Brussels, 14/04/2016 (Agence Europe) - On 13 April, the European Court of Auditors published a rather positive opinion on a proposal for a Regulation as regards the secretariat of the Supervisory Committee of the European Anti-Fraud Office (OLAF).
It says that one should not wait until 2017 before clarifying the procedure for lifting immunity from the OLAF director-general. In March 2016, the Commission decided as part of the Dalli case to lift the immunity of jurisdiction enjoyed by the OLAF director-general, Giovanni Kessler, upon request from the judicial authorities of Belgium (see EUROPE 11510).
Commission to provide the secretariat fro the Surveillance Committee. Under the Commission's proposed Regulation, the secretariat of the Supervisory Committee will be provided by the Commission, and no longer by OLAF. The proposal foresees that the powers of OLAF's data protection delegate will continue to cover the processing of data by the secretariat and that the secretariat's staff will remain subject to the same rules as before when it comes to confidentiality. The Court points out in that back in 2011, during the last revision of the regulation on OLAF, it had recommended including a provision that the Supervisory 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 of OLAF. “Against this background, the Court welcomes the proposal that the secretariat of the Supervisory Committee should no longer be provided by OLAF. However, the new provisions (…) could be completed in order to clarify that the secretariat must act independently not only of OLAF but also of the Commission and that it is under the authority of the Supervisory Committee”, explains the Court.
Process for lifting immunity. The Court takes note that the forthcoming overall assessment of the regulation on OLAF in 2017 will provide an opportunity to examine and, if necessary, overhaul the governance of OLAF including its supervisory arrangements. “However, in the light of recent developments, it would be advisable not to wait for this overall evaluation to clarify the procedure for lifting the immunity of the Director-General of OLAF or of any other member of OLAF staff at the request of a national judicial authority”, explains the Court's opinion.
When a national judicial authority issues such a request, the independence of OLAF might need an additional safeguard. The Court therefore recommends that Article 17 of the OLAF Regulation should be completed by a provision that the Commission has to inform the Supervisory Committee of any such request in a timely manner and has to consult the Committee before taking a decision
Risk of conflicts of interest. The European Anti-Fraud Office (OLAF) is a directorate-general of the Commission but is functionally independent with respect to its investigative work. The Office was created in 1999. OLAF's set-up includes a supervisory committee which is tasked to “regularly monitor the implementation by the Office of its investigative function, in order to reinforce the Office's independence in the proper exercise of the competences conferred upon it. At present, OLAF provides the secretariat for the Surveillance Committee, in close collaboration with it. While the secretariat is functionally attached to the Supervisory Committee, the secretariat staff is administratively subordinated to the Director-General of OLAF. The Director-General holds the powers of the appointing authority and decides, for example, on promotions and transfers of the secretariat staff. The Supervisory Committee says this situation has led to conflicts of interest and exposed the secretariat staff to conflicting instructions. (Original version in French by Lionel Changeur)