The background to the complaint

1. The complainant is an IT consultant. From 2004 to 2010, he worked for an IT company (company "A") which participated in several research projects funded under the Framework Programmes 6 and 7. The projects were managed by the Commission's Directorate General for Information Society ("DG INFSO", now "DG CONNECT"). From 2005 to 2008, the complainant also provided IT services, as a freelancer, to another IT company (company "B"). Company B also participated in EU-funded projects.  

2. DG CONNECT carried out two separate external audits concerning costs claims made by company A and by company B, which revealed that company B had claimed costs for services provided by the complainant during the same period of time that he was supposed to be working on the EU-funded projects for company A. The Commission then took steps to recover monies it had paid to company B. At the same time, OLAF launched an investigation into company B.

3. According to the complainant, company B had illegally attributed costs for his services to the EU funded projects and had, for that purpose, fabricated time-sheets bearing his name and had falsified his signature. Also according to the complainant, Mr X, an official from DG CONNECT's external audit unit, divulged the fabricated time-sheets to company A, thereby infringing data protection rules[1].

4. DG CONNECT considered that company A's claims for personnel costs related to the complainant were excessive and unreasonable. It issued a recovery order. OLAF also launched an investigation into company A.

5. On 26 October 2011, OLAF wrote to the complainant informing him that, on 11 March 2010, it had opened an external investigation regarding alleged irregularities in research projects funded by DG CONNECT, consisting in claims for reimbursement of fictitious or inflated project costs. As there were indications that the complainant had been involved in these irregularities, OLAF invited the complainant for an interview on 8 November 2011 as a "person concerned[2]", in application of Article 2 of Regulation 1073/99[3] and Article 7 of Regulation 2185/96[4]. OLAF explained that the interview would provide an opportunity for the complainant to express his views on all the facts concerning his involvement with company A or any other beneficiary in DG INFSO funded research projects.

6. The interview took place on 8 November 2011 at OLAF's premises in Brussels and was conducted by three OLAF officials, namely the lead investigator, the associated investigator and another official. At the interview, the complainant provided a briefing note with annexes (some 700 pages). It appears, from the interview report[5], that the interview took place in a tense atmosphere, that the lead investigator stated that the interview would be stopped and that, indeed, OLAF terminated the interview prematurely.

7. By letter of 16 November 2011, the complainant complained to the Director-General of OLAF about alleged intimidation by the lead investigator, the irregularity of the interview record, and infringements of OLAF's Manual of Operational Procedures of 1 December 1999[6] ("the Manual"). The complainant also insisted that the briefing note and annexes he had prepared for the interview should be signed and registered as part of the interview record.

8. On 27 April 2012, the complainant visited OLAF's offices in Brussels with the aim of regularising the interview record. In this context, he gave OLAF a 4-page addendum to the interview record. On 10 May 2012, the complainant complained to OLAF that his personal data, upon which the lead investigator had relied during the interview, were unlawfully obtained by the Commission, in breach of his privacy rights under Regulation 45/2001.

9. On 14 June 2012, the complainant wrote to the Director-General of OLAF (i) alleging that OLAF was not empowered to conduct interviews of "persons concerned" in external investigations, (ii) reiterating allegations made at the interview against Mr. X of DG CONNECT, (iii) protesting that during the interview the investigators did not set out any allegations against him, which meant he was wrongly classified as a person concerned and (iv) requesting to be informed whether OLAF had forwarded information about him to national judicial authorities.

10. On 9 October 2012, the Director-General of OLAF replied to the complainant, stating that with regard to the alleged irregularities of the interview, an internal review had been carried out by an independent Review Adviser who concluded that:

- As regards the legal basis for the interview in external investigations, OLAF had merely invited the complainant to an interview and that his attendance was purely voluntary;

- that OLAF had correctly characterised the complainant as a "person concerned" because there were indications that he might have been involved in alleged irregularities;

- The length of the complainant's final statement shows that he was given enough time to make final observations at the end of the interview and therefore his procedural rights were not affected.

11. The Internal Review thus concluded that there had been no violation of the complainant's procedural rights affecting the validity of the investigation. The Internal Review, however, showed that there were some issues for which OLAF could take further action. As regards the interviewers' attitude during the interview, OLAF acknowledged that there had been moments of tension, but that the complainant was, in any case, not intimidated, since he insisted on staying. In view of the fact that, according to OLAF, the complainant had apologised for his attitude during the interview, OLAF also expressed its regrets that the interview did not take place in a more courteous climate. However, this did not imply that the complainant's procedural rights had been infringed.

12. On 21 March 2013, OLAF adopted the Final Report. By decision of 23 April 2013, OLAF closed its external investigation.

The inquiry

13. On 29 September 2014, the complainant submitted a complaint against OLAF to the Ombudsman with a considerable number of allegations, some of which overlapped. The complainant submitted a complaint against OLAF also to the European Data Protection Supervisor (EDPS) concerning the manner in which OLAF had handled his personal data in the course of the external investigation. Pursuant to the Memorandum of Understanding between the Ombudsman and the EDPS, the Ombudsman informed the complainant on 19 December 2014 that it was appropriate to leave the data protection issues to be dealt with by the EDPS.

14. The Ombudsman further considered that it would not be appropriate to investigate every possible aspect of the OLAF investigation and decided instead to focus her inquiry on the core issues raised by the complainant. She therefore asked OLAF to submit an opinion on the following three allegations:

1) OLAF acted unlawfully when interviewing the complainant as a person concerned in an external investigation, given that there was no legal basis for doing so.

2) OLAF failed to conduct the interview properly, given that it (i) did not set out at the beginning of or during the interview the allegations against the complainant; (ii) did not properly inform him of his rights; and (iii) had attempted to intimidate him.

3) OLAF failed to investigate properly the conduct of i) company A and of company A's auditors and of ii) Mr X of DG CONNECT and to inform the complainant of the result of any examination that it may have carried out in respect of Mr X.

15. In the course of the inquiry, the Ombudsman received OLAF's opinion on the complaint. On 24 April 2015, the Ombudsman inspected the relevant OLAF file concerning the present case. The Ombudsman subsequently received the comments of the complainant in response to OLAF's opinion. In conducting the inquiry, the Ombudsman has taken into account the arguments and opinions put forward by the parties.

1) Allegation of having conducted the interview unlawfully

Arguments presented to the Ombudsman

16. According to the complainant, there are no EU law provisions empowering OLAF to conduct interviews in external investigations: Regulation 883/2013[1] expressly authorises interviews of persons concerned, but OLAF had no such powers under the former OLAF Regulation 1073/1999 which was applicable at the time. Also, OLAF's Manual of 1 December 2009 cannot be considered as an appropriate legal basis. The complainant referred to Opinion 2/2012 of OLAF's Supervisory Committee on OLAF’s investigations where the Supervisory Committee stated that "the interview as a "person concerned" within the framework of an "external investigation" does not appear to be foreseen under Article 3 of Regulation (EC) No 1073/1999".

17. OLAF stated that it now conducts its administrative investigations in accordance with Regulation 883/2013. Article 9(2) of that Regulation contains the current legal basis for OLAF's power to interview persons concerned or witnesses at any time during an investigation. According to OLAF, this was also possible under the former Regulation 1073/1999, applicable until 30 September 2013.

18. More particularly, OLAF argued that it was empowered to conduct external investigations on the basis of Article 3 of Regulation 1073/99 in conjunction with Regulation 2185/96, Regulation 2988/95 and the relevant sectoral rules that permit on-the-spot checks and inspections on the premises of economic operators who may have been involved in, or concerned by, an irregularity or fraud. In the absence of more specific legal provisions to invite representatives of the economic operators concerned for interviews in external investigations, the power to carry out such interviews is derived from Articles 2 and 3 of Regulation 1073/99. This is one of the "other measures" of the administrative investigation that OLAF could carry out in order to obtain relevant information. OLAF said that, as stated in its Manual of 2009, there is "no power of compulsion" and that the participation in the interviews is voluntary.

19. OLAF explained that it had carried out interviews in external investigations on the above basis since its establishment in 1999 and that neither the case law of the European Court of Justice, nor any decision of the European Ombudsman, has expressed any doubts concerning the legality of this practice.

20. OLAF further explained that its Manual cannot be considered as a legal basis for its investigations and that it had not based its investigation on the Manual. In its correspondence with the complainant, references to the Manual were used only to explain OLAF's practices and the internal guidelines drawn up for the benefit of OLAF investigators.

21. In his observations, the complainant argued that OLAF's reliance on the "other measures" mentioned in Article 2 of Regulation 1073/99 in order to conduct the interview in an external investigation was in contradiction with OLAF's Manual of 25 February 2005[2] which states that "Regulation 1073/99 ... does not, in itself, provide a legal basis for external investigations. Other Community legislation, either horizontal or sectoral, must be relied upon as the legal basis for external investigations". The "other measures" referred to in Article 2 of Regulation 1073/99 do not confer the legal power on OLAF to conduct interviews of persons concerned in external investigations. Only with regard to internal investigations does Regulation 1073/99 refer, in Article 4(2), to the possibility for OLAF to "request oral information". There is no similar provision for external investigations. Sectoral legislation on the FP 6 and FP 7^[3] does not provide a legal basis for conducting interviews either.

The Ombudsman's assessment

22. The interview of the complainant took place on 8 November 2011. Thus the question of whether there was a legal basis for interviewing the complainant as a "person concerned" in an external investigation needs to be assessed under Regulation 1073/1999 applicable at the time. This question has not yet been addressed in the case-law of the EU courts.

23. Whereas Article 9(2) of Regulation 883/2013 which applied from 1 October 2013 explicitly provides a legal basis for interviewing a person concerned at any time during an (external or internal) investigation, Article 3 of Regulation 1073/1999 ("External investigations") does not provide an explicit legal basis for interviewing a person concerned in the course of an external investigation. That Article states only that OLAF has the power conferred on the Commission by Regulation 2185/96 "to carry out on-the-spot inspections and checks in the Member States ..." and that, as part of its investigative functions, OLAF shall carry out the inspections and checks provided for in Article 9(1) of Regulation 2988/95 and in the sectoral rules referred to in that Article. However, none of the sectoral rules refer to the issue of interviewing persons concerned in external investigations. In fact, detailed procedures for conducting interviews were set out for the first time in Regulation 883/2013, although beforehand they were already described in the (non-binding) OLAF Manual[4].

24. On the other hand, Article 2 of Regulation 1073/1999 clarifies that OLAF's administrative investigations shall include all inspections, checks and "other measures" undertaken by OLAF employees in order to establish the irregular nature of the activities being investigated. OLAF's Manual of 1 December 2009 (which, according to OLAF itself, has no legal force but describes the investigation procedure) explains in point 3.3.3.2 ("Legal Basis") that, in external investigations, the power to carry out interviews derived from Article 2 of Regulation 1073/1999 in conjunction with Article 7 of Regulation 2185/1996 and is one of the "other measures" that OLAF may use in order to obtain the relevant information. The Manual underlines however that there is "no power of compulsion" and that cooperation is purely voluntary. This means that OLAF may invite persons for an interview, but that these persons may decline to attend the interview. Also, even if the interviewees agree to attend, they may decline to reply to some or all of the questions and they may interrupt or terminate the interview at any time[5].

25. The Ombudsman is aware that, in its Opinion 2/2012, which concerned an investigation involving, among other persons, a former Commissioner, the OLAF Supervisory Committee dealt with the issue of the interview of a "person concerned" in an external investigation. However, the OLAF Supervisory Committee did not state that Regulation 1073/1999 provides no legal basis for an interview of a person concerned in an external investigation. The Supervisory Committee instead focused on which legal basis OLAF had used in that case and expressed concern that the interview of a person concerned was based on Article 3 of Regulation 1073/1999, whereas the majority of the questions referred to allegations in the context of an internal investigation for which no legal basis had been mentioned. It is true that the Supervisory Committee also pointed out that the interview of a person concerned in the course of an external investigation does not appear to be provided for in Article 3 of Regulation 1073/1999. The Supervisory Committee did not however express a view on whether interviews could fall under the "other measures" mentioned in Article 2.

26. It is certainly the case that, under Regulation 1073/1999, there was no express legal basis for OLAF to compel a person concerned to attend an interview in an external investigation. However, the Ombudsman takes the view that Regulation 1073/1999, and in particular its Article 2 which refers to "other measures", provides a sufficient legal basis for OLAF to invite a person concerned to voluntarily attend an interview in the course of an external investigation[6].  

27. In this case, having received OLAF's formal invitation to the interview, and having been informed about the voluntary nature of that interview, the complainant freely agreed, by e-mail of 17 October 2011, to attend the interview on 8 November 2011. On the basis of the above, the Ombudsman finds that, in interviewing the complainant on a voluntary basis as a person concerned in an external investigation, OLAF did not act unlawfully. There was thus no maladministration by OLAF in this regard.

2) Allegation of having conducted the interview improperly

Arguments presented to the Ombudsman

28. The complainant alleged that OLAF (i) did not set out at the beginning of or during the interview the allegations against him; (ii) did not properly inform him of his rights; and (iii) attempted to intimidate him.

29. Regarding (i) the alleged failure to set out the allegations against the complainant, OLAF stated that, in the telephone conversations with the complainant prior to the interview, in subsequent e-mail exchanges, and in the letter inviting the complainant to the interview, there was a reference to the subject matter of the investigation. More particularly, OLAF referred to the "alleged irregularities in research projects funded by DG INFSO", which would "consist in claiming reimbursement of fictitious or inflated project costs". OLAF further referred to the likely involvement of the complainant for company A or any other beneficiary in such research projects. This information was also provided to the complainant at the beginning of the interview.

30. OLAF stated that, in his e-mail of 26 October 2011, the complainant acknowledged receipt of the invitation and did not report any lack of clarity on the reasons why OLAF had invited him for an interview as a person concerned. On the contrary, the complainant stated that he would "submit copies of documents directly related to the R&D projects and financial claims". The complainant indeed handed over 700 pages of documents at the start of his interview.

31. In OLAF's view, the interview with the complainant on 8 November 2011 was an investigative activity with the aim of gathering information relevant to an OLAF investigation. OLAF stated that the course of an interview is, to a considerable extent, dependent on the information and answers provided by the interviewee. It might be necessary to change a pre­defined questionnaire during the course of an interview. OLAF investigators may also find it useful, for example, to ask additional questions or to drop other questions.

32. In this case, OLAF terminated the interview with the complainant without asking the whole set of questions it had prepared due to the behaviour of the complainant. There is nothing in the applicable legal framework that would have prevented OLAF from doing so, if this was deemed to be necessary.

33. Regarding (ii) the alleged failure to inform the complainant of his rights, OLAF stated that, before and during the interview, the complainant was provided with all the information concerning the procedural rights and guarantees which apply to interviews in external investigations. More particularly, in the letter of invitation to the interview, in the telephone conversations and e-mail exchanges that followed as well as during the interview, OLAF provided the complainant with the following information: the legal basis of the interview; the status of the interviewee as a person concerned in an OLAF investigation; the subject matter of the investigation (namely alleged irregularities in research projects funded by DG INFSO, which would consist in claiming reimbursement of fictitious or inflated project costs); the description of the timing, context and procedure of the interview; the right to speak in one of the EU official languages; the right to have a legal representative present during the interview; the right not to incriminate himself; the right to request that any documents he produces be appended to the interview record; the right to read the interview record, sign it and receive a copy, including all annexes; the possible legal status of the interview record as well as the possible outcome of the investigation, and the privacy statement concerning personal data protection.

34. Moreover, according to OLAF, the complainant was fully informed and aware that his participation in the interview was voluntary, that he was under no obligation to answer the questions and could decide to terminate the interview at any time. OLAF thus complied with the applicable legal framework and with the practices set out in the OLAF Manual.

35. Regarding (iii) the alleged intimidation of the complainant, OLAF argued that, during the interview, the complainant challenged the investigators' questions, dismissing them as irrelevant. On the other hand, the investigators asked the complainant to be succinct with explanations that they in turn considered irrelevant. In particular, when OLAF addressed a question to the complainant and presented a document which contradicted his earlier replies, the complainant provided an irrelevant answer questioning the right of OLAF to ask such questions. OLAF made it clear that the complainant was under no obligation to answer the questions and was entitled to terminate the interview at any time, but that his answers should be serious. It informed the complainant that OLAF could decide to terminate the interview if it would be inappropriate to continue. The investigators decided to end the interview when it became clear that a proper interview was not possible. The complainant opposed the termination of the interview. In a further statement, he reiterated his complaints against DG CONNECT officials and also accused OLAF's lead investigator of protecting these colleagues and the relevant economic operators by preventing him from making further statements. These allegations were also included in the complainant's statement. The complainant signed his interview statement and was provided with a copy of the interview record.

36. Regarding the complainant's allegation that the lead investigator used aggressive and intimidating interrogation tactics, OLAF argued that the interviewers' attitude towards the complainant has already been assessed by OLAF in accordance with an Internal Review procedure that took place in May - October 2012. The scope of the review was focused on whether the complainant's procedural guarantees were respected during the interview. The Internal Review procedure established that a certain tension arose during the interview, but that there was nothing to suggest that intimidation tactics were deployed by OLAF's investigator. Moreover, OLAF said that the complainant had apologised for his own attitude during the interview. Following a thorough assessment of the information available, OLAF expressed its regret that the interview had not taken place in a more courteous climate. However, the Director-General of OLAF found that there had not been any infringement of the complainant's procedural rights. The complainant was informed of the outcome of this review on 9 October 2012.

37. In his observations, regarding (i) the alleged failure to set out the allegations against him, the complainant pointed out that the interview record was completely silent about any alleged wrongdoing by him. Instead, such allegations were to be found in the letter of 26 October 2011 inviting him to the interview.

38. The complainant also stated that, in reaction to the letter of 26 October 2011, he sent an e-mail on the same day to the lead investigator asking for more clarifications on the allegations concerning him. However, in a telephone conversation of 28 October 2011, the lead investigator did not answer the complainant's request for further information about the allegations.

39. Regarding (ii) the alleged failure to inform the complainant of his rights, the complainant argued that, by having invited him to an interview in OLAF's offices where the laws of the Member States are not applicable, OLAF had deprived him of his rights under national law. In that regard the complainant mentioned that OLAF's 2005 Manual also states that the interview must be conducted in compliance with the requirements of the relevant jurisdiction.

40. Regarding (iii) the alleged intimidation of the complainant, the complainant maintained that the lead investigator used aggressive police-style interviewing tactics with regard to the complainant's involvement with another company ("C") in 1993-1997 which had nothing to do with the investigation at hand. According to the complainant, the interview was terminated in order to prevent him from providing further evidence against the relevant Commission official and company A.

41. The complainant finally stated that, contrary to OLAF's statement, he did not apologise to the investigators nor was there any trace of this in the interview record.

The Ombudsman's assessment

42 Regarding (i) the alleged failure to set out the allegations against the complainant, the Ombudsman has already stated that, when OLAF interviews a party under investigation, it should inform that party of the scope of the investigation. However, for that purpose, it is necessary only that the person concerned understands the nature of the allegations made against him or her and it is not necessary to provide this person with a detailed account of the evidence gathered thus far in support of the allegations[1].

43. In this case, in its letter of 26 October 2011, OLAF informed the complainant that it wanted to interview him as a person concerned in the context of an external investigation "regarding alleged irregularities in research projects funded by DG INFSO ... These irregularities would consist in claims for reimbursement of fictitious or inflated project costs". OLAF further stated that there were indications that the complainant had been involved in these irregularities and that the interview would provide the complainant with an opportunity to express his views "on all the facts that concern you, being your intervention for [company A] or any other beneficiary in research projects funded by DG INFSO". The Ombudsman considers that OLAF provided the complainant, prior to the interview and to some extent also at the start of the interview, with sufficient information on the scope of the inquiry and on the allegations relating to him, mentioning the name of the company alleged to have committed the irregularities and for which the complainant had worked. The Ombudsman thus finds no maladministration with regard to this aspect of the complaint.

44. Regarding (ii) the alleged failure to inform the complainant of his rights, the Ombudsman notes that in its letter of 26 October 2011 as well as at the start of the interview, OLAF fully informed the complainant of his various procedural rights by providing him with the information set out in paragraph 33 above, in particular information on his right to be assisted by a legal representative, his right to use any of the official EU languages, and the right not to incriminate himself. OLAF thus informed the complainant of his rights, in accordance with point 3.3.3.3 "Notification" of OLAF's Manual[2]. The Ombudsman thus finds no maladministration with regard to this aspect of the complaint.

45. Regarding (iii) the alleged intimidation of the complainant, the Ombudsman notes that OLAF's Internal Review procedure already dealt with this allegation and found that there was an aggressive stance taken by both sides, that is the interviewers and the complainant. The Ombudsman agrees that, even where a person being interviewed takes an aggressive stance, OLAF interviewers should make every effort to remain calm and in control of their emotions. The Ombudsman thus regrets, as noted by OLAF's Internal Review procedure, the aggressive stance taken by the OLAF interviewers. However, the Ombudsman finds no evidence to corroborate the complainant's specific allegation that he was intimidated. Also, the complainant knew that his participation in the interview was voluntary and that he was entitled to put an end to it at any moment. The Ombudsman also notes that the Director-General of OLAF expressed his regrets that the interview did not take place a more courteous climate. Accordingly, no further inquiries into this aspect of the complaint are justified.

46. Finally, regarding the question of whether the complainant did or did not apologise during the interview for his attitude, the Ombudsman notes that there is no reference to an apology in the interview record. However, the Ombudsman also notes that the written record of the interview is not a verbatim record on the basis of an audio recording, since no such recording appears to have been made (it was neither provided for in the OLAF Manual nor in the current OLAF Instructions to Staff on Investigative Procedures). However, where the person interviewed and OLAF disagree over what exactly was said, the only way to establish what was actually said would be check against an audio or video recording. In addition, the very fact of making an audio/video recording of such interviews might help ensure that all of the participants remain composed in the course of the interview. The Ombudsman therefore suggests to OLAF that it consider, as a matter of principle, the usefulness of making an audio or video recording of such interviews in future.

3) Alleged failure to investigate the conduct of i) company A and its auditors and of ii) a Commission official, Mr X

Arguments presented to the Ombudsman

47. The complainant argued that OLAF did not have the discretion to decide not to investigate the irregularities allegedly committed by company A, but that it had nevertheless refrained from (i) conducting an on-the-spot investigation and (ii) referring company A to the national authorities for numerous infringements of EU and national law to the detriment of the EU financial interests.

48. OLAF stated that an important part of the information relevant for triggering the external investigation came from the reports of the external audit on company A conducted by DG CONNECT. The subsequent OLAF investigation was opened by decision of the Director-General of OLAF in accordance with Articles 5 and 9 of Regulation 1073/1999. As the results of the audit reports indicated the involvement of company A in the alleged fraud, the OLAF investigators thoroughly analysed that information and the documents obtained from company A. They also interviewed a number of its (former) staff members. OLAF stated that the investigation file included an internal note (of 1066 pages) on the involvement of company A in research projects funded by DG CONNECT. The note demonstrates OLAF's comprehensive investigation into company A's activities. Following all necessary investigative steps and having sent reports to the judicial authorities, the Director-General of OLAF closed the investigation. On this basis, OLAF concluded that the complainant's allegation was not well-founded. OLAF also argued that the complainant could himself bring this matter to the attention of the competent national authorities.

49. Regarding the alleged failure to investigate the conduct of Mr X, OLAF stated that Mr X was a member of the team which had audited company A.

50. OLAF thoroughly assessed all audit reports from DG INFSO which were relevant for OLAF's investigation. The cooperation between OLAF investigators and colleagues from other Commission services is essential in such cases and no conflict of interest can be established concerning the facts provided by the complainant.

51. In his observations, the complainant argued that the mere drawing up of an internal note of 1066 pages, probably by the lead investigator, does not prove that OLAF conducted an impartial investigation into company A.

52. As regards OLAF's failure to investigate the conduct of the relevant Commission official, the complainant stated that Mr X had systematically infringed Regulation 45/2001 (Data Protection) and Article 339 TFEU[1] by disclosing to company A (false) information collected from the audit of company B, and had made material misrepresentations.

53. The complainant argued that OLAF's investigation was not impartial since there was a close association of the relevant OLAF officials with the external audit unit of DG INFSO.

54. The complainant finally asked the Ombudsman to request OLAF to provide a copy of all documents - and primarily the internal note for the file - which OLAF has disclosed to the relevant national authorities.

The Ombudsman's assessment

55. Regarding the complainant's allegation that (i) OLAF failed to investigate properly the conduct of company A and its auditors, the Ombudsman notes from the file that, following the results of the April 2011 external audit by DG CONNECT indicating involvement of company A in an alleged fraud, OLAF itself carefully examined company A's involvement in research projects funded by DG CONNECT. OLAF carefully analysed documents obtained from company A and interviewed several of its former employees.

56. At the inspection of 24 April 2015, the Ombudsman's services obtained a copy of the (confidential) note for the file of 27 July 2011 which contained the detailed findings and conclusions of OLAF's examination of company A's involvement in research projects funded by DG CONNECT, and the proposed follow-up. The Ombudsman concludes from that detailed note that OLAF properly examined the conduct of company A. She finds no maladministration with regard to this aspect of the complaint.

57. Regarding the complainant's allegation that (ii) OLAF failed to investigate properly the conduct of Mr X, an official from DG CONNECT, the Ombudsman notes that, in the context of the complainant's earlier complaint against the European Commission, the Ombudsman already dealt with the complainant's allegation that the Commission (in the person of Mr X) had breached Article 339 TFEU by transmitting information to company A relating to the alleged overlap of the complainant's working time on EU funded projects. In a letter to the complainant of 23 May 2013, the Ombudsman considered that the Commission, in order to clarify any doubts it might have had in relation to alleged double cost claims, was entitled to inform company A about the existence of double cost claims. In her closing decision of 10 October 2013, the Ombudsman found that there was no need to pursue this allegation further.

58. The complainant raised no new arguments in this case that call into question the previous conclusions reached by the Ombudsman. Nor has there been any evidence to suggest that there were grounds for an investigation by OLAF into the conduct of Mr X. The Ombudsman thus finds no maladministration with regard to this aspect of the allegation.

59. As regards the complainant's request for a copy of all documents - and primarily the internal note for the file - which OLAF has disclosed to the national authorities, the Ombudsman draws the complainant's attention to the possibility to make a request for public access to OLAF, on the basis of Regulation 1049/2001/EC.

Conclusions

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

No further inquiries are justified into the alleged intimidation of the complainant (part iii) of the second allegation).

There has been no maladministration by OLAF as regards the remainder of the allegations.

The Ombudsman suggests to OLAF that, for the future, it should consider the merits of making an audio or video recording of such interviews in appropriate cases.

The complainant and OLAF will be informed of this decision.

Emily O'Reilly

Strasbourg, 25/04/2016

[1] Article 339 TFEU provides that the staff of EU institutions shall not disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components.

 

[1] See the Ombudsman's decision in case 1560/2010/FOR, paragraphs 41-43.

[2] Now Article 16.2 of the OLAF Instructions to Staff on Investigative Procedures.

 

[1] Regulation (EU, Euratom) No 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, OJ 2013 L 248, p. 1.

[2] This is an earlier version of the Manual preceding the version updated on 1 December 2009.

[3] 6th and 7th Framework Programmes for Research and Development.

[4] http://ec.europa.eu/anti_fraud/about-us/legal-framework/memo_en.htm

[5] In his report of 21 September 2012, the Review Adviser also relies on the procedure set out in the OLAF Manual.

[6] In his decision in case 2676/2008/ANA, the Ombudsman found that Article 2 of Regulation 1073/1999 provides a legal basis for interviews in its investigations, but also pointed out that, contrary to interviews in internal investigations, cooperation of the interviewee is voluntary in external investigations (see paragraph 38). In his decision in case 1560/2010/FOR, the Ombudsman reiterated that OLAF does not have the authority [under Regulation 1073/1999] to compel a person to be interviewed in external investigations (see paragraph 62).

[1] The complainant submitted a first complaint to the Ombudsman against the Commission concerning the above matters alleging, among other things, that the Commission had breached Article 339 TFEU by transmitting to company A information related to the overlap of his working time on EU funded programmes. By decision of 10 October 2013, the Ombudsman concluded that there were no grounds to open an inquiry. On 20 November 2014, the Ombudsman also rejected the complainant's request for review.

[2] Regulation 1073/99 did not define the notion of "person concerned". However, the OLAF Manual Operational Procedures of 1 December 2009 (amended in July 2011) contained the following definition: "A person concerned in an external investigation is an economic operator to whom Union measures and penalties may be applied, when there are reasons to think that irregularities have been committed, or/and an individual who represented, exercised control or acted within this economic operator". A "person concerned" was subsequently defined in Article 2(5) of Regulation 883/2013: "any person or economic operator suspected of having committed fraud, corruption or any other illegal activity affecting the financial interests of the Union and who is therefore subject to investigation by [OLAF]". It appears from the e-mail correspondence in the file that, before the Commission's letter of 26 October 2011, the complainant wondered, on the basis of earlier informal communications from OLAF, whether he was invited to the interview as i) an interested party, ii) a witness or as iii) a person concerned. In his e-mail of 26 October 2011, the complainant however acknowledged receipt of the Commission's letter of the same day and the fact that he was invited to the interview as a "person concerned".

[3] 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.

[4] Council Regulation (Euratom, EC) No 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 1996 L 292, p. 2.

[5] The written record of the interview (which was enclosed by the complainant with his complaint) was not a verbatim record or a transcription of an audio recording (no such recording appears to have been made), but a record of the main questions and answers.

[6] "OLAF Manual Operational Procedures" of 1 December 1999, amended in July 2011 (ref. Ares(2011)810863 of 26 July 2011). Since 1 February 2012, the OLAF Manual for Operational Procedures has been replaced by the "OLAF Instructions to Staff on Investigative Procedures", available at: http://ec.europa.eu/anti_fraud/documents/about_us/instructions-to-staff-120201.pdf