Opinion No 7/2006 on a proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1073/1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF)
Date: 2006-12-06
Institutions: European Court of Auditors
Subjects: European Anti-fraud Office, exchange of information, fraud against the EU, judicial inquiry, operation of the Institutions

12.1.2007

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Official Journal of the European Union

C 8/1

I

(Resolutions, recommendations, guidelines and opinions)

OPINIONS

COURT OF AUDITORS

OPINION No 7/2006

on a proposal for a Regulation of the European Parliament and of the Council amending
Regulation (EC) No 1073/1999 concerning investigations conducted by
the European Anti-Fraud Office (OLAF)

(pursuant to Article 280(4), EC)

(2007/C 8/01)

THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES,

HAS ADOPTED THE FOLLOWING OPINION:

Having regard to the Treaty establishing the European Commu-
nities, and in particular Article 280(4) thereof,

Having regard to the Treaty establishing the European Atomic
Energy Community, and in particular Article 160c thereof,

Having regard to the proposal for a Regulation of the European
Parliament and of
the Council amending Regulation (EC)
No 1073/1999 concerning investigations conducted by the Euro-
pean Anti-Fraud Office (OLAF) (1),

1. The proposal replaces an earlier proposal (3) made by the
Commission in February 2004. The initial proposal aimed at
amending Regulation (EC) No 1073/1999 in order to boost
the procedural rights of individuals, to ensure better control
over the duration of investigations and to improve the
exchange of information between the Office and the institu-
tions or bodies concerned and the efficiency of operational
activities. In the explanatory memorandum, the revised pro-
posal states that it aims to further improving OLAF’s opera-
tion while taking into consideration recommendations made
by the Court and the conclusions of the public hearing on
the reinforcement of OLAF organised at the European Parli-
ament in July 2005.

Having regard to the requests for an opinion submitted to the
Court of Auditors by the European Parliament on 14 July 2006
and by the Council on 21 September 2006,

Having regard to the previous opinions issued by the Court of
Auditors (2),

(1) COM(2006) 244 of 24 May 2006.
(2) Opinions No 2/1999 of 14 and 15 April 1999 (OJ C 154, 1.6.1999,
p. 1), No 6/2005 of 9 June 2005 (OJ C 202, 18.8.2005, p. 33) and
No 8/2005 of 27 October 2005 (OJ C 313, 9.12.2005, p. 1).

2. The revised proposal has largely taken into consideration the
observations made in the Court’s previous opinion of 9 June
2005, the main exception being the view expressed in para-
graph 7 thereof. This concerns the need to ensure that the
requirement that the institution, body, office or agency con-
cerned should be notified of the opening of an investigation
is not set aside without justification on the pretext that
secrecy is necessary to guarantee the efficiency of the inves-
tigation.

(3) COM(2004) 103 final of 10 February 2004.

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Official Journal of the European Union

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5.

3. Article 14 of the proposal provides for the introduction of a
Review Adviser to monitor compliance with procedures. The
Court welcomes this introduction. However, the role and
responsibilities of the Review Adviser should be explicitly set
out in the Regulation, as should the review of the legality of
investigative measures envisaged for this function. Further-
more, the qualifications and experience required to occupy
this function should be reflected in the Regulation. The Court
also stresses the need for complete independence in the post,
as stated in Article 14(2) in the Commission’s proposal, but
considers that the independence may be compromised by the
Director-General’s authority to instigate disciplinary measu-
res concerning the Review Adviser after consultation with
the Supervisory Committee. It should also be considered, in
order to avoid conflicts of interest, that the Review Adviser,
who is to monitor ongoing investigations, should no longer
intervene once the results of an investigation have been
transmitted to the authorities concerned.

4. A new provision (1) grants the Director-General discretionary
powers in deciding whether or not to submit a final report
to the Member States’ judicial authorities where the Director-
General considers that internal measures are available which
would ensure more appropriate follow-up. However, the cir-
cumstances under which this discretionary power may be

exercised need to be more clearly established. Moreover, if
such a decision necessitates an assessment of national legis-
lation and case-law it should be left to the judicial authorities
in the Member States.

and

should

consolidate

In its Opinion No 8/2005 the Court recommended that the
Commission
the
simplify
Community’s anti-fraud legislation. However, the new pro-
posal makes even more extensive reference to Council Regu-
lation (Euratom, EC) No 2185/96 of 11 November 1996
concerning on-the-spot checks and inspections carried out
by the Commission in order to protect the European Com-
munities’ financial interests against fraud and other irregula-
rities (2) (the purpose of which have been considerably exten-
ded (3)). As no amendment of Regulation (Euratom, EC)
No 2185/96 is proposed it will not be clear to a reader of this
Regulation that it also applies for other purposes. This is con-
trary to the Interinstitutional Agreement of 22 December
1998 on common guidelines for the quality of drafting of
Community legislation (4). Finally the Court notes that alt-
hough the new proposal includes procedures and guarantees
to be observed by the Office’s employees when conducting
internal investigations the Commission does not propose to
delete the current Article 4(6)(b). This could be a source of
confusion and give room for deviations.

This opinion was adopted by the Court of Auditors in Luxembourg at its meeting of
6 December 2006.

For the Court of Auditors
Hubert WEBER
President

(1) Article 9(3a).

(2) OJ L 292, 15.11.1996, p. 2.
(3) According to recital 4 and the amendments to Articles 3 and 4 in the

new proposal.

(4) The Agreement stipulates that legal text should keep references to
other legal acts to a minimum. Where the impact on other legal acts
is substantial
the Agreement requires a separate amending act
(OJ C 73, 17.3.1999, p. 1).