Questions and Answers on OLAF's new legal framework to protect the EU budget - Hoofdinhoud
Why did you need to revise Regulation 883/2013?
The revision of the so-called OLAF Regulation was necessary for two main reasons. First, the creation of the European Public Prosecutor's Office (EPPO) means that OLAF's legal framework need to be adapted to allow the two offices to work together on the basis of clear rules of cooperation, exchange of information, complementarity and non-duplication.
Second, the 2017 Commission Evaluation report on the current Regulation clearly identified the need to update the legal framework on a number of aspects in order to increase the effectiveness of investigations conducted by OLAF, as well as the cooperation with Member States.
What are the changes compared to the current legal framework? The improvements largely cover the objectives set by the Commission in the 2018 legislative proposal: to adapt OLAF's work to that of the EPPO and to improve the effectiveness of OLAF's investigations. Moreover, the new Regulation reinforces the protection of persons under investigation. Some of the changes to be introduced by the new Regulation include:
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-Clear rules for cooperation with the EPPO based on close cooperation, exchange of information, complementarity and avoidance of duplication;
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-Stream-lined rules for carrying out on-the-spot checks and inspections;
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-Access to bank account information by OLAF;
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-Establishment of a Controller of procedural guarantees;
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-Access to the final report by the person concerned;
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-Strengthened role of the anti-fraud coordination services in the Member States (AFCOS).
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-New rules to improve the follow-up to investigations.
Will OLAF's mandate change with the creation of the EPPO?
It will not. The EPPO adds another layer to the protection of the EU's financial interests. The legal frameworks of OLAF and the EPPO clearly provide for the two offices to work in close cooperation while respecting their individual mandates, powers and competences. For the EPPO, this means conducting criminal investigations (in the EPPO participating Member States) to ensure that the criminal responsibility of persons involved in fraud is established. OLAF remains an administrative body conducting administrative investigations, which may lead to financial, administrative, disciplinary and judicial recommendations.
How will the work of the EPPO and OLAF complement each other?
While the EPPO will ensure that the criminal responsibility of persons involved in fraud is established, OLAF will address other aspects of the protection of the EU budget. In the 22 Member States participating in the EPPO, OLAF will focus on financial and administrative recommendations, and on disciplinary recommendations in cases concerning EU staff.
How will the new Regulation ensure no duplication of work between OLAF and the EPPO?
The new OLAF Regulation is designed to work in tandem with the EPPO Regulation, to make sure that work is not duplicated. Together these two Regulations establish that:
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-OLAF must report without delay to the EPPO any suspected criminal offence it comes across and that falls within the remit of the prosecutor's office;
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-OLAF will not open an investigation if the EPPO is conducting its own investigation into the same facts;
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-OLAF will inform the EPPO when it considers that it should open a complementary investigation to one already being carried out by the EPPO.
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-The EPPO can reject the calls for a complementary OLAF investigation, or to specific measures within that investigation, if it considers them a risk to its own investigations.
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-Any complementary investigation by OLAF must be carried out in close cooperation with the EPPO.
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-Constant exchanges of information and operational contacts will allow OLAF and the EPPO to avoid duplication while full complementarity of their work.
How will OLAF and the EPPO cooperate in practice?
In order to ensure the effective and constant exchange of information, the two offices will allow hit/no-hit consultations of their respective case management systems, as set out in both the EPPO and OLAF Regulations. The new rules also foresee an annual high-level meeting between the Director-General of OLAF and the European Chief Prosecutor. OLAF and the EPPO will also agree to formal working arrangements setting out how they will cooperate in other aspects of their work.
How will OLAF's on-the-spot checks and inspections be improved by the new rules?
OLAF carries out on-the-spot checks and inspections in accordance with the current Regulation 883/2013 and with Regulation 2185/96, which in some instances make the application of those powers subject to conditions of national law. However, the extent to which national law applies is not always completely clear, and as a result can hinder the effectiveness of OLAF's investigations. The revised Regulation clarifies that the way OLAF carries out on-the-spot checks and inspections should be subject to Union law alone and that national law would apply only in cases where the economic operator resists an on-the-spot check and inspection and the assistance of national competent authorities is necessary. This clarification, which codifies the case-law of the Court of Justice of the EU, will allow OLAF to exercise its investigative powers in an effective and coherent manner in all Member States. These clearer rules should also help the work of the national competent authorities that support OLAF in its investigations.
How will access to bank account information improve the quality and effectiveness of OLAF's investigations?
Under the new Regulation, OLAF will now have access to bank account information under the same conditions that apply to national competent authorities. The possibility to trace money flows is often decisive in fraud investigations and this new provision will enhance OLAF's ability to protect the EU's financial interests. OLAF will obtain this information through cooperation with national competent authorities, as designated by each Member State.
How will the new Regulation increase the protection of persons concerned by OLAF investigations?
Alongside the strengthening of OLAF's investigative tools, the new Regulation also provides for a higher level of protection of the procedural guarantees of the person concerned by an investigation. The Regulation establishes an independent controller of procedural guarantees, administratively attached to the OLAF Supervisory Committee and appointed by the Commission after consulting the European Parliament and the Council. The controller will be tasked with reviewing complaints lodged by persons concerned regarding the Office's compliance with procedural guarantees and with the rules applicable to investigations. In addition, under the new Regulation, the person concerned by an investigation will have access, under certain conditions, to the conclusions of OLAF's investigations in cases where the Office issues judicial recommendations. The streamlining of the rules on on-the-spot checks and inspections also includes reinforced guarantees when a check is conducted, such as the right to be assisted by a person of choice. The new provisions complement the current safeguards in the OLAF Regulation and bring the level of guarantees to the very highest standards in the area of administrative investigations.
Will cooperation between OLAF and national anti-fraud coordination services (AFCOS) be affected?
The current OLAF Regulation provides for the designation, in each Member State, of an anti-fraud coordination service (AFCOS) to facilitate cooperation and exchange of information with OLAF. The rules state that AFCOS should provide all assistance necessary for OLAF to carry out its investigations in the Member States, either themselves directly or through coordination with other services. The new OLAF Regulation will give the AFCOS an even more important role, clarifying that they can support OLAF in external and internal investigations, as well as in coordination cases. The new Regulation also creates the basis for AFCOS to cooperate with each other, and not just with OLAF.
Will the new Regulation bring any improvements to the follow-up of OLAF investigations?
Several provisions in the new Regulation are expected to deliver improvements in the follow-up of OLAF recommendations. OLAF reports and the evidence attached to them will in future be admissible in all procedures before the Court of Justice of the European Union, in proceedings of a non-criminal nature before national courts and in national administrative proceedings. In criminal proceedings, the current rule remains, which provides that OLAF reports are admissible in the same way as the reports of national administrative inspectors. However, to facilitate the support of OLAF to the EPPO and the subsequent admissibility of evidence, the new Regulation provides that the EPPO and OLAF will cooperate to ensure that the guarantees of the EPPO regulation are observed when OLAF supports the EPPO.
The new Regulation should also increase the information available about follow-up and the possibilities to address systemic issues. OLAF will be able to fix a time-limit for recipients of recommendations to report on follow-up, and Member States will send OLAF the final decision of national courts. Horizontal and systemic issues encountered in the follow-up to OLAF reports may be discussed in the annual exchange of views between the Director-General of OLAF and the institutions.
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