1999/394/EC, Euratom: Council Decision of 25 May 1999 concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities' interests
Date: 1999-05-25
Institutions: Council of the European Union
Subjects: EU control, corruption, duties of civil servants, fact-finding mission, fraud, fraud against the EU

L 149/36

EN

Official Journal of the European Communities

16. 6. 1999

II

(Acts whose publication is not obligatory)

COUNCIL

COUNCIL DECISION

of 25 May 1999

concerning the terms and conditions for internal investigations in relation to the
prevention of fraud, corruption and any illegal activity detrimental to the
Communities’ interests

(1999/394/EC, Euratom)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community, and in particular Article 207(3) thereof,

Having regard to the Treaty establishing the European
Atomic Energy Community, and in particular Article
121(3) thereof,

Having regard to the Council’s Rules of Procedure, and in
particular Article 21(2) thereof,

(1) Whereas Regulation (EC) No 1073/1999 of

the
European Parliament and of the Council of 25 May
1999 (1) and Council Regulation (Euratom) No
1074/1999 of 25 May 1999 (2) concerning investiga-
tions conducted by the European Anti-Fraud
Office (OLAF) provide that the Office is to initiate
and conduct administrative investigations within
the institutions, bodies, offices and agencies estab-
lished by or on the basis of the EC or Euratom
Treaties;

(2) Whereas the responsibility of the European Anti-
Fraud Office as established by the Commission
extends beyond the protection of financial interests
to include all activities by the Office relating to the

(1) OJ L 136, 31.5.1999, p. 1.
(2) OJ L 136, 31.5.1999, p. 8.

need to safeguard Community interests against
irregular conduct liable to give rise to adminis-
trative or criminal proceedings;

(3) Whereas the scope of the fight against fraud should
be broadened and its effectiveness enhanced by
exploiting existing expertise in the area of adminis-
trative investigations;

situations

(4) Whereas therefore, on the basis of their adminis-
trative autonomy, all the institutions, bodies and
offices and agencies should entrust to the Office
the task of conducting internal administrative
investigations with a view to bringing to light
serious
relating to the discharge of
professional duties which may constitute a failure
to comply with the obligations of officials and
the Communities, as referred to in
servants of
Articles 11, 12, second and third paragraphs, 13, 14,
16 and 17, first paragraph, of the Staff Regulations
of Officials and the Conditions of Employment of
the European Communities
Other Servants of
(hereinafter ‘the Staff Regulations'), detrimental to
the interests of those Communities and liable to
result in disciplinary or, where appropriate, crim-
inal proceedings, or serious misconduct, as referred
to in Article 22 of the Staff Regulations, or a failure
to comply with the analogous obligations of the
Members, managers or members of staff of the
institutions, bodies, offices and agencies of
the
Communities not subject to the Staff Regulations
or a failure to comply with the obligations imposed
by Community Law on Members of the Council
and of its bodies in the context of the professional
duties they perform in that capacity;

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

(6) Whereas, pending the amendment of

the Staff
Regulations, practical arrangements should be laid
down stipulating how the Members of the insti-
tutions and bodies, the managers of the offices and
agencies and the officials and servants of the insti-
tutions, bodies and offices and agencies are to
cooperate in the smooth operation of the internal
investigations;

(7) Whereas Regulation (EC) No 1073/1999 and Regu-
lation (Euratom) No 1074/1999 provide, in Article
4(6), that each institution, body, office and agency
is to adopt a deicison which shall
in particular
include rules concerning a duty on the part of
Members, managers, officials and other servants of
the institutions, bodies, offices and agencies to
cooperate with and supply information to the
Office’s employees, the procedures to be observed
by
employees when conducting
internal investigations and guarantees of the rights
of persons concerned by an internal investigation;

the Office’s

(8) Whereas the Interinstitutional Agreement of 25
May 1999 between the European Parliament, the
Council of the European Union of the Commis-
sion the European Community concerning internal
investigations by the European Anti-Fraud Office
(OLAF) (1) commits the signatory institutions, and
the institutions, bodies, offices and agencies which
accede to the Agreement, to adopting an internal
decision in accordance with the model attached to
the Agreement and not to deviate from that model
save where their own particular requirements make
such deviation a technical necessity;

(9) Whereas

there are no particular

requirements
which make it a technical necessity to deviate from
the model decision in respect of the officials and
other servants of the General Secretariat of the
Council
(hereinafter referred to as the ‘General
Secretariat');

(10) Whereas the Council should confer on the Office
the task of undertaking within it administrative
enquiries for the purpose of investigating serious
situations which could constitute failure to comply
with obligations imposed by Community law on
persons who are Members of the Council and its

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

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

only

administrative

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

the Protocol on privileges

the

(12) Whereas such investigations are to be conducted in
accordance with the terms and conditions laid
the European
down by
Community and the European Atomic Energy
Community; whereas
those regulations do not
however confer on the Office any right of access to
the buidlings occupied by the Member States, in
particular their permanent representations;

regulations

of

(13) Whereas the internal decision provided for in the
Interinstitutional Agreement is strictly limited to
defining the duty to cooperate with the Office and
to supply it with information, the duty on the part
of
the Office’s
employees and the reciprocal duty on the part of
the Office to inform the persons against whom
allegations have been made as a result of one of its
investigations,

the Security Office to assist

HAS DECIDED AS FOLLOWS:

Article 1

Duty to cooperate with the Office

The Secretary-General, the services and any official or
servant of the General Secretariat shall be required to
cooperate fully with the Office’s employees and to lend
any assistance required to the investigation. With that aim
in view, they shall supply the Office’s employees with all
useful information and explanations.

Without prejudice to the relevant provisons of
the
in
Treaties establishing the European Communities,
particular the Protocol on privileges and immunities, and
the texts implementing them, Members of the Council,
and of its bodies, shall cooperate fully with the Office.

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Article 2

Duty to supply information

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

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

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

Members of the Council and Permanent Representatives
who acquire knowledge of facts as referred to in the first
paragraph shall inform the President of the Council or, if
they consider it useful, the Office directly. Delegates of
the Member States who acquire knowledge of facts as
referred to in the first paragraph shall inform the Perma-
nent Representative of their Member State.

Article 3

Assistance from the Security Office

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

party shall be informed rapidly provided that this does
not jeopardise the investigation. In any event, conclusions
referring by name to one of those persons may not be
drawn once the investigation has been completed without
the interested party having been enabled to express his
views on all the facts which concern him.

In cases necessitating the maintenance of absolute secrecy
for the purposes of the investigation and requiring the use
of investigative procedures falling within the remit of a
national judicial authority, compliance with the obligation
to invite the person concerned to give his views may be
deferred in agreement with the President of the Council
or the Secretary-General as appropriate.

Article 5

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

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

Article 6

Waiver of immunity

Any request from a national police or judicial authority
regarding the waiver of immunity from judicial proceed-
ings of an official or servant of the General Secretariat
fraud, corruption or any
concerning possible cases of
other illegal activity shall be transmitted to the Director
of the Office for his opinion. If a request for a waiver of
immunity concerns a Member of the Council or one of its
bodies the Office shall be informed.

Article 7

Effective date

This Decision shall take effect on 1 June 1999.

Article 4

Done at Brussels, 25 May 1999.

Informing the interested party

Where the possible personal implication of a Member of
the Council or one of its bodies, or of an official or
servant of the General Secretariat emerges, the interested

For the Council

The President

H. EICHEL