Brussels, 17/01/2000 (Agence Europe) - To be admissible, the European Commission's case against the European Investment Bank regarding Olaf must reach the Court, in Luxembourg, by 18 January in the evening. A few days from this very likely case, the IEB continues to defend its independence (see EUROPE of 13 January, p.15) and says that it expects the Court of Justice to define the exact nature of its relationship with the EU and the European Anti-Fraud Office. The Bank maintains that the Treaty enables it, obliges it even, to retain a certain amount of independence, even when t comes to combating fraud. The fact that the Bank needs to borrow on the market most of the funds it lends out plays a great deal in its will not give in to the controls of an anti-fraud office which, although independent, has been set up within the Commission.
The EIB recalls, indeed, that it belongs to the Member States and not the EU, and that a very large majority of its operations are undertaken with own-funds (only some 10% of its activities concern the management of Community funds). Yet, most of its own funds come from the market, and EIB spokesperson emphasises: "the EIB's capital 'underwritten' by Member states is one hundred billion euro, but only six billion have in fact been paid - Member States undertaking to pay the EIB the remainder if the EIB were so to request, in an unlikely case of emergency. To supply its some thirty billion euro in annual loans, the EIB thus turns to the markets for its capital", the spokesperson stipulates, for whom, "this distinction is very important in the framework of legal discussions over the EIB's obligation to submitting itself to the control of Olaf. Those who lend to the Bank have rights".
The EIB decided in November to introduce a certain form of cooperation with Olaf (transmission of information, possibility for the EIB to ask Olaf for its opinion…) regarding the management of Community funds, but to introduce an auditing system - independent of both the Bank and Olaf - to monitor the management of its own funds.
The European Commission considers that the EIB's decision is not satisfactory. It thus agrees with the opinion of the Surveillance Committee of the Anti-Fraud Office, whose interpretation of the Treaties and regulations concerning Olaf is very different from the EIB's.
In a report published early-October, Olaf's Surveillance Committee considered that Article 280 of the Treaty provides the Council and European Parliament with the right to be "able to take the measures necessary in the field of preventing fraud affecting the Community's financial interest", with "as only limit to Community measures the prohibition to interfere with implementation of national criminal law and the administration of justice in Member States, but (without providing for ) any institution, no body or Community organisation being exempted from measures taken on its foundation". Yet, the Surveillance Committee emphasises, "the European Central Bank and the European Investment Bank are institutions set up by Community treaties".
In addition, Article 280 of the Treaty and the regulation relating to Olaf investigations do not concern the Community budget but "all the Community's financial interests". And yet, the "Community is composed of all the institutions, bodies and organs set up by the treaties or on the basis of the latter. Their financial interests do not only encompass the funds that these Community institutions, bodies of organs own or manage, but also all their assets. They also extend to funds or assets that, for example, Member States confide in them" in the sense that, under Article 228 of the Treaty, the Community must repair the "damages caused by its institutions or its agents in the exercise of their duties", for example, stipulates Olaf's Surveillance Committee, due to fraud. However, it is worth noting that although Article 228 stipulates that these provisions apply to the ECB, their application to the EIB is not stipulated.
In addition to Regulation 1073/99 relating to Olaf enquiries, on 25 May, the European Parliament, Council and Commission signed an inter-institutional agreement Olaf, which commits the signatory institutions to adopt a common regime regarding Olaf enquiries. This agreement is intended to put into practice, in all institutions and bodies, Olaf's right to undertake investigations, particularly when it concerns "serious deeds, linked to the exercise of professional activities, that may constitute a failing to respect the obligations incumbent on Community officials or agents". The "other bodies or institutions set up by the Treaties", including the EIB and the ECB, are therefore "invited to accede". Olaf's Surveillance Committee considers that only this agreement "allows citizens and operators to be protected from a certain number of risk", including "corruption aimed at influencing Community legislation or the choice of projects financed or assisted by the Community, and including, if need be, by the EIB".
The discussions on possible fraud within the EIB come as British newspapers claim that an Italian economist who had worked at the EIB, Carlo de Nicola, is alleged to have handed European parliamentarians a document shedding light on large losses of money and fraudulent practices. Thus, between 1991 and 1994 the bank is said to have lost over £180 million following speculation on the part of part of its staff on financial markets. In addition, still according to these newspapers, Mr. de Nicola's report claims that, at a given time, up to 40% of the EIB's operations passed through the hands of a former bank official working in Jersey and a broker in New York.