Council Regulation (Euratom) No 1074/1999 of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OCAF)
Date: 1999-05-25
Institutions: Council of the European Union
Subjects: Community budget, EU control, European Anti-fraud Office, corruption, data protection, exchange of information, fraud, fraud against the EU, research

L 136/8

EN

Official Journal of the European Communities

31. 5. 1999

COUNCIL REGULATION (EURATOM) No 1074/1999

of 25 May 1999

concerning investigations conducted by the European Anti-Fraud Office (OCAF)

THE COUNCIL OF THE EUROPEAN UNION,

given this Office full independence to exercise its
investigative function;

Having regard to the Treaty establishing the European
Atomic Energy Community, and in particular Article 203
thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Parlia-
ment (2),

Having regard to the opinion of the Court of Auditors (3),

to the Communities’

(1) Whereas the institutions and the Member States
attach great importance to the protection of the
Communities’ financial interests and to the fight
against fraud and any other illegal activities detri-
interests;
mental
whereas the Commission’s responsibility in that
connection is closely bound up with its duty to
implement the budget under Article 179 of the
Euratom Treaty; whereas the importance of action
to that end is confirmed by Article 183a of the
Euratom Treaty;

financial

(2) Whereas the protection of the Communities’ finan-
cial interests extends not only to the management
of budget appropriations but also to all measures
affecting or liable to affect their assets;

(3) Whereas all available means must be deployed fully
to attain this objective, notably in the context of
investigative
the
Community, while the current distribution and
balance of responsibilities as between the national
and Community levels should be maintained;

devolving

duties

upon

(4) Whereas

to reinforce the means available for
combating fraud, while respecting the principle of
each institution’s internal organisational autonomy,
the Commission has established among its own
departments by Decision 1999/352/EC, ECSC,
Euratom (4), a European Anti-Fraud Office (herein-
after ‘the Office') with responsibility for conducting
administrative fraud investigations; whereas it has

(1) OJ C 21, 26.1.1999, p. 10.
(2) Opinion delivered on 6 May 1999 (not yet published in the

(3) Opinion delivered on 15 April 1999 (not yet published in the

Official Journal).

Official Journal).

(4) See page 20 of this edition of the Official Journal

(5) Whereas the responsibility of the Office as set up
by the Commission extends beyond the protection
of financial interests to include all activities relating
to safeguarding Community interests against irreg-
ular conduct liable to result in administrative or
criminal proceedings;

(6) Whereas it is appropriate to provide that the Office
ensure cooperation between the Member States and
the Commission to protect
the Communities’
financial interests;

(7) Whereas, given the need to step up the fight
against fraud, corruption and any other illegal activ-
ities detrimental
financial
to the Communities’
interests,
the Office must be able to conduct
internal investigations in all the institutions, bodies
and offices and agencies established by or on the
basis of the EC and Euratom Treaties (hereinafter
‘the institutions, bodies, offices and agencies');

(8) Whereas Decision 1999/352/EC, ECSC, Euratom
provides that for the purposes of investigations the
Office shall exercise the powers conferred by the
Community legislator, subject to the limits and
conditions laid down thereby;

to protect

(9) Whereas the Office should be entrusted with the
exercise of the powers conferred on the Commis-
sion by Council Regulation (Euratom, EC) No
2185/96 of 11 November 1996 concerning on-the-
spot checks and inspections carried out by the
Commission in order
the European
Communities’ financial interests against fraud and
other irregularities (5); whereas the Office must also
be allowed to exercise the other powers conferred
on the Commission to conduct on-the-spot checks
and inspections in the Member States, notably for
the purpose of detecting irregularities as required
by Article 9 of Council Regulation (EC, Euratom)
No 2988/95 of 18 December 1995 on the protec-
tion of the European Communities’ financial inter-
ests (6);

(5) OJ L 292, 15.11.1996, p. 2.
(6) OJ L 312, 23.12.1995, p. 1.

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(10) Whereas these investigations must be conducted in
accordance with the Treaty and in particular with
the Protocol on the Privileges and Immunities of
the European Communities, while respecting the
Staff Regulations of Officials and the Conditions of
Employment of Other Servants of the Communi-
ties (hereinafter referred to as ‘the Staff Regula-
tions'), and with full respect for human rights and
fundamental freedoms, in particular the principle
of fairness, for the right of persons involved to
express their views on the facts concerning them
and for the principle that the conclusions of an
investigation may be based solely on elements
which have evidential value; whereas to that end
the institutions, bodies, offices and agencies must
lay down the terms and conditions under which
such internal investigations are conducted; whereas
consequently the Staff Regulations
should be
amended in order to lay down the rights and ob-
ligations of officials and other servants as regards
internal investigations;

(11) Whereas

these

internal

investigations

can be
conducted only if the Office is guaranteed access to
all premises of the institutions, bodies, offices and
agencies and to all
information and documents
held by them;

(12) Whereas to ensure that the Office is independent
in carrying out the tasks conferred on it by this
Regulation, its Director must be given the power to
open an investigation on his own initiative;

(13) Whereas it is for the competent national authorities
or the institutions, bodies, offices or agencies, as the
case may be, to decide what action should be taken
on completed investigations on the basis of the
report drawn up by the Office; whereas it should
nevertheless be incumbent upon the Director of
the Office to forward directly to the judicial author-
ities of the Member State concerned information
acquired by the Office in the course of internal
investigations concerning situations liable to result
in criminal proceedings;

(14) Whereas

the

terms

on which the Office’s
employees will discharge their duties and the terms
governing the Director’s exercise of his responsi-
investigations by the
bility for the conduct of
Office’s employees should be laid down;

(15) Whereas,

for the sake of successful cooperation
between the Office, the Member States and the
relevant institutions, bodies, offices and agencies,
the reciprocal exchange of information must be

organised, subject to rules of confidentiality where
information is subject to professional secrecy, while
ensuring that it enjoys the proper data protection;

(16) Whereas, to ensure that the findings of investiga-
tions conducted by the Office’s employees are
taken into account and that the requisite follow-up
action is taken, the reports should have the status
of admissible evidence in administrative and judi-
cial proceedings; whereas, to that end, they should
be drawn up in a manner compatible with the rules
governing administrative reports in the Member
States;

(17) Whereas the Office should enjoy independence in
the discharge of its function; whereas, to reinforce
that independence, the Office should be subject to
regular monitoring of its investigative function by a
Supervisory Committee, made up of outside inde-
pendent persons highly qualified in the Office’s
fields of activity; whereas the Committee’s duties
should also include assisting the Office’s Director
in discharging his responsibilities;

(18) Whereas administrative investigations should be
conducted under the authority of the Director of
the Office, in full independence from the institu-
tions, bodies, offices and agencies and from the
Supervisory Committee;

(19) Whereas it should be incumbent on the Director of
the Office to ensure the protection of personal data
and respect
information
for confidentiality of
gathered in the course of investigations; whereas
officials and other servants of the Communities
should be assured of legal protection equivalent to
that provided for by Articles 90 and 91 of the Staff
Regulations;

(20) Whereas the activities of

the Office should be

assessed after a three-year period;

to combat
financial

(21) Whereas this Regulation in no way diminishes the
powers and responsibilities of the Member States to
fraud affecting the
take measures
whereas
interests;
Communities’
entrusting to an independent Office the task of
conducting external administrative investigations in
this area is accordingly in full compliance with the
subsidiarity principle; whereas the operation of the
Office is likely to step up the fight against fraud,
corruption and any other illegal activities affecting
the Communities’ financial interests and is there-
fore compatible with the proportionality principle,

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HAS ADOPTED THIS REGULATION:

ities under investigation. These investigations shall not
affect the powers of the Member States to bring criminal
proceedings.

Article 1

Objectives and tasks

In order to step up the fight against fraud, corrup-
1.
tion and any other illegal activity affecting the financial
interests of the European Atomic Energy Community, the
European Anti-Fraud Office established by Commission
Decision (1999/352/EC, ECSC, Euratom) (hereinafter ‘the
investigation
Office'
conferred on the Commission by the Community rules
and regulations and agreements in force in those areas.

the powers of

exercise

shall

The Office shall provide the Member States with
2.
assistance from the Commission in organising close and
regular cooperation between their competent authorities
in order to coordinate their activities for the purpose of
protecting the European Atomic Energy Community’s
financial interests against fraud. The Office shall contrib-
ute to the design and development of methods of fighting
fraud and any other illegal activity affecting the financial
interests of the European Atomic Energy Community.

3. Within the institutions, bodies, offices and agencies
established by, or on the basis of, the Treaties (hereinafter
‘the institutions, bodies, offices and agencies'), the Office
shall
the
purpose of:

administrative

investigations

conduct

for

(cid:190) fighfing fraud, corruption and any other illegal activity
the European

interests of

affecting the financial
Atomic Energy Community,

(cid:190) investigating to that end serious matters relating to the
discharge of professional duties such as to constitute a
dereliction of the obligations of officials and other
servants of the Communities liable to result in dis-
ciplinary or, as the case may be, criminal proceedings,
or an equivalent failure to discharge obligations on
the part of members of institutions and bodies, heads
of offices and agencies or members of the staff of
institutions, bodies, offices or agencies not subject to
the Staff Regulations of Officials and the Conditions
of Employment of Other Servants of the European
Communities (‘the Staff Regulations').

Article 2

Administrative investigations

Within the meaning of this Regulation,
‘administrative
investigations' (hereinafter ‘investigations') shall mean all
inspections, checks and other measures undertaken by
their
employees of
duties, in accordance with Articles 3 and 4, with a view to
achieving the objectives set out in Article 1 and to estab-
lishing, where necessary, the irregular nature of the activ-

the Office in the performance of

Article 3

External investigations

The Office shall exercise the power conferred on the
Commission by Council Regulation (Euratom, EC) No
2185/96 to carry out on-the-spot inspections and checks
in accordance with the
in the Member States and,
cooperation agreements in force, in third countries.

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

Article 4

Internal investigations

1.
In the areas referred to in Article 1, the Office shall
carry out administrative investigations within the institu-
tions, bodies, offices and agencies (hereinafter ‘internal
investigations').

These internal investigations shall be carried out subject
to the rules of the Treaties, in particular the Protocol on
Privileges and Immunities of the European Communities,
and with due regard for the Staff Regulations under the
conditions
and in accordance with the procedures
provided for in this Regulation and in decisions adopted
by each institution, body, office and agency. The institu-
tions shall consult each other on the rules to be laid down
by such decisions.

Provided that the provisions referred to in paragraph

2.
1 are complied with:

(cid:190) the Office shall have the right of

immediate and
unannounced access to any information held by the
institutions, bodies, offices and agencies, and to their
premises. The Office shall be empowered to inspect
the accounts of the institutions, bodies, offices and
agencies. The Office may take a copy and obtain
extracts from any document or the contents of any
data medium held by the institutions, bodies, offices
and agencies and, if necessary, assume custody of such
documents or information to ensure that there is no
danger of their disappearing,

information from
(cid:190) the Office may request oral
members of
from
and bodies,
institutions
managers of offices and agencies and from the staff of
the institutions, bodies, offices and agencies.

the

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Under the conditions and in accordance with the
3.
procedures laid down by Council Regulation (Euratom,
EC) No 2185/96, the Office may carry out on-the-spot
the premises of economic operators
inspections
to obtain access to information
concerned,
relating to possible irregularities which such operators
might hold.

at
in order

The Office may, moreover, ask any person concerned to
supply such information as it may consider pertinent to
its investigations.

4.
The institutions, bodies, offices and agencies shall be
informed whenever employees of the Office conduct an
investigation on their premises or consult a document or
request
information held by such institutions, bodies,
offices and agencies.

investigations

5. Where
a member,
manager, official or other servant may be personally
involved, the institution, body, office or agency to which
he belongs shall be informed.

reveal

that

In cases requiring absolute secrecy for the purposes of the
investigation or requiring recourse to means of invest-
igation falling within the competence of a national judi-
cial authority, the provision of such information may be
deferred.

6. Without prejudice to the rules laid down by the
in particular the Protocol on Privileges and
Treaties,
Immunities of the European Communities, and to the
provisions of the Staff Regulations, the decision to be
adopted by each institution or body, as provided for in
paragraph 1, shall in particular include rules concerning:

(a) a duty on the part of members, officials and other
servants of the institutions and bodies, and managers,
officials and other servants of offices and agencies, to
cooperate with and supply information to the Office’s
employees;

(b) the procedures

to be observed by the Office’s
employees when conducting internal
investigations
and the guarantees of the rights of persons concerned
by an internal investigation.

Article 5

Opening of investigations

External investigations shall be opened by a decision of
the Director of the Office, acting on his own initiative or
following a request from a Member State concerned.

Internal investigations shall be opened by a decision of
the Director of the Office, acting on his own initiative or
following a request from the institution, body, office or
agency within which the investigation is to be conducted.

Article 6

Investigations procedure

The Director of the Office shall direct the conduct

1.
of investigations.

2.
The Office’s employees shall carry out their tasks on
production of a written authorisation showing their iden-
tity and their capacity.

3.
The Office’s employees shall be equipped for each
intervention with a written authority issued by the
Director indicating the subject matter of the investigation.

inspections and checks,

4. During on-the-spot
the
Office’s employees shall adopt an attitude in keeping with
the rules and practices governing officials of the Member
State concerned, with the Staff Regulations and with the
decisions referred to in the second subparagraph of
Article 4(1).

Investigations shall be conducted continuously over
5.
a period which must be proportionate to the circum-
stances and complexity of the case.

that

shall

States

ensure

The Member

their
6.
competent authorities, in conformity with national provi-
sions, give the necessary support to enable the Office’s
employees to fulfil their task. The institutions and bodies
shall ensure that their members and staff afford the neces-
sary assistance to enable the Office’s agents to fulfil their
task;
their
the offices and agencies shall ensure that
managers and staff do likewise.

Article 7

Duty to inform the Office

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

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

Member States shall forward the documents and informa-
tion relating to external investigations in accordance with
the relevant provisions.

3.
The institutions, bodies, offices and agencies, and,
insofar as national law allows, the Member States shall
also send the Office any other document or information
considered pertinent which they hold relating to the fight
against fraud, corruption and any other illegal activity
affecting the Communities’ financial interests.

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Article 8

Confidentiality and data protection

Information obtained in the course of external
1.
investigations, in whatever form, shall be protected by the
relevant provisions.

Information forwarded or obtained in the course of
2.
internal investigations, in whatever form, shall be subject
to professional secrecy and shall enjoy the protection
given by the provisions applicable to the institutions of
the European Communities.

Such information may not be communicated to persons
other than those within the institutions of the European
Communities or in the Member States whose functions
require them to know, nor may it be used for purposes
other than to prevent
fraud, corruption or any other
illegal activity.

that

shall

ensure

The Director

3.
the Office’s
employees and the other persons acting under his
authority observe the Community and national provisions
on the protection of personal data, in particular those
provided for in Directive 95/46/EC of
the European
Parliament and of the Council of 24 October 1995 on the
protection of individuals with regard to the processing of
personal data and on the free movement of such data (1).

4.
The Director of the Office and the members of the
Supervisory Committee referred to in Article 11 shall
ensure that this Article and Article 194 of the Treaty are
applied.

Article 9

Investigation report and action taken following
investigations

1. On completion of an investigation carried out by the
Office,
the latter shall draw up a report, under the
authority of the Director, specifying the facts established,
the financial loss, if any, and the findings of the invest-
igation, including the recommendations of the Director
of the Office on the action that should be taken.

2.
In drawing up such reports, account shall be taken
of the procedural requirements laid down in the national
law of the Member State concerned. Reports drawn up on
that basis shall constitute admissible evidence in adminis-
trative or judicial proceedings of the Member State in
which their use proves necessary, in the same way and
under
the same conditions as administrative reports
drawn up by national administrative inspectors. They
shall be subject to the same evaluation rules as those
applicable to administrative reports drawn up by national
administrative inspectors and shall be of identical value to
such reports.

(1) OJ L 281, 23.11.1995, p. 31.

Reports drawn up following an external

invest-
3.
igation and any useful related documents shall be sent to
the competent authorities of the Member States in ques-
tion in accordance with the rules relating to external
investigations.

4.
Reports drawn up following an internal investigation
and any useful related documents shall be sent to the
institution, body, office or agency concerned. The institu-
tion, body, office or agency shall take such action, in
particular disciplinary or legal, on the internal investiga-
tions, as the results of those investigations warrant, and
shall report thereon to the Director of the Office, within a
deadline laid down by him in the findings of his report.

Article 10

Forwarding of information by the Office

1. Without prejudice to Articles 8, 9 and 11 of this
Regulation and to the provisions of Council Regulation
(Euratom, EC) No 2185/96, the Office may at any time
forward to the competent authorities of
the Member
States concerned information obtained in the course of
external investigations.

2. Without prejudice to Articles 8, 9 and 11 of this
Regulation, the Director of the Office shall forward to the
judicial authorities of the Member State concerned the
information obtained by the Office during internal invest-
igations into matters liable to result in criminal proceed-
ings. Subject to the requirements of the investigation, he
shall simultaneously inform the Member State concerned.

3. Without prejudice to Articles 8 and 9 of this Regula-
tion, the Office may at any time forward to the institu-
tion, body, office or agency concerned the information
obtained in the course of internal investigations.

Article 11

Supervisory Committee

The Supervisory Committee shall

1.
Office’s
implementation of the investigative function.

independence by regular monitoring of

reinforce the
the

At the request of the Director or on its own initiative, the
Committee
to the Director
concerning the activities of the Office, without however
interfering with the conduct of investigations in progress.

shall deliver opinions

It shall be composed of five independent outside
2.
persons who possess
required for
appointment in their respective countries to senior posts
relating to the Office’s areas of activity. They shall be
appointed by common accord of the European Parlia-
ment, the Council and the Commission.

the qualifications

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The term of office of members shall be three years

3.
and shall be renewable once.

4. On expiry of their term of office, members shall
remain in office until their appointments are renewed or
until they are replaced.

opening and carrying out of external and internal invest-
igations or to the drafting of reports following such
investigations. If the Director considers that a measure
taken by the Commission calls his independence into
question, he shall be entitled to bring an action against
his institution before the Court of Justice.

5.
In carrying out their duties, they shall neither seek
nor take instructions from any government or any institu-
tion, body, office or agency.

The Supervisory Committee

6.
its
Chairman. It shall adopt its own rules of procedure. It
shall hold at least ten meetings per year. It shall take its
decisions by a majority of its members. Its secretariat shall
be provided by the Office.

appoint

shall

shall

The Director

forward to the Supervisory
7.
Committee each year the Office’s programme of activities
referred to in Article 1 of this Regulation. The Director
shall keep the Committee regularly informed of
the
Office’s activities, its investigations, the results thereof and
the action taken on them. 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 invest-
igation, and of the expected time for completion. The
Director shall inform the Committee of cases where the
institution, body, office or agency concerned has failed to
act on the recommendations made by it. The Director
shall inform the Committee of cases requiring informa-
tion to be forwarded to the judicial authorities of a
Member State.

report

The Director shall
regularly to the European
Parliament, the Council, the Commission and the Court
of Auditors on the findings of investigations carried out
by the Office, whilst respecting the confidentiality of
those investigations, the legitimate rights of the persons
concerned and, where appropriate, national provisions
applicable to judicial proceedings.

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

together with the legitimate rights of

Before adopting any disciplinary sanction against
4.
the Director, the Commission shall consult the Super-
visory Committee. In addition, measures relating to disci-
plinary sanctions against the director must be the subject
of reasoned decisions, which shall be forwarded for in-
formation to the European Parliament and to the Council.

Article 13

Financing

8.
The Supervisory Committee shall adopt at least one
report on its activities per year which it shall send to the
institutions. The Committee may submit reports to the
European Parliament, the Council, the Commission and
the court of Auditors on the results of the Office’s invest-
igations and the action taken thereon.

Article 12

Director

1.
The Office shall be headed by a Director nominated
by the Commission for a term of five years, which may be
renewed once.

2. With a view to appointing the Director,
the
Commission shall, following a call for applications which
shall, if appropriate, be published in the Official Journal
of the European Communities and after a favourable
opinion has been given by the Supervisory Committee,
draw up a list of suitably qualified candidates. After
consultations with the European Parliament and the
Council, the Commission shall appoint the Director.

The appropriations for the Office, the total amount of
which shall be entered under a special budget heading
within Part A of the section of the general budget of the
Union relating to the Commission, shall be set out in
detail in an Annex to that Part.

The posts allocated to the Office shall be listed in an
Annex to the Commission’s establishment plan.

Article 14

Judicial review

Pending amendment of the Staff Regulations, any official
or other servant of
the European Communities may
submit to the Director of the Office a complaint by virtue
of
this Article against an act adversely affecting him
committed by the Office as part of an internal invest-
igation, in accordance with the procedures laid down in
Article 90(2) of the Staff Regulations. Article 91 of the
Staff Regulations shall apply to decisions taken with
regard to such complaints.

3.
The Director shall neither seek nor take instructions
from any government or any institution, body, office or
agency in the performance of his duties with regard to the

The above provisions shall apply by analogy to the staff of
the institutions, bodies, offices and agencies which are not
subject to the Staff Regulations.

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Article 15

Progress report

During the third year following the entry into force of this Regulation, the Commission
shall transmit to the European Parliament and the Council a progress report on the
Office’s activities, accompanied by the Supervisory Committee’s opinion, together, where
appropriate, with proposals to modify or extend the Office’s tasks.

Article 16

Entry into force

This Regulation shall enter into force on 1 June 1999.

This Regulation shall be binding in its entirety and directly applicable in all Member
States.

Done at Brussels, 25 May 1999.

For the Council

The President

H. EICHEL