The simple answer is yes. Some justification follows.
First – some background of the case. The English newspaper Sunday Times has conducted an investigation, claiming that several MEPs were willing to take money in exchange for filing legislative amendments. Three MEPs were named – the Austrian centre-right Ernst Strasser, the Slovenian Socialist Zoran Thaler and the Romanian Socialist Adrian Severin. OLAF decided to open a formal investigation immediately and OLAF investigators attempted to collect evidence from the offices of the concerned MEPs located at the premises of the European Parliament in Brussels on Tuesday 22 March. However, the EP authorities refused to give access to these offices and claimed these would be secured by EP security personnel.
The EP clearly erred here. As OLAF has pointed out in its statement, its competences are outlined in art. 325 TFEU, and Regulation (EC) No 1073/1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF). Art. 1, para. 3 of Regulation (EC) No 1073/1999 specifically points out that OLAF shall conduct administrative investigations within the institutions for the purpose of fighting fraud, corruption and any other illegal activity affecting the financial interests of the EU. Art. 4, para. 2 clearly says that OLAF has the right of immediate and unannounced access to any information held by the institutions, bodies, offices and agencies, and to their premises. In addition, Annex XII to the Rules of Procedure of the EP the services and any official or servant of the EP is required to cooperate fully with the Office’s agents and to lend any assistance required to the investigation.
Now, someone might claim that by providing the documents in question, the EP might have cooperated in good faith without granting physical access to OLAF. This is not true, however. First, the purpose of immediate and unannounced access to information and documents is to prevent any opportunity for tampering the evidence. Second, the EP officials are not trained and do not have legal authorization to open locked premises, document containers, etc.
Posted in Institutional Affairs, Justice and Internal Affairs, Procedural Law
Tagged Adrian Severin, Corruption, documents, Ernst Strasser, European Parliament, investigation, OLAF, premises, Zoran Thaler
We now have the 2009 report of the European anti-fraud office, OLAF. The report outlines a number of case studies – misuse of Parliamentary expenses by an ex-MEP, embezzlement by the director of an NGO, widespread corruption and fraud in the management of the Global Fund in Uganda, etc. However, one Member State takes central stage in the report – and that is, yes, Bulgaria.
There were 68 active investigations in Bulgaria in 2009 – the most in any Member state for that period. 26 new cases were opened in 2009 in Bulgaria, out of 32 for the whole European Union. This is really extraordinary given the small population and scale of EU structural funding for Bulgaria. The main reason is that OLAF is currently investigating allegations of widespread fraud in the funding of meat-processing plants in Bulgaria under the SAPARD pre-accession funding program. Now, “allegations” does not mean “committed fraud”, but the issue is very worrying. The main issue here will be to distinguish real fraud cases from administrative irregularities. Given the scale of the investigations, they will have a systemic impact on the meat-processing sector in Bulgaria and thousands of jobs.
Posted in Agriculture and Fisheries, Budget and Finance, Bulgaria, Institutional Affairs, Justice and Internal Affairs
Tagged 2009, activity report, anti-fraud, Bulgaria, meat-processing industry, OLAF, SAPARD
Franz-Hermann Brüner, director general of OLAF, said during the presentation of the annual report of the anti-fraud office that “Some criminals are still dancing around us and the Bulgarian government, and I don’t like it.”
According to him, Bulgarian courts are the weakest link in the judiciary. He believes that political pressure on the judiciary system must be relieved.
The European Union Ombudsman has stated in a decision that OLAF has failed to recognize the presumption of innocence while collecting information in a pending investigation.
The focal point of the legal argument is this text in a letter requiring information from the complainant’s employers:
“Elements suggest that [the complainant] committed serious irregularities in his position of team leader of the EU funded project [X].”
The Ombudsman considers that the incriminating language used by OLAF in that case does not appear at all necessary or proportionate to OLAF’s stated purpose of obtaining information about the complainant. According to the Ombudsman OLAF did not respect the principle of the presumption of innocence.