Procedure : 2006/0084(COD)
Document stages in plenary
Document selected : A6-0394/2008

Texts tabled :

A6-0394/2008

Debates :

PV 20/11/2008 - 4
CRE 20/11/2008 - 4

Votes :

PV 20/11/2008 - 6.1
Explanations of votes

Texts adopted :

P6_TA(2008)0553

REPORT     ***I
PDF 517kWORD 722k
27 October 2008
PE 409.747v03-00 A6-0394/2008

on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 1073/1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF)

(COM(2006)0244 – C6-0228/2006 – 2006/0084(COD))

Committee on Budgetary Control

Rapporteur: Ingeborg Gräßle

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
 OPINION OF THE COMMITTEE ON LEGAL AFFAIRS
 PROCEDURE

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 1073/1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF)

(COM(2006)0244 – C6-0228/2006 – 2006/0084(COD))

(Codecision procedure: first reading)

The European Parliament,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2006)0244),

–   having regard to Articles 251(2) and 280(4) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0228/2006),

–   having regard to Court of Auditors' Opinion No 7/2006(1),

–   having regard to Rule 51 of its Rules of Procedure,

–   having regard to the report of the Committee on Budgetary Control and the opinion of the Committee on Legal Affairs (A6-0394/2008),

1.  Approves the Commission proposal as amended;

2.  Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

3.  Instructs its President to forward its position to the Council and Commission.

Amendment  1

Proposal for a regulation – amending act

Recital -1 (new)

Text proposed by the Commission

Amendment

 

(-1) The European Parliament invites the Commission to progress without any further delays on a consolidation of the legal texts on Community administrative investigations. This consolidation aims to strengthen the efficiency of the European Anti-Fraud Office ('the Office') and to clarify the legal framework of its mission.

Amendment  2

Proposal for a regulation – amending act

Recital -1 a (new)

Text proposed by the Commission

Amendment

 

(-1a) It is appropriate to ensure that the staff of the Office can execute its mission in full independence. To this end, it is appropriate to establish a human resources management more adapted to the operational needs of the Office: a better balance should be sought between temporary staff and permanent staff.

Amendment  3

Proposal for a regulation – amending act

Recital -1 b (new)

Text proposed by the Commission

Amendment

 

(-1b) While drawing attention to the responsibility of every department of the Commission and the other institutions, bodies, offices and agencies of the European Union to protect the Community’s financial interests, and recognising the importance of prevention aspects when defining European policy in this field, including the fight against fraud and corruption, there is a need to widen the task of the Office to include those aspects. The design of legislative and administrative measures at European level needs to be based on the Office’s operational practice in this field.

Amendment  4

Proposal for a regulation – amending act

Recital -1 c (new)

Text proposed by the Commission

Amendment

 

(-1c) Given the scale of the Community funds allocated to the external-aid sector, the number of investigations carried out by the Office in that sector and the existence of international cooperation for the purposes of investigation, a legal basis should be established which will enable the Commission to seek assistance from the competent authorities in third countries and from international organisations in the performance of the Office’s tasks.

Amendment  5

Proposal for a regulation – amending act

Recital 2 a (new)

Text proposed by the Commission

Amendment

 

(2a) The accuracy of the information forwarded to the Office in connection with its remit must be checked as quickly as possible. Hence it should be made clear that the institutions, bodies, offices and agencies will grant the Office immediate and automatic access to databases relating to the management of Community funds and to any other database and relevant information.

Amendment  6

Proposal for a regulation – amending act

Recital 4 a (new)

Text proposed by the Commission

Amendment

 

(4a) The Office’s operational practice depends greatly on cooperation with Member States. There is a need for the Member States to identify their competent authorities for the Office who are able to provide Office staff with the required assistance in the exercise of their duties, particularly in cases where a Member State has not set up a specialist department with the task of coordinating the fight against Community fraud at national level.

Amendment  7

Proposal for a regulation – amending act

Recital 4 b (new)

Text proposed by the Commission

Amendment

 

(4b) If the operational, legal and administrative framework for combating fraud is to be improved, the Office must know how the results of its investigations have been followed up. Hence the Member States’ competent authorities and the European institutions, bodies, offices and agencies (and also - with assistance from the Commission - third-country authorities and international organisations) should be required to report regularly to the Office on progress made as regards action taken in response to the final investigation report issued by the Office.

Amendment  8

Proposal for a regulation – amending act

Recital 4 c (new)

Text proposed by the Commission

Amendment

 

(4c) In view of the major benefits of strengthening cooperation between the Office, Europol and Eurojust, a legal basis must be introduced which will enable the Office to conclude agreements with those two agencies. In order to harness the respective powers of Eurojust, the Office and the Member States' competent authorities in respect of deeds liable to criminal investigation, the Office will be called upon to inform Eurojust in cases of suspected illegal activity damaging to the European Community’s financial interests and involving serious forms of criminality and at least two Member States.

Amendment  9

Proposal for a regulation – amending act

Recital 5

Text proposed by the Commission

Amendment

(5) It is necessary, for the sake of legal certainty, to clarify the procedural guarantees applicable in internal or external investigations conducted by the Office. That does not affect any more extensive protection which may derive from the rules of the Treaties, the Staff Regulations and any relevant national provisions.

(5) It is necessary, for the sake of legal certainty, to codify in this Regulation the fundamental procedural guarantees applicable in internal or external investigations conducted by the Office. That does not affect any more extensive protection which may derive from the rules of the Treaties, the Protocol on the Privileges and Immunities of the European Communities, the EU Charter of Fundamental Rights, the Statute for Members of the European Parliament, the Staff Regulations of Officials of the European Communities and any relevant national provisions.

Justification

It is desirable to highlight the specific status of Members of the European Parliament as Members of the European institution which exercises executive power in the European Union.

Amendment  10

Proposal for a regulation – amending act

Recital 5 a (new)

Text proposed by the Commission

Amendment

 

(5a) The procedural guarantees and the legitimate rights of persons who are under investigation must be upheld and applied without any difference in treatment stemming from the type of investigation carried out by the Office.

Amendment  11

Proposal for a regulation – amending act

Recital 5 b (new)

Text proposed by the Commission

Amendment

 

(5b) To ensure that the Office’s operational activities are as transparent as possible, particularly the principles governing investigation procedure, the legitimate rights of the persons concerned and procedural safeguards, data protection provisions, the policy for providing information on certain aspects of the Office’s operational activities, reviewing the legality of investigation activities and appeals procedures for the persons concerned, there is a need to provide a legal basis for adoption of a procedural code for Office investigations. The code should be published in the Official Journal of the European Union.

Amendment  12

Proposal for a regulation – amending act

Recital 5 c (new)

Text proposed by the Commission

Amendment

 

(5c) In order to ensure that procedural guarantees are upheld at every stage of the investigation, checks on legality must be carried out by the Office, in particular prior to the opening and the closing of an investigation and prior to any forwarding of information to the Member States’ competent authorities. Such checks will be carried out by legal experts who may play a judicial role within a Member State and who will work within the Office. The Director General will also request those experts’ opinion on behalf of the Office's executive board.

Amendment  13

Proposal for a regulation – amending act

Recital 6

Text proposed by the Commission

Amendment

(6) In order to strengthen the protection of the individual rights of persons under investigation, and without prejudice to Article 90a of the Staff Regulations of Officials of the European Communities and the powers of the Court of Justice of the European Communities under the Treaty, a person implicated personally must be entitled, at the final stage of an investigation, to be provided with the conclusions and recommendations of the final investigation report and, if that person considers that procedural guarantees have not been complied with, must be able to file a request for an opinion with the Review Adviser established by this Regulation.

(6) In order to strengthen the protection of the individual rights of persons under investigation, and without prejudice to Article 90a of the Staff Regulations of Officials of the European Communities and the powers of the Court of Justice of the European Communities under the Treaty, a person implicated personally must be entitled, at the final stage of an investigation, to be provided with the conclusions and recommendations of the final investigation report.

Amendment  14

Proposal for a regulation - amending act

Recital 7 a (new)

Text proposed by the Commission

Amendment

 

7a. To make it possible to provide objective information to European taxpayers and in order to guarantee freedom of the press, all EU bodies involved in the investigation must respect the principle of protecting journalists' sources in accordance with national legislation.

Justification

The 'Tillack' affair, in which judicial abuses were committed against a German journalist who had revealed corruption in the operations of an EU agency, is indicative of serious shortcomings in the protection of sources within the EU institutions. Journalists' freedom to report information and their right to freedom of speech when scrutinising the use to which EU institutions put European taxpayers' money must be clearly guaranteed, as the European Court of Human Rights ruled in its judgment of 27 November 2007.

Amendment  15

Proposal for a regulation – amending act

Recital 8

Text proposed by the Commission

Amendment

(8) Where it is found that facts which may constitute criminal offences, brought to light by the final report on an internal investigation, cannot, on account of their nature, because they are not serious enough or because the financial loss was only minor, be effectively dealt with before the courts, the Director-General of the Office should transmit the final report direct to the institution, body, office or agency concerned in order that more appropriate action then be taken. It is necessary that he inform the Supervisory Committee and the Review Adviser of all duly reasoned decisions not to transmit the final report to the judicial authorities.

deleted

Amendment  16

Proposal for a regulation – amending act

Recital 9 a (new)

Text proposed by the Commission

Amendment

 

(9a) The fundamental rights of the persons concerned by investigations should be respected at all times, particularly when providing information. There is a need to clarify the basic principles of the Office’s information policy. Information on Office investigations supplied to the European Parliament, the Council, the Commission and the Court of Auditors, whether bilaterally or as part of the concertation procedure, should be provided while respecting the confidentiality of investigations, the legitimate rights of the persons concerned and, where applicable, the national provisions governing judicial proceedings. There is a need to introduce a legal basis enabling the Office to conclude agreements with the institutions concerned on the provision of information. The Director General should ensure that any information supplied to the public complies with the principles of neutrality and impartiality. The procedural code for investigations should spell out the consequences of unauthorised dissemination of information.

Amendment  17

Proposal for a regulation – amending act

Recital 10

Text proposed by the Commission

Amendment

(10) It is appropriate to strengthen the Supervisory Committee’s powers of review in relation, in particular, to compliance with the provisions governing information exchanges between the Office and the institutions, bodies, offices and agencies, and to developments in the application of procedural guarantees and duration of investigations. It is also necessary to establish cooperation between the Supervisory Committee and the European Parliament, the Council and the Commission, by enabling the Supervisory Committee, without affecting the independence of its members, to meet representatives of those institutions in the context of a structured dialogue.

(10) It is appropriate to strengthen the Supervisory Committee's role and to revise the criteria and procedure for appointing its members. At the time when they are selected candidates must be engaged in high-level judicial or investigative tasks, or comparable functions. They will be appointed at a different time for a non-renewable five-year period. To retain the expertise of the committee some members should be appointed at staggered intervals.

Amendment  18

Proposal for a regulation – amending act

Recital 10 a

Text proposed by the Commission

Amendment

 

(10a) It is appropriate to widen and strengthen the tasks of the Supervisory Committee arising from its mandate and to safeguard the Office’s independence in its investigative function. The Committee should monitor trends concerning procedural safeguards and the length of investigations. It should be informed of investigations lasting more than 12 months and deliver opinions to the Director General and, if need be, to the institutions on investigations that are not completed within 18 months. It should be made clear that the Supervisory Committee does not interfere in the conduct of current investigations.

Amendment  19

Proposal for a regulation – amending act

Recital 10 b (new)

Text proposed by the Commission

Amendment

 

(10b) There is a need to evaluate the judicial, institutional and operational context for the fight against fraud, corruption and any other activity detrimental to the Community’s financial interests. To this end the institutions should be asked to coordinate their action and encouraged to consider the major aspects of European anti-fraud strategy. A concertation procedure needs setting up between the European Parliament, the Council and the Commission. This concertation should cover certain areas of cooperation in this field between the Office and the Member States and the European institutions, and also relations with third countries and the international organisations, the Office’s investigative policy and reports and assessments by the Supervisory Committee. The Office’s Director General and the Chair of the Supervisory Committee should participate in the concertation, which should take place at least once a year.

Amendment 20

Proposal for a regulation – amending act

Recital 10 c (new)

Text proposed by the Commission

Amendment

 

(10c) In order to allow the Supervisory Committee to carry out its mission efficiently, in full independence and in an efficient way, it is essential that the Office guarantees that all conditions are put in place for the secretariat of the Supervisory Committee to work in an independent way under the Chair of the committee and its members exclusively.

Amendment  21

Proposal for a regulation – amending act

Recital 11

Text proposed by the Commission

Amendment

(11) In order to reinforce complete independence in the running of the Office, the Director General should be appointed for a term of seven years which will not be renewable.

(11) In order to reinforce complete independence in the running of the Office, the Director General should be appointed for a term of five years, renewable once. At the time of selection the candidates should occupy or have occupied a senior judicial post or an executive investigative post and have operational professional experience of at least ten years in a position of high management responsibility. A significant portion of this professional experience should be acquired in the area of the fight against national and/or Community fraud. The appointment procedure should be completed within nine months. The Director General will be designated by common agreement between the European Parliament and the Council and will be appointed by the Commission.

Amendment 22

Proposal for a regulation – amending act

Recital 11a (new)

Text proposed by the Commission

Amendment

 

(11a) Considering the sensitivity of the position, it is appropriate to stipulate that the Director General of the Office will inform the Commission if he/she intends to engage in any new occupational activity within two years of the end of his/her service, in conformity with Article 16 of the Staff Regulations of Officials of the European Communities. This information figures in the annual anti-fraud report of the Commission.

Amendment  23

Proposal for a regulation – amending act

Recital 12

Text proposed by the Commission

Amendment

(12) In order to strengthen respect for procedural guarantees, a Review Adviser should be required to deliver an opinion, in complete independence, of his own motion or on requests for opinions relating to such guarantees, and to give opinions in certain other cases, in particular on requests made by the person implicated personally.

(12) In order to strengthen respect for procedural guarantees, any person who is under investigation by the Office should be able to lodge a complaint with the Supervisory Committee. Complaints will be dealt with by a Review Adviser acting in complete independence, appointed by the Director General, on a proposal of the Supervisory Committee. The Review Adviser will deliver his opinion within 30 working days and will forward it to the plaintiff, to the Director General of the Office and to the Supervisory Committee.

Amendment  24

Proposal for a regulation – amending act

Recital 13

Text proposed by the Commission

Amendment

(13) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission1.

1 OJ L 184, 17.7.1999, p. 23.

deleted

Amendment  25

Proposal for a regulation – amending act

Recital 13 a (new)

Text proposed by the Commission

Amendment

 

(13a) After a four-year period the application of this Regulation should be assessed. The Commission should submit a report to the European Parliament and to the Council, accompanied by an opinion issued by the Supervisory Committee. Following that assessment this Regulation should be revisable. In any event, this Regulation should be revised after the creation of a European Public Prosecutor’s Office.

Amendment  26

Proposal for a regulation – amending act

Article 1 – point -1 (new)

Regulation (EC) No 1073/1999

Article 1 – paragraph 1

 

Text proposed by the Commission

Amendment

 

-1. Article 1(1) is replaced by the following:

 

“1. In order to step up the fight against fraud, corruption and any other illegal activity affecting the financial interests of the European Community, the European Anti-Fraud Office established by Commission Decision 1999/352/EC, ECSC, Euratom (hereinafter “the Office”) shall exercise the powers of investigation conferred on the Commission by the Community rules and Regulations in the Member States and, in accordance with the cooperation agreements in force, in third countries.

 

Fraud, corruption and any other illegal activity detrimental to the Community’s financial interests, including irregularity, are defined in Community regulations and the provisions of agreements in force in this field.

Justification

Agreements between the Commission and third countries in this field are an important basis for enabling OLAF to carry out its task and protecting Community funds extended beyond the Community’s frontiers. The definitions of fraud, corruption and other illegal activity are those laid down in Community regulations on the subject (including the Financial Regulation) and the provisions of agreements (the 1995 PIF Convention and its protocols).

Amendment  27

Proposal for a regulation – amending act

Article 1 – point -1a (new)

Regulation (EC) 1073/1999

Article 1 – paragraph 2

 

Text proposed by the Commission

Amendment

 

(-1a) Article 1(2) is replaced by the following text:

 

"2. The Office shall provide the Member States with assistance from the Commission in organising close and regular cooperation between their competent authorities in order to coordinate their activities for the purpose of protecting the European Community's financial interests against fraud. The Office shall contribute to the design and development of methods of preventing and of fighting fraud, corruption and any other illegal activity affecting the financial interests of the European Community.".

Justification

The role of OLAF in planning and developing methods of preventing fraud and corruption should be added in this paragraph. In view of OLAF's expertise in the field of protecting the financial interests of the Community, it is helpful for the agency to be able to make a contribution to the preventive aspects of combating fraud.

Amendment  28

Proposal for a regulation – amending act

Article 1 – point 1

Regulation (EC) 1073/1999

Article 3 – paragraph 1 – subparagraph 2

 

Text proposed by the Commission

Amendment

As part of its investigative function, the Office shall carry out the inspections and checks provided for in Article 9(1) of Regulation (EC, Euratom) No 2988/95 and in the sectoral rules referred to in Article 9(2) of that Regulation in the Member States and, in accordance with the cooperation agreements in force, in third countries.

As part of its investigative function, the Office shall carry out the inspections and checks provided for in Article 9(1) of Regulation (EC, Euratom) No 2988/95 and in the sectoral rules referred to in Article 9(2) of that Regulation in the Member States and, in accordance with the cooperation agreements in force, in third countries and in international organisations.

Amendment  29

Proposal for a regulation – amending act

Article 1 – point 1

Regulation (EC) No 1073/1999

Article 3 – paragraph 2

 

Text proposed by the Commission

Amendment

2. With a view to establishing that there has been fraud, corruption or any other illegal activity referred to in Article 1 in connection with a grant agreement or decision or a contract concerning Community funding, the Office may, in accordance with the procedures laid down by Regulation (Euratom, EC) No 2185/96, conduct on-the-spot checks and inspections on economic operators concerned by such funding.

2. With a view to establishing that there has been fraud, corruption or any other illegal activity referred to in Article 1 in connection with a grant agreement or decision or a contract concerning Community funding, the Office may, in accordance with the procedures laid down by Regulation (Euratom, EC) No 2185/96, conduct on-the-spot checks and inspections on economic operators concerned directly or indirectly by such funding.

Justification

As the methods of investigation provided for by the Regulation in question coincide with those previously provided for by Regulation (EC) No 2185/96, it is desirable to define the same scope for Regulation (EC) No 1073/99 as for Regulation (EC) No 2185/96 as regards economic operators, in order to improve the effectiveness of OLAF's investigations.

Amendment  30

Proposal for a regulation – amending act

Article 1 – point 1

Regulation (EC) No 1073/1999

Article 3 – paragraph 2 – subparagraph 1 a (new)

 

Text proposed by the Commission

Amendment

 

The Member States shall adopt and implement all the measures required in order to ensure that the Office performs the investigative function referred to in this Article. They shall offer their support to the Office in connection with on-the-spot inspections and checks carried out in accordance with the rules laid down in Regulation (Euratom, EC) No 2185/96 on economic operators concerned directly or indirectly by Community funding.

Justification

It is necessary to recall, in this Regulation, the obligations incumbent on the competent authorities of the Member States to cooperate with OLAF during the stage preliminary to the opening of an investigation in accordance with the procedures laid down by Regulation (EC, Euratom) No 2185/96.

Amendment  31

Proposal for a regulation – amending act

Article 1 – point 1

Regulation (EC) No 1073/1999

Article 3 – paragraph 3

 

Text proposed by the Commission

Amendment

3. During an external investigation and where strictly necessary in order to establish that fraud, corruption or any other illegal activity referred to in Article 1 has occurred, the Office may have access to any relevant information held by the institutions, bodies, offices and agencies connected with the matter under investigation. Article 4(2) and (4) shall apply for that purpose.

3. During an external investigation and where necessary in order to establish that fraud, corruption or any other illegal activity referred to in Article 1 has occurred, the Office may have access to any relevant information held by the institutions, bodies, offices and agencies connected with the matter under investigation. Article 4(2) and (4) shall apply for that purpose.

Justification

It is desirable to facilitate the investigations of OLAF in respect of access to information held by the institutions.

Amendment  32

Proposal for a regulation – amending act

Article 1 – point 1

Regulation (EC) No 1073/1999

Article 3 – paragraph 4

 

Text proposed by the Commission

Amendment

4. Where the Office has to hand, prior to an investigation, information which suggests that there has been fraud, corruption or any other illegal activity referred to in Article 1, the Director General of the Office may inform the competent authorities of the Member States concerned and, without prejudice to the sectoral rules, those authorities shall ensure that appropriate action is taken and, where necessary, undertake investigations in accordance with national law, in which staff of the Office may take part. The competent authorities of the Member States concerned shall inform the Director-General of the Office of their findings on the basis of such information.

4. Where the Office has to hand, prior to an investigation, information which suggests that there has been fraud, corruption or any other illegal activity referred to in Article 1, the Director General of the Office informs the competent authorities of the Member States concerned and, without prejudice to the sectoral rules, those authorities shall ensure that appropriate action is taken and, where necessary, undertake investigations in accordance with national law, in which staff of the Office may take part. The competent authorities of the Member States concerned shall inform the Director-General of the Office of the action taken and of their findings on the basis of such information.

Justification

It is desirable to stipulate that the competent authorities of the Member States are also to inform the Director General of OLAF of measures taken in response to the forwarding of information from OLAF before the opening of an investigation.

Amendment  33

Proposal for a regulation – amending act

Article 1 – point 1

Regulation (EC) No 1073/1999

Article 3 – paragraph 4 a (new)

 

Text proposed by the Commission

Amendment

 

4a. When the Office decides not to open an investigation it shall inform Eurojust that it has forwarded to the competent authorities in the Member States elements of information giving grounds for suspecting the existence of fraud, an act of corruption or any other illegal activity referred to in Article 1, in the form of serious crime involving two or more Member States. Eurojust shall also be notified by the Office as soon as an Office investigation comes within its competence, in accordance with the procedures laid down in the cooperation agreements concluded between them.

Justification

It is desirable to provide for the systematic exchange of information between OLAF and Eurojust whenever a competent national authority receives from OLAF information on suspicions of fraud, corruption any other illegal activity referred to in Article 1, in the form of serious crime involving two or more Member States. This measure will improve coordination between OLAF and Eurojust on cases of serious transnational fraud.

Amendment  34

Proposal for a regulation - amending act

Article 1 - point 1 a

Regulation (EC) No 1073/1999

Article 3 a (new)

 

Text proposed by the Commission

Amendment

 

(1a) The following article is inserted:

 

"Article 3a

 

Cooperation on the part of the Office with Eurojust, Europol and other international organisations

 

Pursuant to the powers and responsibilities conferred upon it under this Regulation, the Office may conclude cooperation agreements with Eurojust and Europol. The aim of these agreements shall be to clarify the respective powers and responsibilities of these bodies and to define the cooperation between them within the framework of the area of freedom, of security and of justice.

 

The Office may also conclude cooperation agreements with other international organisations."

Justification

Self-explanatory.

Amendment  35

Proposal for a regulation – amending act

Article 1 – point 2 -a (new)

Regulation (EC) No 1073/1999

Article 4 – paragraph 1 – subparagraph 2

 

Text proposed by the Commission

Amendment

 

(-a) Paragraph 1, subparagraph 2, is replaced by the following text:

 

"These internal investigations shall be carried out subject to the rules of the Treaties, in particular the Protocol on privileges and immunities of the European Communities, and with due regard for the Staff Regulations under the conditions and in accordance with the procedures provided for in this Regulation and in decisions adopted by each institution, body, office and agency; from the point of view of procedural guarantees and the legitimate rights of the persons concerned there must be no difference in treatment by comparison with external investigations.".

Justification

It is worth stressing that people who are under investigation by OLAF should be treated equally as regards procedural guarantees and legitimate rights, irrespective of whether the investigation is internal or external.

Amendment  36

Proposal for a regulation – amending act

Article 1 – point 2 a

Regulation (EC) No 1073/1999

Article 4 – paragraph 3

 

Text proposed by the Commission

Amendment

3. In accordance with the procedures laid down by Regulation (Euratom, EC) No 2185/96, the Office may carry out on-the-spot inspections at the premises of economic operators in order to obtain access to information relevant to the matter under internal investigation.

3. In accordance with the procedures laid down by Regulation (Euratom, EC) No 2185/96, the Office may carry out on-the-spot inspections at the premises of economic operators who are directly or indirectly concerned in order to obtain access to information relevant to the matter under internal investigation.

Justification

As the methods of investigation provided for by the Regulation in question coincide with those previously provided for by Regulation (EC) No 2185/96, it is desirable to define the same scope for Regulation (EC) No 1073/99 as for Regulation (EC) No 2185/96 as regards economic operators, in order to improve the effectiveness of OLAF's investigations.

Amendment  37

Proposal for a regulation – amending act

Article 1 – point 3

Regulation (EC) No 1073/1999

Article 5 – paragraph 1

 

Text proposed by the Commission

Amendment

1. The Office may open an investigation when sufficiently strong suspicions exist that acts of fraud or corruption or other illegal acts referred to in Article 1 have been committed. The decision whether or not to open an investigation shall take account of the investigation policy priorities and the Office’s programme of investigative activities determined in accordance with Articles 11a and 12(5). That decision shall also take account of the need for efficient utilisation of the Office’s resources and for proportionality in the means deployed.

1. The Office may open an investigation when sufficiently strong suspicions exist that acts of fraud or corruption or other illegal acts referred to in Article 1 have been committed. The decision whether or not to open an investigation shall take account of the investigation policy priorities and the Office’s programme of investigative activities determined in accordance with Articles 11a and 12(5). Anonymous information may also be taken into account if it constitutes sufficiently strong grounds for suspicion.

Justification

The principle of efficiency is applicable to budgetary management itself. It is not desirable to apply it to the decision on the opening of an investigation, in order to avoid at all costs a situation in which OLAF would have to refrain from carrying out an investigation for lack of resources with which to conduct it. This insertion makes it possible to indicate that an investigation may also be opened in response to an anonymous complaint. If fraud and corruption are to be tackled effectively, the fact that information has been received from an anonymous source should not be grounds for ruling out an investigation: otherwise there would be a risk that complaints would not be made for fear that the identity of the complainant might be disclosed.

Amendment  38

Proposal for a regulation – amending act

Article 1 – point 3

Regulation (EC) No 1073/1999

Article 5 – paragraph 1 a (new)

 

Text proposed by the Commission

Amendment

 

1a. The decision to open an investigation shall be taken by the Director General of the Office after consulting the Office's executive board and in accordance with the provisions concerning checks on legality which are laid down in Article 14(2).

Justification

The final decision as to whether or not to open an investigation is taken by the Director General after consultation with the executive board of OLAF, in accordance with the detailed procedure stipulated in the procedural code. OLAF's current practice is for the executive board to deliver an opinion to the Director General when an investigation is opened.

Amendment  39

Proposal for a regulation – amending act

Article 1 – point 3

Regulation (EC) No 1073/1999

Article 5 – paragraph 2 – subparagraph 1

 

Text proposed by the Commission

Amendment

The decision to open an external investigation shall be taken by the Director-General of the Office, acting on his own initiative or following a request from a Member State concerned or the Commission.

The decision to open an external investigation shall be taken by the Director-General of the Office, acting on his own initiative or following a request from a Member State concerned or one of the institutions of the European Communities or of the European Union.

Justification

The institutions should also be given the power to ask the Director General of OLAF to open an investigation.

Amendment  40

Proposal for a regulation – amending act

Article 1 – point 3

Regulation (EC) No 1073/1999

Article 5 – paragraph 4 – subparagraph 2 a (new)

 

Text proposed by the Commission

Amendment

 

Prior to the opening and throughout the duration of an investigation, the institutions, bodies, offices and agencies shall provide the Office with immediate and automatic access to databases concerned with the management of Community funds and to any other base containing relevant data and information which will enable the Office to check that the information forwarded is accurate.

Justification

It is desirable to insert a legal basis to make it possible for OLAF to gain immediate and automatic access to databases and any other relevant information during the stage when the information is undergoing preliminary assessment. The accuracy of the information forwarded is verified rapidly and if an investigation is subsequently opened its effectiveness is improved.

Amendment  41

Proposal for a regulation – amending act

Article 1 – point 4 a

Regulation (EC) No 1073/1999

Article 6 – paragraph 1

 

Text proposed by the Commission

Amendment

(a) in paragraphs 1 and 3, “the Director” is replaced by “the Director-General”;

(a) Paragraph 1 is replaced by the following text:

 

"1. The Director General of the Office shall direct the conduct of investigations. He may issue written instructions to an operational Director of the Office to direct the conduct of investigations. Investigations shall be conducted under the authority and the responsibility of the Director General of the Office by agents nominated by the Office.".

Justification

It is desirable to stipulate clearly that the Director General has the power to instruct a Director of OLAF to conduct investigations, as provided for in the OLAF Manual. It is also worthwhile to mention that he is the person responsible for the investigation. The final decision concerning the closure of an investigation remains the responsibility of the Director General.

Amendment  42

Proposal for a regulation – amending act

Article 1 – point 4 a a (new)

Regulation (EC) No 1073/1999

Article 6 – paragraph 3

 

Text proposed by the Commission

Amendment

 

(aa) Paragraph 3 is replaced by the following text:

 

3. "The Office's employees shall be equipped for each intervention with a written authority issued by the Director General indicating the subject matter and the purpose of the investigation, the legal bases for conducting the investigation and the investigative powers stemming from those bases."

Justification

In order to facilitate the investigative work of OLAF staff, a written authority should be issued which indicates the subject of the investigation, the legal bases for it (Community law and, where relevant, national law) and the investigative powers for which these legal bases provide.

Amendment  43

Proposal for a regulation – amending act

Article 1 – point 4 a b (new)

Regulation (EC) No 1073/1999

Article 6 – paragraph 3 a (new)

 

Text proposed by the Commission

Amendment

 

(ab) The following paragraph is inserted:

 

"3a. Where Office employees nominated to carry out an on-the-spot check or inspection in accordance with the rules laid down in Regulation (Euratom, EC) No 2185/96 encounter resistance from an economic operator, the competent authority of the Member State concerned (previously identified by the Office as a contact point) shall be informed immediately. At the Office's request the competent authority of the Member State concerned shall provide them with the assistance which they require in order to carry out their task, as specified in the written authority referred to in paragraph 3. The Member State must ensure that the Office's employees are allowed access (under the same terms and conditions as its competent authorities and in compliance with national law) to all information and documents relating to the facts referred to in Article 1 which prove necessary for the on-the-spot checks and inspections to be carried out satisfactorily."

Justification

In view of certain difficulties encountered by OLAF in carrying out on-the-spot checks or inspections on the premises of economic operators, it is desirable to permit OLAF to request the necessary assistance from the Member State in accordance with the procedures laid down by Regulation 2185/96.

Amendment  44

Proposal for a regulation – amending act

Article 1 – point 4 – subpoint a c (new)

Regulation (EC) No 1073/1999

Article 6 – paragraph 4

 

Text proposed by the Commission

Amendment

 

(ac) Article 6(4) is replaced by the following:

 

“4. During on-the-spot inspections, […] checks and investigations, the Office’s employees shall adopt an attitude in keeping with the rules and practices governing investigators of the Member State concerned, with the Staff Regulations and with the decisions referred to in the second subparagraph of Article 4(1). The Office’s employees shall act in accordance with the principle of impartiality. They shall immediately notify the Director General if they find themselves in a position of conflict of interest in the context of their investigation. The Director General shall decide whether a conflict of interest exists. If it does the Director General shall give instructions for replacing the employee.”

Justification

In view of Community case-law on the subject there is a need to make it clear that exercising the investigative duties of an Office employee is incompatible with a conflict of interest. This principle is moreover set out in the Office’s Manual.

Amendment  45

Proposal for a regulation– amending act

Article 1 – point 4 a d (new)

Regulation (EC) n° 1073/1999

Article 6 – paragraph 5

 

Text proposed by the Commission

Amendment

 

(ad) Paragraph 5 is replaced by the following text:

 

"5. Investigations shall be conducted continuously over a period which must be proportionate to the circumstances and complexity of the case. Employees of the Office must ensure that the investigation is conducted in accordance with procedures which will enable items of evidence to be safeguarded and preserved. If necessary (where there is a risk that items of evidence will disappear) they may asked the competent authority of the Member State concerned to take (in accordance with its internal law) any necessary precautionary or implementing measures."

Justification

As OLAF's investigative work often constitutes a preparatory stage to be followed by national follow-up procedures, and as the grounds for refusing to act on OLAF's recommendations include a lack of evidence, it is desirable to make it clear that investigations by OLAF should be carried out quickly and with the aim of preserving items of evidence, without prejudice to the national law applicable and in accordance with the provisions of Community law (Regulation 2185/96).

Amendment  46

Proposal for a regulation– amending act

Article 1 – point 4 b

Regulation (EC) n° 1073/1999

Article 6 – paragraph 5 a – subparagraph 1

 

Text proposed by the Commission

Amendment

5a. As soon as investigations reveal that a member, manager, official, servant or any other person serving an institution, body, office or agency may be implicated or show that it might be appropriate to take precautionary or administrative measures to protect the interests of the Union, the institution, body, office or agency concerned shall be informed of the investigation in progress. The information supplied shall include the following:

 

5a. As soon as investigations reveal that a member, manager, official, servant or any other person serving an institution, body, office or agency may be implicated or show that it might be appropriate to take precautionary or administrative measures to protect the interests of the Union, the Office shall inform the institution, body, office or agency concerned without delay of the investigation in progress. The information supplied shall include the following:

 

(a) the identity of the person or persons under investigation and a summary of the facts in question;

 

(a) the identity of the person or persons under investigation and a summary of the facts in question;

 

(b) any information that may assist the institution, body, office or agency in deciding whether it is appropriate to take precautionary or administrative measures in order to protect the interests of the Union;

(b) any information that may assist the institution, body, office or agency in deciding whether it is appropriate to take precautionary or administrative measures in order to protect the interests of the Union, and where appropriate some indication regarding the timing of precautionary or administrative measures;

(c) any special measures of confidentiality recommended.

(c) any special measures of confidentiality recommended.

Justification

It is desirable to ensure that information concerning the involvement of officials is communicated to the institution concerned as soon as possible. It is also desirable to enable OLAF to provide indications concerning the time limits within which precautionary or administrative measures must be taken.

Amendment  47

Proposal for a regulation– amending act

Article 1 – point 4 b

Regulation (EC) no. 1073/1999

Article 6 – paragraph 5 a – subparagraph 1 a (new)

 

Text proposed by the Commission

Amendment

 

The provision of this information to the institution, body, office or agency may be deferred in cases requiring absolute secrecy to be maintained for the purposes of the investigation or requiring recourse to investigative procedures under the competence of a Member State's judicial authority, in accordance with national law applicable to investigations. The Director General shall give reasons for his decision pursuant to Article 14(2).

Justification

OLAF should be permitted to defer the provision of information as provided for in the former Article 4(5)(2).

Amendment  48

Proposal for a regulation – amending act

Article 1 – point 4 b

Regulation (EC) No 1073/1999

Article 6 – paragraph 5a – subparagraph 2

 

Text proposed by the Commission

Amendment

The institution, body, office or agency shall decide whether any precautionary or administrative measures are appropriate, with due account being taken of the importance of guaranteeing the effectiveness of the conduct of the investigation and of the specific confidentiality measures recommended by the Office.”

The institution, body, office or agency shall decide whether any precautionary or administrative measures are appropriate, with due account being taken of the importance of guaranteeing the effectiveness of the conduct of the investigation and of the specific confidentiality measures recommended by the Office. The institution, body, office or agency shall inform the Office as soon as possible of the decision to take any measures under this Article or, where appropriate, of the need to initiate an additional disciplinary procedure on matters for which there is such appropriate competence under the Staff Regulations of Officials of the European Communities. An additional disciplinary procedure may be initiated after consulting the Office.

Justification

There is a need to tighten up the rules on the flow of information between the institutions and OLAF. If the institution finds that the information forwarded by OLAF should be the subject of an additional disciplinary procedure under the institution’s exclusive competence, OLAF is duly informed. If OLAF considers that this does not interfere with the conduct of its investigation the disciplinary inquiry is initiated to speed up the application of disciplinary measures.

Amendment  49

Proposal for a regulation– amending act

Article 1 – point 4 b a)

Regulation (EC) n° 1073/1999

Article 6 - paragraph 6 - subparagraph 1 a (new)

 

Text proposed by the Commission

Amendment

 

(ba) The following subparagraph 1a is added to paragraph 6:

 

"Employees of the Office may ask the competent authorities of third countries for assistance in the performance of their duties, pursuant to the provisions of the cooperation agreements concluded with those countries. They may also request assistance from international organisations in the performance of their duties, pursuant to the provisions of the agreements concluded with those organisations."

Justification

In view of the growing number of external investigations in the field of external assistance, it is desirable to refer to the provisions relating to assistance to OLAF. This also applies to the competent authorities of third countries, in accordance with the cooperation agreements concluded with them.

Amendment  50

Proposal for a regulation– amending act

Article 1 – point 4 c

Regulation (EC) n° 1073/1999

Article 6 – paragraph 7

 

Text proposed by the Commission

Amendment

7. Where it is found that an investigation cannot be closed within 12 months after it has been opened, the Director-General of the Office may decide to extend the period by up to six months. Before taking this decision, he shall seek an opinion from the Review Adviser referred to in Article 14. Within fifteen working days the Review Adviser shall send the Director-General his opinion on whether the investigation in progress complies with Article 6(5) and on the reasons given by the Director-General for extending the investigation, together with any recommendations he considers useful for the further conduct of the investigation. The Review Adviser shall send a copy of his opinion to the Secretary-General of the institution, body, office or agency concerned and to the Supervisory Committee.

 

7. Where it is found that an investigation cannot be closed within 12 months after it has been opened, the Director-General of the Office may decide to extend the period by up to six months. The Director General of the Office shall ascertain the need for the investigation to be extended. Before taking this decision, the Director General shall inform the Supervisory Committee of the reasons preventing the investigation from being concluded and of the likely period of time needed for it to be completed.

If necessary, further such extension decisions may be taken, subject to the same conditions.”

If an investigation is not completed within 18 months after it has been opened, the Supervisory Committee shall be informed by the Director General of the reasons which have prevented him from closing the investigation and shall issue an opinion on the extension (and where appropriate the subsequent conduct) of the investigation.

 

The Supervisory Committee shall forward a copy of its opinion to the institution, body, office or agency concerned. It may defer the forwarding of its opinion in cases requiring absolute secrecy to be maintained for the purposes of the investigation or in accordance with the national law applicable to investigations.

 

The Director General of the Office shall submit to the budgetary authority an annual report on the reasons which have prevented him from closing investigations within 30 months after they have been opened. The Supervisory Committee shall submit an opinion on those reasons to the budgetary authority.

Justification

Responsibility for extending an investigation beyond 12 months should rest with the Director General. If the investigation cannot be concluded within 24 months, it is necessary to lay down that the Supervisory Committee may submit an opinion to the Director General. This opinion must be forwarded to the institution concerned to inform it of the progress of the investigation, subject to exceptions.

Amendment  51

Proposal for a regulation– amending act

Article 1 – point 4 a (new)

Regulation (EC) n° 1073/1999

Article 7 – paragraph 1

 

Text proposed by the Commission

Amendment

 

(4a) Article 7(1) is replaced by the following text:

 

'1. The institutions, bodies, offices and agencies shall forward to the Office without delay any information relating to possible cases of fraud or corruption or any other illegal activity detrimental to the financial interests of the European Community.'

Justification

It is desirable to indicate that illegal activities which may be the subject of a communication to OLAF should be confined to those which are detrimental to the financial interests of the Community. This clarifies the field of responsibility of OLAF.

Amendment  52

Proposal for a regulation– amending act

Article 1 – point 4 b

Regulation (EC) n° 1073/1999

Article 7 – paragraph 2

 

Text proposed by the Commission

Amendment

 

(4b) Article 7(2) is replaced by the following text:

 

"2. The institutions, bodies, offices and agencies and, in so far as national law allows, the Member States shall, at the request of the Office or on their own initiative, forward any document or information they hold which relates to a current investigation."

Justification

It is desirable to stipulate that Community institutions, bodies, offices and agencies, as well as Member States, in accordance with their national law, are to forward to OLAF any document or information concerning current investigations, without any distinction between internal and external investigations.

Amendment  53

Proposal for a regulation– amending act

Article 1 – point 5

Regulation (EC) n° 1073/1999

Article 7 a – paragraph 1

 

Text proposed by the Commission

Amendment

1. In its investigation the Office shall seek evidence for and against the person concerned.

1. In its investigation the Office shall seek evidence for and against the person concerned. Investigations shall be conducted objectively and impartially and in accordance with the principle of the presumption of innocence and the procedural guarantees set out in the Procedural Code referred to in Article 15a.

Justification

In view of the relevant Community case law, it should be stated that OLAF investigations must be conducted in accordance with certain procedural principles and individual rights.

Amendment  54

Proposal for a regulation – amending act

Article 1 – point 5

Regulation (EC) No 1073/1999

Article 7a – paragraph 2

 

Text proposed by the Commission

Amendment

2. As soon as an investigation reveals that a member, manager, official or other servant or a person serving an institution, body, office or agency or an economic operator may be implicated in a matter, the person concerned shall be informed, provided that this does not prejudice the conduct of the investigation.

2. As soon as an investigation reveals that a member, manager, official or other servant or a person serving an institution, body, office or agency or an economic operator may be implicated in a matter, the person concerned shall be informed, provided that this does not prejudice the conduct of the investigation.

In any event, no conclusions referring by name to a natural or legal person may be drawn on completion of an investigation unless the person thus personally implicated has been given the opportunity to make his views known on all matters concerning him. That person must be given a summary of such matters in the invitation to comment. He is entitled to be assisted by a person of his choice. Any person implicated personally is entitled to use the official Community language of his choice; however, officials or other servants of the Communities may be asked to use an official Community language of which they have a thorough knowledge. A person implicated personally shall be entitled to avoid self incrimination.

In any event, before the investigation’s final report is drawn up no conclusions referring by name to a natural or legal person may be drawn on completion of an investigation unless the person thus personally implicated has been given the opportunity to make his views known, in writing or at an interview with employees designated by the Office, on all matters concerning him. The person concerned must be given a summary of such matters in the invitation to comment and shall submit his comments within the time-limits indicated by the Office. In an interview he is entitled to be assisted by a person of his choice. Any person implicated personally is entitled to use the official Community language of his choice; however, officials or other servants of the Communities may be asked to use an official Community language of which they have a thorough knowledge. A person implicated personally shall be entitled to avoid self incrimination.

In cases requiring absolute secrecy to be maintained for the sake of the investigation and entailing use of investigative proceedings falling under the jurisdiction of a national judicial authority or, in the case of an external investigation, that of a competent national authority, the Director General of the Office may decide to defer fulfilment of the obligation to ask the person implicated to make his views known. He shall first notify the Review Adviser, who shall give an opinion in accordance with Article 14(3). In the case of an internal investigation, the Director General of the Office shall take his decision in agreement with the institution, body, office or agency to which the person concerned belongs.

In cases requiring absolute secrecy to be maintained for the sake of the investigation or entailing use of investigative proceedings falling under the jurisdiction of a national judicial authority or, in the case of an external investigation, that of a competent national authority, the Director General of the Office may decide to defer fulfilment of the obligation to ask the person implicated to make his views known, while complying with the provisions on reviewing legality laid down in Article 14. In the case of an internal investigation, the Director General of the Office shall take his decision in agreement with the institution, body, office or agency to which the person concerned belongs.

 

The institution, body, office or agency shall where necessary decide on the expediency of any precautionary or administrative measures, taking due account of the interest of securing the effectiveness of the investigation’s conduct and of any particular confidentiality measures that the Office has recommended. The institution, body, office or agency shall inform the Office as soon as possible of the decision to take any measures under this Article or, where appropriate, of the need to initiate an additional disciplinary procedure on matters for which there is appropriate competence under the Staff Regulations of Officials of the European Communities.

Justification

This provision introduces the fundamental right for persons subject to investigation to submit comments on the conclusions of the investigation’s final report before it is adopted. It also lays down the exceptions in accordance with the national law applicable to investigations, and after carrying out the review of legality.

Amendment  55

Proposal for a regulation – amending act

Article 1 – point 5

Regulation (EC) No 1073/1999

Article 7a – paragraph 3

 

Text proposed by the Commission

Amendment

3. The invitation to any interview, whether with a witness or with a person implicated personally within the meaning of paragraph 2, must be sent with at least eight working days’ notice; the period of notice may be shortened with the agreement of the person to be interviewed. The invitation shall include a list of the rights of the person interviewed. The Office shall draw up a record of the interview and shall give the person interviewed access to it so that he may either approve the record or add observations.

3. The invitation to any interview, whether with a witness or with a person implicated personally within the meaning of paragraph 2, must be sent with at least ten working days’ notice; the period of notice may be shortened with the express consent of the person to be interviewed. The invitation shall include a list of the rights of the person interviewed. The Office shall draw up a record of the interview and shall give the person interviewed access to it so that he may either approve the record or add observations.

When, in the course of the interview, it transpires that the person interviewed may be involved in the facts under investigation, the procedural rules provided for in paragraph 2 shall apply at once.

When, in the course of the interview, evidence emerges that the person interviewed may be involved in the facts under investigation, the procedural rules provided for in paragraph 2 shall apply at once.

Justification

The period of notice should be longer. Also, as procedural guarantees already apply to persons implicated personally, the wording should make it clear that the procedural guarantees provided for in Article 7a(2) apply only to persons interviewed as witnesses who could be regarded as involved in the facts under investigation.

Amendment  56

Proposal for a regulation – amending act

Article 1 – point 5

Regulation (EC) No 1073/1999

Article 7a – paragraph 4

 

Text proposed by the Commission

Amendment

4. The procedural guarantees provided for in this Article shall apply without prejudice:

4. The procedural guarantees provided for in this Article shall apply without prejudice:

(a) to more extensive protection which may derive from the rules of the Treaties or any relevant national provisions;

(a) to more extensive protection which may derive from the rules of the Treaties, the Charter of Fundamental Rights of the European Union or any other relevant national or Community provisions, including the Protocol on the Privileges and Immunities of the European Communities;

(b) to rights and obligations conferred by the Staff Regulations.

(b) to rights and obligations conferred by the Statute for Members of the European Parliament or the Staff Regulations of Officials of the European Communities.

Justification

The possible sources of more extensive guarantees for persons implicated in an investigation should be indicated in greater detail.

Amendment  57

Proposal for a regulation – amending act

Article 1 – point 5

Regulation (EC) No 1073/1999

Article 7 b

 

Text proposed by the Commission

Amendment

If, on completion of an investigation, no evidence has been found against a member, manager, official or other servant or person serving an institution, body, office or agency or against an economic operator, the investigation into that person shall be closed and no further action taken, by decision of the Director General of the Office, who shall inform the person concerned and, where appropriate, the institution, body, office or agency in writing.

If, on completion of an investigation, no evidence has been found against a member, manager, official or other servant or person serving an institution, body, office or agency or against an economic operator, the investigation into that person shall be closed and no further action taken, by decision of the Director General of the Office, who shall, within ten working days of the decision being taken, inform the person concerned and, where appropriate, the institution, body, office or agency in writing.

Justification

It should be stressed that, following an investigation which has not produced results, the people concerned and, in the case of an official, the institution to which he belongs, can be informed of the conclusion of the investigation as soon as possible.

Amendment  58

Proposal for a regulation - amending act

Article 1 - point 5

Regulation (EC) No 1073/1999

Article 7 c (new)

 

Text proposed by the Commission

Amendment

 

"Article 7 c

To make it possible to provide objective information to European taxpayers and in order to guarantee freedom of the press, all EU bodies involved in the investigation must respect the principle of protecting journalists' sources in accordance with national legislation."

Justification

The 'Tillack' affair, in which judicial abuses were committed against a German journalist who had revealed corruption in the operations of an EU agency, is indicative of serious shortcomings in the protection of sources within the EU institutions. Journalists' freedom to report information and their right to freedom of speech when scrutinising the use to which EU institutions put European taxpayers' money must be clearly guaranteed, as the European Court of Human Rights ruled in its judgment of 27 November 2007.

Amendment  59

Proposal for a regulation – amending act

Article 1 – point 7

Regulation (EC) No 1073/1999

Article 8 a – subparagraph 2

 

Text proposed by the Commission

Amendment

The Director General of the Office may decide not to make the communication referred to in the first subparagraph in cases requiring the maintenance of absolute secrecy and use of investigative measures that fall under the jurisdiction of a national judicial authority. In the case of an internal investigation he shall decide in agreement with the institution, body, office or agency to which the person concerned belongs.

The Director General of the Office may decide not to make the communication referred to in the first subparagraph in cases requiring the maintenance of absolute secrecy or use of investigative measures that fall under the jurisdiction of a national judicial authority, in accordance with the national law applicable to investigations. In the case of an internal investigation he shall decide, having first informed in good and due form the institution, body, office or agency to which the person concerned belongs.

Justification

Cases which require absolute secrecy or use of investigative measures that fall under the jurisdiction of a national judicial authority must be dealt with by the Director General in accordance with the national law applicable. Consequently, compliance with the requirement for the person to be informed of the forwarding of the final report on the investigation may be deferred if required by national procedure.

Amendment  60

Proposal for a regulation – amending act

Article 1 – point 7

Regulation (EC) No 1073/1999

Article 8 a – subparagraph 3

 

Text proposed by the Commission

Amendment

If the person implicated personally considers that the procedural guarantees provided for in Articles 6(5) and 7a have been disregarded in a manner liable to affect the conclusions of the investigation, that person may lodge a request for an opinion with the Review Adviser within ten working days of receiving the conclusions of the final report.

If the person implicated personally considers that the procedural guarantees provided for in Articles 6(5) and 7a have been disregarded in a manner liable to affect the conclusions of the investigation, that person may lodge a request for an opinion with the Director General, in accordance with Article 14a, within ten working days of receiving the conclusions of the final report.

Amendment  61

Proposal for a regulation – amending act

Article 1 – point 8 a

Regulation (EC) No 1073/1999

Article 9 – paragraph 1

 

Text proposed by the Commission

Amendment

On completion of an investigation by the Office, the latter shall draw up a report, under the authority of the Director General, which shall include an account of the stages in the procedure, the legal basis, the facts established and their classification in law, the financial loss, if any, and the findings of the investigation, including recommendations on action that should be taken.

On completion of an investigation by the Office, the latter shall draw up a report, under the authority of the Director General, which shall give an account of the stages in the procedure, the legal basis, the facts established and their classification in law, and the findings of the investigation, including recommendations on action that should be taken. The report shall specify the estimated financial loss and the amounts to be recovered. The regulatory procedure referred to in Article 15a shall detail all the other information to be included in the report for purposes of recovery, responsibility for which lies with the competent authorising officer.

Justification

The OLAF Manual already details the information to be given in this report. In view of the importance of the recovery activity, it is desirable to mention - in addition to the investigative measures carried out - also the estimated financial loss (this is always an estimate). The amount to be recovered should be indicated in this report. The procedural code for OLAF investigations should similarly mention all the points to be included in the final report on the investigation, with a view to recovery.

Amendment  62

Proposal for a regulation – amending act

Article 1 – point 8 b

Regulation (EC) No 1073/1999

Article 9 – paragraph 3

 

Text proposed by the Commission

Amendment

3. Reports drawn up following an external investigation and any useful related documents shall be sent to the competent authorities of the Member States concerned in accordance with the rules relating to external investigations and to the Commission. The competent authorities of the Member States concerned shall, in so far as is not incompatible with national law, inform the Director General of the Office of the action taken as a result of the investigation reports sent to them.

3. Reports drawn up following an external investigation and any useful related documents shall be sent to the competent authorities of the Member States concerned in accordance with the rules relating to external investigations and to the Commission. The competent authorities of the Member States concerned shall, in so far as is not incompatible with national law, inform the Director General of the Office of the action taken as a result of the investigation reports sent to them. To this end, they shall forward a progress report to the Director General of the Office every six months or, where applicable, within the period laid down by the Director General.

Justification

In view of the lack of regular information forwarded to OLAF as part of the follow-up to its investigations, it is desirable to stipulate that the authorities are, twice a year, to forward a report on the progress made in acting on the reports forwarded by OLAF.

Amendment  63

Proposal for a regulation – amending act

Article 1 – point 8 b

Regulation (EC) No 1073/1999

Article 9 – paragraph 3 – subparagraph 1 a (new)

 

Text proposed by the Commission

Amendment

 

The Office shall forward to the competent authorities of third countries, in accordance with the cooperation and mutual assistance agreements concluded with the Commission, and to international organisations, in accordance with the agreements concluded with the Commission, the conclusions and recommendations of the report drawn up following an external investigation and any useful related documents. The Commission shall ensure that the competent authorities of the third countries identified in the cooperation and mutual assistance agreements as the Office’s points of contact inform the Director General of the Office, in so far as this is not incompatible with national law, of the action taken on the conclusions and recommendations of the final investigation report. The Commission shall likewise ensure that the international organisations inform the Director General of the Office of the action taken further to the conclusions and recommendations of the final investigation report. To this end, they shall forward a progress report to the Director General of the Office every six months or, where applicable, within the period laid down by the Director General.

Justification

In view of the growing importance of OLAF's external investigations, it is desirable to lay down in this Regulation a legal basis enabling OLAF to forward final investigation reports to the competent authorities of third countries and to international organisations and to receive information on the action taken on them. The Commission should take all the necessary measures to enable such an exchange to take place.

Amendment  64

Proposal for a regulation – amending act

Article 1 – point 8 c

Regulation (EC) No 1073/1999

Article 9 – paragraph 3 a

 

Text proposed by the Commission

Amendment

3a. Where the report drawn up after an internal investigation reveals the existence of facts which could give rise to criminal proceedings, the final report shall be transmitted to the judicial authorities of the Member State concerned. The Director General of the Office may decide, however, not to transmit the final report to the judicial authorities where he considers that internal measures permitting more appropriate follow up action are available, in the light of the nature of the facts, their lack of seriousness or the small scale of the financial loss. In all cases, he shall transmit the final report to the institution, body, office or agency concerned in accordance with paragraph 4. He shall inform the Review Adviser and the Supervisory Committee of all duly reasoned decisions not to transmit the final report to the judicial authorities.

3a. Where the report drawn up after an internal investigation contains information pertaining to facts which could give rise to criminal proceedings, the final report shall be transmitted to the judicial authorities of the Member State concerned and, without prejudice to national provisions on judicial procedures, to the institution, body, office or agency concerned in accordance with paragraph 4.

Justification

Clarification. Investigations into facts which could give rise to criminal proceedings are a matter for the national judicial authorities. The Director General of OLAF conducts administrative investigations. If he considers that facts could give rise to criminal proceedings, he must forward them to the competent authorities. The institution concerned is informed about them, in accordance with national law.

Amendment  65

Proposal for a regulation – amending act

Article 1 – point 8 – subpoint c a (new)

Regulation (EC) No 1073/1999

Article 9 – paragraph 4

 

Text proposed by the Commission

Amendment

 

(ca) Article 9(4) is replaced by the following:

 

“4. Reports drawn up following an internal investigation and any useful related documents shall be sent to the institution, body, office or agency concerned. The institution, body, office or agency shall take such action, in particular disciplinary or legal, on the internal investigations, as the results of those investigations warrant, and shall report thereon to the Director of the Office [...]. To that end they shall send the Director General of the Office, every six months or, where appropriate, within the time-limits that the Director General has set, a report on the progress made.

Justification

To harmonise practice between the institutions, bodies, offices and agencies and the Member States’ competent authorities on sending information about the action taken on the conclusions in the investigation’s final report, there is a need to remind institutions of the desirability of providing a report on action taken and progress made, to be sent to the Director General of the Office, particularly, in the case of the Commission, with the contributions from IDOC.

Amendment  66

Proposal for a regulation – amending act

Article 1 – point 9

Regulation (EC) No 1073/1999

Article 10 – paragraph 1 – subparagraph 1 a (new)

 

Text proposed by the Commission

Amendment

 

The decision to forward shall be taken by the Director General of the Office, after consultation of the Office’s executive board and in accordance with the legality review provisions set out in Article 14(2).

Justification

It is desirable to lay down that the forwarding of information to the competent authorities of the Member States is subject to a legality review. The Director General must consult the executive board of OLAF before taking his decision.

Amendment  67

Proposal for a regulation - amending act

Article 1 - point 9

Regulation (EC) No 1073/1999

Article 10 - paragraph 2 - subparagraph 1 a

 

Text proposed by the Commission

Amendment

 

The decision to forward shall be taken by the Director General of the Office, after consultation of the Office’s Executive Board and in accordance with the legality review provisions set out in Article 14(2).

Justification

The forwarding of information to the competent authorities in the Member States should be made subject to the legality review. The Director General should consult the OLAF executive board before taking the decision.

Amendment  68

Proposal for a regulation – amending act

Article 1 – point 9

Regulation (EC) No 1073/1999

Article 10 – paragraph 2 – subparagraph 2

 

Text proposed by the Commission

Amendment

Before forwarding the information referred to in the first subparagraph, the Office shall give the person implicated by the investigation the opportunity to comment on the matters concerning him subject to the conditions, and in accordance with the arrangements, set out in the second and third subparagraphs of Article 7a(2).

Before forwarding the information referred to in the first subparagraph, provided that this is not prejudicial to the conduct of the inquiry, the Office shall give the person implicated by the investigation the opportunity to comment on the matters concerning him subject to the conditions, and in accordance with the arrangements, set out in the second and third subparagraphs of Article 7a(2).

Amendment  69

Proposal for a regulation – amending act

Article 1 – point 9 a (new)

Regulation (EC) No 1073/1999

Article 10 – paragraph 3 a (new)

 

Text proposed by the Commission

Amendment

 

9a. The following paragraph 3a is added to Article 10:

 

3a. Information exchange and cooperation between the Office and the competent authorities of the Member States, as well as the actions and measures taken or implemented on the basis of the information forwarded to them, shall be regularly analysed in the framework of the concertation procedure established under Article 11a.”

Justification

Exchanges of information and cooperation between the competent authorities and OLAF, as carried out as part of OLAF's operational practice, is an element which requires regular analysis between the institutions in order to be able to identify operational solutions which can improve OLAF's working environment.

Amendment  70

Proposal for a regulation – amending act

Article 1 – point 9 b (new)

Regulation (EC) No 1073/1999

Article 10 a – paragraph 1 (new)

 

Text proposed by the Commission

Amendment

 

9b. The following Article 10 a, paragraph 1, is inserted:

 

“Article 10 a

 

Exchange of information between the Office and institutions concerned

 

1. The Director General of the Office shall report regularly, at least once a year to the European Parliament, the Council, the Commission and the Court of Auditors on the results of the investigations carried out by the Office, with due respect for the confidentiality of those investigations, the legitimate rights of the people involved and, where applicable, the national provisions applicable to judicial procedures.

 

The Director General shall act in accordance with the principle of independence that informs his mission.”

Justification

It is desirable to lay down a provision enabling the Director General of OLAF to inform the institutions concerned regularly about the results of investigations in order to comply with recent case law of the Court in this field.

Amendment  71

Proposal for a regulation – amending act

Article 1 – point 9 c (new)

Regulation (EC) No 1073/1999

Article 10 a – paragraph 2 (new)

 

Text proposed by the Commission

Amendment

 

9c. The following Article 10a, paragraph 2 is inserted:

 

“2. The European Parliament, the Council, the Commission and the Court of Auditors shall ensure that the confidentiality of the investigations carried out by the Office, the legitimate rights of the people concerned and, where there are judicial procedures, all national provisions applicable to those procedures is preserved.”

Justification

The institutions concerned by an investigation must maintain the confidentiality of investigations by OLAF and the competent authorities and safeguard the legitimate rights of the persons concerned.

Amendment  72

Proposal for a regulation – amending act

Article 1 – point 9 d (new)

Regulation (EC) No 1073/1999

Article 10 a – paragraph 3 (new)

 

Text proposed by the Commission

Amendment

 

9d. The following Article 10 a, paragraph 3, is inserted:

 

“3. The Office and the institutions concerned may reach agreements regarding the forwarding of any information necessary for the accomplishment of the Office’s mission, in compliance with the principles set out in paragraphs 1 and 2.”

Justification

At present there is no legal basis enabling OLAF and the European Parliament to exchange confidential information. The framework agreement of May 2005 between the Commission and the European Parliament does not apply to OLAF. The information flow is governed by Annex VII to the Rules of Procedure of the European Parliament. According to the opinion of Parliament's Legal Service, it would be desirable to create such a legal basis to enable the institution to carry out its remit.

Amendment  73

Proposal for a regulation – amending act

Article 1 – point 9 e (new)

Regulation (EC) No 1073/1999

Article 10 b (new)

 

Text proposed by the Commission

Amendment

 

9e. The following Article 10 b is inserted:

 

“Article 10 bPublic information

 

The Director General of the Office shall ensure that public information is given neutrally and impartially and in accordance wit the principles set out in Article 10 a.

 

The procedural code for OLAF investigations adopted under Article 15 of the present regulation sets out the rules on prevention of unauthorised distribution of information relating to the Office’s operational activity and the disciplinary sanctions to be applied in the event of an information leak, in accordance with Article 8(3).

Justification

It is desirable to lay down provisions concerning OLAF's policy on communicating with the public and to recall here the principles and provisions of Regulation (EC) No 45/2001 (Article 49) to be inserted in the procedural code (including disciplinary punishments in the event of a leak).

Amendment  74

Proposal for a regulation – amending act

Article 1 – point 10 – subpoint a

Regulation (EC) No 1073/1999

Article 11 – paragraph 1

 

Text proposed by the Commission

Amendment

“1. The Supervisory Committee shall reinforce the Office’s independence by regular monitoring of the implementation of the investigative function.

“1. The Supervisory Committee shall ensure that the Office exercises in full independence the competences conferred upon it by this Regulation by regular monitoring of the implementation of the investigative function. The Supervisory Committee shall:

The Supervisory Committee shall ensure that the rules governing information exchanges between the Office and the institutions, bodies, offices and agencies are complied with.

(a) ensure that the rules governing information exchanges between the Office and the institutions, bodies, offices and agencies are complied with;

The Supervisory Committee shall monitor developments regarding the application of procedural guarantees and the duration of investigations in the light of the periodic statistics supplied by the Director General of the Office and the opinions and analysis reports regularly drawn up in this connection by the Review Adviser on the basis of close cooperation with the Director General of the Office.

(b) monitor developments regarding the application of procedural guarantees and the duration of investigations in the light of the periodic statistics, information and investigation reports supplied to it by the Director General of the Office and the opinions drawn up by the Review Adviser;

 

(c) assist the Director General, ensuring that the Office has the resources needed to carry out its investigative task;

 

(d) give opinions and recommendations on:

– the identification of priorities for investigation;

– the duration of investigations and action taken on investigations;

– the procedural code;

 

(e) give opinions on action by the Director General before the Court of Justice of the European Communities and the national courts;

 

(f) assist the Director General in the concertation procedure.

 

(g) The Supervisory Committee may bring the Commission or any other institution before the Court of Justice, when it considers that these institutions took measures which call the independence of the Director General of the Office into question.

The Supervisory Committee shall deliver opinions to the Director General of the Office, on its own initiative or at his request or the request of an institution, body, office or agency, without however interfering with the conduct of investigations in progress. The applicant shall be provided with a copy of such opinions.”

The Supervisory Committee shall deliver opinions to the Director General of the Office, on its own initiative or at his request or the request of an institution, body, office or agency, without however interfering with the conduct of investigations in progress. The applicant shall be provided with a copy of such opinions.”

Justification

Clarifies the tasks of the Supervisory Committee by safeguarding the Office’s independence.

Amendment  75

Proposal for a regulation – amending act

Article 1 – point 10 a a (new)

Regulation (EC) No 1073/1999

Article 11 – paragraph 2

 

Text proposed by the Commission

Amendment

 

(aa) Paragraph 2 is replaced by the following text:

 

“2. It shall be composed of five independent outside persons occupying, at the time of their appointment, senior judicial or investigative posts or comparable relating to the Office’s areas of activity. They must possess a knowledge of the workings of the European institutions and of a second official EU language.”

Justification

Operational practical experience in the field of combating fraud and a thorough knowledge of the workings of the institutions and of a second EU official language, preferably a working language of the Commission, should be required of candidates for membership of the Supervisory Committee.

Amendment  76

Proposal for a regulation – amending act

Article 1 – point 10 a b (new)

Regulation (EC) No 1073/1999

Article 11 – paragraph 2 – subparagraph 1 a (new)

 

Text proposed by the Commission

Amendment

 

(ab) The following subparagraph is added to paragraph 2:

 

“The members of the committee shall be appointed by common agreement by the European Parliament, the Council and the Commission. A call for applications shall be published in the Official Journal of the European Union. The five persons shall be chosen on the basis of a ‘preselection list’ submitted by the Commission, comprising at least 12 candidates.”

Justification

The members of the committee are to be appointed by common agreement between the institutions on the basis of a list submitted by the Commission. In order to ensure maximum transparency in the procedure for appointing members, provision should be made for publication of the call for applications.

Amendment  77

Proposal for a regulation – amending act

Article 1 – point 10 – subpoint a c (new)

Regulation (EC) No 1073/1999

Article 11 – paragraph 3

 

Text proposed by the Commission

Amendment

 

(ac) paragraph 3 is replaced by the following:

“3. The term of office of members shall be five years and shall not be renewable. Some members shall be appointed at a staggered interval to preserve the Committee’s expertise.”

Justification

Members’ term of office should equal that of the Office’s Director General. But it would be desirable to ensure that the Supervisory Committee’s term begins at a staggered interval in relation to the Director General’s term of office. Moreover to preserve the Committee’s expertise part of its membership should be appointed at a staggered interval.

Amendment  78

Proposal for a regulation – amending act

Article 1 – point 10 a d

Regulation (EC) No 1073/1999

Article 11 – paragraph 6

 

Text proposed by the Commission

Amendment

 

(ad) Paragraph 6 is replaced by the following text:

 

“6. The Supervisory Committee shall appoint its chairman. It shall adopt its own rules of procedure, which shall, before adoption, be submitted to the European Parliament, the Council and the Commission for their opinion. Meetings of the Supervisory Committee shall be convened on the initiative of its chairman or of the Director General of the Office. […] It shall take its decisions by a majority of its members. Its secretariat shall be provided by the Office.”

Justification

The procedure for adopting the committee's rules of procedure is based on that for the Court of Justice. It takes account of certain points on which the Court of First Instance has handed down rulings, particularly the impact of the committee's rules of procedure with a view to assessment of the operational work of OLAF. In order to increase flexibility and cater for OLAF's needs, it is desirable no longer to prescribe the number of meetings to be held by the committee.

Amendment  79

Proposal for a regulation – amending act

Article 1 – point 10 b

Regulation (EC) No 1073/1999

Article 11 – paragraph 7 – subparagraph 2 - point b

 

Text proposed by the Commission

Amendment

(b) of cases in which information is forwarded to the judicial authorities of a Member State.

(b) of cases in which the competent authorities of the Member States have not acted upon the recommendations it has made.

Justification

As the Supervisory Committee cannot interfere in the conduct of current investigations, it is desirable to stipulate that the review of legality when forwarding information to the competent authorities of a Member State should be performed internally by the 'Review Advisers' of OLAF who have access to the file on the investigation. This provision ensures a genuine review of legality.

Amendment  80

Proposal for a regulation – amending act

Article 1 – point 10 b

Regulation (EC) No 1073/1999

Article 11 – paragraph 8

 

Text proposed by the Commission

Amendment

8. The Supervisory Committee shall adopt at least one report on its activities per year, covering in particular the application of procedural guarantees and the duration of investigations; such reports shall be sent to the institutions. The Committee may submit reports to the European Parliament, the Council, the Commission and the Court of Auditors on the results of the Office’s investigations and the action taken thereon.

8. The Supervisory Committee shall adopt at least one report on its activities per year, covering in particular the assessment of the Office’s independence, the application of procedural guarantees and the duration of investigations; such reports shall be sent to the institutions. The Committee may submit reports to the European Parliament, the Council, the Commission and the Court of Auditors on the results of the Office’s investigations and the action taken thereon.

Justification

It is important to ask the committee also to report on the assessment of the independence of OLAF.

Amendment  81

Proposal for a regulation – amending act

Article 1 – point 11

Regulation (EC) No 1073/1999

Article 11 a

 

Text proposed by the Commission

Amendment

Structured dialogue with the institutions

Consultation procedure

The Supervisory Committee shall meet, at least twice a year and at the request of one of the institutions, with one representative designated by each of the European Parliament, the Council and the Commission, as part of a structured dialogue at political level in order to devise common guidelines.

1. A concertation procedure between the European Parliament, the Council and the Commission shall be established.

The structured dialogue shall relate to the Office’s investigative function, and in particular to:

2. The concertation procedure shall relate to:

(a) the annual report on the activities of the Supervisory Committee and that of the Director General of the Office;

a) the relations and cooperation between the Office and the Member States, and among the latter, in particular:

(b) the Office’s programme of investigative activities;

- coordination of actions taken pursuant to Article 1;

(c) aspects relating to the Office’s investigation policy priorities;

- the implementation and application of the present regulation, Regulation (EC, Euratom) No2988/95 and Regulation (Euratom, EC) No2185/96, as well as of the Convention on the protection of the financial interests of the European Communities of 26 July 1995 and its protocols;

(d) good relations between the Office and the institutions, bodies, offices and agencies;

- the action taken on the Office’s final investigation reports and the action taken further to the forwarding of information by the Office;

(e) the effectiveness of the work of the Office with regard to investigations and that of the Supervisory Committee.

(b) the relations and cooperation between the Office and the institutions, bodies, offices and agencies of the Union and the European Communities, including Eurojust and Europol, including the assistance offered to the Office by the institutions and the action taken on final investigation reports or further to forwarding of information by the Office;

The structured dialogue shall not interfere with the conduct of investigations.

(c) the relations and cooperation between the Office and the competent authorities in third countries, as well as with international organisations, in the framework of the agreements referred to in the present regulation;

The Office shall take such action as is appropriate on the opinions expressed in the structured dialogue.

(d) aspects relating to the Office’s investigation policy priorities;

 

(e) the Supervisory Committee’s reports and analyses;

 

3. Consultation shall take place at least once a year and at the request of one of the institutions.

 

4. The Director General of the Office and the chairman of the Supervisory Committee shall take part in the concertation procedure. Representatives of the Court of Auditors, Eurojust and Europol may be invited.

 

5. Consultation shall be prepared at one or more technical meetings. The meetings shall be convened at the request of one of the institutions or of the Office.

 

6. The concertation procedure may not under any circumstances interfere with the conduct of investigations and shall be carried out with full respect for the independence of the Director General.

 

7. The institutions, bodies, offices and agencies, the Office and the Member States shall inform the parties to the concertation procedure of the action taken further to the conclusions of the concertation procedure on every occasion.

Justification

This procedure enables the Community legislature, the budgetary authority and the Commission to discuss various aspects relating to fighting fraud. It makes it possible to identify the appropriate solutions (operational, legislative, institutional) to the difficulties encountered by OLAF in carrying out its remit. This procedure, incidentally, takes account of the Council's considerations concerning the Commission proposal ('commitology').

Amendment  82

Proposal for a regulation – amending act

Article 1 - point 12 a

Regulation (EC) No 1073/1999

Article 12 - paragraph 1

 

Text proposed by the Commission

Amendment

After consulting the representatives of the other institutions, meeting with the Supervisory Committee in the context of the structured dialogue, the Commission shall appoint the Director General of the Office for a term of seven years, which may not be renewed. The consultation shall be organised on the basis of a list of candidates drawn up by the Commission after a call for applications.

1. The Office shall be placed under the authority of a Director General appointed by the Commission for a term of five years, which may be renewed once.

 

The European Parliament and the Council shall designate the Director General by common agreement on the basis of a list of 6 candidates put forward by the Commission. A call for applications shall be published in the Official Journal of the European Union.

 

The appointment shall be made within three months of the list of candidates being put forward by the Commission. The duration of the appointment procedure as a whole may not exceed nine months and the procedure must begin at least nine months before the end of the term of office of the incumbent, who shall remain in office until the beginning of the new Director General’s term of office.

 

 

If the European Parliament and/or the Council do not oppose the renewal of the Director General’s mandate at latest nine months before his/her first mandate expires, the Commission will proceed to extend the mandate of the Director- General. The opposition against the extension of the mandate should be justified. Otherwise, the nomination procedure foreseen by the third subparagraph of this paragraph applies.

Amendment  83

Proposal for a regulation – amending act

Article 1 – point 12 b

Regulation (EC) No 1073/1999

Article 12 – paragraph 2

 

Text proposed by the Commission

Amendment

(b) paragraph 2 is deleted;

2. The Director General of the Office shall be chosen from among the candidates from Member States who occupy or have occupied a senior judicial or an executive investigative post and who have operational professional experience of at least ten years in a position of high management responsibility A significant portion of this professional experience shall be acquired in the area of the fight against national and/or Community fraud. He/she must have a thorough knowledge of the workings of the European institutions and of a second official language of the Union. His/her independence must be beyond doubt.

Justification

It would be wise to state specifically the criteria which the candidate must satisfy in order to be appointed to the post of Director General of OLAF. For practical reasons, a knowledge of at least one of the Commission's working languages must be required.

Amendment  84

Proposal for a regulation - amending act

Article 1 - point 12 c

Regulation (EC) No 1073/1999

Article 12 - paragraph 3

 

Text proposed by the Commission

Amendment

(c) in paragraph 3, “the Director” is replaced by “the Director General”;

(c) paragraph 3 is replaced by the following text:

 

“3. The Director General shall neither seek nor take instructions from any government or any institution, body, office or agency in the performance of his duties with regard to the opening and carrying out of external and internal investigations or to the drafting of reports following such investigations. If the Director General considers that a measure taken by the Commission calls his independence into question, he shall inform immediately the Supervisory Committee for opinion, and decide to bring an action against the institution concerned before the Court of Justice.

 

The Director General shall report regularly to the European Parliament, the Council, the Commission and the Court of Auditors, in the context of the concertation procedure referred to in Article 11a, on the findings of investigations carried out by the Office, the action taken and the problems encountered, whilst respecting the confidentiality of the investigations, the legitimate rights of the persons concerned and, where appropriate, national provisions applicable to judicial proceedings.

 

The above institutions shall ensure that the confidentiality of the investigations conducted by the Office is respected, together with the legitimate rights of the persons concerned, and, where judicial proceedings have been instituted, that all national provisions applicable to such proceedings have been adhered to.

Justification

The subjects to be reported on to the institutions concerned should include the action taken following investigations carried out by the Office and the problems encountered.

Amendment  85

Proposal for a regulation – amending act

Article 1 - point 12 d

Regulation (EC) No 1073/1999

Article 12 - paragraph 4 - subparagraph 1

 

Text proposed by the Commission

Amendment

4. Before adopting any disciplinary sanction against the Director General, the Commission shall consult the Supervisory Committee, meeting with the representatives of the other institutions in the context of the structured dialogue.

4. Before adopting any disciplinary sanction against the Director General, the Commission shall consult the Supervisory Committee, meeting with representatives of the European Parliament and of the Council in the context of the concertation procedure foreseen in Article 11a.

Justification

The concertation procedure provides the Commission with the institutional framework for debating any disciplinary measures against the Director General. In view of the importance of the measure to be taken, it is desirable to ensure that these measures are discussed not only with the Supervisory Committee but also with the other institutions concerned. In the case of a potential disciplinary sanction against the Director General, it must be made clear that the European Parliament and the Council are fully involved in the procedure.

Amendment  86

Proposal for a regulation – amending act

Article 1 - point 12 d a

Regulation (EC) No 1073/1999

Article 12 - paragraph 4 a (new)

 

Text proposed by the Commission

Amendment

 

The Director General of the Office will inform the Commission if he/she intends to engage in any new occupational activity within two years of the end of his/her service, in conformity with article 16 of the Staff Regulations of Officials of the European Community.

Amendment  87

Proposal for a regulation – amending act

Article 1 – point 12 a (new)

Regulation (EC) No 1073/1999

Article 12 a (new)

 

Text proposed by the Commission

Amendment

 

12a. The following Article 12a is added:

 

“Article 12 aInterventions of the Director General before the Court of Justice of the European Communities and before the national courts

 

The Director General of the Office may intervene in cases, in connection with the conduct of the Office’s activities, brought before the Court of Justice of the European Communities and, in accordance with national law, before the national courts.

 

Before intervening before the Court of Justice of the European Communities or the national courts, the Director General of the Office shall seek an opinion of the Supervisory Committee.”.

Justification

In line with the idea contained in Article 12 of this Regulation that the Director General of OLAF should be empowered to arrange for any measures which call its independence into question to be examined by a court, it is also worthwhile to give him a power to intervene in support of a party before the Court where the exercise of its investigative function is at issue. This right of intervention may also be extended to include intervention before national courts. The Supervisory Committee must deliver its opinion.

Amendment  88

Proposal for a regulation – amending act

Article 1 – point 14

Regulation (EC) No 1073/1999

Article 14

 

Text proposed by the Commission

Amendment

Review adviser

Review of legality of the Office’s investigations

1. The Director General of the Office, acting on a proposal from the Supervisory Committee, shall appoint a Review Adviser for a non-renewable term of five years. The Supervisory Committee shall base its proposal on a list of several candidates drawn up following a call for applications.

1. The review of legality of the Office’s investigations shall concern respect for the procedural guarantees and fundamental rights of the people involved in an Office investigation.

2. The Review Adviser shall act in complete independence. He shall neither seek nor take instructions from anyone in the performance of his duties. He shall perform no functions within the Office other than those related to monitoring compliance with procedures.

2. The review of legality shall be carried out before the opening and after the close of an investigation, before any forwarding of information to the competent authorities in the Member States concerned within the meaning of Articles 9 and 10, and in connection with an evaluation of the absolute confidentiality of the investigation.

Before adopting any disciplinary measure concerning the Review Adviser, the Director General of the Office shall consult the Supervisory Committee.

3. The review of legality of investigations shall be carried out by Office experts in law and investigative procedure who are qualified to exercise judicial office in a Member State. Their opinion shall be appended to the final investigation report.

3. Anyone personally implicated by an investigation may ask the Review Adviser to give an opinion regarding the procedural guarantees provided for in Article 6(5) and Article 7a. The Review Adviser may also issue opinions of his own motion on those matters.

4. The procedural code referred to in Article 15a sets out the procedure for the legality review.

4. Cases shall be referred for the opinion of the Review Adviser by the Director General of the Office in the circumstances referred to in Article 6(7) and the third subparagraph of Article 7a(2). The Director General of the Office may also submit any request to the Review Adviser in connection with the review of investigations.

 

5. The Review Adviser shall report regularly to the Supervisory Committee on his activities; he shall present it, and the Commission, with regular statistical and analytical reports on questions related to the duration of investigations and procedural guarantees. The Review Adviser’s reports may not refer to individual cases under investigation.

 

Justification

In addition to a review of the legality of OLAF's investigations by national courts and the Court of Justice, it is desirable to clarify the operational practices of OLAF in this field. The legality review by OLAF ensures respect for procedural guarantees and the fundamental rights of the persons concerned. This practice is based on the knowledge which OLAF's 'Review Advisers' possess of Community law concerning investigations and national law and procedure.

Amendment  89

Proposal for a regulation – amending act

Article 1 – point 14 a (new)

Regulation (EC) No 1073/1999

Article 14 a (new)

 

Text proposed by the Commission

Amendment

 

14a. The following Article 14 a is added:

 

“Article 14 aFiling of complaints by persons concerned by Office investigations

 

1. Any person personally concerned by an investigation may lodge a complaint with the Supervisory Committee alleging a violation of his procedural or human rights in the course of the investigation. Following reception of a complaint, the Supervisory Committee shall transmit without any delay the complaint to a Review Adviser.

 

2. The Director General of the Office, acting on a proposal from the Supervisory Committee, shall appoint a Review Adviser for a non-renewable term of five years. The Supervisory Committee shall base its proposal on a list of several candidates drawn up following a call for applications.

 

3. The Review Adviser shall act in complete independence. He/she shall neither seek nor take instructions from anyone in the performance of his duties. He/she shall perform no functions within the Office other than those related to monitoring compliance with procedures.

 

4. The Review Adviser is also competent for dealing with the complaints of the informants, including persons falling under Article 22 of the Staff Regulations of the Community institutions.

 

5. The Review Adviser within no more than 30 working days of the forwarding of the complaint shall give the complainant, the Supervisory Committee and the Director General his/her opinion.

 

6. The Review Adviser shall report regularly to the Supervisory Committee on his activities. He/she shall present it, and the Commission, with regular statistical and analytical reports on questions related to complaints.

Amendment  90

Proposal for a regulation – amending act

Article 1 – point 15

Regulation (EC) No 1073/1999

Article 15

 

Text proposed by the Commission

Amendment

(15) Article 15 is deleted.

(15) Article 15 is replaced by the following:

 

During the fourth year following the entry into force of this Regulation, the Commission shall transmit to the European Parliament and the Council a […] report on the application of this Regulation, together with an opinion by the Supervisory Committee […]. The report shall state whether there is a need to amend this Regulation. In any event, this Regulation shall be amended after the creation of a European Public Prosecutor’s Office.”

Justification

There is a need to preserve the opportunity for the Commission to report on the application of this regulation. It is also desirable to provide for the option of amending the regulation to take account of that report. In view of the impact of a European Public Prosecutor’s Office on the fight against fraud we need to specify that the regulation should be amended as soon as that office is set up.

Amendment  91

Proposal for a regulation – amending act

Article 1 – point 16

Regulation (EC) No 1073/1999

Article 15 a

 

Text proposed by the Commission

Amendment

Article 15

Implementing measures

Article 15 a

Procedural code for OLAF investigations

Implementing measures relating to the application of procedural guarantees in administrative investigations by the Office as provided for by this Regulation shall be adopted in accordance with the regulatory procedure referred to in Article 15b(2).

1. The Office shall adopt a ‘procedural code for OLAF investigations’ incorporating the judicial and procedural principles adopted under the present regulation. It shall take account of the Office’s operational practices.

 

2. The procedural code shall set out the practices to be observed in implementing the mandate and statute of the Office, general principles governing investigative procedures, as well as the main investigative acts, the legitimate rights and procedural guarantees of the persons concerned, provisions relating to data protection and policies on communication and access to documents, provisions on review of legality and the means of redress open to the people concerned.

 

3. Before adoption of the procedural code, the European Parliament, the Council, the Commission and the Office’s Supervisory Committee shall be consulted. The Supervisory Committee shall ensure the independence of the Office in adopting the procedural code.

 

4. The code may be updated on a proposal from the Director General of the Office. In this case the adoption procedure referred to in the present article shall be applied.

 

5. The procedural code adopted by the Office shall be published in the Official Journal of the European Union.

Justification

It is desirable to create a legal basis to allow OLAF to adopt a procedural code for its investigations, in order to ensure greater transparency of OLAF's operations.

Amendment  92

Proposal for a regulation – amending act

Article 1 – point 16

Regulation (EC) No 1073/1999

Article 15 b

 

Text proposed by the Commission

Amendment

Article 15 b

Committee

1. The Commission shall be assisted by the Committee instituted by Article 43 of Council Regulation (EC) No 515/97(*).

deleted

2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

 

The period referred to in Article 5(6) of Decision 1999/468/EC shall be three months.

 

3. The Committee shall adopt its Rules of Procedure.

(*)       OJ L 82, 22.3.1997, p. 1.”

 

 

Justification

In view of the amendments proposed, such as, firstly, the provisions on review of legality and procedural guarantees, and secondly, the provisions on the establishment of a concertation procedure, this committee becomes superfluous.

(1)

OJ C 8, 12.1.2007.


OPINION OF THE COMMITTEE ON LEGAL AFFAIRS (10.9.2008)

for the Committee on Budgetary Control

on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 1073/1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF)

(COM(2006)0244 – C6-0228/2006 – 2006/0084(COD))

Rapporteur: Giuseppe Gargani

PA_Legam

SHORT JUSTIFICATION

On 24 May 2006, the Commission approved a new proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 1073/1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF)(1). The proposal, which draws considerably on, and is intended to enhance, the content of the 2004 proposal, centres on the following points:

· relations between the supervisory committee, OLAF and the institutions and other bodies, offices and agencies;

· the rights of persons implicated in investigations;

· the introduction of a Review Advisor;

· improving the information flow between OLAF, the European institutions and bodies, the Member States and ‘whistleblowers’;

· the term of office of the Director General;

· the funding of the Office.

Overall, the Commission proposal appears to be reasonable and balanced. However, your rapporteur would suggest certain changes to make the proposal more effective, given that its objective is reform.

In particular, the first subparagraph of Article 5(2) should make clear that the Director General may open an external investigation at the request of the European Parliament as well as at the request of a Member State or the Commission.

Contrariwise, the third subparagraph of Article 5(2), which provides that while the Office is conducting internal investigations, the institutions or bodies concerned may not open a parallel investigation, should be reworded so as to accept that such investigations may be conducted at the same time and ensure that there is the greatest possible cooperation between them. For it is not possible to prohibit an institution from exercising its own powers of exercising internal control by conducting an internal investigation, and requiring cooperation in such cases would fully accord with the 'structured dialogue' between the Office and the institutions referred to in Article 11a of the Commission proposal.

The procedural guarantees set out in Article 7a should be strengthened to ensure the person concerned is fully able to defend himself. Article 7a(4) should be reworded to ensure that the procedural guarantees provided for in that article do not preclude the more extensive protection which may derive from the rules of the treaties, the Charter of Fundamental Rights and any other applicable provisions, including national provisions. Recital 5, which relates to that provision, should be amended accordingly.

In the second subparagraph of Article 8a, which allows the Director General to opt not to send the person concerned the conclusions and recommendations adopted on completion of the investigation, it should be made clear that such a decision may only be reached after consulting the Review Advisor, whose role is to ensure compliance with the procedural guarantees provided for those concerned in the investigation. Article 14(4) of the proposal should be amended accordingly.

The last subparagraph of Article 10(2) should be amended to stipulate that the person implicated by the investigation should have the opportunity to comment at least in writing on the matters concerning him and that his comments should be forwarded to the Member State concerned together with the other information obtained in the course of the investigation. This is the only way of ensuring that the national authorities concerned receive a full account of the facts while upholding the principle that both sides should have the opportunity to put their case.

Finally, Articles 15a and 15b could be amended to take account of the new regulatory procedure with scrutiny introduced by the Council decision of 17 July 2006 amending Council Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission (commitology). In particular, the reference to Article 5 of the decision should be replaced by a reference to Article 5a of that decision, to enable the new procedure to be applied, thereby enabling the European Parliament to play a greater role. To that end, a new Recital 17 is proposed.

AMENDMENTS

The Committee on Legal Affairs calls on the Committee on Budgetary Control, as the committee responsible, to incorporate the following amendments in its report:

Amendment  1

Proposal for a regulation – amending act

Recital 5

Text proposed by the Commission

Amendment

(5) It is necessary, for the sake of legal certainty, to clarify the procedural guarantees applicable in internal or external investigations conducted by the Office. That does not affect any more extensive protection which may derive from the rules of the Treaties, the Staff Regulations and any relevant national provisions.

(5) It is necessary, for the sake of legal certainty, to clarify the procedural guarantees applicable in internal or external investigations conducted by the Office. That does not affect any more extensive protection which may derive from the rules of the Treaties, including the Protocol on Privileges and Immunities of the European Communities, the EU Charter of Fundamental Rights, the Statute for Members of the European Parliament, the Staff Regulations of officials of the European Communities and any other relevant national provisions.

Justification

There is a need to highlight the specific nature of the Statute for Members of the European Parliament, as part of the institution responsible for the executive power of the European Union.

Amendment  2

Proposal for a regulation – amending act

Recital 5 a (new)

Text proposed by the Commission

Amendment

(5a) An investigation by the Office into the affairs of a Member of the European Parliament may – in addition to subverting the normal order for the exercise of scrutiny by the legislature – irreparably harm the Member concerned; consequently, any such investigation should be carried out only under the terms and conditions laid down in the Statute for Members of the European Parliament.

Justification

There is a need to avoid administrative procedures occasioning prejudice to Members’ moral integrity.

Amendment  3

Proposal for a regulation – amending act

Recital 10

Text proposed by the Commission

Amendment

(10) It is appropriate to strengthen the Supervisory Committee’s powers of review in relation, in particular, to compliance with the provisions governing information exchanges between the Office and the institutions, bodies, offices and agencies, and to developments in the application of procedural guarantees and duration of investigations. It is also necessary to establish cooperation between the Supervisory Committee and the European Parliament, the Council and the Commission, by enabling the Supervisory Committee, without affecting the independence of its members, to meet representatives of those institutions in the context of a structured dialogue.

(10) It is appropriate to strengthen the Supervisory Committee’s powers of review in relation, in particular, to compliance with the provisions governing information exchanges between the Office and the institutions, bodies, offices and agencies, and to developments in the application of procedural guarantees and duration of investigations. It is also necessary to establish cooperation between the Supervisory Committee and the European Parliament, the Council and the Commission, by enabling the Supervisory Committee, without affecting the independence of its members, to meet representatives of those institutions in the context of a structured dialogue and with full respect for the institutions' independence within the European Union's legal framework.

Justification

There is a need to preserve the independence of the Community institutions, which cannot be subject to control by an administrative body such as OLAF.

Amendment  4

Proposal for a regulation – amending act

Recital 16 a (new)

Text proposed by the Commission

Amendment

 

(16a) The measures required to implement this Regulation shall be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission1. In particular, power shall be delegated to the Commission to adopt specific measures for the implementation of this Regulation, particularly with regard to the application of procedural guarantees in administrative investigations by the Office. Since the measures in question are of a general nature and intended to update and supplement non-essential aspects of this Regulation, any such measures should be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 5a of Decision 1999/468/EC.

 

1 OJ L 184, 17.7.1999, p. 23.

Justification

The legal framework for measures to implement this regulation should be clearly specified.

Amendment  5

Proposal for a regulation – amending act

Article 1 – point 3

Regulation (EC) No 1073/1999

Article 5 – paragraph 1

 

Text proposed by the Commission

Amendment

1. The Office may open an investigation when sufficiently strong suspicions exist that acts of fraud or corruption or other illegal acts referred to in Article 1 have been committed. The decision whether or not to open an investigation shall take account of the investigation policy priorities and the Office’s programme of investigative activities determined in accordance with Articles 11a and 12(5). That decision shall also take account of the need for efficient utilisation of the Office’s resources and for proportionality in the means deployed.

 

1. The Office may open an investigation when sufficiently strong suspicions exist that acts of fraud or corruption or other illegal acts referred to in Article 1 have been committed. The decision whether or not to open an investigation shall take account of the investigation policy priorities and the Office’s programme of investigative activities determined in accordance with Articles 11a and 12(5). That decision shall also take account of the need for efficient utilisation of the Office’s resources and for proportionality in the means deployed. Anonymous information may also be taken into account if it constitutes sufficiently strong grounds for suspicion.

Justification

The addition is intended to clarify the point that an investigation can be opened on the basis of anonymous information. Against a background of effective action to combat fraud and corruption, anonymity must not be made a reason to reject information, since otherwise there is a danger that people will not come forward with information for fear of their name being made public.

Amendment  6

Proposal for a regulation – amending act

Article 1 – point 3

Regulation (EC) No 1073/1999

Article 5 – paragraph 2 – subparagraph 1

 

Text proposed by the Commission

Amendment

2. The decision to open an external investigation shall be taken by the Director-General of the Office, acting on his own initiative or following a request from a Member State concerned or the Commission.

2. The decision to open an external investigation shall be taken by the Director-General of the Office, acting on his own initiative or following a request from a Member State concerned or the Commission or the European Parliament.

Justification

It should be clear that the Director General may open external investigations in response to requests by the European Parliament as well as a Member State or the Commission.

Amendment  7

Proposal for a regulation – amending act

Article 1 – point 3

Regulation (EC) No 1073/1999

Article 5 – paragraph 2 – subparagraph 3

 

Text proposed by the Commission

Amendment

While the Office is conducting an internal investigation within the meaning of this Regulation, the institutions, bodies, offices or agencies shall not open a parallel investigation into the same facts.

Even if the Office is conducting an internal investigation within the meaning of this Regulation, the institutions, bodies, offices or agencies may open a parallel investigation into the same facts, which should be conducted on the basis of the fullest possible cooperation with OLAF.

Justification

It is obvious that it is impossible to forbid an institution to conduct an investigation in connection with its internal oversight powers and that, this being so, requiring cooperation between the different investigations fully accords with the 'structural dialogue' between OLAF and the institutions referred to in Article 11a of the Commission proposal.

Amendment  8

Proposal for a regulation – amending act

Article 1 – point 5

Regulation (EC) No 1073/1999

Article 7a – paragraph 2 – subparagraph 1

 

Text proposed by the Commission

Amendment

2. As soon as an investigation reveals that a member, manager, official or other servant or a person serving an institution, body, office or agency or an economic operator may be implicated in a matter, the person concerned shall be informed, provided that this does not prejudice the conduct of the investigation.

 

2. As soon as there is solid evidence that a member, manager, official or other servant or a person serving an institution, body, office or agency or an economic operator may be personally implicated in a matter, the person concerned shall be informed by means of an appropriate communication giving precise details of the action he is alleged to have committed, the capacity in which he is involved in the matter, what procedural guarantees are provided for his benefit and, in particular, how he can submit any observations and documents which he considers relevant. Where it is deemed that the despatch of such a communication would prejudice the conduct of the investigation, exceptions may be made.

 

Justification

The person concerned should be informed in a communication that there is solid evidence of their involvement. The communication should include the abovementioned information so as to enable the person concerned to react appropriately. A decision not to send such a communication can, of course, be taken if it is deemed that to do so would be detrimental to the investigation.

Amendment  9

Proposal for a regulation – amending act

Article 1 – paragraph 5

Regulation (EC) No 1073/1999

Article 7 a – paragraph 2 – subparagraph 2

 

Text proposed by the Commission

Amendment

In any event, no conclusions referring by name to a natural or legal person may be drawn on completion of an investigation unless the person thus personally implicated has been given the opportunity to make his views known on all matters concerning him. That person must be given a summary of such matters in the invitation to comment. He is entitled to be assisted by a person of his choice. Any person implicated personally is entitled to use the official Community language of his choice; however, officials or other servants of the Communities may be asked to use an official Community language of which they have a thorough knowledge. A person implicated personally shall be entitled to avoid self-incrimination.

 

In any event, no conclusions referring by name to a natural or legal person may be drawn on completion of an investigation unless the person thus personally implicated has been given the opportunity to make his views known on all matters concerning him. That person must be given a summary of such matters in the invitation to comment. He is entitled to be assisted by a person of his choice. Any person implicated personally is entitled to use the official Community language of his choice; however, officials or other servants of the Communities may be asked to use an official Community language of which they have a thorough knowledge. A person implicated personally shall be entitled not to testify against himself.

 

Justification

The right not to testify against oneself is broader than the right to avoid self-incrimination.

Amendment  10

Proposal for a regulation – amending act

Article 1 – point 5

Regulation (EC) No 1073/1999

Article 7a – paragraph 2 – subparagraph 3

 

Text proposed by the Commission

Amendment

In cases requiring absolute secrecy to be maintained for the sake of the investigation and entailing use of investigative proceedings falling under the jurisdiction of a national judicial authority or, in the case of an external investigation, that of a competent national authority, the Director-General of the Office may decide to defer fulfilment of the obligation to ask the person implicated to make his views known. He shall first notify the Review Adviser, who shall give an opinion in accordance with Article 14(3). In the case of an internal investigation, the Director-General of the Office shall take his decision in agreement with the institution, body, office or agency to which the person concerned belongs.

In cases where the investigation needs to be conducted on a confidential basis and entailing use of investigative proceedings falling under the jurisdiction of a national judicial authority or, in the case of an external investigation, that of a competent national authority, the Director-General of the Office may decide to defer fulfilment of the obligation to send the communication referred to in the second paragraph or to ask the person implicated to make his views known. In the case of an internal investigation, the Director-General of the Office shall take his decision in agreement with the institution, body, office or agency to which the person concerned belongs. Restricting the rights of the person implicated by the investigation and the guarantees afforded him as provided for in this Article shall be permissible only if such restrictions are in accordance with the opinion adopted beforehand by the Review Adviser pursuant to Article 4(3).

Justification

The wording should make it clear that the restrictions provided for in Article 7a of the rights of the person under investigation and the guarantees afforded him on the grounds of confidentiality or the involvement of national authorities may be imposed only if they conform with the opinion adopted beforehand by the Review Adviser in accordance with Article 4(3) .

Amendment  11

Proposal for a regulation – amending act

Article 1 – point 5

Regulation (EC) No 1073/1999

Article 7a – paragraph 3

 

Text proposed by the Commission

Amendment

3. The invitation to any interview, whether with a witness or with a person implicated personally within the meaning of paragraph 2, must be sent with at least eight working days’ notice; the period of notice may be shortened with the agreement of the person to be interviewed. The invitation shall include a list of the rights of the person interviewed. The Office shall draw up a record of the interview and shall give the person interviewed access to it so that he may either approve the record or add observations.

3. The invitation to any interview, whether with a witness or with a person implicated personally within the meaning of paragraph 2, must be sent with at least ten working days’ notice; the period of notice may be shortened with the express consent of the person to be interviewed. The invitation shall include a list of the rights of the person interviewed. The Office shall draw up a record of the interview and shall give the person interviewed access to it so that he may either approve the record or add observations.

When, in the course of the interview, it transpires that the person interviewed may be involved in the facts under investigation, the procedural rules provided for in paragraph 2 shall apply at once.

When, in the course of the interview, evidence emerges that the person interviewed as a witness may be involved in the facts under investigation, the procedural rules provided for in paragraph 2 shall apply at once.

Justification

The period of notice should be longer. Also, as procedural guarantees already apply to persons implicated personally, the wording should make it clear that the procedural guarantees provided for in Article 7a(2) apply only to persons interviewed as witnesses who could be regarded as involved in the facts under investigation.

Amendment  12

Proposal for a regulation – amending act

Article 1 – point 5

Regulation (EC) No 1073/1999

Article 7a – paragraph 4

 

Text proposed by the Commission

Amendment

4. The procedural guarantees provided for in this Article shall apply without prejudice:

4. The procedural guarantees provided for in this Article shall apply without prejudice:

(a) to more extensive protection which may derive from the rules of the Treaties or any relevant national provisions;

(a) to more extensive protection which may derive from the rules of the Treaties, the Charter of Fundamental Rights of the European Union or any other relevant national or Community provisions, including the Protocol on Privileges and Immunities of the European Communities;

(b) to rights and obligations conferred by the Staff Regulations.

(b) to rights and obligations conferred by the Statute for Members of the European Parliament or the Staff Regulations of officials of the European Communities.

Justification

The possible sources of more extensive guarantees for persons implicated in investigation should be indicated in greater detail.

Amendment  13

Proposal for a regulation – amending act

Article 1 – point 7

Regulation (EC) No 1073/1999

Article 8a – subparagraph 2

 

Text proposed by the Commission

Amendment

The Director-General of the Office may decide not to make the communication referred to in the first subparagraph in cases requiring the maintenance of absolute secrecy and use of investigative measures that fall under the jurisdiction of a national judicial authority. In the case of an internal investigation he shall decide in agreement with the institution, body, office or agency to which the person concerned belongs.

The Director-General of the Office may decide not to make the communication referred to in the first subparagraph in cases where the investigation needs to be conducted on a confidential basis and entailing the use of investigative measures that fall under the jurisdiction of a national judicial authority, but only if that decision accords with the opinion delivered by the Review Adviser in that connection. In the case of an internal investigation he shall decide in agreement with the institution, body, office or agency to which the person concerned belongs.

Justification

It should be made clear that the communication may be dispensed with only in accordance with the opinion of the Review Adviser, whose role is to ensure compliance with the procedural guarantees applicable to the persons involved in the investigation.

Amendment  14

Proposal for a regulation – amending act

Article 1 – point 9

Regulation (EC) No 1073/1999

Article 10 – paragraph 2 – subparagraph 2

 

Text proposed by the Commission

Amendment

Before forwarding the information referred to in the first subparagraph, the Office shall give the person implicated by the investigation the opportunity to comment on the matters concerning him subject to the conditions, and in accordance with the arrangements, set out in the second and third subparagraphs of Article 7a(2).

Before forwarding the information referred to in the first subparagraph, the Office shall give the person implicated by the investigation the opportunity to comment on the matters concerning him subject to the conditions, and in accordance with the arrangements, set out in the second and third subparagraphs of Article 7a(2). Those comments shall be sent to the Member State concerned together with the information referred to in paragraph 1. The person concerned or his authorised representative shall be given the opportunity at the outset to inspect the files relating to the investigation

Justification

The statement of the person involved must be forwarded to the Member States so that they are fully informed of the facts of the case. It should be made clear in this connection that there must be a full right of inspection of the case files so as to allow the person concerned to prepare a full statement.

Amendment  15

Proposal for a regulation – amending act

Article 1 – point 14

Regulation (EC) No 1073/1999

Article 14 – paragraph 4

 

Text proposed by the Commission

Amendment

4. Cases shall be referred for the opinion of the Review Adviser by the Director-General of the Office in the circumstances referred to in Article 6(7) and the third subparagraph of Article 7a(2). The Director-General of the Office may also submit any request to the Review Adviser in connection with the review of investigations.

4. Cases shall be referred for the opinion of the Review Adviser by the Director-General of the Office in the circumstances referred to in Article 6(7), the third subparagraph of Article 7a(2) and the second subparagraph of Article 8a. The Director-General of the Office may also submit any request to the Review Adviser in connection with the review of investigations.

Justification

Article 14(4) of the proposal should be amended in tandem with the proposed amendment to the second subparagraph of Article 8a.

Amendment  16

Proposal for a regulation – amending act

Article 1 – point 16

Regulation (EC) No 1073/1999

Article 15a

 

Text proposed by the Commission

Amendment

Implementing measures relating to the application of procedural guarantees in administrative investigations by the Office as provided for by this Regulation shall be adopted in accordance with the regulatory procedure referred to in Article 15b(2).

The measures to implement this Regulation, particularly those relating to the application of procedural guarantees in administrative investigations by the Office, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 15b(2).

Justification

The Commission should have conferred upon it the delegated power to adopt specific measures to implement this regulation, particularly as regards the application of procedural guarantees in administrative investigations by the Office. Since such measures are general in nature and intended to update and supplement certain non-essential aspects of this regulation, they should be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 5a of Decision 1999/468/EC.

Amendment  17

Proposal for a regulation – amending act

Article 1 – point 16

Regulation (EC) No 1073/1999

Article 15b

 

Text proposed by the Commission

Amendment

1. The Commission shall be assisted by the Committee instituted by Article 43 of Council Regulation (EC) No 515/97.

1. The Commission shall be assisted by the Committee instituted by Article 43 of Council Regulation (EC) No 515/97.

2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

2. Where reference is made to this paragraph, paragraphs 1 to 4 of Article 5a and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

The period referred to in Article 5(6) of Decision 1999/468/EC shall be three months.

 

3. The Committee shall adopt its Rules of Procedure.

 

Justification

The Commission should have conferred upon it the delegated power to adopt specific measures to implement this regulation, particularly as regards the application of procedural guarantees in administrative investigations by the Office. Since such measures are general in nature and intended to update and supplement certain non-essential aspects of this regulation, they should be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 5a of Decision 1999/468/EC.

PROCEDURE

Title

Amendment of Regulation (EC) No 1073/1999 concerning investigations conducted by the European Anti Fraud Office (OLAF)

References

COM(2006)0244 – C6-0228/2006 – 2006/0084(COD)

Committee responsible

CONT

Opinion delivered by 

       Date announced in plenary

JURI

5.9.2006

Rapporteur

Date appointed

Giuseppe Gargani

14.9.2004

Discussed in committee

29.5.2008

26.6.2008

 

Date adopted

9.9.2008

 

 

 

Result of final vote

+:

–:

0:

26

0

0

Members present for the final vote

Carlo Casini, Marek Aleksander Czarnecki, Bert Doorn, Monica Frassoni, Giuseppe Gargani, Lidia Joanna Geringer de Oedenberg, Othmar Karas, Piia-Noora Kauppi, Klaus-Heiner Lehne, Katalin Lévai, Antonio Masip Hidalgo, Hans-Peter Mayer, Manuel Medina Ortega, Aloyzas Sakalas, Francesco Enrico Speroni, Daniel Strož, Rainer Wieland, Jaroslav Zvěřina, Tadeusz Zwiefka

Substitute(s) present for the final vote

Sharon Bowles, Vicente Miguel Garcés Ramón, Jean-Paul Gauzès, Georgios Papastamkos, Gabriele Stauner, József Szájer, Jacques Toubon, Ieke van den Burg

Substitute(s) under Rule 178(2) present for the final vote

Victor Boştinaru, Renate Weber

(1)

COM(2006) 244 final of 24.5.2006.


PROCEDURE

Title

Amendment of Regulation (EC) No 1073/1999 concerning investigations conducted by the European Anti Fraud Office (OLAF)

References

COM(2006)0244 – C6-0228/2006 – 2006/0084(COD)

Date submitted to Parliament

24.5.2006

Committee responsible

       Date announced in plenary

CONT

5.9.2006

Committee(s) asked for opinion(s)

       Date announced in plenary

BUDG

5.9.2006

JURI

5.9.2006

LIBE

5.9.2006

 

Not delivering opinions

       Date of decision

BUDG

27.9.2006

LIBE

13.9.2006

 

 

Rapporteur(s)

       Date appointed

Ingeborg Gräßle

27.3.2007

 

 

Previous rapporteur(s)

Herbert Bösch

 

 

Date adopted

7.10.2008

 

 

 

Result of final vote

+:

–:

0:

22

1

0

Members present for the final vote

Jean-Pierre Audy, Inés Ayala Sender, Paulo Casaca, Jorgo Chatzimarkakis, Antonio De Blasio, Szabolcs Fazakas, Christofer Fjellner, Ingeborg Gräßle, Ville Itälä, Rodi Kratsa-Tsagaropoulou, Bogusław Liberadzki, Nils Lundgren, Marusya Ivanova Lyubcheva, Eluned Morgan, Jan Mulder, Bart Staes, Paul van Buitenen

Substitute(s) present for the final vote

Daniel Caspary, Dumitru Oprea, Paul Rübig

Substitute(s) under Rule 178(2) present for the final vote

Ewa Klamt, Hans-Peter Mayer, Markus Pieper

Date tabled

27.10.2008

Last updated: 6 November 2008Legal notice