Background to the complaint

1. In 2018, the complainant wrote to the European Anti-Fraud Office (OLAF) putting forward allegations of fraud related to the allocation of EU funding through the European Social Fund to the Chilean National Human Rights Institution[1] (NHRI) between 2014 and 2016.

2. In June 2018, OLAF informed the complainant that it had analysed the information provided by her, in accordance with the applicable rules[2], and that it had concluded that there was not a sufficient basis on which to open an investigation.

3. The complainant replied to OLAF in Spanish, expressing her disappointment with its decision not to open an investigation and requesting information on how to contact the European Ombudsman. The following day OLAF informed the complainant, in English, that it did not have the resources to provide the requested information.

4. Dissatisfied with OLAF’s reply, the complainant turned to the European Ombudsman in July 2018.

The inquiry

5. The Ombudsman opened an inquiry into how OLAF had handled the issue reported by the complainant and how it had handled her subsequent request for information. The Ombudsman has taken into consideration the arguments presented in the correspondence between OLAF and the complainant.

OLAF´s decision not to open an investigation

Arguments of the parties

6. OLAF stated that, from the information and documents provided by the complainant, there were not enough suspicions of fraud or illegal activities in order for it to open an investigation[3]. The complainant did not agree.

The Ombudsman's assessment

7. OLAF’s mandate is to “open an investigation when there is a sufficient suspicion (...) that there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union.”[4]. It is for OLAF to determine whether there is “a sufficient suspicion” and it is not the role of the Ombudsman to redo the assessment made by OLAF as to whether there is a suspicion of misuse of EU funds. The Ombudsman’s role in respect of such complaints is to make sure that OLAF’s explanations to citizens as to why it will not investigate a reported concern are coherent and reasonable.

8. OLAF has provided the complainant with a coherent and reasonable reply. The arguments put forward by the complainant are not sufficient to support the view that OLAF made a manifest error in its conclusion, that is, that the information provided by the complainant does not give rise to a level of suspicion sufficient to warrant the opening of an investigation.

9. On the basis of the above, there is no basis to find maladministration in OLAF´s decision not to investigate the complainant’s fraud allegations related to the allocation of EU funding to the Chilean NHRI.

The complainant´s request for information on how to contact the European Ombudsman

Arguments of the parties

10. OLAF informed the complainant that it “does not have the resources to reply to requests for information”.

11. The complainant argues that OLAF did not comply with the principle of good administration by not replying to her request for information on how to contact the Ombudsman. Given that she had sent her request to OLAF in Spanish, OLAF should have replied in the same language.

The Ombudsman's assessment

12. The European Code of Good Administrative Behaviour requires the EU civil service to be service-minded and to reply to letters and e-mails in the language of the citizen. _^[5] Although OLAF is clearly not a general information service, replying to an information request by giving the contact details of another EU body would be in line with basic service-mindedness and would not entail much more work than drafting a reply saying that no such information can be provided. The fact that Article 19 of the Code stipulates that information on appeal possibilities should be given further underscores the point that the contact details of the Ombudsman should have been provided. However, given that the complainant managed to find her way to the Ombudsman by her own efforts, the Ombudsman will limit herself to making a suggestion for improvement to OLAF in relation to this aspect of the complaint.

Conclusion

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

There was no maladministration by OLAF in its decision not to investigate the fraud allegations related to the allocation of EU funding to the Chilean National Human Rights Institution.

The complainant and OLAF will be informed of this decision.

Suggestion for improvement

OLAF should remind its staff members of the principles applicable to interactions with citizens, as detailed in the Code of Good Administrative Behaviour.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 12/11/2018

 

[1] See the website of the UN Human Rights Commissioner: https://www.ohchr.org/en/countries/nhri/pages/nhrimain.aspx  National Human Rights Institutions (NHRIs) that comply with the principles relating to the status of national institutions, commonly known as the Paris Principles, are playing a crucial role in promoting and monitoring the effective implementation of international human rights standards at the national level, a role which is increasingly recognized by the international community. 

[2] 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) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999

[3] Article 5.1 of Regulation 883/2013 concerning investigations conducted by the European Anti-Fraud Office foresees that “The Director-General may open an investigation when there is a sufficient suspicion, which may also be based on information provided by any third party or anonymous information, that there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union. The decision by the Director-General whether or not to open an investigation shall take into account the investigation policy priorities and the annual management plan of the Office established in accordance with Article 17(5). That decision shall also take into account the need for efficient use of the Office’s resources and for proportionality of the means employed. With regard to internal investigations, specific account shall be taken of the institution, body, office or agency best placed to conduct them, based, in particular, on the nature of the facts, the actual or potential financial impact of the case, and the likelihood of any judicial follow-up”.

[4] Article 5.1 of Regulation 883/2013, quoted above.

[5] Articles 12 and 13 of the European Code of Good Administrative Behaviour https://www.ombudsman.europa.eu/en/publication/en/3510.