Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU, EURATOM) No 883/2013, as regards the secretariat of the Supervisory Committee of the European Anti-Fraud Office (OLAF)
Date: 2016-03-04
Institutions: European Anti-Fraud Office, European Commission
Subjects: EU control, European Anti-fraud Office, administrative procedure, corruption, criminal procedure, data protection, exchange of information, fraud, fraud against the EU, operation of the Institutions

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   EUROPEAN COMMISSION  Brussels, 4.3.2016  COM(2016) 113 final 2016/0064 (COD)   Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU, EURATOM) No 883/2013, as regards the secretariat of the Supervisory Committee of the European Anti-Fraud Office (OLAF)  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The  Supervisory  Committee  of  the  European  Anti-Fraud  Office  was  established  by 
Regulation  1073/99  of  25  May  1999  concerning  investigations  conducted  by  the  European 
Anti-Fraud  Office  (OLAF)1.  Article  15(1)  of  the  new  OLAF  Regulation  883/2013  of 
11 September 20132 states that it tasks should be to "regularly monitor the implementation by 
the Office of its investigative function, in order to reinforce the Office's independence in the 
proper exercise of the competences conferred upon it by this Regulation" and, in particular, to 
"monitor developments concerning the application of procedural guarantees and the duration 
of investigations in the light of the information supplied by the Director General ..".  

In  its  work,  the  Supervisory  Committee  is  supported  by  a  secretariat.  Currently,  this 
secretariat  is  provided  by  the  OLAF,  in  accordance  with  Article  15(8)  of  the  OLAF 
Regulation which states that the secretariat of the Supervisory Committee "shall be provided 
by  the  Office,  in  close  consultation  with  the  Supervisory  Committee".  Article  18  of  the 
Regulation  places  the  budgetary  appropriations  for  the  Supervisory  Committee  and  its 
secretariat within the budget line of the Office and provides that the establishment plan of the 
Office includes that of the Supervisory Committee and of its secretariat.  

However,  in  the  recent  past  some  concerns  have  been  voiced  about  possible  conflicts  of 
interest  and  calls  have  been  made  for  a  strengthened  legal  independence  as  regards  the 
management of the Committee's budget and secretariat.  Thus, in its Annual Activity Reports 
of 2013 and 20143, the Supervisory Committee underlined the importance of its independent 
and effective functioning which requires an independent and adequately staffed secretariat. It 
stressed  that  the  exercise  of  the  Appointing  Authority  powers  by  OLAF's  Director-General, 
including decisions on promotions and transfers, could potentially lead to conflicts of interest. 
It called for its budget and that of its secretariat to be specified in a separate line of the OLAF 
budget.  

The  European  Parliament  called  several  times  on  the  Commission  to  take  measures  to 
reinforce the independent functioning of OLAF's Supervisory Committee secretariat, such as 

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OJ L 136, 31.5.1999, p. 1. 
Regulation  (EU,  EURATOM)  No  883/2013  of  the  European  Parliament  and  of  the  Council  of 
11 September  2013  concerning  investigations  conducted  by  the  European  Anti-Fraud  Office  (OLAF) 
and  repealing  Regulation  (EC)  No  1073/1999  of  the  European  Parliament  and  of  the  Council  and 
Council Regulation (Euratom) No 1074/1999, OJ L 248 18.9.2013 p.1. 
http://ec.europa.eu/anti_fraud/documents/reports-sup_comm/2013/scar_2013_supcom_en.pdf; 
http://ec.europa.eu/anti_fraud/documents/reports-sup_comm/2015/scar_2014_supcom_en.pdf. 

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in  its  report  on  the  discharge  procedure  for  20134  or  in  its  resolution  on  the  OLAF 
Supervisory Committee's annual report 20145.  

The issue has also been addressed in the Exchange of Views with the institutions established 
by  Article 16  of  the  OLAF  Regulation.    During  the  exchange  held  on  28  September  2015, 
representatives  from  the  European  Parliament  stressed  again  the  need  to  strengthen  the 
independent functioning of the Supervisory Committee's secretariat. 
On 18 December 2015, the Commission adopted an amendment to its Decision 1999/3526 in 
order  to  move  the  responsibility  for  the  implementation  of  the  budgetary  appropriations  for 
the  Members  from  the  Director-General  of  OLAF  to  the  Commission.  The  Commission 
subsequently delegated this responsibility to the Director of its Payments Office (PMO). This 
decision applied as from 1 January 2016.  

The  objective  of  this  decision  was  to  avoid  the  appearance  that  the  Members  of  the 
Supervisory  Committee  might  not  be  in  a  position  to  ensure  their  mandate  properly.  This 
decision could, however, not achieve a full legal separation of the Committee's secretariat and 
budget  from  the  Office. In  order  to  separate the  management  of  the  Committee's  secretariat 
from  the  management  of  the  Office and  to  avoid  any  impression  that  OLAF  can  impair the 
functioning  of  the  support  to  the  Committee's  Members,  it  is  necessary  to  modify 
Regulation 883/2013  to  foresee  that  the  secretariat  of  the  Supervisory  Committee  will  be 
provided directly by the Commission. This modification will not affect the independence and 
operational  functioning  of  the  Supervisory  Committee  and  of  its  Secretariat,  who  will 
continue to benefit from the same rights and be subject to the same obligations as before. In 
particular,  OLAF's  Data  Protection  Officer  (DPO)  will  continue  to  cover  the  processing  of 
data  by  the  secretariat  and  the  secretariat's  staff  will  continue  to  be  subject  to  the  same 
confidentiality  rules.  Article  19  of  Regulation  883/2013  provides that  the  Commission  shall 
submit to the European Parliament and to the Council an evaluation report on the application 
of the Regulation by 2 October 2017, which shall also state whether the Regulation needs to 
be amended. Given the importance of a proper functioning of the Supervisory Committee and 
the  need  to  avoid  the  impression  that  this  functioning  could  be  impaired  by  its  institutional 
framework it seems important to adapt the Regulation on this point – and strictly on this point 
-  as  soon  as  possible  and  in  any  case  before  the  overall  evaluation  of  the  Regulation  takes 
place.  

Once the revised Regulation will enter into force, another technical amendment will have to 
be  made  to  the  OLAF  Decision  in  order  to  bring  it  formally  in  line  with  the  new  legal 
framework.  

Consistency with existing policy provisions in the policy area 

The  proposed  Regulation  amends  Regulation  883/2013  which  already  provides  for  the 
independence  of  OLAF's  Supervisory  Committee.  In  particular  paragraphs  2,  3  and  7  of 

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European  Parliament  decision  of  29  April  2015  on  discharge  in  respect  of  the  implementation  of  the 
general  budget  of  the  European  Union  for  the  financial  year  2013,  Section  III  –  Commission  and 
executive agencies (2014/2075(DEC)), 
http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P8-TA-2015-
0118.  
Resolution  of  10  June  2015  on 
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2015-
0226+0+DOC+XML+V0//EN. 
Commission Decision C(2015)2418 amending Decision 1999/352/EC, ECSC, Euratom establishing the 
European Anti-fraud Office (OLAF), OJ L333/148 of 19 December 2015, p148). 

the  OLAF  Supervisory  Committee's  annual  report  2014, 

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the  Committee's 

Article  15  guarantee 
independence  by  providing  for  a  special, 
interinstitutional  appointment  procedure  and  specific  conditions  for  the  exercise  of  the 
members'  mandates.  The  Commission  Decision  C(2015)2418  has  further  defined  this 
framework  by  transferring  the  management  of  the  budgetary  appropriations  for  the 
Supervisory Committee from OLAF to the Commission (PMO).  

2. 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The proposal is based on Art. 325 TFEU on combating fraud, which also provides the legal 
basis for Regulation 883/2013. 

Subsidiarity and proportionality   

This  proposal  has  no  impact  on  Member  States’  powers  and  responsibilities  for  combating 
fraud affecting the financial interests of the EU. It only concerns the management of OLAF's 
Supervisory Committee, which rules are currently laid down in an EU Regulation. In addition, 
the  above-mentioned  action  is  stricly  limited  to  what  is  necessary  in  order  to  attain  the 
proposed objectives, which is compliant with the principle of proportionality.  

Choice of the instrument 

Regulation  883/2013  needs  to  be  amended  through  the  same  type  of  instrument,  i.e.a 
Regulation.  

3. 

BUDGETARY IMPLICATIONS 

The proposed Regulation will not require any new human or administrative resources and will 
have no financial impact. It will only transfer the management of the budgetary appropriations 
concerning the secretariat of OLAF's Supervisory Committee within the Commission. 

4. 

OTHER ELEMENTS 

Detailed explanation of the specific provisions of the proposal 

Under  the  new  proposed  Regulation,  the  secretariat  of  the  Supervisory  Committee  will  be 
provided by the Commission, and no longer by OLAF (Article 15(8)).  

The budgetary appropriations for the secretariat of the Supervisory Committee will be moved 
from  the  budget  line  and  the  establishment  plan  of  OLAF  to  that  of  the  Commission 
(Article 18).  

Finally,  the  proposal  amends  the  wording  of  paragraphs  4  and  5  of  Article  10  so  that  the 
competence of OLAF's Data Protection Officer (DPO) will continue to cover the processing 
of data by the secretariat. Also, the secretariat's staff will continue to be subject to the same 
confidentiality rules as before. 

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2016/0064 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EU, EURATOM) No 883/2013, as regards the secretariat of the 
Supervisory Committee of the European Anti-Fraud Office (OLAF) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 325 thereof,  

Having  regard  to  the  Treaty  establishing  the  European  Atomic  Energy  Community,  and  in 
particular Article 106a thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 

Having regard to the opinion of the Court of Auditors, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

The Supervisory Committee of the European Anti-Fraud Office ('the Office') is tasked 
with  regularly  monitoring  the  implementation  by  the  Office  of  its  investigative 
function, in order to reinforce the Office's independence. 

The framework for the implementation of the budgetary appropriations relating to the 
Members of the Supervisory Committee should be set up in a way which avoids any 
appearance  of  a  possible  interference  of  the  Office  in  their  duties.  Regulation  (EC, 
EURATOM) No 883/2013 should be adapted in order to allow for such a framework. 
The  secretariat  of  the  Supervisory  Committee  should  be  provided  directly  by  the 
Commission,  independently  from  the  Office.  The  Commission  should  refrain  from 
interfering with the functions of the Supervisory Committee. 

(3)  Where the Office appoints a Data Protection Officer in accordance with Article 10(4) 
of Regulation 883/2013, that Data Protection Officer should continue to be competent 
for the processing of data by the secretariat of the Supervisory Committee.  

(4) 

(5) 

Confidentiality  obligations  for  the  staff  of  the  secretariat  of  the  Supervisory 
Committee should continue to apply. 

 The  European  Data  Protection  Supervisor  has  been  consulted  in  accordance  with 
Article 28(2) of Regulation (EC) No 45/2001 and delivered an opinion on…., 

HAVE ADOPTED THIS REGULATION: 

Regulation (EU, EURATOM) No 883/2013 is amended as follows: 

(1) 

Article 10 is amended as follows: 

Article 1 

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(a) 

in paragraph 4, the following subparagraph is added: 

"The Data Protection Officer shall be competent for the processing of data by 
the Office and the secretariat of the Supervisory Committee." 

(b) 

in paragraph 5, the second subparagraph is replaced by the following: 

"In accordance with the Staff Regulations, the staff of the Office and the staff 
of  the  secretariat  of  the  Supervisory  Committee  shall  refrain  from  any 
unauthorised  disclosure  of  information  received  in  the  exercise  of  their 
functions, unless that information has already been made public or is accessible 
to the public, and shall continue to be bound by that obligation after leaving the 
service." 

(2) 

In Article 15(8), the last sentence is replaced by the following: 

"Its secretariat shall be provided by the Commission, independently from the Office 
and  in  close  cooperation  with  the  Supervisory  Committee.  The  Commission  shall 
refrain from interfering with the functions of the Supervisory Committee."  

(3) 

Article 18 is replaced by the following: 

"Article 18 

Financing 

The total appropriations for the Office shall be entered under a specific budget line 
within  the  section  of  the  general  budget  of  the  European  Union  relating  to  the 
Commission  and  shall  be  set  out  in  detail  in  an  Annex  to  that  section.  The 
appropriations for the Supervisory Committee and its secretariat shall be entered into 
the section of the general budget of the European Union relating to the Commission. 

The  establishment  plan  of  the  Office  shall  be  annexed  to  the  establishment  plan  of 
the  Commission.  The  establishment  plan  of  the  Commission  shall  include  the 
secretariat of the Supervisory Committee." 

Article 2 

This  Regulation  shall  enter  into  force  on  the  [first  day  of  the  month  following  that  of  its 
publication  in  the  Official  Journal  of  the  European  Union.  It  shall  apply  as  from 
1 January 2017.  

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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