1 Rozporządzenie Parlamentu Europejskiego i Rady (UE, Euratom) nr 883/2013 z dnia 11 września 2013 r. dotyczące dochodzeń prowadzonych przez Europejski Urząd ds. Zwalczania Nadużyć Finansowych (OLAF) oraz uchylające rozporządzenie (WE) nr 1073/1999 Parlamentu Europejskiego i Rady i rozporządzenie Rady (Euratom) nr 1074/1999 (Dz.U. L 248 z 18.9.2013, s. 1).
2 Art. 15.
3 Zob. załącznik 5.
4 Zob. załącznik 3.
5 Zob. załącznik 4. Chociaż opinię tę przyjęto w marcu 2014 r., KN postanowił załączyć ją do niniejszego sprawozdania z działalności, ponieważ niemal wszystkie prace nad tą opinią przeprowadzono w okresie sprawozdawczym.
6 W 2013 r. do KN wpłynęło 186 sprawozdań dotyczących dochodzeń trwających dłużej niż dziewięć miesięcy.
7 W rocznym sprawozdaniu z działalności KN za 2012 r. zgłoszono 21 spraw wymagających przekazania informacji krajowym organom sądowym, które OLAF przekazał KN w styczniu 2013 r. Całkowita liczba spraw zgłoszonych w 2013 r. wynosi 77.
8 OLAF przekazał KN opinie dotyczące końcowego/okresowego sprawozdania i zaleceń w 72 sprawach z 77 przekazanych krajowym organom sądowym w 2013 r.
9 W drugiej z wymienionych sytuacji przesłuchanie osoby objętej dochodzeniem przeprowadzono na podstawie zasad zawartych w poprzednim podręczniku OLAF-u.
10 Zob. załącznik 2.
11 Dz.U. L 145 z 31.5.2001, s. 43.
12 Art. 22a regulaminu pracowniczego i art. 11 warunków zatrudnienia innych pracowników Unii Europejskiej.
13 Po konsultacjach ze Służbą Prawną Komisji - zob. nota dyrektora generalnego OLAF-u z dnia 10 listopada 2008 r. skierowana do pracowników OLAF-u.
14 Dz.U. L 257 z 28.9.2013, s. 19.
15 Zob. załącznik 1.
16 Zob. streszczenie w załączniku 7.
17 Zob. załącznik 10.
18 COM(2013) 533 final z 17.7.2013.
19 Zob. załącznik 6.
20 Otwarte posiedzenie z dnia 3 października 2013 r. "OLAF a prawa osób objętych dochodzeniem" ("OLAF and the rights of the persons concerned").
22 Zob. załącznik 8.
23 Zob. załącznik 9.
24 Motyw 40.
25 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, p. 1).
26 Commission Decision 1999/352/EC, ECSC, Euratom of 28 April 1999 establishing the European Anti-Fraud Office (OLAF) (OJ L 136, 31.5.1999, p. 20).
27 See Art. 13 of Regulation (EC) No 1073/1999 (Art. 18 of the Regulation amended as of 1 October 2013).
28 Article 6 of the Commission Decision 1999/352/EC, ECSC, Euratom.
29 See OLAF Annual Activity Report 2012 final, Ares (2013) 509786 - 26.3.2013: chapter 1.3, Specific objectives for 'fight against fraud': investigative and coordination activities, p. 5.
30 Special Report No 2/2011, 'Follow-up of Special Report No 1/2005 concerning the management of the European Anti-Fraud Office'.
31 See the SC Opinion 1/2012 of the 2013 OLAF draft budget, reproduced as Annex 2 of the SC Annual Report of 2012.
32 Article 6(2) of the Commission Decision 1999/352/EC, ECSC, Euratom cited above provides: 'After consulting the Surveillance Committee, the Director shall send the Director-General for Budgets a preliminary draft budget to be entered in the special heading for the Office in the annual general budget'.
33 According to the OLAF report for 2011, there are 437 staff in the Office.
34 For the detailed analysis of the SC workload and consequently of the necessary SC Secretariat resources, see the note of the Head of the SC Secretariat of 21 March 2013. In view of the incoming amendments to Regulation (EC) No 1073/1999 entrusting additional tasks to the SC, the resources of the SC Secretariat may require reinforcement in the year 2014.
35 Article 11(3) of the SC's Rules of Procedure provides as follows: 'In any case, the Head of the Secretariat shall inform the SC about the candidates for membership of the Secretariat. Once the applications are known, the Committee shall discuss in the plenary session whether they meet the Committee's working needs with a view to submitting a proposal for their appointment to OLAF's Director-General' (OJ L 308, 24.11.2011, p. 114).
36 Article 11(5) of the SC's Rules of Procedure provides as follows: 'The Supervisory Committee shall periodically evaluate the work of the Head of the Secretariat and of the Secretariat members'.
37 Although little consideration was given to this aspect when OLAF was created, the few procedural guarantees defined in the former Regulation (EC) No 107 3/1999 were developed by the case-law of the EU General Court.
38 See the SC's Opinion No 5/2010 on Respect for fundamental rights and procedural guarantees in investigations by the European Anti-Fraud Office, point 3.
39 See in particular Article 41 of the Charter.
40 One of the objectives of the reform was to reinforce the protection of fundamental rights and procedural guarantees within OLAF's investigations.
41 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).
42 The legality check relates, inter alia, to the respect of procedural guarantees and fundamental rights of persons concerned (Article 17(7)).
43 Article 15(1).
44 For a thorough overview of the different kinds of judicial review of OLAF's investigative acts, see J.F.H. Inghelram, Legal and Institutional Aspects of the European Anti-fraud Office (OLAF) - An Analysis with a Look Forward to a European Public Prosecutor's Office, Europa Law Publishing, 2011, p. 203. See also X. Groussot, Z. Popov, What's wrong with OLAF? Accountability, due process and criminal justice in European anti-fraud policy, Common Market Law Review 47, 2010, p. 605-643.
45 For example, the actions for annulment introduced against OLAF investigative acts have constantly been declared inadmissible on the grounds that none of such acts has to date been deemed to bring about a distinct change in the applicant's legal position.
46 In actions for damages, there are three conditions to be met in order to trigger a right to reparation: the infringement of a rule of law intended to confer rights on persons; a sufficiently serious breach of this rule; the existence of a direct causal link between the breach of the rule of law and the damage allegedly suffered by the complainant.
47 J.F.H. Inghelram, Judicial review of investigative acts of the European Anti-Fraud Office (OLAF): a search for balance, Common Market Law Review 49, 2012, p. 601-628.
48 Regulation (EC) No 45/2001 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).
49 According to the definition given by the EO, 'Maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it' (see the EO's Annual Report 1997, p. 23).
50 See the Special Report of the EO in own-initiative inquiry OI/5/2012/BEH-MHZ concerning FRONTEX, 12 November 2013, point 43.
51 Franchet and Byk v Commission (No 2),8 July 2008, Case T-48/05.
52 Article 15(1) of Regulation (EU, Euratom) No 883/2013.
53 See Article 14 of the former Regulation (EC) No 1073/1999. Its content has been included in Article 90a of the Staff Regulations and as a consequence has been deleted from Regulation (EU, Euratom) No 883/2013.
54 See Commission v Antonello Violetti and Others and Nadine Schmit, 20 May 2010, Case T-261/09.
55 See the note of the Director-General to OLAF staff (I/011472 of 10 November 2008) and the note JUR(2008)45321 of 1 April 2008 of the Commission's Legal Service.
56 During the legislative process, the EU institutions put forward various proposals: an independent Review Adviser with the participation of the SC, a Review Panel consisting of senior officials of OLAF and of the Commission's Legal Service, two separate procedures (legality check by legal experts of OLAF and complaints to the Review Adviser via the SC), a review procedure to be set up by the DG within the Office.
57 See the former OLAF Manual - Operational Procedures, version July 2011, point 5.1.6.
58 Article 7b: this procedure aimed at dealing with requests from persons concerned by an investigation, to have an independent opinion regarding the respect of the procedural guarantees provided for in the Regulation.
59 Replacing the former OLAF Manual - Operational Procedures.
60 Article 23 of the ISIP - '23.1 Where a natural person concerned by an investigation has requested a review of the handling of his procedural guarantees, the Director-General appoints a member of OLAF staff not connected with the investigation, to conduct such a review. 23.2 The person entrusted with the review must act independently in his review of the complaint and report his findings to the Director-General. 23.3 The Director-General may take appropriate action in respect of any failure to respect procedural guarantees and will inform the complainant'.
61 COM(2013) 533 final, 17.7.2013.
62 See the SC's Annual Activity Report 2012, specifically Section 2 of Annex III.
63 OLAF does not count as 'complaint' the applications for access to documents (including 'confirmatory applications'), the requests for access to personal data, staff complaints (Art. 90 of Staff Regulations), motions to courts, complaints addressed to the Commission which do not concern directly OLAF, letters from informants/whistle-blowers unhappy with OLAFs decision to dismiss a case.
64 7 complaints in 2013, 3 complaints in 2012 and 3 complaints in 2011.
65 5 complaints in 2012 and 3 complaints in 2011.
66 1 request in 2013, 2 requests in 2012 and 1 request in 2011.
67 See the OLAF 2012 Activity Report.
68 See the Annual Activity Reports of the EDPS and the EO. The SC itself received 7 complaints in 2012 and 14 complaints in 2013, concerning, inter alia, alleged failure to respect fundamental rights and procedural guarantees, breach of confidentiality of investigations, duration of investigations.
69 See the EO's Decision closing his inquiry into complaint 3072/2009/MHZ against the Commission, 5 April 2011, point 27.
70 See the Draft recommendation of the European Ombudsman in his own-initiative inquiry OI/5/2012/BEH-MHZ concerning the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX), 9 April 2013, point 79.
71 J.F.H. Inghelram, Judicial review of investigative acts of the European Anti-Fraud Office (OLAF): a search for balance, quoted above, p. 627.
72 See the Draft recommendation of the European Ombudsman in his own-initiative inquiry OI/5/2012/BEH-MHZ quoted above, point 47.
73 Article 41(1) of the Charter: 'Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union'.
74 See the Commission's proposal quoted above.
75 This paper was adopted at the SC's plenary meeting on 8 October 2013 and transmitted to the three appointing Institutions on 24 October 2013.
76 See the Decision of 26 June 2008 of the EO on complaint 1354/2007/VIK against the European Economic and Social Committee, point 2.3: 'it is good administrative practice that complaints against a Community official should normally not be answered by this very same official, but by the superior of this official or by another appropriate official/body'.
77 See Article 18 of the European Code of Good Administrative Behaviour. See also the Draft recommendation of the EO in the inquiry into complaint 1183/2012/MMN against OLAF, 15 November 2013.
78 See Article 17(1) of the European Code of Good Administrative Behaviour, which elucidates the 'reasonable time' requirement of the Charter by establishing a two months period from the date of receipt of a request or complaint. Article 17(2) allows for an extension of this period if it is justified by the 'complexity of the matters which it raises'. The SC notes with interest the EO's statement that extension of the time limit within which an EU institution may deal with a complaint can be justified by the complexity of the issues raised, but not by an alleged lack of sufficient human resources or internal obstacles within its own services, since 'in accordance with the principles of good administration, the EU institutions have the duty to ensure that they provide their various services with sufficient resources to fulfil the tasks which have been entrusted to them' and to 'structure their various services in a such a way as not to hinder the performance of the institution's duties, including in particular, the need to treat complaints by citizens within a reasonable time' (see EO's Decision closing his inquiry into complaint 2288/2011/MMN against the European Investment Bank, 25 September 2013, pt. 28, 30).
79 This right may be limited by the need to respect the legitimate interests of confidentiality and of professional and business secrecy.
80 See also Article 13 of the European Code of Good Administrative Behaviour.
81 See, in this respect, the Decision of the EO on complaint 1512/2007/JMA against the European Commission, 5 June 2008. Article 19 of the European Code of Good Administrative Behaviour may also be relevant in this respect.
82 See the concerns expressed by civil society representatives with regard to the compatibility of the principle of independence with the fact that a person works in the interest of a specific entity (see the Draft recommendation of the European Ombudsman in his own-initiative inquiry OI/5/2012/BEH-MHZ quoted above, point 78).
83 Recital 40 of Regulation (EU, Euratom) No 883/2013.
84 As it was suggested by the Commission in its proposal of 17 March 2011, Article 7b.2.
85 Idem. See also Article 14 a) of the European Parliament legislative resolution of 20 November 2008 on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 1073/1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (COM(2006) 244 - C6-0228/2006 - 2006/0084(COD)) (OJ C 16E, 22.1.2010, p. 201).
86 OLAF Management Plan 2012, p. 20.
87 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).
88 Article 17(5) of Regulation (EU, Euratom) No 883/2013.
89 Article 15 and recital 37 of Regulation (EU, Euratom) No 883/2013.
90 OLAF Management Plan 2012, p. 21.
91 Ib., p. 22.
92 OLAF Management Plan 2013, footnotes 32, 33 and 34 on p. 44.
93 Ib., p. 44.
94 Ib., p. 45.
95 Article 5(1).
96 Note Ares(2013)175305 addressed to the Head of Unit 0.1.
97 Note Ares(2013)1118690.
98 Note Ares(2013)2587818.
99 E.g. note Ares(2013)3660752 of December 2013.
100 Ares(2013)622043 of April 2013.
101 See Article 5.
102 See the SC's 2012 Annual Activity Report, p. 23.
103 Ib., p. 42.
104 See Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions and the Court of Auditors, on the Commission antifraud strategy, 24.6.2011, COM(2011) 376 final.
105 Article 5(1).
106 Recital (49).
107 The work-form 'Opinion on opening decision' (version amended and adopted as of 1 October 2013) lists the subsidiarity/added value amongst the IPPs to be evaluated, without any distinction between internal and external cases.
108 See the SC's Annual Activity Report, June 2008-May 2009, point II - 1.2.
109 During the selection stage, the ISRU is in charge of processing the incoming information and provides the DG with opinions on the opening or dismissal of cases; during the investigation stage, it provides opinions on the necessity and legality of the main investigative activities requiring prior authorisation by the DG; before the closure of an investigation or coordination case, the ISRU reviews the final report and recommendations.
110 Article 5 of the ISIP.
111 Valid until 30 September 2013.
112 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).
113 Selecting one in three cases created between 1.9.2012 and 31.3.2013 came to a total of 237 cases of which 11 were found by OLAF to be duplicates of pre-existing cases = 226 opinions; all opinions delivered for the month of May 2013 = 68 opinions.
114 It contains, inter alia, general guidelines for selection and review.
115 Covering two periods of reference: February 2012 to December 2012 and January 2013 to November 2013.
116 The 'Starter Kit'.
117 See the Draft recommendation of the European Ombudsman in her inquiry into complaint 1183/2012/MMN against OLAF, 15 November 2013, paragraph 28.
118 See Article 11(7) of the former Regulation (EC) No 1073/1999 and Article 17(5) of Regulation (EU, Euratom) No 883/2013.
119 The three selection criteria are: OLAF's competency to act, the sufficiency of information to open an investigation or coordination case and the Investigative Policy Priorities.
120 Ares(2013)3357296.
121 The information of possible investigative interest received by OLAF was defined by the ISIP as 'all information received by OLAF or information gathered on OLAF's own initiative, that could be considered for the opening of an investigation or coordination case and which must be submitted to the selection procedure for analysis'. In 2012, OLAF received 1,264 incoming information items which represented an increase of 21 % compared to 2011 (Source: OLAF 2012 Activity Report, page 13). The number of incoming information items also slightly increased in 2013 compared to 2012: OLAF received 1 156 incoming information items from February 2012 to December 2012, and 1 222 items from January 2013 to December 2013. Source: Ares(2013)3357296.
122 According to statistics provided by OLAF, a selector dealt with, on average, 72 cases from February 2012 to December 2012 (221 working days) and 76 from January 2013 to December 2013. Source: Ares(2013)3357296.
123 Prior to the reform of OLAF, incoming information was assessed by the investigators allocated to the 8 investigation units. In 2010, the investigation units counted 152 staff members (including Heads of Unit and secretaries). Source: Special Report No 2/2011 of the European Court of Auditors, Annex II.
124 1 opinion.
125 See Part II.2 of this opinion.
126 According to the 2012 Activity Report of the ISRU, this unit was comprised of 11 different nationalities and was able to deal with information in 16 languages.
127 At least in 2 opinions.
128 The unit had 7 reviewers. A statistical search in the CMS showed an average of 60 cases dismissed per reviewer (2012 and 2013 cases).
129 71 out of 293 opinions analysed were drafted by the reviewers.
130 Article 12.2 of the ISIP. In 2012 OLAF performed 97 on-the-spot checks and inspections, 66 interviews with persons concerned, 38 investigative missions to third countries, 11 inspections of EU premises, 10 digital forensic examinations (Source: OLAF 2012 Activity Report, page 21). These activities were authorised by the DG, on the basis of opinions provided by the reviewers of the ISRU.
131 Article 12.3 of the ISIP. The SC has no statistical information as to the number of opinions provided by the ISRU in this respect.
132 465 investigation and coordination cases were closed by OLAF in 2012 (Source: OLAF 2012 Activity Report, page 18).
133 Article 11.2, a) combined with Article 12.2 of the GIP In 2012, OLAF carried out 108 interviews with witnesses (Source: OLAF 2012 Activity Report, page 21).
134 Article 12.4 of the GIP.
135 In January 2012, training for selectors was provided comprising several modules. Module 1 was followed by three participants; module 2 was followed by twelve participants; modules 3 and 5 were followed by seven participants; module 4 was also followed by seven participants. Specialised training courses were also provided later, e.g. in the area of Agricultural funds - Investigations by OLAF (one participant); New financial Regulation (three participants); EIB training on internal procedures (three participants); DEVCO - Budget support (one participant); SPS/SPAS training (four participants); Computer forensics in support of OLAF's investigations (one participant); Operational analysis in support of OLAF's investigations (one participant). Source: OLAF.
136 Article 5.5 of the ISIP.
137 Ares (2013) 3357296.
138 The source of information did not reply to OLAFs requests in 24 out of 125 cases dismissed on the grounds of insufficiency of information (19 %).
139 1 case dismissed on the grounds that the information fell outside the IPPs was reopened later on as an investigation.
140 Article 5(2) and 5(4) of Regulation (EU, Euratom) No 883/2013.
141 Selection period of no longer than 2 months nevertheless remained a target in OLAF 2013 Management Plan.
142 General guidelines on the selection appear also in the 'Starter Kit'.
143 On 5 July 2013 the DG provided the SC with a copy of an amended version of the ISIP, which the DG envisaged adopting at the date of the entry into force of the new OLAF Regulation. The SC provided its first comments by letter of 30 July 2013.
144 Articles 22a and 22b of Staff Regulations and Commission Guidelines on Whistleblowing (SEC(2012)679 final).
145 In one opinion the identity of the whistle-blower is clearly mentioned, while in another opinion it is anonymised. Both opinions recommended the opening of an investigation.
146 Through the FNS, OLAF collects information supplied by users of the system in a questionnaire, including a free text field. Messages are recorded and analyzed by OLAF staff. If the user chooses to register for ongoing communications, OLAF collects the information subsequently transmitted in all following communications between OLAF and the user. This information is recorded on a dedicated server, and used as a source of intelligence/evidence.
147 Article 5.3 of the ISIP, which corresponds to Article 5.3 of the GIP. The latter was not significantly changed.
148 See the Annex which illustrates this approach.
149 This provision was slightly changed in the GIP: 'In assessing whether OLAF is competent to act, consideration shall be given to relevant EU Regulations, Decisions, Interinstitutional Agreements and other legal instruments relating to the protection of the financial interests of the EU, and any other interest of the EU the protection of which falls under OLAF's mandate.'
150 34 cases, concerning mainly civil/private disputes between individuals/companies where EU funds were not concerned, questions of interpretation of the EU legislation, matters falling within the exclusive competence of the Member States such as criminal offences (e.g. kidnapping).
151 Reference to legal instruments was made in 25 out of 259 opinions where OLAF was considered to be competent to act (9,6 %).
152 55 out of 259 opinions where OLAF was considered to be competent to act (21 %).
153 6 out of 259 opinions where OLAF was considered to be competent to act (2,31 %).
154 3 out of 259 opinions where OLAF was considered to be competent to act (1,15 %).
155 This provision was not significantly changed in the GIP.
156 In 64 out of 259 opinions (24,71 %) where OLAF was considered to be competent to act and the (in)sufficiency of information was evaluated, the SC noted the use of unsubstantiated statements - usually one sentence such as 'the information is/would/should (not) be sufficient/enough to open an investigation' (58 opinions), 'all the elements needed to further investigate have clearly been identified' (1 opinion), 'the information is sufficient and the sources are reliable' (3 opinions), or even a simple 'yes' (2 opinions).
157 No consideration was given either to the reliability of the source or to the credibility of the allegations in 22 out of 259 opinions (8,5 %) where OLAF was considered to be competent to act and the (in)sufficiency of information was evaluated.
158 In some cases where the source was anonymous, the selectors considered either that its reliability cannot be proved or assessed (5 opinions) or considered it to be unreliable (2 opinions).
159 The sufficiency of suspicions was clearly assessed in 69 out of 259 opinions (26,64 %) where OLAF was considered to be competent to act and the (in)sufficiency of information was evaluated.
160 58 opinions.
161 8 opinions.
162 3 opinions.
163) Cases C-15/00 Commission v EIB and C-11/00 Commission v ECB.
164 Article 5(1).
165 In particular the 'Starter kit'.
166 Clarity, preciseness, completeness: information has been considered to be detailed and substantiated/documented when it provided the names of persons/entities involved, dates, location, and fraud mechanism.
167 Information has been considered to be verifiable and accurate when confirmed after being cross checked with information otherwise provided to or gathered by OLAF.
168 Lack of cooperation from a Member State was reported in one opinion. Obstructions from an EU Delegation were also reported in one opinion (disclosure of the existence of OLAF's case to the person concerned and lack of cooperation with OLAF, mainly by not providing the information requested by the latter).
169 This provision was removed from the GIP. However, the reference to the IPPs as a selection criterion was kept in Article 5.3 of the GIP
170 The SC's comments on the IPPs themselves can be found in the SC's Opinion No 1/2014.
171 37 out of 134 opinions (27,61 %) where the IPPs were assessed (59 opinions recommending dismissing a case on the grounds outlined in the IPPs and 75 opinions recommending the opening of investigation/coordination cases).
172 2 cases.
173 In 24 out of 134 opinions (18 %) where the IPPs were assessed it was only stated that 'it is/it would be proportionate/disproportionate' or 'it would be/not be proportional' to open an investigation or coordination case or OLAF 'can/cannot expect a fair return from its investigative efforts'.
174 E.g. when carrying out the proportionality test, reference was made to the subsidiarity/added value of OLAF's action (the assumption that an OLAF action would not be proportionate because action was already taken at national level and OLAF cannot bring any added value was found in 15 out of 59 opinions (25,42 %) recommending dismissing a case on the grounds outlined in the IPPs).
175 Where the potential financial impact of the irregular activity affecting the EU budget was estimated or the likelihood of prosecution in the Member State or of disciplinary action by the EU institution concerned was anticipated, there is no reference to the forecast of the human and material resources needed to investigate: 8 out of 59 opinions (13,55 %) recommending dismissing a case on the grounds outlined in the IPPs.
176 The evaluation of the workload is missing in 50 out of 134 opinions (37,31 %) where the IPPs were assessed: some opinions mention that no investigative resources should be used (22 opinions), while others make no reference to the investigative resources (28 opinions).
177 In the sense that it is stated that OLAF would be able to carry out an investigation or that a specific unit would be competent to investigate or would have the necessary resources available, but without any further explanation (30 out of 134 opinions (22,38 %) where the IPPs were assessed).
178 One opinion mentions that the workload of a specific investigation unit would not allow investigative activities to begin soon after the case has been opened and consequently recommended the dismissal of the case, while another opinion issued in the same period by a different selector indicates the contrary with regard to the same investigation unit, and as a consequence recommends the opening of an investigation case.
179 7 out of 134 opinions (5,22 %) where the IPPs were assessed.
180 40 out of 134 opinions (29,85 %) where the IPPs were assessed.
181 In 5 out of 59 opinions (8,47 %) recommending dismissing a case on the grounds outlined in the IPPs.
182 Such reference was made in 5 out of 134 opinions (1,49 %) where the IPPs were assessed.
183 42 out of 134 opinions (31,34 %) where the IPPs were assessed.
184 3 out of 59 opinions (5 %) recommending dismissing a case on the grounds outlined in the IPPs.
185 It was found that OLAF's action could have an added value only in 1 out of 59 cases dismissed on the grounds outlined in the IPPs. The case was however dismissed because it was considered that an OLAF action would not have been proportionate (financial ratio cost/ benefit too high).
186 1 opinion, advising dismissal of a case exclusively on the grounds that the financial impact was too low.
187 2 opinions out of 59 opinions (3,38 %) recommending dismissing a case on the grounds outlined in the IPPs.
188 E.g. the EU/national authorities were aware or already dealing with the matters submitted to OLAF or with similar matters; due to the nature of the denounced acts they were better placed to conduct a national enquiry or they had more powerful means to investigate than OLAF; there would be duplication of work if OLAF was involved and consequent risk of jeopardising a national investigation; it was considered that, in accordance with principles of subsidiarity and proportionality, the Member State had the primary responsibility for the management and control of the EU funded projects). Those explanations were found in 56 out of 59 opinions (95 %) recommending dismissal of a case on the grounds outlined in the IPPs.
189 According to the replies by the EC to the EP's written questions to Commissioner Šemeta, in the framework of the 2012 discharge to the Commission (questions 6d and 6e).
190 2 cases regarding allegations of possible irregular cost declarations or possible irregular defrayal of parliamentary assistance expenses, with direct impact on the EU financial interests and representing a potentially serious matter relating to the discharge of professional duties of Members of the European Parliament.
191 The 2 cases referred to in the previous footnote were dismissed on subsidiarity grounds five and, respectively seven months after another similar case was dismissed and referred to the EP. It was proposed to refer the two cases to the EP, despite the fact that, at the time of the drafting of the opinions, OLAF had not received any feedback from the EP.
192 19 July 2013. The cases referred to above were however dismissed several months before the signature of the Practical arrangements.
193 See Annex II to the Practical arrangements with the EP.
194 See the IPPs for 2012 and 2013 and the SC's Opinion No 1/2014 on the IPPs.
195 17 out of 134 opinions (12,68 %) where the IPPs were assessed.
196 The financial impact was known in 80 (out of 134) cases where the IPPs were assessed. In 13 of them (16,25 %) the opinions did not make explicit reference to the financial indicators.
197 The financial impact was known in 34 (out of 59) cases dismissed on the grounds outlined in the IPPs. In 7 of them the financial impact corresponded to the IPPs, but they were dismissed on subsidiarity/added value grounds.
198 The financial impact was known in 46 (out of 75) cases opened (investigation or coordination cases). In 6 of them the financial impact was below the financial indicators as mentioned in the IPPs.
199 See the SC's Opinion No 1/2014 on the IPPs.
200 With regard to dismissed cases, the information flow includes staff of the Registry (the person registering the incoming information), of the ISRU (the selector in charge and/or the Head of Unit) and the DG, who takes the ultimate decision to dismiss the case. The circulation chain may thus include from two persons (the Director-General and the Head of the ISRU, when the latter is acting as selector - this was the case in two of the opinions analysed) - when the incoming information is transmitted exclusively and directly to one of them) up to a maximum of four persons (the Director-General, the Head of the ISRU, the selector and the Registry staff).
201 47 out of 59 opinions (79,66 %) recommending dismissing a case on the grounds outlined in the IPPs.
202 In cases dismissed where it was proposed to forward relevant information to the competent authority, recommendations of non-disclosure of the identity of the source was found in 7 opinions (out of 42 cases where the identity of the source is known by OLAF).
203 Ares (2013)1903286 and (2013)3417726.
204 29 out of 134 opinions (21,64 %) where the IPPs were assessed make reference to an internal consultation, with regard to the availability of the human resources and/or expertise (3 opinions), verification of connection of the information being assessed to existing investigations (3 opinions), or discussions on the proposal to dismiss a case or to open an investigation/coordination case (23 opinions - mainly in those cases where the initial information was forwarded for assessment to the ISRU by the investigation units themselves).
205 1 out of 59 opinions (1,69 %) recommending dismissing a case on the grounds outlined in the IPPs.
206 2 out of 59 opinions recommending dismissing a case on the grounds outlined in the IPPs.
207 3 out of 59 opinions recommending dismissing a case on the grounds outlined in the IPPs.
208 1 out of the 3 cases mentioned in the previous footnote.
209 The identity of the source was known by OLAF and/or OLAF can communicate with the source in 132 out of 218 cases dismissed. It was proposed to inform the source of information of OLAF's decisions to dismiss cases in 22 out of these 132 opinions (16,66 %).
210 1 out of 75 opinions recommending the opening of investigation/coordination cases proposed that the source of information be informed of OLAF's decision.
211 Commission Decision 1999/352/EC, ECSC, Euratom of 28 April 1999 establishing the European Anti-fraud Office (OLAF), (OJ L 136, 31.5.1999, p. 20) as recently amended by Commission Decision 2013/478/EU of 27 September 2013 (OJ L 257, 28.9.2013, p. 19).
212 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).
213 COM(2013)533 final, 17.7.2013.
214 OJ C 374, 20.12.2013, p. 1.
215 OJ L 292, 15.11.1996, p. 2.
216 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).
217 Article 15(1) first paragraph.
218 Article 15(1) first and second paragraphs.
219 Article 15(1) third paragraph.
220 Article 15(9).
221 Article 16.
222 Article 15(9) first paragraph.
223 Article 15(9) second paragraph.
224 Article 15(1) third paragraph.
225 Article 17(5) first paragraph.
226 Article 17(5) second paragraph.
227 Article 17(5) third paragraph.
228 Article 4(6).
229 Article 6(2) of the Commission Decision 1999/352/EC, ECSC, Euratom of 28 April 1999 establishing OLAF (OJ L 136, 31.5.1999, p. 20) as amended by Commission Decision 2013/478/EU of 27 September 2013 (OJ L 257, 28.9.2013, p. 19).
230 Article 15(1) fifth paragraph.
231 Article 15(8) sixth sentence.
232 Recital (40).
233 Point 44 of the European Court of Auditor's Opinion No 6/2011: In order to reinforce the independent role of the Supervisory Committee, the Court recommends that the proposed Article 11(6) should provide that the Committee's secretariat must act solely in accordance with the Committee's instructions and independently of OLAF, and may not be appointed by or subject to the authority of the Director-General.
234 Point 41 of the SC's Opinion no 4/2011: Although provided by OLAF, the secretariat shall work in complete independence under the chair of the SC and its members. (...) members of the secretariat shall be appointed by an Appointing Authority different from OLAF DG, at the suggestion of the SC; they shall be periodically evaluated solely by the SC; they shall act with loyalty and in full respect of the instructions received exclusively from the SC (...) the independence of its secretariat - and consequently of the SC - is illusory if the staff of the secretariat is appointed, administered and promoted by the service which it is in charge of monitoring.
235 Cf. SC's Opinion No 1/2013 on OLAF's Preliminary Draft Budget for 2014 and the previous SC's opinions on OLAF's Preliminary Draft Budget.
236 His successor was a senior Head of Unit, but the then DG ensured the then SC Chairman on 13.2.2007 that: The status of your Secretariat is indicated by the fact that your present Secretary is one of only three OLAF Heads of Unit to hold the rank of AD14'.
237 If, under the general rules of the Commission, it were undesirable to classify a Head of a relatively small team as a director, then the model of the Legal Service could be followed with the Head of the SCS classified as a principal (legal) advisor with management functions over a team of legal officers and secretarial staff (e.g. the M team in the Legal Service consists of a principal legal advisor, 7 lawyers and 5 assistants). The tasks of the SCS Head consist mainly in providing legal advice to the SC Members. Alternatively, the arrangements concerning principal advisors in the European Commission's Bureau of European Policy Advisers could be applied.
238 In accordance with Article 6(1) of Commission Decision 1999/352/EC, ECSC, Euratom establishing OLAF (as amended by Commission Decision 2013/478/EU: The DirectorGeneral of the Office shall exercise, with regard to the staff of the Office, the powers of the appointing authority and of the authority empowered to conclude contracts of employment delegated to him. He shall be permitted to sub-delegate those powers (...).
239 Article 18 of Regulation (EU, Euratom) No 883/2013: The total appropriations for the Office, including for the Supervisory Committee and its secretariat, shall be entered under a specific budget line within the section of the general budget of the European Union relating to the Commission and shall be set out in detail in an Annex to thatsection. The establishment plan of the Office, including the secretariat of the Supervisory Committee, shall be annexed to the establishment plan of the Commission.
240 On 23 October 2013 the Parliament recommended to 'split the line for OLAF expenditure related to officials and temporary staff, to reflect the widened mandate and strengthened independence of the Secretariat of the OLAF Supervisory Committee provided for in the new OLAF Regulation'.
241 COM(2013)533 final, 17.7.2013.
242 Article 18(2) 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 (OJ L 248, 18.9.2013).
243 Article 15(7) of Regulation (EU, Euratom) No 883/2013.
244 Article 41 of the Charter - right to good administration.
245 ECtHR, judgment of 9 January 2013, Oleksandr Volkov v. Ukraine, application no 21722/11, §§ 104-106.
246 Article 2 of Decision 2012/45/EU, Euratom of the European Parliament, the Council and the Commission of 23 January 2012 appointing the members of the Supervisory Committee (OJ L 26, 28.1.2012, p. 30); Article 4 of the Rules of Procedure of the Supervisory Committee (OJ L 308, 24.11.2011, p. 114).
247 Managing Conflict of Interest in the Public Service: OECD Guidelines and country experiences, OECD, Paris, 2003, p. 28. Source of information: the European Court of Auditors' Special Report No 15/2012 'Management of conflict of interest in selected EU Agencies', http://eca. europa.eu/portal/pls/portal/docs/1/18686746.PDF.
249 Case T-89/01 Willeme v Commission, where theCourt of First Instance analysed the scope of the concept of conflict of interest under former Article 14 of the Staff Regulations (currently, Article 11a).
250 Judicial and administrative structures of the Member States differ substantially, which must be taken into account when establishing rules on potential conflict of interest. The expression 'directs or exercises effective control over' comes from Article 25 of the Rome Statute of International Criminal Court which stands as a generally accepted legal definition of de jure or de facto direction or command. The expression 'exercises effective influence' is an extension to cover situations in which an SC Member is not formally in the chain of command and thereby not necessarily exercises effective control over a case, but in which he can substantively influence the handling of a case by being, for example, an authority to be heard, actually or potentially, or by being in a position to comment or influence the handling of a case (for example, if an SC Member were a Deputy Prosecutor General and the officer working on an OLAF case reports to the Prosecutor General).
251 For example, in accordance with Article 3(3) of Regulation (EU, Euratom) No 883/2013, especially as the anti-fraud coordination service (AFCOS) of the Member State concerned pursuant to Article 3(4).
252 Article 11(3) of Regulation (EU, Euratom) No 883/2013.
253 As amended by Commission Decision 2013/478/EU of 27 September 2013 (OJ L 257, 28.9.2013, p. 19).
254 'Using confidential information means that a public official disclose to others, or use to further their personal interest, confidential information acquired by them in the course of their official duties. A specific example of this is 'insider information' which means the use of information that is gained in the execution of a public official's office and is not available to the general public to further or seek to further the member's private interest' (see page 7 of the Academic Report quoted in footnote 7).
255 This pragmatic approach is taken, for example, by the EU judiciary in cases concerning the statutory obligations of the EU officials: see case T-157/04 De Bry v Commission, paragraphs 36 to 38. See also the Opinion of the Advocate General Mazak delivered on 27 March 2012 in joined cases European Commission (C-553/10 P) and Lagardère SCA (C-554/10 P) v Éditions Odile Jacob SAS, paragraphs 35-36.
256 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).
257 Commission Decision of 28 April 1999 establishing the European Anti-fraud Office (OLAF), 1999/352/EC, ECSC, Euratom (OJ L 136, 31.5.1999, p. 20) as amended by Commission Decision of 27 September 2013, 2013/478/EU (OJ L 257, 28.9.2013, p. 19).
258 The SC may access case-related information following the 'three-step approach' as outlined in the European Data Protection Supervisor's Opinion on a notification for prior checking received from the Data Protection Officer of the European Anti-Fraud Office (OLAF) on Regular monitoring of the implementation of the investigative function, 19 July 2007 (Case 2007-73). Step 1 is covered by Article 10, step 2 - by Article 11 and step 3 - by Articles 12-15. Whenever personal data are transferred to SC, the SC takes adequate measures to ensure confidentiality and proper handling of such data according to the EU law on personal data protection.