2004/26/: Decision No 26/2004 of the Committee of the Regions of 10 February 2004 relating to the conditions and procedures for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities' interests
Date: 2004-02-10
Institutions: European Committee of the Regions
Subjects: EU control, corruption, duties of civil servants, fraud, fraud against the EU

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Official Journal of the European Union

7.4.2004

COMMITTEE OF THE REGIONS

DECISION No 26/2004 OF THE COMMITTEE OF THE REGIONS

of 10 February 2004

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

THE BUREAU OF THE COMMITTEE OF THE REGIONS,

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

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

and 17, first paragraph, of the Staff Regulations of the Euro-
pean Communities (hereinafter the Staff Regulations), detri-
mental to the interests of those Communities and liable to
result in disciplinary or, where appropriate, criminal proceed-
ings, 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 Commu-
nities not subject to the Staff Regulations;

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

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

in all

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

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

Whereas the scope of the fight against fraud should be broa-
dened by exploiting existing expertise in the area of administra-
tive investigations;

therefore, on the basis of

their administrative
Whereas
autonomy, all the institutions, bodies and offices and agencies
should entrust to the Office the task of conducting internal
administrative investigations with a view to bringing to light
serious situations relating to the discharge of professional
duties which may constitute a failure to comply with the obli-
gations of officials and servants of the Communities, as referred
to in Articles 11, 12, second and third paragraphs, 13, 14, 16

(1) OJ L 136, 31.5.1999, p. 20.
(2) OJ L 136, 31.5.1999, p. 1.
(3) OJ L 136, 31.5.1999, p. 15.

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

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

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

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investigations; whereas

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

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

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

the Bureau of

HAS DECIDED AS FOLLOWS:

Article 1

Duty to cooperate with the Office

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

in particular

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

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

Article 3

Assistance from the Security Office

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

Article 4

Informing the interested party

the possible personal

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

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

compliance with the obligation to invite

Article 2

Article 5

Duty to supply information

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

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

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

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

from a national police or

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

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Article 7

Final provision

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

This Decision shall take effect on 1 March 2004.

Done at Brussels, 10 February 2004.

For the Bureau of the Committee of the Regions

The President

Albert BORE