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Decision of the European Ombudsman closing his inquiry into complaint 2515/2011/(VIK)CK against the European Antifraud Office ('OLAF')

Available languages: en
  • Case: 2515/2011/CK
    Opened on 31 Jan 2012 - Decision on 27 Sep 2013
  • Institution(s) concerned: European Anti-Fraud Office
  • Field(s) of law: General, financial and institutional matters
  • Types of maladministration alleged – (i) breach of, or (ii) breach of duties relating to: Reasonable time-limit for taking decisions [Article 17 ECGAB]
  • Subject matter(s): Institutional and policy matters

The background to the complaint

1. Two journalists, pretending to be lobbyists, entered the premises of the European Parliament and recorded several conversations with the complainant, a Romanian Member of the European Parliament ('MEP'), and other MEPs. The journalists claimed that the MEPs approached by them had accepted to be paid in cash for intervening in the legislative process. Their article "Euro MPs exposed in ‘cash-for-laws’ scandal" was published on 20 March 2011.

2. On 21 March 2011, the European Anti-Fraud Office (OLAF) opened an internal administrative investigation. On 1 April 2011, OLAF informed the complainant that he was under investigation as regards the allegation that he had "accepted remuneration from a private company to introduce certain amendments of draft legislation into the legislative process". It also informed him that he would have the opportunity to express his views on the facts concerning him during the course of an interview.

3. On 21 June 2011, OLAF invited the complainant to cooperate with it, asked him to submit copies of a number of documents, and invited him for a formal interview at OLAF's premises. On 23 June 2011, a meeting with the complainant took place. During that meeting, the complainant handed over to OLAF a set of relevant documents. The formal interview took place on 10 August 2011.

4. On 19 December 2011, the complainant turned to the European Ombudsman[1].

The subject matter of the inquiry

5. The Ombudsman opened an inquiry into the following allegations and claim:

Allegations:

(1) OLAF conducted its investigation concerning the complainant in a discriminatory manner because it concluded another investigation regarding another MEP quickly, whereas its investigation concerning the complainant is still ongoing.

(2) OLAF failed to conclude its investigation concerning the complainant within a reasonable period of time.

Claim:

Acting in accordance with its duties, OLAF should take urgent measures to close its investigation concerning the complainant and inform him accordingly.

6. The complainant also alleged that OLAF lacked the competence to investigate into the matter, since the case did not involve any misuse of EU funds. He claimed that, as a matter of principle, OLAF's competences to investigate cases in which no EU funds are involved should be clarified. The complainant further claimed that OLAF should adopt appropriate rules for urgent procedures, allowing it rapidly to draw conclusions in cases which might affect the image and reputation of the European Parliament or of an MEP. The Ombudsman recalled that Article 2(4) of his Statute requires complaints to be preceded by appropriate approaches to the institution concerned. The Ombudsman noted that, as the complainant failed to provide evidence to show that he had already raised the above-mentioned issues with OLAF, this part of the complaint was inadmissible.

The inquiry

7. On 31 January 2012, the Ombudsman opened an inquiry into the complaint and invited OLAF to provide an opinion. On 14 March 2012, OLAF sent its opinion, which was forwarded to the complainant. On 22 April 2012, the complainant submitted his observations and raised further allegations and claims.

The Ombudsman's analysis and conclusions

Preliminary remarks

8. At the outset, the Ombudsman notes that, when the complainant first turned to him, OLAF's investigation was still ongoing. The complainant's grievances were mainly related to the length of and the alleged delays in concluding the investigation. On 16 January 2012, shortly after he had submitted the present complaint, the complainant was informed that OLAF had closed its investigation on 18 November 2011, with the conclusion that the complainant had not acted independently when he supported an amendment to European legislation in the expectation to receive payment. OLAF transferred the Final Case Report to the Romanian judicial authorities with a recommendation that judicial action be initiated, and also to Parliament to consider the imposition of a penalty according to its Rules of Procedure. In his observations on OLAF's opinion, the complainant raised further allegations related to OLAF's decision to close the investigation. For the reasons set out in more detail below in Section C of the present decision, the Ombudsman decided that there were no grounds to ask OLAF for an opinion on these new allegations.

A. Alleged discrimination in the manner in which OLAF conducted its investigation

Arguments presented to the Ombudsman

9. The complainant argued that although all the MEPs involved in the case were accused of the same alleged misconduct based on the same facts, OLAF rapidly concluded its investigation regarding MEP Z, whereas its investigation concerning the complainant continued for a much longer time. In his view, OLAF thus treated him in a discriminatory manner.

10. OLAF informed the Ombudsman that following the publication of an article in the press about legislative amendments introduced in exchange of cash payment, four MEPs were under investigation: MEP Z (investigation closed on 27 June 2011), the complainant (investigation closed on 18 November 2011), MEP T (investigation closed on 22 December 2011) and MEP S (investigation still ongoing). There was, therefore, no element of discrimination concerning the duration of the investigation relating to the complainant. In addition, OLAF argued that it had to assess the position of the different MEPs and treat each investigation separately.

11. In his observations, the complainant mainly referred to the short duration of the investigation against MEP Z. He also referred to the date on which OLAF indicated that it closed its investigation related to MEP Z (27 June 2011). The complainant suggested that the MEP concerned was informed about the outcome of the investigation at an earlier stage. He asked the Ombudsman to clarify this aspect. The complainant also argued that the disparities in the duration of the investigations were due to political reasons. This was, in his view, corroborated by the fact that the conclusions of the three closed investigations were communicated jointly to the European Parliament on 11 January 2012, namely few days before the mid-term elections and the change in the Parliament's leadership.

The Ombudsman's assessment

12. The Ombudsman is unable to agree with the complainant's view that there was discrimination. While the four MEPs in question, including the complainant, were all under investigation for alleged misconduct based on similar allegations, the facts of each investigation were not identical, and the individual case-files contained different, distinct elements that had to be assessed separately. In this respect, OLAF was entitled to decide to investigate each case separately, and thus launch four distinct investigations instead of treating all four cases as a single incident.

13. The Ombudsman also notes that, from the documents submitted in the course of the present inquiry, it appears that OLAF based its investigations on the following pieces of information: (a) the journalists' recordings, containing the different conversations between the journalists and the MEPs (b) OLAF's formal interviews with the MEP's and (c) the documents and information submitted by the MEPs to OLAF. It is thus clear that the information to be examined in the relevant investigations was not identical. In the Ombudsman’s view, it was therefore only reasonable for OLAF to look separately at each individual case. It should also be noted that the length of each individual inquiry also depended on the date when the MEP concerned was interviewed by OLAF.

14. In view of the above, the Ombudsman considers that the mere fact that the length of the individual investigations carried out by OLAF varied does not as such prove that there was discrimination. There are no other elements that would suggest that OLAF treated the complainant less favourably than the three other MEPS concerned. In light of this conclusion, the Ombudsman does not consider it relevant for the purposes of the present inquiry to clarify when exactly the investigation regarding MEP Z was concluded. As regards the complainant's assertion that the duration of the investigations was due to political reasons, the Ombudsman notes that no evidence to support this view has been submitted to him. The mere fact that, according to the complainant, OLAF informed Parliament of the closure of three of its investigations shortly before Parliament's mid-term elections does not suggest that the outcome of these investigations was influenced by political considerations. In fact, if that had been the case one would have expected the fourth investigation to have been completed by then as well. In light of all the preceding considerations, the Ombudsman concludes that there has been no maladministration in relation to the complainant's first allegation.

B. Alleged failure to failed to conclude the investigation within a reasonable period of time and related claim

Arguments presented to the Ombudsman

15. The complainant stressed that although more than nine months had passed since the opening of the inquiry, and more than four months since his hearing, OLAF had not yet concluded its investigation.

16. In its opinion, OLAF pointed out that its investigation regarding the complainant, which was opened on 21 March, had been closed on 18 November 2011, lasting less than eight months. OLAF made reference to Article 11(7) of Regulation 1073/1999[2], according to which the duration of an investigation closed within nine months does not need to be justified with special reasons. It added that the duration of the investigation also included the summer holiday period. OLAF also provided detailed information regarding the steps taken after the complainant's interview.

17. In his observations, the complainant observed that OLAF's conclusions had been communicated to him two months after the case was closed. He also denied that the summer holiday period had an impact on the duration of the investigation, stating that OLAF took a number of procedural steps during July and August. The complainant went on to suggest that OLAF had adopted a peculiar pace in carrying out its work. In particular, he considered that from the opening of the investigation in March 2011 until his hearing in August 2011, OLAF "worked hard and in a professional way", whereas the period needed for drafting the Final Case Report (presented to OLAF's Board on 4 October 2011) was longer than in the case of one of the other three MEPs also under investigation. The complainant also noted that the Board met on 22 October 2011 and that the case was finally closed a month later, on 17 November 2011. In the complainant's view, this delay was not justified. Moreover, it took OLAF two months to inform him of its final conclusions. In his view, these periods of inactivity show that OLAF's investigation was politically driven.

The Ombudsman's assessment

18. The Ombudsman recalls that the reasonableness of the duration of an investigation must be assessed in the light of the circumstances specific to each case. In this context, principles of good administration require that investigating authorities ensure that each procedural step is taken within a reasonable time following the previous step.

19. In the present case, OLAF opened its investigation on 21 March 2011 and closed it on 18 November 2011. It, therefore, took OLAF nearly eight months to complete its investigation, a duration that does not appear, as such, unreasonable, in particular given the seriousness of the issues examined. The complainant argues, however, that there were periods of inactivity between August and November 2011, which impacted upon the reasonableness of the duration of the investigation. The Ombudsman does not share the complainant's view. He notes that it took OLAF less than two months, including a big part of the month of August, to draft the Final Case report. OLAF's Board took a month and a half to adopt the Report. Such time intervals appear reasonable, especially in sensitive and factually complex procedures such as the one carried out by OLAF in the present case. In light, of the above considerations, the Ombudsman finds no maladministration in relation to the complainant's second allegation.

20. That being said, the Ombudsman notes, that once it reached its conclusions, it took OLAF two months to inform the complainant about the outcome of its investigation. The Ombudsman notes that OLAF did not provide any explanation as to why it could not inform the complainant at an earlier stage. It should however be noted that this issue was not covered by the complaint and that OLAF therefore was under no obligation to comment on this delay in its opinion. In any event, regrettable though this delay may be, the Ombudsman does not consider that it could affect his conclusion that the overall duration of the procedure remained within reasonable time limits. In the Ombudsman's view, there are therefore no grounds for further inquiries into this issue in the present case. The Ombudsman will however make a further remark in this context.

C. Further allegations and claims

Arguments presented to the Ombudsman

21. In his observations, the complainant submitted a number of new allegations and claims, which can be summarised as follows:

(a) OLAF discriminated against the complainant in relation to the outcome of its investigation.

In particular, the complainant argued that OLAF reached three different conclusions in three identical cases because of political considerations.

(b) OLAF breached the complainant's rights of defence.

The complainant, by reference to the different wording used by OLAF in three different documents[3] to describe the subject-matter of the investigation, argued that OLAF arbitrarily modified the scope of the investigation and, therefore, deprived him of his right to defend himself. He also argued that OLAF did not invite him to present his views before the case was closed. He finally argued that OLAF based its investigation on evidence that had been obtained illegally.

(c) OLAF reached a conclusion without being able to conduct a comprehensive investigation.

(d) The complainant's also put forward a number of additional claims relating to the need for OLAF to adopt rules to improve its procedures.

The Ombudsman's assessment

22. At the outset, the Ombudsman notes that the complainant's claims that OLAF needed to adopt rules to improve its procedures were never brought to OLAF's attention. The Ombudsman is therefore unable to deal with these claims at present. As regards the complainant's additional allegations, it is far from clear whether the complainant has brought the various issues raised in his observations to OLAF's attention beforehand and, therefore, complied with Article 2(4) of the Ombudsman's Statute, which requires that a complaint to the Ombudsman is preceded by appropriate administrative approaches to the institution concerned. However, the Ombudsman does not find it necessary to reach a definitive conclusion regarding the admissibility of these additional allegations, since, in any event, for the reasons set out below, he does not consider that there are grounds to pursue them further.

(i) Discrimination regarding the outcome of the investigation

23. As the Ombudsman has already noted in relation to the complainant's first allegation, according to which he was discriminated against compared to other MEPs as to the time it took OLAF to conclude its investigation (see paragraphs 12-14), OLAF had to asses the different elements contained in each case-file in order to reach its conclusions. The mere fact that the investigations were opened in relation to facts that were similar does not mean that OLAF had to reach identical conclusions in all of these investigations regardless of the individual circumstances of each case. As the complainant did not put forward any valid argument that could call this conclusion into question, there is, therefore, no need further to pursue this issue.

(ii) Rights of defence

24. The complainant alleged that OLAF did not respect his rights of defence. The Ombudsman will first examine the complainant's argument that OLAF modified on three occasions the scope of the investigation by using different wording to describe each time the subject-matter of the investigation. In this respect, the Ombudsman considers it useful to refer to the three documents cited by the complainant. In its note to the President of the Parliament of 22 March 2011 announcing the opening of the investigations, OLAF described the allegation as follows: "Three MEP are alleged to have accepted bribes to abuse for influencing the legislative process to promote the interest of private companies". In its letter of 1 April 2011, OLAF informed the complainant that he was under an investigation for having "accepted remuneration from a private company to introduce amendments of draft legislation into the legislative process". Finally, in the letter to the complainant following the closure of the case, OLAF referred to the the allegation that the complainant "may have accepted remuneration from a private company to introduce/support certain amendments of draft legislation into the legislative process".

25. In the Ombudsman's view, there are no material discrepancies between the phrases used by OLAF to describe, in the above three letters, the allegations under investigation. There is nothing in the wording used by OLAF to suggest that the scope of the investigation had been altered, thus affecting the complainant's rights of defence.

26. In the present case, the complainant was duly informed, by letter of 1 April 2011, that he was under investigation for accepting remuneration to influence the legislative process. There is nothing in the file to suggest that the slightly different words that were used by OLAF in the above mentioned three letters have had an impact upon the fairness of the procedure or the observance of the complainant's rights of defence.

27. The complainant also argued that OLAF did not invite him to present his views before the case was closed. The Ombudsman notes that the complainant was invited to an interview on 10 August 2011, where he was given the possibility to make formal statements and present his views regarding the case. He also had an informal meeting with the investigator in charge upon his own request on 23 June 2011. The Ombudsman considers, therefore, that the complainant was given the opportunity to present his views before the case was closed.

28. Finally, the complainant argued that OLAF should not have relied on the information provided by the journalists, since it was illegally obtained. The Ombudsman notes that OLAF conducts administrative inquiries with a view to protecting the financial interests of the Union. It is of utmost importance that OLAF can receive information about possible frauds and irregularities, from a wide range of sources, including in particular the press, in order to perform its duties. In the Ombudsman's view, it has not been established that the information that formed the basis of the article published by the journalists was "illegally" obtained. However, even if one were to assume that this the case, regard should be had to the fact that even unlawfully obtained evidence can be treated as admissible in criminal cases provided that the principle of equality of arms has been respected[4]. In other words, such evidence can be taken into consideration provided that the person concerned has had the opportunity to defend himself against this evidence. There is no reason why this should not hold equally true in administrative proceedings. In the present case, OLAF's investigation at stake was triggered by articles written by journalists and the specific information contained therein. The complainant was aware of this fact and of the relevant information from the very beginning of the investigation. During the course of the inquiry he had many opportunities not only to express his views and to defend himself in relation to the allegations against him, but also to contest the use of this information provided by the journalists, which the complainant never did. It should also be considered that, if the final Case Report transmitted by OLAF to the Romanian authorities were to give rise to a criminal case being against the complaint in Romania, it would be for the relevant courts in that country to assess the admissibility of the evidence put forward.

29. In light of all the above considerations, the Ombudsman considers that there is no arguable case that there was any breach of the complainant's rights of defence.

(iii) OLAF's conclusion

30. The complainant argued that OLAF reached a conclusion without being able to conduct a comprehensive investigation. The complainant referred to OLAF's closing letter in which it stated that: "It must be noted that OLAF has based its analysis on information provided by the [newspaper] and on information provided by the Members of Parliament under investigation who were fully cooperating. OLAF was not able to acquire forensic electronic data in the European Parliament or to conduct interviews with witnesses due to the European Parliament's refusal to provide the necessary support. OLAF was therefore not in a position to conduct a comprehensive administrative investigation and had to draw its conclusion based on limited information".

31. As a preliminary remark, the Ombudsman notes that he understands OLAF's above statement more as an indirect criticism of Parliament for not having fully cooperated with it, rather than, as the complainant suggests, an admission that it failed to conduct a thorough investigation. There is nothing to suggest that OLAF did not try to obtain all the evidence that was or could be relevant for assessing the allegations concerning the complainant's behaviour. The fact that Parliament may not have cooperated with OLAF as fully as the latter may have wished cannot be held against OLAF. The Ombudsman further recalls the administrative nature of OLAF's investigations. In this respect, he highlights that, at the end of each investigation, OLAF draws up a Final Case Report to be sent, if necessary, to the competent authorities. This report is no more than a set of recommendations or opinions without mandatory legal effect for the persons concerned[5]. According to the settled case-law of the EU courts, the transmission of this report to the competent authorities is not either an act adversely affecting the persons concerned[6].

32. In the present case, OLAF's final Case Report merely stated that the complainant "had not acted independently when [he] supported an amendment to European legislation in the legislative process in the expectation to receive payment", without making any statement regarding the complainant's potential criminal or disciplinary liability.

33. Furthermore, the Ombudsman notes that OLAF made clear that it did not have access to any forensic electronic data that may have been available in the European Parliament or conduct interviews with potential witnesses in Parliament, due to what OLAF refers to as 'Parliament's refusal to provide the necessary support'. However, the complainant did not explain why or how evidence that may have been available in Parliament could have called into question the conclusions reached by OLAF. Thus, the Ombudsman finds no grounds to consider that the investigation carried out by OLAF was incomplete or insufficient.

34. In light of the preceding considerations, the Ombudsman concludes that there is no need for further inquiries into the complainant's further allegations and claims.

D. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusions:

There has been no maladministration in relation to the complainant's first and second allegation and claim.

There is no need for further inquiries in relation to the complainant's additional allegations and claims.

The complainant and OLAF will be informed of this decision.

Further remark

The Ombudsman suggests that OLAF take steps to ensure that when it carries out an investigation into the behaviour of a given person, it informs that person of the outcome of the investigation as rapidly as possible after it has been completed.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 27 September 2013


[1] The complainant also submitted complaint 2407/2011/(VIK)CK against the European Parliament.

[2] 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), OJ 1999 L 136, p. 1.

[3] Namely OLAF's note to the President of the EP of 22 March 2011 announcing the opening of the investigation, OLAF's letter informing the complainant of the opening of the investigation and OLAF's letter informing the complainant of the closure of the case.

[4] Khan v. United Kingdom, no. 35394/97, § 35, ECHR 2000-V.

[5] Case T-29/03 Comunidad Autónoma de Andalucía v Commission [2004], ECR II-02923, paragraphs 31-33; Case C-476/93 Nutral v Commission [1995], ECR. I- 4125, paragraphs 29-30.

[6] Case T-261/09 P Commission v Antonello Violetti and Nadine Schmit [2010], not yet published, paragraph 47.