EN Official Journal of the European Union C 383/1

OPINION No 8/2012

on the proposal for a Directive of the European Parliament and of the Council on the fight against fraud to the Union’s financial interests by means of criminal law

(pursuant to Article 325 of the Treaty on the Functioning of the European Union)

2012/C 383/01

TABLE OF CONTENTS

Paragraph Page Introduction… 1 - 5 1 The notion of ‘Union’s financial interests’ needs to be clarified… 6 - 9 1 - 2

THE COURT OF AUDITORS OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 325(4) thereof,

Having regard to the proposal by the European Commission (1),

Having regard to the Council’s request for an Opinion on the abovementioned proposal, received by the Court on 12 September 2012,

HAS ADOPTED THE FOLLOWING OPINION:

INTRODUCTION

1. In order to attain its objectives and carry through its policies, the European Union (EU) provides itself with the necessary means (see Article 311 of the Treaty on the Functioning of the European Union (TFEU)). Without appropriate financial resources, the EU is not able to achieve its goals.

2. The EU has adopted several pieces of legislation over time with a view to protecting its financial interests.

3. Article 325(4) TFEU empowers the European Parliament and the Council to adopt necessary measures in the fields of the prevention of and the fight against fraud affecting the Union’s financial interests.

4. The Commission proposal is that the Convention on the protection of the European Communities’ financial interests and the Protocols thereto (2) should be repealed. It supersedes an earlier Commission proposal (3).

5. The Court welcomes the Commission’s proposal that an equivalent and effective protection of the European Union’s financial interests should be established throughout the Member States in order to reduce or prevent the loss of EU public money and thus ensure legitimate implementation of the budget.

THE NOTION OF ‘UNION’S FINANCIAL INTERESTS’ NEEDS TO BE CLARIFIED

6. As recommended in previous opinions (4), the Court considers that the concept of the ‘Union’s financial interests’, which is central to all legislation relating to the fight against fraud, should be clearly defined. The Court therefore welcomes the Commission’s proposal to introduce such a definition.

7. The Court notes that the definition given in Article 2 of the proposal refers exclusively to revenue and expenditure covered by, acquired through or due to the Union budget or the budgets of institutions, bodies, offices and agencies established under the Treaties or budgets managed and monitored by them. However, the term ‘budget’ is not appropriate either in the case of the European Central Bank, the European Investment Bank and the European Investment Fund, or in the cases of the European Bank for Reconstruction and Development and the European Stability Mechanism. Their operations are of evident financial interest to the European Union but are mostly financed by their own capital or through income earned through their activities, for instance borrowing and lending. The definition should therefore be clarified in order to reflect the fact that the Union’s financial interests relate to all assets and liabilities managed by or on behalf of the Union and its institutions, and to all its financial operations, including borrowing and lending activities.

8. The Court notes that value added tax (VAT) fraud is covered by the proposed directive and agrees that this type of fraud can affect the Union’s financial interests, although the greatest impact is on the Member States where the fraud is carried out. As this type of fraud often has a cross-border dimension, it cannot be tackled at national level alone. An effective fight against VAT fraud thus requires efficient cooperation between Member States (5).

9. Lastly, the Court notes that Article 4 of the proposal deals with a number of fraud related criminal offences affecting the Union’s financial interests. With regard to the definition of corruption in the proposed Article 4(3), the Court recommends clarification that the corruption of officials, who are paid by the EU institutions, is automatically contrary to the Union’s financial interests (6).

This Opinion was adopted by the Court of Auditors in Luxembourg at its meeting of 15 November 2012. For the Court of Auditors Vítor Manuel da SILVA CALDEIRA President

(1) COM(2012) 363 final of 11 July 2012.

(2) OJ C 316, 27.11.1995, p. 49.

(3) COM(2001) 272 final of 23 May 2001, modified by COM(2002) 577 final of 16 October 2002. The proposal was never formally adopted.

(4) See paragraph 12 of Opinion No 6/2011 (OJ C 254, 30.8.2011, p. 1) and paragraph 38 of Opinion No 8/2005 (OJ C 313, 9.12.2005, p. 1).

(5) See Special Report No 8/2007 concerning administrative cooperation in the field of value added tax (OJ C 20, 25.1.2008, p. 1).

(6) See also the Court’s modified proposal of Article 4 in Opinion No 9/2001 (OJ C 14, 17.1.2002, p. 1) to Commission proposal COM(2001) 272 of 23 May 2001.