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OLAF's power to hear witnesses

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  • Case: 856/2008/BEH
    Opened on 23 Apr 2008 - Recommendation on 09 Dec 2010 - Decision on 11 Nov 2011
  • 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: Lawfulness (incorrect application of substantive and/or procedural rules) [Article 4 ECGAB]
  • Subject matter(s): Institutional and policy matters
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Copyright: Stocklib © Marek Uliasz

Summary of decision on complaint 856/2008/BEH (confidential) against the European Anti-Fraud Office

The complaint was submitted by a journalist. In 2002, he contacted the President of the European Commission alerting him to certain irregularities which he believes occurred in relation to the European Parliament's acquisition of the so-called D3 building in Brussels. On the basis of the information provided by the complainant, the European Anti-Fraud Office (OLAF) opened an investigation. In the course of that investigation, OLAF considered the complainant to be a 'person concerned' within the meaning of the OLAF Regulation and invited him to be heard as a witness at OLAF's headquarters in Brussels, on the basis of Article 4(3)(2) of the said Regulation. According to this provision, OLAF may "ask any person concerned to supply such information as it may consider pertinent to its investigations."

In his complaint to the Ombudsman, the complainant alleged various shortcomings in OLAF's investigation. In particular, he alleged that, by requesting him to give testimony on the basis of the said provision, OLAF exceeded the limits of its powers.

In the course of the Ombudsman's inquiry, OLAF submitted that it had acted within the limits of its powers when it invited the complainant to attend a formal interview.

Following an analysis of the powers which OLAF enjoys in its inquiries, the Ombudsman arrived at the conclusion that, by inviting the complainant for an interview on the basis of Article 4(3)(2) of the OLAF Regulation, OLAF did exceed the limits of its powers. In a draft recommendation, the Ombudsman therefore asked OLAF to acknowledge that it had no power to invite a 'person concerned' to be heard as a witness on that basis and to apologise to the complainant for inviting him for such an interview.

In its detailed opinion, OLAF acknowledged that its practice in the complainant's case could have given rise to a misunderstanding. It stressed that persons in the complainant's situation could only be asked to provide information in the course of an interview if they so wished. The Ombudsman considered that OLAF had thus essentially acknowledged that it had acted incorrectly, but he also noted that it had failed to apologise to the complainant. However, OLAF had accepted significant parts of his draft recommendation, including the section that referred to other points raised by the complainant. Given that OLAF had thus shown a willingness to cooperate with him, the Ombudsman did not consider it to be necessary for him to make a critical remark.