Februar 2009 Santers Fall 33

Paul van Buitenen The European Anti-Fraud Office... Ten Years later

On 9 December 1998, Paul van Buitenen, an official working for the Financial Control Department of the , blew the whistle to the on irregularities happening in the European Commission. As a result, the European Parliament refused to grant discharge to the European Commission and a committee of five independent experts examined the allegations. Coming from five different Member States, these experts were two former presidents of the European Court of Auditors (Dutchman and Frenchman), two law professors (Belgian and Italian) and an auditor-general (Swede). The day after the publication of their interim report of 15 March 1999, the Commission under had to step down.

Less known, but more important, is issue, the European Commission did denominator and that is the function­ the final report of the same Committee nothing to change this situation. This ing of the EU Anti-Fraud Office OLAF, of Independent Experts, dated 10 Sep- brings us to the derailments of OLAF. which performed investigations in all tember 1999. This report contained of these cases. It appeared that OLAF’s numerous and very valuable proposals functioning was crucial to the lack of for an administrative reform of the OLAF as common denominator results in these cases. Not so much on European Commission, but these re- Since the Dutch voters elected me in the work floor of the Anti-Fraud Of- commendations were never properly 2004 (with 7,3% of the national votes) fice, where often proper investigative followed, despite assurances from the with a mandate to fight fraud as a Mem- work is carried out, but more at the Commission that they would be. In this ber of the European Parliament (MEP), top, where OLAF management is re- final report, the experts heavily criti- followed by my nomination as Member luctant to take the right decisions with cised the way the Commission had set of the EP Committee on Budget Control regard to the opening of investigations up OLAF. OLAF was still an internal (Cocobu), I have received many indica- or the referral of cases to the national Commission department, but enjoyed tions of irregularities happening within judicial authorities. These indications full operational independence from the the EU institutions. These indications were confirmed by criticism in official Commission, thus avoiding supervisory were related to a very wide range of reports on OLAF, coming from the EU powers for the Commission. In addition cases, from European Commission de- Ombudsman, the EP Committee on the experts noted that the Supervisory partments such as the Luxembourg- Budget Control (Cocobu), the OLAF Su- Committee of OLAF lacked the legal ba- based EU statistical office (Eurostat) pervisory Committee and the European sis to exercise real supervisory powers and the EU Publication Office (Opoce), Court of Auditors. over OLAF. Despite several parliamen- or the renovation of the European Com- tary questions in which I addressed this mission Brussels headquarters (Berlay- mont building), to the new buildings Parliamentary questions of the European Parliament in Brussels, During my mandate, I asked 184 parlia­ Former civil servant at the European Commission, and several fraud cases in the EU Com- mentary questions. Of these, 81 parlia- Paul van Buitenen is now a member of the European Parliament for the (Group of the Greens/ mittee of the Regions. In most of these mentary questions addressed OLAF’s European Free Alliance). files there appeared to be one common possible shortcomings. These questions 34 Dossier forum 283 were often based on information from independence. The Supervisory Com- The allegations against OLAF OLAF sources. Almost every parliamen- mittee of OLAF is powerless. Despite tary question was met with an evasive some highly critical reports, there has What are the allegations against OLAF? answer, not admitting what had gone been no proper follow-up, as the Super- 1� OLAF breaches the rights of those wrong. The replies officially come from visory Committee lacks the legal basis under investigation. Suspects are not the Commission (Commissioner Kallas), to exercise adequate supervision. Not informed properly, or are not given the but in effect, all the replies are written only was this indicated in September chance to defend themselves. OLAF dis- by OLAF and the Commission is just a 1999 by the independent external ex- tributes defamatory information, and letter box for OLAF’s replies to all par- perts, but the European Court of Audi- witnesses may find themselves being liamentary questions concerning OLAF. tors also confirmed this lack of super- suspected without proper information. One of my questions, however, led to vision in its special report on OLAF in the opening of an official investigation 2005. Finally, in Parliament there is no 2� There is no proper appeal procedure into OLAF’s mistakes in a particular political support to initiate an investi- against OLAF’s decisions unless one case. The results of this investigation gation into OLAF, as the head of OLAF, goes to court, and even then it is the are kept secret, but off-the-record it is Commission which may face condem- known that the report contains find- nation, not OLAF. ings of wrongdoings on the part of the OLAF director-general, Mr Brüner. OLAF hardly performs internal 3� OLAF hardly performs internal in- OLAF, however, issued a press release investigations in the vestigations in the EU institutions, al- on 21 November 2008 that everything EU institutions, although the though the office was created mainly for was found to be satisfactory in the office was created mainly for this reason. Of its 450 staff (including anti-fraud office. Despite irritation in temporary staff), working in 22 units the Commission over the OLAF press this reason. plus management, only 100 staff work release, which was factually incorrect, on investigations, and of those 100, they did not issue a corrective press only one unit of 15 men works full time release. Mr Brüner, was re-nominated in 2006 on internal investigations. This has led under heavy political pressure from the to frustration among investigators. German Chairs of the two biggest polit­ Dialogue ical groups (Hans-Gert Pöttering and 4� There is a common thread of undue delays and unexplained periods of inac- In March 2008, Mr Brüner complained Martin Schulz). All this has had a disas- tivity during the investigative phase of to me that my parliamentary questions trous effect on the attitude of OLAF’s OLAF investigations. were paralysing his service and I there- management. Hiding behind their ‘oper­ fore agreed to suspend submitting par- ational independence’, ignoring the Su- 5� In some cases the final reports have liamentary questions. Between March pervisory Committee and immune from been sent to the national judicial autho- 2008 and September 2008, an intensive cases in the EU Court of Justice, some rities when cases have passed the sta- dialogue took place between Mr Brüner members of OLAF’s management now tute of limitation; in others, the lack and me in which more than thirty let- think that they are above the law. of relevance of the case has led these ters were exchanged and several meet­ authorities not to open the case. ings took place, either with Mr Brüner himself or with other OLAF representa- 45-page note with allegations 6� There is an overall lack of rigorous tives. Unfortunately, however, this dia- In a final effort to convince the Euro- and systematic organisation in both the logue did not deliver the clarification pean Commission to open investiga- indexation and the filing of OLAF doc­ requested. In addition, many meetings tions against OLAF, I submitted a 45- uments. Confidential documents are have taken place on the irregularities page note to the Commission and OLAF lying on the floor or are not registered. in OLAF, between me and Commission on 25 November 2008. On 9 December Safes are not properly secured after representatives, the OLAF Supervisory 2008, I distributed an anonymous ver- working hours. Committee and the Cocobu. Although sion of this note to the press. In this my allegations were heard with inter­ note I focused on four cases of irregula- 7� When being challenged on its short- est, no one felt the urge to undertake rities, which serve as examples of what comings, OLAF does not hesitate to any action. is going wrong in OLAF. So far, there send, as a matter of routine, mislead- has been no official reaction to the note, ing briefings to Commission and Par- and informally I hear that hardly anyone liament or to issue misleading press No supervision and above the law bothers to examine it. The 45 pages statements, in an effort to conceal its As indicated earlier, OLAF is still an in- are broadly dismissed as irrelevant or shortcomings. ternal Commission department and can- a repetition of known allegations. The 8� OLAF is sensitive to political pres- not therefore be individually challenged German coordinator of the Christian sure, although the office was supposed in court. Despite the fact that the Euro- Democrats in Cocobu, Frau Dr. Grässle, to resist such pressure. pean Commission has been condemned has taken the lead in dismissing my ac- on several occasions for OLAF’s mis­ tions as irrelevant and as the product of 9� OLAF selection processes for man­ takes, the European Commission claims a frustrated person. Other MEP’s follow agement positions are often rigged and that it cannot intervene in OLAF, be- this reasoning without showing any in- performed as a smokescreen for the se- cause of respect for OLAF’s operational terest in reading the note. lection of a preferred candidate. Februar 2009 Santers Fall 35

10� As a result of all this, OLAF staff are Mr Pöttering informed me in November time to OLAF, by myself and another leaking information in order to generate 2007 that, following a vote in the Com- MEP (Brian Simpson), did the office de- criticisms that would lead to investiga- mittee of Presidents, a critical Ombuds- cide to re-open the evaluation against tion and improvement. Instead, OLAF man report of 2005 on this case was the acting director under another case organises witch hunts for whistle- never taken on board by Parliament, de­ number, thus faking a new case. blowers using inappropriate techniques spite the Ombudsman’s request to Par- that breach individual rights. liament to formulate an opinion on this Case-4: The OLAF investigation into a case. OLAF has made misleading state­ German MEP To substantiate and illustrate these ments to the European Commission, shortcomings, I presented in my note of In 2005, OLAF evaluated a complaint the European Parliament, the European 25 November 2008 four detailed cases against a German MEP and the inves- Court of Justice, the European Ombuds- of shortcomings. These four cases de­ tigators came to the conclusion that man, the public prosecutors, the press scribe the following OLAF irregularities: the opening of an official investigation and even to its own investigators. was warranted. However, Mr Brüner, Case-1: OLAF directors selection process To cover up some of the shortcomings, as director-general of OLAF, used his authority to close down the case under The selection process for two directors OLAF Director-general Mr Brüner has as- the pretext that this matter fell outside posts in OLAF was rigged from the start. sembled disciplinary files against some OLAF’s competence. The nomination of Mr Larsson and Mr of his staff, under a false pretext, thus Walton-George should be investigated. breaching the confidence and rights of OLAF recommended that the MEP As a result of my complaints only a lim- his staff. could have infringed Article 9 of the Par- ited administrative enquiry took place. liament’s Rules of Procedure (on trans- So far, the results of this enquiry remain parency of other interests), but that it secret. Informally it is known that the OLAF is seriously ill. The cause was for the administration of the Par- report contains findings against Mr of its illness is twofold: OLAF’s liament to draw the appropriate conclu- Brüner. He appears to have acted inap- sions. OLAF also recommended that propriately after being informed of irre- failing management and its Parliament should establish a clear code gularities. Mr Brüner also seems to have false legal basis. of conduct for its members as a comple- made contradictory statements about ment to the Rules of Procedure. How- his actions. ever, Mr Pöttering informed me that One of the implicated parties mentioned Today, 6 January 2009, the Belgian ju- Parliament did not do anything with in the note, who did receive access to diciary has decided to close the case a- these recommendations. the report, threatened me with a court gainst Tillack. After 7 years of investiga- case. I am not able to judge which of tive attempts, including house searches Suggestions my allegations have been investigated, and defamatory information, OLAF has as I was not granted the same access to not managed to substantiate the bribery OLAF is seriously ill. The cause of its this report despite my repeated request allegations against Tillack. So normally illness is twofold: OLAF’s failing man­ for access. OLAF should now also close the case. agement and its false legal basis. For both causes a solution exists: the re- Mr Brüner made misleading statements Case-3: The CDE case placement of OLAF’s management and to Parliament, to the Staff Committee the creation of a proper legal basis. The OLAF received information from whis- of the Commission, in his press releases proper legal basis consists in giving tleblowers of the Centre for the Deve- and in his statements to the Cocobu. OLAF an independent status outside lopment of Enterprise (CDE) on irregu- This means that he attempted to cover the European Commission and placing larities committed by the former CDE up his professional wrongdoing and to it under effective supervision with the director and by the acting CDE direc- hide the true course of events. power to intervene. tor. OLAF investigated only the allega- Case-2: OLAF bribery claim against tions against the former director (from There is also one other solution: the a journalist Mali). Although OLAF did not evaluate dissolution of OLAF and the distribu- the allegations against the acting direc- The EU Ombudsman and the European tion of its tasks over EU bodies with tor (from France), it claimed that there the proper expertise. OLAF’s internal Human Rights Court concluded that was not enough evidence to warrant OLAF initiated a bribery claim against investigations would go to an inter- an investigation. In reality, OLAF had institutional Disciplinary Office (now a journalist (Hans-Martin Tillack of not processed the information from the Stern) on the basis of vague and unsub­ IDOC). OLAF’s external investigations CDE whistleblowers in accordance with would go to the European Commission stantiated rumours. The Court’s judge­ OLAF procedures. ment did not have any consequences DG’s. OLAF’s preparations for criminal for OLAF. On the basis of additional re- At the same time, the CDE whistle- files would be attributed to specialised u search as presented in my 45-page note, blowers were victimised in the CDE for departments in the Member States. the conclusion presents itself that the their assistance to OLAF and their hope OLAF bribery claim may have been fake of protection and vindication relied en- altogether. The conduct of OLAF man­ tirely on the outcome of OLAF investi- agement, who are still in post today, is gations. Only after the same informa- highly questionable. tion had been submitted for the third