COMMISSION STAFF WORKING DOCUMENT ASSESSMENT Accompanying the document Proposal for a Regulation amending 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) 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

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 23.5.2018 SWD(2018) 251 final  COMMISSION STAFF WORKING DOCUMENT ASSESSMENT Accompanying the document Proposal for a Regulation amending 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) as regards cooperation with the European Public Prosecutor's Office and the effectiveness of OLAF investigations {COM(2018) 338 final}  
 
 
Table of Contents 
Acronyms and abbreviations ................................................................................................................... 2 

1.  Policy Context ................................................................................................................................. 3 

2.  Regulation 883/2013 ....................................................................................................................... 5 

3. 

Issues at stake .................................................................................................................................. 6 

3.1. 

Establishment of the EPPO ......................................................................................................... 6 

3.2. 

Effectiveness of OLAF's Investigative Function ........................................................................ 8 

3.3.  Clarification and Simplification ................................................................................................ 15 

4.  Objectives of the initiative ............................................................................................................ 15 

5.  Stakeholder Consultation and Other Sources of Information ....................................................... 16 

5.1. 

Stakeholder consultation ........................................................................................................... 16 

5.2.  Other Sources of Information ................................................................................................... 17 

6.  Solutions Explained ...................................................................................................................... 17 

6.1. 

EPPO-OLAF ............................................................................................................................. 17 

6.2. 

Enhancing the effectiveness of OLAF investigative function .................................................. 22 

6.3.  Clarification and Simplification ................................................................................................ 28 

Annexes: ............................................................................................................................................... 29 

Annex 1 

: Procedural information ........................................................................................... 29 

Annex 2 

: Synopsis report of stakeholder consultation ........................................................... 31 

1 

 
 
 
 
ACRONYMS AND ABBREVIATIONS  

ACER 
AFCOS  
CEDEFOP 
CJEU 
CoR 

COREPER 

CPVO 
EASA 
EASME 
EASO 
EBA 
ECA 
ECB 
ECDC 
ECHA 

ECSEL JU 

EDA 
EDPS 
EESC 
EFSA 
EIB 
EIGE 
EIT 
EMA 
EMCDDA 
EPPO 
ERA 
ETF 
EU 
EU-OSHA 
Eurofound 
Eurojust 
EUROPOL 
F4E 
FPDNet 
FRA 
Frontex 
GSA 
IAS 
IBOAs 
ILAN 
IMI JU 
ISSG 
OHIM 
OLAF  
TFEU 
VAT 

Agency for the Cooperation of Energy Regulators 
Anti-Fraud Coordination Service 
European Centre for the Development of Vocational Training 
Court of Justice of the European Union  
European Committee of the Regions 
Committee  of  the  Permanent  Representative  of  the  Governments  of  the 
Member States to the European Union 
Community Plant Variety Office 
European Aviation Safety Agency 
Executive Agency for Small and Medium-sized Enterprises 
European Asylum Support Office 
European Banking Authority 
European Court of Auditors 
European Central Bank 
European Centre for Disease Prevention and Control 
European Chemicals Agency 
Electronic Components and Systems for European Leadership Joint 
Undertaking 
European Defence Agency 
European Data Protection Supervisor 
European Economic and Social Committee 
European Food Safety Authority 
European Investment Bank 
European Institute for Gender Equality 
European Institute of Technology 
European Medicines Agency 
European Monitoring Centre for Drugs and Drug Addiction 
European Public Prosecutor’s Office  
European Union Agency for Railways 
European Training Foundation 
European Union 
European Agency for Safety and Health at Work 
European Foundation for the Improvement of Living and Working Conditions 
The European Union's Judicial Cooperation Unit 
European Union Agency for Law Enforcement Cooperation 
Fusion for Energy 
Fraud Protection and Detection Network 
European Union Agency for Fundamental Rights 
European Border and Coast Guard Agency 
European Global Navigation Satellite Systems Agency 
Internal Audit Service 
Institutions, Bodies, Offices and Agencies of the European Union 
Inter-Agency Legal Network 
Innovative Medicines Initiative Joint Undertaking 
Inter-Service Steering Group 
Office for Harmonisation in the Internal Market 
European Anti-Fraud Office 
Treaty on the Functioning of the European Union 
Value Added Tax 

2 

 
 
 
1.  POLICY CONTEXT 

The  Union  and  the  Member  States  are  required  by  Article  325  of  the  Treaty  on  the 
Functioning of the EU (TFEU)1 to counter fraud and any other illegal activities affecting the 
financial interests of the Union. To this end, the European Parliament and the Council should 
adopt  the  necessary  measures  with  a  view  to  affording  effective  protection  of  the  EU's 
financial interests throughout the Union. In addition, the Commission – responsible for the 
implementation of the EU budget in accordance with Article 317 TFEU – should ensure that 
there is a framework in place to enable the effective prevention and detection of fraud. 

The protection of the EU financial interests is thus an important element of the Commission's 
political  agenda.  The  European  Anti-Fraud  Office  (OLAF)  was  set  up  in  1999  by  a 
Commission  Decision2  with 
in  particular,  of  conducting  administrative 
investigations against fraud and any other illegal activity affecting the EU financial interests, 
as  well  as  of  assisting  Member  States  in  the  fight  against  fraud.  OLAF’s  investigative 
mandate  is  currently  governed  by  Regulation  883/2013  concerning  investigations 
conducted by OLAF3 (hereinafter "the Regulation"). 

task, 

the 

On 2 October 2017, the Commission adopted the Commission Report on the Evaluation of 
the  application  of  Regulation  883/20134,  accompanied  by  an  evaluation  Staff  Working 
Document5. The Commission report was based on an external independent study6. The report 
was  also  accompanied  by  the  OLAF's  Supervisory  Committee's  Opinion  2/2017  on  the 
application of the Regulation7.  

Although the evaluation concludes that the Regulation has allowed OLAF to deliver concrete 
results in the protection of the EU budget, it identified some shortcomings which impact on 

1 Consolidated version of the Treaty on the Functioning of the European Union; OJ C 326, 26.10.2012, p. 47–390; http://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012E%2FTXT  
2  1999/352/EC,  ECSC,  Euratom:  Commission  Decision  of  28  April  1999  establishing  the  European  Anti-fraud  Office 
(OLAF)  (notified  under  document  number  SEC(1999)  802);  OJ  L  136  ,  31/05/1999  P.  0020  –  0022;  http://eur-
lex.europa.eu/legal-content/EN/TXT/?qid=1515760374249&uri=CELEX:31999D0352  
3 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. 1–22; 
http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013R0883  
4 Report from the Commission to the European parliament and the Council on Evaluation of the application of 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,  
COM/2017/0589 final; http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2017:589:FIN  
5 Commission Staff Working Document on Evaluation of the application of 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 Accompanying the document Commission report to the European Parliament 
and the Council; SWD/2017/0332 final; http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=SWD:2017:332:FIN  
6 Evaluation of the application of Regulation No 883/2013 concerning investigations conducted by the European Anti-Fraud 
Office 
978-92-79-73511-0; 
https://publications.europa.eu/en/publication-detail/-/publication/d6926554-b2e6-11e7-837e-01aa75ed71a1/language-
en/format-PDF/source-65845507 [hereby 'ICF rerpot'] 
7 OLAF Supervisory Committee Opinion No 2/2017 Accompanying the Commission Evaluation report on the application of 
Regulation  (EU)  of  the  European  Parliament  and  of  the  Council  No  883/2013  (Article  19);  http://europa.eu/supervisory-
committee-olaf/sites/default/files/opinion_2_2017.pdf  

Consulting 

Limited; 

Services 

(OLAF) 

ISBN 

ICF 

by 

3 

 
                                                            
 
the  effectiveness  and  efficiency  of  investigations.  The  Commission  Report  announces  a 
possible amendment of Regulation 883/2013. 

Moreover, on 12 October 2017, the Council adopted the Regulation implementing enhanced 
cooperation  on  the  establishment  of  the  European  Public  Prosecutor's  Office  (EPPO)8. 
The  establishment  of  the  EPPO  is  one  of  the  Commission's  key  priorities  in  the  area  of 
criminal justice and part of the overall strategy to combat fraud against the EU budget. The 
EPPO  will  change  the  EU  institutional  anti-fraud  landscape  significantly.  It  will  have  the 
power to conduct criminal investigations and prosecute before national courts of the currently 
participating  Member  States  as  regards  criminal  offences  affecting  the  EU's  financial 
interests. It is expected to bring a more consistent and effective prosecution policy for crimes 
affecting  the  EU  budget,  leading  to  a  greater  number  of  prosecutions,  convictions  and  a 
higher level of recovery of fraudulently lost Union funds. 

This will impact on the operation of OLAF and the relationship between the two bodies needs 
to be regulated. Provisions to regulate the relationship between the EPPO and OLAF already 
exist  in  the  EPPO  Regulation.  They  need  to  be  reflected  and  complemented  by  rules  in 
Regulation 883/2013, with the overall objective to reinforce the fight against fraud affecting 
the  Union  budget  through  an  integrated  policy  of  criminal  and  of  administrative 
investigations.  The  intention  to  adapt  the  OLAF  legal  framework  by  the  time  the  EPPO 
becomes operational was acknowledged by the Commission already in 20139, and is the main 
driver for the amendment of Regulation 883/2013. To ensure a smooth transition into the new 
institutional  framework,  the  amended  Regulation  should  enter  into  force  before  the 
EPPO becomes operational (envisaged end 2020)10. 

These are not the only developments in the anti-fraud area since the adoption of Regulation 
883/2013. The Directive on the fight against fraud to the Union’s financial interests by means 
of  criminal  law11  entered  into  force  on  17  August  2017  and  should  be  transposed  into  the 
national  legislation  of  the  Member  States  by  6  July  2019.  The  Directive  strengthens  the 
protection  of  the  Union's  financial  interests  by  harmonising  the  definition  of  offences 
affecting  them  (offences  of  fraud,  corruption,  money  laundering  and  misappropriation),  as 
well  as  harmonising  sanctions  and  time  limitations  for  such  cases.  It  covers  cross-border 
value added tax (VAT) fraud cases with a total damage of at least EUR 10 million. The EPPO 
will be competent for the set of offences defined in the Directive. 

8 Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the 
European  Public  Prosecutor’s  Office 
http://eur-
(‘the  EPPO’);  OJ  L 
lex.europa.eu/eli/reg/2017/1939/oj  
9  Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European  Economic  and  Social 
Committee and the Committee of the Regions on Improving OLAF's governance and reinforcing procedural safeguards in 
investigations: A step-by-step approach to accompany the establishment of the European Public Prosecutor's Office, COM 
(2013) 533 final; http://eur-lex.europa.eu/procedure/EN/1041109  
10 Article 120(2) of Regulation 2017/1939. The EPPO will assume its investigative and prosecutorial competences at a date 
determined by a Commission decision, and not earlier than three years after the entry into force of the EPPO Regulation. 
11 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.  29–41;  http://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=uriserv:OJ.L_.2017.198.01.0029.01.ENG  

31.10.2017, 

1–71; 

283, 

p. 

4 

 
                                                            
 
The Commission has also taken a number of initiatives to fight intra-Community VAT fraud 
to  the  national  and  EU  budgets.  In  its  Action  Plan  "towards  a  single  EU  VAT  area" 
presented in April 2016, the Commission announced a set of key measures to be adopted in 
the short and medium term to modernise the EU VAT system and make it simpler, business 
friendly and more fraud-proof12. 

The Commission has already adopted several measures to follow up on this Action Plan. In 
particular,  on  30  November  2017,  it  tabled  a  proposal  to  amend  Regulation  904/2010  as 
regards measures to strengthen administrative cooperation in the field of VAT13. It aims 
at providing new tools to make the EU VAT system more fraud-proof and close loopholes in 
the system of importation of goods into the EU which can lead to large-scale VAT fraud. The 
proposal contains provisions to strengthen cooperation among Member States, reinforce the 
cooperation  between  national  tax  authorities  and  the  European  law  enforcement  bodies 
(OLAF, Europol  and EPPO),  and to  improve information  sharing  between  tax and customs 
authorities  in  the  Member  States.  OLAF  has  a  role  to  play  in  this  area  and  the  proposal 
provides a legal base enabling the transmission by Eurofisc14 of information to OLAF (and 
Europol), at its own initiative or on request, as well as for the transmission by Member States 
to OLAF of "any available information about offences against the common VAT system to 
enable it to consider appropriate action in accordance with its mandate". 

In  2014,  the  Commission  proposed  to  establish  a  Controller  of  procedural  guarantees15. 
The Controller would review complaints lodged by persons subject to OLAF investigations 
as regards the respect of procedural guarantees, and authorise certain investigative measures 
related to members of the EU institutions. The proposal is pending. 

2.  REGULATION 883/2013 

Regulation  883/2013  governs  the  conduct  of  OLAF's  investigations  to  fight  fraud, 
corruption and any other illegal activity affecting the EU financial interests16. The following 
types of investigations are regulated separately: 

 

external administrative investigations in Member States and in third countries and on 
the premises of international organisations17; 

12 Communication from the Commission to the European Parliament, the Council and the European Economic and Social 
Committee  on  an  action  plan  on  VAT  Towards  a  single  EU  VAT  area  –  Time  to  decide;  COM(2016)  148;  http://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2016%3A148%3AFIN  
13  Proposal  for  a  Council  Regulation  amending  Regulation  (EU)  No  904/2010  as  regards  measures  to  strengthen 
administrative  cooperation  in  the  field  of  value  added  tax;  COM(2017)  0706  final;  http://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX:52017PC0706   
14 Eurofisc is a network of Member States for the exchange of targeted information on fraud trends, cases or traders under 
monitoring, intended to combat certain types of VAT fraud. 
15  Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  amending  Regulation  (EU,  Euratom)  No 
883/2013  as  regards  the  establishment  of  a  Controller  of  procedural  guarantees,  COM(2014)  340  final;  http://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=COM:2014:0340:FIN  
16 Article 1(1) of the Regulation. 
17 Article 3 of the Regulation. 

5 

 
                                                            
 
 

internal administrative investigations within the Union institutions, bodies, offices and 
agencies (IBOAs)18. 

In  addition,  OLAF  opens  coordination  cases  to  assist  the  Member  States  in  organising 
close and regular cooperation between their competent authorities aimed at protecting the EU 
financial interests against fraud19. 

The  provisions  surrounding  the  investigative  function  allow  OLAF  to  fulfil  its  mandate 
and use its powers to obtain results in its investigations. They cover the selection phase for 
the  opening  of  investigations,  the  investigative  tools  and  powers,  the  procedure  to  be 
respected,  as  well  as  the  follow-up  to  investigations.  They  are  complemented  by  the 
provisions concerning safeguards, which are intended to protect the persons involved in the 
investigations,  by  defining  the  rules  on  procedural  guarantees,  confidentiality  and  data 
protection.  Throughout  the  investigations,  OLAF  cooperates  with  its  sources  of  incoming 
information:  IBOAs,  Member  States  or  third  countries  authorities  and  international 
organisations, as well as private sources (including whistle-blowers). The relevant provisions 
regulate  cooperation  depending  on the specificities  of each of those categories  of partners. 
The governance and control mechanisms ensure OLAF’s independence and the monitoring 
of its investigative function.20 

3.  ISSUES AT STAKE 

The  evaluation  report  announced  a  possible  two  step  amendment  of  the  Regulation.  The 
first amendment should target primarily the impact of the establishment of the EPPO on 
the  operation  of  OLAF.  It  should  also  address  the  most  unambiguous  findings  of  the 
evaluation, aiming at improving the effectiveness of investigations, and simplification or 
clarification of certain provisions. The evaluation report already indicated that a more far-
reaching  process  to  modernise  the  framework  for  OLAF  investigations  focused  also  on 
aspects that call for further reflection and discussions could be launched later on taking into 
account also the experience gained in the cooperation between the EPPO and OLAF.  

The  issues  at  stake  for  the  first  step  are  explained  below.  Section  3.1  presents  the  relevant 
articles of the EPPO Regulation, and the central issues in the future EPPO-OLAF relationship 
that  need  to  be  reflected  in  the  revised  Regulation.  Sections  3.2  and  3.3  summarise  the 
findings of the evaluation that this proposal aims to address. 

3.1. ESTABLISHMENT OF THE EPPO 

Today,  OLAF  contributes  to  preserving  the  integrity  of  the  Union  budget  through  its 
administrative  investigations  into  fraudulent  and  non-fraudulent  irregularities  in  all 

18 Article 4 of the Regulation. 
19 Article 1(2) of the Regulation. 
20 The relevant provisions are: 

 Investigative function (Articles 3, 4, 5, 7, 11); 
 Safeguards (Articles 8, 9, 10 and 17); 
 Cooperation and coordination (Articles 1, 3, 4, 5, 7, 11, 12, 13, 14); 
 Governance and control mechanisms (Articles 15, 16, 17). 

6 

 
                                                            
 
Member States. It issues  financial recommendations  facilitating  administrative recovery or 
the  prevention  of  revenue  from  being  lost,  disciplinary  recommendations  in  internal 
investigations,  and  administrative  recommendations.  Finally,  with 
its  administrative 
investigations ending in judicial recommendations it also acts with a view to preparing and 
supporting  possible  national  criminal  indictments  and  prosecutions.  The  establishment  of 
the EPPO will impact on the operation of OLAF in the participating Member States as 
regards  the  investigations  into  fraudulent  irregularities  that,  today,  lead  to  judicial 
recommendations. 

The creation of the EPPO complements and strengthens the current system for the protection 
of  the  EU  financial  interests  by  establishing  an  EU  body  with  the  power  to  carry  out 
criminal  investigations  and  bring  cases  to  judgment  before  the  national  courts  of  the 
participating  Member  States.  This  is  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 uncovers elements pointing to possible 
criminal offences in the course of its investigations, it can only address a recommendation to 
national judicial authorities, but with no guarantees as to whether a criminal investigation will 
be opened as a consequence. In future, in the participating Member States, it will report such 
suspected offences to the EPPO, and collaborate with it in the context of its investigations. 

The  new  legal  framework  will  reinforce  the  fight  against  fraud  affecting  the  Union  budget 
through  an  integrated  policy  of  criminal  and  of  administrative  investigations21.  Both 
bodies will need to act in a complementary and non-duplicative way within their respective 
mandates to ensure that all available means are used to protect the Union's financial interests. 
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  conducting  administrative  investigations  with  a 
particular  emphasis  on  facilitating  administrative  recovery  of  sums  unduly  subtracted  from 
the  EU  budget,  to  prevent  further  harm  to  the  EU  finances  and  to  take  administrative 
measures to prevent future instances of fraud, corruption or other illegal activities affecting 
the financial interests of the Union. On the other hand, OLAF should not duplicate the work 
of the EPPO by conducting investigations with a view to preparing and supporting possible 
indictments and prosecutions; it should report such cases to the EPPO without delay. 

The legal instruments setting out the respective legal frameworks under which the EPPO and 
OLAF operate should contain provisions articulating this cooperation and complementarity in 
the Member States participating in the EPPO, and in the area of fraud. It should be noted that 
OLAF will continue fulfilling its mandate in accordance with Regulation 883/2013, as it does 
today, as regards the investigation of non-fraudulent irregularities (for which the EPPO will 

21  Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European  Economic  and  Social 
Committee  and  the  Committee  of  the  Regions,  'On  the  protection  of  the  financial  interests  of  the  European  Union  by 
criminal  law  and  by  administrative  investigations  -  An  integrated  policy  to  safeguard  taxpayers'  money',  COM(2011)  293 
final of 26.5.2011; http://eur-lex.europa.eu/procedure/EN/200478  

7 

 
                                                            
 
not  be  competent)  in  all  Member  States,  as  well  as  regards  the  investigation  of  fraudulent 
irregularities in the Member States not participating in the EPPO. 

The EPPO Regulation lays down the main principles for the future relationship between the 
EPPO and OLAF, requiring that both bodies act in a complementary way to ensure that all 
available  means  are  used  to  protect  the  Union's  financial  interests.  It  contains  main 
provisions on relations with OLAF that have to be reflected in Regulation 883/2013, and 
complemented by working arrangements: 

  Article 24, on the obligation to report to the EPPO "without undue delay" any criminal 
conduct on which it could exercise its competence. This applies to OLAF as to any other 
IBOA and competent national authorities.  

  Article 101, specifically on EPPO-OLAF relations, which stipulates: 

-  The  high-level  principles  governing  the  relationship  (close  relationship  based  on 
mutual cooperation within their respective mandates and on information exchange, to 
ensure  that  all  available  means  are  used  to  protect  the  Union’s  financial  interests 
through the complementarity and support by OLAF to the EPPO); 

-  The principle whereby OLAF shall not open parallel administrative investigations into 

the same facts which are the object of an EPPO investigation; 

-  The  manner  in  which  OLAF  can  "support  and  complement"  the  EPPO's  activity  on 
request  of  the  latter,  in  particular  by  providing information  and  analysis,  facilitating 
coordination  of  specific  actions  of  national  and  EU  bodies  and  conducting 
complementary administrative investigations; 

-  The  possibility  for  the  EPPO  to  refer  information  to  OLAF  for  it  to  consider 

appropriate administrative action in accordance with its mandate. 

  Article 103, on relations between the EPPO and IBOAs, is also relevant. 

The  respective  roles  and  operation  of  OLAF  and  of  the  EPPO  need  to  be  clarified,  in 
order  to  maximise  the  system's  output  in  terms  of  fraud  prevention  and  enforcement, 
ensure  effective  cooperation  and  complementarity  of  action,  and  avoid  any  undue 
duplication of activities. 

3.2. EFFECTIVENESS OF OLAF'S INVESTIGATIVE FUNCTION 

Evaluation results 

The evaluation concluded that the Regulation allowed OLAF to deliver concrete results in the 
protection of the EU 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 also unveiled a number of shortcomings that impact to different 
degrees the effectiveness of OLAF investigations. These are linked to various provisions in 
the  Regulation  (and  their  application)  concerning  the  different  stages  of  investigations 
including  selection  and  opening  of  cases,  the  procedure  and  tools  for  the  conduct  of 

8 

 
investigations, the duration, output of and follow-up to investigations. The evaluation pointed 
also  to  some  shortcomings  with  a  potential  to  affect  effectiveness  of  investigations  in  the 
areas  of  cooperation  and  information  exchange  with  different  partners  and  governance.  It 
identified  several  factors  affecting  the  coherence  of  the  current  legal  framework  in  which 
OLAF  operates  and  which  can  lead  to  legal  uncertainty.  This  concerns  in  particular  certain 
inconsistencies  identified  between  Regulation  883/2013  and  Regulations  2185/9622  and 
2988/9523,  which  are  the  legal  base  for  OLAF's  main  investigative  tool  –  the  on-the-spot 
checks and inspections. 

However,  to  ensure  a  timely  adoption  of  the  amended  Regulation  allowing  an  effective 
cooperation  and  complementarity  with  the  EPPO  once  it  is  operational,  only  the  most 
unambiguous evaluation findings should be targeted at this stage. 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  in  a  coherent 
manner  across  Member  States,  regarding,  notably,  on-the-spot-checks  and  inspections  and 
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.  

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

As  regards  the  conduct  of  investigations,  the  evaluation  noted  that  the  range  of  tools  and 
powers  available  to  OLAF  remained  largely  unchanged  compared  to  those  available  under 
the  framework  of  Regulations  1073/199924  and  1074/199925,  even  after  the  adoption  of 
Regulation 883/2013. The evaluation looked also at the adequacy and sufficiency of the tools 
and powers to deal with fraudulent and non-fraudulent irregularities in the context of current 
challenges  and  fraud  trends  and  identified  a  number  of  limitations,  some  of  which  were 
already mentioned in the evaluation of the previous legislative framework26. 

OJ 

interests; 

22  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; http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31996R2185 
23  Council  Regulation  (EC,  Euratom)  No  2988/95  of  18  December  1995  on  the  protection  of  the  European  Communities 
https://eur-lex.europa.eu/legal-
23.12.1995, 
financial 
content/EN/TXT/?uri=celex%3A31995R2988  
24 Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations 
conducted by the European Anti-Fraud Office (OLAF), OJ L 136, 31.5.1999, pp. 1–7,   
25 Regulation (EC) No 1074/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations 
conducted by the European Anti-Fraud Office (OCAF), OJ L 136, 31.5.1999, pp. 8–14,   
26  COM(2003)  154,  Commission  Report  -  Evaluation  of  the  activities  of  the  European  Anti-fraud  Office  (OLAF)  - 
Parliament  and  Council  Regulation  (EC)  No  1073/1999  and  Council  Regulation  (Euratom)  No  1074/1999  (Article  15), 
http://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=COM:2003:0154:FIN  

1–4; 

312, 

p. 

L 

9 

 
                                                            
 
OLAF's investigative powers stem from various acts of Union law, including the Regulation. 
Its main tool is the on-the-spot check or inspection, which allows OLAF to access premises 
and documentation of economic operators in the framework of investigations into suspected 
fraud, corruption or other illegal conduct affecting the financial interests of the Union. These 
checks are the centre-piece of OLAF's powers and vitally important to uncover evidence to 
prove or disprove suspected illegal conduct. OLAF also conducts digital forensic operations 
for  the  identification,  acquisition,  imaging,  collection,  analysis  and  preservation  of  digital 
evidence (from economic operators as well as IBOAs).  

Although  Regulation  883/2013  and  Regulation  2185/96  contain  detailed  provisions  on  the 
conduct  of  on-the-spot  checks  and  inspections,  and  of  digital  forensic  operations  in  the 
territory of the Member States in the context of those checks, these acts also make reference 
to  the  application  of  national  law27.  The  current  wording  of  the  Regulation  leads  to 
uncertainty  given  the  simultaneous  reference  to  Union  law,  to  national  law  and  to  the 
procedural guarantees of the Regulation.  

It follows from the evaluation that different interpretations of the relevant provisions (which 
do  not  specify  concretely  the  circumstances  and  extent  of  the  application  of  national  law), 
and  differences  in  national  law,  hinder  OLAF’s  ability  to  conduct  its  investigations 
effectively in all Member States, lead to fragmentation in the exercise of OLAF's powers in 
the  Member  States,  and  impact  on  the  treatment  of  economic  operators  depending  on  their 
location (e.g. participants in the same research project located in different Member States can 
be investigated to different extents depending on national laws). OLAF's practical experience 
shows  it  is  often  difficult  to  identify  the  applicable  national  laws.  Member  States  are  not 
required  either  to  notify  them  or  adapt  them  to  the  specificity  of  OLAF.  At  times,  national 
authorities themselves are not sure which laws should apply to OLAF's action. Most Member 
States do not have a body comparable to OLAF, and national laws are frequently specific to 
concrete areas of revenue and expenditure or refer to concrete national authorities. This is to 
the detriment also of investigated persons, who have difficulty identifying on rules they can 
rely.  

The  anti-fraud  coordination  services  (AFCOS)  were  created  in  each  Member  State  to 
facilitate an effective cooperation and exchange of information, including information of an 
operational  nature,  between  OLAF  and  the  Member  States.  The  evaluation  concludes  they 
were  a  very  positive  development  in  Regulation  883/2013  to  foster  cooperation  between 
OLAF  and  national  counterparts.  However,  the  evaluation  has  also  identified  various 
instances  in  the  cooperation  with  national  authorities  where  it  was  difficult  for  OLAF  to 
identify  the  authority  competent  to  cooperate  with  OLAF  or  to  obtain  the  necessary 
assistance. 

27  OLAF's  powers  to  conduct  on-the-spot  checks  and  inspections  are  set  out  in  Article  3  of  Regulation  883/2013  and  in 
Regulation 2185/96. These Regulations provide OLAF with its own power of Union law to conduct controls “subject to the 
Union law applicable” and “in compliance with […] the procedural guarantees of Regulation 883/2013”. At the same time, 
both Regulations refer to compliance with applicable national law ("and practices", in Regulation 883/2013). 

10 

 
                                                            
 
The difficulties OLAF faces during the on-the-spot checks and inspections can be broadly 
divided  into  the  categories  below.  The  difficulties  encountered  are  often  a  combination  of 
these categories: 

 

 

 

 

situations where it is not clear what national authority is competent to cooperate with 
OLAF in the preparatory phase and during the on-the-spot check or inspection;  
situations where it is difficult to identify an authority to be considered equivalent to 
OLAF when the Regulation provides that the rules applicable to national administrative 
inspectors shall apply to OLAF; 
situations  where  it  is  not  clear  what  national  law  applies  to  OLAF  or  the  extent  to 
which OLAF's powers should apply subject to conditions of national law (e.g. only 
in the context of assistance by the national authorities or in other instances); 
situations  where  there  is  uncertainty  concerning  the  extent  of  the  duty  of  national 
authorities  to  assist  OLAF  investigators,  especially  in  case  of  resistance  of  the 
economic operator concerned. 

Examples of difficulties encountered during on-the spot-checks and inspections, based on concrete 
cases: 

  Before  an  on-the-spot  check  or  inspection,  OLAF  contacted  the  AFCOS  of  a  Member  State  to 
enquire about the national rules applicable and possible assistance during the check. The AFCOS 
was  not  able  to  provide  assistance,  as  based  on  the  applicable  national  legislation  a  favourable 
opinion  on  the  planned  on-the-spot  check  or  inspection  could  not  be  given  (a  requirement  not 
foreseen in the Regulation).  

  No  competent  national  authority  could  be  identified  to  assist  OLAF  unless  a  parallel  criminal 

investigation was opened.  

  A  similar  issue  was  encountered  in  performing  on-the-spot  check  or  inspection  in  another 
Member State, where OLAF was accompanied by national police officers as observers. However, 
they  could  not  provide  any  substantial  support  in  case  of  resistance  of  the  economic  operator 
concerned since the police had no open investigation concerning this economic operator, which 
is not a requirement for assistance under Regulation 883/2013. 

  An  on-the-spot  check  or  inspection  was  not  performed  because  the  AFCOS  did  not  have 

competence to assist OLAF in the context of an internal investigation.  

Admissibility of OLAF-collected evidence 

As regards the follow-up to investigations, the evaluation pointed to large differences in the 
to  OLAF  recommendations  across  recipients.  The  possible  causes  for 
follow-up 
recommendations not to be followed included a range of factors, including issues related to 
the  timeliness  and  quality  of  OLAF  reports,  or  the  discretion  enjoyed  by  the  recipients 
whether to or not to take appropriate action as follow up to the recommendations. However, 
the  most  important  factor  affecting  the  effectiveness  of  the  follow-up  to  recommendations 
identified  by  the  evaluation  relates  to  the  rules  on  the  admissibility  of  OLAF-collected 
evidence  in  national  proceedings.  The  Regulation  provides  that  OLAF  reports  constitute 
admissible evidence in such proceedings in the same way and under the same conditions as 
administrative reports drawn up by national administrative inspectors.  

11 

 
The evaluation suggests that in some Member States this rule does not sufficiently ensure the 
effectiveness  of  OLAF’s  activities.  Some  of  the  difficulties  highlighted  above  apply  in  this 
context  too  (difficulty  to  identify  the  national  administrative  inspectors  to  be  considered 
equivalent to OLAF, in Member States where there is no national authority with a mandate 
equivalent  to  that  of  OLAF;  differences  in  the  rules  applicable  across  Member  States,  with 
impact on the follow-up to transnational  cases). In criminal proceedings, in  many instances 
OLAF collected evidence cannot be used and aspects of the investigation have to be repeated 
to comply with procedural law requirements of criminal investigations. 

Access to bank account information 

The evaluation concluded 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  framework  of  its  investigations,  OLAF  can  inspect  the  accounts  of  the  IBOAs28. 
Such  power  does  not  exist  explicitly  in  Regulation  883/2013  as  regards  the  private  bank 
accounts of EU staff or economic operators and their staff who are under investigation. In the 
framework  of  on-the-spot  checks  and  inspections,  OLAF  can  have  access  to  the  bank 
statements held by economic operators (limited to what is in their possession). To have full 
access to the relevant bank information, OLAF relies on the duty of cooperation of national 
competent  authorities,  which  does  not  refer  explicitly  to  providing  bank  information.  It  is 
dependent  on  its  national  counterparts  (administrative  or  judicial  bodies)  and  their  own 
powers  under  national  law  to  provide  bank  data  to  OLAF.  Today,  this  leads  to  a  situation 
where OLAF has access to banking information in certain Member States but not in others, 
and to different degrees.  

Access to bank data, with at least the ability to identify the accounts of persons investigated, 
is  necessary  to  identify  the  money  flow  in  various  types  of  fraud  in  both  internal  and 
external investigations. This concerns e.g. when the fraud is suspected of being committed by 
misappropriations of funds, chain of shell companies, or is linked with corruption, or when 
fraudsters try to divert payments from IBOAs due to contractors by providing the IBOA with 
a "new" bank account number.  

The need to access bank account information should also be seen in the context of new trends 
resulting  from  strengthened  rules  on  money  laundering.  As  it  becomes  more  difficult  to 
operate  with  high  amounts  in  cash  without  being  identified,  there  is  a  tendency  to  create 
more  sophisticated  financial  structures  to  hide  the  benefit  of  fraud.  In  this  context, 
without access to bank account information, it is difficult for OLAF to follow complex and 
sophisticated  money  flows  just  by  conducting  on-the-spot  checks  and  inspections  (for 
instance, the information might not be found in the premises of the operator, or the chain of 
companies concerned may have ceased to exist when the check takes place). The following 

28 Article 4 of the Regulation. 

12 

 
                                                            
 
examples  illustrate  how  access  to  banking  information  can  prove  decisive  to  conclude  an 
investigation  successfully,  and  how  conversely  the  absence  of  such  information  may  be  an 
insurmountable obstacle to uncovering a case of fraud. 

Access  to  bank  account  information  –  examples  of  OLAF  cases  where  EU  fraud  or  irregularity 
could be evidenced based on bank account information: 

 

In  the  context  of  an  EU-funded  project  for  the  purchase  of  goods  in  a  third  country,  some 
indications were found in communications that an EU economic operator had bribed key persons 
in  the  project  to  win  the  contract.  These  indications  of  corruption  grew  into  serious  suspicion 
when OLAF acquired access to the bank accounts of the economic operator. This allowed OLAF 
to identify the recipient’s bank account details in the third country and to coordinate its ongoing 
investigative activities with the third country judicial authorities. OLAF was provided access to 
the bank account of the economic operator by the national judicial authorities who had seized this 
information. 

  An OLAF investigation revealed a fraudulent scheme set up in a third country by the contractor 
(EU economic operator); during the project implementation, this company used several entities 
based  in  the  third  country  as  its  purported  subcontractors  to  syphon  the  EU  funds  from  the 
project and use them for possible payment of bribes to local government officials. OLAF issued a 
financial recommendation to a Commission service that was not implemented due to the lack of 
evidence  demonstrating  the  money  flow  and  payment  of  bribes.  Had  OLAF  been  granted  with 
the bank account access, both in the third country and the Member State of origin of the operator, 
the gap could have been bridged and better results in terms of financial recovery could have been 
achieved. 

  Another case concerned fraud concerning funding by the European Agricultural Fund for Rural 
Development  in  a  Member  State,  with  the  involvement  of  companies  in  five  other  Member 
States.  Thanks  to  the  access  to  the  bank  accounts,  OLAF  was  able  to  uncover  a  fraud  system 
perpetrated through an inflation of prices up to 400% by a criminal organisation. The access to 
bank  account  information  was  obtained  from  the  national  authorities  in  certain  Member  State, 
and  in  another  Member  State  following  an  on-the-spot  check  or  inspection.  Such  information 
allowed OLAF to identify the transnational fraud scheme put in place by the criminal association, 
financial 
involving  also  money-laundering  and  self-laundering.  The  case 
recommendation of several million EUR. 

to  a 

led 

VAT 

The Court of Justice has confirmed on several occasions that VAT is a financial interest of 
the  Union29.  This  is  now  explicitly  acknowledged  also  in  EU  legislation  (Directive 
2017/1371 on the fight against fraud to the Union’s financial interests by means of criminal 
law). It is therefore part of OLAF’s mandate to fight fraud, corruption and any other illegal 
activity affecting the EU’s financial interests. 

However,  OLAF  rarely  carries  out  investigations  into  irregularities  concerning  VAT. 
This  is  the  result  of  several  factors.  OLAF  lacks  the  instruments  available  to  national 

29 Most recently see case C-105/14, Taricco. 

13 

 
                                                            
 
administrations which operate in this field, such as the possibility to access data collected by 
Eurofisc  or  a  uniform  access  to  bank  account  information.  The  on-the-spot  checks  and 
inspections of Regulations 2185/96 and 2988/95 apply only to revenue collected directly on 
behalf of the European Union, which can be interpreted to exclude VAT. This lack of tools 
has been noted by the European Court of Auditors that has called for granting to OLAF clear 
competences and tools to investigate intra-Community VAT fraud30. 

The  evaluation  report  announced  that  the  legal  proposal  for  the  revision  of  Regulation 
883/2013  would  consider  the  clarification  of  OLAF's  mandate  and  tools  as  regards  VAT. 
Addressing some of the limitations described would allow OLAF to fulfil its mandate in the 
area  of  VAT  in  support  of  the  Member  States  and  the  future  EPPO.  For  example,  when  it 
conducts customs investigations or coordination activities, OLAF should be able to deal also 
with any VAT aspects. This is the case in particular under the so-called customs procedure 
42,  when  goods  imported  into  the  EU  under  this  procedure  are  not  declared  or  are  under-
evaluated, and this leads to the evasion of customs duties and VAT at the same time31. OLAF 
can also bring an inter-disciplinary approach and help cooperation between customs and tax 
administrations,  in  line  with  the  objective  of  improving  the  cooperation  and  sharing  of 
information  between  different  administrations  to  fight  customs  procedure  42  custom  fraud. 
More generally, OLAF obtains relevant VAT information in the context of its investigations 
(e.g.  information  on  suspicious  companies  or  transactions,  new  fraud  trends,  sectors  under 
risks),  which  could  be  shared  with  the  Member  States  and  acted  on  if  the  appropriate 
mechanism for such cooperation is put in place.  

Coordination activities  

The Regulation provides a basis for OLAF to provide the Member States with assistance in 
organising  close  and  regular  cooperation  between  their  competent  authorities  to  coordinate 
their  action  for  the  protection  of  the  EU’s  financial  interests32.  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. This 
results in a lack of legal certainty for OLAF and for the Member States that rely on OLAF’s 
assistance. This is particularly limiting in areas where no other acts of EU law provide for a 
supporting  and  coordinating role  for  OLAF  such  as,  for example,  structural  funds. In  those 
areas  where  such  provisions  do  exist  (for  instance,  in  the  area  of  customs  and  intellectual 
property33), the relationship between Regulation 883/2013 and these other legal acts can lead 
to practical difficulties of application.  

30 European Court of Auditors, Special Report No 24/2015, "Tackling intra-Community VAT fraud: More action needed", 
Recommendation 14 (b), http://www.eca.europa.eu/en/Pages/DocItem.aspx?did=35308.  
31 Customs procedure 42 is a mechanism an EU importer uses in order to obtain a VAT exemption. It is applied when goods 
imported from outside the EU into a Member State will be transported to another. In such cases, the VAT is due in the latter 
-  the  Member  State  of  destination.  There  is  a  risk  that  imports  may  remain  in  the  Member  State  of  importation  without 
payment of VAT. Imports may be also consumed in the Member State of destination without VAT being collected there. 
32 Article 1(2) of the Regulation. 
33 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 

14 

 
                                                            
 
3.3. CLARIFICATION AND SIMPLIFICATION 

The evaluation identified a number of provisions in the Regulation which could benefit from 
clarification or simplification. The following provisions have been identified in particular. 

The  evaluation  showed  that  certain  aspects  surrounding  digital  forensic  operations  can 
hinder  OLAF's  ability  to  gather  digital  forensic  evidence  as  part  of  its  investigations.  In 
particular,  Article  7  of  Regulation  2185/96  enables  OLAF  (inter  alia)  to  access  “computer 
data”  in  the  framework  of  on-the-spot  checks  and  inspections.  Technological  development 
and the emergence of new forms of data storage and new forms of hardware can lead to the 
contestation  of  OLAF's  powers,  as  the  current  provisions  of  the  Regulation  may  be 
interpreted as excluding the access to information stored, for example, in clouds. 

The  evaluation  also  concluded  that  the  rules  applicable  to  internal  and  external 
investigations could be further aligned (where the divergences are not justified) to ensure a 
more coherent framework for investigations.  

In addition, the evaluation identified need to further clarify the provision of the Regulation 
on the early transmission of information to IBOAs to allow for the maximum cooperation 
where precautionary measures without waiting for the completion of the investigation may be 
necessary to protect the Union's financial interests.  

4.  OBJECTIVES OF THE INITIATIVE 

In  response  to  the  issues  explained  in  the  previous  section,  the  overall  objective  of  the 
initiative is to strengthen the protection of the EU's financial interests.  

The specific objectives are: 

1.  To adapt the operation of OLAF to the establishment of the EPPO;  
2.  To enhance the effectiveness of OLAF’s investigative function; 
3.  To clarify and simplify selected provisions of Regulation 883/2013.  

Parliament 

customs  and  agricultural  matters,  OJ  L  82,  22.3.1997,  pp.  1–16,  as  last  amended  by  Regulation  (EU)  2015/1525  of  the 
European 
https://eur-lex.europa.eu/legal-
of 
the 
content/EN/TXT/?qid=1525005882143&uri=CELEX:01997R0515-20160901.  Regulation  (EU)  No  608/2013  of 
European Parliament and of the Council of 12 June 2013 concerning customs enforcement of intellectual property rights and 
repealing  Council  Regulation 
http://eur-
181, 
1383/2003,  OJ  L 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:181:0015:0034:en:PDF. 

the  Council 

(EC)  No 

September 

29.6.2013, 

15–34; 

2015; 

and 

pp. 

of 

9 

15 

 
                                                                                                                                                                                         
 
5.  STAKEHOLDER CONSULTATION AND OTHER SOURCES OF INFORMATION 

5.1. STAKEHOLDER CONSULTATION 

The  stakeholder  consultation  process  accompanying  this  initiative  complied  with  the 
Commission's  stakeholder  consultation  principles  and minimum  standards  taking into 
account  proportionality  as  required  by  the  Better  Regulation  Guidelines34.  The  results  of 
the  stakeholder  consultation  were  fed  into  this  Staff  Working  Document  and  into 
discussions on the proposal to amend the Regulation and are summarised in Annex 2.  

5.1.1. Open public consultation and roadmap 

Regulation  883/2013  regulates  the  conduct  of  OLAF  investigations  and  cooperation 
mechanisms with institutional partners. The groups of stakeholders it targets and impacts are 
well-defined, for the most part within the EU institutional framework and relevant Member 
States'  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. However, the roadmap35 for the initiative stayed open for 4 weeks to public 
feedback (no feedback was received).  

5.1.2. Targeted stakeholder consultation 

In  addition,  a  targeted  stakeholder  consultation  was  carried  out  through  a  survey  of 
relevant  authorities  in  Member  States  (AFCOS,  judicial  and  enforcement  authorities, 
managing  authorities)  and  EU  IBOAs.  In  total  44  replies  were  received  from  21  different 
Member States and 28 from IBOAs36. The results of the surveys are reported in the following 
sections and presented in more detail in Annex 2.  

A  dedicated  expert  meeting  was  also  organised  with  representatives  of  the  Network  of 
Associations for European Criminal Law and the Protection of the Financial Interests of the 
EU, which represents academics and practitioners in the area of the protection of the Union’s 
financial interests, and the European Criminal Bar Association. The workshop was dedicated 
to  the  discussion  of  three  distinct  topics  –  adaptation  to  the  establishment  of  the  EPPO; 
enhancing effectiveness of OLAF's investigative function as regards investigative powers and 
their  enforcement;  and  admissibility  of  OLAF  reports  in  national  proceedings.  Detailed 
explanation is in Annex 2.  

34 Better Regulation Guidelines; SWD (2017) 350; https://ec.europa.eu/info/files/better-regulation-guidelines_en  
35 https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2017-5676334_en  
36 Out of the 28 responses received from IBOAs, 10 were from different European Commission services. 

16 

 
                                                            
 
5.2. OTHER SOURCES OF INFORMATION 

In addition to the results of the targeted consultation for the proposal, this document is based 
on: 

  Results  of  the  evaluation  of  the  application  of  Regulation  883/2013  (which  comprised 

also a wide consultation of stakeholders); 

  Supervisory  Committee  Opinion  2/2017  accompanying  the  Commission  evaluation 

report on the application of Regulation 883/2013; 

  OLAF internal data related to investigations; 
  Data  collection  from  OLAF  staff  in  investigative  and  analytical/investigative  support 

functions; 

  Desk  research  of  court  rulings  with  a  relevance  to  OLAF,  Council  proceedings, 

parliamentary resolutions, academic studies and other relevant documents. 

6.  SOLUTIONS EXPLAINED 

This  section  provides  the  reasoning  for  the  suggested  modifications  in  the  Regulation 
reflecting the issues explained above. Annex 2 provides a detailed overview of the targeted 
consultation results in relation to each of these topics. 

6.1. EPPO-OLAF  

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.  The  proposal  introduces  several  new 
provisions  (Articles  12c-12g)  to  reflect  those  principles  of  the  EPPO  Regulation  and 
acknowledges the creation of the EPPO in several current provisions of Regulation 883/2013. 
The changes are limited to what is necessary to render the EPPO Regulation operational as 
regards the cooperation EPPO-OLAF. 

6.1.1. General principles and cooperation mechanisms 

The general principles applying to the relationship between OLAF and the EPPO are set out 
in Articles 1(4a) and 12g. The relationship between OLAF and the EPPO should be close, as 
both bodies are entrusted with the mandate to protect the financial interests of the Union in 
their respective remit. The proposal furthermore mirrors the principle of complementarity set 
out  in  the  EPPO  Regulation,  whereby  the  combined  action  of  OLAF  and  the  EPPO  should 
ensure that all available means are used to protect the Union budget.  

Working  arrangements  are  provided  for  as  they  will  be  necessary  to  specify  the  concrete 
modalities  of  cooperation  and  exchange  of  information  (Article  12g(1)).  The  exchange  of 
information  at  the  stage  of  receipt  and  verification  of  incoming  allegations  by  both  offices 
will  be  of  particular  importance  in  the  drawing  up  of  the  arrangements:  both  offices  will 

17 

 
receive  allegations  of  suspected  fraud;  both  will  need  to  consider  possible  action  in 
accordance with their mandates; OLAF will need to report to the EPPO if it has a suspicion 
of a criminal offence and the EPPO may decide to refer to OLAF cases which it dismisses. In 
such  circumstances,  the  possibility  of  a  continuous  dialogue  between  the  two  at  their  case 
opening  stages  should  facilitate  the  necessary  decisions  on  the  most  appropriate  course  of 
action to protect the Union’s financial interests. 

The  proposal  also  contains  a  provision  on  indirect  access  of  OLAF  to  the  EPPO's  case 
management  system,  through  a  hit/no  hit  mechanism  (Article  12g(2)).  This  will  allow  to 
obtain  an  initial  indication  that  the  EPPO  may  be  conducting  a  criminal  investigation, 
allowing  OLAF  to  trigger  the  coordination  mechanisms  outlined  below.  The  provision 
mirrors that contained in Article 101(5) of the EPPO Regulation, which concerns the indirect 
access of the EPPO to OLAF’s case management system. 

6.1.2. Obligation to report to the EPPO 

Article  24  of  the  EPPO  Regulation  imposes  on  OLAF  (as  on  all  IBOAs  and  competent 
authorities  of  the  Member  States)  the  obligation  to  report  to  the  EPPO  without  undue 
delay  any  conduct  in  respect  of  which  the  EPPO  may  exercise  its  competence.  Article 
12c of the proposal contains provisions specifying the concrete application of this obligation 
to the activity of OLAF.  

The EPPO Regulation, in Article 24(4), specifies the information that should be reported. 
The report should 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. This minimum 
content is reproduced in the proposed new Article 12c(2). 

The reporting by OLAF may arise at different moments, starting with the reception of initial 
information up to the moment when the possible criminal conduct is discovered in the course 
of  the  actual  administrative  investigation  (which  OLAF  can  open  on  suspicion  of  a  mere 
administrative irregularity). If the initial information received by OLAF points straightaway 
to possible criminal conduct and is already sufficiently substantiated in the sense of Article 
24(4) of the EPPO Regulation, it will be immediately reported to the EPPO, in order to allow 
the  EPPO  to  decide  whether  to  open  an  investigation  and  consider  all  necessary  initial 
measures to preserve the effectiveness of its enquiry. 

In certain circumstances, however, it may be necessary to conduct a preliminary evaluation 
of  allegations  (Article  12c(3))  in  order  to  assess  whether  the  information  supplied  to  the 
EPPO is sufficiently substantiated, thus contributing to the effectiveness of the EPPO’s own 
case  selection  process.  Any  preliminary  evaluation  should  be  carried  out  expeditiously  and 
through procedures which do not risk jeopardising a possible future criminal investigation.  

OLAF,  by  virtue  of  its  mandate  as  well  as  its  experience,  is  ideally  placed  to  conduct  this 
preliminary  evaluation  using  its  expertise  and  operative  tools  in  investigations  for  the 

18 

 
protection  of  the  EU’s  financial  interests.  This  special  position  is  recognized  by  the  EPPO 
Regulation when it indicates (recital 51) that OLAF may be asked by other IBOAs to perform 
this preliminary evaluation on their behalf. A corresponding provision has been added in the 
amendment of Regulation 883/2013 (Article 12c(5)). Results of the targeted consultation as 
presented in Annex 2 illustrate that half of the IBOAs' respondents welcomed the possibility 
to turn to OLAF for the preliminary evaluation on their behalf. 

Following this report, if the EPPO opens an investigation on the basis of such information, 
the opening or continuation by OLAF of an investigation into the same facts, other than on 
request of the EPPO, will require notification of this intention to the EPPO which may object 
when  necessary  to  preserve  its  own  investigative  activity  (Article  12c(4);  see  section  6.1.3 
below). 

6.1.3. Non-duplication of investigations and specific situations of 

complementary investigations by OLAF 

The  EPPO  Regulation  sets  out  in  Article  101(2)  a  non-duplication  rule  between 
investigations of the EPPO and of OLAF. According to this rule, OLAF shall not open a 
parallel  investigation  into  the  same  facts  which  are  the  object  of  an  investigation  by  the 
EPPO;  the  EPPO  may  however  request  support  from  OLAF  in  the  course  of  a  specific 
investigation (Article 101(3) of the EPPO Regulation; see section 6.1.4). The non-duplication 
rule is mirrored in Article 12d of the proposal. The provision also establishes a mechanism 
for  OLAF  to  consult  the  EPPO  if  necessary  to  ascertain  whether  it  is  conducting  an 
investigation. 

The  EPPO  Regulation  (Article  101(1))  further  specifies  that  all  available  means  should  be 
used  to  protect  the  Union's  financial  interests  and  that  the  non-duplication  rule  should  be 
without prejudice  to the power of OLAF to  start an administrative investigation on its own 
initiative, in close consultation with the EPPO (recital 103).  

Indeed,  in  certain  cases,  OLAF's  administrative  investigations  focused  at  ensuring 
recovery, or at preparing the ground for administrative or disciplinary action, maintain 
their specific added value to the benefit of the overall protection of the Union budget. They 
can  usefully  complement  the  EPPO's  activity.  Examples  include  the  need  to  recover  EU 
funds when there is a risk of time-barring37, or when the amounts at stake are very high, or 
the need to avoid further expenditure in risk situations through administrative measures. 

OLAF's  experience  illustrates  the  importance  of  coordinated  and  complementary  action 
through criminal and administrative investigations. Examples illustrating the benefits of this 
approach can be found already nowadays in situations where OLAF conducts administrative 
investigations in parallel to the national criminal investigations. 

37 For example, time-barring kicks-in fast in relation to customs duties (3 years). There are similar temporal deadlines on the 
expenditure side (4 years or less for national authorities and beneficiaries to conserve documents). 

19 

 
                                                            
 
Examples of added value OLAF investigation carried out in parallel to criminal proceedings: 

  OLAF  opened  an  investigation  upon  allegations  for  conflict  of  interest,  fraud  and  breach  of 
public procurement rules supposedly perpetrated in the framework of an EU funded project in a 
Member State. Before OLAF opened  its investigation, a criminal  investigation had existed and 
been dismissed at national level. Nevertheless, following the receipt of OLAF's Final Report the 
national judicial authorities re-opened their case. Currently, the national criminal investigation is 
still ongoing. On the basis of its administrative findings OLAF recommended financial recovery 
for over a million EUR. 

  As a result of another administrative investigation, OLAF identified widespread irregularities in 
the managing of agricultural funds in a Member State and closed its case with recommendation 
for financial recovery and for possible judicial action. The national judicial authorities eventually 
dismissed  the  file  as  the  crime  could  not  be  substantiated;  however,  on  the  basis  of  OLAF's 
administrative  findings  a  financial  correction  for  over  EUR  150  million  was  launched.  The 
recovery  would  not  have  been  possible  if  only  a  criminal  investigation,  which  resulted  in  a 
dismissal, would have been conducted.  

  OLAF  opened  an  investigation  into  allegations  of  conflict  of  interest,  breach  of  public 
procurement rules and misappropriation of EU funds supposedly perpetrated by the beneficiary 
of an EU funded project. OLAF's investigation started after a national criminal investigation had 
already  started.  In  the  course  of  OLAF's  investigation  it  exchanged  information  and 
documentation with the national judicial authorities. The latter requested OLAF's assistance with 
regard to the examination of particular aspects of the alleged fraud and for providing clarification 
of the applicable eligibility rules. While the national investigation is currently still continuing to 
determine  if  criminal  acts  were  committed  at  national  level,  OLAF  already  finalised  its 
administrative  investigation  and  on  the  basis  of  its  results  recommended  financial  recovery  of 
over EUR 500 000. 

To  achieve  this  result,  the  proposal  introduces  in  Regulation  883/2013  a  new  Article  12f 
which  allows  OLAF,  in  duly  justified  cases,  to  open  or  carry  on  an  administrative 
investigation to complement a criminal investigation being carried out by the EPPO.  

To allow the EPPO to protect the integrity of its investigations, OLAF should inform the 
EPPO in writing of this decision and the EPPO should have a period of 30 days to object to 
the  opening  or  continuation  of  such  complementary  investigation  by  OLAF,  or  to  certain 
investigative  measures,  if  they  entail  the  risk  of  prejudice  to  the  ongoing  criminal 
investigation: for example, EPPO may request that OLAF does not carry out certain specific 
activities  (e.g.  an  on-the  spot  check  or  inspection)  which  may  put  the  suspected  person  or 
persons  on  notice.  Furthermore,  even  if  no  objections  were  initially  raised  by  the  EPPO  in 
respect to the decision of OLAF to carry out a complementary investigation, this may be done 
at any stage in the later course of the proceedings, should the need arise. 

Lastly, Article 12f introduces a general obligation on OLAF to conduct any complementary 
investigation in close consultation with the EPPO, in conformity with the EPPO Regulation. 

This  approach  is  coherent  with  the  Commission's  intention  to  devise  a  system  of 
complementary  criminal  and  administrative  investigations,  already  outlined  under  Section 

20 

 
3.1. It is furthermore supported by the findings of the stakeholder consultation, as set out in 
Annex 2.  

6.1.4. OLAF support to the EPPO  

The proposal sets out, in a new Article 12e, 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  the  EPPO  Regulation.  The  proposal  further  details  the  content  of  such 
requests and the reporting and follow-up by OLAF.  

In  addition  to  opening  administrative  investigations  on  its  own  initiative,  OLAF  may  be 
requested  to  support  or  complement  a  criminal  investigation  by  the  EPPO.  The  EPPO 
Regulation makes reference to several types of support or complementary measures (Article 
101(3))  which  are  clearly  framed  within  OLAF's  administrative  investigation  powers: 
information, expertise and analysis; coordination of specific actions of the competent national 
administrative authorities and EU bodies; and administrative investigations. The results of the 
targeted  consultation  of  stakeholders  presented  in  Annex  2  illustrate  support  to  these 
measures.  

OLAF would perform these operations acting within the limits of its administrative powers 
and  within  its  framework  of  procedural  guarantees;  it  would  act  as  independent 
administrative  authority  and  not  as  part  of  a  criminal  investigation.  The  EPPO  Regulation, 
indeed,  specifies  that  support  from  OLAF  to  the  EPPO  should  always  be  carried  out  in 
accordance with the OLAF Regulation (recital 104). 

6.1.5. Other provisions linked to EPPO-OLAF cooperation 

Several adaptations of existing provisions of Regulation 883/2013 are proposed, in order to 
reflect the establishment of the EPPO.  

The obligation for IBOAs to report to OLAF information related to possible cases of fraud, 
corruption  or  other illegal activities affecting  the financial interests of the Union, set out  in 
Article 8(1), has been specified for those cases when that information has to be reported to 
the  EPPO  in  conformity  with  Article  24  of  the  EPPO  Regulation.  In  such  cases,  to  avoid 
unnecessary burden, IBOAs may discharge their obligation towards OLAF by forwarding to 
it a copy of the report submitted to the EPPO.  

The  scope  of  application  of  the  provisions  on  the  opportunity  to  comment  of  the  person 
concerned  when  OLAF  transmits  information  to  a  judicial  authority  (Article  9(4)),  on  the 
content  of  OLAF's  final  report  (Article  11)  and  on  information  to  the  Supervisory 
Committee of cases in which information has been transmitted to judicial authorities (Article 
17(5)) has been adapted to the establishment of the EPPO. 

21 

 
The  provision  on  the  exchange  of  views  with  the  institutions  (Article  16(1))  has  been 
amended to take into account the creation of the EPPO, including it in the list of bodies and 
agencies which may in specific cases participate in the exchange of views. 

Lastly,  the  provision  concerning  the  power  of  the  Director-General  to  adopt  guidelines  on 
investigation procedures  (Article 17 (8)) has been complemented with a reference to such 
guidelines concerning relations with the EPPO. 

6.2. ENHANCING THE EFFECTIVENESS OF OLAF INVESTIGATIVE FUNCTION 

Considering  the  need  for  the  amended  Regulation  to  be  in  force  by  the  time  the  EPPO 
becomes  operational,  the  modifications  proposed  are  targeted  to  the  key  issues  as 
explained in section 3.2.  

The  amendments  proposed  aim  in  particular  to  clarify  and  reduce  ambiguity  in  the  current 
provisions  and  allow  OLAF  to  operate  in  an  effective  and  coherent  manner  in  all  its 
investigations.  This  is  directly  related  to  the  objective  of  a  high  level  of  protection  of  the 
budget across the Union. 

6.2.1. Conduct of on-the-spot checks and inspections and assistance of national 

competent authorities 

As  explained  in  section  3.2,  the  evaluation  has  shown  that  the  extent  to  which  Regulation 
883/2013  makes  national  law  applicable  is  not  completely  clear,  which  hinder  the 
effectiveness of investigations and leads to fragmentation in the exercise of OLAF's powers 
in  the  Member  States.  The  proposal  aims  at  removing  ambiguities  by  better  framing  the 
references  to  national  law  to  ensure  an  effective  and  more  coherent  application  of  OLAF's 
powers  to  conduct  on-the-spot-checks  and  inspections  in  the  Member  States,  without 
however  changing  the  powers  available  to  OLAF  or  substantially  amending  the  way  the 
Regulation  operates  in  relation  to  the  Member  States.  It  also  aims  at  further  clarifying  the 
framework  of  procedural  guarantees  applicable  in  the  context  of  on-the-spot-checks  and 
inspections. 

To  this  end,  Article  3  concerning  external  investigations,  which  includes  the  provisions  of 
Regulation  883/2013  on  conduct  on-the-spot-checks  and  inspections,  has  been  revised  as 
follows: 

  The conduct by OLAF of conduct on-the-spot-checks and inspections, in situations 
where  the  economic  operator  submits  to  the  check  and  the  assistance  of  the 
Member  States  is  not  necessary,  is  subject  to  Union  law  alone  (Regulations 
883/2013 and 2185/1996, Article 3(2)). In such cases, the references to the application 
of  national  law  in  Regulations  2988/1995  and  2185/1996  should  not  apply  (Article 
3(7)). 

22 

 
  A duty to cooperate of economic operators in external investigations is introduced 
in the Regulation (Article 3(3)). This reflects the duty already contained in Regulation 
2185/1996  as  regards  cooperation  in  on-the-spot-checks  and  inspections,  as  well  as 
the obligation on beneficiaries of EU funds to fully cooperate in the protection of the 
Union’s  financial  interests,  including  OLAF  investigations  (Article  129  of  the 
Financial Regulation38). 

 

  To  ensure  transparency,  when  carrying  out  on-the-spot  checks  and  inspections 
OLAF 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 (Article 3(4)). 
In  the  situations  where  the  check  is  carried  out  in  accordance  with  Union  law,  this 
includes the relevant provisions concerning procedural guarantees, as laid down in 
Regulations  883/2013  and  2185/1996  and  resulting  also  from  the  Charter  of 
Fundamental Rights of the Union. Several clarifications of the applicable procedural 
guarantees  in  the  specific  context  of  on-the-spot  checks  and  inspections  have  been 
introduced in Article 3(5) (the right against self-incrimination, the possibility to use a 
language of the Member State where the check is performed, and to be assisted by a 
person of choice, including legal counsel). 

  On  the  other  hand,  where  the  economic  operator  resists  the  check  and  the 
assistance  of  national  authorities  is  necessary,  this  assistance  is  provided  in 
accordance  with  national  law,  including  applicable  procedural  guarantees  (Article 
3(7)), in the context of the Member States' general duty to ensure that OLAF's action 
is effective. The same principle is reflected in the general duty of  Member States to 
assist OLAF in its investigations (Article 7(3)). 

The clarification of the instances where Union law and national law applies – depending on 
whether  or  not  the  operator  concerned  resists  the  check  and  the  assistance  of  national 
authorities is necessary - corresponds to a known model of administrative investigations by 
Union bodies. In  the investigations conducted by the Commission's Directorate-General for 
Competition, the European Securities and Markets Authority and the European Central Bank, 
checks are a matter of EU law, and national law is only relevant in the case of assistance by 
national authorities.  

This  approach  has  also  now  been  confirmed  by  the  General  Court  (First  Chamber)  as 
applying  in  OLAF  investigations  in  the  context  of  Regulation  883/2013  and  Regulation 
2185/1996 as they stand today. In its ruling of 3 May 2018 in case T-48/16, Sigma Orionis 
SA v European  Commission39, the Court  has 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  883/2013  and  Regulation  2185/1996,  and  of  the  written  authorisation  of  the 
Director-General of OLAF. Union law supersedes national law when a matter is regulated by 

38 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. 
39 Not yet reported. See paragraphs 73-118. 

23 

 
                                                            
 
Regulations  883/2013  or  2185/1996.  Moreover,  the  judgment  finds  that  the  provisions  (in 
Regulation  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). 

These  changes  concerning  the  extent  of  application  of  national  law  do  not  affect  the 
procedural  guarantees  applicable  in  the  framework  of  OLAF  investigations.  Already  today, 
OLAF  is  bound  to  apply  the  procedural  guarantees  of  Regulation  883/2013,  Regulation 
2185/96  and  those  contained  in  the  Charter  (see  box  below).  In  addition,  procedural 
guarantees  of  national  law  also  apply  in  cases  where  the  economic  operator  resists  an 
investigative  measure  by  OLAF  and  national  competent  authorities  assist  OLAF  to  counter 
that opposition. 

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

The  duties  of  Member  States  authorities  to  exchange  information  with  OLAF  are  also 
addressed in the proposal, with modifications proposed to Articles 8(2) and (3) and 12(3) in 
order to ensure a consistent approach throughout the Regulation as regards the references to 
national law. 

Current legal framework of procedural safeguards in OLAF investigations: 

  Rights  of  persons  involved  are  protected  in  the  framework  of  OLAF  investigations  by 
provisions  on  procedural  guarantees  in  Regulation  883/2013,  as  well  as  in  Regulation 
2185/1996  applicable  to  on-the-spot-checks  and  inspections.  In  addition,  OLAF  must 
ensure that its activities respect the rights enshrined in the Charter of Fundamental Rights 
of the European Union.  

  Article 9 of Regulation 883/2013 on procedural guarantees includes: 

- 
- 
- 
- 

- 

the duty of OLAF to seek evidence for an against the person concerned, 
the right to an objective and impartial investigation,  
the right to the presumption of innocence and to avoid self-incrimination,  
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, 

24 

 
- 

- 

- 

for witnesses, the right that an interview is ended and to be informed of her/his rights 
if evidence emerges that a witness may be a person concerned, 
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 a Union institution or body, head of 
office  or  agency,  or  staff  members to  be informed that 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.  

  This  provision  is  complemented  by  provisions  on  confidentiality,  professional  secrecy 
and data protection (Article 10). OLAF is also subject to Regulation 45/2001 concerning 
data  protection,  and  to  Regulation  1049/200140  on  public  access  to  documents.  In 
addition, for on-the-spot-checks and inspections, Regulation 2185/96 provides itself for 
the  respect  of  fundamental  rights,  professional  secrecy  and  protection  of  personal  data 
(recital 12). 

  The  procedural  guarantees  are  underpinned  by  OLAF  internal  and  external  controls. 
Internally,  OLAF  has  put  in  place  a  legality  check  of  the  investigative  activities  in 
accordance with Article 17(7) of the Regulation. This translates in practice in a system 
which  includes  the  review  and  verification  of  legality  (including  respect  of  procedural 
guarantees  and  fundamental  rights),  proportionality  and  necessity  of  the  investigative 
activities, prior to their conduct, and overall review of final reports. The legality check is 
carried out by the Investigation Selection and Review Unit, a dedicated, specialised unit 
reporting  directly  to  OLAF’s  Director-General.  The  opinions  of  the  Investigation 
Selection and Review Unit are submitted to OLAF’s Director-General for him to make a 
decision  or  to  authorise  an  investigative  act  (a  written  authorisation  issued  in 
accordance with Article 7(2) is necessary for the carrying out of the investigative tasks). 

  The authority required corresponds to EU law standards in other areas. It has to set out:  

- 
- 
- 

 

The identity and capacity of the investigating staff, 
The subject matter and purpose of the investigation,   
The  legal  bases  for  conducting  the  investigation  and  the  investigative  powers 
stemming from those bases. 

If the economic operator opposes the check, OLAF may request the national authorities 
to  assist it  –  such  assistance will  be governed by national law and  may be subject to a 

40 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to 
European Parliament, Council and Commission documents; OJ L 145, 31.5.2001, p. 43–48; https://eur-lex.europa.eu/legal-
content/EN/TXT/?qid=1523972761716&uri=CELEX:32001R1049   

25 

 
                                                            
 
judicial  authorisation  (if  required  by  national  law).  An  equivalent  approach  has  been 
used  in  other  areas  and  has  been  confirmed  by  the  EU  courts  as  compliant  with 
fundamental rights.   

  Any person affected by an investigation may address a complaint directly to OLAF in the 

framework of an internal complaint procedure.  

As  regards  the  external  controls,  the  Supervisory  Committee  monitors  developments 
concerning  the  application  of  procedural  guarantees  in  OLAF  investigations  in  accordance 
with  Article  15(1)  of  the  Regulation.  Other  external  controls  include  the  European  Data 
Protection  Supervisor  (concerning  data  processing  by  OLAF),  the  European  Ombudsman 
(complaints about maladministration) and the European Court of Auditors (external audits). 
Those concerned may  also  raise issues  related to OLAF investigations before  the European 
Court of Justice, usually in the context of litigation against measures taken as a follow-up to 
OLAF  recommendations,  or  in  the  context  of  an  action  for  damages  allegedly  caused  by 
OLAF.  

6.2.2. Access to bank account information 

To ensure that OLAF has access to bank account information to ensure the effectiveness of 
its investigations across Member States, the proposal provides (Article 7(3)) that the Member 
States’  duty  to  assist  OLAF  in  the  conduct  of  its  investigations  (already  enshrined  in 
Regulation  883/2013)  should  include  the  transmission  of  certain  bank  account  information. 
The targeted consultation showed support for such an indirect access by OLAF (via national 
competent  authorities),  over  no  access  or  direct  access.  This  in  practice  means  that  the 
national  authorities  will  act  in  compliance  with  national  law,  as  in  other  instances  of 
assistance by Member States to OLAF, including as regards any applicable procedural steps 
or guarantees for the person concerned.  

OLAF  should  be  provided  with  a  set  of  information  on  account  holders  held  by  central 
bank  and  payment  account  registers  or  automated  retrieval  mechanisms  established  by 
Member States pursuant to the Anti-Money Laundering Directive41 as well as, when strictly 
necessary for the purpose of the investigation, the record of transactions. This cooperation 
could take place through the Financial Intelligence  Units established in  the  Member States, 
given  their  relevant  mandate  in  this  field,  without  prejudice  to  the  cooperation  with  other 
authorities  which  may  access  such  information  and  be  in  a  position  to  assist  OLAF  in  the 
Member States. 

41 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.  73-117;  https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=celex%3A32015L0849.  

26 

 
                                                            
 
6.2.3. VAT 

The  amendments  proposed  aim  at  providing  the  necessary  clarifications  to  Regulation 
883/2013 to allow OLAF to provide the support and assistance needed to Member States and 
to the EPPO in the context of the fight against VAT fraud.  

To  remove  any  ambiguities  about  OLAF  investigative  powers,  Article  3(1)  is  clarified  to 
ensure  that  on-the-spot  checks  and  inspections  are  available  to  OLAF  in  all  areas  of  its 
mandate, including VAT.  

In  addition, to  allow  for  an  efficient  cooperation  with  Member  States,  the  proposal enables 
OLAF  to  exchange  information  with  the  Eurofisc  network  established  by  Regulation 
904/2010 (Article 12(5)). This reflects the provision introduced in the Commission proposal 
to  amend  Regulation  904/2010,  which  provides  a  legal  base  enabling  the  transmission  by 
Eurofisc  of  information  to  OLAF.  This  will  allow  OLAF  and  Eurofisc  to  cross  check  the 
information  obtained  in  the  context  of  their  respective  activities,  such  as  information  on 
suspicious economic operators or fraud trends.  

6.2.4. Admissibility of OLAF-collected evidence in national proceedings 

To  clarify  the  rules  on  the  use  of  OLAF  reports  and  to  improve  follow  up  to  OLAF 
recommendations in the Member States, the proposal makes a distinction between different 
situations (Article 11(2)). On the one hand, the proposal keeps the principle of equivalence to 
the rules applicable to administrative reports drawn up by national administrative inspectors 
in the case of national criminal proceedings. National law as regards the use of reports of 
administrative  inspectors  in  criminal  proceedings  varies  and  it  is  appropriate  that  the 
conditions of national law apply in the context of the criminal law procedure. On the other 
hand, the proposal introduces a principle of admissibility of OLAF reports in administrative 
proceedings and in judicial proceedings of administrative, civil and commercial nature 
in the Member States. In such cases, the reports should only be subject to a verification of 
authenticity. Finally, the proposal clarifies the admissibility of the reports in administrative 
and judicial proceedings at Union level. 

6.2.5. Anti-fraud coordination services (AFCOS) 

The  evaluation  acknowledged  the  positive  impact  of  the  creation  of  the  AFCOS,  while 
identifying  various  instances  in  the  cooperation  with  national  authorities  where  it  was 
difficult for OLAF to identify the authority competent to cooperate with OLAF or to obtain 
the necessary assistance. 

The proposal addresses this issue inter alia by further clarifying the role of the AFCOS in the 
Regulation. The relevant provision is amended to spell out clearly that the AFCOS should be 
able to provide, obtain or coordinate the necessary assistance to OLAF to carry out its 
tasks effectively, at all stages before, during or at the end of investigation. Making more 

27 

 
explicit  the  minimum  requirements  for  AFCOS  was  requested  by  a  significant  number  of 
national  respondents  in  the  targeted  consultation  (see  Annex  2).  In  accordance  with  the 
principle  of  subsidiarity  and  the  results  of  the  consultation,  the  proposal  leaves  for  the 
decision  of  each  Member  State  the  organisation  and  the  actual  powers  of  the  AFCOS. 
Member States can therefore decide whether to give the AFCOS operational powers, or else a 
coordination  role,  as  long  as  they  are  endowed  with  the  necessary  tools  to  ensure  that  the 
necessary assistance is provided to OLAF in their Member State. 

Furthermore, a provision is made for the possibility for OLAF to request the assistance of the 
AFCOS in the context of coordination activities, as well as for the AFCOS to cooperate 
among themselves, in order to further reinforce the available mechanisms for cooperation in 
the fight against fraud.  

Given  that  the  role  of  the  AFCOS  is  relevant  not  only  in  external  but  also  in  internal 
investigations  (as  in  both  types  of  investigations  OLAF  may  need  to  conduct  investigative 
activities in the territory of the Member States), the relevant provision has been moved from 
Article 3 on external investigations to a new Article 12a on AFCOS. 

6.2.6. Coordination activities 

The duty of OLAF 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.  To address the risk of legal 
uncertainty  in  the  absence  of  more  specific  provisions,  as  identified,  by  the  evaluation,  the 
proposal introduces a new provision on coordination activities (Article 12b). It specifies the 
coordination  activities  that  OLAF  can  conduct,  in  relation  to  the  collection,  analysis  and 
exchange  of  information  in  this  framework,  including  when  OLAF  is  participating  in  joint 
investigation teams. 

6.3. CLARIFICATION AND SIMPLIFICATION 

To bring the relevant provisions of the Regulation concerning the conduct of digital forensic 
operations  up  to  date  with  technological  progress,  Article  3  on  external  investigations  and 
Article 4 on internal investigations now specify that in the course of an investigation OLAF 
may have access to any relevant information 'irrespective of the medium on which it is stored' 
by IBOAs. 

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

The  evaluation  identified  scope  to  clarify  cooperation  with  IBOAs,  for  the  purposes  of  the 
early  transmission  of  information  b  OLAF  where  precautionary  measures  may  be 
necessary.  Article 7(6) gives the IBOAs the possibility to consult OLAF at any time with a 
view  to  deciding  on  any  appropriate  precautionary  measures,  including  measures  for  the 
safeguarding of evidence. 

28 

 
ANNEXES: 

Annex 1 : Procedural information  

This  annex  provides  information  of  the  procedure  and  timeline  in  the  preparation  of  the 
proposal.  

A1.1  Lead DG:  

European Commission, European Anti-Fraud Office (OLAF). 

A1.2  Organisation: 

An  Inter-Service  Steering  Group  (ISSG)  was  set  up  to  support  the  development  of  the 
proposal and this Staff Working Document, including also stakeholder consultation process. 
The ISSG  was composed  of the Secretariat-General of the Commission,  the Legal Service, 
the Investigation and Disciplinary Office of the Commission (part of the Directorate-General 
for Human Resources and Security), the Directorate-General for Justice and Consumers and 
the Directorate-General for Budget. The ISSG was consulted at key steps of the process and 
its  comments  were  reflected  both  in  the  proposal  and  the  Staff  Working  Document.  This 
covered  in  particular  a  roadmap  for  the  initiative,  stakeholder  consultation  strategy, 
questionnaires for the stakeholder consultation and different drafts of the provisions subject 
to  the  amendment.  The  work  of  the  ISSG  was  particularly  important  as  all  the  preparatory 
work  was  carried  out  internally  by  the  Commission  services  (without  any  support  from  an 
external contractor). 

The  roadmap42  for  the  amendment  of  Regulation  883/2013  set  the  initiative  in  a  policy 
context,  indicated  the  objectives  of  the  initiative,  outlined  its  scope  and  explained  the 
preparatory process including the stakeholder consultation. The roadmap was published for 
feedback  between  21  November  and  19  December  2017  once  agreed  with  the  ISSG.  No 
feedback was received. 

The  stakeholder  consultation  strategy  was  agreed  with  the  ISSG  early  in  the  process.  The 
consultation  strategy  outlined  which  stakeholders  would  be  consulted  for  the  initiative,  on 
what  topics  and  by  what  means.  The  consultation  strategy  was  published  on  a  dedicated 
Europa website43. A detailed description of the stakeholder consultation is provided in Annex 
2.  

42 https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2017-5676334_en  
43 https://ec.europa.eu/anti-fraud/policy/olaf-regulation-evaluation_en  

29 

 
 
 
                                                            
 
A1.3  Timetable: 

Table A1.1: Timetable  
Date 
06/10/2017 
27/10/2017 
21/10/2017 
04/12/2017 

14/12/2017 
15/12/2017 
19/12/2017 
21/12/2017 
25/01/2018 
04/02/2018 
20/02/2018 
22/02/2018 
26/02/2018 
06/03/2018 
23/03/2018 
05/04/2018 
17/04/2018 
Source: OLAF  

Description 
Establishment of the Steering Group  
1st ISSG Meeting: Roadmap; Consultation strategy 
Roadmap published for feedback  
2nd ISSG Meeting: Concept papers for the stakeholder consultation; 
Draft questionnaires for the stakeholder consultation surveys 
Launch of the survey of Member States’ authorities 
Workshop with lawyers’ associations  
End of the feedback period on the roadmap 
Launch of the survey of IBOAs 
1st Drafting Meeting of the ISSG 
Closure of the surveys 
2nd Drafting Meeting of the ISSG 
3rd Drafting Meeting of the ISSG 
4th Drafting Meeting of ISSG 
5th Drafting Meeting of ISSG 
Inter-service consultation – launch 
Inter-service consultation – meeting  
Inter-service consultation – closure 

A1.4  Exceptions to the Better Regulation Guidelines: 

An  impact  assessment  was  not  considered  necessary  and  was  not  carried  out.  It  was 
replaced  by  this  analytical  staff  working  document  supported  by  an  extensive  use  of  the 
evaluation  report,  external  studies  and  other  sources,  and  the  results  of  the  consultations 
mentioned above. 

Given  the  scope  of  the  Regulation  and  the  well-defined  group  of  stakeholders,  a  targeted 
stakeholder  consultation  was  considered  as  an  appropriate  and  proportional  means  of 
consultation rather than an open public consultation.  

30 

 
 
 
Annex 2 : Synopsis report of stakeholder consultation  

This  annex  provides  a  synopsis  of  the  stakeholder  consultation  that  was  carried  out  for  the 
proposal  to  amend  Regulation  883/2013.  It  presents  the  main  steps  and  findings  of  the 
consultation of interested parties and stakeholders. It shows that the stakeholder consultation 
process  complied  with  the  Commission's  stakeholder  consultation  principles  and 
minimum  standards  taking  into  account  proportionality  as  required  by  the  Better 
Regulation Guidelines44.  

The stakeholder consultation addressed a broad range of issues, based on the findings of the 
evaluation of the application of Regulation 883/2013. Considering the targeted nature of this 
proposal,  not  all  issues  have  been  included  in  the  proposed  amendments.  However,  the 
consultation  results  could  be  used  for  the  assessment  of  future  proposals  and  for  non-
legislative measures. 

The  stakeholder  consultation  was  carried  out  in  accordance  with  Regulation  45/200145. 
Information on data protection was also available on a dedicated OLAF Europa website46. 

The stakeholder consultation was carried out in English. Answers in other EU languages were 
accepted. 

The  results  of  the  stakeholder  consultation  have  fed  the  preparation  of  this  staff 
working document and the revision of the relevant provisions of the Regulation. 

A2.1 

Feedback on evaluation roadmap 

The roadmap was opened for 4 weeks between 21 November 2017 and 19 December 2017 
for feedback from stakeholders. No feedback was received.  

A2.2  Open public consultation 

Regulation 883/2013 regulates the conduct of OLAF's investigations against fraud, corruption 
and other illegal activity affecting the EU's financial interest. Its scope does not cover anti-
fraud  policy  in  general,  it  rather  introduces  specific  instruments/powers  and  cooperation 
mechanisms with institutional partners. The groups of stakeholders it targets and impacts are 
well-defined, for the most part within the EU institutional framework and relevant Member 
States  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  would  usefully  contribute  to  the  preparation  of  the  proposal  and/or  the 
accompanying Staff Working Document. Moreover, the different stakeholders are affected by 
different  distinct  elements  of  the  Regulation  in  different  ways.  Therefore,  an  open  public 
consultation  was  not  carried  out  and  stakeholders  were  consulted  in  targeted 
consultations as explained below. 

44 Better Regulation Guidelines; SWD (2017) 350; https://ec.europa.eu/info/files/better-regulation-guidelines_en   
45 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. 1–22; http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32001R0045  
46 https://ec.europa.eu/anti-fraud/olaf-and-you/data-protection_en  

31 

 
                                                            
 
A2.3  Targeted consultation 

A  targeted  consultation  was  carried  out  in  the  form  of  a  survey  of  relevant  Member  State 
authorities,  a  survey  of  EU  IBOAs  and  a  dedicated  expert  meeting  that  brought  together 
academics and practitioners in the area of the protection of the Union’s financial interests.  

A2.3.1  Survey of Member State authorities – overview of respondents 

To  reach  out  to  the  relevant  Member  State  authorities,  OLAF  approached  the  Anti-Fraud 
Coordination Services (AFCOS) via email with a request not only to fill in the questionnaire, 
but also to further disseminate the survey link to the relevant national judicial, enforcement 
and managing authorities. The initial consultation period was planned between 14 December 
2017 and 25 January 2018. It was prolonged until 4 February 2018. In total 44 replies were 
received  from  21  Member  States  (in  several  Member  States,  different  authorities  replied  to 
the questionnaire), no response was received from any authority in 7 Member States47.  

The survey also offered the opportunity to upload documents to express further views on the 
amendment of the Regulation. This option was taken by only one Member State respondent. 
One  other  Member  State  respondent  provided a  position  without  filling  in  the  survey.  Two 
IBOAs  took  part  in  the  Member  States’  survey.  Table  A2.1  provides  an  overview  of  the 
national authorities that participated. 

From the total number of 44 replies,  19 responded on behalf of AFCOS, 6 on behalf of an 
authority managing and/or implementing EU funds, 2 from authorities investigating fraud and 
corruption in relation to EU funds, 2 from authorities responsible for the development of anti-
fraud  policies  and  strategies,  4  on behalf  of  judicial  authorities  and  3 on  behalf  of  an  audit 
body and 8 survey replies were from other organisations. 

A2.3.2  Survey of IBOAs – overview of respondents 

A survey among the EU IBOAs was initially planned to be open for the period between 21 
December 2017 and 28 January 2018. It was prolonged until 4 February 2018. Commission 
services  and  executive  agencies  were  invited  to  the  online  survey  through  the  Fraud 
Prevention and Detection Network (FPDnet) contacts’ list. Agencies that are not part of the 
FPDnet  were  approached  via  the  Inter-Agency  Legal  Network  (ILAN)  list48  and  other  EU 
IBOAs49 were contacted via usual OLAF's contact points. 

47 No authorities from the following Member States participated in the stakeholder consultation survey: Belgium, Denmark, 
Hungary, Italy, Ireland, Malta and United Kingdom. 
48  This  concerned  the  following  agencies:  ACER,  CEDEFOP,  CPVO,  EASA,  EASO,  EBA,  ECDC,  ECHA,  ECSEL  JU, 
EDA, EFSA, EIGE, EIT, EMA, EMCDDA, ERA, ETF, EU-OSHA, Eurofound, F4E, FRA, FRONTEX, GSA, IAS, IMI JU, 
OHIM, Eurojust, Europol 
49  This  concerned  the  following  IBOAs:  EESC,  ECA,  EDPS,  ECB,  EIB,  EU  Ombudsman,  CJEU,  CoR,  the  European 
Parliament and the Council. 

32 

 
                                                            
 
From the total of 28 replies received from the IBOAs, 14 came from different decentralised 
agencies50 and 10  from different services  of the European Commission.  In  addition, replies 
were received from Eurojust, the European Ombudsman, and the European Committee of the 
Regions.  The  European  Data  Protection  Supervisor  (EDPS)  and  one  Commission  service 
informed that they had no opinion to offer to answer the survey questions. The EDPS did not 
take  part  in  the  online  survey  and  submitted  its  views  separately  in  writting.  Table  A2.2 
provides an overview of the IBOAs that participated in the survey. 

Table A2.1: Overview of Member States respondents 
MS 
1  Austria 
Austria 

2 

3  Austria 
4  Bulgaria 
5  Bulgaria51 

6  Bulgaria 

name of the organisation 
Ministry of Finance 
Bundesministerium für Land- und Forstwirtschaft, Umwelt und 
Wasserwirtschaft 
Federal Ministry of Finance 
Ministry of Labour and Social Policy 
AFCOS 
Ministry of the Regional Development and Public Works  
Directorate General “Strategic Planning and Regional Development 
Programmes”, MA of the Operational Programme "Regions in Growth"  
Service for Combating Irregularities and Fraud 
Treasury of the Republic of Cyprus  

7  Croatia 
8  Cyprus 
9  Czech Republic  Ministry of Finance 
10  Czech Republic  General Prosecutor´s Office 
11  Czech Republic  Ministry of Finance 
12  Estonia 
13  Estonia 
14  Finland 
15  Finland 
16  France 
17  Germany 
18  Greece 
19  Greece 
20  Greece 

Agricultural Registers and Information Board 
Ministry of Finance  
Ministry of Finance 
National Police Board 
Secrétaire général des affaires européennes  
Federal Ministry of Justice and Consumer Protection 
Ministry of Finance, Financial & Economic Crime Unit 
AFCOS 
Certifying authority 
Ministry of Finance, State General Accounting Office, General Directorate 
of Financial Audits Planning and Evaluation of Audits Directorate 
Ministry of Finance, AFCOS and Audit Authority 
State Revenue Service 
Ministry of Justice of the Republic of Latvia 
The Ministry of Agriculture of the Republic of Lithuania 
Financial Crime Investigation Service under the Ministry of the Interior 
Inspection générale des finances 
AFCOS Luxembourg 
Netherland Douane 
Ministry of Finance, Department for Audit of Public Funds (AFCOS) 
DGAF - Directia Generala Antifrauda Fiscala 
National Anticorruption Directorate 

21  Greece 

22  Latvia 
23  Latvia 
24  Latvia 
25  Lithuania 
26  Lithuania 
27  Luxembourg 
28  Luxembourg 
29  Netherlands 
30  Poland 
31  Romania 
32  Romania 

50 2 replies were received by respondents indicating to be decentralised agencies without further specifying which agency 
they represented.  
51 Bulgaria uploaded a document containing its position 

33 

 
                                                            
 
33  Romania 
34  Romania 
35  Slovakia 
36  Slovakia 
37  Slovakia 
38  Slovakia 
39  Slovakia 
40  Slovenia 

41  Spain 

Fight Against Fraud Department - DLAF 
National Agency for Fiscal Administration 
Financial Administration 
General Prosecutor´s Office, Special Prosecutor´s Office 
Ministry of environment of the Slovak Republic  
Criminal Office of the Financial Administration 
Government Office of the Slovak Republic 
Budget Supervision Office of the Republic Slovenia (AFCOS) 
Servicio Nacional de Coordinación Antifraude (AFCOS)- Intervención 
General de la Administración del Estado (Ministry of Finance) 
Swedish Economic Crime Authority /Swedish AFCOS 
DG GROW52 
Executive Agency for Small and Medium-sized Enterprises53 

42  Sweden 
43 
44 
Source: Survey of Member States authorities 

Table A2.2: Overview of respondents to IBOAs' questionnaire 

Organisation 

1  Body of European Regulators for Electronic Communications 
2  Eurojust 
3  European Agency for Safety and Health at Work 

4 

European Agency for the Operational Management of Large-Scale IT Systems in the 
Area of Freedom, Security and Justice 

5  European Aviation Safety Agency 
7  European Border and Coast Guard Agency 
8  European Chemicals Agency 
9  European Commission – DG Budget 
10  European Commission – DG Communication 
11  European Commission – DG Environment 
12  European Commission – DG Human Resources and Security 
13  European Commission – DG Internal Market, Industry, Entrepreneurship and SMEs 
14  European Commission – DG Justice and Consumers 
15  European Commission – DG Neighbourhood and Enlargement Negotiations 
16  European Commission – Infrastructures and Logistics - Brussels 
17  European Commission – Secretariat-General 
26  European Commission – Service for Foreign Policy Instruments 
18  European Committee of the Regions 
19  European Maritime Safety Agency 
20  European Medicines Agency 
6  European Monitoring Centre for Drugs and Drug Addiction 
21  European Ombudsman 
22  European Parliament 
23  European Union Agency for Law Enforcement Training 
24  European Union Intellectual Property Office 
25  Single Resolution Board 
27  Decentralised Agency (unknown) 
28  Decentralised Agency (unknown) 

52 DG GROW is a DG of the European Commission and its contact was not in the initial contacts list. 
53 EASME is an agency and its contact was not in the initial contacts list. 

34 

 
 
 
 
                                                            
 
Source: Survey of IBOAs 

A2.3.3  Results of the surveys  

The presentation of the surveys' results follows the sequence of headings as presented in the 
questionnaire.  A  number  of  questions  was  the  same  for  the  survey  targeting  the  national 
respondents  and  the  IBOAs  respondents.  For  these  questions,  the  results  are  presented 
together with clear distinction of position of national authorities and IBOAs respondents.  

OLAF-EPPO relationship 

Table A2.3 provides an overview of respondents' position on which of the general principles 
should  apply  as  guidelines  for  the  establishment  of  a  close  cooperation  between  OLAF 
and the EPPO. 

Table A2.3: General principles that should be applied as guidelines for the establishment of a close 
cooperation between OLAF-EPPO  

first row Member State 
representatives, N=44 
second row IBOA, N= 28 

Mutual cooperation based on a 
principle of sincere cooperation 

Need to ensure complementarity of 
action so that all available means are 
used to protect the EU's financial 
interests 

Need to coordinate the respective 
activities to ensure maximum added 
value for the protection of the EU 
financial interests and to avoid 
jeopardising the respective 
investigations 
Reciprocal and timely information 
about circumstances on which OLAF 
and EPPO may exercise their 
respective mandate 

Need to protect the independence of 
each body 

Exchange of information and 
strategic analysis 

Operative cooperation in specific 
investigations 

Agree 

Slightly 
agree 

Slightly 
disagree 

Disagree 

No 
opinion / 
no 
answer 

86.36 %  

9.09 % 

2.27 % 

0 % 

2.27 % 

89.29 % 

7.14 % 

81.82 %  13.64 % 

78.57 % 

17.86% 

0 % 

0 % 

0 % 

0 % 

3.57% 

0 % 

4.55 % 

0 % 

3.57% 

79.55 %  13.64 % 

4.55 % 

0 % 

2.27 % 

92.86 % 

3.57 % 

0 % 

0 % 

3.57 % 

72.73 %  15.91 % 

4.55 % 

2.27 % 

4.55 % 

82.14 % 

7.14 % 

0 % 

7.14 % 

3.57 % 

61.36 %  22.73 % 

4.55 % 

0 %  11.36 % 

57.14 %  17.86 % 

0 % 

7.14 %  17.86 % 

79.55 %  13.64 % 

2.27 % 

2.27 % 

2.27 % 

78.57 %  14.29 % 

0 % 

0 % 

7.14 % 

70.45 %  18.18 % 

0 % 

4.55 % 

6.82 % 

78.57 % 

7.14 % 

3.57 % 

0 %  10.71 % 

Source: Survey of IBOAs; survey of Member States authorities 

35 

 
 
 
According  to  86.36  %  (38)  respondents  from  the  Member  States  and  60.71  %  (17) 
respondents  from  IBOAs,  the  establishment  of  the  EPPO  requires  amendment  of 
Regulation 883/2013, the remaining 13.64 % and 39.29 % respectively did not recognise the 
need  to  amend  the  Regulation.  From  the  respondents  who  did  not  see  the  need  for  the 
amendment,  only  one  substantiated  the  position  by  indicating  that  'the  relations  between 
EPPO and OLAF do not need to be further specified except establishing a link to the EPPO 
Regulation. The focus should be on clarifying the role of OLAF and avoiding overlaps with 
the EPPO.'  

One  Member  State  respondent  pointed  out  that,  although  being  in  favour  of  amending 
Regulation 883/2013 to mirror the EPPO Regulation, the EPPO Regulation does not provide 
for  a  reciprocal  flow  of  information  between  OLAF  and  the  EPPO.  Another  Member  State 
respondent clarified that he agrees to the 'need of coordination in the respective activities to 
ensure  maximum  added  value  for  the  protection  of  the  Union’s  financial  interests  and  to 
avoid  jeopardising  the  respective  investigations'  and  to  'reciprocal  and  timely  information 
about  circumstances  on  which  OLAF  and  EPPO  may  exercise  their  respective  mandate' 
principles only to a limited extent, as OLAF is obliged to refrain from uncoordinated parallel 
investigations. 

The 60.71 % of IBOA and 86.36 % of Member State respondents that agreed to the need to 
amend the Regulation indicated which provisions should be introduced in the Regulation: 

  On  the  forwarding  information  by  OLAF  to  the  EPPO  (89.47  %  of  Member  State 

respondents / 47.06 % of IBOA respondents have chosen this option); 

  On  the  preliminary  evaluation  by  OLAF  on  allegations  report  by  IBOAs  (34.21  % 

Member State respondents / 58.82 % IBOA respondents); 

  To  ensure  complementarity  between  OLAF  and  the  EPPO  (63.16  %  Member  State 

respondents / 64.71 % IBOA respondents); 

  Mirroring  provisions  of  the  EPPO  Regulation  on  non-duplication  of  investigation 
the  possibility  of  OLAF's  complementary  or  supporting 
without  prejudice 
investigations  to  the  ones  of  the  EPPO  (71.05  %  Member  State  respondents  /  70.59  % 
IBOA respondents); 

to 

  To give effect to the EPPO Regulation enabling the EPPO to request operational support 

from OLAF (65.79 % Member State respondents / 64.71 % IBOA respondents); 

  On handling by OLAF of cases referred to it by the EPPO for administrative follow up 

(47.37 % Member State respondents / 35.29 % IBOA respondents); 

  On  exchange  of  information,  allowing  reciprocal  flow  between  OLAF  and  the  EPPO 

(65.79 % Member State respondents / 52.94 % IBOA respondents); 
  Other (13.16 % Member State respondents / 17.65 % IBOA respondents). 

There  was  strong  support  from  a  vast  majority  of  respondents  to  setting  up  a  strong 
coordination  mechanism  between  OLAF  and  the  EPPO  as  reflected  in  the  share  of 
agreement to the following types of coordination mechanisms: 

36 

 
  Ensuring that OLAF and the EPPO can verify, via hit-no-hit access to the respective case 
management systems, whether the other body is already looking at the case – 79.55 % of 
Member  State  respondents  /  82.14  %  of  IBOA  respondents  agreed  or  slightly  agreed, 
while  13.64  %  Member  State  respondents/  10.71  %  IBOA  respondents  disagreed  or 
slightly disagreed; 

  Ensuring that there is a consultation mechanism in place for the exchange of information 
with  the  EPPO  about  cases  being  considered  and  for  consultation  on  how  to  best 
coordinate  possible  investigative  activities  –  86.36  %  of  Member  State  respondents  / 
92.86  %  of  IBOA  respondents  agreed  or  slightly  agreed,  while  4.55  %  Member  State 
respondents / no IBOA respondent disagreed or slightly disagreed (7.14 % of them had 
no opinion); 

  Provide  for  mechanisms  to  refer  cases  to  OLAF  for  action  in  accordance  with  its 
mandate – 88.64 % of Member State respondents / 82.14 % of IBOA respondents agreed 
or slightly agreed, while 6.82 % Member State respondents / 3.57 % IBOA respondents 
disagreed or slightly disagreed. 

Stakeholders'  agreement  to  different  forms  of  support  that  OLAF  could  provide  to  the 
EPPO on its request differed across the proposed activities. The Member State respondents 
were  on  average  more  in  favour  of  the  different  proposed  options  in  comparison  to  the 
positions expressed by IBOAs. The following position was expressed by the respondents: 

37 

 
Table A2.4: Forms of support that OLAF could provide to the EPPO 

first row Member State 
representatives, N=44 
second row IBOA, N= 28 

Expertise and document analysis in 
complex cases 

Agree 

Slightly 
agree 

Slightly 
disagree 

Disagree 

No 
opinion / 
no 
answer 

81.82 % 

2.27 % 

6.82 % 

2.27 % 

6.82 % 

57.14 %  10.71 % 

3.57 % 

3.57 %  25.00 % 

Digital forensic operations 

61.36 % 

9.09 % 

9.09 % 

4.55 %  15.91 % 

Strategic analysis, including 
identification of risk situations and 
'hot-spots' for possible criminal 
investigations 

Facilitating coordination of competent 
national administrative and EU bodies 
in performing specific actions 
contributing to an EPPO investigation 

Facilitating coordination of specific 
actions contributing to an EPPO 
investigation involving Member States 
not participating in the EPPO 

Facilitating cooperation with 
authorities outside EU Member States 
or in international organisations 

Conducting administrative 
investigations aimed, in particular, at 
allowing recovery of EU funds or 
preventing further undue expenditure 
through administrative measures 

42.86 %  17.86 % 

3.57 % 

3.57 %  32.14 % 

59.09 %  11.36 %  11.36 % 

0 %  18.18 % 

28.57 %  32.14 % 

7.14 % 

0 %  32.14 % 

43.18 %  25.00 % 

9.09 % 

6.82 %  15.91 % 

28.57 %  25.00 % 

3.57 % 

7.14 %  35.71 % 

38.64 %  36.36 % 

4.55 %  11.36 % 

9.09 % 

39.29 %  17.86 % 

7.14 % 

3.57 %  32.14 % 

43.18 %  27.27 % 

6.82 % 

6.82 %  15.91 % 

50.00 %  17.86 % 

0 % 

0 %  32.71 % 

65.91 %  20.45 % 

0 % 

4.55 % 

9.09 % 

50.00 %  14.29 % 

7.14 % 

3.57 %  25.00 % 

Source: Survey of IBOAs; survey of Member States authorities 

An important aspect of the consultation covered the need for complementary investigations 
(while avoiding duplication) by OLAF in cases where an EPPO investigation was carried out. 
The stakeholders were asked to indicate their agreement with the possibility to complement 
an  EPPO  investigation  with  an  OLAF  investigation  in  the  following  cases  (with  indicated 
response rate, more answers were possible).  

 

 

Investigations aimed at recovery of EU funds when there is a risk of time-barring (81.82 
%  of  Member  State  respondents  /  71.43  %  of  IBOA  respondents  agreed  or  slightly 
agreed, while 11.36 % Member State respondents / 3.57 % IBOA respondents disagreed 
or slightly disagreed); 
Investigations aimed at recovery of EU funds if amounts at risk are very high (77.27 % 
Member State respondents / 57.14 % IBOA respondents agreed or slightly agreed, while 

38 

 
 
 
 

 

11.36  %  Member  State  respondents  /  10.71  %  IBOA  respondents  disagreed  or  slightly 
disagreed); 
Investigations  aimed  at  preventing  further  undue  expenditure  of  EU  funds  through 
administrative  measures  (79.55  %  Member  State  respondents  /  64.29  %  IBOA 
respondents agreed or slightly agreed, while 11.36 % Member State respondents / 3.57 % 
of IBOA respondents disagreed or slightly disagreed); 
Investigations  aimed  at  proposing  disciplinary  follow  up  when  EU  staff  is  involved 
(84.09  %  Member  State  respondents  /  67.86  %  IBOA  respondents  agreed  or  slightly 
agreed, while 9.09 % Member State respondents / 7.14 % IBOA respondents disagreed 
or slightly disagreed); 

  Conduct strategic analysis to assess the possibility that other cases may be connected to 
that  on  which  the  EPPO  is  carrying  out  its  investigation  (77.27  %  of  Member  State 
respondents  /  53.57  %  of  IBOA  respondents  agreed  or  slightly  agreed,  while  15.91  % 
Member State respondents / 10.71 % IBOA respondents disagreed or slightly disagreed). 

In addition to these question, the IBOAs' respondents were asked specific questions related to 
the  possibility  of  IBOAs'  to  request  assistance  of  OLAF  for  preliminary  evaluation  of 
information,  OLAF's  support  to  IBOAs  in  their  action  following  transmission  of 
information to the EPPO and possible channels of communication between IBOAs and the 
EPPO via OLAF.  

The  IBOA  respondents  supported  in  particular  the  possibility  of  turning  to  OLAF  to  run 
preliminary evaluation of facts raising suspicions of criminal conduct (50%) and where the 
incoming  information  is  comprehensive  but  not  as  such  conclusive  to  assess  a  possible 
criminal conduct (35.71 %). A further 28.57 % of IBOA respondents indicated the option to 
turn  to  OLAF  for  preliminary  evaluation  would  be  useful  when  it  would  be  necessary  to 
conduct a verification of the quality of the incoming information and credibility of the source; 
the same proportion judged it useful always; 25 % of IBOA respondents considered it useful 
when  it  would  be  necessary  to  collect  or  complement  available  information  as  required  by 
Article  24  of  the  EPPO  Regulation.  Four  of  them  further  substantiated  their  choice  by 
clarifying that IBOAs should be able to turn to OLAF for such a support, but it should not be 
an obligation.  

As regards the possibility of OLAF acting as intermediary between them and the EPPO 
for  the  purpose  of  preliminary  evaluation,  32.14  %  of  IBOA  respondents  considered 
establishing OLAF as an intermediary for the communication between IBOAs and the EPPO, 
while 17.86 % disagreed with such a suggestion and 39.29 % suggested that it should remain 
an option for IBOAs but should not be obligatory.  

As  regards  OLAF's  support  to  IBOAs  in  their  action  following  transmission  of 
information  from  the  EPPO  to  IBOAs,  the  IBOA  respondents  considered  such  assistance 
useful in cases as follows (2 IBOAs did not answer this question, which corresponds to 7.14 
%): 

39 

 
  Advise  or  assist  with  fact-finding  to  clarify  the  need  for  possible  precautionary  or  other 
administrative  measures  to  be  taken  to  protect  the  financial  interest  of  the  Union  – 
46.43%; 

  Opening  an  administrative  investigation  for  the  purpose  of  assisting  IBOAs  in  the 
recovery  of  sums,  in  determining  administrative  measures  or  with  a  view  to  initiate 
disciplinary action – 32.14 %; 

  Other – 14.29 %. 

As  regards  establishing  a  communication  channel  between  IBOAs  and  the  EPPO  via 
OLAF  for  the  purpose  of  the  possible  measures  to  be  taken  by  IBOAs  following 
information  communicated  by  the  EPPO,  53.57  %  or  IBOAs'  respondents  agreed  this 
should be the case, 39.29 % disagreed, while 7.14 % did not answer. 

Improved effectiveness of OLAF's investigations  

According  to  47.73  %  (21)  of  the  Member  State  respondents  OLAF's  ability  to  conduct, 
and  where  necessary  enforce,  investigative  activities,  in  particular  on-the-spot  checks 
and  inspections  and  digital  forensic  operations,  in  a  coherent  manner  across  the 
Member States should be improved. 25 % (11) of the respondents replied that there is no 
need for change of the current provisions; 27.27 % (12) of the respondents did not express an 
opinion. The Member State respondents who thought there was no need to change the current 
provisions guiding OLAF's investigative activities argued that the established system works 
well under the current provisions, which are appropriate and sufficient. One of the Member 
State respondents suggested that, to address the issue of on-the-spot checks and inspections, 
Regulation  2185/96  should  be  amended  rather  than  Regulation  883/2013.  A  Member  State 
respondent  also  pointed  out  that  OLAF  should  not  have  more  powers  in  administrative 
investigations  than  national  administrative  authorities,  indicating  that  extended  OLAF's 
powers  could  cause  infringements  to  its  Constitution.  Another  Member  State  respondent 
highlighted  that  respecting  the  rights  and  guarantees  of  individuals  in  accordance  with 
national  legislation  enhances  the  probative  value  of  OLAF  collected  evidence.  Four 
respondents out of those who did not see a need for changing the current provision stated that 
there  were  no  shortcomings  in  the  conduct  of  on-the-spot  checks  and  inspections  on  their 
national territory and that national provisions are sufficient. 

Those  Member  State  respondents  that  held  the  view  that  OLAF's  ability  to  conduct,  and 
where necessary enforce, investigative activities in a coherent manner across the Member 
States  should  be  improved  considered  that  this  could  be  achieved  through  the  following 
options: 

  Granting powers to OLAF which are not dependent on the national law of the Member 
State  concerned  (52.38  %  of  Member  State  respondents  from  those  who  agreed  to  the 
need to improve the current situation); 

  Confining  the  references  to  national  law  to  cases  in  which  coercion  is  required  to 

perform an investigative activity (23.81 %); 

40 

 
  Clarifying the duties of national authorities to assist OLAF to ensure a level of assistance 
that  enables  OLAF  to  conduct  on-the-spot  checks  and  inspections  and  digital  forensic 
operations on their territory (85.71 %); 

  Granting  OLAF  sanctioning  powers  in  the  form  of  fines/penalties  vis-à-vis  economic 
operators in the case of refusal or obstruction during on-the-spot checks and inspections 
and digital forensic operations (47.62 %). 

The Member State respondents that indicated that the ability to enforce OLAF’s powers in 
on-the-spot checks and inspections and digital forensic operations should be improved 
(18) by clarifying the duties of national authorities to assist OLAF considered the following 
possibilities:  

  To ensure access to premises of the economic operators (77.78 %); 
  To obtain judicial warrant where necessary (72.22 %); 
  To impose penalties for opposing enforcement measures in breach of national law (50 %) 
  To seal the premises, books, records, electronic data (55.56 %); 
  To  ensure 

level  of  assistance 

is  provided 

for  all  areas  of  

the 
expenditure/revenues (44.44 %); 

same 

  To  require  the  assistance  of  an(other)  enforcement  authority  (as  police  or  equivalent)  if 

the authority assisting OLAF does not have itself the necessary mandate (83.33 %); 

  To  require  Member  States  to  notify  to  OLAF  the  competent  enforcement  authorities  and 
any relevant provisions of national law in order to facilitate the assistance (61.11 %); 

  Other (5.56 %). 

To  complement  the  above  listed  options  for  Member  State  assistance  during  on-the-spot 
checks  and  inspections  and  digital  forensic  operations,  imposing  certain  duties  on  OLAF 
were considered by the Member State respondents (9.09 % (4) did not answer): 

  To notify in advance the competent national authorities – 56.82 %; 
  To cooperate with the national authorities in the preparation phase of on-the-spot checks 

and inspections – 84.09 %; 

  Other – 4.55 %. 

As regards the admissibility of OLAF's reports as evidence in national proceedings, 50 % 
of the Member State respondents agreed that it should be improved, while 34.09 % did not 
see the need to change the current situation and 15.91 % of the respondents had no opinion. 
Two respondents did not see the need to change the current provision as OLAF reports are 
fully admissible in national judicial proceedings of their country. It was also argued that the 
national prosecutor is independent in its decisions and can renew an investigation depending 
on the needed evidence.  

Among  the  50%  of  Member  State  respondents  that  considered  the  admissibility  of  OLAF's 
reports as evidence in  national proceedings should  be improved the following  options were 
considered as appropriate: 

41 

 
  Require  Member States to clarify to the administrative report of which national authority 

OLAF's reports are assimilated (9.09 %); 

  Require Member States to provide a minimum standard of evidence for the admissibility of 

OLAF reports in administrative and judicial proceedings (31.82 %); 

  Further regulate the use as evidence in national proceedings of all information collected 
by OLAF during investigations (in on-the-spot checks and inspections and digital forensic 
operations, in interviews, in statements etc.) (31.82 %); 

  Provide  for  the  automatic  admissibility  of  OLAF’s  reports  in  all  national  proceedings 
other than criminal proceedings (i.e. administrative and civil law proceedings) (27.27 %). 

The Member State respondents were also asked about their opinion whether the cooperation 
and  information  exchange  between  OLAF  and  national  judicial  authorities  could  be 
improved.  While  52.27  %  agreed,  20.45  %  did  not  agree  and  27.27  %  did  not  have  any 
opinion.  Those  who  agreed  that  the  cooperation  and  information  exchange  should  be 
improved further indicated that this could be done by: 

 

 

Introducing in the Regulation specific provisions for the exchange and use of information, 
by OLAF, with judicial authorities of Member States – 73.91 %;  
Introducing an obligation for the Member States to ensure that the exchange of information 
with  OLAF  is  possible  in  the  framework  of  ongoing  national  proceedings  and  OLAF 
investigations – 65.22 %; 

  Other – 4.35 %; 
  No opinion – 8.7 %. 

Internal investigations 

IBOAs  respondents  were  asked  if  OLAF's  ability  to  conduct  investigative  activities  (in 
particular inspection of premises) in internal investigations should be further detailed in 
the  Regulation.  32.14  %  agreed,  17.86  %  disagreed,  39.29  %  did  not  have  an  opinion  and 
10.71 % did not answer. 

One IBOA respondent that was in favour of clarification asked for provision on the procedure 
of inspection, forensic operations and IT aspects. It was also suggested by one respondent to 
clarify  the  terms  "immediate"  and  "unannounced"  access.  Three  representatives  of  IBOAs 
explained that there is a need for further clarification of the protection of fundamental rights 
of  the  person  that  is  subject  of  an  investigation.  Further,  an  introduction  of  a  complaints 
mechanism and clarification of the role of the Supervisory Committee was suggested by one 
respondent.  

A similar question on the need to further detail in the Regulation  OLAF's ability to carry 
out digital forensic operations in internal investigations was answered positively by 28.57 
%  of  IBOA  respondents,  while  21.43  %  did  not  see  the  need,  39.29%  had  no  opinion  and 
10.71 % did not answer. 

42 

 
35.71 % (10) of IBOA respondents thought that the cooperation and information exchange 
between IBOAs and OLAF should be submitted to more coherent rules as regards internal 
and external investigations. 10.71 % disagreed, 46.43 % had no opinion and 7.14 % did not 
answer. One of the IBOAs which was not in favour of further alignment explained that nature 
of  internal  and  external  investigations  is  different.  Another  IBOA  elaborated  that  also  the 
obligations of the persons concerned differ depending on the investigation. 

OLAF's  powers  to  access  information  in  IBOAs  differ  from  internal  compared  to 
external  investigation.  The  IBOA  respondents  that  agreed  to  the  need  to  apply  more 
coherent  rules  for  internal  and  external  investigations  (10)  were  therefore  asked  if  powers 
should be aligned. 30 % (3) of IBOAs respondents agreed, 30% disagreed and 40 % had no 
opinion. At the same time, 60 % (6) of IBOAs respondents believed that, for a more coherent 
and  effective  legal  framework  for  internal  and  external  investigation,  the  duty  of  IBOAs' 
staff  to  cooperate  with  OLAF  should  be  extended  to  external  investigations,  while  it 
currently applies  only  in internal  investigations. 20 %  (2)  of IBOAs respondents disagreed, 
the same percentage had no opinion and did not answer the question. 

Similarly, the duty of IBOAs to report on follow-up to OLAF's recommendations is only 
provided for in internal investigations. 50 % (5) of IBOAs respondent agreed that this duty 
should be extended to external investigations. 30 % (3) did not agree, 20 % (2) did not have 
an opinion. 

From the total number of 28 IBOAs respondents, 39.29 % of the respondents considered the 
current cooperation between OLAF and IBOAs for the purpose of precautionary measures 
as  sufficient.  21.43 % of the respondents held the  view that the rules are not sufficient and 
39.29 % of the respondents had no opinion. It was suggested by one IBOA representative to 
enhance cooperation between OLAF and IBOAs to define the scope of these measures and to 
introduce stricter deadlines in the cooperation. 

21.43  %  of  the  respondents  deemed  the  current  cooperation  between  OLAF  and  IBOAs  as 
regards  the  calculation  of  the  financial  damage  to  the  EU  budget  and  the  follow-up  to 
OLAF's  financial  recommendations  as  sufficient.  17.86  %  of  the  respondents  had  the 
opposite view and 60.71 % of the respondents held no opinion. As further measures, a post-
investigation meeting was suggested. Further, IBOAs would need to access OLAF evidence 
on  a  need-to-know  basis  in  order  to  motivate  the  actions  taken  based  on  an  OLAF 
recommendation. 

Similarly,  cooperation  between  OLAF  and  IBOAs  prior  to  issuing  disciplinary 
recommendations  and  during  their  follow  up  was  considered  sufficient  by  21.43  %  of 
IBOA  respondents.  The  same  percentage  of  respondents  considered  it  insufficient,  while 
46.43  %  held  no  opinion  and  10.71  %  did  not  respond.  Cooperation  prior  to  issuing 
administrative  recommendations  and  during  their  follow  up  was  assessed  as  sufficient  by 
17.86 % of IBOA respondents, insufficient by 14.29 %. 60.71 % held no opinion and 7.14 % 
did not answer the question.  

43 

 
Anti-fraud Coordination Services (AFCOS) 

Half  of  the  Member  State  respondents  indicated  that  the  role  and  mandate  of  AFCOS 
should be further clarified in order to allow strengthening cooperation and improving 
homogeneity of the assistance AFCOS provide to OLAF in the Member States. 27.27 % 
of the Member State respondents did not see a need to change the current provision and 22.73 
% of the respondents had no opinion.  

Some  of  the  Member  State  respondents  further  substantiated  their  position  on  the  need  to 
further clarify the role and mandate of AFCOS:  

  From  those  who  agreed  to  the  need  to  clarify  AFCOS-related  provisions,  10  suggested 
specifying the minimum requirements of the competences and responsibilities of AFCOS 
in  the  Regulation  and/or  provided  examples  of  what  these  could  cover.  One  of  the 
respondents  acknowledged  the  need  to  further  specify  the  relevant  provisions,  however, 
pointed  out  to  the  difficulties  such  modifications  are  likely  to  face  when  negotiating  the 
proposal. 

  A  respondent  stated  that  AFCOS  powers  should  be  broadened  and  deepened  as  regards 
'the mutual administrative assistance and exchange of information between Member States 
on  fraud  suspected  EU  funds  related  cases'  to  better  grasp  the  cross-border  cases.  The 
responded pointed out that, in comparison to the mutual assistance framework for criminal 
investigations,  the  mutual  assistance  legal  framework  for  administrative  investigation  is 
weak, which leads to difficulties when requesting in particular banking information from 
other Member States.  

  One respondent pointed out that 'appropriate personnel should be available to AFCOS'. 
  Two Member State respondents called for more cooperation between AFCOS, one of them 
suggesting  this  should  be  done  with  support  by  OLAF.  Three  further  respondents  stated 
that the existing provisions on AFCOS are sufficient and the existing differences among 
the  AFCOS  would  be  better  solved  through  a  close  network.  There  was  also  the  view 
expressed  that  an  administrative  cooperation  arrangement  could  be  a  tool  for  more 
clarifications.  

  A  Member  State  respondent  suggested  that  the  AFCOS-related  issues  could  be  solved 

through soft law rather than in the amended Regulation. 

  One Member State respondent noted that the structure of AFCOS is adjusted towards the 
existing  administrative  structure  of  the  respective  Member  State.  These  are  different  in 
every  Member  State  and  the  competences  of  AFCOS  depend  on  the  structure  to  which 
AFCOS  are  affiliated.  To  accommodate  these  differences,  the  Regulation  should  be 
sufficiently broad. The objective should rather be that AFCOS mobilise their partners and 
facilitate the cooperation with OLAF.  

  A Member State respondent indicated that AFCOS' powers laid down in national law are 

limited by the Constitution in the concerned Member State.  

  A  Member  State  respondent  called  for  adding  a  reference  to  the  Regulation  that  OLAF 
should forward to the AFCOS the reports and recommendation adopted by OLAF at the 
end of its investigations.  

44 

 
  A Member State respondent called for specifying a role for AFCOS vis-à-vis the EPPO. 

Coordination activities 

As  regards  the  modalities  of  coordination  by  OLAF  of  Member  States'  activities  or  the 
procedures  applicable  in  the  so  called  'coordination  cases',  25  %  of  Member  State 
respondents recognised the need to further specify the provisions, while 34.09 % did not see 
the need to change the current  situation and 40.91 %  had no opinion or did  not  answer  the 
question. 

VAT 

On the question  how  OLAF's role and mandate as regards VAT  should  be  clarified, the 
following responses from Member State respondents were collected: 

  Align  the  definition  of  the  financial  interests  of  the  Union  across  Union  instruments 

(40.91 % Member State respondents / 39.29 % IBOA respondents); 

  Align  OLAF's  investigative  powers  in  the  field  of  VAT  with  its  powers  in  other  areas 
(e.g. allow the conduct by OLAF of on-the-spot checks on VAT) (36.36 % Member State 
respondents / 46.43 % IBOA respondents ); 

  Provide  OLAF  with  cooperation  tools  with  partners  currently  not  mentioned  in  the 
OLAF Regulation (e.g providing a clear legal base for cooperation with Eurofisc) (38.64 
% Member State respondents / 42.86 % IBOA respondents); 

  There  is  no  need  to  change  the  current  situation/provisions  (15.91  %  Member  States 

respondents / 10.71 % IBOA respondents); 

  No opinion (34.09 % Member State respondents  / 39.29 % IBOA respondents); 
  Other (2.27 % of Member State respondents / 7.14 % IBOA respondents). 

Two  respondents  were  of  the  opinion  OLAF  was  not  competent  to  investigate  VAT.  One 
further respondent indicated that 'change of current situation is politically not acceptable'. 

Access to bank account information 

Table  A2.5  provides  an  overview  of  Member  State  respondents'  position  on  what  kind  of 
bank  account  information  should  be  available  to  OLAF.  Two  Member  State  respondents 
specified that OLAF should not receive more extensive powers (under conditions that provide 
fewer safeguards) than national judicial authorities. One respondent held the view that OLAF 
should access information that it needed while ensuring secrecy.  

While 34.09 % of Member State respondents agreed or slightly agreed that OLAF should be 
able  to  request  and  obtain  the  bank  account  information  directly  from  banks  or  from 
national centralised bank account registries, 63.64 % of Member State respondents agreed or 
slightly  agreed  the  access  should  be  indirect  via  national  authorities,  25  %  thought  that 

45 

 
OLAF should not be provided with access to any bank account information54. However, it is 
not clear from the responses why the percentage of respondents differs in granting no access 
to bank account information for OLAF under this and previous question.  

Table A2.5: Type of bank account information that OLAF could access 

(N = 44) 

Agree 

Slightly 
agree 

Disagree 

Slightly 
disagree 

No 
opinion / 
no 
answer 
6.82 %  22.73 %  13.64 % 

43.18 %  13.64 % 

the  opening  and 

Information on the bank accountholder 
and persons having a right on it  
Information  on 
closing dates of the account 
Information on transactions 
Information  on  bank  accounts  of 
individuals/economic 
operators 
already held by EU IBOAs 
No  access 
information should be provided  
Source: Survey of IBOAs; survey of Member State authorities 

to  any  bank  account 

40.91 % 

47.73 % 
38.64 % 

9.09 %  11.36 %  20.45 %  18.18 % 

6.82 % 
6.82 % 

13.64% 
22.73% 
9.09 % 
9.09 %  22.73 %  22.73 % 

20.45 %  11.36 % 

6.82 %  38.64 %  22.73 % 

A2.3.4  Workshop  

A  dedicated  expert  meeting  was  also  organised  with  representatives  of  the  Network  of 
Associations for European Criminal Law and the Protection of the Financial Interests of the 
EU, which represents academics and practitioners in the area of the protection of the Union’s 
financial  interests,  and  the  European  Criminal  Bar  Association  on  15  December  2017.  The 
workshop  was  dedicated  to  the  discussion  of  three  distinct  topics  –  adaptation  to  the 
establishment of the EPPO; enhancing effectiveness of OLAF's investigative function as 
regards investigative powers and their enforcement; and admissibility of OLAF reports in 
national proceedings.  

  Adaptation to the establishment of the EPPO 

On the first topic, the experts agreed on the need to amend the Regulation in order to ensure 
that  OLAF  and  EPPO  can  exercise  their  respective  mandates.  The  workshop  explored 
possibilities for OLAF to support the EPPO while not duplicating its work.  

Different  possibilities  were  discussed  for  the  smooth  cooperation  between  OLAF  and  the 
EPPO.  The  participants  agreed  generally  on  the  importance  of  guaranteeing  an  open, 
continuous, reciprocal and flexible channel of communication between OLAF and the EPPO, 
especially  at  the  case  selection  stage,  to  exchange  information  and  ensure  non-duplication. 

54 Note that the answers were not mutually  exclusive, so the respondents were able to agree both with giving 
OLAF direct and indirect access to the bank account information, therefore the sum of the positive responses is 
not 100%). 

46 

 
                                                            
 
There  was  agreement  on  the  need  for  legal  certainty  through  permanent  structures.  For 
instance,  the  creation  of  an  ad-hoc  task  force  that  would  decide  on  the  nature  of  an 
investigation was suggested by a participant.  There was also agreement that the Regulation 
should  establish  high  level  principles  for  the  cooperation,  while  maintaining  sufficient 
flexibility for the EPPO and OLAF to find the best modalities of cooperation and of deciding 
the best handling of a given case (through criminal or administrative action, or both).  

There was a general understanding between the participants for the need of complementary 
administrative investigations by OLAF in specific circumstances, in particular for a different 
purpose than judicial proceedings (financial recovery and other administrative measures) or 
in cases where the criminal aspect represents only a fraction of the investigated case. It was 
suggested  to  create  a  mechanism  allowing  such  complementary  investigations,  while 
respecting the principles enshrined in Article 101 of the EPPO Regulation.  

The  issue  of  procedural guarantees  in  criminal  proceedings  was  highlighted  in  cases  where 
OLAF  would  support  the  EPPO  with  administrative  investigations.  The  participants  agreed 
that OLAF could contribute to the EPPO investigations only in the context of its mandate and 
that the value of its contribution would remain at the level of administrative investigations. 

  Enhancing effectiveness of OLAF's investigative function 

Concerning the second topic, the experts considered the effectiveness of OLAF investigations 
and  the  different  possibilities  to  strengthen  the  conduct  and  the  enforcement  of  OLAF's 
investigative powers. It was suggested to make the power to conduct on-the-spot checks and 
inspections subject  to  EU  law  and reducing  the impact  of  national law.  In  the case  of  non-
cooperation, several possible solutions were  suggested:  the possibility of penalty  payments, 
the strengthening of the obligation of assistance by the national authorities, or the exclusion 
of  the  beneficiary  from  future  payments  in  case  of  non-cooperation  during  an  on-the-spot 
checks and inspections.  

  Admissibility of OLAF reports in national proceedings 

Finally, the participants exchanged views on possible ways of improving the admissibility of 
OLAF's reports as evidence in national judicial proceedings. The issue of existing procedural 
safeguards in criminal proceedings against the safeguards applied in OLAF's administrative 
investigations was highlighted. A number of possible solutions was suggested: 

  Introducing  a  European  minimum  standard  for  the  report  that  would  enclose  minimum 

standards and safeguards;  

  Administrative cooperation could establish interlocutors that would facilitate meeting the 

national standards required for the report to be approved for national proceedings;  

  There was also reference to the "magistrates" unit that OLAF had in the past that provided 

information how OLAF reports could be used in national proceedings. 

A2.4  Views of other interested parties and inter-institutional discussions 

The following discussions were taken into account in the preparation of the proposal. 

47 

 
A2.4.1  Opinion 2/2017 of the Supervisory Committee of OLAF 

The Supervisory Committee Opinion 2/2017 accompanied the Commission evaluation report 
on the application of Regulation 883/2013. A brief summary of the opinion, which was taken 
into account in the preparation of the proposal, follows. 

An  amendment  to  the  Regulation  should  unify  grounds  for  all  OLAF  investigations, 
including  a  code  of  OLAF’s  powers,  in  order  to  avoid  fragmentation  and  interpretation 
difficulties,  and 
law  and  procedural  guarantees.  National 
administrative  authorities  should  be  obliged  to  provide  immediate  assistance  to  OLAF  if 
coercive measures are needed to enforce OLAF competences.  

to  strengthen  clarity  of 

The  Supervisory  Committee  asks  for  tools  enabling  OLAF  to  investigate  online  crime,  for 
access to bank accounts and money transfers, as well as access to Eurofisc and VIES data in 
the  area  of  VAT.  Provision  should  also  be  made  for  the  exchange  of  information  with 
Financial Intelligence Units. 

The  Commission  should  explore  the  possibility  of  expanding  OLAF’s  competences, 
especially into the closely related field of protection of intellectual property rights in relation 
to imports into the EU single market.  

The Supervisory Committee believes that the possibility to exercise the right to an effective 
judicial review and strengthening the procedural guarantees would enhance admissibility of 
evidence collected in OLAF investigations in national administrative or criminal proceedings. 
The Committee questions the need of the Controller of procedural guarantees. It asks for the 
appointment of a fundamental right and procedural guarantees officer for OLAF or to expand 
the Committee from 5 to 7 members. 

The Supervisory Committee considers that the details of the interactions between OLAF and 
the EPPO should not be left for bilateral working arrangements but be set out clearly in the 
revised  OLAF  Regulation.  The  Committee  raises  some  concerns  about  the  practical 
implementation  of  the  provision  that  allows  the  EPPO  to  ask  for  OLAF's  assistance,  given 
that  OLAF's  assistance  would  be  administrative  in  nature,  while  the  EPPO  will  conduct 
criminal investigations. The Committee proposes an alignment of the procedural guarantees 
for OLAF's investigations to those of the EPPO, including judicial oversight.  

The Supervisory Committee considers it should play a significant role in creating structural, 
operational  and  competence  links  between  OLAF  and  its  partners  in  the  new  system  of 
protection of the EU’s financial interests. 

The Supervisory Committee calls for clarification of its role and mandate. The Opinion calls 
for  continuous  access  for  the  Committee  and  its  secretariat  to  general  and  specific  case-
related data in OLAF's databases and to information on OLAF intranet. This should include 
access to OLAF premises for the members. If the Supervisory Committee requests additional 
information on investigations, the Regulation should set a time limit in which access to such 
information  and  documents  in  a  case  file  should  be  provided  by  OLAF,  as  well  as  a 
resolution mechanism if the access is not provided or denied.  

48 

 
The  Supervisory  Committee  calls  for  reconsidering  the  wide  discretion  granted  to  the 
Director  General  of  OLAF  to  apply  criteria  for  opening  of  investigations  to  prevent  any 
potential abuse of discretion or undue external pressure on the OLAF. It asks for balancing it 
by  the  obligation  of  regularly  inform  the  Supervisory  Committee  of  his  reasoned  decision 
when the Director General decides not to open an investigation. 

A2.4.2  Council Outcome of Proceedings  

Following discussions in the Council working party on combatting fraud (GAF), the Council 
has  expressed  its  position  on  the  revision  of  the  Regulation  through  an  ‘outcome  of 
proceedings  on  the  Commission's  report  on  the  evaluation  of  the  application  of  Regulation 
(EU,  Euratom)  No  883/2013’,  endorsed  by  COREPER  on  16  February  2018.  It  asks  the 
Commission to focus primarily on the topics that are necessary to enable OLAF to cooperate 
smoothly with EPPO without, however, extending the competences and powers of OLAF. In 
addition, it lists a number of topics that certain delegations would wish to see addressed in the 
proposal:  AFCOS;  the  preparation  and  implementation  of  on-the-spot  checks;  the  rules  on 
admissibility of evidence; the right of access for the Supervisory Committee to information 
held by OLAF; and the dismissal of the Director-General. 

A2.4.3  Justice and Home Affairs Council 

The issue of EPPO’s cooperation with partner agencies and offices, in particular with OLAF 
and Eurojust, was the subject of discussions by the Justice Ministers of the Member States, 
first  at  their  Informal  meeting  in  Sofia  on  26  January  2018,  then  in  the  Justice  part  of  the 
Justice and Home Affairs Council in Brussels on 8-9 March 2018. 

In  particular  for  what  concerns  cooperation  with  OLAF,  Ministers  broadly  underlined  that 
this  cooperation  is  essential  and  should  be  based  on  a  clear  division  of  competences  and 
responsibilities,  on  equality  and  on  complementarity  without  any  kind  of  competition  or 
duplication  of  work;  it  was  also  underlined  how  the  EPPO  should  conclude  in  full 
transparency service level agreements/working arrangements in this respect. Several Member 
States warned that the EPPO should not have a negative impact or diminish the role of OLAF 
or Eurojust, which should be treated as privileged partners and not as an executive branch of 
EPPO.  

As  regards  the  revision  of  the  OLAF  Regulation,  several  Ministers  recalled  that  the 
provisions  of  the  EPPO  Regulation  should  now  be  mirrored  in  the  revision  of  Regulation 
883/2013. This revision should also prevent any duplication of procedures and deal with the 
information and reporting obligations, access to and exchange of information and the scope 
of the OLAF supporting role. 

The  revision  of  Regulation  883/2013  was  also  discussed  during  a  meeting  of  the 
Coordinating Committee in the area of police and judicial cooperation in criminal matters on 
19 February 2018. Some delegations highlighted the need for OLAF to report immediately to 
EPPO cases on which the latter may exercise competence, while others stressed the need to 
allow OLAF to discern the available information. Questions were also raised concerning the 

49 

 
admissibility, in criminal proceedings by the EPPO, of evidence collected by OLAF prior to 
reporting  a  case  to  the  EPPO.  Emphasis  was  also  placed  by  some  delegations  on  the 
importance of a proper system for exchange of information between the EPPO and OLAF. 

50