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European Anti-Fraud Office — investigation rules

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European Anti-Fraud Office — investigation rules

SUMMARY OF:

Regulation (EU, Euratom) No 883/2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF)

Regulation (EU, Euratom) 2020/2223 amending Regulation (EU, Euratom) No 883/2013, as regards cooperation with the European Public Prosecutor’s Office and the effectiveness of the European Anti-Fraud Office investigations

WHAT IS THE AIM OF THE REGULATIONS?

Regulation (EU, Euratom) No 883/2013 aims to:

reinforce the independence of the European Anti-Fraud Office (OLAF), set up under Decision 1999/352/EC, ECSC, Euratom to combat fraud, corruption and any illegal activity which could harm the EU’s financial interests*;
make OLAF investigations more effective;
improve cooperation between the different institutions and bodies involved;
strengthen the rights of individuals covered by investigations.

Amending Regulation (EU, Euratom) 2020/2223 seeks to:

adapt the operation of OLAF to the establishment of the European Public Prosecutor’s Office (EPPO), set up under Regulation (EU) 2017/1939 (see summary) to ensure maximum complementarity; and
enhance the effectiveness of OLAF’s investigative function as regards a number of specific issues, including:
- new rules for carrying out on-the-spot checks and inspections
- access to bank account information
- establishing a controller of procedural guarantees
- access to the final report by the person concerned
- the strengthened role of the anti-fraud coordination services in the EU countries and
- new rules to improve the follow-up of investigations.

KEY POINTS

OLAF:

conducts internal and external investigations;
provides assistance to EPPO based on close cooperation, exchange of information, complementarity and avoidance of duplication;
helps EU countries to organise close cooperation between their anti-fraud authorities;
develops EU anti-fraud policies as a European Commission service;
contributes to the design and development of anti-fraud and anti-corruption strategies to protect the EU’s financial interests;
promotes and coordinates sharing of operational experience and best procedural practices;
participates, where necessary, in joint investigation teams;
supports joint national anti-fraud activities.

Internal investigations

OLAF:

carries out administrative investigations within EU institutions, bodies, offices and agencies, and at the premises of economic operators*;
enjoys immediate and unannounced access to any relevant information and data, relating to the matter under investigation;
may request oral and written information from officials, other staff and heads of offices and agencies;
informs the institutions, bodies, offices and agencies if an investigation concerns their employees and consults them, where necessary, if precautionary administrative measures should be taken to protect the EU’s financial interests.

Amending Regulation (EU, Euratom) 2020/2223 allows OLAF, during its investigations, access to privately owned devices used for work purposes, if OLAF has reasonable grounds for suspecting that their content may be relevant for the investigation. Access would be based on internal rules to be adopted by each institution, body, office or agency concerned in respect of its staff and members.

External investigations

OLAF:

carries out on-the-spot checks and inspections and other investigative activities in EU countries, non-EU countries, the premises of international organisations and on economic operators, according to the rules laid down in Regulation (EU, Euratom) No 883/2013 and Regulation (Euratom, EC) No 2185/96, and to the terms of cooperation and mutual assistance agreements;
may transmit to EU countries’ competent national authorities information about fraud, corruption or any other illegal activity affecting the EU’s financial interests to enable them to take appropriate action.

Under amending Regulation (EU, Euratom) 2020/2223, in external investigations, access to privately owned devices used for work purposes would take place under the same conditions and to the same extent as they do for national authorities in the relevant country.

Investigations procedure

OLAF’s director-general:

decides whether, if there is sufficient suspicion, to open an external or internal investigation, either on the director-general’s own initiative or following a request from an EU institution, body, office or agency, or from an EU country;
may send any relevant information to the EU institution, body, office or agency or the EU country concerned if the director-general decides not to open an investigation;
directs the conduct of investigations on the basis of written instructions, where appropriate;
reports to the Supervisory Committee if an investigation cannot be closed within 12 months and every 6 months thereafter;
may transmit to national judicial authorities any information obtained during an internal investigation coming under their jurisdiction.

OLAF staff:

conducts investigations objectively and impartially, respecting the regulation’s procedural guarantees and the presumption of innocence;
seeks evidence for and against the person concerned;
may, with suitable notice, interview an individual or a witness any time during the investigation — this person has the right to avoid self-incrimination and to be assisted by a person of choice;
writes up a record of the interview and gives a copy to the interviewee;
provides the person concerned with an opportunity to comment on facts concerning them;
treats all information transmitted or obtained during external and internal investigations as confidential;
cooperates with EPPO, Eurojust, Europol and competent authorities of the EU countries, non-EU countries and international organisations.

Access to bank account information

Under amending Regulation (EU, Euratom) 2020/2223, OLAF’s investigative powers are strengthened. OLAF can request information on bank accounts and, where strictly necessary, on transactions, with the cooperation of national authorities. This would be under the same conditions as those applicable to competent national authorities and subject to a written request explaining its appropriateness and proportionality.

Controller of procedural guarantees

The independent position of controller of procedural guarantees is created under amending Regulation (EU, Euratom) 2020/2223. Administratively attached to the Supervisory Committee, the controller would be responsible for handling complaints from the persons concerned and could make recommendations to OLAF on how to resolve the problem raised in the complaint.

Close collaboration between OLAF and EPPO

OLAF and EPPO have complementary roles in protecting the EU’s financial interests and will work in close cooperation. Under amending Regulation (EU, Euratom) 2020/2223, OLAF remains an administrative body conducting administrative investigations, which may lead to financial, administrative, disciplinary and judicial recommendations, EPPO’s mandate, which covers 22 of the 27 EU countries, focuses on criminal investigations to establish the criminal responsibility of persons involved in fraud, corruption or other criminal offences affecting the EU’s financial interests falling under its competence.

When acting in support of EPPO and to protect the admissibility of evidence, as well as fundamental rights and procedural guarantees, EPPO and OLAF must cooperate closely to ensure that procedural safeguards of Regulation (EU) 2017/1939 are observed.

Final report

Drawn up under the director-general’s authority upon completion of the investigation, the final report:

contains:
- the legal basis for the investigation
- procedural steps followed and guarantees respected
- facts established and their preliminary classification in law
- estimated financial impact and
- conclusions of the investigation;
is accompanied, where appropriate, by the director-general’s recommendations on whether or not action, whether disciplinary, administrative, financial or judicial, should be taken and estimated amounts should be recovered;
is sent to the EU country or the institution, body, office or agency concerned.

EU countries:

establish an anti-fraud coordination service (AFCOS) to facilitate effective cooperation and the sharing of information with OLAF;
provide or coordinate the necessary assistance for OLAF to carry out its tasks effectively.

EU institutions, bodies, offices and agencies:

adopt rules requiring their staff to cooperate with and supply information to OLAF;
ensure the confidentiality of internal investigations;
may not begin a parallel inquiry into the same facts when the OLAF director-general has opened or is considering opening an investigation;
send OLAF, without delay, any information on possible cases of fraud, corruption or other illegal financial activity.

Repeal

Regulation (EU, Euratom) No 883/2013 repeals Regulation (EC) No 1073/1999 and Regulation (Euratom) No 1074/1999.

FROM WHEN DO THE REGULATIONS APPLY?

Regulation (EU, Euratom) No 883/2013 has applied since 1 October 2013.
Amending Regulation (EU, Euratom) 2020/2223 entered into force on 17 January 2021.

BACKGROUND

For more information, see:

European Anti-Fraud Office (European Commission).

KEY TERMS

Financial interests: revenues, expenditure and assets covered by the EU budget.

Economic operator: businesses or other organisations, such as suppliers and contractors, providing goods, work or services.

MAIN DOCUMENTS

Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ L 248, 18.9.2013, pp. 1-22)

Successive amendments to Regulation (EU, Euratom) No 883/2013 have been incorporated into the original text. This consolidated version is of documentary value only.

Regulation (EU, Euratom) 2020/2223 of the European Parliament and of the Council of 23 December 2020 amending Regulation (EU, Euratom) No 883/2013, as regards cooperation with the European Public Prosecutor’s Office and the effectiveness of the European Anti-Fraud Office investigations (OJ L 437, 28.12.2020, pp. 49-73)

European Anti-Fraud Office — investigation rules

SUMMARY OF:

WHAT IS THE AIM OF THE REGULATIONS?

KEY POINTS

FROM WHEN DO THE REGULATIONS APPLY?

BACKGROUND

KEY TERMS

MAIN DOCUMENTS

RELATED DOCUMENTS