COMMISSION STAFF WORKING DOCUMENT Analysis of Impacts Accompanying the document Proposal for a Regulation of the European Parliament and of the Council Amending Regulation No 883/2013 as regards the establishment of a Controller of procedural guarantees
Date: 2014-06-11
Institutions: European Commission
Subjects: EU control, European Anti-fraud Office, corruption, data protection, exchange of information, fraud against the EU, fundamental rights, operation of the Institutions, research, right to justice

EUROPEAN 
COMMISSION 

Brussels, 11.6.2014  
SWD(2014) 183 final 

COMMISSION STAFF WORKING DOCUMENT 

Analysis of Impacts 

Accompanying the document 

Proposal for a Regulation of the European Parliament and of the Council  

Amending Regulation No 883/2013  as regards the establishment of a Controller of 
procedural guarantees 

{COM(2014) 340 final} 

EN 

   EN 

 
 
 
 
  
 
TABLE OF CONTENTS 

1. 

INTRODUCTION....................................................................................................... 3 

2.  PROCEDURAL  ISSUES  AND  CONSULTATION  OF  INTERESTED 

PARTIES..................................................................................................................... 3 

3.  POLICY CONTEXT, PROBLEM DEFINITION AND SUBSIDIARITY................ 4 

3.1.  Policy context .................................................................................................... 4 

3.2.  Problem definition ............................................................................................. 6 

3.2.1. 

Introduction: ........................................................................................ 6 

3.2.2.  What is the problem?........................................................................... 6 

3.2.3.  Experiences in dealing with procedural safeguards .......................... 10 

3.2.3.1.  OLAF's  experience:  mechanisms  of  control  over 
procedural  guarantees,  following  in  particular 
implementation of Regulation 883/2013 ........................... 10 

3.2.3.2.  Perspective  of  the  EPPO  and  lessons  from  the 
financial  markets 

areas  of  competition  and 
supervision......................................................................... 15 

3.2.4.  What should further be improved? .................................................... 19 

3.3.  Subsidiarity and proportionality ...................................................................... 19 

4.  OBJECTIVES ........................................................................................................... 20 

5.  POLICY OPTIONS: DESCRIPTION AND ANALYSIS OF IMPACTS................ 21 

5.1.  Description of the options ............................................................................... 21 

5.2.  Analysis of impacts ......................................................................................... 23 

6.  COMPARING THE OPTIONS ................................................................................ 28 

7.  EVALUATION ......................................................................................................... 28 

8.  ANNEXES ................................................................................................................ 28 

Boxes:   

Box 1: Complaints lodged against OLAF's acts ………………………………………………………..  9 
Box 2: OLAF's internal complaints procedures………………………………………….................... 14 
Box 3: OLAF's internal legality review mechanism (Unit 0.1) ……………………………………… 14 
Box 4: The EPPO proposal: investigative powers and procedural safeguards…………………… 16 
Box 5: DG Competition: investigative powers and Hearing Officer……………………….………. .17  
Box 6: ESMA: investigative powers and controls……………………………………………………… 18 

Charts: 

Chart 1: Mechanisms of control over OLAF throughout the life of an investigation……………..12  

 
 
 
 
 
 
1. 

INTRODUCTION 

After years of intensive negotiations, the EU institutions have agreed on a new legal framework 
for  OLAF  investigations:  a  political  agreement  was  reached  on  3  July  2013  and  Regulation 
883/2013 on OLAF's investigations entered into force on 1 October 2013. It brought substantial 
changes  to  OLAF's  organisation  and  investigative  activities,  in  particular  the  reinforcement  of 
OLAF  governance  and  the  strengthening  of  procedural  safeguards  of  persons  concerned  by 
OLAF investigations. These changes are currently being implemented.  

Meanwhile however, the Commission has adopted on 17 July 2013 a legislative proposal on the 
establishment  of  the  European  Public  Prosecutor's  Office1.  Once  established,  the  EPPO  would 
bring  about  a  substantial  change  in  the  way  investigations  concerning  fraud  and  other  illegal 
criminal  activities  affecting  the  EU  financial  interests  are  carried  out  in  the  Union:  the  EPPO 
would take over from OLAF the responsibility for investigating suspicions of criminal activities 
affecting  the  financial  interests  of  the  EU2.  OLAF  would  continue  to  carry  out  administrative 
investigations  concerning  those  illegal  activities  which  would  not  fall  under  the  competence  of 
the  EPPO  (e.g.  irregularities)3.  As  a  judicial  body,  investigating  serious  offences  (crimes)  and 
benefiting  from  investigative  powers  typical  of  judicial  investigations  (including  the  power  to 
enforce  its  investigative  measures),  the  EPPO  will  also  benefit  from  reinforced  procedural 
guarantees typical of judicial investigations.  

Against  this  backdrop  appears  the  need  to  maintain  coherence  in  the  legal  framework  of  the 
protection  of  the  EU  financial  interest  and  to  preserve  the  balance  between  the  investigative 
powers  and  the  procedural  safeguards  attached  to  these  powers  within  the  different  EU 
investigative bodies acting in this area. Therefore, there is a need to reflect on whether and how 
the legal frameworks of OLAF and the EPPO can be bridged, and to assess whether and under 
which conditions further strengthening procedural safeguards of the persons concerned by OLAF 
investigations could be achieved while maintaining a high level of protection of the EU financial 
interests. 

As  announced  in  its  Communication  of  17  July  2013  on  Improving  OLAF's  governance  and 
reinforcing  procedural  safeguards4,  accompanying  the  legislative  proposal  on  the  EPPO,  the 
Commission  services  have  reflected  on  possible  further  systemic  improvements  of  the  OLAF 
Regulation.  This  Analysis  of  Impacts  is  the  result  of  this  reflection.  It  analyses  the  different 
possible policy options to achieve the objectives of reinforcing procedural safeguards in OLAF 
while  maintaining  OLAF's  efficiency  and  independence  in  its  investigative  function.  It  also 
analyses the benefits, costs and other potential impacts of such initiative.   

2.  PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES 

An Impact Assessment Steering Group (IASG) was set up in December 2013 and met on 2 April 
2014. The following services were consulted by OLAF: Secretariat General, Legal Service, DG 
Human  Resources,  DG  Budget,  DG  Justice  and  the  Hearing  Officers  for  competition 
proceedings.  

1 Proposal for a Council regulation on the establishment of the European Public Prosecutor's Office (COM(2013)534 

final). 

2 Regarding criminal activities, OLAF will only provide preliminary evaluation of allegations and provide assistance to 

the EPPO on its request (as it already does today to national prosecutors).  

3 OLAF will also remain competent for those Member States not participating in the EPPO. 

4  Communication  of  17  July  2013  on  “Improving  OLAF's  governance  and  reinforcing  procedural  safeguards  in 
investigations: A step-by-step approach to accompany the establishment of the European Public Prosecutor’s Office 
(COM(2013)533). 

3 

 
 
 
 
 
                                                 
This  initiative  has  been  included  in  the  Commission  Work  Programme  (Reference  number 
2014/OLAF+/001).  

The  Council  has  been  consulted  in  the  framework  of  the  working  party  on  Combatting  Fraud 
(GAF) which held two meetings, on 8 November and 4 December 2013, on the follow up to the 
Communication.  The  Council  expressed  concerns  about  a  possible  new  legislative  initiative, 
regarding in particular timing and impacts on administrative burden and efficiency of the Office5. 
A political group of the European Parliament (European People’s Party - EPP) has organised a 
public hearing on 3 October 2013 where speakers expressed the view that OLAF's investigative 
powers  were  far  reaching  and  that  independent  external  control  over  OLAF's  investigative  acts 
should be increased.  

The  Supervisory  Committee  has  issued  two  analyses  on  the  issues  relevant  for  this  analysis  of 
impacts,  which  have  been  duly  examined6.  The  OLAF’s  Director-General  and  the  President  of 
the Supervisory Committee have also discussed these issues during several bilateral meetings.  

3.  POLICY CONTEXT, PROBLEM DEFINITION AND SUBSIDIARITY 

3.1. 

Policy context 

As  mentioned  above,  the  current  reflection  on  further  strengthening  procedural  safeguards  in 
OLAF takes place against the background of recent policy developments in this area, notably the 
new Regulation 883/2013 on OLAF investigations and the adoption of the legislative proposal on 
the EPPO. Discussions between the Commission and the European Parliament had been triggered 
by  certain  cases  where  concerns  were  voiced  about  the  way  OLAF  had  conducted  the 
investigations.  To  reply  to  these  new  elements  and  concerns,  the  Commission  adopted  a 
Communication  on  17  July  2013  announcing  further  reflection  on  the  need  to  strengthen 
procedural safeguard in OLAF investigations.  

This  Communication  considers  ways  to  improve  OLAF's  governance  and  reinforce  procedural 
safeguards  in  investigations,  as  a  step-by-step  approach  to  accompany  the  establishment  of  the 
European  Public  Prosecutor's  Office  (the  EPPO  would  be  responsible  for  investigating  and 
prosecuting  criminal  offences  against  EU  financial  interests  and  the  Commission's  proposal  is 
currently under discussion in the Council and the European Parliament).  

The Communication on OLAF's governance was also linked to the legislative reform of OLAF 
(the revision of Regulation 1073/1999) finally adopted on 11 September 2013, after nine years of 
discussions  between  the  three  EU  institutions.  The  creation  of  a  Controller  of  procedural 
safeguards  which  is  envisaged  in  the  Communication  needs  to  be  considered  against  the 
background of the past legal discussions on a review adviser which took place in the framework 
of  these  negotiations.  The  intensive  discussions  and  divergent  positions  of  the  Council  and  the 
European  Parliament,  which  the  Commission  tried  to  reconcile  in  a  reflection  paper  of  2010, 
illustrate the difficulty of reaching a political agreement on this issue. 

The  Communication  considers  in  particular  two  key  elements:  creating  a  "Controller  of 
procedural safeguards" to perform a legality review of investigative measures and to provide for 
enhanced procedural safeguards where OLAF intends to carry out acts "similar" to searches and 
seizures in EU institutions, bodies, offices and agencies. 

5  A  note  reflecting  the  results  of  these  discussions  (ST 17494/2013 INIT)  has  been  adopted  by  2478th  Coreper  of        

12 December 2013 without debate.  

6 Opinion No 2/2013 on OLAF’ Internal Complaints procedure; Working paper of the 8 October 2013 on “Reinforcing 

procedural safeguards in OLAF-in view of the monitoring experience of the Supervisory Committee”.  

4 

 
 
                                                 
OLAF 2013 reform and the past discussions about a review adviser:  

In  its  first  proposal  to  reform  OLAF,  adopted  in  2004,  the  Commission  had  envisaged  to 
enhance  external  control over  the  respect  of  procedural  guarantees  in  investigations  through  an 
increased role of the Supervisory Committee. The Supervisory Committee would have delivered 
opinions  concerning  procedural  guarantees  at  the  request  of  the  persons  concerned  and  would 
have been given a copy of any complaint lodged against OLAF by EU staff. One member on the 
Committee in particular, the "avocat des libertés", would have been responsible for dealing with 
complaints and procedural guarantees in general. This proposal gained no support. The Council 
in  particular  was  of  the  opinion  that  the  role  of  the  Supervisory  Committee  should  be  strictly 
limited to the general monitoring of OLAF’s activity, in order to identify systemic problems in its 
functioning and should therefore not include any involvement in individual cases.  

In a new legislative proposal in 2006, the Commission proposed the creation of an office of an 
independent  review  adviser,  exclusively  in  charge  of  ensuring  real  time  ex-post  control  over 
activities  and  ensuring  the  respect  of  procedural  guarantees  in  individual  cases:  on  his  own 
motion  or  on  requests  by  person  implicated  personally  in  the  investigation,  he  would  have 
delivered   opinions relating to procedural guarantees. He would have been appointed by OLAF's 
Director-General,  on  a  proposal  from  the  Supervisory  Committee,  for  a  non-renewable  term  of 
five years7. Reactions to this proposal were not very positive either because of concerns relating 
to the costs and of potential negative impacts on the duration of the investigations.  

In its 2008 Resolution, the European Parliament lent support to the idea of a Review Adviser 
who  would  have  been  an  expert  in  law  and  investigative  procedures,  qualified  to  hold  judicial 
office  in  a  Member  State  and  who  would  perform  this  task  exclusively.  The  complaint  by  a 
person concerned against alleged violation of procedural guarantees would have been first lodged 
with  the  Supervisory  Committee.  In  addition,  a  request  was  made  for  a  systematic  legality 
review,  which  would  have  been  carried  out  before  the  opening  and  before  the  closure  of  an 
investigation and the opinion would be annexed to the final investigation report (opinions would 
have  been  delivered  to  the  complainant,  the  Supervisory  Committee  and  OLAF's  Director-
General). The new OLAF Regulation provides for the creation of an internal advisory and control 
procedure, including a legality check. 

The Council, in its Conclusions of December 2010, expressed concerns about the proportionality 
of  administrative  costs  of  a  Review  Adviser  exclusively  entrusted  with  this  function  and  the 
increased duration of the investigations. As a possible compromise it suggested a Review panel 
composed of OLAF's Directors exercising the review function on an ad-hoc basis.  

In its 2010 reflection paper, the Commission accordingly discussed, in addition to a permanent 
ex ante legality review by OLAF's experts, these possible options for a review of complaints by 
an  internal  independent  review  adviser  (an  independent  Review  Adviser  appointed  by  OLAF’s 
Director-General on the proposal of the Supervisory Committee or a Review panel composed of 
OLAF directors without connection with the investigation). 

Therefore, the Commission's amended proposal of 2011 put forward the idea of an internal but 
independent review function exercised by independent OLAF officials to be chosen from a list. 
This approach was negotiated with some support in the Council working party but ultimately not 
carried  forward  in  the  trilogue  discussions  because  it  was  considered  unsatisfactory  and  of 
limited  added  value  in  comparison  to  the  existing  complaints  mechanism  (Ombudsman, 
European Data Protection Supervisor, EU Court of Justice). 

In  July  2013,  second  reading  amendments  on  an  increased  role  of  the  Supervisory  Committee 
tabled by the rapporteur were rejected by the plenary of the European Parliament. 

7 The Supervisory Committee should have based its proposal on a list of several candidates drawn up following a call 

for applications.  

5 

 
                                                 
Against  this  background,  the  revised  OLAF  Regulation  (Regulation  883/2013  on  OLAF 
investigations)  entered  into  force  on  1  October.  It  brought  some  substantial  changes  to  OLAF 
organisation  and  statutory  procedural  framework,  in  particular  as  regards  reinforcing  OLAF's 
governance  and  strengthening  the  procedural  safeguards  of  persons  concerned  by  OLAF's 
investigations (further description is provided in section 3.2). 

Recent OLAF’s investigations which prompted discussions on procedural guarantees 

Recent  OLAF’s  investigations  concerning  Members  of  the  EU  institutions  were  subject  to 
interest in the media and to discussions in the European Parliament (EP), prompting discussions 
among on the scope of the mandate of OLAF, on OLAF’s investigations and on the procedural 
guarantees  of  persons  concerned  by  the  investigations.  OLAF  and  the  Commission  were  faced 
with  public  and  EP  requests  for  more  transparency  about  the  conduct  of  some  investigation, 
which  needed  to  be  reconciled  with  the  obligation  of  confidentiality  about  the  individual 
investigations to which OLAF and the Commission are bound. OLAF’s investigations on several 
Members  of  the  EU  institutions  on  suspicions  of  corruption  also  led  to  controversy  with  the 
European  Parliament  about  the  scope  of  OLAF’s  mandate  and  OLAF’s  right  of  access  to  its 
premises, in particular those of its Members8.  OLAF's investigations in these cases highlighted 
institutional issues which need to be reflected upon (see section 3.2.2).  

3.2. 

Problem definition 

3.2.1.  Introduction:  

The necessity of an efficient and independent Anti-Fraud Office derives from Article 325 of the 
Treaty on the Functioning of the European Union which provides the duty of the European Union 
(and  of  Member  States)  to  protect  the  EU  financial  interests  against  fraud,  corruption  and  any 
other illegal activity affecting them. Article 16 of this Treaty, Article 6 of the Treaty on the EU 
and  Article  7,  8,  41  and  48  of  the  Charter  of  Fundamental  Rights  also  set  up  the  obligation  to 
protect fundamental rights of EU citizens.  

3.2.2.  What is the problem?  

The institutional issues highlighted by certain recent investigations, the perspective of the EPPO, 
and further concerns related to the way complaints are dealt with, raise issues which need to be 
carefully analysed.  

Controversy  over  institutional  issues  (immunities  and  specificity  of  Members  of  the  EU 
institutions):  

Certain  OLAF's  recent  investigations  cases,  in  particular  in  the  European  Parliament,  have 
highlighted institutional issues which are linked to the specific nature and functions of Members 
of the institutions (e.g. the MEPs, the Commissioners, the Heads of State and of government). So 
far, the EU legislator had not opted for a legal framework of OLAF’s investigations providing for 
procedural requirements aimed at reflecting the specificity of the Members of the EU institutions. 
OLAF’s current legal framework treats them in an equal manner as all other persons concerned 
by  OLAF’s  investigations.  OLAF’s  Director-General  is  responsible  for  ordering  the  conduct  of 
investigative measures concerning them (such as the inspection of their professional offices). 

8 OLAF's mandate includes suspicions of serious breach of obligations by EU staff and Members  of EU institutions 
(see  Article  2(b)  of  Decision  1999/352  establishing  the  OLAF  and  the  Inter-institutional  Agreement  between  the 
European  Parliament,  the  Council  of  the  European  Union  and  the  Commission  of  the  European  Communities 
concerning internal investigations by OLAF adopted on 25 May 1999 and the subsequent decisions adopted by the 
institutions  to  implement  the  inter-institutional  agreement).  There  were  some  controversy  with  the  EP  first  about 
OLAF’s competence to investigate EP staff and Members and then about its right to access offices of MEPs.  

6 

 
 
 
 
 
 
 
                                                 
Yet,  it  could  be  argued  that  their  political  mandate,  special  responsibilities,  independent  status 
and  mode  of  election  or  appointment  distinguish  them  from  staff  members  and  other  persons 
concerned by OLAF investigations (including EU staff). This specificity is for example reflected 
by  the  fact  that  they  enjoy  a  “full”  parliamentary  immunity  (whereas  EU  staff  only  enjoys  a 
functional immunity as members of an international organization). In the case of the Members of 
the European Parliament, their Statute provides for the freedom of the mandate (Article 2(1) of 
the  Statute)  and  for  the  protection  against  prosecution  or  arrest  on  the  territory  of  a  Member 
State. They enjoy, in addition, the national parliamentary immunity which exists in the Member 
State of their residence9. Members of government may also benefit from immunities and special 
Courts in some Member States.  

There is consequently a need to reflect on whether these specificities should have a repercussion 
on  OLAF’s  legal  framework10.  It  should  nevertheless  be  recalled  that  the  objective  of  these 
immunities is not to protect the individual himself but to protect the institution and the political 
mandate from obstructions to its exercise. They consequently apply to a body which is does not 
itself  belong to  the  institution.  OLAF,  as  an  administrative  body  internal  to  the  EU  institutions 
and common to all of them, derives its investigative powers from the EU institutions themselves, 
which  on  the  basis  of  their  administrative  autonomy  have  delegated  the  task  of  investigating 
suspicions  of  corruption  of  their  staff  and  Members  to  it11.  OLAF  is  therefore  tasked  with 
exercising the investigative powers of the relevant institutions. 

The perspective of the EPPO: 

Once  established,  the  EPPO  and  no  longer  OLAF  would  be  responsible  for  investigating 
suspicions  of  criminal  activities  affecting  the  financial  interests  of  the  EU.  Accordingly,  the 
OLAF  Regulation  would  need  to  be  amended  at  that  time.  OLAF  would  continue  to  carry  out 
administrative  investigations  concerning  those  illegal  activities  which  would  not  fall  under  the 
competence  of  the  EPPO  (e.g.  non-fraudulent  irregularities).  As  an  external  judicial  body, 
investigating  penal  offences  and  crimes  and  having  investigative  powers  typical  of  judicial 
investigations  (including  the  power  to  enforce  its  investigative  measures),  the  EPPO 
investigations  would  benefit  from  reinforced  procedural  guarantees  typical  of  judicial 
investigations. In order to see if these procedural safeguards should and could be transposed to 
OLAF's  administrative  investigations,  OLAF's  investigative  powers  as  compared  with  those  of 
the EPPO need to be carefully analysed.  As already mentioned before, the comparison between 
OLAF and the EPPO bears substantial limitations (OLAF is an administrative inter-institutional 
body  deriving  its  power  from  the  EU  institutions  themselves,  with  limited  administrative 

9 National regimes of immunities of Members of the Parliament vary according the Member States: some regimes are 
less generous than the EU regime (e.g. judicial investigation and prosecution of the MEP are possible without lifting of 
the  immunity  by  the  Parliament;  only  arrest  and  detention  are  subject  to  the  immunity);  or  more  protective  in  some 
other  Member  States  (e.g. the  MP  cannot  be  the subject  of  an  investigation). These  immunities  have  generally  been 
created in Member States at times where European Democracies were not as stable as today and when the legislative 
power needed to be protected from interferences- real at that time- from the executive and judicial power. 

10 In case C-167/02 P Rothley and others vs. European Parliament, where some Members of the European Parliament 
requested  annulment  of  the  EP  decision  of  18.11.1999  regarding  cooperation  with  OLAF,  he  Court  of  Justice 
considered the action to be non-admissible on the ground that the decision was a measure of general application not 
individually affecting the legal situation of the Members for the purposes of Article 230 EC. It also considered that the 
Members avail themselves to effective judicial protection and legal remedies provided for by the Treaty.   

11 OLAF has been established by the Commission in 1999 to exercise the Commission's powers to fight fraud to the 
EU  budget  as  well  as  to  investigate  serious  breaches  of  their  obligations  by  its  staff.  Through  the  inter-institutional 
agreement  of  25  May  1999,  the  EU  institutions  (EP,  Council,..)  as  well  as  EU  offices,  bodies  and  agencies  have 
delegated this task of fighting fraud and serious breaches of professional obligations to OLAF. OLAF is consequently 
an administrative body, internal and common to all the EU institutions (regarding minor breaches, not covered by the 
remit or priorities of OLAF, IDOC – a service belonging to DG Human Resources- has competence over staff of the 
Commission and, through service-level agreements, of the EEAS and of the executive agencies. Other EU institutions 
have their own service competent for minor breaches, equivalent to IDOC).  

7 

 
 
 
 
 
                                                 
investigative powers (which it cannot enforce) and with no decision making power (such as the 
power to launch disciplinary sanctions, to impose penalties or to prosecute).  

It also needs to be reminded that the proposed EPPO Regulation is still under negotiations and 
the outcome of this negotiation is still awaited. Structure and competences of the EPPO may be 
substantially  modified  as  compared  with  the  Commission’s  proposal.  The  Commission  Work 
Programme  for  2014  provides  for  the  adoption  of  the  EPPO  regulation  before  the  end  of  this 
year. 

Concerns  voiced  by  certain  stakeholders,  as  regards  the  procedural  safeguards  of  all  persons 
concerned by OLAF’s investigations:  

Regulation  883/2013  has  introduced  an  important  set  of  procedural  guarantees  in  OLAF 
administrative  investigations.  Although  this  led  to  a  considerable  strengthening  of  Regulation 
883/2013  in  this  regards,  some  Members  of    the  European  Parliament  think  that  procedural 
safeguards applied by OLAF are not yet sufficient and therefore call for enhanced safeguards and 
increased  external  and  independent  control  over  OLAF.  These  demands  have  been  voiced  in 
particular in light of developments surrounding some prominent cases which concerned Members 
of EU institutions.  

Those  stakeholders  consider  that  the  recent  reform  of  OLAF’s  legal  framework  did  not  go  far 
enough. The legislative proposal, which has now become Regulation 883/2013, was adopted by 
the  EP  plenary  of  3  July  2013  with  a  limited  majority12.  One  EP  political  group  organised  a 
public  hearing  on  3  October  2013,  where  several  speakers,  including  academics  and 
professionals,  presented  the  view  that  OLAF's  investigative  powers  were  so  far  reaching  that 
independent external control over OLAF's investigative acts should be increased. The duration of 
OLAF's investigations was also criticized for being too long, thus violating a fundamental right 
of the person concerned. 

Most recently, in 2014, discussions on OLAF in the Parliament in the framework of the discharge 
to the Commission, the EPPO and the annual PIF report show the interest of the EP on the issue 
of  procedurals  safeguards13.  While  none  of  these  reports  call  for  a  revision  of  Regulation 
883/2013 to strengthen these safeguards, at least not before the EPPO is established, the EP 2012 
Resolution  on  the  Protection  of  the  EU’s  Financial  Interests  welcomes  the  adoption  of  the 
Commission  Communication  of  July  2013  “Improving  OLAF’s  governance  and  reinforcing 
procedural  safeguards  in  investigations”  and  attaches  particular  importance  to  monitoring  the 
observance  of  procedural  safeguards  and  fundamental  rights  of  the  persons  affected  by 
investigations. The EP Decision on the 2012 budgetary discharge for the Commission addresses 
certain aspects of the Dalli investigation. The EP interim report on the EPPO calls for including 
sufficient procedural safeguards among the changes to the OLAF Regulation which would come 
as a result of the establishment of the EPPO.  

Concerns were also voiced about the way complaints are dealt with in OLAF. In particular, the 
Supervisory Committee (see its Opinion No 2/2013 of 30 December 2013) is of the opinion that 
persons concerned do not have sufficient and immediate remedies to redress potential violations 
of  their  rights  and  that  the  recent  reform  has  not  solved  this  problem:  the  redress  mechanisms 
offered  by  EU  or  national  courts,  the  European  Data  Protection  Supervisor,  the  European 

12 In second reading, the EP rapporteur had proposed amendments to the Council’s position which have been rejected 
by the EP plenary by a majority of only two votes. Adoption of the Council’s position in plenary enabled the signature 
of the new OLAF Regulation (Regulation 883/2013) on 11 September 2013.  

13 EP Resolution on the Annual Report 2012 on the Protection of the EU’s Financial Interests – Fight against fraud, 
adopted  by  the  EP  plenary  on  3  April  2014  (2013/2132(INI),  rapporteur  I.  Ayala  Senders);  EP  Decision  on  the 
Discharge to be given to the Commission in respect of the implementation of the general budget of the European Union 
for the financial year 2012, adopted on 3 April 2014  (rapporteur: Markus Pieper); and EP report on the Report on the 
establishment of the European Public Prosecutor's Office (EPPO) adopted on 12 March 2014. 

8 

 
 
   
 
 
 
 
                                                 
Ombudsman and the Supervisory Committee would meet certain limits: some are limited in their 
scope,  some  intervene  ex  post  only  or  long  after  the  investigative  act  has  been  committed. 
Fundamental  rights  could  therefore  not  be  ultimately  effective  without  a  proper  complaint 
procedure. The Supervisory Committee consequently calls for an internal procedure for dealing 
with individual complaints whereby a senior independent Controller, attached to the Secretariat 
of  the  Supervisory  Committee,  would  be  in  charge  of  dealing  with  individual  complaints  (see 
also  section  5.1).  Recently,  OLAF  has  followed  the  recommendation  of  the  Supervisory 
Committee  to  better  formalise  its  internal  complaints  procedure  by  adopting  it  with  a  written 
decision and publishing it on its website. 

Box 1 below analyses the actual record of complaints against OLAF in recent years. 

Box 1              Complaints lodged against OLAF's acts in recent years14 

In  addition  to  the  possibility  of  review  by  an  EU  or  national  court,  complaints  against  OLAF's 
investigative  or  administrative  acts  can  be  lodged  with  the  Ombudsman,  the  EDPS  or  directly 
with the Director-General. In recent years, less than ten complaints have been lodged each year 
against OLAF (25 complaints between 2011 and 2013, with the number varying from one year to 
another and sometimes several complaints relating to the same case), a figure which needs to be 
put in a perspective with hundreds of investigation measures carried out each year. A number of 
these  complaints  concern  the  issues  of  access  to  documents,  and  relate  to  the  fact  that  the 
complainant is not satisfied with the amount of information OLAF has granted to him, and not to 
the core of the investigative actions. 

Most of the complaints are lodged with the Ombudsman and concern specific procedural issues, 
including access to documents and to the file15. In a number of cases, the Ombudsman decided 
not  to  pursue  the  complaints.  Some  complaints  concerned  procedural  issues  which  had  not  yet 
been completely clarified at that time in the Regulation. Regulation 883/2013 has now clarified a 
number of these issues, such as the right to be assisted by a lawyer or the obligation to inform the 
person concerned of the outcome of the investigation16.  

Complaints  lodged  with  the  EDPS  form  a  minor  but  important  share  of  all  complaints  against 
OLAF.  As  an  example,  during  the  period  2009-201217,  four  groups  of  interlinked  complaints 
were submitted to the EDPS, half of them concerning requests for further access to personal data. 
The  two  other  complaints  concerned  the  processing  of  personal  data  during  the  conduct  of 
investigations  (digital  forensic  examinations)  on  which  the  EDPS  concluded  that  OLAF  had 
complied with the data protection requirements18.  

14  This  analysis  is  based  on  statistics  provided  by  OLAF's  Legal  Advice  Unit.  Are  considered  as  complaints  those 
requests having as a subject the review of an act unfavourably affecting the complainant. This means that requests to 
access  documents,  one’s  file  or  personal  data  are  not  considered  as  complaints,  while  complaints  against  the  reply 
provided by OLAF on these requests will be considered as complaints.  

15 Thirteen complaints were lodged with the Ombusdman between 2011 and 2013. 

16  In  recent  years  the  Ombudsman  concluded  on  maladministration  regarding  the  procedural  guarantees  and 
fundamental rights of the persons concerned in four cases (two in 2012 and other two in 2013). In all four cases OLAF 
timely responded to all critical remarks and provided the Ombudsman with information on measures it had taken or 
was intending to take. Most of the indicated problems were already systemically resolved in ISIP and recently in GIPs, 
as well as in the new OLAF Regulation. There is also a case of maladministration concerning on-the-spot checks. 

17 Eight complaints were registered by the EDPS in 2011 and 2012, two in 2009 and one in 2010. No complaint was 
received in 2013.  

18  Some  EU  staff  Members  complained  about  the  fact  that  OLAF  would  have  gathered  an  excessive  amount  of 
personal data from a computer (private documents) and from the SIM card of a service mobile phone (telephone traffic 
data). 

9 

 
 
 
 
 
 
 
 
                                                 
Four  complaints  have  also  been  lodged  directly  with  OLAF’s  Director-General  between  2011 
and  2013  and  submitted  to  OLAF’s  internal  review  adviser,  responsible  for  dealing  with 
complaints  (see  box  2).  This  type  of  complaints  corresponds  to  the  type  of  complaints  which 
could, in the future, be dealt with through a new complaints procedure. 

Concerning the issue of access to documents (public access to documents or access to one’s file 
or to one’s personal data by a person concerned) which forms the basis for an important share of 
the complaints, it is interesting to note that the EUCJ recently developed a case law concerning 
access  to  documents  related  to  investigation  activities  in  procedures  whose  confidentiality  is 
guaranteed by the Union legislation, whereby there is a general presumption of applicability of 
the protection of the purpose of inspections, investigations and audits with a consequent refusal 
to  disclose  them  (without  it  being  necessary  to  conduct  a  case-by-case  based  assessment19). 
Applying  this  principle  should  help  OLAF  to  reduce  the  deadlines  in  answering  requests  for 
access to documents. 

There have been and continue to be procedures for filing complaints. Even if the case record does 
not  support  the  assumption  of  violations  of  procedural  guarantees  by  OLAF,  there  remains  an 
interest in reinforcing the protection of the defence rights of persons concerned by investigations 
to reduce any risk of their violation and increase trust in OLAF’s investigations.  

The  respect  of  individual  guarantees  remains  an  important  objective.  It  appears  therefore 
necessary to have a closer look at how this issue is currently addressed in OLAF (3.2.3.1), and 
which lessons can be drawn from the procedures in other areas (3.2.3.2). 

3.2.3.  Experiences in dealing with procedural safeguards 

3.2.3.1.  OLAF's  experience:  mechanisms  of  control  over  procedural 
guarantees, following in particular implementation of Regulation 883/2013 

Since some stakeholders expressed concerns about a possible lack of control over OLAF which 
could potentially lead to a violation of procedural safeguards, it appears essential to analyse the 
current  mechanisms  of  controls  which  include  in  particular  controls  over  the  respect  of 
procedural  safeguards.  This  follows  implementation  of  the  new  Regulation  883/2013  which 
strengthened procedural safeguards and introduced the obligation to conduct a legality review.  

As illustrated in the chart below, different types of control over OLAF's investigation measures 
apply throughout the life cycle of an investigation. Both internal and external control mechanisms 
are in place and may appear on a systematic or regular basis or be driven by complaints. Tools 
intended  to  prevent  violation  of  procedural  guarantees  by  informing  OLAF’s  staff  about  these 
rights, procedures and managerial control are also in place (e.g. Internal guidelines to the Staff on 
investigation  procedures  (GIP),  instructions  to  staff  related  to  the  protection  of  personal  data, 
staff trainings and special advisors to the investigative directorates).  

At each stage of an investigation, at least one control applies (internal, external or both types of 
controls): during the selection phase (decision to open or not an investigation), the investigation 
phase  (the  conduct  of  the  investigation  itself)  and  the  review  phase  (after  completion  of  the 
investigation).  Internal  controls  are  carried  out  in  particular  by  Unit  0.1  and  by  the  Director-
General.  OLAF’s  Legal  Advice  Unit  and  the  Special  Advisors  to  the  investigative  Directorates 
(directorates  A  and  B)  further  support  the  quality  control  of  investigations.  OLAF  has  also 
established a Data Protection Officer in charge of monitoring compliance of OLAF with the EU 
requirements on Data protection and reporting annually on this issue.  
External controls are carried out by: 

19 See cases C-477/10P – Commission vs. Agrofert and C/404/10P – Commission vs. Editions Odile Jacob SAS. 

10 

 
 
 
 
 
 
 
 
                                                 
- 
- 

- 
- 
- 

the Ombudsman (who controls the respect of the principle of good administration), 
the  European  Data  Protection  Supervisor  (who  is  responsible  for  monitoring  and 
ensuring the application of the EU data protection requirements), 
the EU Courts (on the basis of action for annulment or action for damages), 
the Supervisory Committee (general monitoring of the investigative function), and  
the  European  Court  of  Auditors  (which  carries  out  management  audits  and  issues 
opinions on OLAF). 

Finally,  OLAF  is  subject  to  the  overall  political  control  of  the  European  Parliament,  which 
exercises its control notably through hearings of the Commissioner, the annual discharge exercise 
or questions from the Members of the Parliament. 

11 

 
 
 
 
Chart 1 Description of the internal and external control mechanisms over OLAF  

throughout the life cycle of an investigation 1                         

12 

 
 
 
 
13 

 
 
 
 
Box 2                     OLAF’s internal practice of dealing with complaints 

Even if no complaints procedure is enshrined in the Regulation, OLAF has the duty to examine 
complaints  lodged  directly  with  it,  as  part  of  its  duty  to  comply  with  the  general  principles  of 
good  administration.  Following  a  recommendation  of  the  Supervisory  Committee,  OLAF  has 
formalised its internal complaints procedure which is now published on its website20. The Legal 
Advice  Unit  is  tasked  with  the  review  of  the  complaints,  including  complaints  concerning 
procedural guarantees in the context of investigations. The Legal Advice Unit has full access to 
all  relevant  information  and  is  provided  with  any  necessary  assistance  by  the  responsible 
investigative  Directorate.  After  consulting  the  Advisor  to  the  responsible  investigative 
Directorate, it reports its findings to the Director-General. 

In  the  past,  a  complaints  procedure  had  already  been  mentioned  in  OLAF’s  manual  and  in  the 
Internal Instructions to staff on investigations (ISIP). The Director-General appointed, on an ad 
hoc  basis,  an  EU  senior  official,  working  in  OLAF  but  not  connected  to  the  investigation,  to 
conduct  the  review  of  the  complaints.21  Between  February  2012  and  September  2013,  six 
complaints have been received in the context of this procedure.  

The Contribution of OLAF Regulation 883/2013 
to reinforced control mechanisms over OLAF and to strengthened procedural safeguards 

Control mechanisms over OLAF’s investigations are also the result of the implementation of the 
new OLAF Regulation, which represents a major step forward in the strengthening of procedural 
safeguards for the persons concerned by OLAF investigations and of OLAF's governance. 

• 

In particular, the internal legality review foreseen by Article 17(7) of Regulation 883/2013 
("internal  advisory  and  control  procedure,  including  a  legality  check,  relating,  inter  alia,  to 
the respect of procedural guarantees and fundamental rights of the persons concerned and of 
the national law of the Member States concerned") has been implemented. OLAF carried out 
an  internal  reorganisation  which  led  to  the  creation  of  a  new  Selection  and  Review  Unit 
(Unit 0.1), an independent unit directly under the supervision of the Director-General (Box 
3).  

Box 3                             OLAF's internal legality review mechanism (Unit 0.1) 

Unit 0.1 carries out an independent ex-ante legality review at each step of the investigation:  

- 
- 

- 

during the selection phase;  
during  the  investigative  phase  (on  the  purpose  of  the  case  and  on  the  scope  of  the 
investigation as well as prior to certain activities, Unit 0.1 verifies the legality, the necessity 
and the proportionality of the planned investigative measure, such as inspections of premises 
and interviews of persons concerned);   
after  completion  of  the  investigation  (following  the  completion  of  the  investigation  before 
adopting  the  final  report  and  the  recommendations  on  its  drafting  and  in  respect  of  the 
comprehensiveness of the communications and notifications following the closure decision), 
Unit  0.1  checks  that  all  actions  were  conducted  in  accordance  with  applicable  rules  and 
specifically that the rights of persons concerned have been respected.  

20 The procedure is presented in detail on OLAF’s website: http://ec.europa.eu/anti_fraud/investigations/complaints-on-
olaf-investigations/complaints_on_olaf_investigations_en.htm.  

21 In practice, legal experts or experienced senior officials supported by legal experts have been appointed.  

14 

 
  
 
 
 
 
 
 
 
 
                                                 
Unit  0.1  issues  opinions  on  each  investigative  measure  carried  out  by  OLAF's  investigators 
(opinion  on  planned  investigative  measures)  as  well  as  on  final  reports,  of  which  a  small 
percentage  have  so  far  been  negative.  This  review  also  allows  identifying  fields  for  possible 
improvement of practice of OLAF.  

•  New 

Internal  guidelines  on 

investigative  procedures 

(GIP)22  were 

adopted                           

on 1 October 2013 and have implemented or confirmed the procedural guarantees laid down 
in Regulation 883/2013 as well as the internal control procedure, including the legality check, 
described  above.  Several  trainings  have  been  organised  on  these  new  guidelines  for  all  the 
staff and also some specific training for the management in particular.   

• 

Implementation  of  a  clarified  and  improved  framework  of  relations  with  the  Supervisory 
Committee:  if  the  relations  between  OLAF  and  its  Supervisory  Committee  have  been 
characterised  in  a  recent  past  by  some  degree  of  tension,  which  has  raised  some  concerns 
among  certain  stakeholders,  these  relations  have  recently  improved  and  should  be  further 
improved  following  the  adoption,  on  14  January  2014,  of  new  working  arrangements 
pursuant to Regulation 883/2013. The working arrangements deal mainly with the practical 
modalities of the obligations for OLAF to provide the Supervisory Committee with regular 
and reliable information on the investigative function of the Office to enable the Supervisory 
Committee  to  perform  its  systemic  monitoring  responsibilities.  They  also  provide  a 
framework  for  OLAF  to  transmit  certain  case  related  information,  fully  respecting  the 
relevant legal provisions on data protection.   

•  Another new element of OLAF governance introduced by Regulation 883/2013 is the setting 
up  of  an  annual  inter-institutional  exchange  of  views.23  While  individual  cases  cannot  be 
discussed  during  this  exchange,  it  gives  EU  institutions  the  opportunity  to  debate  on  the 
procedural  safeguards  applied  in  OLAF.  The  first  political  exchange  of  views,  which  took 
place on 8 April 2014, covered procedural safeguards and the complaints procedure as well 
as the working arrangements with the Supervisory Committee.  

3.2.3.2.  Perspective  of  the  EPPO  and  lessons  from  the  areas  of 
competition and financial markets supervision    

The Commission has committed itself in its Communication of 17 July 2013 to consider ways to 
improve OLAF's governance and reinforce procedural safeguards in investigations, as a step-by-
step approach to accompany the establishment of the European Public Prosecutor's Office, even 
before the EPPO is established. This assessment should be inspired by the procedural safeguards 
in the Commission's proposal on the establishment of a European Public Prosecutor’s Office in as 
much as they can be transposed to OLAF's administrative investigations and enacted even before 
the EPPO is established. In addition, stakeholders who think that OLAF’s procedural safeguards 
should  be  strengthened  often  refer  to  the  legal  framework  of  DG  Competition,  another  EU 
administrative investigative service, and to the role of the Hearing Officer in competition matters. 

It  appears  therefore  advisable  to  analyse  and  take  stock  of  the  mechanisms  of  procedural 
safeguards  under  the  EPPO  proposal  and  for  DG  Competition,  related  to  their  respective 
investigative  powers.  Experience  of  the  European  Securities  and  Markets  Authority  (ESMA), 
which,  in  2009,  has  been  granted  investigative  powers  towards  the  credit  rating  agencies,  may 
also provide some input to the analysis. A comparison with the situation in Member States also 
shows  that  defence  rights  applied  by  national  administrative  investigation  authorities  are  in 

22 GIP have replaced the ISIP (Internal Instructions to Staff on investigative procedures) from 1 October 2013 

23  Article  16  of  Regulation  883/2013  foresees  that  the  three  EU  institutions  (Council,  Parliament  and  Commission) 
meet, once a year, the Director-General of OLAF for an exchange of views at political level to discuss OLAF's policy 
relating to methods of preventing and combating fraud, corruption and any other illegal activity affecting the financial 
interests of the EU. 

15 

 
 
 
 
 
 
                                                 
general not as developed and explicit as in OLAF. Safeguarding evidence seems to be given high 
priority  when  considering  defence  rights,  even  in  policy  areas  where  investigative  powers  are 
higher than those of OLAF and are accompanied by sanctioning powers, such as in the areas of 
taxation and competition24. 

Box 4                       The EPPO proposal: investigative powers and procedural safeguards 

Investigative  powers  of  the  EPPO  are  defined  in  Article  26  of  the  proposed  Regulation  (see 
annex  II).  Article  26  distinguishes  two  types  of  investigative  measures  and  requires  a  judicial 
authorisation  only  for  the  first  type  of  measures,  defined  in  points  (a)  to  (j)  of  the  proposed 
Article 26(1): these measures are the most intrusive ones and include searches of private premises 
and  personal  property  or  computer  system  (Article  26(1)(a)),  production  order  of  any  relevant 
document  or  of  stored  computer  data  including  traffic  data  and  banking  account  data  (Article 
26(1)(b)),  sealing  of  premises,  interception  of  telecommunications  including  e-mails  (Article 
26(1)(e)) 25.  

The  second  type  of  investigative  measures  foreseen  for  the  EPPO  are  considered  less  intrusive 
and therefore do not require, at EU level, judicial authorisation26. They are defined in points (k) 
to  (t)  of  the  proposed  Article  26(1)  and  include  access  to  premises  (Article  26(1)(n))27, 
summoning of witnesses (Article 26(1)(k)), seizure of objects needed as evidence or surveillance 
in public places (Article 26(1)(r))28. 

OLAF's  investigative  powers  can  at  the  most  be  compared  with  the  second  type  of  EPPO's 
investigative powers (e.g. access to premises and seizure of objects needed as evidence), which 
do  not  require,  at  EU  level,  any  judicial  authorisation.  OLAF's  investigative  measures  are 
administrative  by  nature,  are  not  enforceable  as  such  and  therefore  cannot  be  compared  to 
"searches" which is a wording characteristic of judicial bodies having the power to enforce their 
decisions.  OLAF  relies  on  the  willingness  of  the  institution  to  allow  access  to  their  premises. 
Besides, Inspections of professional premises of EU staff or taking of copies of their professional 
working  tools  -  such  as  computer  or  other  data  medium-  can  be  considered  only  to  a  limited 
extent  to  be  an  intrusion  into  their  privacy  since  these  professional  tools  are  not  their  personal 
property but the property of the institution; as owner of these professional tools and employer of 
the member of the staff concerned by an investigation, the institution is entitled to access these 
tools  and  OLAF,  as  an  internal  inter-institutional  administrative  body  responsible  for 
investigating possible breaches of their obligations by EU staff, derives its power to access these 

24  See  "Defence  rights  during  administrative  investigations:  a  comparative  study  into  defence  rights  during 
administrative  investigations  against  EU  fraud  in  England  &  Wales,  Germany,  Italy,  the  Netherlands,  Romania, 
Sweden and Switzerland." Oswald Jansen and Philipp M. Langbroek, 2007, Intersentia. This study was funded by the 
European Commission.  

25 The remaining EPPO’s investigative powers which require a prior judicial authorisation according to Article 26(1) of 
the EPPO proposal are the freezing of the proceeds of crime, real-time surveillance of telecommunications traffic data, 
monitoring  of  financial  transactions,  freezing  of  future  financial  transactions,  surveillance  in  non-public  places 
including  covert  video and audio  surveillance  and  covert  investigations.  Other  investigative  measures  do  not  require 
any  judicial  authorisation,  except  if  such  requirement  is  foreseen  by  national  legislation.  However,  stakeholder 
consultations on the EPPO proposal show that a number of them are concerned by a possible new requirement since 
their Member State does not currently require judicial authorisation for all the investigative powers foreseen in article 
26(1). 

26 National legislation may require such judicial authorisation. 

27 This must be understood as access to public premises since access to private premises requires judicial authorisation 
under Article 26(1)(a). 

28 Include identification measures (taking of photos, visual recording and recording of a person's biometric features), 
seizure  of  objects  needed  as  evidence,  tracking  and  control  of  persons,  tracking  and  tracing  of  objects,  targeted 
surveillance in public places of the suspected and of third persons, access to national and EU public registers as well as 
registers kept by private entities in a public interest. 

16 

 
 
 
 
 
 
                                                 
tools from the institution itself (see section 3.2.2). The Commission’s right of access, even in the 
absence of the person concerned, to an EU official’s computer held in his office and used for the 
professional purposes, has been confirmed by the Court of Justice.29  

Box 5                     DG Competition: investigative powers and the Hearing Officers 

At EU level, a function currently concerned with safeguarding the procedural guarantees during 
investigations is that of the Hearing Officer for competition proceedings30. The Hearing Officer is 
attached,  for  administrative  purposes,  to  the  cabinet  of  the  Commissioner  with  special 
responsibility  for  competition,  but  acts  independently.    Responsible  for  safeguarding  the 
procedural rights throughout competition proceedings, in particular the right to be heard, his main 
tasks  are  (1)  to  organise  and  conduct  the  oral  hearing  and  (2)  to  act  as  an  independent  arbiter 
where  a  dispute  arises  on  the  effective  exercise  of  procedural  rights  between  parties  and           
DG Competition (only if this dispute cannot be resolved by them).  

He  acts  mostly  on  request  by  a  complainant  and  after  the  request  has  first  been  lodged  with        
DG  Competition.  The  scope  of  his  mandate  is  clearly  defined  in  Decision  2011/695/EU31  and 
covers  some  specific  procedural  issues  raised  during  the  investigative  phase,  on  which  he  has 
decisional  or  recommendation  powers:  legal  professional  privilege,  the  right  to  be  informed  of 
one's  procedural  status,  the  privilege  against  self-incrimination,  and  request  for  extension  of 
deadlines  to  reply  to  a  request  for  information.  He  can  also  report  on  other  procedural  issues. 
After  the  investigation  phase,  he  also  decides  on  disputes  related  to  access  to  the  file  and 
disclosure of business secrets and other confidential information.32  

It is important to note that the Hearing Officer has no power to intervene before the conduct of an 
investigation  measure  (ex-ante  control).  Besides,  his  control  exclusively  concerns  the  effective 
exercise of the right to be heard and the respect of the legality, it does not extend to control on the 
proportionality of the investigative measure.  

There  are  currently  two  Hearing  Officers,  assisted  by  8  full  time  staff  provided  by                     
DG Competition.  

It  should  also  be  noted  that  specific  guarantees  and  control  mechanisms  in  the  field  of 
competition  appear  justified  by  the  scope  of  DG  Competition's  investigative  and  sanctioning 
powers  and  achieve  the  necessary  balance  between  the  objectives  of  efficiency  of  the 
investigation  and  protection  of  citizen’s  fundamental  rights.  DG  Competition’s  investigative 

29 See case C-191/98 P Tzoanos vs. Commission. The Court has also ruled that such access does not violate the right of 
defence. 

30 See http://ec.europa.eu/competition/hearing_officers/index_en.html 

31 Decision of the President of the European Commission of 13 October 2011 on the function and terms of reference of 
the hearing officer in certain competition proceedings, OJ L 275, 20.10.2011, p. 29  
32  Regarding  the hearings  and the  effective exercise  of  procedural  rights,  the  Hearing  Officer  provides  advice  to the 
Commission, through interim reports (which are inaccessible internal documents) whereby he draws conclusions on the 
respect of procedural rights during the proceedings as a whole. He is required to attest whether the rights have been 
respected in his final reports which are published in the Official Journal. Apart from the matter in which the Hearing 
Officer takes binding decisions (extension of time limit for replying to a decision requesting information in antitrust 
proceedings; right to be informed of one's procedural status in antitrust investigations; extension of the time limit for 
replying to a statement of objections or making known one's views; access to the file; disclosure of business secrets and 
other  confidential  information),  his  conclusions  are  not  strictly  binding,  similarly  to  the  Controller  of  procedural 
safeguards described in the Communication of 17 July 2013, whose conclusions would nevertheless be communicated 
to the Director-General of OLAF and attached to the report sent to the competent national judicial authorities. 

17 

 
 
 
 
 
 
 
 
 
 
                                                 
powers33 go further than OLAF's powers and include the possibility to seal business premises and 
to inspect other premises including private homes of directors and staff of an economic operator 
(the  latter  measure  requires  national  judicial  authorisation).  Besides,  the  Commission  enjoys 
important  sanctioning  powers  in  the  field  of  competition  comprising  the  power  to  issue 
injunctions and to impose fines (of up to 10% or periodic payments of up to 5% of the average 
daily turnover34). OLAF does not have any sanctioning power.  

Box 6                                   The European Securities and Markets Authority (ESMA):  

Investigative powers and controls 

The  investigative  powers  that  the  European  Securities  and  Markets  Authority  (ESMA)  enjoys 
towards credit rating agencies deserve a closer look, as they may provide us with further insight 
on the balance between investigative powers and control mechanisms over the exercise of these 
powers at EU level. 

In order to fulfil its mandate, ESMA has been granted more developed powers than OLAF, both 
regarding investigative and sanctioning powers. Regarding its investigative powers35, ESMA can 
perform on-site inspections, access any business premises, seal business premises and books and 
records relevant to the investigation. It can also request records of telephones and data traffic36. 
Contrary  to  OLAF,  ESMA  can  summon  persons  concerned  to  provide  information  and  apply 
fines  (of  up  to  3%  of  the  average  daily  turnover37)  in  case  it  is  provided  with  incorrect  or 
misleading answers. It has the same powers regarding "related third parties" (persons who are not 
directly concerned by an investigation but have a close link with the person concerned).  

To  offer  a  complete  picture  of  ESMA's  powers,  it  is  necessary  to  mention  the  important 
sanctioning  powers  at  its  disposal:  withdrawal  of  registration,  temporary  prohibition  to  issue 
credit  ratings,  fines  and  others.  OLAF  does  not  have  any  sanctioning  power.  It  can  only  make 
recommendations to the EU institutions and bodies or to national judicial authorities. 

As far as controls over ESMA are concerned, a hearing procedure aimed at ensuring the respect 
of  the  right  to  be  heard  of  the  persons  subject  to  the  proceeding  is  formalised  in  the  relevant 
Regulation. ESMA's Board of Supervisors gives the opportunity to be heard on ESMA's findings 
before  ESMA  takes  any  sanctioning  decision.  In  addition,  ESMA’s  decisions  may  be  appealed 
through  the  Board  of  Appeal,  which  is  a  joint  body  of  the  European  Supervisory  Authorities 
(EBA, EIOPA and ESMA).    

33 See Articles 17 to 22 of Regulation 1/2003 of 169 December 2002 on the implementation of the rules on competition 

laid down in Articles 81 and 82 of the Treaty.  

34 See Article 23 and 24 of Regulation 1/2003 of 169 December 2002.  

35 See Articles 23b to 23d of Regulation 1060/2009 of 16 September 2009 on credit rating agencies.  

36  Judicial  authorisation  is  necessary  to  access  records  of  telephones  and  data  traffic  if  provided  so  by  national 

legislation.  

37 See Article 36b of Regulation 1060/2009. The amount of a fine shall be of up to 3% of the average daily turnover of 
the company or of up to 2% in the case of a natural person. Fines are imposed on a daily basis and cannot be imposed 
for more than 6 months.  

18 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
3.2.4.  What should further be improved?   

The EU relies on a democratic political system governed by the rule of law. OLAF should offer 
the best protection of the procedural rights of the persons concerned by an investigation together 
with the effective protection of the EU financial interests and citizens’ interest as EU taxpayers. 
Even  though  there  is  no  indication  that  procedural  rights  of  persons  concerned  would  not  be 
adequately  respected  in  OLAF’s  investigations,  a  fully  independent  control  would  strengthen 
public confidence in OLAF and consequently in the EU itself. Strengthening public confidence 
appears appropriate as Regulation 883/2013 has clarified that OLAF's Supervisory Committee is 
not in charge of carrying out any a priori control over OLAF's investigations. Therefore, there is a 
need to assess how reinforced control could be set up without interfering with the efficiency of 
OLAF’s investigations.  

3.3. 

Subsidiarity and proportionality  

According to the subsidiarity principle, the EU should act only where it can provide better results 
than intervention at Member State level. The protection of the EU's financial interests is a shared 
responsibility  between  the  Commission  and  Member  States,  according  to  Article  325  of  the 
TFEU. However, the initiative assessed in the framework of this Analysis of Impacts would in no 
way affect the powers and responsibilities of the Member States for taking measures to combat 
fraud affecting the EU financial interests concern and would concern exclusively the control over 
OLAF'  activities  which  are  provided  for    in  an  EU  Regulation.  Any  modification  to  this  legal 
framework  can  therefore  only  be  regulated  by  EU  legislation.  In  addition,  the  preferred  option 
identified in this document should be limited to what is necessary in order to attain the objectives 
laid  down  in  section  4  of  this  Analysis  of  Impacts  and  comply  with  the  principle  of 
proportionality.  

19 

 
 
 
 
4.  OBJECTIVES 

The  general  policy  objective  is,  in  accordance  with  Article  6  TEU,  Article  16(1)  TFEU  and 
Articles  7,  8,  41,  47  and  48  of  the  Charter  of  Fundamental  Rights  to  ensure  protection  of 
fundamental rights, while at the same time achieving protection of the EU financial interests, in 
accordance with Article 325 TFEU (protection of EU citizens as taxpayers).  

The specific objectives are to further reinforce procedural safeguards of the persons concerned by 
OLAF's  investigations  by  strengthening  control  over  OLAF  while  maintaining  OLAF's 
independence  and  efficiency;  in  particular  as  regards  the  duration  of  the  investigations  and  the 
institutional  framework  of  controls;  reinforced  controls  over  OLAF  may  to  some  extent  also 
strengthen the quality of OLAF’s investigations. 

The operational objectives regarding procedural safeguards are of two kinds:  

• 

• 

reinforcing procedural safeguards of all individuals concerned by OLAF's investigations 
(in external or internal investigations);  
reinforcing "institutional" procedural safeguards of the Members of the EU institutions.  

The  operational  objectives  regarding  the  efficiency  of  OLAF  are  twofold:  to  avoid  overlaps  of 
competences  between  the  control  mechanism  which  would  be  created  and  the  existing 
mechanism,  as  described  in  section  3  of  this  Analysis  of  Impacts  (see  Chart  1),  and  to  avoid 
increasing the overall duration of the investigations in order not to violate EU fundamental rights 
(Article 47 of the EU Charter of Fundamental Rights).  

The  operational  objectives  regarding  OLAF’s  independence  are  to  maintain  clear  attribution  of 
responsibilities between the Director-General and the new control bodies. Balance also needs to 
be maintained between enhancing external control and maintaining OLAF's independence in its 
investigative function.   

20 

 
 
Objectives tree 

5. 

POLICY OPTIONS: DESCRIPTION AND ANALYSIS OF IMPACTS  

5.1. 

Description of the options 

Two elements are considered under these options:  

(i) the need for OLAF’s Director-General to first obtain a prior authorisation when OLAF intends 
to conduct inspections of premises and take copies of documents and of data media of Members 
of the EU institutions. OLAF’s legal framework of investigations would thus be adapted to take 
into  account  the  specificities,  special  responsibilities,  independent  status  and  special  mode  of 
election  or  appointment  under  the  Treaties  of  the  Members  of  the  EU  institutions,  which 
distinguish  them  from  the  other  persons  concerned  by  OLAF’s  investigations.  Under  option  4, 
the same investigative measures would also, when concerning EU staff, be subject to prior review 
(prior  opinion)  by  an  independent  expert.  The  legality  and  the  proportionality  of  OLAF’s 
intended investigative measure would be examined.    

(ii)  the  creation  of  a  new  independent  complaints  mechanism  in  order  to  offer  reinforced 
protection of fundamental rights and procedural guarantees for all persons concerned by OLAF 
investigations.  This  complaints  function  would  be  carried  out  using  OLAF’s  internal  resources 
and the infrastructure of the Supervisory Committee under option 2, whereas under option 3 and 
4, this function would be entrusted to an external and independent high ranking expert.  

21 

 
 
 
 
•  Option 1 (status quo): no modification is brought to Regulation 883/2013 at this stage but a 
report  evaluating  its  implementation  could  be  drawn  up  in  advance  of  the  date  foreseen  in 
Article  19  of  Regulation  No  883/2013  (2  October  2017),  for  example  in  2015.  This  report 
submitted to the European Parliament and the Council “shall be accompanied by an opinion 
of  the  Supervisory  Committee  and  shall  state  whether  there  is  a  need  to  amend  the 
Regulation”38. This report could also take into account progress achieved in the negotiations 
on  setting  up  the  EPPO,  which  would  be  responsible  for  criminal  investigations  and 
prosecutions of offences against EU financial interests. 

•  Option 239: Regulation 883/2013 is revised to introduce:  

o 

o 

(i) an internal “quasi-judicial” prior authorisation for the most intrusive investigative 
measures towards Members of the EU institutions, delivered by a dedicated judicial 
unit within OLAF. These judicial recommendations would be monitored ex-post by 
OLAF’s Supervisory Committee.  

(ii) a Controller of procedural guarantees, part of a wider Supervisory Committee and 
sharing its Secretariat, tasked with reviewing complaints by all persons concerned by 
OLAF’s  investigations,  concerning  the  respect  by  OLAF  of  the  procedural 
guarantees laid down in Regulation 883/2013. The Controller would be attached to 
the Secretariat of the Supervisory Committee without being involved in the regular 
work of the Supervisory Committee.  

•  Option 3: Regulation 883/2013 is revised to introduce:  

o 

o 

(i) an external “quasi-judicial” prior authorisation for the most intrusive investigative 
measures  towards  Members  of  the  EU  institutions  (inspections  of  premises  and 
taking  of  copies  of  documents  and  data  media),  of  an  independent  and  external 
expert qualified to hold judicial office. This expert, administratively attached to the 
European  Commission,  would  be  created  as  a  body  independent  from  OLAF  or  its 
Supervisory Committee.  

(ii)  a  new  office  of  a  Controller  of  procedural  guarantees,  acting  on  complaints, 
concerning  the  respect  by  OLAF  of  the  procedural  guarantees  laid  down  in 
Regulation  883/2013  and  external  from  OLAF  or  its  Supervisory  Committee  (he 
would however be administratively attached to the European Commission). He could 
be  the  same  person  as  the  expert  in  charge  of  granting  the  “quasi-judicial” 
authorisation. 

•  Option 4: Regulation 883/2013 is revised to introduce:  

o 

o 

o 

(i) an external “quasi-judicial” prior authorisation for the most intrusive investigative 
measures towards the Members of the EU institutions by an independent and external 
expert qualified to hold judicial office (under the same conditions as in option 3);  

(ii)  a  new  office  of  an  external  Controller  of  procedural  guarantees,  acting  on 
complaints or on his own motion, concerning the respect by OLAF of the procedural 
guarantees laid down in Regulation 883/2013; 

(iii)  a  prior  opinion  of  the  Controller  of  procedural  guarantees  when  OLAF  would 
intend  to  conduct  certain  investigative  measures  towards  EU  staff  (inspections  of 
premises and taking of copies of documents and data media);  

38 Article 19 of Regulation No 883/2013.  

39 This option is based on the opinion of the Supervisory Committee (see opinion 2/2013). 

22 

 
                                                 
5.2. 

Analysis of impacts  

The  policy  options  are  assessed  from  the  perspective  of  their  effectiveness  in  meeting  the  key 
objectives  defined  in  section  4:  reinforcing  procedural  safeguards  without  weakening  the 
protection  of  EU  financial  interests,  in  particular  by  maintaining  OLAF's  independence  and 
efficiency.  Whilst  enhancing  procedural  safeguards  is  seen  as  desirable,  it  should  be 
acknowledged that this may have an impact on the independence of OLAF and on the efficiency 
of  OLAF's  investigations  and  will  also  involve  certain  costs.  These  potential  impacts  are 
discussed  in  this  section  under  each  relevant  policy  options.  Three  main  criteria  are  used  to 
analyse  these  impacts:  effectiveness  in  meeting  the policy objectives  (Strengthening procedural 
safeguards  while  protecting  EU  financial  interests),  financial  burden  and  acceptability  to 
stakeholders.  

Option  1:  status  quo  (no  modification  to  Regulation  883/2013  but  an  anticipated 
evaluation report on the implementation of Regulation 883) 

Effectiveness in meeting the policy objectives 

Strengthening 
procedural 
guarantees 

This option would not allow for immediate benefits in terms of enhancement 
of procedural guarantees of the persons concerned by the investigations since 
no  modification  would  be  brought  to  Regulation  883/2013.  However,  before 
embarking  on  a  new  reform,  it  would  have  the  benefit  of  consolidating 
OLAF’s  framework  and  practices  following  the  implementation  of  the  new 
Regulation, which has already strengthened procedural guarantees. Procedural 
guarantees could benefit from this consolidation since proper implementation 
of  a  right  is as  essential  as  its  recognition  in  a  legal  text  (changing  practices 
needs time and training and cannot be the sole result of a new legal provision). 
In addition, in the medium term, an evaluation report of OLAF’s reform after 
an  initial  period  of  implementation  would  enable  a  thorough  analysis  of  the 
results of the reform and would serve as a basis for further adjustments of the 
legal provisions. It would also allow for taking into account the progress made 
on setting up the EPPO.  

Protecting  EU 
financial 
interests 

This  option  would  have  no  impact  on  the  protection  of  the  EU  financial 
interests,  in  particular  regarding  efficiency  of  OLAF's  investigations  and 
impendence of OLAF, since OLAF’s legal framework would not be modified 
in the short term. 

Other impacts 

Financial 
burden  

This  option  would  have  no  financial  impact  since  OLAF’s  legal  framework 
would not be modified in the short term. 

Acceptability to stakeholders 

Acceptability  to 
stakeholders 

This  option  could  be  unlikely  to  be  acceptable  for  the  European  Parliament 
which  favours  an  immediate  revision  of  Regulation  883/2013  in  order  to 
achieve  what  could  not  be  achieved  during  the  latest  reform  and  further 
strengthen  procedural  safeguards.  Discussions  in  the  Council  so  far  tend  to 
suggest  that  they  could  favour  this  option  since  they  have  expressed  serious 
doubts about a new reform, seeing it as premature, and expressed their wish to 
wait for additional progress in the negotiations on the EPPO. 

23 

 
 
 
 
 
Option  2:  Revision  of  Regulation  883/2013  to  introduce  a  “quasi-judicial”  prior 
authorisation of a dedicated judicial unit within OLAF concerning the Members of 
the  EU  institutions  and  a  Controller  of  procedural  guarantees  as  part  of  a  wider 
Supervisory Committee 

Effectiveness in meeting the policy objectives: 

Strengthening 
procedural 
guarantees 

If this option were to have some positive impacts on procedural guarantees, it 
would  not  offer  the  same  level  of  protection  as  options  3  and  4  since  these 
controls  would  not  be  entrusted  to  an  independent  expert.  The  overall 
objective would therefore not be reached.   

Regarding the Controller of procedural guarantees, if procedural rights of all 
persons  concerned  by  OLAF's  investigations  were  to  be  enhanced  by  an 
additional possibility to have their complaints reviewed, the protection offered 
would be lower than with a fully external Controller. Indeed, as the Controller 
would  be  attached  to  the  Supervisory  Committee,  even  if  the  Supervisory 
Committee  offers  regulatory  guarantees  of  independent  functioning  vis-à-vis 
the  Director-General,  his  independence  would  not  be  as  strong  as  if  he  was 
recruited outside OLAF.  

No  impacts  are  foreseen  on  the  protection  of  personal  data  since  the  EU 
requirements on data protection will continue to apply without any change, in 
particular  the  possibility  to  complain  to  the  European  Data  Protection 
Supervisor.  

Strengthening 
institutional 
safeguards 

Regarding the quasi-judicial authorisation, if this option were to reinforce the 
protection  of  institutional  safeguards  thanks  to  an  ex-ante  control  on  the 
legality and the proportionality of the intended investigative measure, it would 
not offer the same level of protection as options 3 and 4 since controls would 
not  be  entrusted  to  an  independent  expert  appointed  in  an  inter  institutional 
procedure, but to an internal unit of OLAF.   

Protecting  EU 
financial 
interests 

Negative  impacts  of  this  option  on  the  duration  of  OLAF’s  investigations 
(channels  of  communication  between  the  Controller  and  the  Supervisory 
Committee  would  be  facilitated  by  sharing  the  infrastructure)  and  on  its 
independence  would  be  lower  than  under  options  3  and  4  since  no  external 
independent body would be involved.  

(impacts on 
OLAF's 
efficiency and 
independence) 

Other impacts 

Financial 
burden  

This  option  would  however  run  the  risk  that  the  Supervisory  Committee 
becomes involved in on-going investigations. Clear separation of the roles of 
the  Committee  and  the  Controller  (general  monitoring  role  and  review  of 
individual  cases)  within  the  same  body  or  within  bodies  sharing  the  same 
secretariat could in addition appear strange to the outside observer. 

This option would trigger limited costs, since existing resources within OLAF 
and the Supervisory Committee would be used. Costs would be limited to the 
remuneration of the Controller.  

Acceptability to stakeholders 

Acceptability  to 
stakeholders 

Taking  into  consideration  the  opinions  expressed  during  the  negotiations  on 
the  past  OLAF  reform  and  those  about  a  possible  new  reform,  a  Controller 
attached to the Supervisory Committee would have little chance of acceptance 
by  the  Council  which  consistently  expressed  the  opinion  that  the  Committee 

24 

 
 
 
 
 
should  not  interfere  with  individual  cases  and  limit  its  task  to  monitoring 
OLAF’s  activity  in  order  to  identify  general,  systemic  problems  in  its 
functioning.  The  European  Parliament  could  probably  support  an  internal 
Controller  attached  to  the  Supervisory  Committee  but  might  prefer  a  more 
independent procedure for the authorisation of certain investigative measures 
directed against Members of the institutions.  

Option  3:  Revision  of  Regulation  883/2013  to  introduce  a  quasi-judicial  prior 
authorisation  concerning  the  Members  of  the  EU  institutions  and  a  Controller  of 
procedural guarantees, acting on complaints  

Effectiveness in meeting the policy objectives: 

Strengthening  
procedural 
guarantees 

The Controller of procedural guarantees under this option would offer higher 
protection  of  procedural  safeguards  than  under  option  2  since  he  would  be 
independent.  Under  this  option,  the  negative  impact  on  the  right  to  prompt 
handling of the investigations would however be higher than under option 2: 
communication  with  fully  external  and  independent  bodies  would  involve 
more  delays  (require  specific  deadlines  for  information,  transmission  and 
scrutiny) and would not be facilitated by sharing of the infrastructures.  

As under option 2, no impacts are foreseen on the protection of personal data. 

Strengthening 
institutional 
safeguards 

This  option  would  offer  higher  protection  of  the  safeguards  attached  to  the 
function of the Members of the EU institutions than under option 2 since the 
control function would be entrusted to an independent expert.  

This option would have more negative impacts than option 2 on the duration 
of  the  investigations,  on  the  OLAF’s  overall  efficiency  (due  to  increased 
complexity of the legal framework) and on potential overlaps of competences 
with 
this  option  could  also 
simultaneously  reinforce  OLAF  thanks  to  a  higher  level  of  trust  in  its 
investigations,  allowing  for  a  smooth  follow  up  by  judicial  or  disciplinary 
authorities.  

the  Supervisory  Committee.  However, 

Protecting  EU 
financial 
interests 

(impacts on 
OLAF's 
efficiency and 
independence) 

Other impacts 

Financial 
burden  

The costs implied by this option would be higher than those under option 2, 
but lower than those under option 4.   

1) Costs of a quasi-judicial authorisation  

The  prior  quasi-judicial  authorisation  would  require  providing  a  salary  or 
indemnities  to  one  part-time  high  ranking  expert  (a  person  with  a  highly 
qualified  judicial  background,  ideally  a  former  judge  of  an  EU  Court)  and  a 
substitute, as well as remunerating the staff to assist them.  

Indemnities  provided  to  the  members  of  the  Supervisory  Committee  provide 
some  guidance  in  this  respect:  members  are  entitled  to  an  allowance  of  525 
euro  for  each  meeting  day.  In  addition,  they  are  reimbursed  travel  and 
subsistence  costs  according  to  Commission  rules,  and  can  also  request  the 
payment of a flat rate of 525 euro, for preparation of meetings.  

In case the expert would be called upon to act 10 times a year, the cost would 
be between 5,250 euro and 10,500 euro per year.  

25 

 
 
 
2) Cost of a Controller of procedural guarantees 

Costs would include setting up a body of an external Controller (composed of 
the  Controller  himself,  his  substitute  and  his  staff).  One  part-time  Controller 
should  be  recruited,  assisted  by  a  staff  of  four.  The  costs  involved  by  this 
option would remain more limited than those of option 4, since the Controller 
would  only  act  on  complaints.  To  keep  the  additional  control  framework  as 
simple as possible and to make the best use of the limited resources, the same 
person could be tasked  with delivering the “quasi-judicial” authorisation and 
with reviewing complaints. 

Although their characteristics do not allow for a full comparison with OLAF, 
DG Competition has two Hearing Officers who are assisted by eight persons 
(three  advisors,  three  assistants  and  two  secretaries)  remunerated  from  DG 
Competition’s budget40.  

Acceptability to stakeholders 

Acceptability  to 
stakeholders 

Taking  into  consideration  the  opinions  expressed  during  the  negotiations  on 
the  last  OLAF  reform  and  those  expressed  ultimately  on  a  possible  new 
reform, option 3 seems to have more chance of acceptance by the Council than 
options  2  and  4.  This  option  could  also  be  acceptable  to  the  European 
Parliament.   

Option  4:  Revision  of  Regulation  883/2013  to  introduce  a  quasi-judicial  prior 
authorisation concerning the Members of the  EU institutions (and a prior opinion 
concerning  EU  staff)  and  a  Controller  of  procedural  guarantees,  acting  on 
complaints or on his own motion 

Effectiveness in meeting the policy objectives: 

Strengthening  
procedural 
guarantees 

Regarding  the  Controller  of  procedural  guarantees,  his  positive  impacts  on 
procedural  safeguards  would  be  higher  than  under  option  3  since  the 
Controller would be able to act also on his own motion. Procedural safeguards 
for  EU  staff  would  also  be  further  strengthened  since  the  Controller  would 
also  be  in  charge  of  delivering  a  prior  opinion  on  specific  investigative 
measures.  

 Duration of the investigations would however be increased to a greater extent 
than  under  option  3  since  the  Controller  would  act  on  his  own  motion  and 
would  exercise,  for  EU  staff,  an  ex-ante  control  before  the  conduct  of  some 
investigative measures.  

This option would offer the same benefits as option 3.  

Strengthening 
institutional 
safeguards 

40  Between  1  April  2012  and  31  March  2014,  the  Hearing  Officers  have  been  substantially 
involved in 16 antitrust cases, while in other 17 antitrust cases they had only limited involvement. 
In the same period, the Hearing Officers have also been substantially involved in 11 merger cases. 
In  the  case  of  OLAF,  less  than  ten  complaints  are  lodged  with  different  bodies  each  year  (the 
European Ombudsman, the EDPS, or with OLAF’s Director-General). 

26 

 
 
 
 
 
                                                 
Protecting  EU 
financial 
interests 

(impacts on 
OLAF's 
efficiency and 
independence) 

Other impacts 

Financial 
burden  

1) Impacts on OLAF's efficiency:  

Positive impacts on the quality of OLAF’s investigations could be higher than 
under option 3 since the greater scrutiny exercised on OLAF by a Controller 
possibly  acting  on  his  own  motion  could  lead  to  a  higher  level  of  trust  in 
OLAF.  However,  this  option  would  have  more  negative  impacts  as  it  would 
slow down OLAF’s work, increase the complexity of the legal framework and 
the potential overlaps of competences with the Supervisory Committee.  

2) Impacts on OLAF's Independence:  

This option would trigger concerns regarding OLAF’s independence since an 
ex-ante  control  covering  both  legality  and  proportionality  of  the  intended 
measure would limit OLAF’s discretion in the use of its investigative powers  

Option  4  would  trigger  far  greater  costs  than  the  other  options,  since  the 
Controller of procedural guarantees could act on his own motion and therefore 
would  potentially be  tasked  with  controlling  all  investigative  measures  in  all 
kinds of investigations. The Controller could need a staff of about ten persons, 
in order to deliver prior opinions for EU staff in a swift manner41.   

Other impacts:   Option 4 may negatively impact the reputation of EU bodies by providing EU 
staff with additional procedural safeguards as compared with the other type of 
persons concerned by OLAF's investigations.  

Acceptability to stakeholders 

Acceptability  to 
stakeholders 

Taking  into  consideration  the  opinions  expressed  during  the  negotiations  on 
the  past  OLAF  reform  and  those  expressed  ultimately  on  a  possible  new 
reform,  this  option  may  have  little  chance  of  acceptance  by  the  Council, 
regarding  its  financial  impacts  and  the  risk  of  delaying  excessively  OLAF’s 
investigations.  

41  Some  assumption  may  be  drawn  from  similar  situations,  even  though  not  fully  comparable:  OLAF  Unit  0.1, 
currently  tasked  with  an  ex-ante  and  ex-post  legality  review  of  all  OLAF’s  investigative  measures,  has  a  team  of 
around 10 dedicated staff. OLAF’s Supervisory Committee has 5 members assisted by 5 EU staff. DG Competition has 
two full time Hearing Officers assisted by 8 EU staff. Some internal statistics show that between 2010 and 2012, an 
average of 15 cases per year involved the inspection of premises of EU staff.  

27 

 
 
 
 
 
 
 
 
 
 
                                                 
6.  COMPARING THE OPTIONS 

Table 1: Comparison of the options  

Option 1   Option 2 

Option 3  Option 4 

Protection of procedural 
safeguards 
Protection of EU financial 
interests:  
-  OLAF’s efficiency 
-  OLAF’s independence 
Financial burden:  
- Quasi-judicial authorisation 
-  Controller 

Impacts on the institutional 
framework 

0 

0 
0 

0 
0 

0 

+ 

- 
- 

- 
0 

-- 

++ 

++ 

- 
- 

- 
- 

- 

-- 
-- 

- 
-- 

-- 

Acceptability to stakeholders 

-/+ 

-/+ 

-/+ 

-/+ 

“+”: favourable; “++”: highly favourable; “-“: unfavourable; “—“: highly unfavourable; “0”: neutral 

Source: Commission Services’ analysis 

The  above  table  summarizes  the  impacts  of  each  option  described  in  section  5  and  helps  to 
compare quickly the different options. It shows that option 3 offers the best balance between the 
expected  benefits  (enhanced  procedural  safeguards),  the  expected  negative  impacts  on  the 
protection of EU financial interests (impacts on OLAF’s efficiency and independence, financial 
burden, overlaps of competences) and acceptability to stakeholders.  

If Option 2 (Controller as part of the Supervisory Committee) would have less negative impacts 
in terms of increased duration of investigations, increased complexity of the legal framework and 
costs, it would have negative impacts on the definition of the role of the Committee and would 
not  allow  the  achievement  of  the  same  level  of  protection  of  procedural  safeguards  as  under 
option 3 (since the level of independence of the Controller would be lower). 

Option  4  appears  to  have  disproportionate  negative  impacts  on  OLAF’s  efficiency  and 
independence, as well as on costs, as compared to the objectives to be achieved.  

7. 

EVALUATION 

Article  19  of  Regulation  883/2013  foresees  that  "by  2  October  2017,  the  Commission  shall 
submit to the European Parliament and the Council an evaluation report on the application of this 
Regulation. That report shall be accompanied by an opinion of the Supervisory Committee and 
shall state whether there is a need to amend this Regulation". The same report should also include 
an evaluation of the new revision assessed in this document.  

8.  ANNEXES 

•  Annex  I:    The  legality  review  conducted  by  OLAF’s  Selection  and  Review  Unit  (Unit 

0.1).   

•  Annex II: Article 26 of the Proposal for a Council Regulation on the establishment of the 

European Public Prosecutor's Office (COM(2013) 534 final) 

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ANNEX I 

OLAF’s Selection and Review Unit 

•  Unit 0.1 has been created following an internal reorganisation. The activity of Unit 0.1 
aims at (i) reinforcing effectiveness, efficiency and transparency in the treatment of the 
incoming information and consistency in the selection of cases and (ii) strengthening the 
quality  and  legal  review  at  the  closure  of  investigations,  as  well  as  at  important 
milestones during the investigation; 

•  Unit  0.1  mandate  and  objectives  are  related  to  the  advisory  function  to    the  Director-
General  of  OLAF  by  (i)  providing  independent  opinions  on  the  possible  opening  of 
investigation  or  coordination  cases,    (ii)  performing  a  legality  check  of  the  important 
investigative  activities  of 
the 
investigation/coordination  case,  reviewing  the  final  report  and  the  recommendations, 
guaranteeing the comprehensiveness of the communications and notifications following 
closure  and,  in  doing  so,  ensuring  that  all  actions  were  conducted  in  accordance  with 
applicable rules and specifically that rights of persons concerned have been respected; 

following  completion  of 

the  Office  and 

(iii) 

•  The  new  unit  is  composed  of  30  members,  covering  a  wide  range  of  disciplinary  and 
professional  backgrounds,  mainly  oriented  towards  investigative  and  judicial-related 
matters  (magistrates,  lawyers,  law  enforcement  officers,  auditors,  customs  officers, 
statisticians). Amongst them, ten are qualified to carry out legality checks and reviews; 

•  Legality  check  during  investigations:  The  check  carried  out  by  Unit  0.1  during  the 
investigation  stage  covers  both  (i)  the  overall  purpose  of  the  case  and  scope  of  the 
investigation (i.e.: conversion of coordination into investigation, splitting and merging of 
cases)  and  (ii)  the  execution  of  specific  investigative  activities,  against  the  criteria  of 
legality, necessity and proportionality; 

(cid:131)  Review  phase:  following  the  completion  of  the  investigation/coordination  and  the 
drafting of the final report and of the recommendations, the legality check is focused on 
the legality of the investigative activities undertaken, the compliance with the rights and 
procedural  guarantees  of  the  persons  concerned,  the  compliance  with  data  protection 
requirements (DPSR), the consistency of conclusions, the continuity of the investigation, 
the  compliance  with  confidentiality  requirements,  declarations  of/information  on 
potential conflict of interests, the consideration given to the national law of the Member 
State concerned, the review of the proposed recommendation(s) in terms of consistency 
and legality, information and transmission requirements on case closure;   

(cid:131)  Unit  0.1  issues  a  positive  or  negative  opinion.  In  2012,  more  than  200  opinions  were 
issued on investigative activities (a few were negative; sometimes, preliminary comments 
led  to  a  modification  or  to  the  withdrawal  of  the  intended  investigative  measure).  In 
addition,  more  than  400  opinions  were  issued  on  final  reports  in  2012  (a  few  were 
negative).  This  review  of  each  and  every  OLAF  case  allows  fields  for  possible 
improvement of OLAF's practice to be identified. 

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ANNEX II 

Proposal for a. COUNCIL REGULATION on the establishment of the European Public 
Prosecutor's Office (COM(2013)534 final) 

Article 26 

Investigation measures 

1.  The  European  Public  Prosecutor’s  Office  shall  have  the  power  to  request  or  to  order  the 
following investigative measures when exercising its competence: 

a)  search any premises, land, means of transport, private home, clothes and any other personal 

property or computer system; 

b)  obtain  the  production  of  any  relevant  object  or  document,  or  of  stored  computer  data, 
including traffic data and banking account data, encrypted or decrypted, either in original or 
in some other specified form; 

c)  seal premises and means of transport and freezing of data, in order to preserve their integrity, 
to avoid the loss or contamination of evidence or to secure the possibility of confiscation; 

d)  freeze  instrumentalities  or  proceeds  of  crime,  including  freezing  of  assets,  if  they  are 
expected to be subject to confiscation by the trial court and there is reason to believe that the 
owner, possessor or controller will seek to frustrate the judgement ordering confiscation; 

e) 

intercept  telecommunications,  including  e-mails,  to  and  from  the  suspected  person,  on  any 
telecommunication connection that the suspected person is using; 

f)  undertake  real-time  surveillance  of  telecommunications  by  ordering  instant  transmission  of 
telecommunications  traffic  data  to  locate  the  suspected  person  and  to  identify  the  persons 
who have been in contact with him at a specific moment in time; 

g)  monitor  financial  transactions,  by  ordering  any  financial  or  credit  institution  to  inform  the 
European  Public  Prosecutor’s  Office  in  real  time  of  any  financial  transaction  carried  out 
through any specific account held or controlled by the suspected person or any other accounts 
which are reasonably believed to be used in connection with the offence; 

h)  freeze  future  financial  transactions,  by ordering  any financial  or  credit  institution  to  refrain 
from carrying out any financial transaction involving any specified account or accounts held 
or controlled by the suspected person; 

i)  undertake surveillance measures in non-public places, by ordering the covert video and audio 
surveillance  of  non-public  places,  excluded  video  surveillance  of  private  homes,  and  the 
recording of its results; 

j)  undertake  covert  investigations,  by  ordering  an  officer  to  act  covertly  or  under  a  false 

identity; 

k)  summon suspected persons and witnesses, where there are reasonable grounds to believe that 

they might provide information useful to the investigation; 

l)  undertake  identification  measures,  by  ordering  the  taking  of  photos,  visual  recording  of 

persons and the recording of a person's biometric features; 

m)  seize objects which are needed as evidence; 

30 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
n)  access premises and take samples of goods; 

o)  inspect means of transport, where reasonable grounds exist to believe that goods elated to the 

investigation are being transported; 

p)  undertake measures to track and control persons, in order to establish the whereabouts of a 

person; 

q)  track and trace any object by technical means, including controlled deliveries of goods and 

controlled financial transactions; 

r)  undertake targeted surveillance in public places of the suspected and third persons; 

s)  obtain access to national or European public registers and registers kept by private entities in 

a public interest; 

t)  question the suspected person and witnesses;  

u)  appoint  experts,  ex  officio  or  at  the  request  of  the  suspected  person,  where  specialised 

knowledge is required. 

2.  Member  States  shall  ensure  that  the measures  referred  to  in paragraph  1  may be  used  in  the 
investigations  and  prosecutions  conducted  by  the  European  Public  Prosecutor’s  Office.  Such 
measures  shall  be  subject  to  the  conditions  provided  for  in  this  Article  and  those  set  out  in 
national  law.  Investigation  measures  other  than  those  referred  to  in  paragraph  1  may  only  be 
ordered or requested by the European Public Prosecutor’s Office if available under the law of the 
Member State where the measure is to be carried out. 

3. The individual investigative measures referred to in paragraph 1 shall not be ordered without 
reasonable grounds and if less intrusive means can achieve the same objective. 

4.  Member  States  shall  ensure  that  the  investigative  measures  referred  to  in  points  (a)  -  (j)  of 
paragraph 1 are subject to authorisation by the competent judicial authority of the Member State 
where they are to be carried out. 

5.  The  investigative  measures  referred  to  in  points  (k)  –  (u)  of  paragraph  1  shall  be  subject  to 
judicial authorisation if required by the national law of the Member State where the investigation 
measure is to be carried out. 

[…] 

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