Strasbourg, 6 June 2005

Dear Mr X.,

On 7 January 2004, you made a complaint to the European Ombudsman concerning an investigation by the European Anti-Fraud Office (OLAF) into possibly illegal activities within the Office for Official Publications of the European Communities ('OPOCE').

On 11 February 2004, I forwarded the complaint to the Director-General of OLAF. OLAF sent its opinion on 7 April 2004. I forwarded it to you with an invitation to make observations, which you sent on 20 June 2004.

On 21 October 2004, I informed you that I had decided to conduct further inquiries. On 30 November 2004, OLAF replied to my further inquiries, and I forwarded its reply to you for observations. You sent me your observations on 16 December 2004.

On [ date ] 2005, the Official Journal reported that you had brought an action against the European Commission before the Court of First Instance. Your action before the Court of First Instance appeared to relate to one of the allegations that I had taken up for inquiry in the present case. I therefore wrote to you on 9 March 2005 to give you the opportunity to submit your views as to the possible significance of Articles 1(3) and 2(7) of the Ombudsman's Statute(1) for your case. You replied on 11 March 2005.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The complainant was an official who had worked for the Office for Official Publications of the European Communities ('OPOCE'), the European Union's publications office. He complained against the European Anti-Fraud Office ('OLAF') in respect of OLAF's handling of information that he had submitted to it about suspected illegalities at OPOCE.

The complainant stated that during his employment at OPOCE, he had been given reason to believe that his superiors at OPOCE had handled a contract contrary to the interests of the Communities. On 31 July 2002, he provided this information by email to the Director-General of OLAF. OLAF confirmed receipt of this information and initiated an official investigation on 13 November 2002.

The complaint to the Ombudsman related to provisions in the Commission's decision C(2002) 845 of 4 April 2002. This decision laid down the rights and duties in respect of officials intending to report on suspected wrongdoings in the Commission (popularly known as 'whistleblowers')(2).

The disputed provision of this decision was Article 2, which provided as follows:

"1. An official or servant who further discloses information as defined in Article 1 outside the Commission or the European Anti-Fraud Office shall not as a result suffer any adverse consequences from the Commission alone provided that all the following conditions are met:

a) The official or servant honestly and reasonably believes that the information disclosed, and any allegation contained in it, are substantially true;

b) the official or servant has previously disclosed the same information to the European Anti-Fraud Office or to the Commission and has allowed a reasonable period of time for the Office or the Commission to take appropriate action; and

c) the disclosure is made to the President of the Court of Auditors or of the Council of the European Union or of the European Parliament; or the European Ombudsman.

2. For the purpose of subparagraph (1)(b), and subject to paragraph (3), a reasonable period shall be the period which the Office or the Commission, as the case may be, has indicated as being necessary to carry out the investigations and, where necessary, take appropriate action. The official or servant shall be duly informed.

3. Paragraph (2) shall not apply where the official or servant can demonstrate that the period or periods indicated by the Office or the Commission is or are unreasonable having regard to all the circumstances of the case."

Referring to Article 2(2) quoted above, the complainant stated that no 'reasonable period' had been indicated to him by OLAF. He considered this to be a breach of that article.

The complainant furthermore considered that OLAF had not conducted its inquiry quickly enough. He stated that following the opening of OLAF's inquiry on 13 November 2002, he was interviewed by the Director-General of OLAF on 15 September 2003. According to the complainant, the Director-General informed him that he would receive information on the case within a short period of time. Not having received any further information, the complainant asked to be informed about either a final conclusion on OLAF's inquiry or a fixed date planned for its conclusion. He asked for the information by 2 January 2004. Not having received any response to this request, the complainant submitted his complaint to the Ombudsman.

Thus, the complainant alleged undue delay by OLAF in the handling of information disclosed under Commission Decision C (2002) 845 of 4 April 2002 regarding investigation OF/[reference number]. Furthermore, he alleged lack of information regarding the reasonable period necessary to carry out the investigations in accordance with Article 2(2) of the above-mentioned Commission Decision.

THE INQUIRY

OLAF's opinion

The complaint was submitted to OLAF for an opinion.

In its opinion, OLAF made the following comments:

With regard to the complainant's first allegation of delay, OLAF noted that its legal framework did not specify the period within which an investigation must be completed. It considered that the matter had been handled within a reasonable period of time, in particular in the light of OLAF's caseload during the relevant period. It gave the following account of its actions following the complainant's submission of his information on OPOCE :

An internal investigation was opened on 18 October 2002; the complainant was interviewed on 13 November 2002, and relevant documentation was collected in December 2002; between October 2002 and December 2003, the matter was reassigned twice - the first time because a decision was taken to open an internal investigation, which had required the replacement of the evaluator by an investigator from the internal investigation team, and the second time because the investigator in charge was re-assigned to the "Eurostat Task Force", necessitating the reassignment of his cases.

In December 2003, the investigator then in charge of the case prepared a final case report in which he recommended that the investigation be closed without follow-up. On 17 December 2003, the investigator telephoned the complainant to inform him of the provisional conclusions. During the conversation, the complainant made further allegations against his superiors at OPOCE, as a result of which the investigator made further inquiries and an assessment of the evidence which had been gathered. On 28 January 2004, the investigator again telephoned the complainant to inform him that the further investigation was complete, and that the recommendation to close the case without follow-up remained unchanged.

On 5 February 2004, the case was closed without follow-up. The complainant was formally notified of this on 16 February 2004. Accordingly, the total period that lapsed between the opening and closing of the investigation was approximately 15 months.

Following this account, OLAF stated that it has a very wide discretion regarding the way in which it deals with investigations, and repeated that it is under no obligation to complete any particular investigation within a specified period of time. In exercising its discretion, it takes into account the priority of any given investigation in comparison with the other investigations being made, and resources are allocated accordingly. The delay of several months resulting from the reassignment of the case could not be considered unreasonable under the circumstances.

With regard to the complainant's second allegation, OLAF referred to Article 2 of the Commission decision quoted above, stating that "[i]n the present case, Article 2 is not at issue, because the complainant does not allege that he has suffered any adverse consequences for having disclosed the information outside the Commission or OLAF".

OLAF also stated that even if Article 2 were applicable, its requirements had been fully satisfied in this case, stating that "[f]rom the opening of the investigation until 31 July 2003, the complainant never indicated that he believed that a reasonable period had passed since he first provided the information to OLAF and that he was contemplating disclosing the information outside the Commission or OLAF [...]".

The complainant's observations

OLAF's opinion was submitted to the complainant for observations.

In his observations, the complainant maintained his allegations and made the following additional comments:

With regard to his first allegation concerning delay, the complainant conceded that there are no specific statutory deadlines for the conclusion of inquiries. However, he referred to Article 11(7) of Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF)(3), which provides that "[w]here an investigation has been in progress for more than nine months, the Director shall inform the Supervisory Committee of the reasons for which it has not yet been possible to wind up the investigation, and of the expected time for completion." The complainant referred to the annual report of the OLAF Supervisory Committee, published in 2001 (i.e. preceding the OLAF investigation based on the complainant's submissions), which noted problems related to delays in the inquiry and stated that the nine month period referred to in Article 11(7) should, in respect of internal investigations, "[i]n future ... be respected as a matter of principle [...]".

The complainant also addressed the question of priority. He put forward, in summary, that OLAF had failed to respect the criteria for the setting of priorities. He referred to OLAF's Manual that came into force in January 2003, which contains such criteria. According to the complainant, it could be assumed that similar criteria should have applied already before the Manual came into force.

With regard to the second allegation (failure to inform about length of inquiry), the complainant put forward that OLAF had misinterpreted Article 2 of Commission Decision C(2002)845. The complainant put forward that Article 2 should logically be interpreted to establish a duty on OLAF to inform the official concerned of the length of time that OLAF expected an inquiry to last. He considered that the duty contained in Article 2 was in no sense bound to the condition that the official concerned had himself or herself requested OLAF to provide the information, nor that the official concerned had already suffered negative consequences. The complainant put forward that his interpretation was supported by Article 22b of the new Staff Regulations that came into force after the Commission decision here concerned. That article provides as follows (emphasis added):

Article 22b

1. An official who further discloses information as defined in Article 22a to the President of the Commission or of the Court of Auditors or of the Council or of the European Parliament, or to the European Ombudsman, shall not suffer any prejudicial effects on the part of the institution to which he belongs provided that both of the following conditions are met:

(a) the official honestly and reasonably believes that the information disclosed, and any allegation contained in it, are substantially true; and

(b) the official has previously disclosed the same information to OLAF or to his own institution and has allowed the OLAF or that institution the period of time set by the Office or the institution, given the complexity of the case, to take appropriate action. The official shall be duly informed of that period of time within 60 days.

The complainant considered that the provision here emphasised merely set out in more precise terms a duty that was inherent in Article 2 of Commission Decision C/2002)845.

In his observations, the complainant also noted that he had made remarks in his complaint concerning the adequacy of OLAF's investigation. He submitted to the Ombudsman that this issue could be taken up for inquiry within the present inquiry. He claimed that OLAF should reopen its investigation.

Further inquiries

After careful consideration of OLAF's opinion and the complainant's observations, it appeared that further inquiries were necessary.

The Ombudsman's request to OLAF

The Ombudsman requested OLAF to provide supplementary information on the following:

In respect of the first allegation, the complainant argues that OLAF has failed to respect guidelines set out by OLAF's Supervisory Committee and failed to respect relevant criteria for the setting of priorities.

In respect of the second allegation, the complainant argues that the new Staff Regulations have merely spelt out in more precise terms a duty that was inherent in Article 2 of Commission Decision C/2002)845.

The Ombudsman furthermore requested OLAF to provide a supplementary opinion in which it addressed the complainant's allegation that there was a lack of a thorough investigation and a lack of an effective response in case OF/[reference number] by OLAF, as well as the complainant's claim that OLAF should reopen the inquiry.

OLAF's response to the further inquiries

In its reply to the Ombudsman's further inquiries, OLAF noted that its Supervisory Committee has no legal power to set deadlines for the completion of investigations. It therefore rejected the view that it had failed to respect guidelines set out by the Committee.

With regard to the setting of priorities, OLAF stated that the complainant was not in a position to judge whether OLAF correctly exercised its discretion as regards the investigation here concerned in the light of the hundreds of other cases that OLAF dealt with at the time. It stated that "[e]ven if he had such knowledge, the exercise of OLAF's discretion does not fall within the concept of maladministration and therefore is not properly the subject of review by the Ombudsman".

With regard to the second allegation, OLAF stated, in summary, that Article 22b of the amended Staff Regulations was irrelevant for the interpretation of Article 2 of Commission Decision C(2002) 845.

With regard to the complainant's allegation that there was a lack of a thorough investigation and a lack of an effective response in case OF/[reference number] by OLAF, as well as the complainant's claim that OLAF should reopen the inquiry, OLAF considered that this aspect of the complaint was not within the Ombudsman's competence to review. Referring to the Ombudsman's legal bases, it made the following comments:

"... 'maladministration' refers to the form and procedure in which an administrative decision was taken, and not to its substance. The Ombudsman is therefore competent to review whether OLAF's investigative procedure was correct, fair, and in compliance with all applicable procedural guarantees. In contrast, OLAF's exercise of its discretion and its judgment on substantive matters such as those raised by the complainant fall outside of the review standard of maladministration. The Ombudsman could engage in such substantive scrutiny only in exceptional cases, where the content of an OLAF decision is manifestly arbitrary, abusive or 'ultra vires'. Here, however, no such allegation is made. Rather, the allegations relate to deficiencies, as perceived by the complainant, in the quality of the Final Case Report, whether further investigation activities should have been undertaken, whether different legal norms should have been considered, whether OLAF's decisions to close the case and that no follow-up was necessary were justified, and a host of other, more general questions. Such matters all concern the substance of OLAF's decisions on this matter, and [are] therefore outside the scope of 'maladministration'".

The complainant's observations

OLAF's reply to the Ombudsman's further inquiries was sent to the complainant, who maintained his complaint.

Court action by the complainant

On [date] 2005, the Official Journal reported that the complainant had brought an action against the European Commission before the Court of First Instance. The complainant was reported to claim (a) that the Court should annul the decision of 5 February 2004 to close the OLAF investigation OF/[reference number] and the final case report on which that decision was based, and (b) that the Court should order the Commission to reopen the investigation. Thus, the complainant's action before the Court of First Instance appeared to relate to the new allegation included in the inquiry through the Ombudsman's further inquiries (concerning the adequacy of OLAF's investigation). The Ombudsman therefore wrote to the complainant on 9 March 2005 to give him the opportunity to submit his views as to the possible significance of Articles 1(3) and 2(7) of the Ombudsman's Statute(4) for his case.

The complainant replied on 11 March 2005. He proposed that the Ombudsman should continue his inquiry into all the allegations and his claim. As regards the allegation and the claim taken up in the Ombudsman's further inquiries, the complainant stated that "there is a connection" to his case before the Court. However, he put forward two main arguments in view of which the Ombudsman should continue the inquiry into that allegation and claim: (i) the Court had not yet decided on the admissibility of his case, and there was therefore no court decision with which the Ombudsman's review could interfere; (ii) the case before the Court was against the Commission, not against OLAF.

THE DECISION

1 Introductory remarks

1.1 The complainant was an official who had worked for the Office for Official Publications of the European Communities ('OPOCE'), the European Union's publication office. He complained against the European Anti-Fraud Office ('OLAF') in respect of OLAF's handling of information that he had submitted to it about suspected illegalities at OPOCE. He had provided information on this to the Director General of OLAF on 31 July 2002. OLAF initiated an official investigation on 13 November 2002 [reference number]. The complaint to the Ombudsman related to provisions in the Commission's decision C(2002) 845 of 4 April 2002. This decision laid down the rights and duties in respect of officials intending to report on suspected wrongdoings in the Commission (popularly known as 'whistleblowers'). The disputed provision of this decision was Article 2, which provided as follows:

"1. An official or servant who further discloses information as defined in Article 1 outside the Commission or the European Anti-Fraud Office shall not as a result suffer any adverse consequences from the Commission alone provided that all the following conditions are met:

a) The official or servant honestly and reasonably believes that the information disclosed, and any allegation contained in it, are substantially true;

b) the official or servant has previously disclosed the same information to the European Anti-Fraud Office or to the Commission and has allowed a reasonable period of time for the Office or the Commission to take appropriate action; and

c) the disclosure is made to the President of the Court of Auditors or of the Council of the European Union or of the European Parliament; or the European Ombudsman.

2. For the purpose of subparagraph (1)(b), and subject to paragraph (3), a reasonable period shall be the period which the Office or the Commission, as the case may be, has indicated as being necessary to carry out the investigations and, where necessary, take appropriate action. The official or servant shall be duly informed.

3. Paragraph (2) shall not apply where the official or servant can demonstrate that the period or periods indicated by the Office or the Commission is or are unreasonable having regard to all the circumstances of the case."

The complainant alleged undue delay by OLAF in the handling of information disclosed under Commission Decision C (2002) 845 of 4 April 2002 regarding investigation OF/[reference number]. Furthermore, he alleged lack of information regarding the reasonable period necessary to carry out the investigations in accordance with Article 2(2) of the above-mentioned Commission Decision.

1.2 In its opinion, OLAF referred to Article 2 of the Commission decision quoted above, stating that "[i]n the present case, Article 2 is not at issue, because the complainant does not allege that he has suffered any adverse consequences for having disclosed the information outside the Commission or OLAF". OLAF also stated that even if Article 2 were applicable, its requirements had been fully satisfied in this case, stating that "[f]rom the opening of the investigation until 31 July 2003, the complainant never indicated that he believed that a reasonable period had passed since he first provided the information to OLAF and that he was contemplating disclosing the information outside the Commission or OLAF[...]".

1.3 In his observations, the complainant conceded that the relevant provisions of Community law did not lay down specific deadlines for the conclusion of OLAF's investigations. However, he pointed out that the OLAF Supervisory Committee had indicated that a nine-month deadline should be respected. The complainant also suggested that OLAF had failed to give priority to his case. He referred to priority criteria set out in a new OLAF Manual. With regard to his second allegation, the complainant essentially put forward that OLAF had misinterpreted Article 2(2) of Commission Decision C(2002) 845. The complainant also noted that he had made remarks concerning the substantive adequacy of OLAF's investigation. He submitted to the Ombudsman that this issue could be taken up for inquiry within the present inquiry. He claimed that OLAF should reopen its investigation.

1.4 The Ombudsman decided to conduct further inquiries. He requested OLAF to provide a supplementary opinion in which it addressed the complainant's allegation that there was a lack of a thorough investigation and a lack of an effective response in case OF/[reference number] by OLAF, as well as the complainant's claim that OLAF should reopen the inquiry.

1.5 In its reply to the Ombudsman's further inquiries, OLAF stated that its Supervisory Committee has no legal power to set deadlines for the completion of investigations. It therefore rejected the view that it had failed to respect guidelines set out by the Committee.

With regard to the setting of priorities, OLAF stated that the complainant was not in a position to judge whether OLAF correctly exercised its discretion as regards the investigation here concerned in the light of the hundreds of other cases that OLAF dealt with at the time. It stated that "[e]ven if he had such knowledge, the exercise of OLAF's discretion does not fall within the concept of maladministration and therefore is not properly the subject of review by the Ombudsman".

With regard to the second allegation, OLAF stated, in summary, that Article 22b of the amended Staff Regulations was irrelevant for the interpretation of Article 2 of Commission Decision C(2002) 845.

With regard to the complainant's allegation that there was a lack of a thorough investigation and a lack of an effective response in case OF/[reference number] by OLAF, as well as the complainant's claim that OLAF should reopen the inquiry, OLAF considered that, in the present case, this aspect of the complaint was not within the Ombudsman's competence to review.

1.6 In his observations on OLAF's reply to the Ombudsman's further inquiries, the complainant maintained his complaint.

1.7 On [date] 2005, the Official Journal reported that the complainant had brought an action against the European Commission before the Court of First Instance. The complainant was reported to claim (a) that the Court should annul the decision of 5 February 2004 to close OLAF investigation OF/[reference number] and the final case report on which that decision was based, and (b) that the Court should order the Commission to reopen the investigation. Thus, the complainant's action before the Court of First Instance appeared to relate to the new allegation included in the inquiry through the Ombudsman's further inquiries (concerning the adequacy of OLAF's investigation). The Ombudsman therefore wrote to the complainant on 9 March 2005 to give him the opportunity to submit his views as to the possible significance that Articles 1(3) and 2(7) of the Ombudsman's Statute(5) may have for his case. In his reply, the complainant accepted that there was "a connection" to his case before the Court. However, he argued that the Ombudsman should nevertheless continue the inquiry into that allegation and claim (i) because the Court had not yet decided on the admissibility of his case, and because there was therefore no court decision with which the Ombudsman's review could interfere, and (ii) because the case before the Court was against the Commission, not against OLAF. He proposed that the Ombudsman should continue his inquiry into all the allegations and his claim.

1.8 The Ombudsman considers it necessary to address two issues in these introductory remarks: the first is the complainant's action before the Court of First Instance; the second is OLAF's view on the scope of the Ombudsman's competence.

1.9 With regard to the complainant's action before the Court of First Instance, it appears that the issues before the Court and the new allegation included in the inquiry through the Ombudsman's further inquiries (concerning the adequacy of OLAF's investigation) concern essentially the same issue. The Ombudsman therefore considers that it would be inconsistent with Articles 1(3) and 2(7) of the Ombudsman's Statute to review that new allegation. The fact that the complainant's action is against the Commission rather than OLAF cannot give rise to a different conclusion. The Ombudsman points out that court actions concerning acts by OLAF are dealt with as actions against the Commission by the Community Courts(6). There would in any case be an inevitable overlap of review if the Ombudsman and the Court were both to review the adequacy of the same investigation, irrespective of whether the court action is against the Commission or OLAF. The Ombudsman has accordingly decided (a) not to review the new allegation that there was a lack of a thorough investigation and a lack of an effective response in case OF/[reference number] by OLAF, and (b) not to review the complainant's claim that OLAF should reopen the inquiry. If, however, the complainant's action before the Court of First Instance is either dropped or rejected by the Court as inadmissible, the complainant would be free to complain to the Ombudsman again.

1.10 With regard to OLAF's comments on the scope of the Ombudsman's competence to review the exercise of discretionary powers, it appears that OLAF accepts that the Ombudsman is competent to review procedural issues as well as questions of arbitrariness, misuse of powers and 'ultra vires'. OLAF appeared, however, to consider that such issues had not been raised by the complainant in the present case.

1.11 In the light of his decision (a) not to review the new allegation that there was a lack of a thorough investigation and a lack of an effective response in case OF/[reference number] by OLAF, and (b) not to review the complainant's claim that OLAF should reopen the inquiry (see paragraph 1.9 above), the Ombudsman considers that it is not necessary further to comment on this aspect of the case.

2 Allegation of undue delay

2.1 The complainant alleged undue delay by OLAF in the handling of information disclosed under Commission Decision C (2002) 845 of 4 April 2002 regarding investigation OF/[reference number]. OLAF rejected this allegation, giving an account of its investigation.

2.2 It appears from OLAF's legal framework that the Community legislator has not laid down specific deadlines for the completion of investigations of the kind here concerned. The complainant has noted that the OLAF Supervisory Committee has addressed the issue of delay. However, it appears that the Supervisory Committee is not competent to lay down specific procedural rules for OLAF's investigations. OLAF is therefore not legally obliged to implement deadlines suggested by the Supervisory Committee in its reports.

2.3 Thus, the Ombudsman's review is aimed at establishing whether there were unreasonable or unjustified delays in OLAF's investigation here concerned.

2.4 It appears from the complaint, OLAF's opinion and the complainant's observations that following receipt of the complainant's allegations against OPOCE on 31 July 2002, OLAF opened an investigation on 18 October 2002; the complainant was interviewed by OLAF on 13 November 2002, and relevant documentation was collected in December 2002; between October 2002 and December 2003, the matter was reassigned twice - according to OLAF, the first time because a decision was taken to open an internal investigation, which had required the replacement of the evaluator by an investigator from the internal investigation team, and the second time because the investigator in charge was re-assigned to the "Eurostat Task Force", necessitating the reassignment of his cases. On 31 July 2003, the complainant contacted OLAF's Director because he considered the handling of his file to be unsatisfactory. OLAF's Director interviewed the complainant on 15 September 2003. In December 2003, the OLAF investigator then in charge of the case prepared a final case report in which he recommended that the investigation be closed without follow-up. On 17 December 2003, the investigator telephoned the complainant to inform him of the provisional conclusions. During the conversation, the complainant made further allegations against his superiors at OPOCE, as a result of which the investigator made further inquiries and a further assessment of the evidence which had been gathered. On 28 January 2004, the investigator again telephoned the complainant to inform him that the further investigation was complete, and that the recommendation to close the case without follow-up remained unchanged. On 5 February 2004, the case was closed without follow-up. The complainant was formally notified of this on 16 February 2004. In his observations, the complainant has stated that there were no investigative activities between December 2002 and August 2003.

2.5 It appears from OLAF's opinion that OLAF recognises that there was a delay of several months. OLAF seems to consider that this delay is adequately explained by the fact that the file was reassigned twice and by the significant case-load at the time. The complainant has pointed out that his allegations concerned a complex matter contained in a large dossier. The Ombudsman takes the view that the two reassignments that took place in this complex case could well explain, in the absence of evidence to the contrary, the lack of an earlier completion of the investigation. The Ombudsman furthermore has no reason to assume that OLAF reassigned the investigation on improper grounds.

2.6 On the basis of the above, the complainant's first allegation does not appear to have been substantiated.

3 Failure to inform

3.1 The complainant alleged lack of information regarding the reasonable period necessary to carry out the investigation in accordance with Article 2(2) of the above-mentioned Commission Decision.

3.2 Rejecting the allegation, OLAF stated that "[i]n the present case, Article 2 is not at issue, because the complainant does not allege that he has suffered any adverse consequences for having disclosed the information outside the Commission or OLAF". OLAF also stated that even if Article 2 were applicable, its requirements had been fully satisfied in this case, stating that "[f]rom the opening of the investigation until 31 July 2003, the complainant never indicated that he believed that a reasonable period had passed since he first provided the information to OLAF and that he was contemplating disclosing the information outside the Commission or OLAF [...]".

3.3 The complainant considered in his observations that OLAF had misinterpreted Article 2(2). He referred to Article 22 b of the new Staff Regulations, which provides that the institution must, within 60 days, give the official concerned information as to the expected investigation period. In its response to the Ombudsman's further inquiries, OLAF rejected this argument.

3.4 In the Ombudsman's view, the purpose of Article 2 of Commission Decision C(2002) 845 was to set out the conditions to be fulfilled before an official or servant could disclose information outside the Commission or OLAF without suffering any adverse consequences. Article 2(1)(b) contained one such condition, namely that the official had "allowed a reasonable period of time for the Office [i.e. OLAF] or the Commission to take appropriate action". Article 2(2) provided that "[...]a reasonable period shall be the period which the Office or the Commission, as the case may be, has indicated [emphasis added] as being necessary to carry out the investigations[...]" and "[t]he official or servant shall be duly informed". Article 2(3) refers to "[...] the period or periods indicated by the Office or the Commission [...]" (emphasis added). These provisions therefore would appear to have aimed at making it possible for the official or servant concerned to know when he or she could disclose the information outside the Commission or OLAF. In the Ombudsman's view, it appears that Article 2 did not require that the official or servant concerned should have suffered 'adverse consequences' or that the official or servant should have requested the information about the 'reasonable period of time'. In the Ombudsman's view, Article 2 clearly imposed an obligation on OLAF to provide, in any case, the official or servant with information as to the period of time within which it expected to conclude its investigation. It must be recalled, however, that the highest authority on the meaning and interpretation of Community law is the Court of Justice.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

The purpose of Article 2 of Commission Decision C(2002) 845 was to set out the conditions to be fulfilled before an official or servant could disclose information outside the Commission or OLAF without suffering any adverse consequences. Article 2(1)(b) contained one such condition, namely that the official had "allowed a reasonable period of time for the Office [i.e. OLAF] or the Commission to take appropriate action". Article 2(2) provided that "[...]a reasonable period shall be the period which the Office or the Commission, as the case may be, has indicated as being necessary to carry out the investigations[...]" and "[t]he official or servant shall be duly informed". Article 2(3) refers to "[...] the period or periods indicated by the Office or the Commission [...]". These provisions therefore would appear to have aimed at making it possible for the official or servant concerned to know when he or she could disclose the information outside the Commission or OLAF. In the Ombudsman's view, it appears that Article 2 did not require that the official or servant concerned should have suffered 'adverse consequences' or that the official or servant should have requested the information about the 'reasonable period of time'. In the Ombudsman's view, Article 2 clearly imposed an obligation on OLAF to provide, in any case, the official or servant with information as to the period of time within which it expected to conclude its investigation. It must be recalled, however, that the highest authority on the meaning and interpretation of Community law is the Court of Justice.

In view of the above, the Ombudsman has come to the conclusion that OLAF's failure to provide the complainant with information as to the period of time within which it expected to conclude its investigation was an instance of maladministration.

Given that this aspect of the case concerns procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

The Director-General of OLAF will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) These articles limit the Ombudsman's competence of inquiry in respect of cases dealt with by courts.

(2) The relevant rules are now contained in the amended Staff Regulations, see further below.

(3) Official Journal 1999 L 136 p 1.

(4) These articles limit the Ombudsman's competence of inquiry in respect of cases dealt with by courts.

(5) These articles limit the Ombudsman's competence of inquiry in respect of cases dealt with by courts.

(6) See for instance Case T-193/04 R, Tillack against Commission, Order of the President of the Court of First Instance of 15 October 2004 (not yet published).