Considerations on 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 |
(2) Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council brought substantial changes to the conduct of OLAF’s investigative activities, as regards, in particular, clarifying OLAF’s investigative procedures, strengthening the procedural guarantees of persons concerned by OLAF’s investigations and clarifying the general monitoring role of the Supervisory Committee.
(3) In its Communication COM(2013)533 of 17 July 2013 on Improving OLAF's governance and reinforcing procedural safeguards in investigations, the Commission has put forward concepts for further strengthening the procedural guarantees of persons concerned by OLAF administrative investigations, even before the establishment of the European Public Prosecutor's Office on which the Commission has proposed a Regulation[2].
(4) In its opinion No 2/2013 of December 2013, OLAF’s Supervisory Committee, expressed the view that the remedies offered to persons concerned by OLAF’s investigations against potential violation of their rights and procedural guarantees should be strengthened and that a transparent and efficient complaints procedure should be put in place within OLAF.
(5) In order to ensure a consistent high level of protection of procedural guarantees, all persons concerned by OLAF investigations should be offered enhanced remedies against potential violations of their rights. A Controller of procedural guarantees, external to and independent from OLAF, should therefore be established and be tasked with reviewing OLAF’s compliance with the procedural guarantees of the persons concerned by OLAF investigations laid down in Article 9 of Regulation No 883/2013.
(6) In order to review complaints in due time and enable effective protection of the defence rights, complaints related to notice periods or time limits provided for in the Regulation, such as the notice period for invitation to an interview, should be lodged before the expiry of the ordinary period foreseen in the Regulation.
(7) The Controller should be recruited from outside the EU institutions. For administrative purposes, the Controller should nevertheless be attached to the Commission, while benefitting from sufficient guarantees to ensure his full independence. In agreement with the Controller, the Commission should provide for his supporting staff. The call for applications for the post should specify the eligibility requirements and the selection criteria applicable to the position. The post entails functions normally entrusted to persons appointed to judicial office and candidates must be persons who are able to perform the duties in complete independence and within the time limits foreseen in this Regulation.
(8) The mandate of the Controller should be established without prejudice to the already existing complaints mechanisms. However, in order to streamline the procedures, if an official or other servant of the EU lodges a complaint with the Controller while a complaint on the same issue is being examined in accordance with Article 90a of the Staff Regulations, the Director-General shall await the recommendation of the Controller before taking a decision in accordance with Article 90a. Times limits provided for under Article 90a should apply.
(9) In order to avoid any unnecessary complaint procedure, OLAF should be immediately informed by the Controller when a complaint is lodged and be given the opportunity to remedy the issue or explain why it cannot comply with the complainant’s request.
(10) The Controller should examine the complaint in a swift and adversarial procedure, which should, in principle, not be longer than fifteen working days, verifying the legality of the investigative measure concerned. However, the Controller should respect OLAF’s discretion to conduct the investigation under way as this may compromise OLAF’s independence. In order to be able to fulfil his function, OLAF should communicate to the Controller any information relevant to the complaint. The Controller should give the complainant and the Office the opportunity to provide comments on the issue submitted to him. In order to comply with its duty to conduct the investigation continuously, OLAF should not be prevented from continuing the investigation while a complaint is being examined. The review of the complaint should not unduly prolong OLAF’s investigation and procedures.
(11) In the procedures governing OLAF investigations, the specificities of the status of the members of the EU institutions defined in the Treaty on the European Union should be recognised and reflected in specific provisions aimed at ensuring the proper functioning of the institutions to which they belong. Indeed the political mandate, independent status, special responsibilities and/or special procedure of election or appointment of the members of the EU institutions distinguish them, not individually but functionally, from other persons concerned by OLAF’s investigations. Inspection by OLAF’s staff of the professional office of members of EU institutions, with a view to taking copies of documents or any other data support, should therefore be made subject to prior authorisation by the Controller. The Controller should carry out an objective assessment of the legality of the investigative measure OLAF intends to conduct and whether the same objective could be achieved by less intrusive means.
(12) Regulation No 45/2001 of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies is applicable to the processing of personal data for the purposes of this Regulation.
(13) This Regulation in no way diminishes the powers and responsibilities of the Member States to take measures to combat fraud, corruption and any other illegal activity affecting the financial interests of the Union. Entrusting to an independent Controller the task of examining complaints and issuing prior authorisations to OLAF is accordingly in full compliance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to step up the fight against fraud, corruption and any other illegal activity affecting the financial interests of the Union.