Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU, Euratom) No 883/2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) as regards cooperation with the European Public Prosecutor's Office and the effectiveness of OLAF investigations
Date: 2018-05-23
Institutions: European Anti-Fraud Office, European Commission
Subjects: EU control, EU office or agency, administrative procedure, criminal procedure, enhanced cooperation, fraud against the EU, general budget (EU), interinstitutional cooperation (EU), judicial cooperation in criminal matters in the EU, public prosecutor's department

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   EUROPEAN COMMISSION  Brussels, 23.5.2018 COM(2018) 338 final 2018/0170 (COD)  Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU, Euratom) No 883/2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) as regards cooperation with the European Public Prosecutor's Office and the effectiveness of OLAF investigations {SWD(2018) 251 final}  
 
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The Commission is pursuing an ambitious legislative  agenda to strengthen the protection of 
the  Union's  financial  interests.  In  July  2017,  the  Parliament  and  the  Council  adopted  the 
Directive  on  the  fight  against  fraud  to  the  Union's  financial  interests  by  means  of  criminal 
law. 

In October 2017, the Council adopted the Regulation implementing enhanced cooperation on 
the  establishment  of  the  European  Public  Prosecutor's  Office  (EPPO).  The  establishment  of 
the EPPO is a key Commission priority in the areas of criminal justice and the fight against 
fraud  to  the  Union  budget.  The  EPPO  will  change  the  EU  institutional  anti-fraud  landscape 
significantly. It will have the power to conduct criminal investigations and prosecute before 
the  courts  of  the  participating  Member  States.  It  is  expected  to  bring  a  more  consistent  and 
effective  prosecution  policy  for  crimes  affecting  the  Union  budget,  leading  to  more 
prosecutions, convictions and a higher level of recovery. 

As  a  consequence  of  the  adoption  of  the  EPPO  Regulation,  Regulation  No 883/2013 
governing investigations by the European Anti-Fraud Office (OLAF) needs to be adapted. 

OLAF  was  set  up  in  1999  with  the  task,  in  particular,  of  conducting  administrative 
investigations  in  the  area  of  the  protection  of  the  Union's  financial  interests.  Within  its 
administrative  mandate,  OLAF  investigates  administrative  irregularities  as  well  as  criminal 
behaviour.  It  plays  a  significant  role  in  the  fight  against  fraud,  corruption  and  other  illegal 
activities  through  its  investigations  aimed  at  enabling  financial  recoveries,  disciplinary  and 
administrative  action,  as  well  as  indictments  and  prosecutions.  OLAF  has  used  its 
investigative expertise in a constantly developing context of fraud to the Union budget. It has 
handled 
increasing  numbers  of 
recommendations and amounts recommended for recovery. 

increasing  numbers  of 

investigations, 

leading 

to 

In the area of fraud, the creation of the EPPO will be a substantial improvement to the current 
situation. Today, OLAF carries out administrative investigations using administrative powers 
which are limited compared to criminal investigations. When it encounters possible criminal 
offences,  it  can  only  address  a  recommendation  to  national  judicial  authorities,  but  with  no 
guarantees  as  to  whether  a  criminal  investigation  will  be  opened.  In  future,  in  the  Member 
States  participating  in  the  EPPO,  it  will  report  such  suspected  offences  to  the  EPPO,  and 
collaborate with it in the context of its investigations.  

Provisions  to  regulate  the  relationship  between  the  EPPO  and  OLAF  already  exist  in  the 
EPPO  Regulation.  They  are  based  on  the  principles  of  close  cooperation,  exchange  of 
information,  complementarity  and  non-duplication.  These  rules  need  to  be  mirrored  and 
complemented in Regulation No 883/2013. The adaptation of the OLAF legal framework by 
the  time  the  EPPO  becomes  operational  is  therefore  the  main  driver  for  the  amendment  of 
Regulation No 883/2013. To ensure a smooth transition into the new framework, the amended 
Regulation should enter into force before the EPPO becomes operational (envisaged for  the 
end of 2020). 

The EPPO and OLAF are both, within their respective remits, entrusted with the mandate to 
protect  the  Union's  financial  interests.  While  the  EPPO  will  conduct  criminal  investigations 
aimed  at  investigating,  prosecuting  and  bringing  to  judgment  the  perpetrators  of,  and 
accomplices  to,  offences  affecting  the  financial  interests  of  the  Union,  OLAF  will  continue 
investigations  with  a  particular  emphasis  on  facilitating 
conducting  administrative 

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administrative  recovery  and  preventing  further  harm 
through 
administrative  measures.  Thus,  the  focus  of  activity  of  the  future  EPPO  and  of  OLAF  is 
distinct, although they converge towards a common goal. 

the  EU  finances 

to 

OLAF will also continue its investigations, in the same way as today, in the Member States 
not participating in the EPPO at this stage. In these Member States, the national authorities as 
well  as  OLAF  should  contribute  to  creating  the  conditions  to  ensure  an  effective  and 
equivalent level of protection of the Union’s financial interests in the whole EU. 

In such circumstances, it is essential that the legal framework for OLAF is fit-for-purpose to 
allow it to fulfil its role with regard to the EPPO, the Member States and Union institutions, 
bodies,  offices  and  agencies.  The  Commission  evaluation  of  Regulation  No  883/2013 
concluded  that  the  Regulation  allowed  OLAF  to  continue  delivering  concrete  results  in  the 
protection of the Union budget. The 2013 changes brought clear improvements, as regards the 
conduct of investigations, cooperation with partners and the rights of persons concerned. At 
the same time, the evaluation highlighted shortcomings which impact on the effectiveness and 
efficiency of investigations. These findings relate to a wide range of areas including OLAF’s 
investigative  tools,  the  enforcement  of  OLAF  powers,  uniform  conditions  in  the  conduct  of 
internal investigations, the conduct of digital forensic operations, divergences in the follow-up 
to  OLAF  recommendations,  the  duties  of  cooperation  by  Member  States  and  Union 
institutions, bodies, offices and agencies, or the overall coherence of the legal framework. 

However,  addressing  all  evaluation  findings  is  outside  the  scope  of  this  proposal,  as  the 
revised  Regulation  should  be  in  force  by  the  time  the  EPPO  becomes  operational.  The 
proposal  therefore  contains  a  limited  number  of  targeted  changes,  based  on  the  most 
unambiguous evaluation findings. These are essential changes necessary in the short term to 
strengthen  the  framework  for  OLAF  investigations,  in  order  to  maintain  a  strong  and  fully-
functioning  OLAF  that  complements  the  EPPO's  criminal  law  approach  with  administrative 
investigations, but which do not entail a change to its mandate or powers. 

The  focus  is  on  areas  where,  today,  the  lack  of  clarity  of  certain  provisions  in  the  current 
Regulation results in obstacles which hinder OLAF’s effective operations, regarding, notably, 
on-the-spot-checks and inspections or access to bank account information. The amendments 
proposed  aim  to  clarify  and  reduce  ambiguity  in  the  current  provisions  for  the  economic 
operators  concerned,  for  the  Member  States,  and  for  OLAF,  thus  enhancing  legal  certainty. 
They  would  allow  OLAF  to  operate  in  an  effective  and  more  coherent  manner  in  all  its 
investigations.  This  is  directly  related  to  the  objectives  of  a  strong  protection  of  the  budget 
across  the  Union  coupled  with  appropriate  procedural  safeguards  for  economic  operators 
subject to investigation. 

The overall objective of the proposal is to strengthen the protection of the Union's financial 
interests. This will be achieved by three specific objectives to:  

– 

– 

– 

adapt the operation of OLAF to the establishment of the EPPO;  

enhance the effectiveness of OLAF’s investigative function; 

clarify and simplify selected provisions of Regulation No 883/2013. 

The  Commission  evaluation  report  already  indicated  that  the  proposal  containing  these 
targeted changes could be followed by a more far-reaching process to modernise the OLAF 
framework, which in its core aspects dates from the creation of OLAF in 1999. This would be 
the  opportunity  to  consider  other  more  fundamental  changes  in  the  context  of  21st  century 
fraud areas and trends, and it should take account of the experience gained in the cooperation 
between the EPPO and OLAF. It would also allow considering other evaluation findings, as 
well as aspects of the legal framework where further reflection and discussion may be needed.  

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Consistency with existing policy provisions in the policy area 

The  amendment  of  Regulation  No 883/2013  is  a  consequence  of  the  creation  of  the  EPPO, 
and is precisely intended to ensure the coherence of the legal framework for the protection of 
the Union’s financial interests. It is a further step, after the adoption of the Directive on the 
fight  against  fraud  to  the  Union's  financial  interests  by  means  of  criminal  law  and  of  the 
EPPO  Regulation,  towards  a  strengthened  legal  framework  which  ensures  that  all  available 
means are used effectively in the fight against fraud. 

This  is  particularly  relevant  as  the  Union  moves  towards  the  next  Multiannual  Financial 
Framework. An efficient and proper spending of the Union budget is key to building trust of 
EU citizens and boosting the added value of the European project. The establishment of the 
EPPO and the strengthening of the OLAF legal framework contribute to the Treaty goal of a 
high level of protection of the Union budget in the whole territory of the Union (Article 325 
TFEU). 

Consistency with other Union policies 

This  initiative  is  consistent  with  other  legislative  developments  aimed  at  making  Union 
revenues,  expenditure  and  assets  more  fraud-proof,  and  enhancing  cooperation  between  law 
enforcement bodies.  

2. 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The proposal  is  based on Article 325 TFEU and Article 106a of the Treaty  establishing  the 
European Atomic Energy Community. 

Subsidiarity 

OLAF  carries  out  a  specifically  European  task  -  the  protection  of  the  Union's  financial 
interests in the framework of Articles 317 and 325 TFEU - which cannot, in the same way, be 
carried out at national level. The proposal concerns investigations by an office of the Union, 
which are currently regulated in a Union Regulation. It does not modify the Member States’ 
powers  and  responsibilities  for  combating  fraud  affecting  the  Union's  financial  interests,  a 
responsibility  that  Member  States  share  with  the  Union,  nor  does  it  extend  OLAF's  powers 
and mandate.  

The proposal concerns the relations with the EPPO, which will be a Union body set up on the 
basis of an EU Regulation. As a consequence, addressing the cooperation between OLAF and 
the EPPO requires action at Union level. 

The  amendments  intended  to  better  frame  references  to  national  law  in  OLAF's  legal 
framework (in the context of on-the-spot checks and inspections and admissibility of OLAF 
reports)  and  the  assistance  provided  by  the  Member  States  (in  particular  to  provide  OLAF 
with access to bank data) are necessary to ensure the effective and more coherent conduct of 
investigations  of  OLAF  throughout  the  Union.  This  is  required  for  OLAF  to  use  its 
investigative tools effectively in all Member States in order to protect a European interest (the 
Union’s  financial  interests),  while  ensuring  appropriate  procedural  safeguards  for  economic 
operators subject to OLAF investigations. These objectives require action at EU level. 

Proportionality 

The  proposed  changes  are  limited  to  what  is  necessary  in  order  to  attain  the  proposed 
objectives, and are therefore compliant with the principle of proportionality.  

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The  amendments  related  to  the  EPPO  are  the  consequence  of  the  adoption  of  Regulation 
2017/1939. They are limited to what is necessary to adapt the functioning of OLAF to reflect 
the principles of the relationship between the EPPO and OLAF laid down in that Regulation.  

In  addition,  certain  limited  aspects  of  the  Regulation  are  addressed  where  practice  has 
revealed  shortcomings  in  the  existing  system.  Although  the  conclusions  of  the  evaluation 
were  wide-ranging,  amendments  are  only  proposed  where  changes  are essential  in the  short 
term to ensure the effectiveness of OLAF investigations. The concrete amendments do not go 
beyond  what  is  necessary  to  achieve  this  objective  and  balance  the  various  legal  interests 
concerned.  Provisions  on  the  conduct  of  on-the-spot  checks  are  modified  only  to  the  extent 
necessary to ensure that OLAF can use this investigative tool effectively across the Member 
States.  These  amendments  do  not  impact  the  application  of  national  law  in  the  situations 
where  it  remains  relevant,  i.e.  where  national  authorities  are  called  on  to  assist  OLAF  in 
accordance with their national procedural rules. This principle also applies as regards the new 
provision on access to bank information: while it was necessary to clarify in the Regulation 
that  national  competent  authorities  should  assist  OLAF  to  access  such  information  which  is 
essential  to  uncover  many  types  of  fraud,  they  will  do  so  in  accordance  with  their  national 
laws. 

Choice of the instrument 

Regulation No 883/2013 needs to be amended through the same type of instrument. 

3. 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Evaluation of Regulation No 883/2013 

On 2 October 2017, the Commission adopted its Report on the Evaluation of the application 
of  Regulation  No  883/2013.  It  was  accompanied  by  an  opinion  of  OLAF's  Supervisory 
Committee.  

The evaluation concluded that the Regulation allowed OLAF to deliver concrete results in the 
protection of the EU budget. It also unveiled a number of shortcomings that negatively impact 
the  effectiveness  of  OLAF  investigations.  These  findings  relate  to  a  wide  range  of  areas 
relating  to  the  application  of  the  Regulation.  Those  that  are  addressed  in  the  proposal,  and 
which  are  considered  essential  in  the  short  term  to  strengthen  the  framework  for  OLAF 
investigations, are summarised below. 

As regards the conduct of investigations, OLAF's investigative powers stem from various acts 
of Union law, including the Regulation. In various instances these acts make the application 
of  those  powers  subject  also  to  conditions  of  national  law,  notably  as  regards  on-the-spot 
checks and inspections of economic operators and digital forensic operations conducted in the 
territory  of  the  Member  States.  The  evaluation  showed  that  the  extent  to  which  Regulation 
No 883/2013 makes national law applicable is not completely clear. Different interpretations 
of  the  relevant  provisions,  and  differences  in  national  law,  lead  to  a  fragmentation  in  the 
exercise  of  OLAF's  investigative  powers  and  even  hinder  OLAF’s  ability  to  conduct  its 
investigations effectively in all Member States.  

The  evaluation  also  suggested  that  the  need  for  and  possibility  of  better  access  to  bank 
account information under appropriate conditions, which could be central to uncovering many 
cases of fraud or irregularity, should be assessed. In the area of VAT, it showed that OLAF’s 
mandate should be clarified and strengthened.  

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The  evaluation  also  identified  certain  instances  in  the  cooperation  with  national  authorities 
where it was difficult for OLAF to obtain the necessary assistance, while recognising that the 
anti-fraud coordination services introduced by Regulation No 883/2013 were a very positive 
development in that regard.  

As regards the follow-up to investigations, the most important factor affecting the follow-up 
to  OLAF  recommendations  identified  by  the  evaluation  relates  to  the  rules  on  the 
admissibility  of  OLAF-collected  evidence  in  national  judicial  proceedings.  The  Regulation 
provides  that  OLAF  reports  constitute  admissible  evidence  in  the  same  way  and  under  the 
same conditions as administrative reports drawn up by national administrative inspectors. The 
evaluation  suggested  that  in  some  Member  States  this  rule  does  not  sufficiently  ensure  the 
effectiveness of OLAF’s activities.  

The  Regulation  also  mandates  OLAF  to  provide  the  Member  States  with  assistance  to 
coordinate  their  action  for  the  protection  of  the  Union's  financial  interests.  This  is  a  key 
element of OLAF’s mandate to support cross-border cooperation among the Member States. 
However,  the  Regulation  does  not  contain  detailed  provisions  on  the  modalities  of 
coordination.  

Finally,  the  evaluation  identified  a  number  of  provisions  in  the  Regulation  which  could 
benefit from clarification.  

Stakeholder consultation 

Regulation  No  883/2013  regulates  the  conduct  of  OLAF  investigations  and  cooperation 
mechanisms  with  institutional  partners.  The  groups  of  stakeholders  that  it  impacts  are  well-
defined,  for  the  most  part  within  the  Union  institutional  framework  and  relevant  Member 
State  authorities.  The  public  at  large  cannot  be  considered  as  directly  impacted  by  the 
provisions  of  the  Regulation,  or  responsible  for  their  application,  or  possessing  specific 
evidence  that  is  needed  for  the  revision.  Therefore,  an  open  public  consultation  was  not 
carried out.  

The roadmap for the initiative stayed open for 4 weeks to public feedback; no feedback was 
received.  

A targeted consultation of relevant groups of stakeholders was conducted:  

– 

– 

– 

National  authorities  (anti-fraud  coordination  services,  judicial,  enforcement  and 
managing  authorities)  were  consulted  in  the  framework  of  a  survey.  All  Member 
States were targeted, with dissemination of the survey via the anti-fraud coordination 
services, and 44 responses from 21 different Member States were received; 

Union institutions, bodies, offices and agencies were consulted in the framework of a 
survey, to which 28 responses were received; 

Academics and defence lawyers expressed their views in a dedicated workshop. 

The vast majority of stakeholders consulted agreed to the possible amendment of Regulation 
No 883/2013 in the light of the future creation of the EPPO, in order to allow OLAF and the 
EPPO to cooperate closely, and each of them to exercise effectively their mandate. There is a 
large  consensus  that  clear  rules  are  necessary,  in  order  to  avoid  overlapping,  as  well  as  to 
ensure maximum complementarity and avoid gaps.  

Stakeholders  consulted  agreed  to  different  extents  to  the  need  to  amend  Regulation  No 
883/2013  in  order  to  improve  the  effectiveness  of  OLAF's  investigations.  The  need  to 
improve OLAF's ability to conduct investigations in an effective and coherent manner across 
Member  States  was  supported  by  a  majority  of  responses.  A  majority  also  supported  the 

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clarification and strengthening of the Regulation as regards VAT and OLAF's access to bank 
data. Respondents expressed divergent views on matters such as the admissibility in national 
proceedings of OLAF's reports, or the role and mandate of anti-fraud coordination services.  

On 16 February 2018, COREPER endorsed an ‘outcome of proceedings on the Commission's 
report on the evaluation of the application of Regulation (EU, Euratom) No 883/2013’. It calls 
on  the  Commission  to  focus  primarily  on  the  topics  that  are  necessary  to  enable  OLAF  to 
cooperate smoothly with the EPPO without, however, extending the competencies and powers 
of  OLAF.  In  addition,  it  lists  a  number  of  topics that  certain  delegations  would wish  to  see 
addressed in the proposal. 

The  revision  of  Regulation  No  883/2013  was  also  discussed  by  the  Justice  Ministers  of  the 
Member States, first at their informal meeting in Sofia on 26 January 2018, then in the Justice 
and Home Affairs Council in Brussels on 8-9 March 2018. The Council emphasised that the 
cooperation between the EPPO and OLAF is essential and should be based on a clear division 
of competences and responsibilities, complementarity, avoiding competition or duplication of 
work. Regulation No 883/2013 should reflect the provisions in the EPPO Regulation on the 
relationship between the two offices.  

Opinion No 2/2017 of the Supervisory Committee of OLAF on the application of Regulation 
No 883/2013 was also considered in the preparation of the proposal. The Opinion highlights 
the amended Regulation should provide for uniform grounds for all the investigations in order 
to  avoid  fragmentation  and  interpretation  difficulties,  and  to  strengthen  clarity  of  law  and 
procedural  guarantees.  It  addresses  the  need  to  access  information  related  to  bank  accounts 
and  money  transfers,  and  to  investigate  intra-EU  VAT  fraud.  The  Opinion  also  calls  for 
judicial review and strengthening the procedural guarantees and their control, particularly in 
the context of the establishment of the EPPO and in order to improve admissibility of OLAF 
evidence  in  judicial  proceedings.  It  emphasises  the  need  for  clarity  in  the  future  interaction 
between OLAF and the EPPO. Finally, the Opinion calls for clarification of the Supervisory 
Committee's role and mandate, and its access to information related to OLAF's investigative 
function. 

In  addition,  the  wide  consultation  of  stakeholders  carried  out  for  the  evaluation  of  the 
application  of  Regulation  No  883/2013  supports  the  analytical  work  accompanying  the 
proposal. 

Collection and use of expertise 

The  external  study  conducted  for  the  evaluation  of  Regulation  No  883/2013  and  several 
independent  studies  were  used  in  support  of  the  preparation  of  the  proposal.  Experts  were 
consulted in a dedicated workshop. 

Impact assessment 

An  impact  assessment  was  not  considered  necessary.  The  proposal  is  accompanied  by  an 
analytical staff working document which is based on an extensive use of the evaluation report, 
external studies and the results of the consultations mentioned above. 

Fundamental rights 

Fundamental  rights  are  protected  in  the  framework  of  OLAF  investigations  including  by 
specific  provisions  on  procedural  guarantees  in  Regulation  No  883/2013  and  in  Regulation 
No  2185/1996  applicable  to  on-the-spot  checks  and  inspections.  In  addition,  OLAF  must 
generally ensure that its activities respect the rights enshrined in the Charter of Fundamental 
Rights of the European Union ('the Charter').  

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A new Article 9 on procedural guarantees was introduced when Regulation No 883/2013 was 
adopted.  Article  9  restates  a  range  of  principles  that  are  essential  in  OLAF  investigations, 
including, notably, the duty of OLAF to seek evidence for and against the person concerned, 
the  right  to  an  objective  and  impartial  investigation,  the  presumption  of  innocence  and  the 
right to avoid self-incrimination. Article 9 further contains specific provisions on, inter alia, 

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 

 

 

the  right  of  persons  concerned  and  witnesses  to  prior  notice  before  being 
interviewed/heard,  

for persons concerned, the right to comment on the facts of the case once the 
investigation has been completed and before conclusions are drawn up, and the 
duty  of  OLAF  that  the  final  investigation  report  makes  reference to  any  such 
comments, 

for  witnesses,  if  evidence  emerges  that  they  may  be  a  person  concerned,  the 
right that an interview is ended and that the interviewee is informed of her/his 
rights, 

the  right  of  persons  interviewed  to  use  any  of  the  official  languages  of  the 
institutions  of  the  Union  (officials  or  other  servants  of  the  Union  may  be 
required  to  use  an  official  language  of  the  institutions  of  which  they  have  a 
thorough knowledge) and to  approve or  make  comments on the record of the 
interview;  for  persons  concerned,  these  are  complemented  by  the  right  to  be 
assisted  by  a  person  of  the  individual’s  choice  and  to  receive  a  copy  of  the 
record of the interview, 

the right of officials, other servants, members of an Union institution or body, 
head  of  office  or  agency,  or  staff  members  to  be  informed  when  an 
investigation reveals they may be a person concerned by an investigation, and 
the right to comment where OLAF informs national authorities before opening 
or during an internal investigation.  

The new Article 9 on procedural guarantees is complemented by provisions on: 

 

 

 

 

the  need  for  written  authorisation  by  the  Director-General  for  the  conduct  of 
investigative  tasks,  indicating  the  subject  matter,  purpose  and  legal  basis  for 
the investigation, and the powers stemming from those bases (Article 7(2)), 

a legality check (Article 17(7)) for the review of legality (including respect of 
procedural guarantees and fundamental rights), proportionality and necessity of 
the  investigative  activities,  prior  to  their  conduct,  and  the  overall  review  of 
final reports, 

provisions on confidentiality and data protection (Article 10), 

various internal and external controls (possibility for any person affected by an 
investigation  to  address  a  complaint  to  OLAF,  and  controls  conducted by  the 
Supervisory  Committee,  the  European  Data  Protection  Supervisor,  the 
European Ombudsman, the European Court of Auditors and European Court of 
Justice, in accordance with their respective mandates).  

This set of provisions and controls sets a standard for the safeguard of procedural guarantees 
and fundamental rights of persons involved in OLAF investigations that is appropriate and in 
line  with  the  fact  that  OLAF  conducts  administrative  investigations  using  administrative 
powers. Moreover, OLAF investigations are completed by a report and recommendations that 
are followed up, where appropriate, by other authorities. Where such other authorities prepare 

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a decision affecting the legal position of the persons concerned, further procedural rights and 
guarantees apply in accordance with the applicable legal framework.  

The  legal  framework  on  procedural  guarantees  in  OLAF  investigations,  as  it  resulted  from 
Regulation  No  883/2013,  was  generally  recognised  in  the  evaluation  as  a  positive 
improvement for the protection of the rights of individuals subject to an OLAF investigation. 
In this regard, the evaluation has not shown a need to revise the existing provisions. 

The  amendments  proposed  do  not  have  an  impact  on  the  overall  balance  between  OLAF's 
investigative  powers  and  the  procedural  rights  of  the  persons  investigated.  OLAF’s  powers 
will  not  change  with  this  initiative, although  they  will  be  clarified  in  several instances.  The 
amendments  proposed  to  the  conduct  of  on-the-spot  checks  and  inspections  maintain  the 
current  powers,  and  would  frame  more  clearly  the  application  of  national  law,  thereby 
providing  also  more  clarity  on  the  applicable  safeguards  and  rights  of  the  operators 
concerned.  

Moreover, the proposal clarifies that the procedural guarantees provided for in Regulation No 
883/2013, as well as in other Union acts, apply to these on-the-spot checks and inspections. 
This includes the rights against self-incrimination, to be assisted by a person of choice, and to 
use  a  language  of  the  Member  State  where  the  check  is  conducted.  Further  guarantees  will 
apply when the assistance of national authorities is necessary for the carrying out of the check 
if  it  is  resisted  by  an  economic  operator,  or  in  other  cases  in  which  the  Member  States’ 
authorities assist OLAF in the framework of a check. In such cases, national law will apply, 
including procedural guarantees, in the context of the Member States' general duty to ensure 
that OLAF's action is effective.  

The cooperation between OLAF and the EPPO, as well as new provisions on assistance from 
national  authorities  to  access  bank  data  and  on  cooperation  with  Eurofisc,  may  require  the 
exchange  of  personal  data.  OLAF  shall  apply  the  provisions  of  Regulation  No  45/2001  to 
such transfers. In order to reflect current practice, as well as to reinforce the data protection, 
the proposal modifies Article 10(4), which allowed OLAF to appoint a data protection officer, 
in order to make this an obligation. 

4. 

BUDGETARY IMPLICATIONS 

The amendments proposed to the Regulation do not have implications for the Union budget. 

5. 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

In  accordance  with  the  Better  Regulation  Guidelines,  there  is  no  need  to  prepare  an 
implementation plan for a Regulation.  

In  the  context  of  the  setting  up  of  the  EPPO  and  defining  the  detailed  modalities  of 
operational cooperation, working arrangements will have to be concluded between OLAF and 
the EPPO.  

Detailed explanation of the specific provisions of the proposal 

I. Relations with the EPPO  

General principles 

Articles 1(4a) and 12g set out  the general  principles of the relationship between OLAF and 
the  EPPO.  They  mirror  Article  101  of  Regulation  2017/1939  that  requires  a  close  and 
complementary relationship so that all available means are used to protect the Union budget. 

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Working  arrangements  are  provided  for  as  they  will  be  necessary  to  specify  the  concrete 
modalities of cooperation and exchange of information.  

Reporting to the EPPO 

Article 12c contains an obligation on OLAF to report to the EPPO without undue delay any 
conduct  on  which  the  EPPO  may  exercise  its  competence,  as  required  by  Article  24  of 
Regulation 2017/1939. The report should contain the minimum information of Article 24 of 
Regulation  2017/1939.  OLAF  is  enabled  to  conduct  a  preliminary  evaluation  of  incoming 
information, to ensure that the information supplied to the EPPO is sufficiently substantiated 
and  contains  the  necessary  elements.  Article  12c  also  reflects  the  provision  in  Regulation 
2017/1939  that  OLAF  may  be  asked  by  Union  institutions,  bodies,  offices  and  agencies  to 
perform this verification on their behalf.  

Non-duplication of investigations, support to the EPPO and complementary investigations  

Article 12d reflects Article 101(2) of Regulation 2017/1939, which provides that OLAF shall 
not open a parallel investigation into the same facts which are the object of an investigation 
by the EPPO. It also establishes a mechanism of consultation to ascertain whether the EPPO 
is conducting an investigation. 

Article  12e  contains  the  specific  procedural  rules  applicable  to  requests  from  the  EPPO  to 
OLAF  to  support  or  complement  the  EPPO's  activity  in  accordance  with  Article  101(3)  of 
Regulation 2017/1939.  

Article  12f  provides  that,  in  duly  justified  cases,  with  a  view  to  allowing  the  adoption  of 
precautionary measures or of financial, disciplinary or administrative action, OLAF may open 
or  continue  an  administrative  investigation  to  complement  a  criminal  investigation  being 
carried out by the EPPO. This is in keeping with Regulation 2017/1939, which specifies that 
all available means should be used to protect the Union's financial interests (Article 101(1)) 
and  that  the  non-duplication  rule  should  not  prejudice  the  power  of  OLAF  to  start  an 
administrative investigation on its own initiative, in close consultation with the EPPO (recital 
103). This provision enables administrative investigations which are not aimed at ascertaining 
possible  elements  of  a  criminal  offence,  but  which  are  focused  at  ensuring  recovery,  or  at 
preparing the ground for administrative or disciplinary action. Instances where administrative 
action  can  usefully  complement  the  EPPO's  activity  would  include  e.g.  administrative 
recovery when there is a risk of time-barring or the amounts at stake are very high, or the need 
to avoid further expenditure in risk situations through administrative measures.  

In order to protect the effectiveness of the EPPO investigations and prosecutions, Article 12f 
enables the EPPO to object to the opening or continuation of an investigation by OLAF, or to 
the performance of certain acts of this investigation. This possibility is consistent with Article 
101(3) of Regulation 2017/1939, as in such cases the absence of an objection from the EPPO 
is equivalent, in functional terms, to a request made pursuant to that provision.  

Other provisions 

Several adaptations of existing provisions of Regulation No 883/2013 are proposed in order to 
reflect the establishment of the EPPO (Articles 8(1) and (4), 9(4), 16, 17(5) and (8)).  

II. Enhancing the effectiveness of OLAF's investigative function 

On-the-spot checks and inspections and assistance of national authorities 

The proposal aims at removing ambiguities and obstacles revealed by the evaluation by better 
framing the references to national law, to ensure a more effective and coherent application of 

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OLAF's power to conduct on-the-spot-checks and inspections, without however changing the 
way the Regulation operates in relation to the Member States.  

The  amendment  to  Article  3  clarifies  that  the  conduct  by  OLAF  of  on-the-spot  checks  and 
inspections, where economic operators submit to a check by OLAF, is subject to Union law 
alone (Regulations No 883/2013 and No 2185/1996). This includes the procedural guarantees 
of  Regulation  No  883/2013  and  of  Regulation  No  2185/1996,  whose  application  in  the 
context of on-the-spot checks and inspections is clarified in Article 3(5). When the economic 
operator does not cooperate and OLAF needs to rely on the national authorities, or receives 
their  assistance  for  other  reasons,  Articles  3(7)  and  7(3)  maintain  the  principle  that  such 
assistance will be provided in compliance with national law. Article 3(3) provides for the duty 
of economic operators to cooperate with OLAF in the course of its investigations. 

These  amendments  to  Article  3,  regarding  the  applicable  law  to  the  conduct  of  on-the-spot 
checks  and  inspections,  are  clarifications  in  line  with  the  interpretation  of  Regulation  No 
883/2013  given  by  the  General  Court  in  its  recent  ruling  of  3  May  2018  in  case  T-48/16, 
Sigma  Orionis  SA  v  European  Commission1.  The  Court  ruled  that,  in  the  absence  of 
opposition  by  the  economic  operator,  on-the-spot  checks  and  inspections  are  conducted  by 
OLAF  on  the  basis  of  Regulation  No  883/2013  and  Regulation  No  2185/1996,  and  of  the 
written  authorisation  of  the  Director-General  of  OLAF.  Union  law  supersedes  national  law 
when a matter is regulated by Regulations No 883/2013 or No 2185/1996. Moreover, it finds 
that  the  provisions  (in  Regulation  No  2185/1996)  concerning  the  possible  opposition  of  the 
economic operator concerned to a check do not entail the existence of a 'right to oppose' but 
simply  provide  for  the  consequence  that  the  check  may  be  imposed  on  them  through  the 
assistance  of  national  authorities  (on  the  basis  of  national  law).  As  regards  procedural 
guarantees,  the  Court  recalls  that  OLAF  must  respect  fundamental  rights  as  laid  down  in 
Union law, in particular in the Charter. 

The amendments to Articles 8(2) and (3) and 12(3) are intended to ensure the effectiveness of 
OLAF's action, in cases where the Regulation makes reference to the application of national 
law. 

Bank account information 

Article 7(3) is amended to clarify Member States' duty to assist OLAF by transmitting bank 
account  information.  In  order  to  increase  the  effectiveness  of  OLAF  investigations,  this 
should include the information on bank account holders contained in the national centralised 
bank  account  registries  or  data  retrieval  systems  in  the  Member  States  (5th  Anti-Money 
laundering Directive,  agreed  by  the  Union  co-legislators  in  December  2017).  In  those  cases 
where the modus operandi of the fraud investigated requires such knowledge, information on 
financial  transactions  should  as  well  be  transmitted.  The  principle  already  enshrined  in  the 
Regulation  that  such  assistance  will  be  provided  in  compliance  with  national  law  will  be 
maintained. 

VAT 

Article  3(1)  is  clarified  to  ensure  that  on-the-spot  checks  and  inspections  are  available  to 
OLAF  in  all  areas  of  its  mandate.  In  addition,  to  allow  for  an  efficient  cooperation  with 
Member States, the amendment to Article 12(5) enables OLAF to exchange information with 
the Eurofisc network established by Regulation No 904/2010. 

1 

Not yet reported. See paragraphs 73-118. 

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Admissibility of OLAF-collected evidence  

The amendment to Article 11(2) maintains the principle of equivalence to the rules applicable 
to  administrative  reports  drawn  up  by  national  administrative  inspectors  in  the  context  of 
criminal proceedings. It introduces a principle of admissibility of OLAF reports - subject only 
to  a  verification  of  authenticity  –  in  judicial  proceedings  of  a  non-criminal  nature  before 
national courts and in administrative proceedings in the Member States. Finally, the provision 
provides  for  the  admissibility  of  the  reports  in  administrative  and  judicial  proceedings  at 
Union level. This will improve the effective use of the results of OLAF investigations without 
interfering, however, with the assessment of such evidence. 

Anti-fraud coordination services 

Article  12a  further  specifies  the  role  of  the  anti-fraud  coordination  services  in  the  Member 
States  in  order  to  ensure  that  OLAF  is  provided  with  the  assistance  it  needs  for  its 
investigations to be effective. Their organisation and powers remain the competence of each 
Member  State.  The  anti-fraud  coordination  services  may  support  OLAF  in  external  and 
internal investigations and in coordination activities, as well as cooperate among themselves. 

Coordination activities 

Article 12b introduces a new provision specifying the coordination activities that OLAF can 
conduct. 

III. Clarification and simplification  

The  amendment  to  Article  4(2)  adapts  the  conduct  of  digital  forensic  operations  to 
technological progress.  

The amendments to Articles 3(9), 11(3) and 12(1) increase coherence of the rules on internal 
and external investigations.  

The amendment to Article 7(6) clarifies that Union institutions, bodies, offices and agencies 
may  consult  OLAF  at  any  time  with  a  view  to  deciding  on  precautionary  measures.

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2018/0170 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EU, Euratom) No 883/2013 concerning investigations conducted 
by the European Anti-Fraud Office (OLAF) as regards cooperation with the European 
Public Prosecutor's Office and the effectiveness of OLAF investigations 

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, in conjunction with 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 Auditors2,  

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1)  With the adoption of Directive (EU) 2017/1371 of the European Parliament and of the 
Council3  and  Council  Regulation  (EU)  2017/19394,  the  Union  has  substantially 
strengthened  the  means  available  to  protect  the  financial  interests  of  the  Union  by 
means of criminal law. The European Public Prosecutor's Office ("EPPO") will have 
the power to carry out criminal investigations and bring indictments related to criminal 
offences  affecting  the  Union  budget,  as  defined  in  Directive  (EU)  2017/1371,  in  the 
participating Member States. 

(2) 

The European Anti-Fraud Office ("the Office") conducts administrative investigations 
into administrative irregularities as well as into criminal behaviour. At the end of its 
investigations,  it  may  make  judicial  recommendations  to  the  national  prosecution 
authorities, aimed at enabling indictments and  prosecutions in the Member States. In 
future,  in  the  Member  States  participating  in  the  EPPO,  it  will  report  suspected 
criminal  offences  to  the  EPPO,  and  will  collaborate  with  it  in  the  context  of  its 
investigations.  

(3) 

Therefore, Regulation (EU, Euratom) No 883/2013 of the European Parliament and of 
the  Council5  should  be  amended  following  the  adoption  of  Regulation  (EU) 
2017/1939.  The  provisions  governing  the  relationship  between  the  EPPO  and  the 

2 
3 

4 

5 

OJ C […], […], p. […]. 
Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight 
against fraud to the Union's financial interests by means of criminal law (OJ L 198, 28.7.2017, p. 29). 
Council  Regulation  (EU)  2017/1939  of  12  October  2017  implementing  enhanced  cooperation  on  the 
establishment of the European Public Prosecutor’s Office (‘the EPPO’) (OJ L 283, 31.10.2017, 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). 

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(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

Office  in  Regulation  (EU)  2017/1939  should  be  reflected  and  complemented  by  the 
rules  in  Regulation  (EU,  Euratom)  No  883/2013  to  ensure  the  highest  level  of 
protection  of  the  financial  interests  of  the  Union  through  synergies  between  the  two 
bodies.  

In view of their common goal to preserve the integrity of the Union budget, the Office 
and  the  EPPO  should  establish  and  maintain  a  close  relationship  based  on  sincere 
cooperation  and  aimed  at  ensuring  the  complementarity  of  their  respective  mandates 
and  coordination  of  their  action,  in  particular  as  regards  the  scope  of  the  enhanced 
cooperation  for  the  establishment  on  the  EPPO.  Ultimately,  the  relationship  should 
contribute to ensuring that all means are used to protect the financial interests of the 
Union and avoiding unnecessary duplication of efforts. 

Regulation  (EU)  2017/1939  requires  the  Office,  as  well  as  all  institutions,  bodies, 
offices and agencies of the Union and competent national authorities, to report to the 
EPPO  without  undue  delay  criminal  conduct  in  respect  of  which  the  EPPO  may 
exercise its competence. Since the mandate of the Office is to carry out administrative 
investigations  into  fraud,  corruption  and  any  other  illegal  activity  affecting  the 
financial  interest  of  the  Union,  it  is  ideally  placed  and  equipped  to  act  as  a  natural 
partner and privileged source of information for the EPPO.  

Elements  pointing  to  possible  criminal  conduct  falling  within  the  competence  of  the 
EPPO may, in practice, be present in initial allegations received by the Office or may 
emerge only in the course of an administrative investigation opened by the Office on 
the grounds of suspicion of administrative irregularity. In order to comply with its duty 
to report to the EPPO, the Office should therefore, as the case may be, report criminal 
conduct at any stage before or during an investigation. 

Regulation  (EU)  2017/1939  specifies  the  minimum  elements  that,  as  a  rule,  reports 
should  contain.  The  Office  may  need  to  conduct  a  preliminary  evaluation  of 
allegations  to  ascertain  these  elements  and  collect  the  necessary  information.  The 
Office should conduct this evaluation expeditiously and through means which do not 
risk  jeopardising  a  possible  future  criminal  investigation.  Upon  completion  of  its 
evaluation,  it  should  report  to  the  EPPO  where  a  suspicion  of  an  offence  within  its 
competence is identified.  

In consideration of the Office's expertise, the institutions, bodies, offices and agencies 
of  the  Union  should  have  the  choice  to  make  use  of  the  Office  to  conduct  such 
preliminary evaluation of allegations reported to them. 

interests  may  require 

In  conformity  with  Regulation  (EU)  2017/1939,  the  Office  should  in  principle  not 
open  an  administrative  investigation  parallel  to  an  investigation  conducted  by  the 
EPPO  into  the  same  facts.  However,  in  certain  cases,  the  protection  of  the  Union’s 
financial 
the  Office  carry  out  a  complementary 
administrative investigation before the conclusion of criminal proceedings initiated by 
the  EPPO  with  the  purpose  of  ascertaining  whether  precautionary  measures  are 
necessary,  or  financial,  disciplinary  or  administrative  action  should  be  taken.  These 
complementary  investigations  may  be  appropriate,  inter  alia,  when  necessary  to 
recover amounts due to the Union budget subject to specific time-barring rules, when 
the  amounts  at  risk  are  very  high,  or  where  there  is  the  need  to  avoid  further 
expenditure in risk situations through administrative measures. 

that 

(10)  Regulation (EU) 2017/1939 provides that the EPPO may request such complementary 
investigations  to  the  Office.  In  cases  where  the  EPPO  does  not  request  it,  such  a 

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13 

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complementary  investigation  should  also  be  possible  on  the  initiative  of  the  Office, 
under  certain  conditions.  In  particular,  the  EPPO  should  be  able  to  object  to  the 
opening  or  continuation  of  an  investigation  by  the  Office,  or  to  the  performance  of 
specific acts of investigation by it. The reasons for this objection should be based on 
the  need  to  protect  the  effectiveness  of  the  EPPO's  investigation  and  should  be 
proportionate  to  this  aim.  The  Office  should  refrain  from  performing  the  action  on 
which  the  EPPO  raised  an  objection.  If  the  EPPO  does  not  object,  the  Office 
investigation should be conducted in close consultation with the EPPO. 

(11)  The Office should actively support the EPPO in its investigations. In this  regard, the 
EPPO  may  request  the  Office  to  support  or  complement  its  criminal  investigations 
through the exercise of powers under this Regulation. In these cases the Office should 
perform  these  operations  within  the  limits  of  its  powers  and  within  the  framework 
provided for in this Regulation.  

(12)  To  ensure  effective  coordination  between  the  Office  and  the  EPPO,  information 
should  be  exchanged  between  them  on  a  continuous  basis.  The  exchange  of 
information in the stages prior to the opening of investigations by the Office and the 
EPPO  is  particularly  relevant  to  ensure  proper  coordination  between  the  respective 
actions and avoid duplication. The Office and the EPPO should specify the modalities 
and conditions of this exchange of information in their working arrangements.  

(13)  The Commission Report on Evaluation of the application of Regulation (EU, Euratom) 
No  883/20136,  adopted  on  2  October  2017,  concluded  that  the  2013  changes  to  the 
legal framework brought clear improvements, as regards the conduct of investigations, 
cooperation with partners and the rights of persons concerned. At the same time, the 
evaluation has highlighted some shortcomings which impact on the effectiveness and 
efficiency of investigations. 

(14) 

It  is  necessary  to  address  the  most  unambiguous  findings  of  the  Commission 
evaluation through the amendment of Regulation (EU, Euratom) No 883/2013. These 
are essential changes necessary in the short term to strengthen the framework for the 
Office's investigations, in order to maintain a strong and fully-functioning Office that 
complements the EPPO's criminal law approach with administrative investigations, but 
which do not entail a change to the mandate or powers. They primarily concern areas 
where,  today,  the  lack  of  clarity  of  the  Regulation  hinders  the  effective  conduct  of 
investigations by the Office, such as the conduct of on-the spot checks, the possibility 
of  access  to  bank  account  information,  or  the  admissibility  as  evidence  of  the  case 
reports drawn up by the Office. 

(15)  These changes do not affect the procedural guarantees applicable in the framework of 
investigations. The Office is bound to apply the procedural guarantees of Regulation 
(EU,  Euratom)  No  883/2013,  Council  Regulation  (Euratom,  EC)  No  2185/967  and 
those contained  in  the Charter of Fundamental Rights  of the Union. This  framework 
requires  that  the  Office  conducts  its  investigations  objectively,  impartially  and 
confidentially, seeking evidence for and against the person concerned, and carries out 
investigative acts on the basis of a written authorisation and following a legality check. 
The  Office  must  ensure  the  respect  of  the  rights  of  persons  concerned  by  its 

6 

7 

COM(2017) 589.  The  report  was  accompanied  by  an  evaluation  Staff  Working  Document, 
SWD(2017) 332, and an Opinion of the Office's Supervisory Committee, Opinion 2/2017. 
Council  Regulation  (Euratom,  EC)  No  2185/96  of  11  November  1996  concerning  on-the-spot  checks 
and inspections carried out by the Commission in order to protect the European Communities' financial 
interests against fraud and other irregularities, OJ L 292, 15.11.1996, p. 2–5 

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14 

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investigations,  including  the  presumption  of  innocence  and  the  right  to  avoid  self-
incrimination.  When  interviewed,  persons  concerned  have  inter  alia  the  rights  to  be 
assisted by a person of choice, to approve the record of the interview, and to use any of 
the official languages of the Union. Persons concerned also have the right to comment 
on the facts of the case before conclusions are drawn. 

(16)  The  Office  conducts  on-the-spot  checks  and  inspections,  which  allow  it  to  access 
premises  and  documentation  of  economic  operators  in  the  framework  of  its 
investigations  into  suspected  fraud,  corruption  or  other  illegal  conduct  affecting  the 
financial  interests  of  the  Union.  These  are  carried  out  in  accordance  with  this 
Regulation and with Regulation (Euratom, EC) No 2185/96, which in some instances 
make  the  application  of  these  powers  subject  to  conditions  of  national  law.  The 
Commission evaluation has found that the extent to which national law should apply is 
not  always  specified,  and  as  a  result  hinders  the  effectiveness  of  the  Office's 
investigative activities.  

(17) 

It is therefore appropriate to clarify the instances in which national law should apply in 
the  course  of  investigations  by  the  Office,  without  however  changing  the  powers 
available to the Office or changing the way the Regulation operates in relation to the 
Member  States.  This  clarification  reflects  the  recent  ruling  of  the  General  Court  in 
case T-48/16, Sigma Orionis SA v European Commission. 

(18)  The conduct by the Office of on-the-spot checks and inspections, in situations where 
the economic operator concerned submits to the check, should be subject to Union law 
alone.  This  should  allow  it  to  exercise  its  investigative  powers  in  an  effective  and 
coherent manner in all Member States, with a view to contributing to a high level of 
protection  of  the  Union's  financial  interests  across  the  Union,  as  required  by  Article 
325 of the Treaty on the Functioning of the European Union.  

(19) 

In situations where the Office needs to rely on the assistance of the national competent 
authorities, particularly  in  cases  where  an  economic  operator  opposes an  on-the-spot 
check  and  inspection,  Member  States  should  ensure  that  the  Office's  action  is 
effective, and should provide the necessary assistance in accordance with the relevant 
rules of national procedural law. 

(20)  A  duty  for  economic  operators  to  cooperate  with  the  Office  should  be  introduced  in 
Regulation  (EU,  Euratom)  No  883/2013.  This  is  in  line  with  their  obligation  under 
Regulation (Euratom, EC) No 2185/96 to grant access for the carrying out of on-the-
spot checks and inspections to premises, land, means of transport or other areas, used 
for  business  purposes,  and  with  the  obligation  in  Article  1298  of  the  Financial 
Regulation that any person or entity receiving Union funds shall fully cooperate in the 
protection  of  the  financial  interests  of  the  Union,  including  in  the  context  of 
investigations by the Office. 

(21)  As  part  of  this  duty  of  cooperation,  the  Office  should  be  able  to  require  economic 
operators who may have been involved in the matter under investigation, or who might 
hold relevant information, to supply relevant information. When complying with such 
requests,  economic  operators  are  not  obliged  to  admit  that  they  have  committed  an 
illegal  activity,  but  they  are  obliged  to  answer  factual  questions  and  to  provide 

8 

Article 129 will be inserted in Regulation (EU) 2018/XX of the European Parliament and the Council 
(new Financial Regulation), on which a political agreement has been reached and which is expected to 
be adopted in the coming months. 

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documents, even if this information may be used to establish against them or against 
another operator the existence of an illegal activity.  

(22)  Economic operators should have the possibility to use any of the official languages of 
the Member State where the check takes place, and the right to be assisted by a person 
of  their  choice,  including  by  external  legal  counsel,  during  on-the-spot  checks  and 
inspections.  The  presence  of  a  legal  counsel  should  not,  however,  represent  a  legal 
condition  for  the  validity  of  on-the-spot  checks  and  inspections.  To  ensure  the 
effectiveness of the on-the-spot checks and inspections, in particular as regards the risk 
of  evidence  disappearing,  the  Office  should  be  able  to  access  to  the  premises,  land, 
means of transportation or other areas used for business purposes without waiting for 
the operator to consult its legal counsel. It should only accept a short reasonable delay 
pending consultation of the legal counsel before starting the conduct of the check. Any 
such delay must be kept to the strict minimum. 

(23)  To  ensure  transparency,  when  carrying  out  on-the-spot  checks  and  inspections  the 
Office should provide economic operators with appropriate information on their duty 
to cooperate and the consequences of a refusal to do so, and the procedure applicable 
to the check, including the applicable procedural safeguards. 

(24) 

In  internal  investigations  and,  where  necessary,  in  external  investigations  the  Office 
has  access  to  any  relevant  information  held  by  the  institutions,  bodies,  offices  and 
agencies.  It  is  necessary,  as  suggested  by  the  Commission  evaluation,  to  clarify  that 
this access should be possible irrespective of the medium on which this information or 
data is stored, in order to reflect evolving technological progress.  

(25)  For  a  more  coherent  framework  for  the  investigations  of  the  Office,  the  rules 
applicable to internal and external investigations should be further aligned, in order to 
address  certain  inconsistencies  identified  by  the  Commission  evaluation,  where 
divergent rules are not justified. This should be the case, for instance, to provide that 
reports  and  recommendations  drawn  up  following  an  external  investigation  may  be 
sent  to  the  institution,  body,  office  or  agency  concerned  for  it  to  take  appropriate 
action,  as  is the case  in internal  investigations.  Where possible in  acordance with  its 
mandate, the Office should support the institution, body, office or agency concerned in 
the  follow-up  to  its  recommendations.  To  further  ensure  cooperation  between  the 
Office and institutions, bodies, offices and agencies, the Office should inform, where 
necessary, the Union institution, body, office or agency concerned when it decides not 
to open an external investigation, for instance when a Union institution, body, office or 
agency was the source of the initial information. 

(26)  The Office should dispose of the necessary means to follow the money trail in order to 
uncover the modus operandi typical of many fraudulent conducts. Today, it is able to 
obtain  banking  information  relevant  for  its  investigative  activity  held  by  credit 
institutions in a number of Member States, through cooperation with and assistance by 
the  national  authorities.  To  ensure  an  effective  approach  throughout  the  Union,  the 
Regulation  should  specify  the  duty  of  competent  national  authorities  to  provide 
information on bank and payments accounts to the Office, as part of their general duty 
to  assist  it.  This  cooperation  should,  as  a  rule,  take  place  through  the  Financial 
Intelligence Units in the Member States. When giving this assistance to the Office, the 
national  authorities  should  act  in  compliance  with  the  relevant  provisions  of 
procedural law provided for in the national legislation of the Member State concerned. 

(27)  The  early  transmission  of  information  by  the  Office  for  the  purpose  of  adopting 
precautionary measures is an essential tool for the protection of the Union's financial 

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interests. In order to ensure close cooperation in this regard between the Office and the 
institutions, offices, bodies and agencies of the Union, it is appropriate that the latter 
have the possibility to consult at any time the Office with a view to deciding on any 
appropriate  precautionary  measures,  including  measures  for  the  safeguarding  of 
evidence. 

(28)  Reports drawn up by the Office constitute today admissible evidence in administrative 
or  judicial  proceedings  in  the  same  way  and  under  the  same  conditions  as 
administrative  reports  drawn  up  by  national  administrative 
inspectors.  The 
Commission  evaluation  found  that  in  some  Member  States  this  rule  does  not 
sufficiently  ensure  the  effectiveness  of  the  Office’s  activities.  To  increase  the 
effectiveness  and  the  consistent  use  of  reports  of  the  Office,  the  Regulation  should 
provide for the admissibility of such reports in judicial proceedings of a non-criminal 
nature before national courts, as well as in administrative proceedings in the Member 
States. The rule providing for equivalence with the reports of national administrative 
inspectors  should  continue  to  apply  in  the  case  of  national  judicial  proceedings  of  a 
criminal nature. The Regulation should also provide for the admissibility of the reports 
drawn up by the Office in administrative and judicial proceedings at Union level. 

(29)  The  mandate  of  the  Office  includes  the  protection  of  revenues  to  the  Union  budget 
arising  from  VAT  own  resources.  In  this  field,  the  Office  should  be  able  to  support 
and complement the activities of the Member States through investigations conducted 
in accordance with its mandate, the coordination of national competent authorities in 
complex, transnational cases, and the support and assistance to Member States and to 
the EPPO. To this end, the Office should be able to exchange information through the 
Eurofisc  network  established  by  Council  Regulation  (EU)  No  904/20109  in  order  to 
promote and facilitate cooperation in the fight against VAT fraud. 

(30)  The  anti-fraud  coordination  services  of  the  Member  States  were  introduced  by 
Regulation  (EU,  Euratom)  No  883/2013  to  facilitate  an  effective  cooperation  and 
exchange of information, including information of an operational nature, between the 
office  and  the  Member  States.  The  evaluation  concluded  they  have  positively 
contributed to the work of the Office. It also identified the need to further clarify their 
role  in  order  to  ensure  that  the  Office  is  provided  with  the  necessary  assistance  to 
ensure that its investigations are effective, while leaving the organisation and powers 
of  the  anti-fraud  coordination  services  to  each  Member  State.  In  this  regard,  the 
anti-fraud  coordination  services  should  be  able  to  provide,  obtain  or  coordinate  the 
necessary assistance to the Office to carry out its tasks effectively, before, during or at 
the end of an external or internal investigation.  

(31)  The  duty  of  the  Office  to  provide  the  Member  States  with  assistance  in  order  to 
coordinate their action for the protection of the financial interests of the Union is a key 
element of its mandate to support cross-border cooperation among the Member States. 
More  detailed  rules  should  be  laid  down  in  order  to  facilitate  the  coordinating 
activities  of  the  Office  and  its  cooperation  in  this  context  with  Member  States' 
authorities,  third  countries  and  international  organisations.  These  rules  should  be 
without  prejudice  to  the  exercise  by  the  Office  of  powers  conferred  on  the 
Commission  in  specific  provisions  governing  mutual  assistance  between  Member 

9 

Council Regulation (EU) No 904/2010 of 7 October 2010 on administrative cooperation and combating 
fraud in the field of value added tax, OJ L 268, 12.10.2010, p. 1–18. 

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17 

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States'  administrative  authorities  and  cooperation  between  those  authorities  and  the 
Commission, in particular to Council Regulation (EC) No 515/9710. 

(32)  Furthermore,  it  should  be  possible  for  the  Office  to  request  the  assistance  of  the 
anti-fraud coordination services in the context of coordination activities, as well as for 
the anti-fraud coordination services to cooperate among themselves, in order to further 
reinforce the available mechanisms for cooperation in the fight against fraud. 

(33)  Since  the  objective  of  this  Regulation  to  strengthen  the  protection  of  the  financial 
interests of the Union by adapting the operation of the Office to the establishment of 
the  EPPO  and  by  enhancing  the  effectiveness  of  the  investigations  by  the  Office 
cannot  be  sufficiently  achieved  by  the  Member  States,  but  can  rather  be  better 
achieved  at  Union  level  through  the  adoption  of  rules  governing  the  relationship 
between  two  Union  offices  and  increasing  the  effectiveness  in  the  conduct  of 
investigations  by  the  Office  across  the  Union,  the  Union  may  adopt  measures,  in 
accordance  with  the  principle  of  subsidiarity  as  set  out  in  Article 5  of  the  Treaty  on 
European Union. In accordance with the principle of proportionality, as set out in that 
Article, this Regulation does not go beyond what is necessary in order to step up the 
fight  against  fraud,  corruption  and  any  other  illegal  activity  affecting  the  financial 
interests of the Union. 

(34)  This Regulation does not modify the powers and responsibilities of the Member States 
to  take  measures  to  combat  fraud,  corruption  and  any  other  illegal  activity  affecting 
the financial interests of the Union. 

(35)  The  European  Data  Protection  Supervisor  was  consulted  in  accordance  with  Article 
28(2) of Regulation (EC) No 45/2001 of the European Parliament and of the Council11 
and delivered an opinion on …12. 

(36)  Regulation (EU, Euratom) No 883/2013 should therefore be amended accordingly, 

HAVE ADOPTED THIS REGULATION: 

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

(1) 

in Article 1, the following paragraph 4a is inserted: 

Article 1 

"4a.  The  Office  shall  establish  and  maintain  a  close  relationship  with  the 
European  Public  Prosecutor's  Office  (‘the  EPPO’)  established  in  enhanced 
cooperation  by  Council  Regulation  (EU)  2017/193913.  This  relationship  shall 
be based  on  mutual  cooperation and on information exchange. It shall aim in 
particular  to  ensure  that  all  available  means  are  used  to  protect  the  Union’s 
financial  interests  through  the  complementarity  of  their  respective  mandates 
and the support provided by the Office to the EPPO. 

10 

11 

12 
13 

Council Regulation (EC) No 515/97 of 13 March 1997 on mutual assistance between the administrative 
authorities of the Member States and cooperation between the latter and the Commission to ensure the 
correct application of the law on customs and agricultural matters, OJ L 82, 22.3.1997, p. 1–16. 
Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on 
the  protection  of  individuals  with  regard  to  the  processing  of  personal  data  by  the  Community 
institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p.1). 
OJ C …. 
Council  Regulation  (EU)  2017/1939  of  12  October  2017  implementing  enhanced  cooperation  on  the 
establishment of the European Public Prosecutor’s Office (‘the EPPO’) (OJ L 283, 31.10.2017, p. 1). 

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18 

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Cooperation  between  the  Office  and  the  EPPO  shall  be  governed  by  Articles 
12c to 12f". 

(2) 

In Article 2, point 4 is replaced by the following: 

"(4) administrative investigations’ (‘investigations’) shall mean any inspection, 
check or other measure undertaken by the Office in accordance with Articles 3 
and  4,  with  a  view  to  achieving  the  objectives  set  out  in  Article  1  and  to 
establishing,  where  necessary,  the  irregular  nature  of  the  activities  under 
investigation; those investigations shall not affect the powers of the EPPO or of 
the  competent  authorities  of 
initiate  criminal 
proceedings."; 

the  Member  States 

to 

(3) 

Article 3 is replaced by the following: 

1. 

2. 

3. 

4. 

5. 

6. 

"Article 3 
External investigations 

Within the scope defined in Article 1 and points (1) and (3) of Article 2, the Office 
shall  carry  out  on-the-spot  checks  and  inspections  in  the  Member  States  and,  in 
accordance  with  the  cooperation  and  mutual  assistance  agreements  and  any  other 
legal  instrument  in  force,  in  third  countries  and  on  the  premises  of  international 
organisations. 

On-the-spot  checks  and  inspections  shall  be  conducted  in  accordance  with  this 
Regulation  and,  to  the  extent  that  a  matter  is  not  covered  by  this  Regulation,  with 
Regulation (Euratom, EC) No 2185/96. 

Economic  operators  shall  cooperate  with  the  Office  in  the  course  of  its 
investigations.  The  Office  may  request  oral  information,  including  through 
interviews, and written information from economic operators. 

The  Office  shall  conduct  on-the-spot  checks  and  inspections  upon  production  of  a 
written  authorisation,  as  provided  for  in  Article  7(2)  of  this  Regulation  and  Article 
6(1)  of  Regulation  (Euratom,  EC)  No  2185/1996.  It  shall  inform  the  economic 
operator concerned of the procedure applicable to the check, including the applicable 
procedural  safeguards,  and  the  duty  to  cooperate  of  the  economic  operator 
concerned.  

In  the  exercise  of  these  powers,  the  Office  shall  comply  with  the  procedural 
guarantees  provided  for  in  this  Regulation  and  in  Regulation  (Euratom,  EC)  No 
2185/96.  In  the  conduct  of  an  on-the-spot  check  and  inspection,  the  economic 
operator concerned shall have the right not to make self-incriminating statements and 
to be assisted by a person of choice. When making statements during the on the spot 
checks, the economic operator shall be provided with the possibility to use any of the 
official languages of the Member State where he is located. The right to be assisted 
by a  person of choice  shall  not  prevent access by the Office  to  the premises of the 
economic operator, and shall not unduly delay the start of the check. 

At the request of the Office, the competent authority of the Member State concerned 
shall provide the staff of the Office with the assistance needed in order to carry out 
their tasks effectively, as specified in the written authorisation referred to in Article 
7(2).  

The Member State concerned shall ensure, in accordance with Regulation (Euratom, 
EC) No 2185/96, that the staff of the Office are allowed access to all information and 

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19 

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7. 

8. 

9. 

10. 

documents relating to the matter under investigation which prove necessary in order 
for the on-the-spot checks and inspection to be carried out effectively and efficiently, 
and that they are able to assume custody of documents or data to ensure that there is 
no danger of their disappearance. 

Where  the  economic  operator  concerned  submits  to  an  on-the-spot  check  and 
inspection  authorised  pursuant  to  this  Regulation,  Article  2(4)  of  Regulation 
(Euratom,  EC)  No  2988/95  and  the  third  subparagraph  of  Article  6(1)  and  Article 
7(1)  of  Regulation  (Euratom,  EC)  No  2185/96  shall  not  apply,  insofar  as  those 
provisions  require  compliance  with  national  law  and  may  restrict  access  to 
information and documentation by the Office to the conditions applying to national 
administrative inspectors. 

Where the staff of the Office finds that an economic operator resists an on-the-spot 
check  or  inspection  authorised  pursuant  to  this  Regulation,  the  Member  State 
concerned shall afford them the necessary assistance of law enforcement authorities 
so as to enable the Office to conduct its on-the-spot check or inspection effectively 
and without undue delay. 

When  providing  assistance  in  accordance  with  this  paragraph  or  with  paragraph  6, 
the  competent  national  authorities  shall  act  in  conformity  with  national  procedural 
rules  applicable  to  the  competent  national  authority  concerned.  If  that  assistance 
requires authorisation from a judicial authority in accordance with national law, such 
authorisation shall be applied for. 

As  part  of  its  investigative  function,  the  Office  shall  carry  out  the  checks  and 
inspections provided for in Article 9(1) of Regulation (EC, Euratom) No 2988/95 and 
in  the  sectoral  rules  referred  to  in  Article  9(2)  of  that  Regulation  in  the  Member 
States and, in accordance with the cooperation and mutual assistance agreements and 
any  other  legal  instrument  in  force,  in  third  countries  and  on  the  premises  of 
international organisations. 

During  an  external  investigation,  the  Office  may  have  access  to  any  relevant 
information  and  data, irrespective  of the medium on which it is  stored, held by the 
institutions,  bodies,  offices  and  agencies,  connected  with  the  matter  under 
investigation,  where  necessary  in  order  to  establish  whether  there  has  been  fraud, 
corruption or any other illegal activity affecting the financial interests of the Union. 
For that purpose Article 4(2) and (4) shall apply. 

Without prejudice to Article 12c(1), where, before a decision has been taken whether 
or  not  to  open  an  external  investigation,  the  Office  handles  information  which 
suggests  that  there  has  been  fraud, corruption  or  any  other  illegal  activity  affecting 
the  financial  interests  of  the  Union,  it  may  inform  the  competent  authorities  of  the 
Member States concerned and, where necessary, the institutions, bodies, offices and 
agencies concerned.  

Without prejudice to the sectoral rules referred to in Article 9(2) of Regulation (EC, 
Euratom)  No  2988/95,  the  competent  authorities  of  the  Member  States  concerned 
shall  ensure  that  appropriate  action  is  taken,  in  which  the  Office  may  take  part,  in 
compliance  with  national  law.  Upon  request,  the  competent  authorities  of  the 
Member  States  concerned  shall  inform  the  Office  of  the  action  taken  and  of  their 
findings  on  the  basis  of  information  as  referred  to  in  the  first  subparagraph  of  this 
paragraph."; 

(4) 

Article 4 is amended as follows: 

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20 

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(a)  paragraph 2 is replaced by the following: 

"2. In the course of internal investigations: 

(a) 

the  Office  shall  have  the  right  of  immediate  and  unannounced 
access  to  any  relevant  information  and  data,  irrespective  of  the 
medium  on  which  it  is  stored,  held  by  the  institutions,  bodies, 
offices  and  agencies,  and  to  their  premises.  The  Office  shall  be 
empowered  to  inspect  the  accounts  of  the  institutions,  bodies, 
offices  and  agencies.  The  Office  may  take  a  copy  of,  and  obtain 
extracts  from,  any  document  or  the  contents  of  any  data  medium 
held  by  the  institutions,  bodies,  offices  and  agencies  and,  if 
necessary, assume custody of such documents or data to ensure that 
there is no danger of their disappearance; 

(b) 

the  Office  may  request  oral  information,  including  through 
interviews,  and  written  information  from  officials,  other  servants, 
members of institutions or bodies, heads of offices or agencies, or 
staff members. 

(b)  paragraph 3 is replaced by the following: 

"3.  In  accordance  with  Article  3,  the  Office  may  carry  out  on-the-spot 
checks and inspections at the premises of economic operators in order to 
obtain  access  to  information  relevant  to  the  matter  under  internal 
investigation."; 

(c) 

in paragraph 8, the first subparagraph is replaced by the following: 

"Without prejudice to Article 12c(1), where, before a decision has been 
taken whether or not to open an internal investigation, the Office handles 
information which suggests that there has been fraud, corruption or any 
other illegal activity affecting the financial interests of the Union, it may 
inform  the  institution,  body,  office  or  agency  concerned.  Upon  request, 
the institution, body, office or agency concerned shall inform the Office 
of any action taken and of its findings on the basis of such information."; 

(5) 

Article 5 is amended as follows: 

(a) 

in paragraph 1, the first sentence is replaced by the following: 

"Without  prejudice  to  Article  12d,  the  Director-General  may  open  an 
investigation when there is a sufficient suspicion, which may also be based on 
information provided by any third party or anonymous information, that there 
has  been  fraud,  corruption  or  any  other  illegal  activity  affecting  the  financial 
interests of the Union."; 

(b) 

in paragraph 3, the following sentence is added: 

"This  paragraph  shall  not  apply  to  investigations  by  the  EPPO  pursuant  to 
Regulation (EU) 2017/1939."; 

(c)  paragraph 6 is replaced by the following: 

"6.  If  the  Director-General  decides  not  to  open  an  external  investigation,  he 
may without delay send any relevant information to the competent authorities 
of  the  Member  State  concerned  for  action  to  be  taken  where  appropriate,  in 

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21 

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accordance with Union law and national law. Where necessary, the Office shall 
also inform the institution, body, office or agency concerned."; 

(6) 

Article 7 is amended as follows: 

(a) 

in paragraph 3, the first subparagraph is replaced by the following: 

"The  competent  authorities  of  the  Member  States  shall  give  the  necessary 
assistance  to  enable  the  staff  of  the  Office  to  fulfil  their  tasks  in  accordance 
with this Regulation effectively and without undue delay."; 

(b) 

in paragraph 3, the following second subparagraph is inserted: 

"At  the  request  of  the  Office  in  relation  to  matters  under  investigation,  the 
Financial intelligence Units established pursuant to Directive (EU) 2015/849 of 
the  European  Parliament  and  of  the  Council14  and  other  relevant  competent 
authorities of the Member States shall provide it with the following:  

(a) 

information  referred  to  in  [Article  32a(3)  of]  Directive  (EU) 
2015/849;15 

(b)  when  strictly  necessary  for  the  purposes  of  the  investigation,  the 

record of transactions."; 

(c) 

in paragraph 3, the following third subparagraph is added: 

"When providing assistance in accordance with the previous subparagraphs, the 
national  competent  authorities  shall  act  in  conformity  with  any  national 
procedural rules applicable to the national competent authority concerned."; 

(d) 

in paragraph 6, the second subparagraph is replaced by the following: 

"In  addition  to  the  first  subparagraph,  the  institution,  body,  office  or  agency 
concerned may  at  any time  consult  the  Office  with  a  view  to  taking,  in  close 
cooperation with the Office, any appropriate precautionary measures, including 
measures for the safeguarding of evidence, and shall inform the Office without 
delay of such decision."; 

(e)  paragraph 8 is replaced by the following: 

"8.  If  an  investigation  cannot  be  closed  within  12  months  after  it  has  been 
opened,  the Director-General shall, at the expiry of that  12-month  period  and 
every  six  months  thereafter,  report  to  the  Supervisory  Committee,  indicating 
the  reasons  and,  where  appropriate,  the  remedial  measures  envisaged  with  a 
view to speeding up the investigation."; 

(7) 

Article 8 is amended as follows: 

(a) 

in paragraph 1, the following subparagraph is added: 

14 

15 

Directive  (EU)  2015/849  of  the  European  Parliament  and  of  the  Council  of  20  May  2015  on  the 
prevention  of  the  use  of  the  financial  system  for  the  purposes  of  money  laundering  or  terrorist 
financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and 
repealing  Directive  2005/60/EC  of  the  European  Parliament  and  of  the  Council  and  Commission 
Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73). 
Article 32a(3) will be inserted in Directive (EU) 2015/849 by Directive (EU) 2018/XX of the European 
Parliament and of the Council amending Directive (EU) 2015/849, on which a political agreement has 
been reached on 19 December 2017 and which is expected to be adopted in the coming months. 

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22 

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"Where  the  institutions,  bodies,  offices  and  agencies  report  to  the  EPPO  in 
accordance  with  Article  24  of  Regulation  (EU)  2017/1939,  they  may  instead 
transmit to the Office a copy of the report sent to the EPPO."; 

(b)  paragraph 2 is replaced by the following: 

"2.  The  institutions,  bodies,  offices  and  agencies  and,  unless  prevented  by 
national  law,  the  competent  authorities  of  the  Member  States  shall,  at  the 
request  of  the  Office  or  on  their  own  initiative,  transmit  to  the  Office  any 
document  or  information  they  hold  which  relates  to  an  ongoing  investigation 
by the Office. 

Prior  to  the  opening  of  an  investigation,  they  shall  transmit,  at  the  request  of 
the Office, any document or information they hold which is necessary to assess 
the allegations or to apply the criteria for opening an investigation as set out in 
Article 5(1)."; 

(c)  paragraph 3 is replaced by the following: 

"3.  The  institutions,  bodies,  offices  and  agencies  and,  unless  prevented  by 
national law, the competent authorities of the Member States shall transmit to 
the Office any other document or information considered pertinent which they 
hold relating to the fight against fraud, corruption and any other illegal activity 
affecting the financial interests of the Union."; 

(d) 

the following paragraph 4 is added: 

"4. This Article shall not apply to the EPPO as regards the criminal offences in 
respect of which it could exercise its competence in accordance with Articles 
22 and 25 of Regulation (EU) 2017/1939. 

This is without prejudice to the possibility for the EPPO to provide the Office 
with  relevant  information  on  cases  in  accordance  with  Article  34(8),  Article 
36(6),  Article  39(4)  and  Article  101(3)  and  (4)  of  Regulation  (EU) 
2017/1939."; 

(8) 

Article 9 is amended as follows: 

(a) 

in paragraph 4, the third subparagraph is replaced by the following: 

"In duly justified cases where it is necessary to preserve the confidentiality of 
the  investigation  and/or  entailing  the  use  of  investigative  proceedings  falling 
within 
the 
the  EPPO  or  a  national 
Director-General may decide to defer the fulfilment of the obligation to invite 
the person concerned to comment."; 

judicial  authority, 

the  remit  of 

(9) 

Article 10 is amended as follows: 

(a) 

in paragraph 4, the first subparagraph is replaced by the following: 

"The  Office  shall  designate  a  Data  Protection  Officer  in  accordance  with 
Article 24 of Regulation (EC) No 45/2001."; 

(10) 

Article 11 is amended as follows: 

(a) 

in paragraph 1, the second subparagraph is replaced by the following: 

"The report may be accompanied by recommendations of the Director-General 
on  action  to  be  taken.  Those  recommendations  shall,  where  appropriate, 
indicate any disciplinary, administrative, financial and/or judicial action by the 

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23 

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institutions,  bodies,  offices  and  agencies  and  by  the  competent  authorities  of 
the  Member  States  concerned,  and  shall  specify  in  particular  the  estimated 
amounts to be recovered, as well as the preliminary classification in law of the 
facts established."; 

(b)  paragraph 2 is replaced by the following: 

"2. In drawing up such reports and recommendations, account shall be taken of 
the  relevant  provisions  of  Union  law  and,  in  so  far  as  it  is  applicable,  of  the 
national law of the Member State concerned. 

Upon  simple  verification  of  their  authenticity,  reports  drawn  up  on  that  basis 
shall  constitute  admissible  evidence  in  judicial  proceedings  of  a  non-criminal 
nature before national courts and in administrative proceedings in the Member 
States.  

Reports drawn up by the Office shall constitute admissible evidence in criminal 
proceedings  of  the  Member  State  in  which  their  use  proves  necessary  in  the 
same way and under the same conditions as administrative reports drawn up by 
national administrative inspectors. They shall be subject to the same evaluation 
rules  as  those  applicable  to  administrative  reports  drawn  up  by  national 
administrative  inspectors  and  shall  have  the  same  evidentiary  value  as  such 
reports. 

Member States shall notify to the Office any rules of national law relevant for 
the purposes of the third subparagraph. 

Reports drawn up by the Office shall constitute admissible evidence in judicial 
proceedings  before  the  Union  courts  and  in  administrative  proceedings  in  the 
Union."; 

(c)  paragraph 3 is replaced by the following: 

"3. Reports and recommendations drawn up following an external investigation 
and any relevant related documents shall be sent to the competent authorities of 
the Member States concerned in accordance with the rules relating to external 
investigations  and,  if  necessary,  to  the  institution,  body,  office  or  agency 
concerned. That institution, body, office or agency shall take such action as the 
results  of  the  external  investigation  warrant,  and  shall  report  thereon  to  the 
Office,  within  a  time-limit  laid  down  in  the  recommendations  accompanying 
the report, and, in addition, at the request of the Office."; 

(11) 

Article 12 is amended as follows: 

(a) 

in paragraph 1, the following sentence is added: 

"It  may  also  transmit  information  to  the  institution,  body,  office  or  agency 
concerned."; 

(b)  paragraph 3 is replaced by the following: 

"3.  The  competent  authorities  of  the  Member  State  concerned  shall,  unless 
prevented  by  national  law,  inform  the  Office  in  due  time,  on  their  own 
initiative or at the request of the Office, of the action taken on the basis of the 
information transmitted to them under this Article."; 

(c) 

the following paragraph 5 is added: 

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"5.  The  Office  may  exchange,  on  its  own  initiative  or  on  request,  relevant 
information with the Eurofisc network established by Council Regulation (EU) 
No 904/201016."; 

(12) 

The following Articles are inserted: 

"Article 12a 
Anti-fraud coordination services in the Member States 

Member  States  shall,  for  the  purposes  of  this  Regulation,  designate  a  service  (‘the 
anti-fraud  coordination  service’)  to  facilitate  effective  cooperation  and  exchange  of 
information, including information of an operational nature, with the Office. Where 
appropriate, in accordance with national law, the anti-fraud coordination service may 
be regarded as a competent authority for the purposes of this Regulation. 

Upon request of the Office, before a decision has been taken as to whether or not to 
open  an  investigation,  as  well  as  during  or  after  an  investigation,  the  anti-fraud 
coordination services shall provide, obtain or coordinate the necessary assistance for 
the Office to carry out its tasks effectively. That assistance shall include in particular 
the  assistance  from  the  national  competent  authorities  provided  in  accordance  with 
Article 3(6) and (7), Article 7(3) and Article 8(2) and (3). 

The  Office  may  request  the assistance  of  the  anti-fraud  coordination  services  when 
conducting coordination activities in accordance with Article 12b, including, where 
appropriate, horizontal cooperation and exchange of information between anti-fraud 
coordination services. 

Article 12b 
Coordination activities 

Pursuant to Article 1(2), the Office may organise and facilitate cooperation between 
the  competent  authorities  of  the  Member  States,  institutions,  bodies,  offices  and 
agencies,  as  well  as,  in  accordance  with  the  cooperation  and  mutual  assistance 
agreements  and  any  other  legal  instrument  in  force,  third  countries'  authorities  and 
international  organisations.  To  this  end,  the  participating  authorities  and  the  Office 
may  collect,  analyse  and  exchange  information,  including  operational  information. 
The  staff  of  the  Office  may  accompany  competent  authorities  carrying  out 
investigative activities upon request of those authorities. Article 6, Article 7(6) and 
(7), Article 8(3) and Article 10 shall apply. 

The  Office  may  draw  up  a  report  on  the  coordination  activities  conducted  and 
transmit it, where appropriate, to the competent national authorities and institutions, 
bodies, offices and agencies concerned. 

This  Article  shall  apply  without  prejudice  to  the  exercise  by  the  Office  of  powers 
conferred  on  the  Commission  in  specific  provisions  governing  mutual  assistance 
between  Member  States'  administrative  authorities  and  cooperation  between  those 
authorities and the Commission. 

The  Office  may  participate  in  joint  investigation  teams  established  in  accordance 
with applicable Union law and exchange in this framework operational information 
acquired pursuant to this Regulation. 

Council Regulation (EU) No 904/2010 of 7 October 2010 on administrative cooperation and combating 
fraud in the field of value added tax (OJ L 268, 12.10.2010, p.1). 

1. 

2. 

3. 

1. 

2. 

3. 

4. 

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1. 

2. 

3. 

4. 

5. 

6. 

Article 12c 
Reporting to the EPPO of any criminal conduct on which it could exercise its 
competence 

The  Office  shall  report  to  the  EPPO  without  undue  delay  any  criminal  conduct  in 
respect of which the EPPO could exercise its competence in accordance with Article 
22 and Article 25(2) and (3) of Regulation (EU) 2017/1939. The report shall be sent 
at any stage before or during an investigation of the Office. 

The  report  shall  contain,  as  a  minimum,  a  description  of  the  facts,  including  an 
assessment  of  the  damage  caused  or  likely  to  be  caused  the  possible  legal 
qualification and any available information about potential victims, suspects and any 
other involved persons. 

The  Office  shall  not  be  bound  to  report  to  the  EPPO  manifestly  unsubstantiated 
allegations. 

In cases where the information received by the Office does not include the elements 
set out in paragraph 2, and there is no investigation of the Office ongoing, the Office 
may  conduct  a  preliminary  evaluation  of  the  allegations.  The  evaluation  shall  be 
carried  out  expeditiously,  and  in  any  case  within  two  months  of  receipt  of  the 
information. In the course of this evaluation, Article 6 and Article 8(2) shall apply. 

Following  this  preliminary  evaluation,  the  Office  shall  report  to  the  EPPO  if  the 
conditions set out in paragraph 1 are met. 

Where the conduct referred to in paragraph 1 comes to light during an investigation 
by the Office, and the EPPO opens an investigation following the report, the Office 
shall not continue its investigation into the same facts other than in accordance with 
Articles 12e or 12f. 

For  the  purpose  of  applying  the  first  subparagraph,  the  Office  shall  verify  in 
accordance with Article 12g(2) via the EPPO's case management system whether the 
EPPO  is  conducting  an  investigation.  The  Office  may  request  further  information 
from the EPPO. The EPPO shall reply to such a request within 10 working days. 

The  institutions,  bodies,  offices  and  agencies  may  request  the  Office  to  conduct  a 
preliminary  evaluation  of  allegations  reported  to  them.  For  the  purposes  of  those 
requests, paragraph 3 shall apply. 

Where, following the report to the EPPO in accordance with this Article, the Office 
closes its investigation, Article 9(4) and Article 11 shall not apply. 

Article 12d 
Non-duplication of investigations 

The Director-General shall not open an investigation in accordance with Article 5 if 
the EPPO is conducting an investigation into the same facts, other than in accordance 
with Articles 12e or 12f. 

For  the  purpose  of  applying  the  first  subparagraph,  the  Office  shall  verify  in 
accordance with Article 12g(2) via the EPPO's case management system whether the 
EPPO  is  conducting  an  investigation.  The  Office  may  request  further  information 
from the EPPO. The EPPO shall reply to such a request within 10 working days. 

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1. 

2. 

1. 

2. 

Article 12e 
The Office's support to the EPPO 

In  the  course  of  an  investigation  by  the  EPPO,  and  at  the  request  of  the  EPPO  in 
accordance  with  Article  101(3)  of  Regulation  (EU)  2017/1939,  the  Office  shall,  in 
conformity with its mandate, support or complement the EPPO's activity in particular 
by: 

(a)  providing  information,  analyses  (including  forensic  analyses),  expertise 

and operational support; 

(b) 

facilitating  coordination  of  specific  actions  of  the  competent  national 
administrative authorities and bodies of the Union; 

(c) 

conducting administrative investigations. 

Pursuant  to  paragraph  1,  a  request  shall  be  transmitted  in  writing  and  shall  specify 
the measure or measures which the EPPO requests the Office to perform and, where 
appropriate,  the  envisaged  timeline  for  their  performance.  It  shall  contain 
information about the EPPO investigation in so far as relevant for the purpose of the 
request. Where necessary, the Office may request additional information. 

Article 12f 
Complementary investigations 

In  duly  justified  cases  where  the  EPPO  is  conducting  an  investigation,  where  the 
Director-General  considers  that  an  investigation  should  be  opened  in  accordance 
with  the  mandate  of  the  Office  with  a  view  to  facilitating  the  adoption  of 
precautionary  measures  or  of  financial,  disciplinary  or  administrative  action,  the 
Office  shall  inform  the  EPPO  in  writing,  specifying  the  nature  and  purpose  of  the 
investigation.  

Within 30 days after receipt of this information the EPPO may object to the opening 
of  an  investigation  or  to  the  performance  of  certain  acts  pertaining  to  the 
investigation,  where  necessary  to  avoid  jeopardising  its  own  investigation  or 
prosecution, and for  as long as  these grounds persist. The EPPO shall  notify to the 
Office without undue delay when the grounds for the objection cease to apply.  

In  the  event  that  the  EPPO  does  not  object  within  the  time  period  of  the  previous 
subparagraph, the Office may open an investigation, and it shall conduct it in close 
consultation with the EPPO. 

The Office shall suspend or discontinue its investigation, or refrain from performing 
certain acts pertaining to the investigation, if the EPPO subsequently objects to it, on 
the same grounds as referred to in the second subparagraph. 

Where the EPPO informs the Office that it is not conducting an investigation in reply 
to  a  request  for  information  submitted  in  accordance  with  Article  12d  and 
subsequently  opens  an  investigation  into  the  same  facts,  it  shall  inform  the  Office 
without  delay.  If,  following  receipt  of  this  information,  the  Director-General 
considers  that  the  investigation  opened  by  the  Office  should  be  continued  with  a 
view  to  facilitating  the  adoption  of  precautionary  measures  or  of  financial, 
disciplinary or administrative action, paragraph (1) shall apply. 

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1. 

2. 

Article 12g 
Working arrangements and exchange of information with the EPPO 

Where  necessary  to  facilitate  the  cooperation  with  the  EPPO  as  set  out  in  Article 
1(4a),  the  Office  shall  agree  with  the  EPPO  on  administrative  arrangements.  Such 
the  exchange  of 
working  arrangements  may  establish  practical  details  for 
information,  including  personal  data,  operational,  strategic  or  technical  information 
and  classified  information.  They  shall  include  detailed  arrangements  on  the 
continuous exchange of information during the receipt and verification of allegations 
by both offices. 

The Office shall have indirect access to information in the EPPO's case management 
system on the basis of a hit/no hit system. Whenever a match is found between data 
entered into the case management system by the Office and data held by the EPPO, 
the fact that there is a match shall be communicated to both the EPPO and the Office. 
The  Office  shall  take  appropriate  measures  to  enable  the  EPPO  to  have  access  to 
information in its case management system on the basis of a hit/no-hit system."; 

(13) 

Article 16 is amended as follows: 

(a) 

in paragraph 1, the third sentence is replaced by the following: 

"Representatives of the Court of Auditors, the EPPO, Eurojust and/or Europol 
may  be  invited  to  attend  on  an  ad  hoc  basis  upon  request  of  the  European 
Parliament,  the  Council,  the  Commission,  the  Director-General  or  the 
Supervisory Committee."; 

(b) 

in paragraph 2, point (d) is replaced by the following: 

"(d)  the  framework  of  the  relations  between  the  Office  and  the  institutions, 
bodies, offices and agencies, in particular the EPPO."; 

(14) 

Article 17 is amended as follows: 

(a)  paragraph 3 is replaced by the following: 

"3.  The  Director-General  shall  neither  seek  nor  take  instructions  from  any 
government or any institution, body, office or agency in the performance of his 
duties  with  regard  to  the  opening  and  carrying-out  of  external  and  internal 
investigations or coordination activities, or to the drafting of reports following 
such investigations or coordination activities. If the Director-General considers 
that a measure taken by the Commission calls his independence into question, 
he  shall  immediately  inform  the  Supervisory  Committee,  and  shall  decide 
whether  to  bring  an  action  against  the  Commission  before  the  Court  of 
Justice."; 

(b) 

in paragraph 5, point (b) is replaced by the following: 

"(b) of cases in which information has been transmitted to judicial authorities 
of the Member States and to the EPPO;", 

(c) 

in the first subparagraph of paragraph 8, the following point (e) is added: 

"(e) relations with the EPPO."; 

Article 2 

1. 

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

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2. 

Articles  12c  to  12f  referred  to  in  point  12  in  Article  1  shall  apply  from  the  date 
determined  in  accordance  with  the  second  subparagraph  of  Article  120(2)  of 
Regulation (EU) 2017/1939. 

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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