«(European Investment Bank (EIB) – Decision of the Management Committee – Action for annulment – Jurisdiction of the Court – Article 237 EC – Protection of the Communities' financial interests – European Anti-Fraud Office (OLAF) – Regulations (EC) No 1073/1999 and (Euratom) No 1074/1999 – Applicability to EIB – Pleas of illegality – Independence of the EIB – Legal bases – Articles 280 EC and 203 EA – Proportionality – Statement of reasons)»

1.. European Investment Bank – Power to determine its own internal organisation – Decision laying down the procedures for cooperation with the European Anti-Fraud Office (OLAF) – Competence of the Governing Council (Statute of the European Investment Bank, Arts 9(3)(h) and 13(3))

2.. Actions for annulment – Actionable measures – Measures of the European Investment Bank – Measures within the competence of the Governing Council – Whether included – Adoption by another organ of the Bank – Not relevant (Art. 237(b) EC)

3.. European Anti-Fraud Office (OLAF) – Regulations Nos 1073/1999 and 1074/1999 concerning investigations conducted by OLAF – Scope – European Investment Bank – Whether included (European Parliament and Council Regulation No 1073/1999, Art. 1(3), and Council Regulation No 1074/1999, Art. 1(3))

4.. European Investment Bank – Independence – Scope (Art. 267 EC)

5.. European Investment Bank – Controls which may be exercised over the Bank – Distinction by reference to the purpose of the controls – Audit of accounts and examination of financial management without prejudice to application of Regulations Nos 1073/1999 and 1074/1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (Arts 248(1) and (3) EC and 280 EC; Statute of the European Investment Bank, Art. 14; Art. 203 EA; European Parliament and Council Regulation No 1073/1999 and Council Regulation No 1074/1999)

6.. European Investment Bank – Independence – Application of Regulations Nos 1073/1999 and 1074/1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) – Whether compatible (European Parliament and Council Regulation No 1073/1999 and Council Regulation No 1074/1999)

7.. Financial provisions – Community's financial interests – Definition – Resources and expenditure of the European Investment Bank – Whether included (Art. 280 EC)

8.. Financial provisions – Protection of the Community's financial interests – Article 280 EC – Purpose – Scope – Adoption of legislative measures applicable within Community institutions, bodies, offices and agencies – Whether included (Art. 280 EC)

9.. Acts of the institutions – Choice of legal basis – Regulation No 1074/1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) – Article 203 EA (Arts 183a EA and 203 EA; Council Regulation No 1074/1999)

10.. European Anti-Fraud Office (OLAF) – Regulations Nos 1073/1999 and 1074/1999 concerning investigations conducted by OLAF – Breach of the principle of proportionality in relation to the inclusion of the European Investment Bank within their scope – None (European Parliament and Council Regulation No 1073/1999 and Council Regulation No 1074/1999)

11.. European Anti-Fraud Office (OLAF) – Regulations Nos 1073/1999 and 1074/1999 concerning investigations conducted by OLAF – Infringement by the Decision of the Management Committee of the European Investment Bank of 10 November 1999 concerning cooperation with OLAF (European Parliament and Council Regulation No 1073/1999 and Council Regulation No 1074/1999; Decision of the Management Committee of the European Investment Bank of 10 November 1999)

JUDGMENT OF THE COURT 10 July 2003 (1)

((European Investment Bank (EIB) – Decision of the Management Committee – Action for annulment – Jurisdiction of the Court – Article 237 EC – Protection of the Communities' financial interests – European Anti-Fraud Office (OLAF) – Regulations (EC) No 1073/1999 and (Euratom) No 1074/1999 – Applicability to EIB – Pleas of illegality – Independence of the EIB – Legal bases – Articles 280 EC and 203 EA – Proportionality – Statement of reasons))

In Case C-15/00,

applicant, supported by

interveners,

v

defendant,

APPLICATION for annulment of the Decision of the Management Committee of the European Investment Bank of 10 November 1999 concerning cooperation with the European Anti-Fraud Office (OLAF),

THE COURT,,

composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet and R. Schintgen (Presidents of Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola (Rapporteur), P. Jann, V. Skouris, F. Macken, N. Colneric, S. von Bahr and A. Rosas, Judges,

Advocate General: F.G. Jacobs,

having regard to the Report for the Hearing, after hearing oral argument from the parties at the hearing on 3 July 2002, at which the Commission was represented by M. Petite, acting as Agent, the Kingdom of the Netherlands by N. Bel, acting as Agent, the Parliament by J. Schoo and H. Duintjer Tebbens, the Council by J. Aussant, F. van Craeyenest and F. Anton and the European Investment Bank by A. Barav,

after hearing the Opinion of the Advocate General at the sitting on 3 October 2002,

gives the following

Primary legislation

...

Secondary legislation

[OLAF] shall exercise the Commission's powers as they are defined in the provisions established in the framework of the Treaties, and subject to the limits and conditions laid down therein.[OLAF] may be entrusted with investigations in other areas by the Commission or by the other institutions or bodies.

.

.

...4. The institutions, bodies, offices and agencies shall be informed whenever [OLAF] employees ... conduct an investigation on their premises or consult a document or request information held by such institutions, bodies, offices and agencies.5. Where investigations reveal that a member, manager, official or other servant may be personally involved, the institution, body, office or agency to which he belongs shall be informed.In cases requiring absolute secrecy for the purposes of the investigation or requiring recourse to means of investigation falling within the competence of a national judicial authority, the provision of such information may be deferred.6. Without prejudice to the rules laid down by the Treaties, in particular the Protocol on privileges and immunities of the European Communities, and to the provisions of the Staff Regulations, the decision to be adopted by each institution, body, office or agency as provided for in paragraph 1, shall in particular include rules concerning:

In so doing, the President will seek to maintain maximum cooperation with OLAF within the terms of this decision.

Jurisdiction of the Court to hear and determine an action under Article 237(b) EC

Article 230 EC

The Court's jurisdiction to hear and determine an application alleging infringement of Regulation No 1074/1999

Argument that the application seeks to establish a failure to act by the EIB

Autonomy of the EIB

Arguments of the EIB

Findings of the Court

Legal basis of Regulation No 1073/1999

The concept of affecting the financial interests of the Community

Arguments of the EIB

Findings of the Court

The possibility of adopting anti-fraud measures relating to the institutions, bodies, offices and agencies established by, or on the basis of, the Treaties

Legal basis of Regulation No 1074/1999

The principle of proportionality

Arguments of the EIB

Findings of the Court

The obligation to state reasons

On those grounds,

THE COURT

hereby:

Rodríguez Iglesias

Puissochet

Wathelet

Schintgen

Gulmann

Edward

La Pergola

Jann

Skouris

Macken

Colneric

von Bahr

Rosas

Delivered in open court in Luxembourg on 10 July 2003.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President