Background to the complaint

1. The complainant is a Polish company that is the subject of an investigation by the European Anti-Fraud Office (OLAF) into possible fraud against the EU budget.

2. In May 2022, in the context of the investigation, OLAF conducted an on-the-spot check of the complainant’s premises.

3. In June 2022, the complainant submitted a complaint to OLAF’s Director-General. The complaint raised concerns with how the on-the-spot check was conducted. In particular, the complainant contended that: its management board had not been informed about the inspection; one of the OLAF ’investigators’ that conducted the check had not identified himself with an official service badge; it had not been possible to confirm the authenticity of the document authorising the check; a representative of national authorities should not have been present; and the OLAF investigators demonstrated bias against the company.

4. In January 2023, OLAF’s Director-General replied to the complaint, dismissing the concerns raised by the complainant.

5. Following subsequent exchanges with the Director-General the complainant turned to the Ombudsman in November 2023.

The inquiry

6. The Ombudsman opened an inquiry into the following aspects of the complaint:

A. whether the management board of the company was informed about the one-the-spot check;

B. how the investigators identified themselves before the check;

C. whether the company could verify the validity of the document authorising the check that was presented by the OLAF investigators;

D. whether the national tax and customs official had legal grounds to be present during the check; and

E. the impartiality and objectivity of the investigation.

7. In the course of the inquiry, the Ombudsman inquiry team met with relevant representatives of OLAF to seek clarification in relation to the above-mentioned issues. The complainant provided comments to the report from this meeting. The inquiry team also inspected certain documents related to the file.

Arguments presented

8. In its complaint, the complainant argued that its management board was not informed about the on-the-spot check in advance. As a result, it did not agree to and could not participate in the check.

9. After confirmation, during the inquiry, that the president of the management board had been informed about the check, the complainant argued that OLAF’s refusal to postpone the check, after the president had requested this, breached the management board’s “right to represent the company during the proceedings”. The complainant argued that its legal representative, who was present at the check, did not have full knowledge about the company’s business and documents relevant to the OLAF investigation. As a result, OLAF might not have been able to accurately establish the facts relevant to the investigation.

10. The complainant also argued that one of the investigators had not provided proper proof of his identity, as he had forgotten to take his official service badge to the premises of the company, whereas the other investigator had shown his official service badge. The complainant claimed this was at odds with the rule[1] applicable in cases where an entity subjected to the check by OLAF does not agree to it, as was the case here. According to this rule, OLAF investigators are ”required to comply with the rules of procedure laid down by the law of the Member State concerned’. The complainant argued that Polish law requires public officials undertaking similar on-the-spot checks to identify themselves with their official service badges.

11. Moreover, the complainant contended that it had not been possible to verify whether the written authorisation to carry out the check had been authentic as the printed copy of the authorisation that the investigators presented had been signed electronically by OLAF’s Director-General. Only an electronic version, which was not provided to the complainant, would have allowed the complainant to verify the authenticity of the authorisation.

12. The complainant also questioned whether a national tax and customs official had been legally entitled to be present during the check alongside OLAF investigators.

13. Finally, the complainant contended that OLAF and its investigators had demonstrated bias against the company. In the complainant’s view, the Polish wording of the authorisation document suggested that it had been taken for granted that the company had committed the alleged fraud as it mentioned “irregularities” unlike the English version, which mentioned “possible irregularities”. The complainant added that this impression was confirmed by oral remarks made by the OLAF investigators that, in the complainant’s view, demonstrated an absence of objectivity and impartiality.

14. Due to these issues, the complainant claimed that the evidence gathered during the check should be excluded from the case file.

15. OLAF argued that, according to the applicable rules,[2] the company should be informed about the on-the-spot check at any time before the check begins. At the same time, there is no rule requiring OLAF to inform the management board of the company subjected to the check.

16. OLAF clarified that the president of the management board had been informed about the check approximately two weeks earlier. OLAF shared with the inquiry team an acknowledgment of receipt of that information by the president. OLAF further stated that a legal representative and the main accountant of the company had been present at the check.

17. OLAF also argued that its investigators are not required to have in their possession and identify themselves with official service badges. Even if such an obligation applies to national officials under Polish law and Article 6(1) of Regulation 2185/96 on on-the-spot checks requires OLAF investigators to comply with national procedural laws, Article 3(4) of Regulation 883/2013 on OLAF investigations[3] specifies that this obligation does not apply when the company agrees to the check and national rules would restrict OLAF’s access to information. OLAF contended that the company agreed to the check. In any case, the European Commission access ‘badge’, which all the OLAF staff members possess, is not an official form of identification: its sole purpose is for authorising access to and presence in the premises of the Commission and other EU bodies.

18. OLAF argued that the complainant had been able to verify the authenticity of the written authorisation of the check.[4] The document contains features that allow the person concerned to verify its authenticity (such as a unique number and the phone number of OLAF). The report from the inspection does not mention that the company’s representatives raised any doubts about the authenticity of the authorisation document during the check. In any case, OLAF carried out the check with the assistance of a representative of the relevant national authority, in accordance with the applicable rules,[5] and this should be a sufficient guarantee for the complainant that the check had been properly authorised.

19. OLAF admitted that there was a clerical error in the Polish version of the authorisation document, which meant the word ‘possible’ was missing. However, the English version of the document was the authentic one. OLAF denied that its investigators were biased against the complainant.

20. Finally, OLAF explained that its investigations are not general ‘audits’ but, rather, are always based on a suspicion of unlawful activities. The goal of OLAF investigations is to establish the facts; it is for other authorities to pursue potential wrongdoing. Oral remarks exchanged between the OLAF investigators could not be considered evidence of their insufficient impartiality or objectivity. There was nothing in those exchanges that would disqualify the evidence gathered during the check.

The Ombudsman's assessment

How the management board was informed about the on-the-spot check

21. According to the document provided to the Ombudsman, the president of the  management board was informed about the on-the-spot check eleven days in advance. The president acknowledged the receipt of this information. The complainant did not contest this fact. Consequently, the Ombudsman considers that the complainant was properly informed about the check.

22. There is no evidence to suggest that the complainant objected to the check. As the complainant acknowledged, a legal representative of the company was present during the check. The president of the management board, who was informed about the check in advance, could have filed an objection in writing or instructed the legal representative to do so. However, the complainant provided no evidence to the Ombudsman that any such objections had been filed. A request to postpone the check cannot be regarded as an objection.  

23. The fact that no member of the management board was present for the check does not disqualify the check or the evidence collected by OLAF.

How the investigators identified themselves

24. As noted above, there is nothing to suggest that the complainant objected to the check. As such, the Ombudsman finds reasonable OLAF’s argument that it was not obliged to follow the national rules regarding the identification of investigators by means of official service badges. The investigators were able to identify themselves with their passports. Moreover, the representative of the national authority present during the check could confirm that OLAF investigators were duly authorised to carry out the check.

Presence of the Polish official during the check

25. As OLAF explained, the applicable legislation requires OLAF to cooperate with the relevant national authorities. As such, there is nothing to suggest that the presence of the Polish official during the check was not in line with the applicable rules.

Authenticity of the document authorising the check

26. The relevant Polish authority informed the president of the company about the check in advance and in writing. Moreover, a representative of the Polish authority was present during the check in line with the applicable rules, as explained by OLAF. In this context, the complainant had no reasonable grounds to doubt the authenticity of the document authorising the check, which was presented by OLAF’s investigators during the check.

Impartiality and objectivity

27. The fact there was a clerical or translation error in the Polish translation of the authorisation decision does constitute evidence of partiality.

28.  Moreover, even if OLAF’s inspectors had exchanged critical remarks between themselves during the check, it is not clear how this could have unduly influenced the evidence gathered on the premises of the company or how it would otherwise imply that the investigation lacks impartiality or objectivity.

29. On the basis of the above, there was no maladministration in how OLAF carried out the on-the-spot check.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion[6]:

There was no maladministration in how OLAF carried out the on-the-spot check on the premises of the complainant’s company.

The complainant and OLAF will be informed of this decision.

 

Tina Nilsson
Head of the Case-handling Unit

Strasbourg 24/04/2024

 

[1] Article 6(1) of Council Regulation 2185/96 of 11 November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities' financial interests against fraud and other irregularities, OJ L 292/2, https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:31996R2185

[2] Art. 18.1 of Guidelines on Investigation Procedures for OLAF Staff, https://anti-fraud.ec.europa.eu/system/files/2021-10/gip_2021_en.pdf

[3] Regulation 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF), OJ L 248/1, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32013R0883

[4] OLAF argued that signing the authorisation documents electronically is in line with Commission Decision 2021/2121.[4]

[5] Article 4 of Regulation 2185/96: “On-the-spot checks and inspections shall be prepared and conducted by the Commission in close cooperation with the competent authorities of the Member State concerned... To that end, the officials of the Member State concerned may participate in the on-the-spot checks and inspections.”

[6] This complaint has been dealt with under delegated case handling, in accordance with the Decision of the European Ombudsman adopting Implementing Provisions