Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF)
31. 5. 1999 EN Official Journal of the European Communities L 136/1 I (Acts whose publication is obligatory) REGULATION (EC) No 1073/1999 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 280 thereof, Having regard to the proposal from the Commission (1), Having regard to the opinion of the Court of Auditors (2), Acting in accordance with the procedure laid down in Article 251 of the Treaty (3), to the Communities’ (1) Whereas the institutions and the Member States attach great importance to the protection of the Communities’ financial interests and to the fight against fraud and any other illegal activities detri- mental interests; whereas the Commission’s responsibility in that connection is closely bound up with its duty to implement the budget pursuant to Article 274 of the Treaty; whereas the importance of action to that end is confirmed by Article 280 of the EC Treaty; financial (2) Whereas the protection of the Communities’ finan- cial interests extends not only to the management of budget appropriations but also to all measures affecting or liable to affect their assets; (3) Whereas all available means must be deployed fully to attain this objective, notably in the context of investigative the Community, while the current distribution and balance of responsibilities as between the national and Community levels should be maintained; devolving duties upon (1) OJ C 21, 26. 1. 1999, p. 10. (2) Opinion delivered on 14 April 1999 (not yet published in the Official Journal). (3) Opinion of the European Parliament delivered on 6 May 1999 (not yet published in the Official Journal). Council Decision of 25 May 1999. (4) Whereas to reinforce the means available for combating fraud, while respecting the principle of each institution’s internal organisational autonomy, the Commission has established among its own departments by Decision 1999/352/EC, ECSC, Euratom (4), a European Anti-Fraud Office (herein- after ‘the Office') with responsibility for conducting administrative fraud investigations; whereas it has given this Office full independence to exercise its investigative function; (5) Whereas the responsibility of the Office as set up by the Commission extends beyond the protection of financial interests to include all activities relating ir- to safeguarding Community interests against regular conduct liable to result in administrative or criminal proceedings; (6) Whereas it is appropriate to provide that the Office ensures cooperation between the Member States and the Commission to protect the Community’s financial interests provided for in Article 280 of the EC Treaty; (7) Whereas, given the need to step up the fight against fraud, corruption and any other illegal activ- ities detrimental financial to the Communities’ interests, the Office must be able to conduct internal investigations in all the institutions, bodies, offices and agencies established by or on the basis of the EC and Euratom Treaties (hereinafter ‘the institutions, bodies, offices and agencies'); (8) Whereas Decision 1999/352/EC, ECSC, Euratom provides that for the purposes of investigations the Office shall exercise the powers conferred by the Community legislator, subject to the limits and conditions laid down thereby; (4) See page 20 of this edition of the Official Journal. L 136/2 EN Official Journal of the European Communities 31. 5. 1999 to protect (9) Whereas the Office should be entrusted with the exercise of the powers conferred on the Commis- sion by Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on-the- spot checks and inspections carried out by the Commission in order the European Communities’ financial interests against fraud and other irregularities (1); whereas the Office must also be allowed to exercise the other powers conferred on the Commission to conduct on-the-spot checks and inspections in the Member States, notably for the purpose of detecting irregularities as required by Article 9 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protec- tion of the European Communities’ financial inter- ests (2); respect (10) Whereas these investigations must be conducted in accordance with the Treaty and in particular with the Protocol on the privileges and immunities of the European Communities, while respecting the Staff Regulations of officials and the conditions of employment of other servants of the European Communities (hereinafter referred to as ‘the Staff for human Regulations'), and with full rights and fundamental freedoms, in particular the for principle of the right of persons fairness, involved to express their views on the facts concerning them and for the principle that the conclusions of an investigation may be based solely on elements which have evidential value; whereas to that end the institutions, bodies, offices and agencies must lay down the terms and conditions are under which such internal conducted; whereas consequently the Staff Regula- tions should be amended in order to lay down the rights and obligations of officials and other servants as regards internal investigations; investigations (11) Whereas these internal investigations can be conducted only if the Office is guaranteed access to all premises of the institutions, bodies, offices and agencies and to all information and documents held by them; (13) Whereas it is for the competent national authorities or the institutions, bodies, offices or agencies, as the case may be, to decide what action should be taken on completed investigations on the basis of the report drawn up by the Office; whereas it should nevertheless be incumbent upon the Director of the Office to forward directly to the judicial author- ities of the Member State concerned information acquired by the Office in the course of internal investigations concerning situations liable to result in criminal proceedings; (14) Whereas the terms on which the Office’s employees will discharge their duties and the terms governing the Director’s exercise of his responsi- bility for the conduct of investigations by the Office’s employees should be laid down; (15) Whereas, for the sake of successful cooperation between the Office, the Member States and the relevant institutions, bodies, offices and agencies, the reciprocal exchange of information must be organised, subject to rules of confidentiality where information is subject to professional secrecy, while ensuring that it enjoys the proper data protection; (16) Whereas, to ensure that the findings of investiga- tions conducted by the Office’s employees are taken into account and that the requisite follow-up action is taken, the reports should have the status of admissible evidence in administrative and judi- cial proceedings; whereas, to that end, they should be drawn up in a manner compatible with the rules governing administrative reports in the Member States; (17) Whereas the Office should enjoy independence in the discharge of its function; whereas, to reinforce that independence, the Office should be subject to regular monitoring of its investigative function by a Supervisory Committee, made up of outside inde- pendent persons highly qualified in the Office’s fields of activity; whereas the Committee’s duties should also include assisting the Office’s Director in discharging his responsibilities; (12) Whereas to ensure that the Office is independent in carrying out the tasks conferred on it by this Regulation, its Director must be given the power to open an investigation on his own initiative; (1) OJ L 292, 15. 11. 1996, p. 2. (2) OJ L 312, 23. 12. 1995, p. 1. (18) Whereas administrative investigations should be conducted under the authority of the Director of the Office, in full independence from the institu- tions, bodies, offices and agencies and from the Supervisory Committee; 31. 5. 1999 EN Official Journal of the European Communities L 136/3 (19) Whereas it should be incumbent on the Director of the Office to ensure the protection of personal data information and respect for confidentiality of the investigations; gathered in the course of the and other whereas officials Communities should be assured of legal protection equivalent to that provided for by Articles 90 and 91 of the Staff Regulations; servants of (20) Whereas the activities of the Office should be assessed after a three-year period; to combat financial (21) Whereas this Regulation in no way diminishes the powers and responsibilities of the Member States to fraud affecting the take measures Communities’ whereas interests; entrusting to an independent Office the task of conducting external administrative investigations in this area is accordingly in full compliance with the subsidiarity principle laid down by Article 5 of the Treaty; whereas the operation of the Office is likely to step up the fight against fraud, corruption and any other illegal activities affecting the Commun- ities’ financial interests and is therefore compatible with the proportionality principle, HAVE ADOPTED THIS REGULATION: Article 1 Objectives and tasks the European Community, 1. In order to step up the fight against fraud, corrup- tion and any other illegal activity affecting the financial the European interests of Anti-Fraud Office established by Commission Decision 1999/352/EC, ECSC, Euratom (hereinafter ‘the Office') shall exercise the powers of investigation conferred on the Commission by the Community rules and Regulations and agreements in force in those areas. 2. The Office shall provide the Member States with assistance from the Commission in organising close and regular cooperation between their competent authorities in order to coordinate their activities for the purpose of protecting the European Community’s financial interests against fraud. The Office shall contribute to the design and development of methods of fighting fraud and any other illegal activity affecting the financial interests of the European Community. 3. 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 the purpose of: administrative investigations conduct for ü fighting fraud, corruption and any other illegal activity the European interests of affecting the financial Community, ü 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 dis- ciplinary 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 the European employment of other Communities (‘the Staff Regulations'). servants of Article 2 Administrative investigations the Office in the performance of ‘administrative Within the meaning of this Regulation, investigations' (hereinafter ‘investigations') shall mean all inspections, checks and other measures undertaken by employees of their duties, in accordance with Articles 3 and 4, with a view to achieving the objectives set out in Article l and to estab- lishing, where necessary, the irregular nature of the activ- ities under investigation. These investigations shall not affect the powers of the Member States to bring criminal proceedings. Article 3 External investigations The Office shall exercise the power conferred on the Commission by Regulation (Euratom, EC) No 2185/96 to carry out on-the-spot inspections and checks in the Member States and, in accordance with the cooperation agreements in force, in third countries. As part of its investigative function, the Office shall carry out the inspections and checks provided for in Article 9(1) of Regulation (EC, Euratom) No 2988/95 and in the sectoral rules referred to in Article 9(2) of that Regulation in accordance with the in the Member States and, cooperation agreements in force, in third countries. Article 4 Internal investigations In the areas referred to in Article 1, the Office shall 1. carry out administrative investigations within the institu- tions, bodies, offices and agencies (hereinafter ‘internal investigations'). L 136/4 EN Official Journal of the European Communities 31. 5. 1999 These internal investigations shall be carried out subject to the rules of the Treaties, in particular the Protocol on privileges and immunities of the European Communities, and with due regard for the Staff Regulations under the and in accordance with the procedures conditions provided for in this Regulation and in decisions adopted by each institution, body, office and agency. The institu- tions shall consult each other on the rules to be laid down by such decisions. Provided that the provisions referred to in paragraph 2. 1 are complied with: ü the Office shall have the right of immediate and unannounced access to any information held by the institutions, bodies, offices and agencies, and to their premises. The Office shall be empowered to inspect the accounts of the institutions, bodies, offices and agencies. The Office may take a copy of and obtain extracts from any document or the contents of any data medium held by the institutions, bodies, offices and agencies and, if necessary, assume custody of such documents or data to ensure that there is no danger of their disappearing, information from ü the Office may request oral members of from and bodies, institutions managers of offices and agencies and from the staff of the institutions, bodies, offices and agencies. the 3. Under the conditions and in accordance with the procedures laid down by Regulation (Euratom, EC) No 2185/96, the Office may carry out on-the-spot inspections at the premises of economic operators concerned, in order to obtain access to information relating to possible irregu- larities which such operators might hold. adopted by each institution, body, office or agency as provided for in paragraph 1, shall in particular include rules concerning: (a) a duty on the part of members, officials and other servants of the institutions and bodies, and managers, officials and servants of offices and agencies, to co- operate with and supply information to the Office’s servants; (b) the procedures to be observed by the Office’s employees when conducting internal investigations and the guarantees of the rights of persons concerned by an internal investigation. Article 5 Opening of investigations 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. Article 6 Investigations procedure The Director of the Office shall direct the conduct 1. of investigations. The Office may, moreover, ask any person concerned to supply such information as it may consider pertinent to its investigations. The Office’s employees shall carry out their tasks on 2. production of a written authorisation showing their iden- tity and their capacity. The institutions, bodies, offices and agencies shall be 4. informed whenever employees of the Office conduct an investigation on their premises or consult a document or request information held by such institutions, bodies, offices and agencies. investigations 5. Where a member, manager, official or other servant may be personally involved, the institution, body, office or agency to which he belongs shall be informed. reveal that In cases requiring absolute secrecy for the purposes of the investigation or requiring recourse to means of invest- igation falling within the competence of a national judi- cial 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 The Office’s employees shall be equipped for each 3. intervention with a written authority issued by the Director indicating the subject matter of the investigation. inspections and checks, 4. During on-the-spot the Office’s employees shall adopt an attitude in keeping with the rules and practices governing officials of the Member State concerned, with the Staff Regulations and with the decisions referred to in the second subparagraph of Article 4(1). 5. Investigations shall be conducted continuously over a period which must be proportionate to the circum- stances and complexity of the case. that shall States ensure The Member 6. their competent authorities, in conformity with national provi- sions, give the necessary support to enable the Office’s employees to fulfil their task. The institutions and bodies shall ensure that their members and staff afford the neces- sary assistance to enable the Office’s agents to fulfil their task; their the offices and agencies shall ensure that managers and staff do likewise. 31. 5. 1999 EN Official Journal of the European Communities L 136/5 Article 7 Article 9 Duty to inform the Office The institutions, bodies, offices and agencies shall 1. forward to the Office without delay any information relating to possible cases of fraud or corruption or any other illegal activity. The institutions, bodies, offices and agencies and, in 2. so far as national law allows, the Member States shall, at the request of the Office or on their own initiative, forward any document or information they hold which relates to a current internal investigation. Member States shall forward the documents and informa- tion relating to external investigations in accordance with the relevant provisions. 3. The institutions, bodies, offices and agencies, and, in so far as national law allows, the Member States shall also send the Office any other document or information considered pertinent which they hold relating to the fight against fraud, corruption and any other illegal activity affecting the Communities’ financial interests. Article 8 Confidentiality and data protection Information obtained in the course of external 1. investigations, in whatever form, shall be protected by the relevant provisions. 2. Information forwarded or obtained in the course of internal investigations, in whatever form, shall be subject to professional secrecy and shall enjoy the protection given by the provisions applicable to the institutions of the European Communities. Such information may not be communicated to persons other than those within the institutions of the European Communities or in the Member States whose functions require them to know, nor may it be used for purposes fraud, corruption or any other other than to prevent illegal activity. Investigation report and action taken following investigations 1. On completion of an investigation carried out by the Office, the latter shall draw up a report, under the authority of the Director, specifying the facts established, the financial loss, if any, and the findings of the invest- igation, including the recommendations of the Director of the Office on the action that should be taken. In drawing up such reports, account shall be taken 2. of the procedural requirements laid down in the national law of the Member State concerned. Reports drawn up on that basis shall constitute admissible evidence in adminis- trative or judicial proceedings of the Member State in which their use proves necessary, in the same way and under the same conditions as administrative reports drawn up by national administrative inspectors. They shall be subject to the same evaluation rules as those applicable to administrative reports drawn up by national administrative inspectors and shall be of identical value to such reports. Reports drawn up following an external 3. invest- igation and any useful related documents shall be sent to the competent authorities of the Member States in ques- tion in accordance with the rules relating to external investigations. 4. Reports drawn up following an internal investigation and any useful related documents shall be sent to the institution, body, office or agency concerned. The institu- tion, body, office or agency shall take such action, in particular disciplinary or legal, on the internal investiga- tions, as the results of those investigations warrant, and shall report thereon to the Director of the Office, within a deadline laid down by him in the findings of his report. Article 10 Forwarding of information by the Office that shall ensure The Director 3. 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 (1). 4. The Director of the Office and the members of the Supervisory Committee referred to in Article 11 shall ensure that this Article and Articles 286 and 287 of the Treaty are applied. (1) OJ L 281, 23. 11. 1995, p. 31. 1. Without prejudice to Articles 8, 9 and 11 of this Regulation and to the provisions of Regulation (Euratom, EC) No 2185/96, the Office may at any time forward to the States concerned information obtained in the course of external investigations. the Member competent authorities of 2. Without prejudice to Articles 8, 9 and 11 of this Regulation, the Director of the Office shall forward to the judicial authorities of the Member State concerned the information obtained by the Office during internal in- in criminal vestigations into matters liable to result proceedings. Subject to the requirements of the invest- igation, he shall simultaneously inform the Member State concerned. L 136/6 EN Official Journal of the European Communities 31. 5. 1999 3. Without prejudice to Articles 8 and 9 of this Regula- tion, the Office may at any time forward to the institu- tion, body, office or agency concerned the information obtained in the course of internal investigations. act on the recommendations made by it. The Director shall inform the committee of cases requiring informa- tion to be forwarded to the judicial authorities of a Member State. Article 11 Supervisory Committee 8. The Supervisory Committee shall adopt at least one report on its activities per year which it shall send to the institutions. The committee may submit reports to the European Parliament, the Council, the Commission and the Court of Auditors on the results of the Office’s inves- tigations and the action taken thereon. The Supervisory Committee shall 1. Office’s implementation of the investigative function. independence by regular monitoring of reinforce the the At the request of the Director or on its own initiative, the committee to the Director concerning the activities of the Office, without however interfering with the conduct of investigations in progress. shall deliver opinions It shall be composed of five independent outside 2. persons who possess required for appointment in their respective countries to senior posts relating to the Office’s areas of activity. They shall be appointed by common accord of the European Parlia- ment, the Council and the Commission. the qualifications The term of office of members shall be three years 3. and shall be renewable once. 4. On expiry of their term of office, members shall remain in office until their appointments are renewed or until they are replaced. 5. In carrying out their duties, they shall neither seek nor take instructions from any government or any institu- tion, body, office or agency. The Supervisory Committee 6. its chairman. It shall adopt its own rules of procedure. It shall hold at least 10 meetings per year. It shall take its decisions by a majority of its members. Its secretariat shall be provided by the Office. appoint shall shall The Director 7. forward to the Supervisory Committee each year the Office’s programme of activities referred to in Article 1 of this Regulation. The Director the shall keep the committee regularly informed of 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 invest- igation, 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 Article 12 Director The Office shall be headed by a Director nominated 1. by the Commission for a term of five years, which may be renewed once. the 2. With a view to appointing the Director, Commission shall, following a call for applications which shall, if appropriate, be published in the Official Journal of the European Communities and after a favourable opinion has been given by the Supervisory Committee, draw up a list of suitably qualified candidates. After consultations with the European Parliament and the Council, the Commission shall appoint the Director. 3. The Director shall neither seek nor take instructions from any government or any institution, body, office or agency in the performance of his duties with regard to the opening and carrying out of external and internal investi- gations or to the drafting of reports following such inves- tigations. If the Director considers that a measure taken by the Commission calls his independence into question, he shall be entitled to bring an action against his institu- tion before the Court of Justice. report The Director shall regularly to the European Parliament, the Council, the Commission and the Court of Auditors on the findings of investigations carried out by the Office, whilst respecting the confidentiality of those investigations, the legitimate rights of the persons concerned and, where appropriate, national provisions applicable to judicial proceedings. The above institutions shall ensure that the confiden- tiality of the investigations conducted by the Office is the respected, persons concerned, and, where judicial proceedings have been instituted, that all national provisions applicable to such proceedings have been adhered to. together with the legitimate rights of 31. 5. 1999 EN Official Journal of the European Communities L 136/7 Before adopting any disciplinary sanction against 4. the Director, the Commission shall consult the Super- visory Committee. In addition, measures relating to disci- plinary sanctions against the Director must be the subject of reasoned decisions, which shall be forwarded for in- formation to the European Parliament and to the Council. Article 13 Financing The appropriations for the Office, the total amount of which shall be entered under a special budget heading within Part A of the section of the general budget of the European Union relating to the Commission, shall be set out in detail in an Annex to that Part. The posts allocated to the Office shall be listed in an Annex to the Commission’s establishment plan. Article 14 Judicial review 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 this Article against an act adversely affecting him of committed by the Office as part of an internal invest- igation, in accordance with the procedures laid down in Article 90(2) of the Staff Regulations. Article 91 of the Staff Regulations shall apply to decisions taken with regard to such complaints. 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. Article 15 Progress report During the third year following the entry into force of this Regulation, the Commission shall transmit to the European Parliament and the Council a progress report on the Office’s activities, accompanied by the Supervisory Committee’s opinion, together, where appropriate, with proposals to modify or extend the Office’s tasks. Article 16 Entry into force This Regulation shall enter into force on 1 June 1999. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 25 May 1999. For the European Parliament The President J. M. GIL-ROBLES For The Council The President H. EICHEL