Explanatory Memorandum to 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. |
|---|---|
| source | COM(2014)340  |
| date | 11-06-2014 |
The objectives of the proposal are to further strengthen the procedural guarantees in place for all persons under investigation by the European Anti-Fraud Office (referred to in the regulation as “persons concerned”) and to take into account the special way in which members of EU institutions were elected or appointed as well as their special responsibilities which may justify specific provisions aimed at ensuring the proper functioning of the institutions to which they belong. To this end, Regulation No 883/2013 on investigations by OLAF is to be amended.
These objectives will be achieved by establishing a Controller of procedural guarantees, tasked with two functions:
· Reviewing complaints lodged by persons under investigation about violation of their procedural guarantees,
· Authorizing OLAF to conduct certain investigative measures in respect of members of EU institutions.
In 2013, after many years of intense negotiations, the institutions agreed on a new legal framework for OLAF investigations. This resulted in Regulation 883/2013 on OLAF investigations which entered into force on 1 October 2013. The Regulation brought substantial changes to OLAF's organisation and investigative procedures, in particular as regards reinforcing OLAF's governance and strengthening the procedural guarantees of persons concerned by OLAF investigations. These changes are currently being implemented.
In July 2013, the Commission adopted its proposal on the European Public Prosecutor's Office (EPPO) which includes a series of Union-level procedural safeguards. Together with that proposal, the Commission adopted a Communication on improving the governance of OLAF and reinforcing the procedural safeguards in investigations (COM(2013)533 final). The Communication called for a step-by-step approach to accompany the establishment of the EPPO and further measures to strengthen OLAF's governance and enhance procedural safeguards in its investigations, even before the establishment of the EPPO.
The proposal aims to amend Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council concerning investigations conducted by the OLAF. Other legal acts regulating the protection of the financial interests of the EU are:
– Council Regulation (Euratom, EC) No 2185/1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities' financial interests against fraud and other irregularities,
– Council Regulation (EC, Euratom) No 2988/95 on the protection of the European Communities financial interests,
– The Interinstitutional Agreement of 25 May 1999 between the European Parliament, the Council of the European Union and the Commission of the European Communities concerning internal investigations by the European Anti-fraud Office (OLAF).
Analysis of Impacts
The proposal is accompanied by a Staff Working Document (Analysis of Impacts), which weighs several possible scenarios as a mean to achieve the policy objectives of this initiative. These policy objectives are to achieve the highest possible level of protection of fundamental rights for EU citizens while maintaining the highest possible level of protection of EU financial interests and safeguarding the reputation of the EU institutions. The analysis looks at the impact of each option in terms of its effectiveness in meeting the policy objectives, its financial cost, its impacts on the institutional framework and its acceptability to stakeholders.
This Analysis of Impacts found that the policy objectives could be reached most effectively by appointing an external Controller of procedural guarantees who would act on complaints and authorise certain investigative measures related to members of the institutions. This would allow, at an acceptable budgetary cost, the procedural safeguards to be strengthened, while still respecting the need for effective protection of the EU financial interests.
Contents
The proposal provides for the establishment of a Controller of procedural guarantees, who would be tasked with reviewing complaints lodged by persons concerned in OLAF investigations about the potential non-respect of their procedural guarantees. The Controller would also be responsible for authorising certain investigative measures related to members of EU institutions.
When examining a complaint, the Controller would review whether procedural guarantees provided for in Article 9, Regulation No 883/2013 were respected. For example, he would review whether the notice period for inviting persons concerned to an interview was respected, without, however, taking any position on whether and how to conduct this interview. He would listen to both parties involved before issuing a non-binding recommendation to the Director-General of OLAF. If the Director-General chooses not to follow the Controller’s recommendation, he should state the reasons for doing so in a note attached to the final investigation report submitted to the national authorities or, where relevant, to institutions, bodies, offices or agencies of the European Union concerned. Given the nature of the tasks the Controller will be entrusted with, the position should be held by a person with senior legal expertise in the fields of fundamental rights and criminal law, and eligible to be appointed to judicial office in at least one Member State or in an EU Court. He should be able to perform his duties in complete independence and within the time limits foreseen in this Regulation.
This new complaints procedure does not affect any of the other existing complaint procedures, such as the procedure offered by the EU Staff Regulation, the European Ombudsman or the European Data Protection Supervisor. The Controller will also be subject to the requirements of Regulation 45/2001 on data protection, in particular its Articles 2, 4, 25 and 26.
Regarding the use of certain investigative measures towards members of EU institutions, a new measure is proposed, whereby the Director-General of OLAF must ask for the Controller’s authorisation if OLAF intends to carry out an inspection of the professional offices of these members. This includes taking of copies of documents or any other form of data storage located in their professional offices. This requirement is inspired by the proposal for a European Public Prosecutor's Office as the future EPPO will require similar authorisation from the competent judicial authorities in Member States. This is to reflect the special way in which members of EU institutions have been appointed or elected, as well as their particular responsibilities and their status, which may justify specific provisions to ensure the proper functioning of the institutions to which they belong.
The proposal is based on art. 325 TFEU on combating fraud.
This proposal has no impact on Member States’ powers and responsibilities for combating fraud affecting the financial interests of the EU. It concerns only OLAF's investigations, which are currently laid out in an EU Regulation. In addition, the above-mentioned actions are limited to what is necessary in order to attain the proposed objectives, which is compliant with the principle of proportionality.
The budgetary implications of this proposal are mainly related to human resources. It requires the establishment of the Controller of procedural guarantees and members of his secretariat. It is envisaged that the Controller would have the status of a Special Advisor remunerated at the level of an AD15, which appears as the most appropriate status in view of the expected tasks. With regard to the term of office of five years, the underlying contracts would in this case be issued for administrative reasons in compliance with Article 123 of the Conditions of Employment of Other Servants. The obligations under Article 123 CEOS would be deemed fulfilled through the appointment procedure. He would work part-time (25 per cent in the first year and 50 per cent thereafter) and would be assisted by a secretariat initially composed of two persons in the administrators’ function group and one secretarial assistant in the assistants/secretarial clerks’ function group, which could be expanded or reduced in view of its workload. The Controller would also have a substitute, who would have the same status and grade as the Controller and would be called upon to act only in case the Controller is not available. For administrative purposes, they would all be attached to the Commission, while benefitting from specific guarantees ensuring their full independence in the exercise of their functions.