OPINION No 8/2018 on the Commission's proposal
on amending OLAF Regulation (EU, Euratom) No 883/2013 as regards
cooperation with the European Public Prosecutor's Office and the
effectiveness of OLAF investigations.
The Court of Auditors notes that the proposal reflects
well the principles which govern the cooperation between OLAF and
the EPPO: close cooperation, exchange of information,
complementarity and non-duplication of work. However, certain
weaknesses were identified in this respect.
The Court welcomes a limited number of targeted
measures to help improve effectiveness:
- clarification as to when national and European law
applies during OLAF on-the-spot checks, with the duty for national
authorities to assist OLAF;
- access for OLAF to bank account information, although
this will largely depend on the assistance provided by national
authorities;
- strengthened admissibility of evidence collected by
OLAF, albeit only in non-criminal cases;
- clarification that investigations into Value Added Tax
(VAT) matters are included in OLAF's mandate.
The Court considers that the above changes do not
resolve the overall issue of the effectiveness of OLAF's
administrative investigations. Recognising this, the
Commission plans to have a more comprehensive modernisation of the
OLAF framework. However, there is currently neither a time-plan for
such further reform of OLAF nor a clear identification of which
issues would be addressed.
Given the proposal's limitations as regards the
overall effectiveness of OLAF's investigations, the Court of
Auditors recommends the legislative bodies to amend the proposal in
order to:
- clarify that in cases when OLAF carries out
administrative investigations on behalf of the EPPO, the standards
of procedural guarantees foreseen in the EPPO Regulation apply and
that the CJEU will remain competent to review OLAF's procedural
acts in this context;
- specify the kind of information the Commission and
OLAF need to receive from EPPO in order to properly fulfil their
task of developing EU policies to counter fraud;
- ensure that when OLAF works on behalf of the EPPO, and
it gathers sufficient evidence to prove an irregularity, OLAF
forwards the information gathered without undue delay to the IBOAs
to ensure the swift recovery of funds, unless the EPPO considers
that the information would interfere with its
investigation;
- expressly specify the status in national and EU courts
of evidence collected by OLAF, and include an obligation for OLAF
to forward all evidence supporting its final reports and
recommendations to the bodies responsible for
follow-up;
- provide more clarity on the minimum functions to be
fulfilled by National anti-fraud coordination services (AFCOS), in
particular as regards their role in coordinating Member States'
anti-fraud action in relation to the EU's financial
interests;
- provide that OLAF's reports constitute acts that might
‘adversely affect the persons concerned’ and are
therefore submitted to a review of the CJEU;
- clarify OLAF's role in cases involving
EPPO-participating and non-participating Member States, taking into
account any forthcoming legal instrument covering the subject of
judicial cooperation between EPPO-participating and
non-participating Member States.
The Court not only recommend amendments, but also
stress the need for further action:
- in the short term, the Commission should address the
overall issue of OLAF's effectiveness. This should involve
reconsidering OLAF's role and responsibilities in combating fraud
in EU spending. In this regard, OLAF could be given a strategic and
oversight role in EU anti-fraud actions;
- in the medium term, the
Commission should evaluate the cooperation between OLAF and the
EPPO and, where appropriate, propose further legislative
actions.