2004/525/EC:Decision of the European Central Bank of 3 June 2004 concerning the terms and conditions for European Anti-Fraud Office investigations of the European Central Bank, in relation to the prevention of fraud, corruption and any other illegal activities detrimental to the European Communities’ financial interests and amending the Conditions of Employment for Staff of the European Central Bank (ECB/2004/11)
Date: 2004-06-03
Institutions: European Central Bank
Subjects: European Anti-fraud Office, European Central Bank, corruption, fraud against the EU, personnel administration

L 230/56

EN

Official Journal of the European Union

30.6.2004

EUROPEAN CENTRAL BANK

DECISION OF THE EUROPEAN CENTRAL BANK

of 3 June 2004

concerning the terms and conditions for European Anti-Fraud Office investigations of the European
Central Bank, in relation to the prevention of fraud, corruption and any other illegal activities
detrimental to the European Communities’ financial
interests and amending the Conditions of

Employment for Staff of the European Central Bank

(ECB/2004/11)

(2004/525/EC)

THE GOVERNING COUNCIL OF THE EUROPEAN CENTRAL BANK,

Whereas:

(1)

(2)

Having regard to the Treaty
Community,

establishing the European

the
Having regard to Regulation (EC) No 1073/1999 of
European Parliament and of
the Council of 25 May 1999
concerning investigations conducted by the European Anti-
Fraud Office (OLAF) (1), and in particular Article 4(1) and 4(6)
thereof,

Having regard to the Statute of the European System of Central
Banks and of the European Central Bank, and in particular
Article 12.3 and Article 36.1 thereof,

Having regard to the contribution of the General Council of the
European Central Bank (ECB) in accordance with the fifth indent
of Article 47.2 of the Statute,

Having regard to the opinion of the Staff Committee of the
ECB,

that

Regulation (EC) No 1073/1999 (hereinafter the OLAF
Regulation) provides
the European Anti-Fraud
Office (hereinafter the Office) is to initiate and conduct
administrative fraud investigations (hereinafter internal
investigations) within the institutions, bodies, offices
and agencies established by or on the basis of the EC
and Euratom Treaties for the purpose of fighting fraud,
corruption and any other illegal activities detrimental to
the European Communities’ financial interests. Pursuant
investigations may
to the OLAF Regulation,
concern serious matters relating to the discharge of
professional duties such as to constitute a dereliction of
the obligations of members of the staff of such insti-
tutions, bodies, offices and agencies liable to result in
disciplinary 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 insti-
tutions, bodies, offices or agencies not subject to the
Staff Regulations of officials and the Conditions of
employment of other servants of the European Commu-
nities (hereinafter the Staff Regulations).

internal

secrecy, are laid down in (a)
for Staff of

For the ECB such professional duties and obligations, in
particular the obligations relating to professional conduct
the
and professional
Conditions of Employment
the European
Central Bank, and (b) the European Central Bank Staff
Rules, and (c) Annex I to the Conditions of Employment
concerning the Conditions of Short-term Employment,
and (d)
the European Central Bank Rules for Short-
term Employment; and further guidance is given in (e)
the Code of Conduct of the European Central Bank (2),
and (f) the Code of Conduct for the members of the
Governing Council (3)
(together referred to hereinafter
as the ECB conditions of employment).

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

(2) OJ C 76, 8.3.2001, p. 12.
(3) OJ C 123, 24.5.2002, p. 9.

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Official Journal of the European Union

L 230/57

(3)

(4)

(5)

‘shall

financial

interests,

The OLAF Regulation provides in Article 4(1) that in
the European Communities’
relation to protecting
interests and fighting fraud and any other
financial
to the European Commu-
illegal activities detrimental
the Office ‘shall carry out
nities’
administrative
institutions,
investigations within the
bodies, offices and agencies’; and in Article 4(6) that
each institution, body, office and agency is to adopt a
decision which
rules
concerning: (a) a duty on the part of members, officials
and other servants of the institutions and bodies, and
managers, officials and servants of offices and agencies,
to cooperate with and supply information to the Office’s
the procedures to be observed by the
servants;
Office’s employees when conducting internal
investi-
the rights of persons
gations and the guarantees of
concerned by an internal
In accordance
with Community case-law, the Office may open an inves-
sufficiently serious
tigation only on the basis of
suspicions (1).

investigation’.

in particular

include

(b)

the Treaties,

investigations

The OLAF Regulation provides (second paragraph of
should be
internal
Article 4(1))
that
conducted subject
in
to the rules of
particular the Protocol on privileges and immunities of
the European Communities, and with due regard for the
Staff Regulations. Internal investigations by the Office are
also subject to Article 6(2) of the Treaty on European
Union and to other principles and fundamental rights
common to the Member States and recognised by the
Court of Justice, such as, for instance, the confidentiality
of legal advice (legal privilege).

it

Internal investigations are carried out in accordance with
the procedures set out in the OLAF Regulation and in
decisions adopted by each institution, body, office or
agency to implement it. In adopting this implementing
is incumbent on the ECB to justify any
decision,
restrictions on internal
the
investigations
specific tasks and duties entrusted to the ECB by
Articles 105 and 106 of the Treaty. Such restrictions
the confidentiality
should ensure, on the one hand,
necessary for certain ECB information and, on the
other hand, implement the legislator’s intention of rein-
forcing the fight against
fraud. Other than for these
specific tasks and duties the ECB should be treated,
the present decision, as a
also for
public entity similar to other Community institutions
and bodies.

the purpose of

affecting

(6)

In exceptional cases, the circulation outside the ECB of
some of the confidential information held by the ECB to
perform its tasks could seriously undermine the ECB’s
functioning. In such cases, the decision on granting the
Office access to information or transmitting information

(1) Case C-11/00 Commission of

the European Communities v

European Central Bank, [2003] ECR I-7147.

to it will be taken by the Executive Board. Access will be
granted to information that is more than one year old in
areas such as monetary policy decisions, or operations
related to the management of foreign reserves and inter-
ventions on foreign exchange markets. Restrictions in
other areas such as data received from prudential super-
visors regarding the stability of the financial system or
individual credit institutions and information regarding
the security features and technical
specifications of
current and future euro banknotes do not have a
temporary limit. Although such information, the circu-
lation of which outside
the ECB could seriously
undermine the ECB’s functioning, has been circumscribed
in this Decision to specific areas of activity, it is necessary
to provide for the possibility of adapting the Decision to
any unforeseen developments to ensure that the ECB
continues to fulfil the tasks assigned to it by the Treaty.

(7)

(8)

(9)

that

the fact

This Decision takes
the
into account
members of the ECB’s Governing and General Councils
who are not also members of the ECB’s Executive Board
exercise,
in addition to their ESCB functions, national
functions. Exercising such national functions is a matter
law which falls outside the scope of the
for national
internal
the Office. This Decision
therefore applies only to the professional activities of
such persons undertaken in their capacity as members
the ECB’s governing bodies. To the extent
of
that
members of
are potentially
the General Council
concerned by internal
investigations of the Office, this
Decision has been drawn up with the benefit of contri-
butions received from such members.

investigations of

Article 38.1 of the Statute provides that members of the
governing bodies and the staff of the ECB are required,
even after their duties have ceased, not to disclose infor-
mation of the kind covered by the obligation of profes-
sional secrecy. Under Article 8 of the OLAF Regulation,
the Office and its employees are subject to the same
conditions of confidentiality and professional secrecy as
those applying to ECB staff under the Statute and the
ECB conditions of employment.

Under Article 6(6) of the OLAF Regulation, the national
competent authorities support the Office in its investi-
gations of
the ECB in conformity with national
provisions. The Government of the Federal Republic of
Germany and the ECB are signatories to a Headquarters
dated 18 September 1998 (2), which
Agreement,
implements the Protocol on the privileges and immu-
nities of the European Communities in respect of the
ECB and contains provisions regarding the inviolability
of the ECB’s premises, archives, communications, and on
the diplomatic privileges and immunities of the members
of the ECB’s Executive Board.

(2) Federal Official

Journal
27.10.1998 and No 12, 1999 of 6.5.1999.

(Bundesgesetzblatt) No 45, 1998 of

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(10)

to Article 14 of

the OLAF Regulation, any
Pursuant
official or other servant of the European Communities
may submit to the Director of the Office a complaint
against an act adversely affecting them committed by the
Office as part of an internal investigation, in accordance
with the procedures laid down in Article 90(2) of the
Staff Regulations. By analogy the same procedures should
apply to complaints submitted to the Director of the
Office by ECB employees or members of an ECB
decision-making body and Article 91 of the Staff Regu-
lations should apply to decisions taken regarding such
complaints,

HAS DECIDED AS FOLLOWS:

Article 1

Scope of application

This Decision applies to:

Article 3

Duty to report any information about illegal activity

1.
ECB employees who become aware of evidence which
gives rise to a presumption of the existence of possible cases
of fraud, corruption or any other illegal activity affecting the
European Communities’ financial interests, or of serious matters
affecting such financial interests and relating to the discharge of
professional duties such as to constitute a dereliction of the
obligations of an ECB employee or of a participant
in the
decision-making bodies,
liable to result in disciplinary or, as
the case may be, criminal proceedings, shall without delay
provide either the Director Internal Audit, the senior manager
in charge of their business area, or the member of the Executive
Board who is primarily responsible for their business area with
such evidence. The latter persons shall without delay transmit
the evidence to the Director General Secretariat and Language
Services. ECB employees must in no way suffer inequitable or
discriminatory treatment as a result of having communicated
the information referred to in this Article.

— members of the ECB’s Governing and General Councils, in
matters related to their function as members of such ECB
decision-making bodies,

Participants in the decision-making bodies who become
2.
aware of evidence as referred to in paragraph 1 shall
inform
the Director General Secretariat and Language Services or the
President of the ECB.

— members of the ECB’s Executive Board,

— members of the governing bodies or any member of staff of
the national central banks, who participate in the meetings
of the ECB's Governing and General Councils as alternates
and/or accompanying persons in matters related to this
function,

(hereinafter jointly referred to as participants in the decision-
making bodies), and

— permanent or temporary ECB members of staff, who are

subject to the ECB conditions of employment,

— persons working for the ECB other than on the basis of an
employment contract, in matters related o their work for the
ECB,

(hereinafter jointly referred to as ECB employees).

Article 2

Duty to cooperate with the Office

Without prejudice to the relevant provisions of the Treaty, of
the Protocol on the privileges and immunities of the European
Communities and of the Statute, and subject to the procedures
laid down in the OLAF Regulation and to the rules laid down in
this Decision, participants in the decision-making bodies and
ECB employees shall fully cooperate with the Office’s agents
carrying out an internal
lend any
assistance required for the investigation.

investigation and shall

3. When the Director General Secretariat and Language
Services or, where appropriate,
the ECB
receives evidence in accordance with paragraphs 1 or 2, they
shall, subject to Article 4 of this Decision, transmit it without
delay to the Office and inform the Directorate Internal Audit
and, where appropriate, the President of the ECB.

the President of

4.
In cases in which an ECB employee or a participant in the
decision-making bodies has concrete evidence supporting the
suspicion of the existence of a case of fraud or corruption or
any other illegal activity within the meaning of paragraph 1,
and, at the same time, has justified reasons to consider that the
procedure foreseen in the above paragraphs would prevent in
that specific case a proper reporting of such evidence to the
Office, they may report directly to the Office without being
subject to Article 4.

Article 4

Cooperation with the Office with regard to sensitive infor-
mation

In exceptional cases,

1.
in which the circulation of certain
information outside the ECB could seriously undermine the
ECB’s functioning, the decision on whether to grant the Office
access to such information or to transmit such information to it
will be taken by the Executive Board. This shall apply to infor-
mation concerning monetary policy decisions, or operations
related to the management of foreign reserves and interventions
on foreign exchange markets, provided that such information is
less than one year old, data received by the ECB from prudential
supervisors regarding the stability of the financial system or
individual credit
institutions or information concerning the
euro banknotes' security features and technical specifications.

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Any such decision of the Executive Board shall take all
2.
relevant aspects into account, such as the degree of sensitivity of
the information required by the Office for the investigation, its
importance for the investigation and the seriousness of
the
suspicion as presented by the Office, by the ECB employee or
a participant in the decision-making bodies to the President of
the ECB, and the degree of risk for the ECB’s future functioning.
If access is not granted, the decision shall state the reasons.
With regard to data that
the ECB receives from prudential
supervisors on the stability of the financial system or individual
credit institutions, the Executive Board may decide to grant the
Office access, unless the relevant prudential supervisor considers
that disclosing the information concerned will put the stability
of the financial system or the individual credit institution at risk.

3.
In very exceptional cases concerning information related
to a particular area of ECB activity, of equivalent sensitivity to
the categories of information referred to in paragraph 1, the
Executive Board may provisionally decide not
the
Office access to such information. Paragraph 2 shall apply to
such decisions which shall be valid for a maximum of six
months. Thereafter, the Office shall be granted access to the
information concerned, unless the Governing Council has in
the meantime amended the present Decision by adding the
category of information concerned to the categories covered
by paragraph 1. The Governing Council shall state its reasons
for amending this Decision.

to grant

Article 5

Assistance from the ECB in internal investigations

1. When initiating an internal investigation of the ECB, the
Office’s agents shall be granted access to the ECB’s premises by
the manager in charge of ECB security upon production of a
written authorisation showing their identity, their capacity as
agents of the Office, and the written authority issued by the
Director of the Office indicating the subject matter of the inves-
tigation. The President,
the Vice-President and the Director
Internal Audit shall be informed immediately.

The Directorate Internal Audit shall assist the Office in the

2.
practical organisation of investigations.

3.
ECB employees and participants in the decision-making
bodies shall supply any requested information to the Office’s
agents who are
the
requested information could be sensitive within the meaning
in which case the Executive Board shall decide.
of Article 4,
The Directorate Internal Audit shall record all
information
supplied.

conducting an investigation, unless

Article 6

Informing interested parties

1. Where the possible implication of an ECB employee or a
participant in a decision-making body emerges, the interested
party shall be informed rapidly as long as this would not be
harmful to the investigation. In any event, conclusions referring
by name to an ECB employee or participant in a decision-
making body may not be drawn once the investigation has

the interested party having been
been completed without
enabled to express their views on all
the facts relating to
them, including any evidence existing against them. Interested
parties have the right to remain silent, to refrain from incrimi-
nating themselves and to seek personal legal assistance.

2.
In cases necessitating the maintenance of absolute secrecy
for the purpose 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 an
ECB employee or participant
in a decision-making body to
express their views may be deferred for a limited period in
agreement with the President or Vice-President.

Article 7

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

If, following an internal investigation, no case can be made out
against an ECB employee or participant in a decision-making
body against whom allegations have been made, the internal
investigation shall be closed, with no further action taken, by
decision of the Director of the Office, who shall
inform the
concerned ECB employee or participant in a decision-making
body thereof in writing.

Article 8

Waiver of immunity

from a national police or

judicial authority
Any request
regarding the waiver of the immunity from judicial proceedings
of an ECB employee or a member of the Executive Board,
Governing Council or General Council
in possible cases of
fraud, corruption or any other illegal activity detrimental to
the European Communities’ financial
interests shall be trans-
mitted to the Director of
the Office for his opinion. The
President or the Vice-President of the ECB shall decide on the
immunity of ECB employees, and the Governing Council shall
decide on the immunity of members of the Executive Board,
Governing Council or General Council.

Article 9

Amendment of the Conditions of Employment for Staff of
the ECB

The Conditions of Employment
amended as follows:

for Staff of

the ECB are

1. the following sentence is added after the second sentence of

Article 4(a):

‘They shall be bound by the provisions contained in Decision
ECB/2004/11 concerning the terms and conditions
for
European Anti-Fraud Office investigations of the European
fraud,
Central Bank,
to
corruption, and any other illegal activities detrimental
the
and
amending the Conditions of Employment for Staff of the
European Central Bank.’;

in relation to the prevention of

Communities’

European

financial

interests

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Official Journal of the European Union

30.6.2004

2. the introductory sentence of Article 5(b) is replaced by the

following:

amending the Conditions of Employment for Staff of the
European Central Bank.’;

investigations

‘(b) Unless otherwise foreseen in Decision ECB/2004/11
for European
concerning the terms and conditions
European
the
Anti-Fraud Office
Central Bank,
fraud,
corruption, and any other illegal activities detrimental
to the European Communities’
interests and
amending the Conditions of Employment for Staff of
the European Central Bank, members of staff shall not
without the prior permission of the Executive Board:’.

in relation to the prevention of

financial

of

Article 10

Amendment of Annex I to the Conditions of Employment
for Staff of the ECB

Annex I to the ECB’s Conditions of Employment concerning the
Conditions of Short-term Employment is amended as follows:

2. the introductory sentence of Article 10(b) is replaced by the

following:

investigations

in relation to the prevention of

‘(b) Unless otherwise foreseen in Decision ECB/2004/11
for European
concerning the terms and conditions
European
the
Anti-Fraud Office
Central Bank,
fraud,
corruption, and any other illegal activities detrimental
to the European Communities’
interests and
amending the Conditions of Employment for Staff of
short-term contract
European Central
the
employees shall not without
the prior permission of
the Executive Board:’.

financial

Bank,

of

Article 11

Final provision

1. the following sentence is added after the second sentence of

Article 4:

This Decision shall enter into force on the day following its
publication in the Official Journal of the European Union.

‘They shall be bound by the provisions contained in Decision
ECB/2004/11 concerning the terms and conditions
for
European Anti-Fraud Office investigations of the European
fraud,
Central Bank,
to
corruption, and any other illegal activities detrimental
and
the

in relation to the prevention of

Communities’

European

financial

interests

Done at Frankfurt am Main, 3 June 2004.

The President of the ECB

Jean-Claude TRICHET