Some news of OLAF

Why OLAF?

OLAF was created in 1999 by a Commission’s decision in the wake of the dramatic resignation of the Santer Commission, accused of nepotism and mismanagement. The need for the Commission to be able to rely on an independent anti-fraud body had become obvious. OLAF thus took over the General Secretariat’s Anti-fraud Co-ordination Task Force (Unité de Coordination de la lutte antifraude), UCLAF, which had been set up in 1988.

OLAF was granted total autonomy towards European institutions, including the Commission itself. Pursuant to the 1999 Decision, its director is “nominated by the Commission, after consulting in European Parliament and the Council, for a term of five years, which may be renewed once,” but he is nevertheless entitled to bring a case against his own Institution before the Court of Justice if he considers that his independence is being challenged.

OLAF acts within most of the EU’s policy fields. It coordinates the fight against fraud to the Community’s budget, carried out by national authorities (such as customs or the Inland Revenue).

It thus combats large international trafficking which purports to elude custom duties, to smuggle counterfeited goods or dangerous products into the EU (photo [1]) or to benefit unduly from EU export subsidies for agricultural products.

It also ensures a sedulous surveillance of national authorities, by making sure they fully carry out their obligations within the framework of the customs union, including the perception of taxes to which the EU is entitled.

OLAF is also an internal audit service, the aim of which is to prevent, at the very heart of Brussels’ Ivory towers, embezzlement of public money, maladministration, civil servants’ corruption... This justifies its particularly high degree of autonomy.

Investigations are carried out in the utmost secrecy, so as to safeguard the presumption of innocence, professional secrets and confidential data it may encounter during house searches or interviews...

In a word, OLAF protects the EU’s financial interests’... and ours!

Nomination and controversies

Late 2003, OLAF had been at the centre of a fresh scandal, which implicated senior civil servants working for the European Statistical Office (Eurostat). They were accused of having opened secret bank accounts in order to embezzle the funds stemming from contracts between the Office and some private companies. OLAF’s Director, Mr Brüner, had been accused of having organised leaks into the German press, thus infringing the secrecy of the investigation. These allegations poisoned the debates when the time came to renew his mandate.

Mr. Brüner was nevertheless cleared from these accusation at the public hearing organised in July 2005 by the all-mighty Cocobu (French acronym for Commission du Contrôle Budgétaire, i.e. the European Parliament’s Budgetary Control Committee). After several months of lengthy discussions between the Parliament, the Council and the Commission, which has the last word, he was finally renewed, it announced on February 7th.

The press coverage varied widely. A “news in brief” report published by the French daily “Le Monde” on February 9th, 2006, simply indicated that “the German Brüner has been reappointed that the head of the European Anti-Fraud Office.” The article merely explained (however strong that word may be) that the choice had been “imposed” by “Germany and its MEPs”, “in spite of heavy criticism, after a last-minute meeting between the representatives of the Commission, the Parliament and the Council.”

The newspaper carefully eshews any explanation as to how this Commission’s exclusive choice could be “imposed” by Germany. It gives no explanation with regard to the content of the heavy criticism expressed against Mr Brüner. But would it have been useful? After all, the article’s title explains it from the oustet: Mr Brüner is “German”. Isn’t that sufficient to define him? Who cares for his abilities or his ideas? Aren’t we all above all predetermined by our nationality?

Le Figaro explains very well the accusation made against Mr Brüner. The French daily also explains that, while Mr Brüner was supported (and not imposed) by the German government, the French were disunited, as usual, and supported not less than two candidates, an official and a non-official one.

OLAF, or how to do away with all democratic scrutiny.

Independence has its drawback. OLAF is not accountable to anyone. It is controlled by a mere “surveillance committee” composed of five personalities coming from outside the EU institutions, deprived of any decision-making power, and the “doctrine” of which has no consequence one investigations.

This Committee suggested in its December 2004 report that the power of legality review be endowed to the magistrates’ unit of the Office, the role of which is to liaise with national judicial authorities. This suggestion met no echo: the magistrates’ unit remains a consultative body.

Furthermore, OLAF does not have clear procedural guidelines, which does not safeguard the defendant’s rights. The UE Court of Auditors acknowledged it in its “special report” published during Summer 2005. They claim that “There is no independent guarantee of the legality of investigative procedures in progress or that the fundamental rights of persons under investigation are safeguarded. For want of a clear codification of investigative procedures, the situation is prone to litigation. The relevant regulatory provisions have proved unsatisfactory.”

Above all, it is political scrutiny that lacks. It is systematically rejected on grounds that such a demand, according to Mr Brüner’s words, expresses but “calls for the right of access to ongoing investigations.” Of course OLAF has to be independent, but why isn’t its Director compelled to submit an annual report to the European Parliament and the Council, and answer their questions? Why is OLAF’s Director the only one entitled to decide what elements may or may not be made public, and not a collegial body where the Commission, the Council and the Parliament would also be represented?

The European Commissioner for the fight against fraud, Sim Kallas, shares these concerns. He expressed the wish, during the OLAF public hearing in July 2005, that the three institutions be represented within the Surveillance Committee, which “would be primarily concerned with setting strategic targets and dealing with systematic and structural problems. It would not be involved in case-related reviews.”

In such a scheme, we would still remain well short of a genuine parliamentary scrutiny. Some solutions nevertheless exist, which would fully preserve the Office’s independence. One could for instance draw one’s inspiration from the Dutch, Italian, German, Austrian, Belgium, Spanish or British systems of parliamentary scrutiny over intelligence services. (www.senat.fr).

But the EU oozes this “Community spirit” which has been ruling since its foundation, a spirit that has often been suspicious of elected representatives, and prefers to trust non-politicised civil servants for the defence of the general interest. But in a democratic Europe, independence should not be a synonym for lack of accountability, be it criminal, disciplinary or political.