eucrim ISSUE / ÉDITION / AUSGABE 3–4 / 2008 THE EUROPEAN CRIMINAL LAW ASSOCIATIONS‘ FORUM SUCCESSOR TO AGON Focus: Tenth Anniversary of the European Anti-Fraud Office Dossier particulier: Le dixième anniversaire de l’Office de Lutte Antifraude Schwerpunktthema: Zehn Jahre Amt für Betrugsbekämpfung The Context of OLAF’s Work OLAF’s Achievements Optimising OLAF OLAF’s Interplay with National Law and Institutions OLAF’s Future Role and the European Public Prosecutor 3 – 4 / 2008 ISSUE / ÉDITION / AUSGABE Contents News* Articles This issue of eucrim specialises in news items related to financial For a detailed overview of the contibutions, please refer interests. In addition, information is given on upcoming events in to page 110 European criminal law. Other regularly published news sections of eucrim, including developments on Europol, data protection, ne 111 The Context of OLAF's Work bis in idem, police and judicial cooperation, etc., will appear in the Bernd-Roland Killmann, Lorenzo Salazar, Thomas Wahl next issue. 128 OLAF’s Achievements European Union Dr. Marianne Wade, Yannis Xenakis, George Kasimis, Dr. Wolfgang Hetzer 90 OLAF 91 Protection of Financial Interests 142 Optimising OLAF 94 Tax Fraud / VAT Lucia Balogová, Dr. Simone White, Dr. Jörg Wojahn, 98 Money Counterfeiting Dr. Alessandro Butticé, Jean-Pierre Pétillon 99 Counterfeiting and Piracy 100 Mutual Administrative Assistance 157 OLAF’s Interplay with National Law and Institutions Dr. Małgorzata Wąsek-Wiaderek, Corina Badea, Karoly Benke, Prof. Dr. Jaroslav Fenyk, Ing. Petr Council of Europe Sedláček, Mag. Severin Glaser 101 Corruption 177 OLAF’s Future Role and the European Public Prosecutor 107 Money Laundering Andreea Staicu, Prof. Dr. John A.E. Vervaele, Dr. Lothar Kuhl Life of the Associations Imprint * News contain internet links referring to more detailed information. These links can be easily accessed either by clicking on the respective ID-number of the desired link in the online-journal or – for print version readers – by accessing our webpage www.mpicc.de/eucrim/search.php and then entering the ID-number of the link in the search form. Editorial Happy Birthday, OLAF! The European Anti-Fraud Office – OLAF – is now 10 years upon OLAF full responsi- old: The European Parliament is proud of this anniversary and bility for compliance with extends its cordial best wishes. If it hadn’t been for the Com- procedural guarantees and mittee on Budgetary Control’s perseverant demands to inten- protection of privacy, and, sify the European fight against fraud, the constitutive Regula- entrusts to the judges and tion No. 1073/99 would probably never have been established. public prosecutors em- In the meantime, enlargement from 15 to 27 Member States ployed by OLAF the task and an increasing global commitment have brought about of upholding these rights new fields of activity and challenges for both the EU and the for the duration of the Office. Presently, 50% of OLAF’s caseload is connected to investigations and ex- non-EU states. Since 2000, monies spent by the Commission changing information with conjointly with the UN or other international institutions have the Member States. We increased sevenfold. have integrated the Direc- Dr. Ingeborg Gräßle tor General into internal The constitutive Regulation has not adapted to the change. It structures and installed a also falls short of providing fully satisfactory answers to grave complaints service with an independent review adviser. The legal problems, in particular with regard to the rule of law – a standard attained thereby exceeds by far the general rules for fact the architects of the Regulation were aware of – thus call- administrative investigations and holds a cutting edge on an ing for interpretation in the judicature of the European Court international scale. of Justice. Hence, the procedural rights of potential suspects are solely mentioned within the recitals of said Regulation – Now, it is up to the Council to act: We note with regret the without extending to its actual provisions. The OLAF Supervi- failure of EU Member States when it comes to concrete steps sory Committee has formally been charged with safeguarding regarding either the Office or the legal processing of OLAF’s procedural guarantees that have not yet been codified. How- caseload. 36 OLAF-files resulting in 63 trials have been trans- ever, with OLAF being obliged to conduct its investigations ferred to the national authorities; a follow-up is available for in an independent manner and not being allowed to provide only two of them. The same applies to the structural funds: information on pending investigations, the Supervisory Com- Only nine of 30 files resulting in 40 trials are still able to be mittee’s means are limited and a matter of controversy. tracked down. Lack of knowledge about these cases is ampli- fied by the national authorities’ reluctance to act: Luxembourg, The founders assumed the creation of a European Public Pros- hosting 10,000 EU staff members, has so far not brought any ecution Service – as included now in the Lisbon Treaty. The charges against a single OLAF case. Nothing is worse for gen- question remains: What to do until it comes into effect and the eral faith in a proper administration of justice than the percep- European Public Prosecutor is actually operative? Even though tion that fraudulent acts remain unpunished. OLAF and its committed staff – together with the Supervisory Committee – have found ways to make this Regulation work- Member States have put the revision of OLAF’s constitutive able, there is no way round its thorough revision. Parliament Regulation on hold for an indefinite term. Instead of taking stands side-by-side with OLAF and continues to demand its one comparatively small but obvious step now, they are asking institutional evolution towards a Commission-independent, for a consolidation of OLAF’s three legal bases in “a giant autonomous European investigation unit. leap”. Thus many precious years will be lost for OLAF and a more efficient fight against fraud – with an uncertain outcome MEPs attach great importance to a truly efficient fight against to boot. fraud: There is no issue of greater concern to the European tax- payers than the correct appropriation of funds. Parliament has Dr. Ingeborg Gräßle done its share: Our statement has been submitted. It confers Member of the European Parliament eucrim 3–4 / 2008 | 89 News Actualités / Kurzmeldungen of Reg. 1073/99 are only preparatory acts with no binding effect (e.g. case “Tillack”; Cases T-193/04 and C-521/04 P(R)). The Commission/Council concluded that the contested decision cannot have adversely affected the complainants. The Civil Service Tribunal objected to European Union this view and affirmed that the transmis- Reported by Thomas Wahl sion of information indeed adversely af- fected the officials. The Tribunal mainly used two arguments for its justification: OLAF not sufficient proof of fraud. Hence, the First, it states that the provisions of the Italian judge responsible for preliminary Staff Regulations, which allow an offi- Court Strengthens Judicial Rights investigations shelved the proceedings. cial to submit a complaint vis-à-vis the in Case of Internal Investigations The officials affected lodged a Director of OLAF, are the corollary of After the far-reaching judgment of the complaint with the Director of OLAF the new powers for internal investiga- Court of First Instance of July 2008 in against the transmission of informa- tions conferred upon OLAF by the new the “Franchet & Byk” case (eucrim tion by OLAF to the Italian authorities legislation of 1999. ID=0801042), the Civil Service Tribu- in accordance with Art. 90a of the Staff Secondly, the Tribunal points out that nal rendered a further judgment on 28 Regulations of Officials of the European a denial of the decision being an act ad- April 2009 that will have a considerable Communities. This provision stipulates versely affecting an official would make impact on the rights of EC officials af- that an official may submit to the Direc- no sense with regard to the requirements fected by OLAF’s internal investigations tor of OLAF a complaint (…) against an resulting from the principle of effective (Joined Cases F-5/05 and F-7/05, Vio- act adversely affecting him in connec- judicial protection and given the conse- letti and Others v Commission, Schmit tion with investigations by OLAF. The quences liable to be entailed by a decision v Commission). complaint was rejected by OLAF. The to send information to national judicial In the case at issue, OLAF investi- complainants subsequently lodged an authorities. It closely connects this con- gated manipulations of accident decla- action before the Civil Service Tribunal, clusion with the procedural guarantees, rations within the Joint Research Cen- seeking annulment of OLAF’s investi- such as the right to be informed about tre (JRC) of the European Commission gations and compensation for damages the opening and closing of the investi- based in Ispra, Italy. OLAF concluded due to OLAF’s inquiries (Art. 91 of the gation, and the right to be heard, which that the behaviour of 42 officials of the Staff Regulations). the Community legislature explicitly at- JRC may give rise to criminal proceed- The first question that the Civil Serv- tached (cf. Art. 4 of Commission Deci- ings and sent the information to the pub- ice Tribunal had to decide on was the ad- sion 1999/396/EC,ECSC,Euratom of 2 lic prosecutor of Varese, Italy (pursuant missibility of the action, i.e., whether the June 1999), and which must be ensured. to Art. 10(2) of Regulation 1073/99). The transmission of information to national In this context, the Tribunal indicates officials affected by the OLAF inquiry (judicial) authorities is an act adversely that it is the only court which may cen- were not heard before the sending of affecting an official.