Legal provisions of COM(2014)340 - Establishment of a Controller of procedural guarantees to the European Anti-Fraud Office - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2014)340 - Establishment of a Controller of procedural guarantees to the European Anti-Fraud Office. |
|---|---|
| document | COM(2014)340  |
| date | June 11, 2014 |
Article 1 - Amendment to Regulation 883/2013
1) In Article 2, the following paragraph (8) is added after paragraph (7):
“(8) “member of an EU institution” shall mean a member of the European Parliament, a member of the European Council, a representative of a Member State at ministerial level in the Council, a member of the European Commission, a member of the Court of Justice of the European Union, a member of the Governing Council of the European Central Bank and a member of the Court of Auditors.”
2) In Article 9(2) fourth sub-paragraph, the following second sentence is inserted:
“The person concerned shall however be informed of his rights at the beginning of the taking of the statements, in particular of the right to be assisted by a person of his choice.”
3) The following Articles 9a, 9b and 9c are inserted after Article 9:
"Article 9 - a The Controller of procedural guarantees
1. Any person concerned by an investigation by the Office shall be entitled to lodge a complaint with the Controller of procedural guarantees (hereinafter “the Controller”) regarding the respect by the Office of the procedural guarantees provided in Article 9.2. Complaints may be lodged at the latest one month after the complainant becomes aware of the relevant facts that constitute the alleged violation of his procedural guarantees. No complaint may be filed later than one month after the closure of the investigation. Complaints related to the notice period referred to in Article 9(2) and 9(4) shall be filed before the expiry of the period of notice laid down in these provisions.
3. When receiving a complaint, the Controller shall inform the Director-General of the Office immediately and give the Office the possibility to resolve g the issue raised by the complainant, within 15 working days.
4. The Office shall transmit to the Controller, without prejudice to Article 10 of this Regulation, any relevant information necessary to issue a recommendation.
5. The Controller shall issue a recommendation on the complaint within one month of the communication by the Office of relevant action to remedy the issue or from the expiry of the period referred to in Article 9a(3). The recommendation shall be submitted to the Office and communicated to the complainant. In exceptional cases, duly motivated in a letter addressed to the Director-General, the Controller may decide on extending the period for issuing the recommendation by a further 15 days. The absence of a recommendation by the Controller within the time limits set out in this paragraph shall be deemed closure of the complaint without a recommendation.
6. Without interfering with the conduct of the investigation under way, the Controller shall examine the complaint in an adversarial procedure. Upon their consent, the Controller may ask witnesses to provide written or oral explanations he considers relevant in ascertaining the facts.
7. The Director-General shall not be obliged to follow the Controller’s recommendation on the issue. However without prejudice to Article 7(5), if he decides not to follow the recommendation, he shall communicate to the complainant and to the Controller the main reasons for that decision, inasmuch as it does not affect the on-going investigation. He shall state the reasons for not following the Controller’s recommendation in a motivated note to be attached to the final investigation report.
8. The Director-General may request, indicating a time limit, the opinion of the Controller on any matter related to the respect of procedural guarantees in his mandate, including on the decision to defer information of the person concerned referred to in Article 9(3).
9. (Without prejudice to the time limits provided for in Article 90a of the Staff Regulations, where a complaint has been lodged with the Director-General by an official or other servant of the EU in accordance with Article 90a of the Staff Regulations and the official or other servant has lodged a complaint with the Controller related to the same issue, the Director-General shall await the recommendation of the Controller before replying to the complaint.)
Article 9 - b Prior authorisation for certain investigative measures
1. Without prejudice to the independence of the Office with respect to the discretion to conduct the investigation under way, the Director-General shall first obtain the authorisation of the Controller when the Office intends to exercise its power to inspect the professional office of a member of an EU institution at the premises of an EU institution during an internal investigation or to take copies of documents or of any data support located in this office, irrespective of the nature of the support on which the data is stored. To this end, the Office shall transmit any relevant information necessary to assess the request for authorisation. This procedure is to be regarded as confidential and the Controller shall not disclose any information concerning it.2. In taking his decision on whether or not to grant authorisation for the aforementioned investigative measures, the Controller shall carry out an objective assessment of their legality and examine whether the same objective could be achieved with less intrusive investigative measures. The Controller shall reply to the request for an authorisation promptly and no later than 48 hours after receiving the request. The absence of a reply by the Controller within this time limit shall be deemed to be an authorisation.
3. In duly justified urgent cases, the Office may request that the time limit referred to in paragraph 2 is shortened to 24 hours, in agreement with the Controller. The time limit may also be extended to a maximum of 72 hours at the duly motivated request of the Controller.
Article 9 - c Appointment and status of the Controller
1. The Controller and his substitute shall be appointed by common accord of the European Parliament, the Council and the Commission for a non-renewable term of five years. On expiry of their terms, they should remain in office until they are replaced.Following a call for applications in the Official Journal of the European Union, the Commission shall draw up a list of suitably qualified candidates for the positions of the Controller and of the substitute, after a favourable opinion on the selection procedure has been given by the Supervisory Committee.
The decision to appoint the Controller and his substitute shall also include a reserve list of potential candidates to replace the Controller for the remainder of his term of office in the event of resignation, death, permanent incapacity or removal from office.
The Controller and his substitute shall be administratively attached to the Commission. Their Secretariat shall be provided by the Commission, in close consultation with the Controller.
2. The Controller and his substitute shall exercise their functions in complete independence and shall neither seek nor take instructions from anyone in the performance of their duties. They shall not perform any functions within the Office. In exercising their functions they shall take account of the need for effective application of the rules on the protection of the financial interests of the European Union and on the fight against fraud laid down in Union legislation.
3. If the Controller or his substitute cease to fulfil the conditions required for the performance of their duties, or if they are found guilty of serious misconduct, the European Parliament, the Council and the Commission may, by common accord, relieve them of their duties.
4. The Controller shall report on his activities, on an annual basis, to the European Parliament, the Council, the Commission, the Supervisory Committee and the Office. His reports shall not refer to individual cases under investigation and ensure the confidentiality of investigations even after their closure.”
Article 2
This Regulation shall be binding in its entirety and directly applicable in all Member States.