Opinion of Advocate General Szpunar delivered on 22 September 2020

A. Regulation (EC) No 1073/1999

4. Article 1(3) of Regulation (EC) No 1073/1999,⁽²⁾ which is applicable to the facts at issue,⁽³⁾ provides:

‘Within the institutions, bodies, offices and agencies established by, or on the basis of, the Treaties (hereinafter “the institutions, bodies, offices and agencies”), the Office shall conduct administrative investigations for the purpose of:

• fighting fraud, corruption and any other illegal activity affecting the financial interests of the European Community,

• investigating to that end serious matters relating to the discharge of professional duties such as to constitute a dereliction of the obligations of officials and other servants of the Communities liable to result in disciplinary or, as the case may be, criminal proceedings, or an equivalent failure to discharge obligations on the part of members of institutions and bodies, heads of offices and agencies or members of the staff of institutions, bodies, offices or agencies not subject to the Staff Regulations of officials and the Conditions of employment of other servants of the European Communities (“the Staff Regulations”).’

5. Articles 3 and 4 of that regulation set out the rules applicable, respectively, to external and internal investigations by OLAF.

6. Article 5 of the regulation provides:

‘External investigations shall be opened by a decision of the Director of the Office, acting on his own initiative or following a request from a Member State concerned.

Internal investigations shall be opened by a decision of the Director of the Office, acting on his own initiative or following a request from the institution, body, office or agency within which the investigation is to be conducted.’

7. Article 6(1) of the same regulation states that the Director of the Office is to direct the conduct of investigations.

8. Article 8(3) of Regulation No 1073/1999 reads as follows:

‘The Director shall ensure that the Office’s employees and the other persons acting under his authority observe the Community and national provisions on the protection of personal data, in particular those provided for in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data ^[(4)].’

9. Article 11(1) and (7) of that regulation reads thus:

‘1.

The Supervisory Committee shall reinforce the Office’s independence by regular monitoring of the implementation of the investigative function.

At the request of the Director or on its own initiative, the committee shall deliver opinions to the Director concerning the activities of the Office, without however interfering with the conduct of investigations in progress.

…

7.

The Director shall forward to the Supervisory Committee each year the Office’s programme of activities … The Director shall keep the committee regularly informed of the Office’s activities, its investigations, the results thereof and the action taken on them. Where an investigation has been in progress for more than nine months, the Director shall inform the Supervisory Committee of the reasons for which it has not yet been possible to wind up the investigation, and of the expected time for completion. The Director shall inform the committee of cases where the institution, body, agency or office concerned has failed to act on the recommendations made by it. The Director shall inform the committee of cases requiring information to be forwarded to the judicial authorities of a Member State.’

10. Article 14 of the regulation provides:

‘Pending amendment of the Staff Regulations, any official or other servant of the European Communities may submit to the Director of the Office a complaint by virtue of this Article against an act adversely affecting him committed by the Office as part of an internal investigation …

The above provisions shall apply by analogy to the staff of the institutions, bodies, offices and agencies which are not subject to the Staff Regulations.’

B. Rules of Procedure of the OLAF Supervisory Committee

11. Article 13(5) of the Rules of Procedure of the OLAF Supervisory Committee⁽⁵⁾ (‘the Rules of Procedure’) states:

‘Cases requiring information to be forwarded to the judicial authorities of a Member State shall be examined on the basis of the information provided by the Director-General of OLAF and in accordance with [Regulation No 1073/1999]. Follow-up shall also be carried out on this basis.

In particular, before the information is sent, the Supervisory Committee shall request access to the investigations in question in order to ascertain whether fundamental rights and procedural guarantees are being complied with. Once the Secretariat has obtained access to the documents within a time period guaranteeing compliance with this function, the rapporteurs appointed to examine the cases shall prepare their presentation at the Committee’s plenary session. The responsible staff of OLAF may be invited to this session in order to obtain full information.

The Committee shall appoint rapporteurs to examine these investigations and, if necessary, issue an opinion.’

A. Inadmissibility of the action before the General Court

33. The Commission submits, in its response, that it has doubts as to the accuracy of the reasoning adopted by the General Court which led it to reject the plea of inadmissibility raised before it by the Commission regarding the force of res judicata attached to the judgment in Dalli v Commission.

34. From the outset, I must clarify that, although the Commission has not brought a cross-appeal to challenge the admissibility of the action before the General Court, the pleas of inadmissibility based on the force of res judicata are a matter of public policy which must be raised by the Courts of the European Union of their own motion.⁽⁹⁾ In those circumstances, it is necessary to determine whether the General Court was right to find that the action before it was admissible on the basis that the judgment in Dalli v Commission did not have the force of res judicata attached to it.

35. Having noted the importance, both for the EU legal order and for the national legal systems, of the principle of res judicata,⁽¹⁰⁾ the General Court pointed out that the force of res judicata is such as to bar the admissibility of an action if the proceedings disposed of by the judgment in question were between the same parties, had the same subject matter and were founded on the same grounds.⁽¹¹⁾ It recalled that the subject matter of an action corresponds to the claims of the person concerned, whereas the cause of action corresponds to the legal and factual basis of the claims relied on.⁽¹²⁾ The General Court found that the conditions relating to the identity of the parties and of the subject matter between the action that gave rise to the judgment in Dalli v Commission and the action brought before it are met.⁽¹³⁾

36. However, as regards the condition relating to the identity of cause of the two actions, the General Court observed that, by its first action, the appellant had claimed that the unlawful acts alleged in the context of the claim for annulment constituted a serious breach of a rule of law intended to confer rights on individuals. Nevertheless, the General Court also noted that it had been held in the judgment in Dalli v Commission that the existence of the acts challenged in the application for annulment was not established, with the result that there was no unlawfulness which could give rise to liability on the part of the European Union.⁽¹⁴⁾ In those circumstances, the General Court stated that, in the judgment in Dalli v Commission, it had not ruled on the wrongful conduct of the Commission or of OLAF and had found merely that the contested decision did not exist.⁽¹⁵⁾

37. In addition, the General Court explained that res judicata attaches only to matters of fact and law actually or necessarily settled by a judicial decision.⁽¹⁶⁾ Since it had not examined the allegations relating to the wrongful conduct of the Commission and of OLAF in the first action, the General Court considered that those matters of fact and law had not actually and necessarily been settled by the judgment in Dalli v Commission, such that that judgment did not have the force of res judicata in that regard.

38. The General Court found that there was therefore no need to examine whether the cause of the two actions was identical.

39. In its response, the Commission argued that the fact that the General Court had not examined the claims for damages relating to the conduct of the Commission and of OLAF was not relevant. It considered that those claims had already actually and necessarily been settled by the judgment in Dalli v Commission, since they had been rejected in that judgment as ‘unfounded’ because they ‘[were] not … established to the requisite legal standard’.⁽¹⁷⁾ The second action brought before the General Court sought merely to revive an issue that had been settled by the Courts of the European Union, which is not allowed by the principle of res judicata.

40. I do, however, take the view that the reasoning adopted by the General Court in the judgment under appeal withstands any challenge. The General Court rightly stated that the rejection of the claim for damages made in the context of the first action was based exclusively on the non-existence of the acts challenged. This necessarily means that an examination of the appellant’s allegations about the wrongful conduct of the Commission was necessary and was therefore not conducted. The matters of fact and law underlying those allegations cannot therefore be regarded as having actually and necessarily been settled by the judgment and cannot, in those circumstances, have the force of res judicata.

41. That conclusion is not called into question by the Commission’s argument that the fact that General Court found, in its judgment in Dalli v Commission, that the appellant’s allegations ‘[have] not been established to the requisite legal standard’ means that those allegations have necessarily been settled by that judgment. In other words, the General Court implicitly ruled on matters of fact and law relating to those allegations.

42. That solution would open the door, in EU law, to an unreasonable extension of the force of res judicata to matters on which an implicit decision has been made, which appears undesirable to me.⁽¹⁸⁾ In addition, such an extension does not seem to me to be applicable in the present case, since it cannot be claimed that a point of fact or law has been implicitly settled by a judgment when it is clear from that judgment that that matter has not even been examined.

43. In those circumstances, the judgment in Dalli v Commission cannot have the force of res judicata in relation to allegations that were not examined by the General Court in that judgment.

44. I am therefore of the view that the General Court did not err in finding the action admissible.

B. The first ground of appeal

C. The first part of the third ground of appeal

77. By the first part of the third ground of appeal, the appellant puts forward various arguments by which he seeks to show errors of law in the General Court’s reasoning with regard to the gathering of evidence by OLAF.

78. By his first two arguments, the appellant claims that the General Court erred in law in finding that OLAF’s objective impartiality had not been compromised by the participation in the investigation of its Director and of a member of a national authority and of the OLAF Supervisory Committee.

79. With regard to the first argument relating to the participation of the Director of OLAF in the investigation, the Commission states that that argument is ineffective as it does not call into question all the grounds put forward by the General Court for ruling out an infringement of the obligation of impartiality by virtue of the participation of the Director of OLAF.

80. That argument appears to me to be incapable of succeeding. The other elements of the General Court’s reasoning, to which reference is not made in the appeal and which are set out in paragraph 103 of the judgment under appeal, are not elements which, on their own, allowed the appellant’s argument to be rejected, but are rather findings of fact made by the General Court. The General Court’s rejection of the argument is based solely on the fact that the role of directing an investigation does not preclude the participation of the Director of OLAF in that investigation.

81. In addition, it should be noted that the General Court’s reasoning in that connection must be endorsed. Contrary to the appellant’s claim, the fact that Article 6(1) of Regulation No 1073/1999 provides that the Director of OLAF is to direct the conduct of investigations cannot be interpreted as preventing any direct participation on his part in the investigation in the absence of an express provision to that effect. I observe in that regard that the other tasks assigned to the Director of OLAF by the provisions of Regulation No 1073/1999 are likewise incapable of preventing him from participating in an investigation. On the contrary, the fact that the investigation report is drawn up under his authority already indicates some form of participation in the investigation. The same is true of his duty to monitor that the persons acting under his authority are complying with the provisions on the protection of personal data, which suggests some involvement in the conduct of OLAF’s investigations. In addition, it is unclear to me how the Director of OLAF could direct an investigation effectively if he were at the same time prevented from participating in all stages of that investigation.

82. In those circumstances, I take the view that the objective impartiality of OLAF could not be called into question by the participation of its Director in an investigation, and therefore the General Court did not err in law in that regard.

83. As regards the second argument relating to the participation in the investigation of a member of the Maltese Anti-Fraud Coordinating Structures (AFCOS), such participation also does not appear to me to call into question OLAF’s impartiality. Nothing in Regulation No 1073/1999 requires a strict separation between OLAF and the national authorities in the conduct of investigations. On the contrary, those authorities and OLAF are called upon to conduct cooperative investigations,⁽³¹⁾ such that the participation in the investigation of a member of a national authority cannot call into question OLAF’s impartiality, especially where, as the General Court observes, that member did not intervene in the conduct of the interview in which he or she participated. The General Court cannot have erred in law in that regard.

84. The fact that that member of AFCOS is at the same time a member of the OLAF Supervisory Committee appears, prima facie, more problematic. The General Court stated, in this regard, that the presence of a member of the OLAF Supervisory Committee at the hearing of a witness is ‘regrettable in view of the role conferred on that committee by Article 11(1) of Regulation No 1073/1999’,⁽³²⁾ which provides that the Supervisory Committee is not to interfere with the conduct of investigations in progress. According to the appellant, such participation is proof of OLAF’s lack of objective impartiality.

85. I am, however, of the view that the General Court did not err in law in finding that the obligation of impartiality had not been infringed by OLAF despite the presence of a member of the Supervisory Committee at the hearing of a witness. Article 11(1) of Regulation No 1073/1999 does indeed provide that the Supervisory Committee is not to interfere with investigations in progress. Such a requirement means that OLAF can perform its tasks independently. However, it remains the case that the mere presence of a member of the Supervisory Committee at the interview of a witness cannot be regarded as interference by that member in the conduct of the investigation where the member did not in fact participate in the investigation. In addition, the General Court found that the member of the Supervisory Committee in question was present at the interview for the purposes of interpretation and translation. In those circumstances, the view cannot be taken that that member had actually taken part in investigative activities, and therefore the General Court’s reasoning must be upheld.

86. By his third argument, the appellant claims that the General Court erred in law in rejecting the argument that the use, collection and storage of the information obtained further to the requests for telephone logs made by OLAF to the Maltese authorities constituted unlawful interference by a public authority in the exercise of the right to private life. In particular, he states that the legal basis relied on by OLAF to request those logs from the Maltese authorities was incorrect and could therefore not justify such interference.

87. However, firstly, although the requests for telephone logs do contain an incorrect reference concerning the provision of Regulation No 1073/1999 on which they are based, the fact remains that it is clear from Article 6(6) of Regulation No 1073/1999 that the national authorities are bound by a more general obligation of sincere cooperation vis-à-vis OLAF’s agents in the fulfilment of their task. Thus, the General Court correctly inferred from this that OLAF did indeed have a legal basis to request those logs from the Maltese authorities.

88. Second, even though those logs could not be produced in compliance with Maltese law, it cannot however be inferred from that fact that OLAF must be held responsible for the collection of that information and for the incompatibility of that collection with the law of the Member State concerned, since the collection was carried out by the Maltese authorities.

89. In those circumstances, the General Court was correct to hold that that request by OLAF did not constitute unlawful interference in the appellant’s private life, since OLAF could legitimately ask the Maltese authorities for the telephone logs and the incompatibility of those requests with Maltese law cannot be attributed to OLAF.

90. Finally, by his fourth argument, the appellant submits that the General Court erred in law in finding that, since he was not one of the persons whose conversation was intercepted and recorded, his right to respect for private life and to the confidentiality of communications was not infringed.

91. In that connection, I would point out that the European Union is non-contractually liable for the unlawful conduct of its institutions subject to the satisfaction of a set of conditions, which include the condition relating to the unlawfulness of the conduct of which the institution is accused. That condition requires a sufficiently serious breach of a rule of law intended to confer rights on individuals.⁽³³⁾

92. Such a condition requires that the protection offered by the rule invoked must be effective vis-à-vis the person who invokes it and that that person must be among those on whom the rule in question confers rights. A rule which does not protect the individual against the unlawfulness invoked by him, but protects another individual, cannot be accepted as a basis for compensation.⁽³⁴⁾ It follows that the appellant cannot validly rely on unlawfulness arising from the alleged breach of the right to private life of a third party, and therefore the General Court did not err in law in that regard.

93. I am therefore of the view that the first part of the third ground of appeal must be dismissed.

D. The fifth ground of appeal

94. By his fifth ground of appeal, the appellant submits that the General Court committed errors of law and distorted the facts in finding that, by informing the Supervisory Committee the day before the transmission of its report to the Maltese authorities, OLAF had not infringed the obligations under Article 11(7) of Regulation No 1073/1999, which requires the Director of OLAF to inform the Supervisory Committee of the forwarding of information to the judicial authorities of a Member State, and under Article 13(5) of the Rules of Procedure, pursuant to which the Supervisory Committee is to request access to the investigations in question in order to ascertain that fundamental rights and procedural guarantees are being complied with.

95. First, the appellant claims that, after informing the Supervisory Committee of the forwarding of information to the judicial authorities of a Member State, OLAF had to observe a period of five working days before forwarding that information. Although a shorter period of time may be allowed in exceptional circumstances, the agreement of the Supervisory Committee to that effect would, however, be necessary. The General Court therefore erred in law in finding that OLAF enjoyed some discretion as regards the period of time to be observed before information is forwarded to national judicial authorities once the Supervisory Committee has been informed.

96. I note that, although Article 11(7) of Regulation No 1073/1999 provides that the Director of OLAF is to inform the Supervisory Committee of cases requiring information to be forwarded to the judicial authorities, that provision does not however lay down any minimum period of time to be observed before actually forwarding the information concerned. The five-day period to which the appellant refers is stipulated in the transitional working arrangement concluded in September 2012 between OLAF and the Supervisory Committee. That working arrangement states that documents that will be forwarded to national judicial authorities must be communicated to it ‘as a general rule’ five days before being forwarded.

97. It is therefore clear from the wording both of Article 11(7) of Regulation No 1073/1999 and of the transitional working arrangement concluded between OLAF and the Supervisory Committee that OLAF is not required to observe a mandatory period of time in connection with the forwarding of information to the judicial authorities of a Member State. The General Court cannot therefore be criticised for having erred in law in the light of its finding that OLAF enjoyed some discretion with respect to the period of time.

98. It also follows from that fact that, contrary to the appellant’s claim, the agreement of the Supervisory Committee to reduce that period of time was not required, since – as the General Court found – such a time period is indicative.

99. Next, the appellant claims that the General Court distorted the facts by taking into account the fact, relied on by the Commission, that the Chair of the Supervisory Committee had been informed of the need for the information to be forwarded to the national judicial authorities rapidly and had given his agreement to its rapid forwarding, even though there is no proof capable of substantiating the Commission’s claim.

100. In my view, an argument of this nature must be rejected as ineffective. Since OLAF enjoys some discretion with respect to the period of time to be observed before forwarding information to the judicial authorities, the fact that the Chair of the Security Committee did or did not give his agreement to that information being forwarded rapidly is irrelevant.

101. Lastly, the appellant claims that the General Court erred in law in finding that the information could be forwarded to the judicial authorities before the Supervisory Committee has fulfilled its functions, as defined in its Rules of Procedure.

102. Article 13(5) of the Rules of Procedure does indeed provide that, ‘before the information is sent, the Supervisory Committee shall request access to the investigations in question in order to ascertain whether fundamental rights and procedural guarantees are being complied with’. However, as the General Court rightly observes, the Rules of Procedure cannot impose on OLAF obligations not provided for by the legislature, in particular in Regulation No 1073/1999.

103. In addition, it is clear from Article 11 of Regulation No 1073/1999 that the Supervisory Committee regularly monitors OLAF’s activities, with a view to reinforcing OLAF’s independence,⁽³⁵⁾ without however interfering with the investigations in progress. The monitoring by the Supervisory Committee must therefore be understood to be systemic monitoring of OLAF’s activities.

104. In those circumstances, although Article 11(7) of Regulation No 1073/1999 provides that the Supervisory Committee is to be informed of cases requiring information to be forwarded to judicial authorities, there is however no indication that the information forwarded is subject to review by the Supervisory Committee. Furthermore, such a suspensory nature is contrary to the role of the Supervisory Committee, which conducts systemic monitoring of OLAF’s activities.

105. In addition, I note that there is no provision in Regulation No 1073/1999 which allows the Supervisory Committee to object to the forwarding of information to the judicial authorities of a Member State. In those circumstances, the obligation set out in Article 11(7) of Regulation No 1073/1999 must be understood as imposing on the Director merely a duty to provide information, which was fulfilled in the present case.

106. That interpretation is borne out by analysis of the provisions of Regulation No 883/2013, which now governs matters relating to investigations conducted by OLAF. Point (b) of the third subparagraph of Article 17(5) of that regulation thus provides that the Director is to inform the Supervisory Committee periodically, inter alia, of cases in which information has been transmitted to judicial authorities of the Member States. It is therefore clear from that provision that the monitoring conducted by the Supervisory Committee is not systematic but systemic and that, in addition, that committee has to be informed only a posteriori of the information which has been transmitted.

107. I thus find it difficult to see how it could be envisaged that, under Regulation No 1073/1999 and pursuant to the provisions of the Rules of Procedure, the obligation to inform the Supervisory Committee may be extended to the point that the forwarding of the information would be subject to a thorough review of that information by the Supervisory Committee.

108. In those circumstances, I take the view that the General Court did not err in law in finding that Article 11(7) of Regulation No 1073/1999 and the provisions of the Rules of Procedure were not breached.

109. The fifth ground of appeal should therefore be dismissed.

E. The seventh ground of appeal

110. I would point out from the outset that this ground of appeal, which relates to the existence of damage suffered by the appellant, should be rejected as ineffective if the Court were to find that all the appellant’s claims regarding errors in the General Court’s reasoning on unlawfulness in OLAF’s conduct were to be rejected.

111. The seventh ground of appeal alleges an error of law and a distortion of the parties’ arguments because the General Court found that the appellant had failed to establish that the conduct complained of was, by reason of its gravity, such as to cause him damage.

112. In the first place, the argument relating to the distortion of the application appears to me to be incapable of succeeding. Contrary to the appellant’s claim, the General Court did not disregard the evidence adduced by the appellant before it, but rather took the view that that evidence was insufficient to establish that the conduct complained of was such as to cause him damage.

113. In the second place, the appellant relies on an error of law stemming, in his view, from an incorrect definition of non-material damage.

114. In the judgment under appeal, the General Court found that, in order to satisfy the condition relating to the existence of non-material damage, the appellant had, ‘at the very least, to prove that the conduct of which [he] complains was, by reason of its gravity, such as to cause [him] damage of that kind’,⁽³⁶⁾ which the appellant failed to demonstrate.

115. It is my view that such an argument is the result of an error of law stemming from a misreading of the case-law relied on by the General Court.

116. In that regard, I observe that the Court has held that, ‘while the submission of evidence is not necessarily regarded as a requirement for the recognition of such harm, it is for the applicant to at least establish that the conduct alleged against the institution concerned was capable of causing him damage’.⁽³⁷⁾

117. In the case of non-material damage, the condition relating to the existence of damage can therefore be satisfied in two ways. On the one hand, the appellant may put forward evidence to demonstrate the existence and the extent of non-material damage.

118. On the other hand, even in the absence of such evidence, the condition relating to the existence of damage may be satisfied if the appellant establishes that non-material damage necessarily resulted from the conduct of which he complains. In other words, case-law allows non-material damage to be recognised more easily in the case of certain types of conduct.

119. This is the case, inter alia, as regards unfounded negative assessments relating to the conduct and the professional competences of an official contained in an appraisal report.⁽³⁸⁾ Similarly, it is recognised in the case-law that, where a person is publicly associated with behaviour regarded as reprehensible on account of an entity’s unlawful inclusion in a list of entities subject to restrictive measures, with the result that opprobrium and suspicion are provoked, an association of that kind is such as to cause him or her non-material damage.⁽³⁹⁾

120. Whilst seemingly taking that case-law as a basis, the General Court has however departed from it. Rather than finding that certain types of conduct result, by definition, in non-material damage for the individual concerned, the General Court took the view that the conduct complained of had to be, by reason of its gravity, such as to cause damage of that kind.

121. However, it is by no means evident from the case-law upon which the General Court relies that the application of that case-law is subject to demonstration by the appellant of the gravity of the conduct at issue. By adding such a condition, the General Court reduced the opportunity of a person who has suffered non-material damage necessarily resulting from the conduct of which he complains from obtaining compensation for that damage. If it were to be followed, the General Court’s reasoning would render redundant that case-law, which specifically seeks to facilitate the recognition of non-material damage in the case of certain types of conduct.

122. In addition, such reasoning cannot be easily reconciled with the more general case-law on the conditions governing the non-contractual liability of the European Union, in particular as regards the condition relating to the existence of a breach of a rule of law conferring rights on individuals, a breach which, according to case-law, must be ‘sufficiently serious’. The decisive criterion for finding that a breach of EU law is sufficiently serious is that the institution concerned manifestly and gravely disregarded the limits set on its discretion.⁽⁴⁰⁾

123. In those circumstances, it is clear that the gravity of the conduct of the institution is already to be evaluated when the existence of a sufficiently serious breach of a rule conferring rights on individuals is examined. Reintroducing the criterion of the gravity of the conduct when the existence of the non-material damage is being examined does not appear to me to be relevant, short of taking the view that certain serious breaches of a rule of law are, in actual fact, of relative gravity.

124. Accordingly, I take the view that the General Court’s reasoning concerning the definition of non-material damage is vitiated by an error of law, such that the seventh ground of appeal should be upheld, provided that it is effective.

125. It follows from the first paragraph of Article 61 of the Statute of the Court of Justice that, if an appeal is well founded, the Court may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.

126. In the present case, the General Court found that that appellant had not suffered non-material damage because he did not establish that the conduct of which he complains was, by reason of its gravity, such as to cause him damage.

127. However, as I have stated in point 124 of this Opinion, such a finding is based on an incorrect criterion in the definition of non-material damage.

128. In order to assess the plea alleging the existence of non-material damage, it is therefore necessary to conduct a fresh assessment of the facts in the light of the case-law identified in this Opinion, in order to determine whether the conduct complained of in the present case is such as to cause non-material damage to the appellant, without it being possible to require that the appellant demonstrate the gravity of that conduct.

129. It follows from the foregoing that the state of the proceedings does not permit judgment to be given by the Court of Justice, and therefore the examination of the action brought by the appellant should be referred back to the General Court for judgment on the plea relating to the existence of non-material damage.