COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to Article 294(6) of the Treaty on the Functioning of the European Union concerning the position of the Council on the adoption of a Regulation amending Regulation (EU, Euratom) No 883/2013, as regards cooperation with the European Public Prosecutor's Office and the effectiveness of the European Anti-Fraud Office investigations
Date: 2020-12-08
Institutions: European Anti-Fraud Office, European Commission
Subjects: EU control, European Anti-fraud Office, European Public Prosecutor's Office, administrative procedure, criminal procedure, fraud against the EU, interinstitutional cooperation (EU), judicial cooperation in criminal matters in the EU

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   EUROPEAN COMMISSION  Brussels, 8.12.2020  COM(2020) 805 final 2018/0170 (COD)  COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT  pursuant to Article 294(6) of the Treaty on the Functioning of the European Union  concerning the position of the Council on the adoption of a Regulation amending Regulation (EU, Euratom) No 883/2013, as regards cooperation with the European Public Prosecutor's Office and the effectiveness of the European Anti-Fraud Office investigations    
 
2018/0170 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the 

position of the Council on the adoption of a Regulation amending Regulation (EU, 
Euratom) No 883/2013, as regards cooperation with the European Public Prosecutor's 
Office and the effectiveness of the European Anti-Fraud Office investigations 

1. 

BACKGROUND 

Date of transmission of the proposal to the European Parliament and 
to the Council 
(document COM(2018) 338 final – 2018/0170 COD): 

24 May 2018 

Date of the Opinion of the Court of Auditors: 

15 November 2018 

Date of the position of the European Parliament, first reading: 

16 April 2019 

Date of adoption of the position of the Council: 

4 December 2020 

2. 

OBJECTIVE OF THE PROPOSAL FROM THE COMMISSION 

The aim of this proposal is: 

(a)  To  adapt 

the  operation  of 

the  European  Anti-Fraud  Office  (OLAF) 
investigations to the establishment of the European Public Prosecutor’s Office 
(EPPO) in view of ensuring maximum complementarity; and 

(b)  To  enhance  the  effectiveness  of  OLAF’s  investigative  function  as  regards  a 
number  of  specific  issues,  including  on-the-spot  checks,  inspections,  and 
assistance  of  national  authorities,  bank  account  information,  admissibility  of 
OLAF-collected  evidence,  anti-fraud  coordination  services  and  coordination 
activities. 

3. 

COMMENTS ON THE POSITION OF THE COUNCIL 

The position of the Council as adopted in the 1st reading fully reflects the agreement reached 
in  the  trilogue  between  the  European  Parliament,  the  Council,  and  the  Commission,  as 
concluded on 26 June 2020. The main points of this agreement include the following: 

– 

it  sets  up  a  framework  for  close  relationship  between  OLAF  and  the  EPPO, 
based  on  sincere  cooperation,  complementarity  of  their  mandates,  and 
coordination  of  their  action;  in  particular,  it  allows  OLAF  to  open,  in  duly 

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justified  cases,  and  if  the  EPPO  does  not  object  within  a  deadline, 
complementary investigations  to  those of the EPPO to  facilitate recovery, the 
adoption of administrative precautionary measures or other actions in a timely 
manner; it also provides that, when OLAF supports the EPPO,  the EPPO and 
OLAF must ensure, acting in close cooperation, that the procedural safeguards 
of Chapter VI of the EPPO Regulation are observed; 

it  enhances  OLAF’s  investigative  powers  by  allowing  the  Office  to  request 
bank account information – namely to registries of account holders and, where 
strictly  necessary,  to  transactions  –  through  the  cooperation  of  national 
authorities,  under  the  same  conditions  that  apply  to  national  competent 
authorities, and subject to a reasoned request justifying its appropriateness and 
proportionality; 

it  strengthens  the  procedural  rights  of  the  person  concerned  by  an  OLAF 
investigation  by  allowing  this  person  to  request  and  have  access  to  the  final 
report,  but  only  with  the  consent  of  all  recipients  of  that  report,  and  in 
accordance with the applicable confidentiality and data protection rules;  

it  adds  another  layer  of  protection  of  the  procedural  rights  and  guarantees  by 
establishing a Controller of procedural guarantees, administratively attached to 
the Supervisory Committee and appointed by the Commission after consulting 
the  European  Parliament  and  the  Council,  who  is  tasked  with  reviewing 
complaints  lodged  by  persons  concerned  by  the  investigation  (regarding  the 
Office’s compliance  with  procedural  guarantees  and with  the rules applicable 
to its investigations) and is able to issue recommendations to the Office on how 
to resolve the issue raised in the complaint; and 

it allows OLAF, in the course of its investigations, to access privately- owned 
devices  used  for  work  purposes  if  it  has  reasonable  grounds  to  suspect  that 
their  content  may  be  relevant  for  the  investigation;  in  external  investigations, 
the access will be under the same conditions and to the same extent as national 
authorities  are  allowed  to  investigate  into  private  devices;  in  internal 
investigations, access shall be based on the internal rules to be adopted by each 
institution, body, office or agency concerned with regard to its respective staff 
and Members of the institution. 

The Commission supported the agreement reached at the trilogue, which paves the way for a 
fruitful cooperation between OLAF and the EPPO, and which enhances the effectiveness of 
OLAF  investigations  in  several  respects.  In  this  regard,  it  achieves  the  objectives  of  the 
Commission  proposal.  The  Commission  maintained  concerns  regarding  certain  elements  of 
the agreement. In particular, it regretted that the higher procedural guarantees applicable when 
OLAF  supports  the  EPPO  entail  no  improved  admissibility  of  OLAF-collected  evidence  in 
subsequent criminal procedures, and that the new provisions on access to private devices were 
not  accompanied  by  procedural  rules  in  the  Regulation  itself.  However,  the  Commission 
signalled it could accept these elements for the purposes of an overall final agreement. 

4. 

CONCLUSION 

The Commission accepts the position taken by the Council. 

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