The General Court in its order of 13 April 2011 declared inadmissible the plea of inadmissibility raised by the Commission against the action for annulment of PLANET against the European Anti-fraud Office (OLAF) decisions by virtue of which an Early Warning System (EWS) warning was requested and its flagging was activated.

It was for the first time that the General Court examined the legal framework under which the EWS is established and stressed that the denial of a legal control of the contested acts would be against the principles of EU law. That is especially the case, in view of the fact that the decision 2008/969 concerning EWS does not grant to natural or legal persons the basic right to be heard prior to their registration in the EWS.

In support of its plea of inadmissibility, the Commission claimed that the contested acts are non subject to an action for annulment, firstly because they constitute internal measures of information, and secondly because they do not produce binding legal effects outside the scope of the EU administration.

The General Court rejected this allegation of the Commission and confirmed the argumentation put forward in the action of the applicant PLANET. More precisely, the General Court confirmed that the contested acts produced legally binding effects since they altered the applicant’s legal situation and they influenced its negotiation power in concluding a contract of services, given that the applicant was in a more favourable situation before the publication of the contested acts. In its observations, the General Court underlined, that the contested decisions shall in no case be considered as being intermediate measures or preparatory acts non subject to an action for annulment.

Lastly, innovation of the present order should be considered the fact that the General Court, by examining of its own motion the Commission’s competence with regard to the activation of an EWS warning, pointed out that the decision 2008/969 on which the contested acts are based, does not refer to any specific provision of the primary or secondary law which would explicitly grant this competence to the Commission. To this end, the General Court, as a measure of organisation of the procedure, invited the Commission to take written position on the legal basis of its competence to take actions pursuant to the decision in question.