1999/396/EC, ECSC, Euratom: Commission Decision of 2 June 1999 concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities' interests (notified under document number SEC(1999) 802)
16. 6. 1999 EN Official Journal of the European Communities L 149/57 COMMISSION DECISION of 2 June 1999 concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities’ interests (notified under document number SEC(1999) 802) (1999/396/EC, ECSC, Euratom) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, and in particular Article 218 thereof, Having regard to the Treaty establishing the European Coal and Steel Community, and in particular Article 16 thereof, Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 131 thereof, Whereas: (1) (2) (3) (4) Regulation (EC) No 1073/1999 of the European the Council (1) and Council Parliament and of Regulation (Euratom) No 1074/1999 (2) concerning investigations conducted by the European Anti- Fraud Office (hereinafter ‘the Office') provide that the Office is to initiate and conduct administrative investigations within the institutions, bodies and offices and agencies established by or on the basis of the EC Treaty or Euratom Treaty; the responsibility of the Office as established by the Commission extends beyond the protection of financial interests, to include all activities relating to the need to safeguard Community interests liable to give rise to against administrative or criminal procedings; irregular conduct the fight against the scope of fraud should be enhanced by broadened and its exploiting existing expertise in the area of adminis- trative investigations; effectiveness its administrative therefore, on the basis of autonomy, the Commission should entrust to the Office the task of conducting internal adminis- trative investigations with a view to bringing to light serious situations relating to the discharge of professional duties which may constitute a failure (1) OJ L 136, 31. 5. 1999, p. 1. (2) OJ L 136, 31. 5. 1999, p. 8. to comply with the obligations of officials and the Communities, as referred to in servants of Articles 11, 12, second and third paragraphs, 13, 14, 16 and 17, first paragraph, of the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants (hereinafter referred to as ‘the Staff Regulations'), detrimental to the interests of those Communities and liable to result in disciplinary or, in appropriate cases, criminal proceedings, or serious misconduct, as referred to in Article 22 of the Staff Regulations, or a failure to comply with the analogous obliga- tions of the Commission or members of the Commission’s staff not subject to the Staff Regulations; the Members of such investigations should be conducted in full the compliance with the relevant provisions of Treaties establishing the European Communities, and in particular the Protocol on privileges and immunities, the texts implementing them and the Staff Regulations; such investigations should be carried out under equivalent conditions in all the Community insti- tutions, bodies and offices and agencies; assignment of this task to the Office should not affect the responsibilities of the institutions, bodies or agen- cies themselves and should in no way reduce the legal protection of the persons concerned; pending the amendment of the Staff Regulations, practical arrangements should be laid down stipu- lating how the Members of the Commission and its officials and servants are to cooperate in the smooth operation of the internal investigations; the Commission’s Decision of 14 July 1998 concerning investigations carried out by the Task Force ‘Coordination of fraud', together with its rules of 9 December 1998, should be repealed, the fight against implementing (5) (6) (7) (8) L 149/58 EN Official Journal of the European Communities 16. 6. 1999 HAS DECIDED AS FOLLOWS: Article 3 Article 1 Duty to cooperate with the Office At the request of the Director of the Office, the Commis- sion’s Security Office shall assist the Office in the prac- tical conduct of investigations. Assistance from the Security Office The Secretary-General, the services and any official or servant of the Commission shall be required to cooperate fully with the Office’s agents and to lend any assistance required to the investigation. With that aim in view, they shall supply the Office’s agents with all useful informa- tion and explanations. Without prejudice to the relevant provisions of the Treat- ies establishing the European Communities, in particular the Protocol on privileges and immunities, and the texts implementing them, Members of the Commission shall cooperate fully with the Office. Article 2 Duty to supply information Any official or servant of the Commission who becomes aware of evidence which gives rise to a presumption of the existence of possible cases of fraud, corruption or any other illegal activity detrimental to the interests of the Communities, or of serious situations relating to the discharge of professional duties which may constitute a failure to comply with the obligations of officials or servants of the Communities liable to result in discip- linary or, in appropriate cases, criminal proceedings, or a failure to comply with the analogous obligations of the the Members of Commission’s staff not subject to the Staff Regulations, shall inform without delay his Head of Service or Director-General or, if he considers it useful, the Secre- tary-General of the Commission or the Office direct. the Commission or members of the Directors-General and the The Secretary-General, Heads of Service of transmit without delay to the Office any evidence of which they are aware from which the existence of irregularities as referred to in the first paragraph may be presumed. the Commission shall Officials or servants of the Commission shall in no way suffer inequitable or discriminatory treatment as a result of having communicated the information referred to in the first and second paragrpahs. Members of the Commission who acquire knowledge of facts as referred to in the first paragraph shall inform the President of the Commission or, if they consider it useful, the Office direct. Article 4 Informing the interested party Where the possible implication of a Member, official or servant of the Commission emerges, the interested party shall be informed rapidly as long as this would not be harmful to the investigation. In any event, conclusions referring by name to a Member, official or servant of the Commission may not be drawn once the investigation has been completed without the interested party’s having been enabled to express his views on all the facts which concern him. In cases necessitating the maintenance of absolute secrecy for the purposes of the investigation and requiring the use of investigative procedures falling within the remit of a national judicial authority, compliance with the obligation to invite the Member, official or servant of the Commis- sion to give his views may be deferred in agreement with the President of the Commission or its Secretary-General respectively. Article 5 Information on the closing of the investigation with no further action taken If, following an internal investigation, no case can be made out against a Member, official or servant of the Commission against whom allegations have been made, the internal investigation concerning him shall be closed, with no further action taken, by decision of the Director of the Office, who shall inform the interested party in writing. Article 6 Waiver of immunity Any request from a national police or judicial authority regarding the waiver of immunity from judicial proceed- ings of an official or the Commission concerning possible cases of fraud, corruption or any other illegal activity shall be transmitted to the Director of the Office for his opinion. If a request for waiver of immunity concerns a Member of the Commission, the Office shall be informed. servant of 16. 6. 1999 EN Official Journal of the European Communities L 149/59 Article 7 Repeal The Commission’s Decision of 14 July 1998 concerning investigations carried out by the Task Force ‘Coordination of the fight against fraud', together with its implementing rules of 9 December 1998, are hereby repealed. Article 8 Effective date This Decision shall take effect on 1 June 1999. Done at Brussels, 2 June 1999. For the Commission The President Jacques SANTER