Explanatory Memorandum to COM(2011)135 - Amendment of Regulation (EC) No 1073/1999 concerning investigations conducted by the European Anti-fraud Office (OLAF) - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2011)135 - Amendment of Regulation (EC) No 1073/1999 concerning investigations conducted by the European Anti-fraud Office (OLAF). |
|---|---|
| source | COM(2011)135  |
| date | 17-03-2011 |
The European Anti-fraud Office (”the Office”) was established in 1999. European Parliament and Council Regulation (EC) No 1073/1999 i and Council Regulation (Euratom) No 1074/1999 of 25 May 1999 i, which lay down the modalities of both internal and external investigations conducted by the Office, and Commission Decision 1999/352/EC, ECSC, Euratom of 28 April 1999 establishing the Office i are the key instruments in the legal framework within which it operates.
In 2006, the Commission put forward a proposal for amending Regulation 1073/1999 i. The legislative proposal focused on achieving better operational efficiency and improved governance for the Office by:
- improving the information flow between the Office, the European institutions and bodies, the Member States and informers;
- clarifying the relations between the Supervisory Committee, the Office and the institutions and other bodies, offices and agencies and introducing a 'structured dialogue' involving the Supervisory Committee, European Parliament, Council and Commission on key governance questions;
- strengthening the procedural rights of persons concerned by investigations (laying down procedural guarantees to be respected during both internal and external investigations and introducing a Review Adviser).
The proposal of the Commission was discussed both in the Council and the European Parliament . The latter adopted a resolution on 20 November 2008 i in first reading under the co-decision procedure. It put forward approximately one hundred amendments to the Commission’s proposal. Many amendments have been welcomed by the Commission. At the request of the Czech Presidency of the Council (January-June 2009) the Commission presented in July 2010 a Reflection paper on the reform of the Office i to the European Parliament and the Council. This document outlines possible solutions to take forward the current legislative process. The European Parliament welcomed in October 2010 the Reflection paper and asked the Commission to take up the legislative procedure again. On 6 December 2010, the Council adopted conclusions on the Reflection paper put forward by the Commission. The Supervisory Committee of OLAF contributed to the discussion with its opinions on the Reflection paper and on the respect for fundamental rights and procedural guarantees in investigations by OLAF. i
The Commission has now prepared an amended proposal that takes into account the positions expressed so far and looks forward to achieving the current legislative reform as soon as possible.
Contents
- RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
- LEGAL ELEMENTS OF THE PROPOSAL
- BUDGETARY IMPLICATION
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- 3.1. Strengthening the efficiency of the Office's investigations
- 3.2. The Office's governance: balance between independence and accountability of the Office
- 5. OPTIONAL ELEMENTS
The amended proposal includes further provisions on an increased efficiency of investigations and a reinforced cooperation with the Member States to achieve an effective accelerating of the procedures of investigations.
For this purpose, the Commission proposes that the Supervisory Committee should examine the length of investigations based on information supplied by the Office. In cases where the investigations cannot be closed after 12 months, the Office should inform the Supervisory Committee of the reasons preventing the finalisation of the investigation at intervals of 6 months. This way, a continuous monitoring of the duration of investigations will be ensured until their closure.
The amended proposal further contributes to making the work of the Office more effective by improving its cooperation and information exchange with the other EU institutions, offices, bodies and agencies , as well as with the Member States at all stages of the investigative process.
The institutions, bodies, offices and agencies whose member/staff member or budget is concerned by an investigation should be informed by the Office without undue delay. This way, the institutions, bodies, offices and agencies may take precautionary administrative measures. It is their responsibility to ensure the best protection of the EU's financial interests and to avoid any continuation of an irregularity or potential increase of financial loss. Their information is therefore absolutely necessary. For exceptional cases, in which the confidentiality of the investigation cannot be ensured (for instance if the highest management or political level of an institution, office, body or agency is concerned), the Office should use appropriate alternative channels of information.
Regarding the Office's access to information held by the institutions, bodies, offices and agencies , pursuant to article 4 i of Regulation 1073/1999 the Office continues to have immediate and unannounced access to any relevant information connected with the matter under investigation, held by the EU institutions, offices, bodies and agencies, without prejudice to the exclusions pursuant to the legal basis establishing Europol i.
This amended proposal confirms and further develops the de minimis approach of the 2006 proposal, as well as the zero tolerance policy towards fraud: with regard to the opening of investigations, the Office should take into account the investigation policy priorities and the need for efficient utilisation of the Office’s resources. With specific reference to internal investigations, the Office should consider whether such investigations are best carried out by the institution, body, office or agency concerned, or by the Office itself. Furthermore, in cases where the Office, having carried out an internal investigation, considers that, in the light of the nature of the facts and the scale of the financial damage, internal measures allow for more appropriate follow-up, it should forward the case to the Investigation and Disciplinary Office of the Commission (IDOC) or to the institutions, bodies, office or agency concerned, instead of sending it to the competent national judicial authorities. Thus, the de minimis policy (cases where the Office decides not to open an investigation or not to forward its findings to the competent national judicial authorities) has been clarified in the amended proposal. When implementing the de minimis policy, the Office should apply precise guidelines, as proposed by the Council in its Conclusions of 6 December 2010.
To step up cooperation between the Office and the competent authorities of the Member States , an authority (anti-fraud coordination service) should be designated by each Member State to assist the Office in its collaboration with the national competent authorities. This does not mean that a new authority would be established. Experience shows that due to the different structures in each Member State, it is often very difficult for the Office to address the competent authority in a given Member State.
Regular monitoring is especially important for internal investigations, to ensure that disciplinary action or other measures can be taken by IDOC or equivalent entities in other institutions, bodies, offices or agencies. It is therefore proposed that Member States report upon the Office's request on the follow-up given to the information transmitted to them by the Office. In order to avoid unnecessary administrative burden for Member States, the amended proposal provides that they will report to the Office upon its request on the actions taken and progress made following transmission of information by the Office.
To further encourage cooperation between the Office and Europol and Eurojust , including in the perspective of possible further developments of their responsibilities, as well as with third countries' competent authorities and with international organisations , the insertion of a provision in the regulation is proposed, giving the Office the possibility to conclude administrative arrangements with these entities to facilitate the exchange of information. The Office already has such a cooperation arrangement with Eurojust. According to the Council Decision setting up Eurojust, Eurojust may agree on necessary practical arrangements with the Commission.[9] The Office also has such arrangements with some third countries. Regarding Europol, a new Framework Decision is applicable as of 2010 which stipulates that Europol shall conclude working arrangements with the Office. Therefore, a corresponding rule should be established for the Office. In line with Council Decision of 26 July 2010 establishing the organisation and functioning of the European External Action Service (2010/427/EU) which foresees in Article 3 i the cooperation between EEAS and OLAF, there is an obligation for all institutions to give the necessary support to enable OLAF's agents to fulfil their tasks. The modalities of cooperation of OLAF with third country authorities should be set out in memoranda of understanding with the EEAS and with relevant Commission services.
While the Director-General of the Office continues to be responsible for the opening and for the conduct of investigations, he should be assisted by an internal body which he will consult when opening an investigation, before closing an investigation and whenever he deems necessary. To clarify the internal decision-making procedures with respect to the role of the Director-General of the Office, the Director-General may also delegate in writing the direct execution of investigations to individual members of the staff of the Office. The term of the Director-General should be non-renewable in order to reinforce his independence. The title of 'Director-General' which was introduced by the 2006 proposal is maintained. This is necessary to reflect the status of OLAF as a Commission Directorate-General and to distinguish the Director-General from the members of the senior management team which are of Director grade. To ensure continuity, and in light of recent experience, deputising rules are provided in the amended proposal.
The distinction between internal and external investigations should be limited to the extent strictly necessary. This would facilitate the conduct of investigations. As experience has shown, investigations can start as external ones and later lead to internal investigations or vice versa. Under the current legal framework, persons concerned in internal investigations have the duty to cooperate with the Office according to the Staff Regulations or the Protocol on the Privileges and Immunities of the European Union. The Office's investigative powers are also more detailed in internal investigations. The procedural and fundamental rights of the persons concerned have to be fully respected, be it in an internal or an external investigation.
Enhanced governance, combined with the establishment of a review procedure and provisions on the flow of information between the Office and the institutions, bodies, offices and agencies concerned will help strike the balance between independence and accountability of the Office.
The Supervisory Committee of the Office will continue to ensure that the Office exercises its mission in full independence. Moreover, the role of the Supervisory Committee is further clarified. It should expressly be mandated to monitor information exchanges between the Office and the institutions, bodies, offices and agencies and the developments regarding the application of procedural guarantees. It should also monitor in a general and systemic way the developments regarding the duration of investigations, without interfering with the conduct of investigations. Regarding the appointment of the members of the Supervisory Committee, a staggered renewal is envisaged to preserve its expertise. The Supervisory Committee should be consulted for the appointment of the Director-General and the designation of the deputising Director(s) and should be informed about transmissions to judicial authorities.
Instead of a formal structured dialogue between the Supervisory Committee and the institutions on the investigative function of the Office, a periodical exchange of views is now proposed to increase the Office's governance while respecting its operational independence. The Council, in its conclusions of 6 December 2010, also stresses that a formal structured dialogue could weaken the independence of the Office. In substance, the less formal approach is in line with the original intention of the Commission for increased governance while guaranteeing the independence of the Office for its investigations. The exchange of views will be established between the European Parliament, the Council, the European Commission, with the participation of the Office and the Supervisory Committee. This exchange of views should contribute to the exchange of information and opinion between the stakeholders for an improved efficiency of the Office's activity. The exchange of views should not interfere with the conduct of investigations and it should relate to the strategic priorities for the Office's investigative policies, the reports on the activities of the Supervisory Committee and that of the Director-General of the Office, the relations between the Office and the EU institutions, bodies, offices and agencies; the relations between the Office and the competent authorities of the Member States and the effectiveness of the work of the Office with regard to investigations and that of the Supervisory Committee. In line with the opinions expressed by the institutions, the exchange of views will be flexible: it will take place periodically or upon request of one of the above-mentioned institutions, the Office or the Supervisory Committee.
One of the main objectives of the amended proposal is to further strengthen the procedural rights of persons concerned by the Office's investigations (Article 7a). It is appropriate to make the procedural guarantees clearer and more transparent and to have them apply to all investigations conducted by the Office, both internal and external. These guarantees respect the fundamental rights recognised in particular by the Charter of Fundamental Rights of the Union. Common procedural rights for both internal and external investigations are provided by this proposal (the right for the person concerned by an investigation to make his/her views known before conclusions referring by name to him or her have been drawn, the right to be given a summary of the matters under investigations and to be invited to comment on these matters; the right to be assisted by a person of his/her choice during an interview, the right to use the EU language of his or her choice; the principle that any person concerned by an investigation shall be entitled to avoid self-incrimination). The practical application of these rights should be reflected in the Office's manual of procedures for investigations (OLAF manual) as adopted by the Director-General.
In the proposal of 2006, the Commission proposed a Review Adviser to whom cases may be referred for his or her independent opinion regarding the procedural guarantees. In order to avoid overlapping with the tasks of the Supervisory Committee and to avoid additional formal structures while guaranteeing an effective, efficient, and independent handling of individual complaints, the Commission now proposes that a review procedure be set up, by the Director-General within the Office. The person or persons entrusted with the review procedure should act in full independence. The Director-General of the Office will report to the institutions about the measures taken for the setting up of the review procedure.
As to the fundamental right to the protection of personal data , as recognised in Article 8 of the Charter and Article 16 TFEU, the amended proposal provides for clarification and more detailed provisions implementing the principles of Regulation (EC) No 45/2001 i, in particular the requirement that OLAF appoint a Data Protection Officer.
The Office's communication to the public needs to preserve the confidentiality of investigations and the presumption of innocence and should always be cautious and impartial. Article 8 of the current Regulation foresees obligations concerning confidentiality and data protection.
The Director-General should adopt, after consultation of the Supervisory Committee, the person or persons entrusted with the review procedure, and the Office's Data Protection Officer, the OLAF manual of procedures referred to above. This manual shall provide guidelines on the practical application of the administrative investigations by the Office.
As the EURATOM competences will be covered under Article 325 TFEU as the new legal basis for Regulation 1073/1999, following the entry into force of the Lisbon Treaty, Regulation (Euratom) 1074/1999 should be therefore repealed.
The financial statement attached to the proposal indicates that there will be no impact on the EU budget.
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