Decision No 26/2004 of the Committee of the Regions

of 10 February 2004

relating to the conditions and procedures for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities' interests

THE BUREAU OF THE COMMITTEE OF THE REGIONS,

Having regard to Commission Decision 1999/352/EC, ECSC, Euratom, of 28 April 1999, establishing a European Anti-Fraud Office(1),

Having regard to Regulation (EC) No. 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office(2),

Having regard to the inter-institutional agreement of 25 May 1999 between the European Parliament, the Council of the European Union and the Commission of the European Communities concerning investigations conducted by the European Anti-Fraud Office(3),

Whereas Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (hereinafter the Office) provides that the Office is to initiate and conduct administrative investigations within the institutions, bodies, offices and agencies established by or on the basis of the Treaties;

Whereas the responsibility of the European Anti-Fraud Office as established by the Commission extends beyond the protection of financial interests to include all activities by the Office relating to the need to safeguard Community interests against irregular conduct liable to give rise to administrative or criminal proceedings;

Whereas the scope of the fight against fraud should be broadened by exploiting existing expertise in the area of administrative investigations;

Whereas therefore, on the basis of their administrative autonomy, all the institutions, bodies and offices and agencies should entrust to the Office the task of conducting internal administrative investigations with a view to bringing to light serious situations relating to the discharge of professional duties which may constitute a failure to comply with the obligations of officials and servants of the Communities, as referred to in Articles 11, 12, second and third paragraphs, 13, 14, 16 and 17, first paragraph, of the Staff Regulations of the European Communities (hereinafter the Staff Regulations), detrimental to the interests of those Communities and liable to result in disciplinary or, where appropriate, criminal proceedings, or serious misconduct, as referred to in Article 22 of the Staff Regulations, or a failure to comply with the analogous obligations of the members, managers or members of staff of the institutions, bodies, offices and agencies of the Communities not subject to the Staff Regulations;

Whereas such investigations should be carried out under appropriate conditions in all the Community institutions, bodies, offices and agencies; whereas assignment of this task to the Office should not affect the responsibilities of the institutions, bodies, offices or agencies themselves and should in no way reduce the legal protection of the persons concerned;

Whereas, pending the amendment of the Staff Regulations, practical arrangements should be laid down stipulating how the members of the institutions and bodies, the managers of the offices and agencies and the officials and servants of the institutions, bodies and offices and agencies are to cooperate in the smooth operation of the internal investigations;

Whereas Regulation (EC) No 1073/1999 provides in Article 4(6), that each institution, body, office and agency is to adopt a decision, which shall in particular include rules concerning a duty on the part of members, managers, officials and other servants of the institutions, bodies, offices and agencies to cooperate with and supply information to the Office's employees, the procedures to be observed by the Office's employees when conducting internal investigations and guarantees of the rights of persons concerned by an internal investigation;

Whereas, however, account should be taken of the fact that unlike the members of the other institutions, the members of the Committee exercise essentially national functions and that, in the exercise thereof they remain subject to national law; whereas, therefore, the application of this Decision should be limited to the professional activities of such persons undertaken in their capacity as members of the Committee;

Whereas the Office has no judicial powers and conducts only administrative investigations; whereas such investigations should be conducted in full compliance with the relevant provisions of the Treaties establishing the European Communities, in particular the Protocol on privileges and immunities, the texts implementing them and the Staff Regulations;

Whereas, in the long term, the prevention of fraud, corruption and any other illegal activity should be the responsibility of a body that is not an integral part of the administrative structure of the European Commission, but which enjoys the independence necessary for it to carry out its tasks as effectively as possible;

Considering Decision No 294/99 of the Bureau of the Committee of the Regions of 17 November 1999, relating to the conditions and procedures for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities' interests,

HAS DECIDED AS FOLLOWS:

Article 1

Duty to cooperate with the Office

Without prejudice to the relevant provisions of the Treaties establishing the European Communities, in particular the Protocol on privileges and immunities, the texts implementing them and the provisions of the Staff Regulations, the Secretary-General, the services and any manager, official or servant of the Committee of the Regions (hereinafter the Committee) and the members, shall be required to cooperate with the European Anti-Fraud Office (hereinafter the Office).

Article 2

Duty to supply information

Any official or servant of the General Secretariat who becomes aware of evidence which gives rise to a presumption of the existence of possible cases of fraud, corruption or any other illegal activity detrimental to the interests of the Communities, or of serious situations relating to the discharge of professional duties which may constitute a failure to comply with the obligations of officials or servants of the Communities liable to result in disciplinary or, in appropriate cases, criminal proceedings, or a failure to comply with the obligations imposed by Community law on Members of the Committee in the context of the duties they perform in that capacity, where that failure is detrimental to the interests of the Communities, shall without delay inform his head of service, his director or the Secretary-General, or, if he considers it useful, the Office direct.

The Secretary-General, the directors and the heads of service shall transmit without delay to the Office any evidence of which they are aware from which the existence of irregularities as referred to in the first paragraph may be presumed.

Officials or servants of the General Secretariat must in no way suffer inequitable or discriminatory treatment as a result of having communicated the information referred to in the first and second paragraphs.

Members of the Committee who acquire knowledge of facts as referred to in the first paragraph shall inform the President of the Committee or, if they consider it useful, the Office direct.

Article 3

Assistance from the Security Office

At the request of the Director of the Office, the Security Office of the Committee shall assist the Office in the practical conduct of investigations.

Article 4

Informing the interested party

Where the possible personal implication of a member, manager, official or servant emerges, the interested party shall be informed rapidly provided that this does not jeopardise the investigation. In any event, conclusions referring by name to a member, manager, official or servant of the Committee may not be drawn once the investigation has been completed without the interested party having been enabled to express his views on all the facts which concern him.

In cases necessitating the maintenance of absolute secrecy for the purposes of the investigation and requiring the use of investigative procedures falling within the remit of a national judicial authority, compliance with the obligation to invite the member, manager, official or servant of the Committee to give his views may be deferred in agreement with either the president or the Secretary-General.

Article 5

Information on the closing of the investigation with no further action taken

If, following an internal investigation, no case can be made out against the person against whom allegations have been made, the internal investigation concerning him shall be closed, with no further action taken, by decision of the Director of the Office, who shall inform the interested party in writing.

Article 6

Waiver of immunity

Any request from a national police or judicial authority regarding the waiver of immunity from judicial proceedings of an official or servant of the Committee, concerning possible cases of fraud, corruption or any other illegal activity shall be transmitted to the Director of the Office for his opinion. If a request for a waiver of immunity concerns a member of the Committee, the Office shall be informed.

Article 7

Final provision

This Decision cancels Decision No 294/99 of the Bureau of the Committee of the Regions of 17 November 1999, relating to the conditions and procedures for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities' interests.

This Decision shall take effect on 1 March 2004.

Done at Brussels, 10 February 2004.

For the Bureau of the Committee of the Regions

The President

Albert Bore

(1) OJ L 136, 31.5.1999, p. 20.

(2) OJ L 136, 31.5.1999, p. 1.

(3) OJ L 136, 31.5.1999, p. 15.