EN Official Journal of the European Union C 318/1

Activity Report of the OLAF Supervisory Committee

February 2013-January 2014

(2014/C 318/01)

Members of the OLAF Supervisory Committee Johan DENOLF (Chairman) Chief Commissioner, Director of Directorate ECOFIN Crime of the Federal Police and Member of the Financial Intelligence Unit (FIU), Belgium Herbert BÖSCH Former Member of the European Parliament Former Chairman of the Committee of Budgetary Control of the European Parliament, Austria Catherine PIGNON Chief Public Prosecutor at the Court of Appeal in Angers, France Jens MADSEN State Prosecutor for Serious Economic and International Crime, Denmark Tuomas PÖYSTI Auditor General of Finland, President of the National Audit Office, Finland

CONTENTS

MISSION STATEMENT 3

FOREWORD BY THE CHAIRMAN 4

OVERVIEW 5

1. MONITORING OF OLAF INVESTIGATIONS 5

Instructions to Staff on Investigative Procedures 6

Investigation Policy Priorities 6

Case selection in OLAF 7

Duration of investigations 7

Cases transmitted to national judicial authorities 8

Decisions to defer the information to the institution, body, office or agency 9

Recommendations made by the OLAF Director-General 9

OLAF's procedures for dealing with complaints 10

Complaints and requests addressed to the Supervisory Committee 10

2. MONITORING OF THE MANAGEMENT OF THE INVESTIGATIVE FUNCTION OF OLAF 11

Preliminary draft budget for 2014 11

OLAF reorganisation and Staff Satisfaction Surveys 12

3. COOPERATION WITH OLAF 12

Follow-up by OLAF to the recommendations made by the Supervisory Committee 12

Working arrangements with OLAF 12

4. COOPERATION WITH STAKEHOLDERS 13

Meetings with EU Institutions 13

Exchange of views with EU Institutions 13

European Parliament's public hearing on procedural guarantees 13

Civil society 13

5. SUPERVISORY COMMITTEE'S GOVERNANCE 14

Supervisory Committee's role under Regulation (EU, Euratom) No 883/2013 14

Priorities and objectives 14

Code of conduct 14

Working methods 14

6. SUPERVISORY COMMITTEE'S SECRETARIAT 15

ANNEXES 16

MISSION STATEMENT

Article 15(1) of Regulation (EU, Euratom) No 883/2013: The Supervisory Committee shall regularly monitor the implementation by the Office of its investigative function, in order to reinforce the Office's independence in the proper exercise of the competences conferred upon it by this Regulation. The Supervisory Committee shall in particular monitor developments concerning the application of procedural guarantees and the duration of investigations in the light of the information supplied by the Director-General in accordance with Article 7(8).

The mission of the Supervisory Committee of OLAF, as outlined by Regulation (EU, Euratom) No 883/2013 (1), is to reinforce OLAF's independence in the proper exercise of the competences conferred upon it (2). To accomplish this mission, the EU legislator entrusted the SC with a threefold role:

— The SC is the supervisory body of OLAF and a guardian of OLAF's independence; it regularly monitorsthe implementation by OLAF of its investigative function and, in particular, developments concerning the application of procedural guarantees and the duration of investigations.

— The SC plays an advisory role with regard to the Director-General of OLAF, whom it assists in the discharge of his responsibilities: — by communicating to him the results of the SC's monitoring of the implementation of the OLAF investigative function, the application of procedural guarantees and the duration of investigations as well as, where necessary, making appropriate recommendations; — by addressing opinions to him, including, where appropriate, recommendations on, inter alia, the resources needed to carry out OLAF's investigative function, on the investigative priorities and on the duration of the investigation; — by submitting its observations (including, where appropriate, recommendations) on the guidelines on investigation procedures (and any modification thereto) adopted by the Director-General in accordance with Article 17(8) of the Regulation.

— The SC is a dialogue partner of the EU institutions, to which it reports on its activities, at whose request it may issue opinions and with whom it exchanges views at a political level, thus providing the EU institutions with unique expertise based on its monitoring experience.

FOREWORD BY THE CHAIRMAN

As Chairman of the Supervisory Committee of the European Anti-fraud Office, I have the pleasure to submit the Annual Activity Report of our Committee, in accordance with Article 15(9) of Regulation (EU, Euratom) No 883/2013.

This is the second Activity Report of the current Supervisory Committee and it provides an overview of the main activities carried out during the reporting period, from 1 February 2013 until 31 January 2014.

Chapters 1 and 2 offer a comprehensive account of the SC's monitoring activities. They focus on the monitoring of the implementation by OLAF of its investigative function and on OLAF's management in relation to its investigative function. Chapters 3 and 4 concern the SC's relations with OLAF, as well as with the EU institutions and other stakeholders. Chapters 5 and 6 give an overview of the Committee's working methods, of the policy papers adopted by the Committee and considerations regarding its Secretariat.

At the end of the reporting period one of the SC Members, Mr Jens Madsen, left the Committee to take over a new and challenging position in his national administration. I would like to take the opportunity of this report to thank him for his valuable contribution to the work of the Committee, and to welcome a new Member, Mr Dimitrios Zimianitis, as of 1 February 2014.

Finally, I would like to express special thanks to the staff of our Secretariat, for their invaluable support and their high quality work, which contributed in a great measure to the effectiveness of our monitoring of OLAF's investigative function.

Brussels, 12 March 2014. Johan DENOLF

OVERVIEW

Monitoring activities

Analysis and assessment of:

— 56 cases requiring information to be forwarded to national judicial authorities;

— 186 nine-month reports;

— 293 opinions on selection of cases;

— 14 complaints and requests from individuals;

— 1 complaint from an EU institution;

— 2 requests for public access to the SC's documents;

— 1 request for cooperation from a national judicial authority.

Opinions and reports

— 4 opinions in relation to the implementation and management of OLAF's investigative function: — Opinion No 1/2013: OLAF's Preliminary draft budget for 2014; — Opinion No 2/2013: Establishing an internal OLAF procedure for complaints; — Opinion No 1/2014: OLAF Investigation Policy Priorities; — Opinion No 2/2014: Case selection in OLAF.

— 2012 Annual Activity Report.

Position and policy papers

— Position paper on ‘Reinforcing procedural safeguards in OLAF’;

— Observations on investigation procedures in OLAF;

— Paper on the mission and competences of the SC in the light of Regulation (EU, Euratom) No 883/2013 and the mid-term strategy;

— Monitoring guidelines (on-going);

— Amendment of the Rules of procedure (on-going).

Cooperation

— New working arrangements with OLAF.

1. MONITORING OF OLAF INVESTIGATIONS

1. The Supervisory Committee of OLAF (SC) monitors different aspects of OLAF investigative activities on the basis of information which the Director-General of OLAF (OLAF DG) is obliged to provide and of information requested by the SC on its own initiative.

Article 15(1), third paragraph of Regulation (EU, Euratom) No 883/2013: The Supervisory Committee shall address to the Director-General opinions, including where appropriate, recommendations on, inter alia, the resources needed to carry out the investigative function of the Office, on the investigative priorities of the Office and on the duration of investigations. Those opinions may be delivered on its own initiative, at the request of the Director-General or at the request of an institution, body, office or agency, without however interfering with the conduct of investigations in progress.

Instructions to Staff on Investigative Procedures

2. On 7 February 2013, the OLAF DG provided the SC with a copy of an amended version of the Instructions to Staff on Investigative Procedures (ISIP). On 5 July 2013, he provided the SC with a second amended version of the ISIP, intended to align OLAF's investigative procedures with new provisions foreseen by (draft) Regulation (EU, Euratom) No 883/2013. The OLAF DG informed the SC of its intention to adopt the amended ISIP on 31 July 2013.

3. While underlining that it cannot carry out an in-depth analysis of the amended ISIP within such a short timeframe, the SC provided, on 30 July 2013, a number of observations and questions on the amended ISIP (3). The SC examined, in particular, the provisions concerning the selection procedure and the conduct of investigation and coordination cases.

4. The SC considered that the amended ISIP should, inter alia: — explicitly mention the notion of ‘sufficient suspicion’, as provided for in the Regulation, as a precondition for the opening of an investigation; — clearly structure the separation of selectors and reviewers in the Investigation Selection and Review Unit; — maintain a clear distinction between internal and external investigations, since OLAF's powers of investigations are different; — include provisions for organizing a wider internal control of the legality check, not only of the investigative activities mentioned in the ISIP, but also those that are not specifically foreseen in the ISIP but could potentially result in an interference with the rights of the persons concerned.

5. On 5 September 2013, at the SC's request, the OLAF DG provided his comments and additional information on issues raised by the SC. He also informed the SC of the finalisation of the amendments to the ISIP taking into consideration some of the SC's comments and forwarded to the SC the final draft of the new Guidelines on Investigation Procedures for OLAF staff, replacing the ISIP.

Investigation Policy Priorities

6. Opinion No 1/2014 assessed OLAF Investigation Policy Priorities (IPPs) established, on a yearly basis, by the OLAF DG and published in the Annual Management Plan (4).

7. The SC compared the IPPs for 2012 and 2013 with the draft IPPs for 2014 and welcomed the improved definition of the latter as a result of SC comments expressed during technical meetings with the OLAF DG, in the sense that the IPPs should not contain general principles (which should always be taken into account when deciding whether or not to open an investigation), but only specific areas or types of fraud which OLAF should deal with as a matter of priority.

8. The SC found that the financial indicators, which in previous years were overstated, were completely excluded from the draft IPPs for 2014. The SC underlined that such indicators should be relevant for the assessment of the seriousness of the risk of fraud involved and could be useful as an element of reference and as internal guidelines on the application of the proportionality principle. The SC also drew attention to the need to reconsider the subsidiarity/added value policy and to apply it with caution, as well as to the need for a regular assessment of the IPPs.

9. The SC pointed out the need to clarify the IPPs and recommended that the OLAF DG issue guidelines on the application of the selection principles established by Regulation (EU, Euratom) No 883/2013 and to enter into a constructive dialogue with the stakeholders on the determination and implementation of the IPPs, in particular with regard to financial indicators and possible follow-up of dismissed cases when their assessment leads to the conclusion that there are sufficient suspicions of fraud. At this stage, it remains difficult for the SC to appreciate OLAF's performance in the areas covered by the IPPs, since OLAF itself has not conducted any impact assessment of the IPPs. The SC therefore requested that the OLAF DG provide an assessment of the results of the implementation of the IPPs for 2012 and 2013 in each of the prioritised areas, together with a summary of the feedback provided by the stakeholders.

Case selection in OLAF

10. Opinion No 2/2014 on Case selection in OLAF (5) assessed the efficiency, quality and transparency of the selection process in OLAF. The SC's assessment was carried out on the basis of, inter alia, an analysis of a sample of 293 opinions of the OLAF Investigation Selection and Review Unit (ISRU) recommending either the dismissal of cases or the opening of investigation/coordination cases.

11. The SC firstly assessed the efficiency of the selection function by looking into the resources made available to the ISRU to carry out its tasks and the concrete results achieved in 2012 and 2013. The SC found that the technical, investigative and language expertise was sometimes missing or insufficient; legal analysis was not sufficiently demonstrated; the time allocated for selections (compulsory 2-month period) did not appear adequate in some cases; a clear procedure for dealing with whistle-blowers was also needed.

12. The SC then evaluated the quality of the opinions in the light of their conformity with the selection criteria established by the OLAF DG. The SC found that the instructions on the implementation of the selection criteria were not strictly adhered to: little consideration was given to the relevant legal instruments when assessing OLAF's competence to act; the selectors lacked precise indicators for evaluating the sufficiency of information; where such indicators were present, they were not constantly and consistently used; there was a frequent use of unsubstantiated statements.

13. Finally, the transparency of the selection process was scrutinised by looking into the information flow throughout the selection process, in particular with regard to the cooperation between the ISRU and the investigation units.

14. The SC issued a number of recommendations to the OLAF DG, aimed at improving the selection function of the ISRU. As an overall conclusion to its assessment, the SC issued a final recommendation that OLAF carry out an internal evaluation of the activities of the ISRU aimed at establishing, inter alia, the level of resources needed, the unit's strengths and weaknesses and the ‘error rate’ for the evaluated cases. The SC also requested that the DG inform it on the follow-up given to the recommendations of this opinion one year after its adoption.

Duration of investigations

Article 11(7) of Regulation (EC) No 1073/1999: Where an investigation has been in progress for more than nine months, the Director shall inform the Supervisory Committee of the reasons for which it has not yet been possible to wind up the investigation, and of the expected time for completion. Article 7(8) of Regulation (EU, Euratom) No 883/2013: If an investigation cannot be closed within 12 months after it has been opened, the Director-General shall, at the expiry of that 12-month period and every six months thereafter, report to the Supervisory Committee, indicating the reasons and the remedial measures envisaged with a view to speeding up the investigation.

15. The SC monitored the duration of OLAF's investigations by using, as a source of information, the 9-month reports (6) and reports drawn up in cases transmitted to national judicial authorities forwarded by OLAF under the former Regulation (EC) No 1073/1999, as well as other case related documents when access was granted to the OLAF's Case Management System (CMS).

16. The SC started to analyse the reasons provided by OLAF for explaining the duration of cases lasting more than nine months: complexity of the matter under investigation, lack of resources, low priority of the case, lack of cooperation. The SC has noted a divergence between investigation directorates and their units regarding the accuracy of the explanations provided. The SC's analysis is still on-going.

17. Regulation (EU, Euratom) No 883/2013 introduced two major changes aimed at allowing the SC to better monitor the duration of investigations: the twelve-month reports replacing the nine-month reports (which correspond better to reality, since most of OLAF's investigations last more than 12 months), and the new obligation for OLAF to regularly report every following 6 months, allowing the SC to follow the whole life cycle of an investigation.

18. On 31 January 2014, the SC received, for the first time, 83 twelve-month reports out of 243 cases lasting then more than 12 months. The SC noted with concern that, while the workform used for these reports was revised by OLAF according to the requirements of Regulation (EU, Euratom) No 883/2013, the new reports sent to the SC contained insufficient information, in particular concerning elements that would allow the SC to check the potential existence of undue delays in investigations. As an example, 33 out of the 83 reports in cases lasting more than 12 months give the reasons and the remedial measures envisaged in order to speed up the investigation without, however, providing any factual information whatsoever (i.e. a description of facts, the investigative steps taken by OLAF and their chronology, potential periods of inactivity, type of fraud, financial impact, time barring considerations etc.), without which it is impossible for the SC to fully evaluate the duration of an investigation. While Regulation (EU, Euratom) No 883/2013 has reinforced the role of the SC in controlling the duration of investigations, OLAF is not providing, on its own initiative, enough information for the SC to fulfil that mission. The SC raised this issue in a meeting with the OLAF DG and expects that the reports to be provided in future will be more descriptive.

19. The SC was informed by OLAF, during a technical meeting, of the tools used by OLAF to monitor the duration of cases, which consist mainly of a system of flagging in the CMS that dates for twelve- and six-month reports are due. OLAF set up also a new junior management structure within the investigative units, in charge of, inter alia, monitoring the duration of investigations. The SC welcomes OLAF's efforts and its willingness to improve the awareness of time limitations among investigators. At the same time, the SC underlines that the twelve- and six-month reports provided to the SC could be a useful management tool for OLAF itself to monitor the duration of investigation, but it is rendered impossible due to the lack of a substantial content in most of them. This is especially important for the cases which prolonged duration may adversely affect the reputation and professional lives of persons concerned or may result in time-barring of the subsequent national legal procedures.

Cases transmitted to national judicial authorities

Article 11(7) of Regulation (EC) No 1073/1999: The Director shall inform the committee of cases requiring information to be forwarded to the judicial authorities of a Member State. Article 17(5) third paragraph of Regulation (EU, Euratom) No 883/2013: The Director-General shall inform the Supervisory Committee periodically: (…) (b) of cases in which information has been transmitted to judicial authorities of the Member States (…).

20. Regulation (EU, Euratom) No 883/2013 introduced a major change with regard to the cases that OLAF intends to forward to national judicial authorities: OLAF does not have to inform the SC of those cases prior to the transmission (as under the former Regulation (EC) No 1073/1999), but onlyperiodically, after the transmission.

21. Between 1 February 2013 and 30 September 2013 (until the entry into force of Regulation (EU, Euratom) No 883/2013), the SC received 56 cases (7) requiring information to be forwarded to national judicial authorities. Full access to the case-related documents in the CMS was granted, upon SC's request, in 18 cases.

22. The SC was not able, however, to examine thoroughly those cases prior to their transmission to national judicial authorities, due to the fact that it would receive access to the CMS case files only after the expiry of the 5-day period foreseen in previous agreements with OLAF. The SC's assessment of the application by OLAF of procedural guarantees is based mainly on the information contained in the Opinions on Final or interim reports and recommendations issued by the ISRU (8) and, when access to cases was granted, on the case related documents registered in the CMS. The SC noted that according to all the ISRU opinions all the investigative activities were carried out in accordance with the applicable legal rules. On the basis of these opinions and other documents examined, the SC identified only isolated problems with regard to respect by OLAF of procedural guarantees (e.g. lack of information of the person concerned of the completion of the investigation in one case and lack of written authority to interview the person concerned in another case (9)).

23. In one case, a person concerned reported to the SC an alleged serious breach by OLAF of the confidentiality requirement. However, the SC, having no adequate inquiry tools (the incident was not mentioned in the OLAF case file), could only refer the complaint to the OLAF DG who denied the existence of such a breach.

24. On 31 January 2014, the SC received information on 17 additional cases in which information was transmitted to judicial authorities of the Member States since 1 October 2013 (since the entry into force of Regulation (EU, Euratom) No 883/2013). Given the fact that this information arrived on the last day of the period covered by this activity report, the SC will request additional information and examine these cases later in 2014.

Decisions to defer the information to the institution, body, office or agency

Article 4(6) of Regulation (EU, Euratom) No 883/2013: Where internal investigations reveal that an official, other servant, member of an institution or body, head of office or agency, or staff member may be a person concerned, the institution, body, office or agency to which that person belongs shall be informed. (…) In exceptional cases, the provision of such information may be deferred on the basis of a reasoned decision by the Director-General, which shall be transmitted to the Supervisory Committee after the closure of the investigation.

25. Regulation (EU, Euratom) No 883/2013 introduced, for the first time, the obligation for the OLAF DG to transmit to the SC, after the closure of an investigation, his reasoned decision to defer the information to an institution, body, office or agency to which the person concerned by an internal investigation belongs. On 31 January 2014 the SC was informed by OLAF that there had been no such deferrals since the entry into force of the Regulation.

Recommendations made by the OLAF Director-General

Article 11(7) of Regulation (EC) No 1073/1999: The Director shall inform the committee of cases where the institution, body, agency or office concerned has failed to act on the recommendations made by it. Article 17(5) third paragraph of Regulation (EU, Euratom) No 883/2013: The Director-General shall inform the Supervisory Committee periodically: (a) of cases in which the recommendations made by the Director-General have not been followed (…).

26. During the reporting period and in fact since the beginning of its mandate, the SC has received very limited information on cases in which the recommendations made by the Director-General have not been followed. The SC's own inquiry leads it to the conclusion that, as in previous years, a significant number of such recommendations have not been followed. The SC highlighted in its previous activity reports that OLAF itself seems not to have had, in the past, appropriate monitoring tools allowing it to properly follow-up the implementation of its recommendations by national and EU authorities.

27. Following OLAF's reorganisation in 2012, the monitoring of the implementation of its recommendations was decentralized to the investigative units. Currently OLAF is working on the development and implementation of new monitoring tools allowing it to better follow-up the results and impact of its recommendations. The SC noted that OLAF did already undertake a significant effort to measure the implementation of its recommendations, in particular the judicial and financial ones. For example, OLAF is reviewing more than 600 cases closed with judicial recommendations. The SC noted with interest the evaluation grid used for this review, according to which the recommendation follow-up by national judicial authorities was checked against key stages of the national judicial proceedings (opening of a criminal investigation, indictment or dismissal decisions, acquittal or conviction decision etc.). As to the financial follow-up, OLAF seeks to improve its procedures to be able to establish the amounts effectively recovered for the EU budget.

28. The SC recognizes the complexity of this still on-going exercise and welcomes OLAF's willingness to improve its follow-up tools. At this stage, however, and in the absence of relevant information, it is premature for the SC to appreciate the impact of changes brought about by the reorganisation on the effectiveness and efficiency of OLAF's monitoring work. The SC expects better information from OLAF in the future, once the appropriate monitoring tools are implemented.

OLAF's procedures for dealing with complaints

29. In its Opinion No 2/2013 (Establishing an internal OLAF procedure for complaints) adopted in December 2013 (10), the SC examined the options for redress open to persons involved in OLAF's investigations regarding potential violations of their rights and procedural guarantees. The SC found that such persons did not have sufficient and immediate remedies to redress potential violations either through an external (an EU or national court, the European Ombudsman or the European Data Protection Supervisor) or internal mechanism (OLAF itself).

30. The SC underlined that the new Regulation (EU, Euratom) No 883/2013 concerning investigations conducted by OLAF does not resolve the problem, since it does not introduce a mechanism for dealing with individual complaints. The SC expressed the opinion that the current legislative gap could be filled by a formalised complaints procedure within OLAF, in particular, concerning alleged breaches of fundamental rights and procedural guarantees in the course of an OLAF investigation.

31. The SC therefore recommended that the OLAF DG establish and publish such an internal procedure after consulting with the SC on the details. The SC expressed its wish that the OLAF DG report regularly to the SC on complaints received by OLAF and the follow-up given to them.

32. In January 2014, OLAF published on its website a description of the steps taken within OLAF when dealing with complaints. Following a request from the SC to see the written decision for establishing a relevant procedure, in his letter of 17 February 2014, the OLAF DG confirmed that he considered this web publication to be the formalisation of existing procedures which did not require a formal written decision on his part.

33. As a result the SC must conclude that its recommendation has not been implemented. The SC is concerned by the danger of misleading citizens who would like to file a complaint with OLAF. They may think that the text presented on the OLAF website provides them with a legal framework for the complaint while in fact the relevant procedure (for complaints concerning procedural guarantees) does not, formally, exist, there being no legal act constituting the legal basis for such a procedure.

Complaints and requests addressed to the Supervisory Committee

34. During the reporting period, the SC received 14 complaints and requests from individuals. This represents an increase of 100 % compared to the previous year. The complaints concern, inter alia, alleged failure to respect fundamental rights and procedural guarantees, breach of confidentiality of investigations, excessive duration of investigations and allegedly wrongful closure of cases without recommendations. The complaints came mainly from persons concerned by OLAF investigations, but also from whistle-blowers unhappy with decisions taken by OLAF following their reporting of alleged fraud.

35. The SC replied to the complainants by underlining that in the framework of the current Regulation, the SC is not designed as a complaint body. However, the SC took these complaints into account in the framework of its systemic monitoring of OLAF's investigative function and requested, where it considered it appropriate, for further information and explanations from OLAF and/or full access to the CMS case files.

36. In January 2014 the SC received a formal notification from an EU Institution, which expressed its concern over an allegedly unjustified interference by OLAF with the right to protection of personal data of the officials of that institution. In its reply, the SC underlined that this allegation concerned an on-going investigation in which the SC is not allowed to intervene. The SC also indicated that the competent authority for dealing with such a complaint is the European Data Protection Supervisor and that the SC would need to await his decision.

37. The SC received 2 requests for access to its Opinion No 2/2012. The SC considered that the requested document was covered by exceptions set forth in Article 4 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council (11), in particular in the second and third indent of Article 4(2) and in Article 4(1)(b)) and therefore could not be publically disclosed at the time. However, the SC expressed its willingness to provide this document, if so requested, in the framework of on-going court proceedings.

38. Finally, a national judicial authority requested the lifting of the inviolability of the SC's archives with respect to Opinion No 2/2012 and of the reserve duty of its members, for the purpose of a national proceeding. The SC gave a favourable answer to this request.

39. The Staff Regulations of officials of the EU as well as the Conditions of Employment of other servants of the EU provide that any official or other servant who becomes aware of facts which give rise to a presumption of the existence of a possible illegal activity, or of conduct relating to the discharge of professional duties which may constitute a serious failure to comply with the obligations of officials of the Union, shall without delay inform either his immediate superior or his Director-General or, if he considers it useful, the Secretary-General or OLAF (12). These rules are equally applicable within OLAF, which means that OLAF staff members are obliged to report to one of their OLAF hierarchical superiors or, if they consider this to be appropriate, directly to the Secretary-General of the Commission any factual information and evidence on possible illegal activities or serious professional misconduct within OLAF of which they become aware. To take account of the particular position of staff in OLAF wishing to report possible wrongdoing within OLAF, it has been agreed (13) with the SC that such matters may be reported to its Chairman.

40. The SC has never received any such report. Possibly the procedure has not been adequately communicated to the OLAF staff, but even more importantly, the SC has not been granted any tools to follow-up such possible complaints and to ensure an effective inquiry and remedy.

2. MONITORING OF THE MANAGEMENT OF THE INVESTIGATIVE FUNCTION OF OLAF

Article 6(2) of Commission Decision establishing OLAF, as amended by Commission Decision 2013/478/EU (14) : After consulting the Supervisory Committee, the Director-General shall send the Director-General for budgets a preliminary draft budget to be entered in the annex concerning the Office to the Commission section of the general budget of the European Union. Article 15(1) third paragraph of Regulation (EU, Euratom) No 883/2013: The Supervisory Committee shall address to the Director-General opinions, including where appropriate, recommendations on, inter alia, the resources needed to carry out the investigative function of the Office (…).

Preliminary draft budget for 2014

41. To give assurance that OLAF's budget duly takes into account the independence of the investigative function of OLAF and that OLAF is resourced to function effectively and efficiently as an inter-institutional service in stepping up the fight against fraud, the SC adopted Opinion No 1/2013 on OLAF's Preliminary Draft Budget for 2014 (15).

42. The SC looked into the allocation of resources to priority activities and into the human resources strategy. The SC's recommendations focussed on the follow-up of investigations and on the development of indicators for efficiency and quality of the investigative function following the EU anti-fraud policy and the Commission anti-fraud strategy. It was also recommended that OLAF give focus to training, career development, succession planning as well as an appropriate balance between support services and investigators.

43. The SC underlined the importance of consulting the SC by means of a real and substantive exchange of opinions between the OLAF DG and the SC prior to the preliminary draft budget being sent to the Director-General for Budget in any form.

44. Finally, the SC recommended the introduction of a separate budget entry, within the OLAF budget, for both the SC and its Secretariat in order to clarify the costs of the SC function and to highlight in a transparent manner the inter-institutional character of the SC and its Secretariat. Furthermore, the SC underlined the importance of the DG allocating sufficient resources to the SC Secretariat and ensuring its independent functioning.

45. The SC supported the Preliminary Draft Budget for 2014 with the provision that the recommendations made in its Opinion are taken into consideration.

OLAF reorganisation and Staff Satisfaction Surveys

46. The survey carried out in 2013 throughout the Commission, followed by an internal survey in OLAF, showed a low level of satisfaction of staff with regard to their professional environment. The SC is particularly concerned by three elements, given their potential impact on the efficiency of OLAF's investigative function: — according to OLAF staff, the massive reorganisation of the Office did not lessen the administrative burden on investigators or improve the transparency of internal procedures; — the staff did not consider that OLAF senior management either communicated with them sufficiently or paid the necessary attention to their feedback; — following the reorganisation of OLAF in 2012, all senior managers and over 75 % of middle managers were newly appointed to their current units/directorates, many members of the staff left and over one quarter of the remaining staff considered leaving, which, taken as a whole raises serious concern regarding the continuity of expertise within the Office.

47. As a consequence, the SC requested that the OLAF DG inform it regularly on measures foreseen or implemented to address these issues.

3. COOPERATION WITH OLAF

Follow-up by OLAF to the recommendations made by the Supervisory Committee

48. In 2012, the SC issued a number of recommendations to the OLAF DG, in particular concerning the protection of fundamental rights and procedural guarantees (16). The SC's initial analysis indicates that the implementation of most of its recommendations from 2012 has not been satisfactory. In responses from the OLAF DG either there has been no sufficient justification for non-implementation or there has been no substantive information on how the recommendations were supposedly implemented. The SC will therefore analyse that issue in a separate Opinion to be delivered in 2014.

Working arrangements with OLAF

49. During the reporting period, the SC had extensive and lengthy discussions with the OLAF DG on the SC access to case-related information. The outcome of these discussions is reflected in the Working Arrangements (17) signed by the OLAF DG and the SC Chairman on 14 January 2014. The arrangements set out (i) the scope of information on OLAF's investigative activities to be provided to the SC, (ii) the methodology for providing information and (iii) the timeframe. They are intended to strike a fair balance between OLAF's duty to protect the confidentiality of information related to its investigations and the monitoring needs of the SC.

50. With regard to cases transmitted to national judicial authorities, the SC expressed its wish to be provided with a copy of the opinions issued by the ISRU to the OLAF DG on the Final Report and Recommendations, in order to enable the SC to monitor developments concerning the application of procedural guarantees. Given that this document may contain personal data, the SC agreed with OLAF to request first the European Data Protection Supervisor's opinion on the matter. This opinion is currently pending.

51. The first transmission under the Working Arrangements of the information which the OLAF DG is obliged to send to the SC on a regular basis took place on 31 January 2014, the last day of the reporting period for this report. As a consequence, a more detailed assessment of the implementation of the arrangements will be presented in the following report.

52. While considering that the Working arrangements represent an important achievement, the SC insists now that their implementation must be improved, in particular with regard to the content of information provided to the SC by OLAF. Otherwise, the SC will not be able to conduct its monitoring functions effectively.

4. COOPERATION WITH STAKEHOLDERS

Meetings with EU Institutions

53. Between May and July 2013 the SC was invited to present the conclusions from its 2012 Activity Report to the Parliament (the Committee on Budgetary Control), to the Council (the Working Group for the Fight against Fraud) and to the European Court of Auditors.

54. In several other meetings with the Committee on Budgetary Control and with Commissioner Šemeta, the SC reported on the results of OLAF investigations and the respect of fundamental rights. It also presented its conclusions on effectiveness of the supervision of OLAF, the reform of the OLAF Regulation and a new supervision structure for OLAF as proposed in the Commission's Communication on Improving OLAF's governance and reinforcing procedural safeguards in investigations (18).

55. In November 2013 the SC organised an informal exchange of opinions on the challenges facing OLAF and its SC after the entry into force of Regulation (EU, Euratom) No 883/2013.

Exchange of views with EU Institutions

56. In August 2013 the SC initiated preparations to a formalised exchange views on policy related to OLAF's activities with the Commission, Parliament, Council and the Court of Auditors, as foreseen by Article 16 of Regulation (EU, Euratom) No 883/2013. The SC proposed to focus firstly on the supervision framework for the reformed OLAF. Regrettably, the Commission's administration organised the preparatory meetings including all other participants but excluding the SC. It remains therefore to be seen whether the first exchange of views will satisfy the objectives set forth by the Regulation.

European Parliament's public hearing on procedural guarantees

57. In October 2013, the SC adopted, on the basis of its monitoring experience, a position paper on Reinforcing procedural safeguards in OLAF (19). The SC's position on possible new legislative amendments to Regulation (EU, Euratom) No 883/2013, as proposed by the Commission in its Communication, was presented during a public hearing organised by the Parliament (20).

58. The SC welcomed the Commission's proposal, but pointed out that some structural solutions should be reconsidered with specific regards to the independence of OLAF and of the SC. In particular, any potential conflicts of competences and duplication of work between the present and the foreseen supervision structures should be avoided. The SC proposed alternative solutions which would retain the useful instruments proposed by the Commission, but which would, at the same time, incorporate them into a comprehensive supervision mechanism.

Civil society

59. The Transparency International EU Office (TI-EU) decided to perform an assessment of the EU's integrity system (21). In January 2014, the SC Chairman and members of the SC Secretariat met TI-EU's representatives and discussed issues such as the relationship between OLAF and the SC, OLAF's accountability and independence and the integrity rules governing the SC itself.

5. SUPERVISORY COMMITTEE'S GOVERNANCE

Supervisory Committee's role under Regulation (EU, Euratom) No 883/2013

60. Regulation (EU, Euratom) No 883/2013 has introduced a number of changes to the role of the SC and to its monitoring tools. A significant part of the SC meetings was thus dedicated to discussions on their impact on the SC's activities.

61. The SC conducted a thorough analysis of the changes concerning its mission and role, its core tasks, its monitoring and reporting tools. The SC's paper on the Mission, competences and objectives of the SC (22) in the light of the new OLAF Regulation explains these changes, the SC's monitoring formula and the role of its Secretariat, its independent functioning being a guarantee of the independence of the SC itself.

Priorities and objectives

62. The SC defined its strategic objectives and priorities for the forthcoming period of its mandate, aimed at increasing the effectiveness and impact of its core activities and thus the support of OLAF's investigative function and reinforcement of OLAF's independence. The SC defined the following strategic objectives: (i) developing effective and pragmatic monitoring tools; (ii) improving the cooperation with OLAF and its Director-General; (iii) acting as a stakeholder in implementing the fight against fraud policy; (iv) increasing the SC's visibility among the EU institutions and Member States; (v) developing the SC's working methods; (vi) safeguarding the independent functioning of the SC and of its Secretariat; (vii) contributing to the legislative proposal of reinforcing OLAF's supervision. To meet these objectives, the SC identified a number of priorities, which are also presented in the paper on the Mission, competences and objectives of the SC, which represents at the same time the SC's mid-term strategy.

Code of conduct

63. On 9 October 2013, the SC adopted a Code of conduct together with an Explanatory memorandum on Safeguards of impartiality and risks of conflict of interest in the exercise of the monitoring functions (23). The SC highlighted that its Members generally hold key functions in their national judicial system or administration, allowing them to act as a counterpart/partner of OLAF at a national level at any stage of an OLAF case. At the same time, they regularly monitor OLAF's cases, in particular, those requiring transmission of information to the national judicial authorities. Situations may thus occur when they may be faced with the same OLAF case both in the framework of their national duties and as Members of the SC. It is thus essential to make sure that dealing with a case in this dual capacity does not give rise to any actual or potential conflicts of interest endangering the public trust in the impartiality and objectivity of their work. The SC carried out an overview of those specific tasks of the Members of the SC which could possibly lead to conflict of interest situations, followed by an inventory of concrete situations when conflicts of interest may occur. The code of conduct foresees a clear procedure on how to manage conflict of interest situations.

64. In order to establish this policy and code of conduct in clear legal terms, the SC considered it appropriate to amend its Rules of Procedure. This work is currently on-going.

Working methods

65. In March 2013, the SC welcomed a new Member, Mr Tuomas PÖYSTI. During its October 2013 meeting, the SC elected Mr Johan DENOLF to serve as Chairman for a further year.

66. From February 2013 to January 2014 included, the SC held 11 plenary meetings in Brussels and Luxembourg. The Chairman, the rapporteurs and the members of the Secretariat met also regularly to work on particular issues as well as on the preparation of and follow-up to the plenary meetings.

67. For every major issue examined, the SC appointed a rapporteur. Such was the case in particular for the OLAF budget, the analysis of the OLAF's procedures for dealing with complaints, the DG's Instructions to Staff on Investigative Procedures, OLAF Investigation Policy Priorities and the analysis of the selection process in OLAF. The rapporteurs worked with the SC Secretariat to prepare draft opinions or papers to be discussed in the plenary meetings.

68. During the February 2013 plenary meeting, the SC Secretariat presented to the senior management of OLAF the working methods of the SC in particular with regard to cases to be transmitted by OLAF to national judicial authorities. It was also explained what information was needed by the SC in order to carry out its tasks properly. This presentation served as the basis for the SC to develop a set of monitoring guidelines. Following the entry into force of Regulation (EU, Euratom) No 883/2013, the SC is in the process of establishing new monitoring guidelines.

6. SUPERVISORY COMMITTEE'S SECRETARIAT

69. The Secretariat of the SC consists of lawyers, investigators and assistants who ensure the daily monitoring of OLAF investigative activities and assist the SC Members in the execution of their tasks. The Secretariat receives all the information provided to the SC and carries out its initial examination. The Secretariat is also responsible for preparing legal advice for the SC Members.

70. The SC would like to highlight that its Secretariat must be able to assist the SC in implementing its monitoring functions in a loyal and efficient manner without being exposed to the risk of potential conflicts of interest as OLAF staff subordinate to the OLAF DG. During the past few years, the SC has consistently underlined the importance of its independent and effective functioning which requires an independent and adequately staffed Secretariat that, whilst situated within the structure of OLAF, functions independently and under the exclusive instructions of the SC. The SC is satisfied that the independent functioning of its Secretariat is now guaranteed by Regulation (EU, Euratom) No 883/2013 (24).

71. The SC has identified four basic conditions ensuring the independent functioning of the Secretariat: (i) recruitment, appraisal and promotion of the Head of the Secretariat on the basis of the SC's decisions; (ii) reclassification of the Head of the Secretariat as a senior manager; (iii) recruitment, appraisal and promotion of the staff of the Secretariat by its Head; (iv) sub-delegation of the Secretariat's budget implementation to its Head. The SC has started discussions with the OLAF DG on the implementation of this new regulatory requirement, which are currently on-going.

72. The SC is also satisfied that the OLAF DG has re-established the number of posts allocated to the Secretariat to eight, as was the case before the reorganisation of OLAF in 2012.

How to contact the Supervisory Committee

Via the SC Secretariat:

By post J30 13/62 — Rue Joseph II, 30 — B-1049 Brussels By telephone + 32 2 2984022 By e-mail OLAF-FMB-supervisory-committee@ec.europa.eu By fax + 32 2 2959776 Website http://ec.europa.eu/anti_fraud/about-us/supervisory-committee/index_en.htm

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

(2) Article 15.

(3) See Annex 5.

(4) See Annex 3.

(5) See Annex 4. Although this Opinion was adopted in March 2014, the SC decided to annex it to this Activity Report, since almost all the work on the opinion was carried out during the reporting period.

(6) In 2013, the SC received 186 nine-month reports.

(7) 21 cases requiring information to be transmitted to national judicial authorities forwarded by OLAF to the SC in January 2013 were reported on in the 2012 SC's Annual Activity Report. The total number of cases received in 2013 was 77.

(8) OLAF forwarded to the SC the Opinions on Final/interim report and recommendations in 72 out the 77 cases transmitted to national judicial authorities in 2013.

(9) In the latter case, the interview of the person concerned was conducted under the rules of the former OLAF Manual.

(10) See Annex 2.

(11) OJ L 145, 31.5.2001, p. 43.

(12) Article 22a of the Staff Regulations and Article 11 of the Conditions of Employment of other servants of the EU.

(13) After consultation of the Commission's Legal Service — see note of the OLAF DG of 10 November 2008 to OLAF staff members.

(14) OJ L 257, 28.9.2013, p. 19.

(15) See Annex 1.

(16) See a summary in Annex 7.

(17) See Annex 10.

(18) COM(2013) 533 final, 17.7.2013.

(19) See Annex 6.

(20) Public hearing of 3 October 2013‘OLAF and the rights of the persons concerned’.

(21) See http://www.transparencyinternational.eu/european-union-integrity-system-study/.

(22) See Annex 8.

(23) See Annex 9.

(24) Recital 40.

ANNEXES 1. Opinion No 1/2013: OLAF's Preliminary draft budget for 2014 2. Opinion No 2/2013: Establishing an internal OLAF procedure for complaints 3. Opinion No 1/2014: OLAF Investigation Policy Priorities 4. Opinion No 2/2014: Case selection in OLAF 5. SC's observations on investigation procedures in OLAF 6. Paper on Reinforcing procedural safeguards in OLAF 7. SC's 2012 Recommendations 8. Mission, competences and objectives of the SC: Mid-term strategy 9. Code of Conduct of the Members of the SC and Explanatory memorandum on safeguards of impartiality and risks of conflict of interest in the exercise of the monitoring functions 10. Working arrangements with OLAF

ANNEX 1 OPINION No 1/2013 OLAF's preliminary draft budget for 2014 Brussels, 16 July 2013 INTRODUCTION At the meetings of 27 February and 16 July, 2013, OLAF's Supervisory Committee examined OLAF's preliminary budget for 2014 and adopted the following opinion. In accordance with the 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 (OLAF) (1) and Article 3 of the Commission Decision 1999/352/EC, ECSC, Euratom (2), the European Anti-Fraud Office (hereinafter OLAF) shall have full independence to exercise its investigative function in all institutions, bodies, offices and agencies established by or on the basis of the Treaty on the European Union, Treaty on the Functioning of the European Union and the Euratom Treaty. To do this and to ensure that OLAF is able to function in an efficient and effective manner and contribute in the best possible way to the Union's objectives of the fight against fraud defined in Article 325 of the Treaty on the Functioning of the European Union, a specific budget line within the Commission budget (European Commission section of the general budget of the European Union) is created for OLAF. (3) In accordance with Article 11 of the Regulation (EC) No 1073/1999 the mission of the OLAF Supervisory Committee (SC) is to reinforce the independence of OLAF in the exercise of OLAF's investigative function. In the reform of Regulation (EC) No 1073/1999 adopted by the European Parliament and the Council in 2013, the role of the SC has been strengthened as guardian of the independence of OLAF in its investigative function and in the supervision of the respect of fundamental rights and freedoms. In this context, and with a view to the powers conferred by the Commission on the SC (4), the SC has considered OLAF's preliminary draft budget (PDB) and the Commission draft budget for 2014 concerning OLAF and delivers the following Opinion. The objective of the procedure in which the SC adopts an Opinion on OLAF's preliminary draft budget and draft budget is to give assurance that the draft budget duly takes into account the independence of the investigative function of OLAF and that OLAF is resourced to function effectively and efficiently as an inter-institutional service in stepping up the fight against fraud as foreseen by the Union legislator in Regulation (EC) No 1073/1999. The SC Opinion on the preliminary draft budget also creates a documented forum of the SC advice to the Director-General of OLAF and to the Budgetary Authority of the Union and other Institutions of the Union on the prerequisites for efficient allocation and use of resources to and within OLAF. In this way the SC Opinion contributes to the attainment of value for money, legal certainty and efficient anti-fraud policy in the European Union. The Opinion of the SC is not therefore limited only to commenting on the budget line on the SC of the OLAF. I. RESOURCES In the draft budget presented by the Commission on 26 June 2013, the OLAF budget will be increased by approximately 1,5 % with a total expenditure of EUR 58 523 000. The increase comes principally from the transfer of an additional 6 posts from headquarters budget line ‘Expenditure related to officials and temporary staff working with the institution to OLAF’. If the impact of the EU enlargement to include Croatia is taken into account, the increase in the OLAF expenditure is 0,7 %. In the draft budget presented by the Commission the general increase in the Commission's administrative expenditure is 0,1 % and 0,8 % when taking into account the expenditure resulting from the enlargement to Croatia. The OLAF Budget has not been subject to the same strict savings measures as those within the Commission services in general. The SC notes this with satisfaction and considers that this line on resources provides the conditions necessary to continue the fight against fraud as one of the important priorities of the European Union. The budget line concerning buildings and IT has been kept on zero growth in accordance with the general orientation of the Commission. The SC observes that a well-organised and up-to-date ICT support and infrastructure are necessary conditions for a cost-effective fraud investigation function. The SC has no objection to the general orientation in the Commission draft budget but SC would stress the need to keep both OLAF's Case Management, ICT analytics and other information systems up to date in order to enable OLAF to function efficiently. Allocation of resources to priority activities The SC has regularly recommended to OLAF in its previous opinions on the budget to allocate more staff to OLAF's core business — investigations — by shifting them from the support units. In addition, the SC has proposed clarification of the distinction between investigative and operational activities of OLAF. The SC notes the reorganisation of OLAF put in place on 1 February 2012 in which resources at the organisational level were increasingly concentrated on investigations. As a result of this, in the OLAF Report of 2012, the distribution of staff in the units dealing with the fight against fraud, OLAF policy strategy and coordination and administrative support is reported separately. This goes in the direction of clarification of the distinction between investigative and other operational activities of OLAF in line with the SC's earlier recommendations. However, the SC considers that clarification between investigation and investigation support functions, anti-fraud policy functions and other operational activities of OLAF should go still further. Opening and follow up of the investigations The SC would mention that consistent application over the years of the investigative policy priorities in line with Union's anti-fraud policy and the Commission's anti-fraud strategy is a core issue in the resources management of OLAF and in the performance of its investigative function. The SC notes that in the OLAF Management Plan the alignment with the investigative policy priorities is defined as one of the performance indicators for OLAF. (5) The SC underlines the importance of transparent and reliable follow-up of the investigative policy priorities. The SC would refer to its earlier observations and statistics as presented by the European Court of Auditors in the Special Report No 2/2011 (6) on the low number of OLAF investigations leading to convictions by Member States judicial authorities. (7) The SC considers that the rate of OLAF reports leading to convictions is one of the key indicators of the effectiveness of OLAF's investigative function requiring close and open attention. The SC recognises that the reasons why OLAF reports do not lead to conviction may, in some instances lie outside OLAF's control, however, the impact of such external factors should be carefully analysed and transparently reported. The SC therefore encourages OLAF to continue to develop indicators and report on them in a transparent and reliable manner in order to show an example of value for money and to demonstrate the positive impact that contribution of additional resources to OLAF has in the fight against fraud in the European Union, appropriate follow-up thus ensuring that the ultimate results of investigations are achieved. Without this OLAF risks carrying out good, hard work which may ultimately not produce the required results. HR strategy The reorganisation of the Office resulted in significant shifts of staff and modifications in their job description or even a completely new allocation of tasks. In such circumstances the SC reiterates its earlier position that it is essential to have an appropriate human resources strategy built on the identified and real needs of the organisation and its priorities, with the aim of giving direction and maximising the use of existing resources. The SC draws particular attention to OLAF's ability to recruit and maintain high quality professionals in its investigative functions as a focal point of cost-effective anti-fraud service at the Union level. A crucial element of the human resources strategy should continue to be the continuous training related to internal mobility and overall restructuring. It should address the optimum balance between administrators and staff members with administrative professional background performing core investigative tasks and assistants providing support services. Recommendations: — Effective follow-up of investigations must be ensured and results of the investigations reported with timely and reliable indicators — OLAF shall continue to develop indicators describing the efficiency and quality of its investigative function and on the alignment with the anti-fraud policy of the European Union and anti-fraud strategy of the European Commission — A human resources strategy based on a needs assessment of OLAF's current activities should be developed and focus given to training, career development, succession planning and appropriate balance between assistants providing support services and administrators performing core investigative tasks. II. BUDGETARY PROCEDURE The Commission Decision establishing OLAF is clear that the SC must be consulted on the PDB of OLAF before it is sent to the Director-General for Budgets (8). Up to now the Director-General of OLAF has transmitted the PDB to the Committee after ‘technical’ meetings/arrangements with DG Budget. In 2013 the SC was presented with the preliminary draft budget in February and informed in June with regard to the Commission Decision on the draft budget for 2014. The SC believes that to provide an effective opinion on the PDB is one of its core tasks and would remind the Director-General of OLAF to undertake a substantive consultation with the SC prior to budget negotiations with DG Budget. Furthermore, the SC would encourage the Director-General to consult the SC on the OLAF Annual Management plan in order to have independent support and feed-back based on the follow-up of the investigative function by the SC. Conclusion: — The Director-General of OLAF shall ensure that the SC be effectively consulted regarding the next PDB by means of a real and substantive exchange of opinions between the Director-General and the Committee before the PDB is sent to the Director-General for Budget in any form. III. THE SC AND THE SECRETARIAT OF THE SC The SC expenditure The SC notes that the budget line of the expenditure related to the SC is not changed in 2014 draft budget. The SC draws attention to the fact that with the extended responsibilities attributed to the SC by the Union legislator, the performance of the duties of the SC requires the devotion of a considerable amount of time by its Members who, by definition, do so on a part time bases. The Resources of the Secretariat of the SC In accordance with Regulation (EC) No 1073/1999 the SC has a crucial role to play in the monitoring of OLAF's investigative function. Moreover, the SC has a specific inter-institutional character. In the discharge of its duties assigned by the legislator, the SC is dependent on its Secretariat. The SC would like to point out that the role of the Secretariat is primarily not to assist in the organisation and documentation of the meeting of the SC. In practice, the SC Secretariat performs an overall, regular monitoring of the investigative function of OLAF. This results from the fact that it is the SC Secretariat which has access, in accordance with the established access arrangements, to the OLAF Case Management System. The data protection rules de facto require that access to case information by the SC is implemented via the SC secretariat. An adequately staffed Secretariat with high quality personnel is thus a vital condition for the SC in the discharge of its duties as stipulated by the legislator. The SC considers that the 2014 draft budget creates conditions for appropriate resourcing of the SC Secretariat. The SC would point out the general principle of sincere cooperation between Institutions and bodies of the European Union, which is a general principle of the Union law, specifically that Regulation (EC) No 1073/1999 sets out further requirements on the sincere cooperation between the Director-General of OLAF and the SC. The Director-General of OLAF shall, in the spirit of sincere cooperation, consult the SC on all issues which relate to the staffing, promotion of personnel and resources of the SC Secretariat. To be fully informative and representative of the total cost of supervision, the budget entry for the SC should incorporate the total cost of operations stemming from the duties stipulated in Regulation (EC) No 1073/1999, that is, all the SC Members' expenditure as well as that of its Secretariat which includes their salaries, training, travel etc. OLAF has the privilege of transferring its funds freely from one line item to another. By joining up the total cost of the SC's function in a separate budget entry it is ensured that funds targeted for use by the SC are actually used for the supervisory function. However, funds remaining unused could be redeployed to other headings within the OLAF budget. Such redeployment should only be possible with prior notification to the SC and its approval. The Head of the SC Secretariat should be sub-delegated as the authorising officer to manage the total fund allocation for the SC's operations under the control of the Committee. Having one budget line which incorporates all expenditure will facilitate the management and efficiencies of the supervisory framework whilst, at the same time, any unused funds are passed on to other OLAF budget lines by the Director-General upon the approval of the SC. A separate budget line has the benefit of transparency and reflects also the independence of the SC in line with the Regulation. At the same time, this separate budget line will inform the three institutions appointing the SC regarding the resources specifically allocated to the supervisory function. Secretariat Staff The SC maintains its position, as expressed in its previous opinions on the OLAF budget, on the minimum requirement of eight Secretariat staff, which is equivalent to the current needs of the SC. This represents about 2 % of OLAF staff (9) which the SC deems the minimum number required for it to carry out its monitoring function efficiently. (10) The SC would point out that the legal duties of the SC require a small, but high quality staff in Secretariat. The SC has noted with satisfaction the intention of the OLAF Director-General to allocate additional posts to the Secretariat. The SC expects a fluid and rapid implementation of the announced intention. Furthermore, the SC is of the opinion that, with regard to the appointment of the Head of the Secretariat and other staff for its Secretariat, including internal transfers, there should be close consultation with the Committee, as indicated in its Rules of Procedure (11) reflecting the principle of cooperation stipulated in the Regulation. The SC acknowledges that the Commission staff rules and the appraisal and promotion system do not currently permit the SC Members to evaluate the performance of the staff of the Secretariat directly. The SC also notes that nothing in the Commission staff rules and appraisal and promotion system excludes the consultation of the SC and that some Institutions have developed consultation systems for situations in which a member of staff is effectively working for another directorate or body than the one which is legally responsible for the appraisal and promotion. Therefore the SC considers that even though the appraisal of the Head of Secretariat and his promotion are ultimately decided by the Director-General of OLAF, he should make these decisions on the basis of the opinions of the Committee under whose direct authority the Secretariat works, as it is foreseen in the SC's Rules of Procedure (12). This will ensure the continuous independence of the Secretariat in their day to day functions. Recommendations: — Separate budget line for both the SC and Secretariat should be considered to clearly indicate the costs of the SC function and to highlight in a transparent manner the inter-institutional character of the SC and its Secretariat. — The Director-General of OLAF shall, in sincere and close cooperation with the SC, ensure that appropriate resources and staff members are allocated to the SC Secretariat in line with the intention expressed by the Director-General. — Regular monitoring of the investigative function of OLAF and SC access to information depend on a small but high quality Secretariat. The Secretariat should have eight members of staff. — Appointments, appraisal and promotion of the SC Secretariat staff should only be made following the approval of the SC, thus ensuring full independence of the SC Secretariat in the performance of its duties. — Appraisal of the Head of Secretariat and his promotion should be decided by the Director-General on the basis of the SC's opinion. IV. CONCLUSION The SC supports OLAF's draft budget for 2014 with the provision that the above recommendations be taken into consideration. In accordance with Article 6(2) of the Commission Decision of 28 April 1999, the Opinion should be transmitted to the Budgetary Authority by OLAF. Furthermore, the SC invites the Director-General of OLAF to update the SC regularly on measures taken by OLAF towards implementation of the recommendations in this Opinion. Adopted in Brussels, on 16 July 2013 For the Supervisory Committee, Johan DENOLF Chairman (1) 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 (OLAF) (OJ L 136, 31.5.1999, p. 1). (2) Commission Decision 1999/352/EC, ECSC, Euratom of 28 April 1999 establishing the European Anti-Fraud Office (OLAF) (OJ L 136, 31.5.1999, p. 20). (3) See Art. 13 of Regulation (EC) No 1073/1999 (Art. 18 of the Regulation amended as of 1 October 2013). (4) Article 6 of the Commission Decision 1999/352/EC, ECSC, Euratom. (5) See OLAF Annual Activity Report 2012 final, Ares (2013) 509786 — 26.3.2013: chapter 1.3, Specific objectives for ‘fight against fraud’: investigative and coordination activities, p. 5. (6) Special Report No 2/2011, ‘Follow-up of Special Report No 1/2005 concerning the management of the European Anti-Fraud Office’. (7) See the SC Opinion 1/2012 of the 2013 OLAF draft budget, reproduced as Annex 2 of the SC Annual Report of 2012. (8) Article 6(2) of the Commission Decision 1999/352/EC, ECSC, Euratom cited above provides: ‘After consulting the Surveillance Committee, the Director shall send the Director-General for Budgets a preliminary draft budget to be entered in the special heading for the Office in the annual general budget’. (9) According to the OLAF report for 2011, there are 437 staff in the Office. (10) For the detailed analysis of the SC workload and consequently of the necessary SC Secretariat resources, see the note of the Head of the SC Secretariat of 21 March 2013. In view of the incoming amendments to Regulation (EC) No 1073/1999 entrusting additional tasks to the SC, the resources of the SC Secretariat may require reinforcement in the year 2014. (11) Article 11(3) of the SC's Rules of Procedure provides as follows: ‘In any case, the Head of the Secretariat shall inform the SC about the candidates for membership of the Secretariat. Once the applications are known, the Committee shall discuss in the plenary session whether they meet the Committee's working needs with a view to submitting a proposal for their appointment to OLAF's Director-General’ (OJ L 308, 24.11.2011, p. 114). (12) Article 11(5) of the SC's Rules of Procedure provides as follows: ‘The Supervisory Committee shall periodically evaluate the work of the Head of the Secretariat and of the Secretariat members’.

ANNEX 2 OPINION No 2/2013 on establishing an internal OLAF procedure for complaints The Supervisory Committee of the European Anti-Fraud Office (OLAF) examined the options for redress open to persons involved in OLAF's investigations regarding potential violations of their rights and procedural guarantees. The Committee found that such persons do not have sufficient and immediate remedies to redress potential violations either through an external (an EU or national court, the European Ombudsman or the European Data Protection Supervisor) or internal mechanism (OLAF itself). The Committee believes that the new Regulation (EU, Euratom) No 883/2013 concerning investigations conducted by OLAF has not resolved the problem, since it does not introduce a mechanism for dealing with individual complaints. The Committee expressed the opinion that the current legislative gap could be closed by putting in place a transparent and efficient complaints procedure within OLAF, to deal with complaints alleging potential breaches of fundamental rights and procedural guarantees in the course of an OLAF investigation. The Committee therefore recommended that the Director-General of OLAF institute such an internal procedure and put forward concrete suggestions with regard to its implementation. INTRODUCTION 1. OLAF has been given far-reaching powers of investigation in order to efficiently carry out its mission to protect the financial interests of the EU. The exercise of these powers is very likely to touch upon the fundamental rights of persons concerned by investigations (1), and therefore their respect by OLAF is essential. It contributes — as the SC has already emphasised (2) — not only to ensuring the effectiveness and efficiency of OLAF's investigative activities, but also to consolidating its reputation, credibility and ultimately its independence. 2. OLAF is obliged to ensure the protection of fundamental rights by safeguarding the procedural guarantees as listed by the EU Charter of Fundamental Rights (3). In addition, the EU legislator decided to enhance OLAF's accountability for its investigative activities by reforming its legal framework (4) which resulted in the adoption of Regulation (EU, Euratom) No 883/2013 (5) (hereinafter, the Regulation). 3. The SC welcomes the changes brought by the Regulation but would like, nevertheless, to point out that the mechanisms put in place to enforce the procedural guarantees need further improvement. The Regulation provides for a legality check (6) and a monitoring mechanism (7), but does not establish a mechanism for dealing with individual complaints which would be, in the SC's view, indispensable for ensuring effective protection of fundamental rights. 4. In the SC's opinion, persons involved in OLAF investigations do not have sufficient and immediate remedies to redress potential violations of their rights and the recent reform of the legal framework has not solved that problem. Therefore, the SC takes the view that the Director-General of OLAF ((hereinafter, the DG) should swiftly establish a transparent and stable internal procedure for dealing with individual complaints. I. INSUFFICIENCY OF THE EXISTING REDRESS MECHANISMS 5. Persons considering that, in the course of an investigation, OLAF breached their fundamental rights and wishing to complain, have at their disposal various means of judicial and non-judicial review which, however, may be insufficient, for the reasons stated below. 6. Firstly, they may seek the direct judicial review by an EU Court (action for annulment, action for damages and request for interim relief) or indirectjudicial review by EU and national courts (preliminary ruling procedure). (8) However, it should be noted that these actions are governed by rather strict rules on admissibility (9) and must fulfil a number of conditions to trigger a right to reparation (10). Even when an action is successful, ‘Judicial protection is obtained long after the contested investigative act and the act as such is not affected by the EU court's ruling; only compensation for the prejudice created by that act is obtained’ (11). 7. Secondly, persons wishing to complain may address themselves to the European Data Protection Supervisor (EDPS), who is specifically entrusted (12) with the competence of hearing and investigating complaints lodged by persons whose personal data are processed by OLAF. However, the material scope of his review is limited to the protection of personal data and privacy. 8. Thirdly, the European Ombudsman (EO) is competent to investigate complaints regarding maladministration (13) against OLAF, namely failure to act in accordance with the law, to respect the principles of good administration, or breaches of fundamental rights. Nevertheless, it is the EO's view — which the SC fully shares — that an institution ‘in frequent contact with people who may have reason to complain should provide for a first line complaints mechanism allowing for their problems to be addressed and solved rapidly, before, in the event that resolution is not successful, having to turn to other redress mechanisms, such as Ombudsmen and courts’ (14). The SC considers that this statement also applies to OLAF. 9. Fourthly, the SC itself — as the OLAF's supervisory body — is quite often the addressee of individual complaints which it takes into consideration as a valuable source of information concerning OLAF's investigations and thus triggering the SC's monitoring activity. The SC's role, as emphasised by a ruling of the EU General Court (15) and confirmed by Regulation (EU, Euratom) No 883/2013, is to monitor developments concerning the application of procedural guarantees and the duration of investigations (16) which cannot be carried out without examination of individual cases. However, the SC was not established as a complaints body and its supervision takes place only ex post, since the SC cannot intervene in ongoing investigations. Furthermore, the SC regrets the lack of appropriate monitoring tools at its disposal and the absence of a specific reporting obligation for the DG to inform the SC of complaints addressed to him and, in particular, on the way they were dealt with. 10. In addition to the external mechanisms, the SC notes that an internal mechanism for dealing with individual complaints is not completely absent from the legal framework governing OLAF's investigations. Any official or other servant of the EU who is the subject of an internal investigation has the right to submit to the DG a complaint against an act adversely affecting him in connection with investigations by OLAF (17). However, according to the existing EU case-law, OLAF's investigative acts do not constitute acts adversely affecting the persons concerned within the meaning of Article 90a of the Staff Regulations and therefore are not challengeable acts (18). 11. Moreover, the SC would point out that OLAF staff who are aware of possible illegal activities or serious violations of professional duties that might trigger potential breaches of fundamental rights and procedural guarantees within an investigation have the additional possibility to report wrongdoing within OLAF to the President of the SC, on the basis of Article 22a of the Staff Regulations and of the agreement between the DG and the SC (19). II. LACK OF A COMPLAINT PROCEDURE IN REGULATION (EU, Euratom) No 883/2013 12. The SC notes that the intention of the EU legislator was to strengthen the protection of procedural guarantees applicable in OLAF's investigations (a) by inserting in the Regulation detailed provisions concerning the procedural guarantees and (b) by enforcing them by means of an enhanced review. As a result, Article 9 of the Regulation contains now explicit procedural guarantees and thus defines and clarifies the contents of those foreseen in the Charter. On the other hand, although the EU institutions involved in the legislative process all agreed on the need for a review of potential violation of fundamental rights and put forward various proposals aimed at establishing both an ex ante legality check (relating, inter alia, to the respect of procedural guarantees of persons under investigation, during all stages of the investigation) and an ex post review procedure for handling individual complaints (20), it seems that no consensus was finally reached, since the Regulation does not explicitly put in place any such procedure. 13. The SC would point out that in the past, via its internal rules, OLAF put in place a review procedure open to all persons concerned in internal and external investigations in which procedural guarantees were allegedly not respected in a manner possibly having an impact on the conclusions of the investigation (21). This procedure evolved under the influence of interinstitutional discussions on reforming the OLAF legal framework. Since the Commission's proposal of 17 March 2011 contained provisions on a review procedure (22), the Instructions to Staff on Investigation Procedures (ISIP) (23) adopted by the OLAF DG as of 1 February 2012 anticipated the forthcoming legislative changes with the setting up of a procedure for dealing with complaints concerning an alleged failure to respect procedural guarantees (24). However, that Commission's proposal, which was subject to negotiations during the legislative process, was ultimately not maintained. Therefore, when the ISIP were replaced by the new Guidelines on Investigation Procedures (GIP), which entered into force on the same day as the new OLAF Regulation (1 October 2013), this internal procedure disappeared. 14. As a result, neither the Regulation nor OLAF's internal rules foresee any formal procedure for dealing with individual complaints. Therefore, the objective of improving the mechanisms for redressing potential breaches by OLAF of procedural guarantees of persons under investigation has not been achieved. The SC would point out that the recent Communication from the Commission on Improving OLAF's governance and reinforcing procedural safeguards in investigations (25) supports the SC's view and its repeated recommendations (26) concerning the introduction of transparent and stable procedures for an internal legality check and for an independent review of complaints. This Communication also confirms the need for further improvements to the Regulation, by establishing of the office of a ‘Controller of procedural safeguards’. 15. With its longstanding experience in monitoring OLAF's investigative function and thereby compliance by OLAF with fundamental rights and procedural guarantees, the SC is therefore concerned by the lack of a transparent procedure for dealing with individual complaints and takes the view that, at least during the transitional period, until further amendments to the Regulation are adopted, the current gap should be closed by the DG re-establishing an internal procedure for complaint in OLAF. III. THE WAY FORWARD: AN INTERNAL PROCEDURE FOR COMPLAINTS 16. In OLAF's view, the notion of ‘complaints’ covers (i) complaints concerning procedural guarantees in the context of investigative actions, (ii) complaints against a reply by OLAF to a request for access to personal data and (iii) complaints from whistle-blowers (concerning either OLAF's obligation to inform them on the action taken following their fraud reporting or the protection of their identity) (27). According to information provided by OLAF, in the last three years there were 25 complaints concerning OLAF's investigation activity, of which 13 were addressed to the EO (28), 8 were addressed to the EDPS (29) and 4 were requests for review addressed to OLAF (30). OLAF is also aware of other complaints, addressed to other bodies (e.g. to the SC), but it does not have any systemic overview, register or statistics related to them. 17. Taking into account the number of cases opened by OLAF (718 in 2012 (31)) and the fact that complaints against OLAF are addressed, in particular, to the EDPS, the EO and the SC (32), the small number of complaints addressed to OLAF itself may lead to the conclusion that the absence of a transparent and independent procedure for handling complaints in OLAF effectively deters potential complainants from exercising their rights. 18. The SC notes, from its monitoring experience, that in the previous years the handling of complaints appeared to be carried out on a case-by-case basis rather than through a stable and consistent procedure. The SC shares the EO's view that a case-by-case approach is not ‘the best way to ensure the efficient and transparent handling of complaints’ (33) and that without a proper complaint procedure ‘compliance [with fundamental rights] cannot ultimately be effective’ (34). Such a procedure is a key element of OLAF's accountability and legitimacy, because protecting fundamental rights ‘is not only to the benefit of persons under investigation but also of OLAF, whose legitimacy can only increase when fundamental rights are (seen to be) effectively protected’ (35). 19. The SC considers that, from the OLAF perspective, a complaint procedure would help (i) the detection by OLAF of any breach of its own legal obligations, thus allowing for a prompt reaction, (ii) monitoring by OLAF of compliance with fundamental rights and procedural guarantees by its own staff, (iii) avoiding the risk of discriminatory treatment of persons concerned, (iv) settling possible disputes before they aggravate (36). 20. In the SC's opinion, Article 41 of the Charter of Fundamental Rights (37) (right to good administration) would offer a sufficient legal basis for establishing an internal procedure for dealing with individual complaints. Complainants are entitled to expect from OLAF that their ‘affairs’ are ‘handled’ — according to the principles defined by the Charter. 21. The SC therefore believes that the DG should put in place a transparent and efficient internal procedure for dealing with all the types of complaints related to OLAF investigative activities, including not only complaints alleging potential breaches of fundamental rights in the course of an OLAF investigation, but also those concerning duration of investigations, legality of OLAF's acts, breaches of confidentiality, refusals to provide information. The following practical recommendations are without prejudice to the forthcoming legislative proposals (38) or to the SC's position as expressed in its paper on Reinforcing procedural safeguards in OLAF — in view of the monitoring experience of the Supervisory Committee (39) — they should be regarded as transitional measures until the current legal framework is improved. 22. The SC would firstly point out that it is for the DG to establish and define the exact scope and content of rules on handling of complaints in OLAF. In so doing, the DG should take into consideration a number of requirements triggered by the right to good administration. Recommendations by the EO and the Code of Good Administrative Behaviour should be also taken into account. Without establishing an exhaustive list, the SC would point to the following requirements: — fairness and impartiality, including, inter alia, the requirement that a complaint should be treated by a person not related to the investigation or not in the direct line of hierarchy of the person(s) related to the investigation (40) and the necessity to set out a minimum level of guarantees ensuring the functional independence of the person handling a given complaint, — the requirement to state reasons for the decisions taken following a complaint (41); — a reasonable time-limit for handling a complaint (42), — the right of access to one's file (subject to limitations explicitly foreseen in the Charter (43), — the right to address OLAF in one of the EU official languages and to have an answer in the same language (44), — the requirement to inform the complainant of any possible alternative forms of redress (45). 23. Secondly, with regard to the person entrusted with the handling of complaints, he should have the appropriate competencies, qualifications and experience. Such person should have well defined tasks and benefit from access to appropriate resources. He should have access to all relevant case-related information and OLAF staff should fully cooperate with him. 24. Regarding particularly the requirement of independence, the SC would stress that any effective internal complaint procedure, which would necessarily imply the handling of a complaint by an OLAF (senior) official, requires that this person act, when carrying out his review duties, in full independence of the DG. This is a key element in ensuring external credibility and public trust. The SC acknowledges the difficulty of implementing such a requirement, since this person should report to the DG on his findings while the latter remains the appointing authority deciding on the career progress of all OLAF officials (46). 25. The SC would indicate three possible solutions to that problem. (i) Firstly, the SC Secretariat being the only part of OLAF with regulatory guarantees of independent functioning with regard to the DG (47), the most logical solution would be to place the (senior) official entrusted with handling complaints under the Head of the SC Secretariat, but without involving him in any regular work of the SC. (ii) Secondly, the official could be nominated as a ‘complaint’ advisor to the DG, but his functional independence should be safeguarded by the right to inform the SC whenever he considers that a measure taken by the Director-General puts his independence into question (48) and by the obligation to report on all his findings related to the complaints not only to the Director-General, but also to the SC (49). (iii) Thirdly, the task could be entrusted to the OLAF Legal Advice Unit, but then its Head should have equal safeguards as a ‘complaint advisor’ — in his capacity of the handler of complaints. 26. Finally, the SC considers that information on how to address complaints to OLAF, together with a description of the procedure for handling them, should be published on OLAF's website, for the sake of transparency and legal certainty. Moreover, the SC should be regularly informed of the complaints received by OLAF and the way they have been handled, this allowing it to properly perform its role of monitoring developments concerning the application of procedural guarantees and the duration of investigations. SUPERVISORY COMMITTEE'S RECOMMENDATIONS In the light of the above considerations, the Supervisory Committee: (1) Recommends that the Director-General set up an internal procedure for dealing with individual complaints concerning OLAF investigations; (2) Invites the Director-General to consult the details of the procedure with the SC, before its adoption; (3) Recommends that the Director-General publish the procedure on OLAF's website after its adoption; (4) Expects the Director-General to report regularly to the SC on complaints received by OLAF and the way they have been handled. Adopted in Brussels, December 2013 For the Supervisory Committee Johan DENOLF Chairman (1) Although little consideration was given to this aspect when OLAF was created, the few procedural guarantees defined in the former Regulation (EC) No 1073/1999 were developed by the case-law of the EU General Court. (2) See the SC's Opinion No 5/2010 on Respect for fundamental rights and procedural guarantees in investigations by the European Anti-Fraud Office, point 3. (3) See in particular Article 41 of the Charter. (4) One of the objectives of the reform was to reinforce the protection of fundamental rights and procedural guarantees within OLAF's investigations. (5) Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ L 248, 18.9.2013, p. 1). (6) The legality check relates, inter alia, to the respect of procedural guarantees and fundamental rights of persons concerned (Article 17(7)). (7) Article 15(1). (8) For a thorough overview of the different kinds of judicial review of OLAF's investigative acts, see J.F.H. Inghelram, Legal and Institutional Aspects of the European Anti-fraud Office (OLAF) — An Analysis with a Look Forward to a European Public Prosecutor's Office, Europa Law Publishing, 2011, p. 203. See also X. Groussot, Z. Popov, What's wrong with OLAF? Accountability, due process and criminal justice in European anti-fraud policy, Common Market Law Review 47, 2010, p. 605-643. (9) For example, the actions for annulment introduced against OLAF investigative acts have constantly been declared inadmissible on the grounds that none of such acts has to date been deemed to bring about a distinct change in the applicant's legal position. (10) In actions for damages, there are three conditions to be met in order to trigger a right to reparation: the infringement of a rule of law intended to confer rights on persons; a sufficiently serious breach of this rule; the existence of a direct causal link between the breach of the rule of law and the damage allegedly suffered by the complainant. (11) J.F.H. Inghelram, Judicial review of investigative acts of the European Anti-Fraud Office (OLAF): a search for balance, Common Market Law Review 49, 2012, p. 601-628. (12) Regulation (EC) No 45/2001 of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1). (13) According to the definition given by the EO, ‘Maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it’ (see the EO's Annual Report 1997, p. 23). (14) See the Special Report of the EO in own-initiative inquiry OI/5/2012/BEH-MHZ concerning FRONTEX, 12 November 2013, point 43. (15) Franchet and Byk v Commission (No 2),8 July 2008, Case T-48/05. (16) Article 15(1) of Regulation (EU, Euratom) No 883/2013. (17) See Article 14 of the former Regulation (EC) No 1073/1999. Its content has been included in Article 90a of the Staff Regulations and as a consequence has been deleted from Regulation (EU, Euratom) No 883/2013. (18) See Commission v Antonello Violetti and Others and Nadine Schmit, 20 May 2010, Case T-261/09. (19) See the note of the Director-General to OLAF staff (I/011472 of 10 November 2008) and the note JUR(2008)45321 of 1 April 2008 of the Commission's Legal Service. (20) During the legislative process, the EU institutions put forward various proposals: an independent Review Adviser with the participation of the SC, a Review Panel consisting of senior officials of OLAF and of the Commission's Legal Service, two separate procedures (legality check by legal experts of OLAF and complaints to the Review Adviser via the SC), a review procedure to be set up by the DG within the Office. (21) See the former OLAF Manual — Operational Procedures, version July 2011, point 5.1.6. (22) Article 7b: this procedure aimed at dealing with requests from persons concerned by an investigation, to have an independent opinion regarding the respect of the procedural guarantees provided for in the Regulation. (23) Replacing the former OLAF Manual — Operational Procedures. (24) Article 23 of the ISIP — ‘23.1 Where a natural person concerned by an investigation has requested a review of the handling of his procedural guarantees, the Director-General appoints a member of OLAF staff not connected with the investigation, to conduct such a review. 23.2 The person entrusted with the review must act independently in his review of the complaint and report his findings to the Director-General. 23.3 The Director-General may take appropriate action in respect of any failure to respect procedural guarantees and will inform the complainant’. (25) COM(2013) 533 final, 17.7.2013. (26) See the SC's Annual Activity Report 2012, specifically Section 2 of Annex III. (27) OLAF does not count as ‘complaint’ the applications for access to documents (including ‘confirmatory applications’), the requests for access to personal data, staff complaints (Art. 90 of Staff Regulations), motions to courts, complaints addressed to the Commission which do not concern directly OLAF, letters from informants/whistle-blowers unhappy with OLAF's decision to dismiss a case. (28) 7 complaints in 2013, 3 complaints in 2012 and 3 complaints in 2011. (29) 5 complaints in 2012 and 3 complaints in 2011. (30) 1 request in 2013, 2 requests in 2012 and 1 request in 2011. (31) See the OLAF 2012 Activity Report. (32) See the Annual Activity Reports of the EDPS and the EO. The SC itself received 7 complaints in 2012 and 14 complaints in 2013, concerning, inter alia, alleged failure to respect fundamental rights and procedural guarantees, breach of confidentiality of investigations, duration of investigations. (33) See the EO's Decision closing his inquiry into complaint 3072/2009/MHZ against the Commission, 5 April 2011, point 27. (34) See the Draft recommendation of the European Ombudsman in his own-initiative inquiry OI/5/2012/BEH-MHZ concerning the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX), 9 April 2013, point 79. (35) J.F.H. Inghelram, Judicial review of investigative acts of the European Anti-Fraud Office (OLAF): a search for balance, quoted above, p. 627. (36) See the Draft recommendation of the European Ombudsman in his own-initiative inquiry OI/5/2012/BEH-MHZ quoted above, point 47. (37) Article 41(1) of the Charter: ‘Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union’. (38) See the Commission's proposal quoted above. (39) This paper was adopted at the SC's plenary meeting on 8 October 2013 and transmitted to the three appointing Institutions on 24 October 2013. (40) See the Decision of 26 June 2008 of the EO on complaint 1354/2007/VIK against the European Economic and Social Committee, point 2.3: ‘it is good administrative practice that complaints against a Community official should normally not be answered by this very same official, but by the superior of this official or by another appropriate official/body’. (41) See Article 18 of the European Code of Good Administrative Behaviour. See also the Draft recommendation of the EO in the inquiry into complaint 1183/2012/MMN against OLAF, 15 November 2013. (42) See Article 17(1) of the European Code of Good Administrative Behaviour, which elucidates the ‘reasonable time’ requirement of the Charter by establishing a two months period from the date of receipt of a request or complaint. Article 17(2) allows for an extension of this period if it is justified by the ‘complexity of the matters which it raises’. The SC notes with interest the EO's statement that extension of the time limit within which an EU institution may deal with a complaint can be justified by the complexity of the issues raised, but not by an alleged lack of sufficient human resources or internal obstacles within its own services, since ‘in accordance with the principles of good administration, the EU institutions have the duty to ensure that they provide their various services with sufficient resources to fulfil the tasks which have been entrusted to them’ and to ‘structure their various services in a such a way as not to hinder the performance of the institution's duties, including in particular, the need to treat complaints by citizens within a reasonable time’ (see EO's Decision closing his inquiry into complaint 2288/2011/MMN against the European Investment Bank, 25 September 2013, pt. 28, 30). (43) This right may be limited by the need to respect the legitimate interests of confidentiality and of professional and business secrecy. (44) See also Article 13 of the European Code of Good Administrative Behaviour. (45) See, in this respect, the Decision of the EO on complaint 1512/2007/JMA against the European Commission, 5 June 2008. Article 19 of the European Code of Good Administrative Behaviour may also be relevant in this respect. (46) See the concerns expressed by civil society representatives with regard to the compatibility of the principle of independence with the fact that a person works in the interest of a specific entity (see the Draft recommendation of the European Ombudsman in his own-initiative inquiry OI/5/2012/BEH-MHZ quoted above, point 78). (47) Recital 40 of Regulation (EU, Euratom) No 883/2013. (48) As it was suggested by the Commission in its proposal of 17 March 2011, Article 7b.2. (49) Idem. See also Article 14 a) of the European Parliament legislative resolution of 20 November 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)