Thank you, Mr Chairman for the invitation. I am delighted to be here today, and to share with you my views about OLAF’s administrative activities. I am with my colleague Mr. Lambros PAPADIAS, who deals with these issues in my Office.

OLAF clearly has a key role in the fight against fraud and irregularities affecting the EU budget and to fulfil this role adequately, the EU legislator has given it far-reaching powers.

But with those powers comes great responsibility and it is my task as Ombudsman and your task as the Supervisory Committee to ensure that OLAF carries out its investigations in accordance with the applicable rules and the principles of good administration.

With this in mind, I will address a number of points which I think are of interest to you.

1. OLAF’s administrative activities - overall assessment

I should point out, as an introductory remark, that my inquiries concern whether or not there was maladministration by OLAF in its conduct of investigations. The focus is therefore on OLAF’s handling of investigations. They do not concern the substantive conclusions of OLAF, whether there has been fraud or irregularities affecting the EU financial interests, but whether OLAF has complied with the rules binding on it, and in particular with the fundamental rights and procedural guarantees of the persons involved in its investigations.

My inquiries range from how OLAF carries out its mandate and complies with the administrative practices and rules governing the conduct of its investigations, to more specific issues such as how it deals with whistle-blower reports and how it communicates with informants and complainants. In addition, many of the cases I have dealt with concern issues of transparency and public access to documents from OLAF’s investigation files.

Let me say a few words about each of these issues.

• How OLAF carries out its mandate

Citizens regularly report fraud and irregularities affecting the EU budget to OLAF. OLAF itself, through its website, encourages them to do so. To build citizens’ trust in the EU, I believe it is important that citizens reporting concerns to OLAF also feel that their concerns are taken seriously. At the same time, OLAF is bound by its mandate, as set out in Regulation 883/2013.

In assessing complaints about how OLAF carries out its mandate - in particular decisions not to open an investigation into concerns reported by citizens - my role is to verify that OLAF has not made a manifest error. I also have to make sure that OLAF’s explanations to citizens about its decisions are meaningful, coherent and reasonable.

In the cases examined so far, I found that OLAF has to a large extent complied with this requirement.

• OLAF’s compliance with administrative practices and rules governing the conduct of its investigations

It is good administrative practice for a public authority, such as OLAF, to adhere to its own procedures, particularly those aimed at protecting the fundamental rights of citizens.

I have received complaints about whether OLAF has complied with administrative practices and rules governing the conduct of its investigations.  In these cases, I found that, in general, OLAF complied with the relevant applicable rules (for instance, the rules concerning the need for a prior written authorisation to carry out an investigative measure, or the rules concerning the transmission of Final Reports to the relevant authorities).

In one recent case I did however find maladministration. My inquiry concerned a so-called “coordination case”, in which OLAF had assisted the national authorities and had taken the view that there was therefore no need to “hear” the complainants, as this would be done at national level. However, OLAF had not merely assisted the national authority in carrying out an investigation, but had also drawn its own conclusions and made its own recommendations to the Commission. My view was that OLAF should not have done so without having first conducted its own investigation. I  recommended that OLAF clarify to the Commission that its “final report” had not been based on its own investigation. I also recommended that OLAF ensure that, in the future, it draws conclusions or issues recommendations only in cases where it conducts a proper investigation. Regretfully, OLAF did not accept these recommendations and I therefore closed the case confirming my finding of maladministration.

• How OLAF has dealt with whistleblowers reports and requests

All EU institutions should encourage and support people who help them to identify and deal with problems that could weaken citizens' trust in the EU. Therefore, I attach great importance to how the EU institutions, and OLAF in particular, deal with whistleblowers.

In one case, I found that OLAF had dealt appropriately with a complainant's whistleblowing report about alleged wrongdoings in an EU Agency. However, I also suggested to OLAF to make it clear to the whistle-blower that its referral of the matter to the EU Agency concerned did not necessarily mean that OLAF would not be taking any further action on the matter. Regretfully, OLAF’s response was disappointing, as it did not make any commitment in that regard, although it essentially agreed with my suggestion for improvement.

In another case, I made a recommendation to OLAF to inform a whistle-blower of the reasons for its decision to close its investigation into alleged irregularities in an EU Agency. OLAF accepted and implemented my recommendation and amended its policy on this matter accordingly.

• Failure to reply to citizens’ letters

The European Code of Good Administrative Behaviour requires EU staff to be service-minded and to reply within a reasonable time to citizens’ letters and e-mails requesting information or reporting fraud. Citizens’ complaints about alleged fraud or irregularities with EU money can be, in addition, an important source of information for OLAF.

Many of the complaints submitted to my Office are about OLAF’s failure to reply to citizens’ letters. In such cases, I intervened and simply asked OLAF to reply which it did.

However, in a recent case, in order to ensure that OLAF does not ignore such letters or fail even to acknowledge them, I suggested to OLAF to remind its staff members of the principles applicable to interactions with citizens, as set out in the Code of Good Administrative Behaviour. OLAF did so, and also organised an information session on principles of good administration for its staff with a view to increase awareness of the principles enshrined in the Code of Good Administrative Behaviour.

• Transparency/public access to documents relating to OLAF’s investigations

My role in the area of transparency and public access to documents in particular is to check whether OLAF complies with Regulation 1049/2001, and provides reasonable and appropriate explanations when it refuses public access.

In many of the cases examined in this field, I found that OLAF had valid reasons to refuse public access to documents related to its investigations. In some other cases, I recommended that it consider at least partial disclosure. In the few cases where OLAF’s reasons not to implement my recommendations were not convincing, I confirmed my initial findings of maladministration.

I have also made a number of suggestions for improvement to OLAF regarding the procedural requirements laid down in Regulation 1049/2001 (e.g. to comply with the requirements concerning time limits to deal with citizens’ requests for access to documents). In general, OLAF has welcomed and replied positively to my suggestions and has also taken the appropriate implementing measures.

• Respect for fundamental rights/procedural guarantees

Many complaints to my Office are about alleged breaches of the fundamental rights and procedural guarantees of the persons investigated by OLAF. They range from the rights of defence of the persons concerned (right to be informed, right to be heard and opportunity to provide comments) to the right of access to one’s file, and to a lesser extent, to compliance with data protection rules.

This is an important but complex issue but let me just make a few general points on my approach.

OLAF’s administrative practices have improved, in particular after the legal framework governing OLAF’s investigations changed with the adoption, in 2013, of Regulation 883.

 That said, I still believe that there is room for further improvement and in a number of recent cases I have made several suggestions in that regard.

In one recent case the complainant took issue with the fact that OLAF provided him with the opportunity to comment on the facts concerning him in writing rather than in an interview. He was also concerned that OLAF did not follow up on his request to seek and gather digital evidence located in a specific Member State.

Having analysed the file, I took the view that OLAF has discretion in deciding which investigative measure is most appropriate in a specific case. I also found that OLAF did not misuse its discretionary powers by not seeking to retrieve and gather the digital information mentioned by the complainant. I therefore found that there was no maladministration in this case. However, I made two suggestions for improvement to OLAF, that explain 1) why it chooses not to carry out an interview if the person under investigation asks to do so and 2) why it chooses to take (or not) a specific investigative measure.

Currently, I am awaiting OLAF’s reply to these suggestions.

In another recent case, I suggested to OLAF to explain properly the reasons why it considered that the disclosure of a Final Report risks undermining an ongoing national investigation, and to seek the views from the national authorities concerned before refusing access to it. In reply, OLAF stated that it would consider these suggestions in future similar cases.

Finally, I have also suggested to OLAF to consider making an audio or video recording of interviews. OLAF has acknowledged the benefit of doing so, but appears reluctant at present to take a definitive decision on this issue. I do hope that OLAF will revisit this issue soon and decide that it would be a good administrative practice if such recordings are made.

Let me now offer some thoughts on the possible impact of the new European Public Prosecutor.

2. Possible impact of the new EPPO on OLAF

The new EPPO Regulation makes it clear that the EPPO, which will be based in Luxembourg, will be responsible for criminal investigations, while OLAF will continue its administrative investigations into irregularities and fraud affecting the EU's financial interests, in all Member States.

Although the EPPO will certainly affect the way OLAF operates, it is still not clear how in practice OLAF and the EPPO will coexist and cooperate. This lack of clarity concerns in particular those cases where OLAF is expected to consult and coordinate closely with the EPPO, namely when OLAF will conduct administrative investigations at the EPPO’s request and will have to gather evidence for the purpose of the EPPO’s criminal proceedings. It is not at all clear under the EPPO Regulation whether OLAF will assist the EPPO by acting within its own legal framework or within that of the EPPO. This is an important question, as the EPPO’s legal framework is of a criminal, and not of an administrative nature. Should OLAF’s activities become compliant now not just with the principles of good administration but also with those of criminal law?

Many questions have already surfaced as regards these issues. I take note, in particular, of the concerns expressed by the Supervisory Committee in its opinion on this issue in September 2017.

It is now clear that, in order to increase clarity and legal certainty, it is necessary to adapt the current OLAF Regulation. Otherwise, I am afraid these questions will prompt future complaints to the Ombudsman.

3. Proposed revised OLAF Regulation - proposed "Controller for procedural guarantees" and "OLAF Complaints Mechanism"

I am aware that the issue of redress mechanisms for persons involved in OLAF’s investigations has been a recurrent matter of concern and has been discussed in various fora, including the Supervisory Committee. Several legislative proposals have been put forward in the past, but they have not been successful.

This is, of course, a matter of concern for the European Ombudsman as well. Both my predecessor and I have looked into how the EU institutions and bodies were setting up their internal complaints mechanisms to deal with concerns raised by EU citizens. We have constantly taken the view that, without an efficient internal complaints mechanism, compliance with fundamental rights and procedural guarantees of persons affected by the administrative activities of the EU institutions cannot ultimately be effective.

This applies to OLAF as well. I believe that it is essential for persons involved in OLAF's investigations to have at their disposal efficient options for redress to complain about potential violation of their rights and procedural guarantees. I am happy to note that, in a 2013 opinion the Supervisory Committee shared the same view.

I note that the very recent amendments proposed by Parliament intend to attempt to close the current legislative gap. It intends, it seems, to create an internal control function in the form of the Controller of procedural guarantees, responsible for handling complaints received by OLAF and of giving prior authorisations to the Director-General in specific circumstances. It is also proposed to establish a complaints mechanism in cooperation with the Controller of procedural guarantees. This should be an administrative mechanism whereby the Controller should be responsible for handling complaints received by OLAF in accordance with the right to good administration.

These amendments will be voted on in committee next Monday in the Parliament I understand.

That said, I believe that any efficient complaints mechanism must respect several conditions. These conditions include operational independence, transparency, accessibility, timeliness and adequate resources. It goes without saying that, to ensure that this mechanism operates effectively, OLAF should always lend its support and fully cooperate with it.

I also note that the proposed Regulation confirms the role of the Supervisory Committee in monitoring developments of procedural guarantees. However, it is not entirely clear at this stage how the Supervisory Committee and the Controller of procedural guarantees will coexist. I believe that it is important that the proposed Regulation clearly define the respective roles of the Controller and of the Supervisory Committee, to avoid the multiplication of independent supervising bodies and confusion on the role of each actor involved in OLAF’s supervision, duplication of work, and conflict of competences and of recommendations to the Director-General.

At this stage, my understanding is that the Controller will carry out an ex ante control and will take care of OLAF’s day-to-day handling of investigations, while the Supervisory Committee will carry out an ex post supervision of OLAF’s investigative activities and will thus shape the future of OLAF’s investigative function from a forward-looking perspective.

I look forward to your hearing your views on these issues.

Thank you.