COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS On the protection of the financial interests of the European Unionby criminal law and by administrative investigationsAn integrated policy to safeguard taxpayers' money  COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS On the protection of the financial interests of the European Unionby criminal law and by administrative investigationsAn integrated policy to safeguard taxpayers' money
Date: 2011-05-26
Institutions: European Commission
Subjects: Community budget, administrative measure, criminal law, economic offence, financial control, financial policy, fraud, taxpayer

EUROPEAN COMMISSION 

Brussels, 26.5.2011 
COM(2011) 293 final 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE AND THE COMMITTEE OF THE REGIONS 

On the protection of the financial interests of the European Union 
by criminal law and by administrative investigations 

An integrated policy to safeguard taxpayers' money 

{SEC(2011) 621 final} 

EN 

   EN 

 
 
 
  
 
 
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND 
SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS 

On the protection of the financial interests of the European Union 
by criminal law and by administrative investigations 

An integrated policy to safeguard taxpayers' money 

The  protection  of  the  EU  financial  interests  is  an  important  element  of  the 
Commission's political agenda, in order to consolidate and to increase public trust and 
give assurance that taxpayers' money is being used correctly. The Lisbon Treaty has 
considerably reinforced available tools to act in this regard (Articles 85, 86 and 325 of 
the  Treaty  on  the  Functioning  of  the  European  Union  -  TFEU).  Articles  310(6)  and 
325 TFEU oblige both the EU and its Member States to counter all forms of illegal 
activity affecting the EU financial interests. The EU has in place a comprehensive set 
of tools to prevent and detect misuse of the EU budget. 

As part of an integrated approach which will include new Commission anti-fraud and 
anti-corruption  strategies,  this  Communication  responds  to  the  challenge  by  setting 
out the line which will guide the Commission in the protection of EU public money 
against  all  forms  of  criminal  conduct,  including  fraud.  Protecting  EU  funds  by 
effective  and  equivalent  legal  action  throughout  the  Union  has  to  become  a  priority 
for the national authorities. 

In addition to general efforts to set specific common minimum rules on criminal law, 
an  integrated  policy  to  protect  EU  financial  interests  by  criminal  law  and  by 
administrative investigations must be consistent, credible and effective. Only then will 
it  allow  those  responsible  for  crimes,  including  organised  crime,  committed  to  be 
prosecuted and brought to court and have a deterrent effect on potential perpetrators. 
The policy must also take into account that the protection of taxpayers' money often 
involves  cross-border  cases  touching  multiple  jurisdictions  requiring  the  active 
cooperation of different administrative and law enforcement authorities.  

1. 

Why is there a need to act?  

The EU's wide variety of legal systems and traditions make it a specific challenge to 
protect  the  financial  interests  of  the  Union  against  fraud  and  any  other  criminal 
activities.  Whilst  EU  funding  rules  rightly  become  simpler1,  the  capacity  to  combat 
the misuse of EU money needs to be further strengthened as well. This applies also to 
countries seeking to accede to the EU. 

1

Simplification  has  been  identified  as  a  key  priority  for  the  review  of  the  EU  Financial 
Regulation - COM(2010) 815, 22.12.2010. 

EN 

2 

   EN

 
                                                 
 
The EU budget is taxpayer's money that must be used only for implementing the policies which the EU 
legislator has approved. Yet in 2009, Member States reported 279.8 million € worth of suspected fraud 
cases involving EU funds managed in their respective countries2. Whilst this is only an indicator of the 
financial dimension of the challenge, this figure shows that prevention efforts must be complemented 
by effective and equivalent criminal law measures. 

Despite the progress made in the last 15 years, the level of protection for EU financial 
interests  by  criminal  law  still  varies  considerably  across  the  Union.  Criminal 
investigations into fraud and other crimes against the financial interests of the Union 
are characterised by a patchy legal and procedural framework: police, prosecutors and 
judges in the Member States decide on the basis of their own national rules whether 
and,  if  so,  how  they  intervene  to  protect  the  EU  budget.  Despite  the  attempts  to 
provide for minimum standards in this field, the situation has not changed noticeably: 
The Convention of 1995 on the protection of financial interests of the EU and related 
acts3,  which  contains  provisions  on  criminal  sanctions,  -  albeit  incomplete  -  was 
implemented fully by only five Member States4.  

Whenever  damage  is  caused  to  the  financial  interests  of  the  Union,  all  citizens,  as 
taxpayers,  become  victims  and  the  implementation  of  Union  policies  is  jeopardised. 
The protection of EU financial interests against fraud and corruption is a priority for 
the Commission and the European Parliament has consistently called for it to be more 
effective  and  credible5.  It  has  called  in  particular  for  the  adoption  of  all  necessary 
measures for the establishment of a European Public Prosecutor's Office. Within the 
Council, strong support for a stepped-up fight against fraud has been expressed6. 

The Commission intends to pursue this shared concern proactively. In doing so, it will 
rely on the Lisbon Treaty. The Treaty sets a clear framework for the EU to reinforce 
its  action  in  the  field  of  criminal  law.  The  Commission  has  already  taken  several 
initiatives  in  this  regard7.  The  Commission  will  place  particular  emphasis  on  the 

2 

3 

4 

5 

6 

7 

COM(2010) 382, p. 6. This figure refers to an early stage after opening of investigations on 
irregularities  where  there  is  a  first  suspicion  of  a  criminal  offence.  The  figure  may  not  be 
considered to refer to cases of convicted fraud, nor does it mean that the amount involved is 
not recoverable.  
Convention of 26 July 1995 (OJ C 316, 27.11.1995, p. 49) (fraud); First Protocol (OJ C 313, 
23.10.1996,  p.  2)  and  Convention  of  26  May  1997  (OJ  C  195,  25.6.1997)  (corruption); 
Protocol  of  29  November  1996  (OJ  C  151,  20.5.1997,  p.  2)  (court  interpretation);  Second 
Protocol of 19 June 1997 (OJ C 221, 19.7.1997, p. 12) (money laundering). 
First  report  on  the  implementation  of  the  Protection  of  Financial  Interests  instruments  - 
COM(2004) 709; Second Report - COM(2008) 77, which sets out in the annex the concrete 
implementation  issues  encountered  in  Member  States,  such  as  significant  differences 
regarding the scope of fraud and corruption offences, as well as lacking consideration for the 
specificities of the EU framework. 
E.g. Resolution of 6 May 2010, 2009/2167(INI), and of 6 April 2011, 2010/2247(INI), on the 
protection of the Communities' financial interests and the fight against fraud. 
See, e.g., the Council Resolution concerning a comprehensive EU policy against corruption - 
14 April 2005; conclusions of the Working Group on the European Public Prosecutor's Office 
organised by the Spanish Presidency (First semester 2010), and the statement of the Belgian 
Presidency (second semester 2010) on the Stockholm Programme. 
See  notably  Green  Paper  on  obtaining  evidence  in  criminal  matters,  COM(2009)624,  and 
measures on procedural rights, such as Directive 2010/64/EU of 20 October 2010 on the right 
to  interpretation  and  translation  in  criminal  proceedings,  OJ  L  280,  26.10.2010,  p.  1,  or 

EN 

3 

   EN

                                                 
communication aspects of future legislative initiatives in order to raise the awareness 
of the legal professions on this subject and, when appropriate, of the general public. 
The Commission will also continue to seek that any further EU policy developments 
address from their conception the need for protecting EU financial interests. 

2. 

What are the criminal policy challenges? 

In  March  2011,  the  Commission  proposed  the  reform  of  the  Anti-Fraud  Office 
(OLAF) as a means of strengthening the effectiveness and efficiency of administrative 
investigations.  Further  challenges  include  how  to  overcome  difficulties  in  obtaining 
accurate  data  on  the  extent  of  fraud  and  prosecution  in  the  Member  States,  how  to 
improve cooperation in cross-border cases and how to enhance effective court action 
in criminal law. 

-The  number  of  cases  referred  to  Eurojust  by  national  authorities  for  coordination  and  advice  with 
respect to all serious crime has steadily increased since the body's creation in 2002 (208 cases) to 2009 
(1372 cases).8 Given the current mandate of Eurojust, this gives an indication of the evolution of cases 
with cross-border dimension. 

-60% of interviewees in a recent study (national prosecutors specialised in financial interests) consider 
a  European  dimension  as  a  factor  hampering  cases;  thus,  54  percent  sometimes  limit  their 
investigations  to  the  national  elements.  40  %  perceive  disincentives  in  national  law  for  bringing 
European cases. 37% have already decided not to contact an EU institution in relevant cases, mainly 
because it was time-consuming9.  

2.1. 

Insufficient protection against criminal misuse of the EU budget 

Since the adoption of the White Paper on the Reform of the Commission in 200010, 
the  Commission  has  paid  particular  attention  to  sound  financial  management11  and 
strengthened  its  internal  control  systems  to  combat  fraud.  Initiatives  included  the 
reform of staff regulations in 2004 (with the inclusion of provisions regarding conflict 
of interest, and the obligation to report potential illegal activities, including fraud or 
corruption  to  the  hierarchy  or  to  OLAF12)  and  the  revision  of  the  Internal  Control 
Standards  and  Underlying  Framework  in  2007  13.  As  a  result,  the  control  structures 
currently in place not only aim to ensure the legality and regularity of transactions but 
also mitigate the risk of fraud and irregularities. 

This  includes  also  a  comprehensive  set  of  preventive  instruments,  concerning 
controlling,  auditing  and  reporting,  early  warning  and  fraud-proofing14.  However, 

8 
9 
10 
11

12 
13

14 

Commission  proposal  for  a  Directive  on  the  right  to  information  in  criminal  proceedings, 
COM(2010)392/3. 
See Eurojust Annual Report 2009, Annex, Figure 1, p. 50. 
See Staff Working Document SEC(2011) 621. 
See The White Paper on the Reform of the Commission COM(2000)200  
See  Art.  28  of  Council  Regulation  (EC,  Euratom)  No  1605/2002  of  25  June  2002  on  the 
Financial  Regulation  applicable  to  the  general  budget  of  the  European  Communities  (OJ  L 
248, 16.9.2002, p. 1). 
Staff Regulation - Regulation (EEC) 31/62 as ammended 
See  Communication  on  the  revision  of  the  Internal  Control  Standards  and  Underlying 
Framework - Strengthening Control Effectiveness SEC(2007)1341 
Institutional tools on controlling, auditing, reporting (Regulation (EC) No 2035/2005 - OJ L 
345, 28.12.2005; Regulation (EC) No 1083/2006 - OJ L 371, 27.12.2006; Regulation (EC) No 

EN 

4 

   EN

                                                                                                                                            
 
 
more  effective  means  are  also  needed  to  fight  criminal  activities  against  the  EU 
budget. 

Member States are under legal obligation (Article 325 TFEU and the Convention on 
the protection of financial interests) to counter illegal activities at the expense of the 
EU  and  make  fraud  against  the  EU  budget  punishable  criminal  conduct.  At  present, 
however, imposed penalties for fraud range from small fines to long prison sentences. 
Moreover, Member States' legislation do not consistently provide  for  punishment  of 
corrupt elected or appointed office holders and corrupt officials15. 

This state of affairs hinders equivalent criminal law protection across the EU and is 
highly likely to lead to differing outcomes in similar individual cases, depending on 
the  applicable  national  criminal  provisions.  It  could  also  allow  the  possibility  for 
criminals to choose where to operate criminal activity, or to move elsewhere after the 
commission  of  the  offence,  even  if  they  only  relate  to  conduct  in  a  single  Member 
State. 

2.2. 

Insufficient legal action to fight criminal activity 

Given the extent of the financial issue at stake, the protection of the EU budget merits 
more  frequent  and  more  thorough  investigation  and  prosecution  by  criminal  justice 
authorities. This is not an easy task, as crime at the expense of EU public money often 
involves cross-border investigation and proceedings in several Member States. 

Under the current framework, such criminal investigations are handled by individual 
Member  States'  prosecution  services  acting  under  their  respective  criminal  law. 
However, the competent authorities of Member States do not always appear to have 
sufficient  legal  means  at  their  disposal  and  appropriate  structures  in  place  to 
adequately  prosecute  cases  affecting  the  EU.  This  applies  equally  to  accession 
countries. 

Differences in the legal framework of the Member States and the resulting operational 
and organisational barriers to cross-border investigations within the EU mean that the 
financial interests of the EU are not equivalently protected across the EU as regards 
criminal law. 

The rate of conviction in cases involving offences against the EU budget is positively influenced by the 
seriousness and the solidity of the cases sent to the judicial authorities and on the quality and adequacy 
of the evidence provided, but it is nevertheless worth mentioning that it can vary from 14% to 80% in 
Member States (the average being 41%)16. 

National judicial authorities do not open criminal investigations systematically upon 

1198/2006  -  OJ  L  223,  15.8.2006;  Regulation  (EC,  Euratom)  No  1553/89  -  OJ  L  155, 
7.6.1989;  Regulation  (EC,  Euratom)  No  1150/2000  -  OJ  L  130,  31.5.2000),  early  warning 
(Commission decisions C(2004) 193 and C(2008) 3872, fraud proofing (Prevention of fraud 
by building on operational results: a dynamic approach to fraud-proofing - COM(2007) 806). 
Member  States  legislations  do  not  always  provide  for  punishment  of  corruption  of  elected 
persons  and  of  members  of  parliament.  See  also  Staff  Working  Document  SEC(2011)  621, 
comparative law tables under section 3.1. 
See  Staff Working  Document  SEC(2011)  621,  Table  2.2.a  and  Table  2.2.c  which  show  that 
certain  Member  States  have  high  conviction  rates,  whereas  in  other  Member  States  the 
conviction rates are extremely low. 

15 

16 

EN 

5 

   EN

                                                                                                                                            
OLAF recommendations. Sometimes it is difficult to discern the specific motive for 
such lack of action. Moreover, very often cases involving fraud against the EU budget 
are  subject  to  a  summary  examination  and  not  acted  upon  further17.  This  leads  to  a 
lack of equivalence of criminal law protection throughout the Union. 

In a certain number of cases involving fraud against the EU budget, national criminal 
investigative authorities refrain from opening investigations (referring to discretionary 
reasons such as the lack of public interest or the low priority). Criminal investigations 
involving  several  Member  States  tend  to  be  lengthy18  and  subject  to  differing 
evidentiary standards reducing therefore the likelihood of a conviction.  

Since 2000, 93 out of a total of 647 OLAF cases were dismissed by national prosecution services for no 
specific  reason.  178  cases  were  dismissed  due  to  discretionary  reasons.Whilst  there  may  have  been 
good reasons to have done so in individual instances, these figures indicate a rather high closing rate. 

Lengthy  criminal  proceedings,  particularly  when  these  are  ultimately  dropped,  may 
also  substantially  delay  disciplinary  sanctions,  as 
the  outcome  of  criminal 
prosecutions  for  the  same  facts  must,  in  cases  involving  EU  staff,  be  awaited19. 
Generally it takes a period of five years for a judicial decision to be taken after OLAF 
opened  a  file.  In  addition,  rules  on  time  limitation  differ  widely  among  Member 
States. 

3. 

The reasons for shortcomings in this area of crime 

These  shortcomings  partly  result  from  the  variety  of  legal  traditions  and  systems 
which lead to divergent judicial practices of Member States. However, very concrete 
gaps in the quality of justice - which the Union can bridge - are involved as well: 

3.1. 

No common level playing field in criminal law 

The aforementioned challenges reveal shortcomings in the national legal frameworks 
for the protection of public money. EU rules, hampered as they are by the incomplete 
and  inadequate  transposition  of  the  Convention  on  the  protection  of  the  financial 
interests, have had little impact. Consequently, Member States' judicial authorities use 
their traditional national criminal law tools to fight crime against the EU budget: there 
are different ways and means to tackle a single reality. This is hardly appropriate for 
the complex cases which by their nature go beyond the national context and require 
more than a national response. 

The analysis of one Member State’s judicial activity in cases forwarded by OLAF shows that there is a 
lack  of  equivalence  in  the  criminal  law  protection  of  EU  financial  interests.  In  this  specific  Member 
State, in 73% of external investigation cases, the authorities did not undertake any further action and no 
criminal investigation was ever opened with regard to 62% of OLAF cases.  

17 

18 

19 

See  Staff  Working  Document  SEC(2011)  621,  Table  2.2.a  and  Table  2.2.c  which  show  the 
percentages of actions sent to the national judicial authorities and dismissed before trial. 
See  Staff  Working  Document  SEC(2011)  621,  Table  2.2.a:  statistics  of  the  last  12  years  on 
actions pending judicial decision as opposed to actions with judicial decision show important 
discrepancies among Member States. 
Annex IX, Article 25 of the EU Staff Regulation. 

EN 

6 

   EN

                                                 
Notwithstanding  past  attempts  to  approximate  the  EU  rules20  there  are  still 
considerable differences in Member State laws:  

- There is wide variation across the Union in definitions of relevant criminal offences, 
such  as  embezzlement  or  abuse  of  power,  in  the  sanctions  which  those  offences 
attract, and in time limitations for criminal offences. As this results in certain cases of 
highly  inappropriate  conduct  not  being  covered  by  criminal  law  provisions  at  all  in 
some  Member  States,  or  only  by  weaker  provisions,  the  level  of  deterrence  varies 
across the Union.  

- The concept of public official in relation to anti-corruption rules varies. This leads to 
cases  of  impunity  in  some  Member  States,  whereas  in  others  conviction  of  an 
individual for the same behaviour would result in a penal sanction and removal from 
public office.  

- Whereas in some Member States the heads of businesses and legal persons can be 
held criminally liable for criminal conduct on behalf of the company, in others they 
cannot. This situation leads to so-called "forum shopping”. 

OLAF is often confronted with a recurrent problem as regards the definition of conflict of interests21. 
Investigations  show  that  in  some  Member  States  the  beneficiary  of  a  public  procurement  can 
participate in the design of a public tender without committing a criminal offence. Punishment of such 
behaviour has to rely on a criminal offence such as corruption.  

Whilst efforts have already been made to remedy this fragmentation, the limitations of 
the former legal framework of the Union, which only partially covered criminal law, 
made it difficult for the Union to develop sufficiently credible legal options.  

Fifteen  years  after  the  signing  of  the  Convention  on  the  protection  of  financial 
interests  and  as  a  result  of  an  incomplete  implementation  in  Member  States, 
inconsistencies and loopholes in the applicable criminal and procedural laws hamper 
effective action in the protection of the financial interests allowing criminal offences 
to go unpunished in some Member States. 

3.2. 

Insufficient cooperation between authorities 

As  protecting  the  EU  budget  often  involves  investigating  cross-border  cases  and 
enforcing  decisions  abroad,  deficiencies  in  cooperation  mechanisms  are  clearly 
visible: 

3.2.1.  Limits to mutual legal assistance  

Complex  procedures  reduce  the  number  of  cases  where  mutual  legal  assistance  is 
even  requested.  This  is  the  case  for  instance  in  asset  recovery,  including  rules  on 

20 

21 

See e.g. Commission Proposal on criminal law protection of financial interests - COM(2001) 
272, as amended by COM(2002) 577. This holds true despite existing EU public procurement 
legislation,  such  as  Directive  2004/17/EC  on  the  water,  energy,  transport  and  postal  service 
markets (OJ L 134, 30.4.2004, p. 1). 
Cf.  Green  Paper  on  the  modernisation  of  EU  public  procurement  policy  -  COM(2011)  15, 
section 5. 

EN 

7 

   EN

                                                 
freezing  and  confiscation  which  form  a  vital  element  in  the  fight  against  fraud. 
Judicial authorities in the Member States may be reluctant to trigger such measures, 
because  of  their  complexity,  the  lengthy  procedures  associated  with  mutual  legal 
assistance  rules  and  the  uncertainty  whether  the  efforts  will  be  worth  the  results, 
particularly when it comes to cross-border cases.  

Even where mutual legal assistance between administrative and judicial authorities of 
Member States is requested, it is often not followed up with sufficient expediency.  

In some cases of corruption and fraud, criminal actions have been pending for many years since they 
were  first  reported  by  OLAF  to  national  judicial  authorities.  The  reasons  for  these  long  delays  are 
mainly  due  to  the  length  of  the  mutual  legal  assistance  procedures  and  the  lack  of  steering  of  the 
prosecution at EU level. 

3.2.2.  Unused evidence 

The results of EU administrative investigations frequently remain unused by national 
criminal courts because of restrictive procedural rules which include limits on the use 
of evidence collected in a foreign jurisdiction. At times the use of such evidence is not 
considered sufficient to open criminal investigations. 

3.2.3.  Restriction of prosecution to domestic cases 

Cases  are  not  prosecuted  sufficiently  when  national  authorities  do  not  have  the 
authority  to  investigate  situations  of  fraud  involving  events,  suspects  and  victims 
beyond  the  domestic  remit,  including  when  the  prejudice  is  not  to  the  national  but 
rather to the EU budget. 

Some  national  authorities  only  prosecute  cases  when  the  relevant  EU  interests  are 
compromised exclusively on their territory.  

In one Eurojust case involving several Member States and non-EU countries, the suspicion of a large-
scale  customs  evasion  (worth  more  than  1  million  €)  was  not  prosecuted  by  any  of  the  national 
authorities  of  the  Member  States  involved.  In  another  customs  case,  no  practical  solution  could  be 
found as regards the position of a Member State's judicial authorities and customs refusal to contribute 
to  OLAF’s  coordination  activities.  The  refusal  of  cooperation  was  due  to  a  rigid  interpretation  of 
national judicial competence law. 

3.3. 

Insufficient investigation powers 

OLAF  carries  out  administrative  investigations,  and  the  judicial  cooperation  body 
Eurojust  supports  Member  States'  judicial  authorities  by  providing  coordination  and 
advice,  on  serious  crime  including  in  the  fight  against  fraud.  Both  EU  bodies  could 
play a more active role in the protection of financial interest of the Union: 

-  OLAF's  reform  to  improve  its  efficiency  and  effectiveness  is  now  underway.  It 
should  further  reinforce  OLAF's  capacity  by  concentrating  its  activities  on  priority 
cases  and  equipping  it  with  the  adequate  legal  means  to  pursue  administrative 
investigations. Nevertheless, the different criminal procedure laws and practices in the 
Member States result in uneven responses across the Union. 

- Eurojust currently faces limitations regarding the steering of prosecutions related to 

EN 

8 

   EN

the protection of EU financial interests. Its 2008 reform did not update its tasks and 
structure  in  line  with  the  ambitions  set  by  the  Lisbon  Treaty.  At  present  Eurojust  is 
neither able to initiate criminal investigations nor to prosecute crimes on its own. 

4. 

New  tools  to  protect  EU  financial  interests  introduced  by  the  Lisbon 
Treaty 

The Lisbon Treaty equips the Union with strengthened competences in the field of the 
protection of EU financial interests and in the field of judicial cooperation in criminal 
matters.  The  Union  has  taken  the  first  steps  with  the  adoption  of  the  Stockholm 
Programme22 as well as within the Commission Work Programme 201123.Four ways to 
protect EU financial interests under the Treaty on the Functioning of the EU: 

(i) Measures on procedural judicial cooperation in criminal matters (Article 82). 

(ii) Directives containing minimum criminal law rules (Article 83).  

(iii) Legislation on fraud affecting the financial interests of the Union (Articles 310(6), 325(4)).  

(iv)  Article  85  allows  granting  Eurojust  investigative  competences  and  Article  86  allows  for  the 
establishment  of  a  European  Public  Prosecutor  Office  (EPPO)  from  Eurojust  to  combat  crimes 
affecting the financial interests of the Union. 

Should  criminal  law,  including  further  developed  definitions  of  offences  and 
minimum rules on sanctions, be deemed necessary to achieve the legitimate purpose 
of  fighting  fraud  against  the  EU  budget,  certain  guiding  principles  will  need  to  be 
observed: 

Firstly, it must be respectful of fundamental rights. The EU Charter of Fundamental 
Rights  contains  several  relevant  provisions  in  the  context  of  criminal  proceedings 
such as the right to an effective remedy and to fair trial, the presumption of innocence 
and the right of defence, the principle of legality, the protection of personal data and 
the prohibition of double jeopardy. These are further specified by legislation (e.g. on 
data  protection24).  Future  Commission  proposals  will  be  subject  to  an  in-depth 
assessment of their impact on fundamental rights25. 

Secondly,  given  the  different  approaches  to  criminal  law  in  the  Member  States, 
particular attention will need to be given to the added value that approximation in the 
field of criminal law will bring to the protection of EU financial interests.  

Thirdly a reflection will be conducted on the strengthening of the role that bodies at a 
European  level,  including  OLAF,  Eurojust  and  –  alternatively  or  cumulatively  –  a 
possible  European  Public  Prosecutor’s  Office,  may  play  to  better  investigate, 

22 

23 

24 

25 

OJ C 115, 4.5.2010, p. 1 (for example as regards orientations on financial investigations and 
on asset recovery, point 4.4.5). 
COM(2010) 623 (for example anti-fraud strategy or OLAF legislation, see no 32 of Annex I 
and no 81 of Annex II). 
Directive 95/46/EC (for Member States) (OJ L 281, 23.11.1995, p. 31), and Regulation (EC) 
No 45/2001 (for EU institutions) (OJ L 8, 12.1.2001, p. 1). 
See  Strategy  for  the  effective  implementation  of  the  Charter  of  Fundamental  Rights  - 
COM(2010) 573. 

EN 

9 

   EN

                                                 
prosecute and assist in cases of crime at the expense of EU public money. 

The  European  Union  stands  at  a  crossroads.  Work  needs  to  be  undertaken  at  three 
levels: procedures (4.1), substantive criminal law (4.2) and institutional aspects (4.3). 

4.1. 

Strengthening criminal and administrative procedures 

The first step will be to make it easier for prosecutors and judges across the Union to 
fight  fraudsters,  even  if  they  are  located  abroad,  further  building  upon  existing 
instruments,  such  as  the  European  Judicial  Network  in  Criminal  Matters  and  the 
European Judicial Training Network. 

Asset recovery plays a central role in the protection of EU financial interests. Often 
the fear of losing the illegally acquired assets is higher than the fear of the criminal 
sanction as such. Moreover, it is only fair that public money lost to criminal activities 
should  be  available  again  for  public  action  once  it  is  found.  As  called  for  by  the 
Stockholm Programme26, the Commission is preparing a legislative proposal on asset 
recovery and  confiscation. The Commission has already proposed,  under  the review 
of  the  EU  Financial  Regulation,  that  amounts  receivable  by  the  Union  shall  not  be 
treated  less  favourably  than  entitlements  belonging  to  public  bodies  in  the  Member 
States where the recovery proceeding has been conducted27. 

Whilst  bases  for  exchange  between  police  and  judicial  authorities  across  the  Union 
exist, this is not yet the case for cross-cutting exchanges of information among police, 
customs,  tax  authorities,  the  judiciary  and  other  competent  authorities.  The 
Commission  intends  to  remedy  this  situation  by  replacing  its  2004  proposal28  on 
mutual administrative assistance for the protection of financial interests. 

Mutual  trust  of  judicial  and  of  administrative  authorities  are  fostered  if  equivalent 
procedural  standards  apply.  This  would  provide  an  enhanced  basis  for  ensuring  that 
evidence taken in relation to the protection of the EU's financial interests is mutually 
recognised  by  Member  States.  The  Commission  will  consider  legislative  action  for 
ensuring  evidentiary  value  of  OLAF  investigative  reports,  as  well  as  upon  other 
measures that might facilitate transnational gathering of evidence. 

4.2. 

Strengthening substantive criminal law  

Criminal  law  is  a  cornerstone  of  EU  action  to  prevent  and  fight  damage  to  the  EU 
budget.  

Due to the remaining loopholes in, and deficient implementation of, the Convention 
on the protection of financial interests, an initiative on the protection of EU financial 
interests  will  be  prepared,  replacing  its  pending  proposal  on  the  criminal-law 
protection of financial interests29. Any new measure must guarantee consistency and 
fairness  in  application  of  criminal  sanctions  relating  to  fraud,  depending  on  the 

26 
27 
28 
29 

OJ C 115, 4.5.2010, p. 1, section 4.4.5. 
COM(2010) 815, Article 79. 
COM(2004) 509 as amended by COM(2006) 473. 
COM(2001)272 as amended by COM(2002)577. 

EN 

10 

   EN

                                                 
particular  way  the  offence  was  committed.  Definitions  of  additional  core  offences, 
including on embezzlement and abuse of power should be envisaged as a part of the 
measure,  to  the  extent  relevant  for  the  protection  of  EU  financial  interests.  The 
approximation of rules on jurisdiction and time limitation will also be further analysed 
in order to improve criminal investigation results. 

This  proposal  may  include,  to  the  extent  relevant  for  the  protection  of  EU  financial 
interests, more systematic rules on aiding and abetting, instigation, attempt, as well as 
on intent and negligence. It may also set out clearer rules on the criminal liability of 
appointed and elected office holders, and of legal persons regarding the protection of 
financial interests. 

4.3. 

A strengthened institutional framework 

Any EU measures in the fields of the prevention of and fight against fraud affecting 
the  financial  interests  of  the  Union  aiming  to  afford  effective  and  equivalent 
protection throughout the Union requires assessment of whether the EU is adequately 
equipped in terms of structures to tackle threats against EU financial interests. To this 
end, and in line with the Lisbon Treaty, a thorough analysis will be conducted on the 
ways  in  which  the  European  structures  need  to  be  reinforced  to  deal  with  criminal 
investigative measures: 

-  Eurojust  capacities  need  to  be  modernised,  possibly  equipping  it  with  powers  to 
trigger  on  its  own  initiative  criminal  investigations  into  criminal  activities  affecting 
the Union's financial interests30. 

- Moreover, a specialised European prosecution authority such as a European Public 
Prosecutor's Office could contribute to establishing a common level playing field by 
applying common rules on fraud and other offences against the financial interests of 
the  Union  in  a  consistent  and  homogeneous  way,  investigating,  prosecuting  and 
bringing to court the perpetrators of, and accomplices in offences against the Union's 
financial interests31. 

- OLAF is undergoing a reform to strengthen the effectiveness and the efficiency in 
the  exercise  of  its  mission.  OLAF  is  currently  the  only  investigative  EU  body 
entrusted  with  the  task  of  protecting  EU  financial  interests.  It  should  be  considered 
how  OLAF's  role  would  be  adapted  in  a  new  institutional  set-up,  clarifying  the 
interaction between judicial and administrative procedures. 

30 
31 

Article 85 TFEU. 
Article 86 TFEU. 

EN 

11 

   EN

                                                 
Our vision for 2020: take the necessary measures, in criminal and administrative 
law, to minimise criminal activities at the expense of the EU budget  

A policy of zero tolerance on fraud against the EU requires putting in place adequate 
measures  so  that  acts  of  fraud  are  prosecuted  evenly  across  the  Union.  The  Union 
should  aim  at  an  effective,  proportionate  and  dissuasive  level  of  protection  of  its 
financial interests through speedy criminal procedures and sanctions across the Union, 
increasing their deterrent effect. To this end, taxpayers’ money has to be equivalently 
protected across the Union by enhanced criminal prosecution, which is not stopped at 
national borders, and by common minimum criminal law rules, making full use of the 
opportunities enshrined in the Lisbon Treaty. 

EN 

12 

   EN