authorities of the Member States or the institutions, bodies, offices or agencies, as the case may be, to decide what action should be taken in respect of completed investigations on the basis of the final investigation reports drawn up by OLAF. While OLAF may recommend in its reports that measures be adopted having binding legal effects adversely affecting the persons concerned, the opinion it provides in that regard imposes no obligation, even of a procedural nature, on the authorities to which it is addressed (see, to that effect, order of 22 December 2022, AL v Commission, T‑692/21, not published, EU:T:2022:862, paragraph 29 and the case-law cited). 24      In that context, any infringements of a procedural or substantive nature which are purported to vitiate the final report of an OLAF investigation cannot confer on that report legal effects vis-à-vis the persons named in that report. A challenge lies against such infringements only in support of an action directed against a subsequent challengeable act, to the extent that they have influenced its content, and not independently, in the absence of such an act (see, to that effect, order of 22 December 2022, AL v Commission, T‑692/21, not published, EU:T:2022:862, paragraph 31 and the case-law cited). The same applies, moreover, to procedural acts adopted by the EPPO which are intended to produce legal effects vis-à-vis third parties, a category which includes, inter alia, suspects. Those acts are subject to judicial review by the competent national courts in accordance with Article 42(1) of Regulation 2017/1939, read in the light of recital 87 thereof. 25      Furthermore, the applicants are incorrect to claim that, if the action for annulment were to be declared inadmissible, they would have no legal remedy against OLAF’s actions, given that the national courts have no jurisdiction either to annul EU acts or to monitor OLAF’s compliance with the procedural guarantees which it is required to provide under Regulation No 883/2013. 26      As regards the principle of effective judicial protection, it must be noted that, although the requirement as to legal effects which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in its legal position must be interpreted in the light of the principle of effective judicial protection, an interpretation to that effect cannot go so far as to set aside that requirement without going beyond the jurisdiction conferred by the FEU Treaty on the EU Courts. The fact that the Member States’ courts may not have jurisdiction to adjudicate in relation to the contested report does not mean that the applicants’ action for annulment before the Court satisfies the conditions of admissibility laid down by Article 263 TFEU (see, to that effect, order of 12 November 2018, Stichting Against Child Trafficking v Commission, T‑658/17, not published, EU:T:2018:799, paragraph 29 and the case-law cited). 27      Even if the action for annulment of the contested report must be regarded as inadmissible, the applicants are not denied access to a court, since, as stated in paragraph 24 above, procedural acts of the EPPO intended to produce legal effects vis-à-vis third parties are subject to review by the competent national courts. That judicial review may, where appropriate, cover the assessment by the European Prosecutor of the evidence contained in OLAF’s reports carried out during proceedings. 28      In addition, an action for damages remains available if OLAF’s conduct during an administrative investigation is of such a nature as to entail liability for the Union (see, to that effect, order of 12 November 2018, Stichting Against Child Trafficking v Commission, T‑658/17, not published, EU:T:2018:799, paragraph 29 and the case-law cited). 29      Lastly, Regulation (EU, Euratom) 2020/2223 of the European Parliament and of the Council of 23 December 2020 amending Regulation No 883/2013 (OJ 2020 L 437, p. 49) introduced the possibility of lodging a complaint with a Controller of procedural guarantees concerning, inter alia, an alleged infringement of procedural requirements and fundamental rights by OLAF. 30      It follows from all of the foregoing that the contested report does not produce legal effects vis-à-vis the applicants and does not constitute an act adversely affecting the applicants. Accordingly, the plea of inadmissibility raised by the Commission must be upheld and the present action declared inadmissible.  Costs 31      Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (Fifth Chamber) hereby orders: 1.      The action is dismissed as inadmissible. 2.      Giftrans SRL and Mr Florin Giurgiuman shall pay the costs. Luxembourg, 14 January 2026. V. Di Bucci   M. Sampol Pucurull Registrar   President *      Language of the case: English.