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

Article 1

Objectives and tasks

In order to step up the fight against fraud, corruption and any other illegal activity affecting the financial interests of the European Union and of the European Atomic Energy Community (hereinafter referred to collectively, when the context so requires, as ‘the Union’), the European Anti-Fraud Office established by Decision 1999/352/EC, ECSC, Euratom (‘the Office’) shall exercise the powers of investigation conferred on the Commission by:

(a) the relevant Union acts; and

(b) the relevant cooperation and mutual assistance agreements concluded by the Union with third countries and international organisations.

This Regulation shall apply without prejudice to:

(a) Protocol No 7 on the privileges and immunities of the European Union attached to the Treaty on European Union and to the Treaty on the Functioning of the European Union;

(b) the Statute for Members of the European Parliament;

(c) the Staff Regulations;

(d) Regulation (EU) 2016/679 of the European Parliament and of the Council (¹);

(e) Regulation (EU) 2018/1725 of the European Parliament and of the Council (²).

Article 2

Definitions

For the purposes of this Regulation:

(1) ‘financial interests of the Union’ shall include revenues, expenditures and assets covered by the budget of the European Union and those covered by the budgets of the institutions, bodies, offices and agencies and the budgets managed and monitored by them;

(2) ‘irregularity’ shall mean ‘irregularity’ as defined in Article 1(2) of Regulation (EC, Euratom) No 2988/95;

(3) ‘fraud, corruption and any other illegal activity affecting the financial interests of the Union’ shall have the meaning applied to those words in the relevant Union acts and the notion of ‘any other illegal activity’ shall include irregularity as defined in Article 1(2) of Regulation (EC, Euratom) No 2988/95;

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

(5) ‘person concerned’ shall mean any person or economic operator suspected of having committed fraud, corruption or any other illegal activity affecting the financial interests of the Union and who is therefore subject to investigation by the Office;

(6) ‘economic operator’ shall have the meaning applied to that term by Regulation (EC, Euratom) No 2988/95 and Regulation (Euratom, EC) No 2185/96;

(7) ‘administrative arrangements’ shall mean arrangements of a technical and/or operational nature concluded by the Office, which may in particular aim at facilitating the cooperation and the exchange of information between the parties thereto, and which do not create additional legal obligations;

(8) ‘member of an institution’ means a member of the European Parliament, a member of the European Council, a representative of a Member State at ministerial level in the Council, a member of the Commission, a member of the Court of Justice of the European Union (CJEU), a member of the Governing Council of the European Central Bank or a member of the Court of Auditors, with respect to the obligations imposed by Union law in the context of the duties they perform in that capacity.

Article 3

External investigations

The Member State concerned shall ensure, in accordance with Regulation (Euratom, EC) No 2185/96, that the staff of the Office are allowed access to all information, documents and data relating to the matter under investigation which prove necessary in order for the on-the-spot checks and inspections to be carried out effectively and efficiently, and that the staff are able to assume custody of documents or data to ensure that there is no danger of their disappearance. Where privately owned devices are used for work purposes, those devices may be subject to inspection by the Office. The Office shall subject such devices to inspection only under the same conditions and to the same extent that national control authorities are allowed to investigate privately owned devices and where the Office has reasonable grounds for suspecting that their content may be relevant for the investigation.

When providing assistance in accordance with this paragraph or with paragraph 5, the competent authorities of Member States shall act in accordance with national procedural rules applicable to the competent authority concerned. If such assistance requires authorisation from a judicial authority in accordance with national law, such authorisation shall be applied for.

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

Article 4

Internal investigations

In the course of internal investigations:

(a) the Office shall have the right of immediate and unannounced access to any relevant information and data, relating to the matter under investigation, irrespective of the type of medium on which it is stored, held by the institutions, bodies, offices and agencies, and to their premises. Where privately owned devices are used for work purposes, those devices may be subject to inspection by the Office. The Office shall subject such devices to inspection only to the extent that the devices are used for work purposes, under the conditions set in the decisions adopted by the relevant institution, body, office or agency and where the Office has reasonable grounds for suspecting that their content may be relevant for the investigation. The Office shall be empowered to inspect the accounts of the institutions, bodies, offices and agencies. The Office may take a copy of, and obtain extracts from, any document or the contents of any data medium held by the institutions, bodies, offices and agencies and, if necessary, assume custody of such documents or data to ensure that there is no danger of their disappearance;

(b) the Office may request oral information, including through interviews, and written information from officials, other servants, members of institutions or bodies, heads of offices or agencies, or staff members, thoroughly documented in accordance with the applicable Union confidentiality and data protection rules.

In cases where the confidentiality of the internal investigation cannot be ensured using the usual channels of communication, the Office shall use appropriate alternative channels for transmitting information.

In exceptional cases, the provision of such information may be deferred on the basis of a reasoned decision by the Director-General, which shall be transmitted to the Supervisory Committee after the closure of the investigation.

Where necessary, the Office shall also inform the competent authorities of the Member State concerned. In this case, the procedural requirements laid down in the second and third subparagraphs of Article 9(4) shall apply. If the competent authorities decide to take any action on the basis of the information transmitted to them, in accordance with national law, they shall, upon request, inform the Office thereof.

Article 5

Opening of investigations

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

Where an official, other servant, member of an institution or body, head of office or agency, or staff member, acting in accordance with Article 22a of the Staff Regulations, provides information to the Office relating to a suspected fraud or irregularity, the Office shall inform that person of the decision whether or not to open an investigation in relation to the facts in question.

Article 6

Access to information in databases prior to the opening of an investigation

Article 7

Investigations procedure

At the request of the Office, which shall be explained in writing, in relation to matters under investigation, the relevant competent authorities of the Member States shall, under the same conditions as those that apply to the national competent authorities, provide the Office with the following:

(a) information available in the centralised automated mechanisms referred to in Article 32a(3) of Directive (EU) 2015/849 of the European Parliament and of the Council (⁴);

(b) where strictly necessary for the purposes of the investigation, the record of transactions.

The request of the Office shall include a justification of the appropriateness and proportionality of the measure with regard to the nature and gravity of the matters under investigation. Such request shall refer only to information referred to in points (a) and (b) of the first subparagraph.

Member States shall notify to the Commission the relevant competent authorities for the purposes of points (a) and (b) of the first subparagraph.

Where investigations show that it might be appropriate to take precautionary administrative measures to protect the financial interests of the Union, the Office shall without delay inform the institution, body, office or agency concerned of the investigation in progress. The information supplied shall include the following:

(a) the identity of the official, other servant, member of an institution or body, head of office or agency, or staff member concerned and a summary of the facts in question;

(b) any information that could assist the institution, body, office or agency concerned in deciding on the appropriate precautionary administrative measures to be taken in order to protect the financial interests of the Union;

(c) any special measures of confidentiality recommended, in particular in cases entailing the use of investigative measures falling within the competence of a national judicial authority or, in the case of an external investigation, within the competence of a national authority, in accordance with the national rules applicable to investigations.

The institution, body, office or agency concerned may at any time consult the Office with a view to taking, in close cooperation with the Office, any appropriate precautionary measures, including measures for the safeguarding of evidence. The institution, body, office or agency concerned shall inform the Office without delay about any precautionary measures taken.

Article 8

Duty to inform the Office

Where the institutions, bodies, offices and agencies report to the EPPO in accordance with Article 24 of Regulation (EU) 2017/1939, they may comply with the obligation set out in the first subparagraph of this paragraph by transmitting to the Office a copy of the report sent to the EPPO.

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

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

Article 9

Procedural guarantees

The invitation to an interview shall be sent to a person concerned with at least 10 working days’ notice. That notice period may be shortened with the express consent of the person concerned or on duly reasoned grounds of urgency of the investigation. In the latter case, the notice period shall not be less than 24 hours. The invitation shall include a list of the rights of the person concerned, in particular the right to be assisted by a person of his choice.

The invitation to an interview shall be sent to a witness with at least 24 hours’ notice. That notice period may be shortened with the express consent of the witness or on duly reasoned grounds of urgency of the investigation.

The requirements referred to in the second and third subparagraphs shall not apply to the taking of statements in the context of on-the-spot checks and inspections.The procedural guarantees as referred to in Article 3(7) and (8) shall apply to the person concerned, in particular the right to be assisted by a person of his or her choice.

Where, in the course of an interview, evidence emerges that a witness may be a person concerned, the interview shall be ended. The procedural rules provided for in this paragraph and in paragraphs 3 and 4 shall immediately apply. That witness shall be informed forthwith of his rights as a person concerned and shall receive, upon request, a copy of the records of any statements made by him in the past. The Office may not use that person’s past statements against him without giving him first the opportunity to comment on those statements.

The Office shall draw up a record of the interview and give the person interviewed access to it so that the person interviewed may either approve the record or add observations. The Office shall give the person concerned a copy of the record of the interview.

To that end, the Office shall send the person concerned an invitation to comment either in writing or at an interview with staff designated by the Office. That invitation shall include a summary of the facts concerning the person concerned and the information required by Articles 15 and 16 of Regulation (EU) 2018/1725, and shall indicate the timelimit for submitting comments, which shall not be less than 10 working days from receipt of the invitation to comment. That notice period may be shortened with the express consent of the person concerned or on duly reasoned grounds of urgency of the investigation. The final investigation report shall make reference to any such comments.

In duly justified cases where necessary to preserve the confidentiality of the investigation or an ongoing or future criminal investigation by the EPPO or a national judicial authority, the Director-General may, where appropriate after consulting the EPPO or the national judicial authority concerned, decide to defer the fulfilment of the obligation to invite the person concerned to comment.

In cases referred to in Article 1(2) of Annex IX to the Staff Regulations, failure on the part of the institution, body, office or agency to respond within one month to the request of the Director-General for deferral of the fulfilment of the obligation to invite the person concerned to comment shall be deemed to constitute a reply in the affirmative.

Article 9a

Controller of procedural guarantees

Article 9b

Complaints mechanism

Complaints related to the notice period referred to in Article 9(2) and (4) shall, however, be lodged before the expiry of the 10-day notice period referred to in those provisions.

Within 10 working days of the date of receipt, the Controller shall determine whether paragraphs 1 and 2 are complied with.

In the event of compliance with paragraphs 1 and 2, the Controller shall invite the Office to take action to resolve the complaint and inform the Controller accordingly within 15 working days.

In the event of non-compliance with paragraph 1 or 2, the Controller shall close the file and inform the complainant without delay.

In exceptional cases the Controller may decide to extend the period for issuing a recommendation by a further 15 calendar days. The Controller shall inform the Director-General of the reasons for such an extension in writing.

The Controller may recommend that the Office amend or repeal its recommendations or reports, on the grounds of an infringement of the procedural guarantees referred to in Article 9 or of the rules applicable to investigations by the Office, in particular infringements of procedural requirements and fundamental rights.

Before issuing a recommendation the Controller shall consult the Supervisory Committee for its opinion.

The Controller shall submit the recommendation to the Office and notify the complainant accordingly.

In the absence of a recommendation by the Controller within the time limits set out in this paragraph, the Controller shall be deemed to have dismissed the complaint without a recommendation.

The Controller may also ask witnesses to provide written or oral explanations that the Controller considers relevant to ascertaining the facts. Witnesses may refuse to provide such explanations.

Those implementing provisions shall cover, in particular, detailed rules regarding:

(a) the lodging of a complaint;

(b) the exchange of information between the Supervisory Committee, the Controller and the Director-General;

(c) the process for addressing the issues raised in a complaint by the Office;

(d) the examination of a complaint in an adversarial procedure in accordance with the first subparagraph of paragraph 6;

(e) the issuing and communication of the Controller's recommendation;

(f) duly justified cases in which the Director-General may deviate from the Controller’s recommendation and the procedure to be followed in such cases.

Article 10

Confidentiality and data protection

The competent authority may also authorise the Office to grant access before this period has expired.

The Data Protection Officer shall be competent for the processing of data by the Office and by the secretariat of the Supervisory Committee.

In accordance with the Staff Regulations, the staff of the Office and the staff of the secretariat of the Supervisory Committee shall refrain from any unauthorised disclosure of information received in the exercise of their functions, unless that information has already been lawfully made public or is accessible to the public, and shall continue to be bound by that obligation after leaving the service.

The members of the Supervisory Committee shall be bound by the same obligation of professional secrecy in the exercise of their functions, and shall continue to be bound by that obligation after the end of their mandate.

Article 11

Investigation report and action to be taken following investigations

The report shall, where appropriate, be accompanied by recommendations of the Director-General on action to be taken. Those recommendations shall, where appropriate, indicate any disciplinary, administrative, financial or judicial action to be taken by the institutions, bodies, offices and agencies and by the competent authorities of the Member States concerned, and shall specify in particular the estimated amounts to be recovered, as well as the preliminary classification in law of the facts established.

In drawing up the reports and recommendations referred to in paragraph 1, account shall be taken of the relevant provisions of Union law and, in so far as it is applicable, of the national law of the Member State concerned.