—

Explicit reference should be made to intelligence analysis.

—

Regarding the ‘opening of investigations’ the SC would welcome a differentiation between internal and external investigations.

—

In order to allow OLAF to concentrate on the most serious cases, a de minimis policy should be included in the future Regulation.

—

The ‘investigation procedure’ stage requires a more structured legal approach and the related provisions could be revisited.

(1)

Reports on investigations which have not been closed in 12 months (including the assessment period); the report will explain why the investigation has not been concluded and estimate the timeframe needed for its completion. Sufficient follow-up mechanisms should be ensured.

(2)

For cases lasting more than 30 months, OLAF shall submit every 6 months an overall progress report on the investigations to the SC containing the measures taken to close the cases.

(3)

Statistical reports on OLAF’s operational activities, including performance indicators based on qualitative parameters, which can be used by the SC as an additional tool for its monitoring.

—

a shift in the institutional balance of OLAF since the addition of a Review Adviser could both impede the role of the SC whilst at the same time depriving it of access to essential information for its monitoring role,

—

a risk of increased delays in already over-lengthy investigations,

—

a significant risk of loss of ownership and responsibility for OLAF management team of the control of respect of fundamental rights,

—

duplication of other existing mechanisms (the Ombudsman, the a posteriori judicial review, etc.),

—

potential additional cost to the EU budget.

—

The Regulation could provide that the SC would deliver, on an annual basis (possibly in the framework of its annual report), an analysis of OLAF’s compliance with respect for fundamental rights in its investigations. This report would be based on the information sent to the SC by OLAF concerning the actions it has taken to ensure full respect for fundamental rights and on the SC’s own monitoring activities.

—

Where necessary and in exceptional circumstances, the Director-General could invite the SC to carry out special checks when serious shortcomings are brought to his/her attention during an investigation. The results of this checking would be disclosed only to the Director-General of OLAF.

—

Title:

The SC therefore proposes that the current title of OLAF’s Director be replaced by the title of Director-General which would place him or her at the same hierarchical level as his/her peers in the other Directorates-General.

—

Term of mandate:

The SC is in favour of a non-renewable mandate in order to reinforce the OLAF Director-General’s independence.

—

Appointment procedure:

—

Intervention by OLAF in proceedings before national judicial authorities:

The SC considers that the potential involvement of OLAF in proceedings before national judicial authorities, as a recognised investigative expert, as is already the case in some Member States, should be possible in all EU countries. It would increase the visibility of OLAF and ensure that national judicial authorities have a better understanding of the results of its investigations.

—

Intervention by the Director-General in proceedings before the European Court of Justice (ECJ):

The procedure laid down in Article 12(3) must be retained. OLAF does not have locus standi and cannot therefore participate in EU court proceedings. However, where an OLAF investigation or the results of an investigation are challenged before an EU court, it would be important to ensure that the Court is properly informed, and to allow OLAF to put forward its arguments or statements of grounds, at the preliminary stage of the proceedings and during the hearing before the ECJ.

—

In addition to the reports and information described in points 1.2, 1.4 and 1.5, OLAF should transmit to the SC all cases intended for transmission to national judicial authorities and all cases where it is suspected that a criminal offence may have been committed but which are not transmitted due to time-barring restrictions under the applicable national legislation.

—

The SC should also have access, upon written request, to any case files, giving reasons where appropriate.

1.1.

In order to carry out effective investigations which meet their targets, are cost-effective and make the best use of resources, it is essential to formulate investigation plans at the outset of each investigation and to revisit the plans throughout the life of the investigation to review changes necessitated by the development of the enquiries.

1.2.

The Supervisory Committee, exercising its role under Regulation (EC) No 1073/1999 to monitor the investigatory function of OLAF, has examined a random selection of 40 cases from Directorates A and B to ascertain whether and to what extent investigation planning assists OLAF in the carrying out of its investigations. As was pointed out in the Activity Report of the Supervisory Committee for 2008/9, examination of case planning and the strategic direction of cases is an essential part of the work of the Supervisory Committee in monitoring investigations to assess whether OLAF is working efficiently and making maximum use of its limited resources.

2.1.

The purpose of an investigation plan is threefold: first, to concentrate the minds of the Director, the Head of Unit and the investigators on the objective of the investigation; second, to set a timeframe for the investigation and allocate appropriate resources to it; third, to ensure there is a framework against which managers can assess how far the investigation has progressed, whether there are any undue or untoward delays in the investigation which need to be addressed or whether the direction of the investigation has changed from the initial assessment and whether the investigation should be discontinued.

2.2.

Where investigations lack proper planning at each stage of the case, there is an ever-present danger that investigators may divert their activities from the objectives set at the outset of the investigation, leading to a lack of accountability and thereby impugn the independence of the investigation itself.

2.3.

There is no ideal template for an investigation plan and each case is of course unique. However, there is much to be gained from adopting a project management approach and process in relation to each case opened, which would provide Heads of Unit with a workable and practical system to maintain control over each investigation, to assess its progress and be aware of the projected work plan of each investigator in his or her Unit, so as to be able to deploy resources appropriately in relation to the case demands of the Unit. The purpose of effective planning is to , rather than add to, any unnecessary administrative burden on investigators and Heads of Units.

2.4.

The Supervisory Committee also observes that a fine balance must be struck between too prescriptive a control over the activities of investigators who, after all, are experienced professionals and a lack of direction and management of the cases. It is vital that investigators be motivated and encouraged to use their expertise and experience to carry out investigations efficiently; at the same time, it is equally important that Heads of Units manage the cases effectively.

2.5.

OLAF has a wide range of cases under investigation, ranging from simple and straightforward internal cases involving one or two potential ‘offenders’ who are suspected of fraud or financial irregularities, in relation to, for example, claims for reimbursement of medical expenses or other benefits, up to and including external cases of enormous complexity involving enquiries in several jurisdictions. On the other hand, an increasing number of complex monitoring, coordination and assistance cases, which do not involve pure OLAF investigation work, often require long-term involvement, over which OLAF has little control. Hence, each type of case has different requirements in terms of the resources required, the time likely to be taken in investigation and the target amount of money which may be recoverable.

2.6.

Investigations carried out by Directorates A and B differ in relation to the fields covered by the respective directorates and notably in so far as all internal investigations are carried out within Directorate A (Unit A.1 and A.2) and customs and co-ordination cases are predominantly carried out in Directorate B.

2.7.

The Supervisory Committee wishes to ensure that OLAF makes best use of the limited resources available to it to carry out all investigations that it undertakes effectively and efficiently and as economically as possible. Concern has been expressed more generally, including from sources outside the Supervisory Committee, that some investigations take too long (the Supervisory Committee has already observed (1) that over 78 % of investigations as at December 2008 were still in progress 9 months after they had been opened) and that the returns, particularly in terms of monies recovered, do not represent value for money or demonstrate efficiency in relation to the conduct of investigations. The Supervisory Committee considers that effective planning of investigations could lead to a more precise focus on the objectives of an investigation, the shortening of the period of investigation and the avoidance of repeated missions. This exercise was undertaken in order to examine whether investigation planning is carried out by OLAF, is consistent across the Directorates and the Investigation Units and whether good practice is disseminated.

2.8.

The advantages of good planning enable investigators to scope the intended enquiries, to set the objectives to be achieved and determine how long the enquiries are expected to take. At the same time, to ensure that managers are informed as to what progress is being made in any investigation and to be able to deploy their investigatory staff to best effect, it is essential that they know what work each member of their team is engaged on at any time and when they expect to complete it so as to be able to deploy them on another assignment. Good relevant management process within OLAF enables managers to keep on top of their cases and investigators to have direction for the course of the investigations.

2.9.

The objectives of the investigations must refer as well to the likely outcome of each case. For example for cases which are likely to be transmitted to national judicial authorities, objectives must reflect legal advice from national experts from Directorate C and for those cases where recovery is planned the objectives should reflect the likely amount to be recovered and the necessary elements to do this. This will assist members of Units C 2 and C3 who will take this work forward.

2.10.

In its special report 1/2005 the European Court of Auditors stated:

2.11.

The Supervisory Committee mentioned the need for investigation planning in its Opinion No 2/2009 on 9-months reports:

Similarly in its recommendations in the last Supervisory Committee Activity Report 2008-09:

The SC has noted an inadequate level of supervision and control of the day-to-day management of investigations which OLAF should address. Detailed investigation plans should be drawn up for every investigation opened with timeframes or deadlines agreed and set for all phases of the investigation cycle, including evaluations and follow-up activities and a system of assessing the results, based on key performance indicators.

3.1.

The OLAF Operational Manual gives guidance to the investigator for an initial work plan of a case.

3.3.6.4    Transmission of information to the OLAF Supervisory Committee….

(2)    Statutory information to the Supervisory Committee

(a)    9-months report

Article 11(7) of Regulation (EC) No 1073/1999 provides that where an investigation has been in progress for more than 9 months, the Director-General informs the Supervisory Committee of the reasons why it has not yet been possible to conclude the investigation, and of the expected time for completion. This report is also used as a supervision tool and if necessary refers to (our emphasis) covering every investigative step envisaged and, where possible, a timetable for each step. Work carried out externally should be clearly indicated in the report …

3.2.

There is no further reference in the Manual to a work plan, still less to a full investigation plan for use at a later stage once an investigation has been opened. The purpose of the initial work plan, which is drawn up during the evaluation stage, is to provide an indicator for the Board that the investigator in charge of the evaluation has already reflected on the manner of undertaking the investigation. As a general rule this would involve the most obvious tasks suggested by an analysis of the facts carried out within the framework of the evaluation.

3.3.

From an examination of the case files (paragraph 1.2 above), the Supervisory Committee notes that the initial work plans consistently fail to include all, and in some cases, hardly any of the features recommended in paragraph 3.2.2.2 (7) of the Manual.

3.4.

When the case is opened, the Supervisory Committee would expect the investigators in charge of the case, in consultation with their Head of Unit, to draw up a full investigation plan setting out all the elements referred to in paragraph 2.4 above and 6.8 and 6.9 below.

3.5.

In the course of the preparation for this Opinion, the Directors of Directorates A and B, together with Heads of Units (A1, A2, and A4, B2 and B3) of Directorates A and B were consulted for their experience of drawing up initial work plans and investigation plans. There did not appear to be any consistency of practice or written guidance (apart from the Manual reference, above) across investigation units, still less across the two investigation Directorates.

3.6.

Where good practice was evident, in so far as clear time management charts were kept by some Heads of Units (predominantly in Directorate B) and quarterly case reports were drawn up and reviewed on a regular basis, again, in Directorate B, these practices were not consistently adopted in Directorate A.

3.7.

Overall, there was no or no sufficient attempt made to communicate and disseminate good practice across both Directorates and ensure it was taken forward.

3.8.

The Time Management System appears to be little used, if at all; reluctance to use it stemming from a perception that the data produced in the TMS is historical (that is, it records past events) and is not regarded as useful for case management.

3.9.

There are many international examples of good practice in drawing up and using investigation plans (for example, the UN, Serious Fraud Office, City of London Police Economic Crime Department and others) that we have examined.

4.1.

In consultation with Heads of Unit in Directorates A and B, it was noteworthy that Heads of Unit (particularly those of B2 & B3) in Directorate B, clearly keep tight control over the movements and tasks allocated to their investigators and were able to identify at a glance which staff members were available to be deployed on further work and which were fully committed for a foreseeable time on a particular case. This was borne out in the quarterly case reports that each investigator is required to complete and discuss with the respective HoU in Directorate B. These reports comprise a short account of the ‘Current Situation’ in the investigation, actions taken in the previous quarter, actions foreseen in the next quarter and an updated estimated of the date for completion of the investigation.

4.2.

In Directorate A, on the other hand, the Supervisory Committee found little indication of written evidence on the basis of the historic case files examined that planning of investigations has taken place at all in the past.

4.3.

The Director of Directorate A has recently (June 2010) issued to his staff ‘Action Point 13’, which addresses the need to put in place ‘significant improvement of the investigation planning and time scheduling’ in cases in this Directorate. This Action Point requires that all assessment reports proposing the opening of an internal or external investigation ‘shall display a detailed, consistent and comprehensive working plan… each specific activity will be described and what is expected from it will be explained’. It goes on to say that ‘once the case is opened, it is required that the working plan, as agreed by the Board, is developed through a time schedule for each of the specific investigation activities’ which will be signed by the investigator in charge of the case, the Head of Unit and representatives of other units where they are involved.

4.4.

The Action Point also addresses the need to carry out a cost/benefit analysis where overseas missions are envisaged and suggests that ‘missions are limited to the strict needs of the investigation’ and that ‘repeated missions are to be avoided [unless] there are genuine new elements that lead OLAF to go again on the same mission’.

5.1.

40 cases were selected at random for analysis from Directorates A and B. From an analysis of these cases, it was apparent that, with one exception (see paragraph 5.7 below) no formal investigation plans were drawn up for cases in either directorate. Initial work plan suggestions, as prescribed in paragraphs 3.2.2.2 (7) and (9) of the Manual (see paragraph 3.1 above) were present in all or almost all case files (see Annex). However, even then, very little attempt was made to provide much or, in some cases, any of the information suggested in the Manual. Several cases (see Annex) consisted solely of brief and vague ‘suggestions’, such as:

5.2.

The majority of initial work plan suggestions state merely ‘interview X, interview Y’, without any indication of what evidence it is intended to obtain from these witnesses or what purpose the interview is intended to serve. In some cases (see Cases Nos 11, 23, 24, 25 and 26 in Annex), the evaluator has included the words ‘with a view to establishing …’ but these are the exceptions, rather than the rule.

5.3.

Rarely were dates for the projected completion of the enquiries or timeframes for the investigation included; where they were included, they appeared to be arbitrary and unrealistic. For example, in one case (see Case No 9 in Annex), an estimate of ‘two investigators/10 man days’ was given, with no explanation for this estimate; in the event, the work done took 10 months to complete. The practice of including an estimate of work time in initial case assessments has now largely been discontinued.

5.4.

The lack of evidence as regards the way the initial work plans are processed was noteworthy. No remarks or observations by management or the Board were observed in the files. This indicates that the initial work plan does not serve its purpose in guiding management decision-making. It should be pointed out that the initial work plan suggestions, set out in the Manual, as indicated above, are intended to guide the Board at the time of evaluating a case with a view to its being accepted or rejected for investigation by OLAF and not intended to guide the course of the investigation as a whole.

5.5.

Once a case has been accepted by the Board, there appears, on the face of the case files, to be no further attempt to plan the course of the investigation.

5.6.

Where cases were monitoring, assistance or co-ordination cases, as many cases are in Directorate B and also some in Directorate A, it is clear that the criteria set out in the Manual paragraphs 3.2.2.2 (7) and (9) for completing the Assessment of Initial Information Form are not appropriate and no criticism is made of the absence of conformity with those criteria in such cases.

5.7.

It is noteworthy that the Supervisory Committee did not find any formal case investigation plans after the cases had been opened in case files in either Dir A or B. However, in Directorate B, case update reports are prepared every 3 months to indicate to the Head of Unit what progress has been made in each investigation.

5.8.

The one exception, where a model investigation plan was included in the case file was Case No 41 in the Annex. This case could serve as a model for other case files: it contains full details of the allegations made, the objective of the investigation, realistic timeframes and a constructive initial work plan detailing investigation activities to be undertaken. This work plan was appropriately updated as the investigation progressed, with notations of what tasks had been completed and what assignments were still to be carried out, adding fresh tasks to be undertaken. Although this document is headed ‘Work Plan’, it is, in fact, a full investigation plan, of exactly the type that the Supervisory Committee would like to see included in every case.

5.9.

It must be pointed out that although the Supervisory Committee was unable to find any documented investigation plans, with the exception referred to in paragraph 5.7 above, this does not imply that in all cases the investigation was not carried out with rigour and thoroughness: indeed, in many cases it is clear that the cases were well investigated and produced results. The Supervisory Committee, however, suggests that the timeliness and focus of all investigations would benefit from active planning at the outset of each investigation, with work plans updated as the investigation progresses.

5.10.

The Supervisory Committee notes that if the protocol set out in Action Point 13 issued to Units in Directorate A, referred to in paragraphs 4.3 and 4.4 above is adopted and implemented throughout OLAF, most of the concerns expressed in this Opinion will have been addressed. If this provision is found to be useful in practice, as the Supervisory Committee expects it to be, it is hoped that it will be reflected in the Manual as a mandatory procedure. This should be done by the Director-General.

6.1.

The Supervisory Committee recommends that a consistent, if not uniform, approach to strategic case planning be adopted across the operational Directorates.

6.2.

The Supervisory Committee recommends that OLAF examines what information it needs to form an initial assessment of a case to enable the Board to make an informed decision as to whether or not a case should be accepted and the Form should reflect this. As it is, at the moment, completion of the Form is left to the discretion of the individual evaluator and Head of Unit and bears little if any resemblance to the criteria in the Manual especially since it is not in effective use by Board.

6.3.

The Supervisory Committee recommends that the Board gives more detailed and careful scrutiny to the initial workplan, and makes constructive suggestions which can serve at a later stage in the investigation

6.4.

Overall, OLAF should consider adopting a two-step approach in investigation planning – an initial assessment phase and a much more detailed plan once the case has been opened.

6.5.

The Supervisory Committee recommends that OLAF sets out a template for an investigation plan and, while no two investigations have identical features, there are sufficiently common issues which should be present in every investigation plan. These will be different at the evaluation phase from the stage when the case is taken on for investigation. At the evaluation phase, features could be considered including the following:

6.6.

The Supervisory Committee recommends that an investigation plan is revisited after the Board has taken a decision to open the case. The investigation plan is likely to consist of far more prescriptive and detailed tasks and timeframes for each step of the investigation, together with likely costings and suggested activities for each phase of an investigation.

6.7.

If missions are to be included, careful consideration should be given during the planning phase to ensure the most effective use of Community funds. Moreover, the investigation plan should be drawn up bearing in mind those cases to be given priority treatment and the resources available.

6.8.

It should be emphasised that the investigation plan is a dynamic document, to be reviewed regularly for updates prompted by developments in the investigation itself. It will be readily apparent from the plan, to the investigator as well as to the Head of Unit and the Director, that a case is proceeding well or running into difficulties. A good investigation plan allow each Head of Unit to see at a glance:

6.9.

The Supervisory Committee, before the end of its mandate, hopes to assess whether and to what extent these recommendations regarding investigation planning have been implemented by OLAF.

1.

1.1.

2.

2.1.

2.2.

2.3.

3.

3.1.

3.1.1.

3.1.1.1.

3.1.2.

3.1.2.1.

3.1.2.2.

3.1.2.3.

3.1.2.4.

3.1.2.5.

3.1.2.6.

3.1.2.7.

3.1.3.

3.1.3.1.

3.1.3.2.

3.2.

3.2.1.

3.2.1.1.

3.2.2.

3.2.2.1.

3.2.2.2.

3.2.2.3.

3.2.2.4.

3.2.2.5.

3.2.3.

3.2.3.1.

1.

The European Anti-Fraud Office (hereinafter ‘OLAF’) has significant powers to conduct administrative investigations in order to combat successfully fraud, corruption and any other illegal activity adversely affecting the financial interests of the EU. The exercise of these powers is subject to, in particular, respect for human rights and fundamental freedoms (1). In making the Charter of Fundamental Rights (hereinafter ‘the Charter’) binding, the Treaty of Lisbon further heightened this obligation. The rules of Community law and, in particular, the Protocol on the privileges and immunities of the European Union, the Staff Regulations of Officials of the European Communities and the Conditions of employment of other servants of the European Communities must also be respected.

2.

The Supervisory Committee (hereinafter ‘the SC’) notes the specific characteristics of OLAF: it is an investigatory body; it acts initially on an administrative basis; this may, where necessary, lead to judicial, financial or disciplinary proceedings during which the guarantees of fundamental rights must be upheld in full. Consequently, Community case-law has characterised certain investigative measures by OLAF as preparatory measures which do not adversely affect officials and, therefore, cannot be annulled (2). However, breaches of essential procedural requirements during preparatory investigations might affect the legality of the final decision taken on the basis of investigations by OLAF (3). They would moreover incur the legal liability of the Commission.

3.

That is why respect for procedural guarantees during the administrative stages of investigations by OLAF is vital. Furthermore, the SC is of the opinion that the effectiveness and efficiency of OLAF’s activities depend directly upon its respect for fundamental rights and procedural guarantees. It is also essential for OLAF’s reputation. If OLAF’s credibility is called into question, it is more likely to be put under pressure and to have its independence impaired.

4.

The SC has consistently emphasised the need for rules of procedure which are sufficiently precise and adapted to the different stages of investigations. Compliance with a body of clear rules makes it possible to ensure the quality, efficacy, transparency and independence of investigations, as well as their observance of legality and legal certainty.

5.

These rules exist in part in the current legislation and in the instructions contained in the OLAF Manual – Operational Procedures (hereinafter ‘the Manual’). However, the principles applying are scattered among numerous sources (Regulation (EC) No 1073/1999 and Regulation (EC, Euratom) No 2185/96, the Interinstitutional Agreement, the Staff Regulations, etc.) and clarification is necessary. On this point, the SC holds that it is very important that advantage should be taken of the reform of Regulation (EC) No 1073/1999 for a legal clarification of OLAF’s powers (4). The SC hopes that this Opinion will contribute to the debate.

6.

Drawing on the experience it has acquired in the regular monitoring of investigations and its role acknowledged by the EU judiciary in the Franchet and Byk v Commission ruling (5), the SC has examined 28 investigations which required transmission of information by OLAF to the national judicial authorities for the period from December 2009 to October 2010 (6), in particular the case reports and the summaries produced by the Judicial and Legal Advice unit, summarising how certain procedural guarantees were respected over the course of the investigations (7). It has also analysed the legal context and current practice, and the existing legislative proposals regarding reform of Regulation (EC) No 1073/1999 (8).

7.

In this Opinion, the SC gives recommendations aimed at clarifying respect for the general principles which must underpin OLAF’s exercise of its powers, and for procedural guarantees for the different stages of investigations. Several annexes are also appended hereto, containing in particular a suggested analysis grid on respect for fundamental rights and procedural guarantees, which could be used as a guide by investigators (9).

8.

OLAF’s investigations must be performed in accordance with a series of rules and principles: legality, proportionality, impartiality, objectivity, fairness, reasonable time, observance of the presumption of innocence, confidentiality and professional secrecy, etc. The SC has chosen to examine only those principles which might affect its independence and for which settled case-law concerning OLAF exists.

9.

The SC also wishes to point out the option available to OLAF staff of reporting to the President of the SC any factual information and evidence on possible illegal activities or serious professional misconduct within OLAF of which they become aware (10).

10.

Impartiality in the conduct of investigations goes hand in hand with OLAF’s operational independence. It requires a total lack of prejudice and of any conflict of interests on the part of staff (11). The EU judiciary has attributed a broad definition to this second notion, defined as ‘any situation where an official […] is called upon to decide on a matter which could appear, in the eyes of an external third party, as a possible source affecting the official’s independence on the matter’ (12).

11.

The SC regrets that, despite its repeated recommendations (13), the measures taken by OLAF to establish the strict internal control mechanisms necessary to prevent any conflicts of interest likely to harm OLAF’s independence and reputation remain insufficient. The Manual lays down the obligation for investigators to notify the Director-General of any potential conflict of interest, but does not indicate any obligation to remove from the record any conclusions which might affect the objectivity of the case file (14). The SC has noted the existence of cases in which the investigators were relieved of their responsibilities in the course of an investigation, without reasons being provided. The SC is of the opinion that such reasoning is essential for identifying the grounds on which an investigator may be removed from an investigation.

(i)

reasons must duly be given for any decision to relieve an OLAF staff member of their responsibilities in the course of an investigation;

(ii)

where a conflict of interest is revealed, the Manual must lay down the obligation to remove from the case file all the findings which may be affected by partiality.

12.

The right of people to have their affairs handled by OLAF within a reasonable time is guaranteed by Article 41 of the Charter.

13.

A lengthy investigation out of proportion to the circumstances and complexity of the case may have serious negative consequences on both the rights of the defence of the persons concerned and the follow-up to the investigation. With respect to inspections carried out by the Commission in the field of competition, it was therefore decided that the time which elapses can make it more difficult for exculpatory evidence, in particular statements from witnesses for the defence, to be collected, or even unlikely that they will be collected (16). Similarly, the administrative, disciplinary or judicial follow-up may be compromised, in particular due to limitation periods for the acts in question (17), a lack of interest on the part of national judicial authorities in prosecuting acts that took place too long ago in those States which weigh the appropriateness of prosecution, or the administrative procedure exceeding a reasonable time limit (18).

14.

The SC has noted that the increase in the length of investigations is due to a number of factors:

15.

The SC has also noted that periodic reports (covering periods of 3 months or 18 months) were written up for certain files to record the progress made in the investigations. They do not, however, always cover the whole period of the investigations, and the estimates of the time required to complete them are sometimes insufficiently well grounded (23).

(i)

for greater supervision of the compilation of 9-months reports (24) and the systematic establishment of a system of regular reporting beyond this time limit;

(ii)

for the establishment of a mechanism whereby periods of inactivity of more than 3 months are signalled (a ‘3-month list’ (25), backed up by an automatic alert in the Case Management System (CMS)).

16.

The rule regarding the confidentiality of investigations is laid down in Article 8 of Regulation (EC) No 1073/1999. It also follows on from the principle of sound management guaranteed by the Charter (right to have his or her affairs handled with due respect for confidentiality (28). It is aimed at upholding the secrecy of the investigation and at safeguarding the presumption of innocence (particularly with respect to the reputation of officials and other staff concerned by OLAF investigations (29) and the confidentiality of personal data (30).

17.

The SC notes that the Manual does not provide clear instructions as to the material means of implementing the obligation of confidentiality.

18.

More specifically, with respect to the transmission of information, a distinction should be made between two types of situation: the cases in which OLAF will have to forward information to the Institutions and/or the national authorities and those instances in which OLAF is called upon to respond to a request for information from a third party.

19.

Two cumulative conditions must be met concerning the communication of information arising from OLAF’s investigations: (i) the ‘need to know’ principle with respect to the recipient and (ii) the exact purpose of communicating the information (for example, ensuring a follow-up to the investigation or in order to be able to add an economic operator to the Early Warning System, etc.) (31).

20.

The SC notes that this lack of clarity results in divergent practices in drawing up dissemination sheets indicating the persons who, within the Institutions or in Member States, may, in view of their responsibilities, have to be informed of information disclosed or obtained in the context of OLAF’s investigations. These sheets are not compiled for all investigations and do not cover all the information transmitted.

21.

The SC has also noted errors in the communication of information (32).

22.

OLAF frequently receives requests for information or access to documents from third parties concerning ongoing or completed cases. The EU judiciary recently ruled that, where a request is based on Regulation (EC) No 1049/2001 and seeks to obtain access to documents including personal data, the provisions of Regulation (EC) No 45/2001 concerning the protection of individuals with respect to the processing of personal data by Community Institutions or bodies and the free flow of such data, become applicable in their entirety (33).

23.

Moreover, the SC notes that, in the State aid field, the EU judiciary has acknowledged the existence of a general presumption of confidentiality as to documents relating to the Commission’s investigative activities. This presumption may release the Commission from the obligation, when it refuses a demand for access to documents, to provide explanations for each individual document in order to substantiate how access to that document could specifically and effectively undermine its investigative activities, and allow it to base itself on general presumptions applying to documents of the same nature (34). The SC wonders whether this argument might also apply to OLAF’s investigations.

24.

The acts investigated by OLAF are often of a serious nature and may have serious consequences for the persons concerned, including criminal proceedings. In the interests of the persons concerned, as much as for the sake of the effective follow-up of investigations by the competent authorities, it is therefore necessary to define the procedural guarantees applicable at the various stages of an investigation and enhance respect for them.

25.

In view of the different ways in which these procedural guarantees are applied, the SC has distinguished between internal and external investigations.

26.

Time for informing the person concerned – The person concerned must be informed ‘rapidly’ or ‘whenever’ an investigation reveals the possibility of personal involvement (35). In the cases examined, the time taken to inform the persons concerned ranged from two to 3 weeks to 2 months. This length of time can be regarded as reasonable.

27.

Decision to defer notification – The right to be informed may be deferred if it may prove harmful to the investigation. By requiring a written reasoned submission (36), it is possible to verify the existence and relevance of the reasons for recourse to this exception, and thereby avoid any risk of arbitrary treatment.

28.

According to Article 6(2) and (3) of Regulation (EC) No 1073/1999, OLAF employees must have written authorisation to take part in an investigation and must possess written authority indicating its subject matter before carrying out each measure concerned (37). For on-the-spot checks under Regulation (EC, Euratom) No 2185/96, the written authorisation must be supplemented by a document indicating both the subject matter and the purpose of the check (38).

29.

Conclusions referring by name to a person may not be drawn, on completing an investigation, without that person having been enabled to express their views on all the facts that concern them (39).

30.

Obligation to inform the person concerned – In order to exercise effectively their right to express their views, the person concerned must be informed of all the facts concerning them. Consequently, OLAF is under an obligation to present them with those facts, orally or in writing – an obligation that goes hand in hand with the obligation to record the comments of that person (40).

31.

The information provided must be . If new allegations come to light during the investigation, the person concerned must therefore be informed of them on the day of their interview at the latest. The person concerned could possibly submit written explanations at a later date or request a further interview (41). No provision is made for such a possibility in the Manual.

32.

If new allegations come to light, the investigators must phrase them to distinguish them from previous allegations (42). The Commission has already lost a case in which the EU judiciary held that the person concerned had not been informed of a distinct and specific allegation made against them during an investigation, which OLAF assessed and subsequently referred to in its final report (43).

33.

Obligation to enable the person concerned to express their views – OLAF must take all necessary steps to enable the person concerned to express their views before, during and after the interview:

34.

The SC is of the opinion that the rules established by OLAF in this respect are insufficient. Neither the Manual nor the model letter of invitation to an interview make any reference to the obligation to send an updated summary of the allegations to the person concerned if new allegations have been added to those of which they were informed when the investigation was opened. In addition, the Manual does not indicate in which language the letter of invitation to interview must be drafted.

35.

Furthermore, the SC has noted some procedural shortcomings in practice (44).

36.

Decision to defer the obligation of hearing the person concerned – The SC notes that OLAF has made limited use of this exception and in duly justified cases, after obtaining the prior agreement of the Secretary-General or the President of the Institution concerned (45).

37.

The prior agreement required appears to represent a guarantee of the rights of the defence (46). Nevertheless, as responsibility for this decision is shared with the President or General Secretary of an institution, body, office or agency and the possibility of OLAF conducting its investigation is conditioned by the requirement to obtain such prior agreement, the SC wishes to draw attention to the risks related to this formality, which may compromise the independence of OLAF’s Director-General, in particular in the event of refusal or delay. This procedure may lead to significant delays, which could paralyse an investigation and have consequences in terms of the time limitation on the acts concerned. In two recent cases, the SC has noted that the time required for obtaining such agreement varied between 5 months and a year. These delays prevented the transmission of the case files to the national judicial authorities (47). Consequently, the SC views such a period of time as excessive.

(i)

should pay particular attention to ensuring that allegations are phrased clearly;

(ii)

should indicate explicitly in the written record of interview whether the person concerned had the possibility of obtaining a copy of it, and should give reasons for any deferral in sending the record in a decision appended to the file.

38.

Although this right is not expressly provided for by the current legislation, the SC observes that, in practice, the interested parties have the possibility to express themselves in the official language of their choice. Sufficient notice must, however, be granted for them to identify their choice.

39.

When they have agreed to express themselves in a language other than their mother tongue, this has been expressly indicated in the written record of the interview, although this is not laid down in the Manual. This sound practice enables OLAF to keep a written trace of their consent and to prove that the waiving of this right was unequivocal.

40.

This right is not expressly laid down in the current legislation. Nonetheless, in practice, OLAF generally offers interested parties the option of being assisted by a person of their choosing. The SC consequently supports the proposal by the three Institutions to include it among the procedural guarantees to be applied in OLAF’s investigations (50).

41.

The SC appreciates the rules implemented by the Manual concerning the means by which the person concerned is informed of the possibility of exercising this right (51). It is of the view that a waiving of this right must also be expressly mentioned, as, moreover, is most often the case. This sound practice enables the OLAF employees involved in the interview to ensure compliance with the requirements according to which the waiving of a right must be shown to have been made unequivocally, must have been made in full awareness of that right (on the basis of informed consent (52) and must have made without compulsion (53).

42.

Officials and other servants are under an obligation to cooperate fully with OLAF and to lend any assistance required for the investigation. To that end, they must provide OLAF’s staff with all useful information and explanations (54). According to the Manual, they also benefit, as interested parties, from the right not to incriminate themselves (55). These two principles must be taken together, even if the right not to incriminate oneself remains the key concern. Thus one can take the view that the person concerned cannot be compelled to admit to having committed an irregularity, whereas their duty of loyalty means that they are not allowed, for example, to refuse to respond to summonses from OLAF.

43.

This right is guaranteed by Article 8 of the Charter and the European Convention on Human Rights, as well as by Article 8 of Regulations (EC) No 1073/1999 and (EC, Euratom) No 2185/96, and by Regulation (EC) No 45/2001. The SC is of the opinion that the importance of this question merits greater consideration going beyond the scope of this Opinion.

44.

According to case-law, the person concerned cannot usefully rely on either the principle of respect for the rights of the defence or Article 41 of the Charter (right of every person to have access to their file) in order to obtain access to the investigation files and/or final report. The EU judiciary has consistently concluded that the effectiveness and confidentiality of the mission entrusted to OLAF and OLAF’s independence could be undermined by access to these documents before a final decision adversely affecting the person concerned has been adopted (56). As OLAF’s investigation reports and the decisions to transmit information to national judicial authorities have not been viewed as adversely affecting people, OLAF is under no obligation to grant access to its files before such a decision has been taken. EU case-law has restricted this right precisely because it is upheld in full in the later (judicial, disciplinary or financial) stages of the investigation.

45.

Nonetheless, the persons concerned submit requests for access to Commission documents, and thus OLAF documents, pursuant to Regulation (EC) No 1049/2001. Although this Regulation concerns public access to institution documents, it does not rule out the access of a person to a file concerning them, especially since that person is not required to justify their request. OLAF can, nonetheless, refuse to grant access to documents on the basis of Article 4 of Regulation (EC) No 1049/2001, especially in the course of an investigation, but also once the investigation has been completed and before any follow-up has been decided. Such refusal must be duly motivated, following concrete and individual examination of each document requested and justification of a genuine rather than hypothetical need for protection (57).

46.

The SC notes in this regard a certain contradiction, inasmuch as Community case-law, which has consistently interpreted Article 4 of the Model Decision as not implying an obligation on OLAF to grant access to its documents (58), can easily be sidestepped by relying on Regulation (EC) No 1049/2001. The intention of the law-making instances, as is apparent from the Regulation’s recitals, was to give the fullest possible effect to the right of public access to documents in order to ensure greater transparency in the work of the EU Institutions and not specifically to grant interested parties a right of access to their own files. The Charter, moreover, makes the same distinction, since it refers, in Article 41(2) and Article 42 respectively, to the access of a person to his or her file, on the one hand, and the access of any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, to documents of the Union’s Institutions, bodies, offices or agencies on the other. The contradiction between these different principles requires greater thought, and solutions need to be found.

47.

In practice, the SC has noted that most requests for access to documents have been rejected by OLAF pursuant to the exceptions laid down in Article 4(1)(b) and Article 4(2) and (3) of the Regulation. This is a position which the SC supports. OLAF must, nevertheless, provide appropriate and sufficient reasons for its decisions to refuse access, so as to prevent them from being annulled by the EU courts (59).

48.

A request for access to personal data under Regulation (EC) No 45/2001 may also constitute an indirect means of obtaining access to papers held by OLAF. As stated above, the SC has yet to agree to a position on this issue.

49.

The SC regrets that this obligation imposed by the Staff Regulations (60) is not provided for in the Manual and is not fully respected in practice (61).

50.

The right of the person concerned to be informed is only formally provided for in the event of an investigation being closed with no further action taken (62). Nonetheless, in the cases reviewed in which there was follow-up, the SC is pleased to note that the persons concerned were systematically informed of the completion of the investigation and OLAF’s recommendations for transmission. Such transmissions can be regarded as the processing of personal data within the meaning of Regulation (EC) No 45/2001 which can justify informing the person concerned. The SC, however, wishes for a clarification of the matter by the law-making instances when Regulation (EC) No 1073/1999 is reformed and is of the view that the possibility of an exemption should be retained for those cases in which confidentiality must be maintained.

51.

The SC appreciates the inclusion in the reform of Regulation (EC) No 1073/1999 of the obligation on OLAF to submit its conclusions and recommendations to the person concerned before the final case file is sent to the competent authorities, subject to the need to keep them secret to avoid compromising follow-up action. However, the SC has reservations about the necessity of obtaining the agreement of the Institutions, bodies, offices and agencies in order to defer notification of the interested party (63).

52.

Persons concerned by external investigations benefit from certain rights in the same way as persons concerned by internal investigations (right of access to documents, right to respect for personal data, etc.). Since the rules for exercising those rights are the same irrespective of the type of investigation, the SC refers back to the considerations indicated above on this point.

53.

More generally, the SC notes that the existing Community legislative provisions concerning procedural guarantees in the context of OLAF’s external investigations are insufficient. External investigations are directly dependent on the state of national legislation (64). Referral to national legislation can, however, at times compromise the principle of equivalent and effective protection against fraud, laid down in Article 325 of the Treaty on the functioning of the European Union. Reform of Regulation (EC) No 1073/1999 must be used as the opportunity for necessary clarification (65).

54.

The SC observes that the lack of clear rules in Regulations (EC, Euratom) Nos 2988/95 and 2185/96 and (EC) No 1073/1999 leads to a wide variety of practices within OLAF. The guidelines laid down by the Manual do not appear to suffice to harmonise the differing approaches within the operational units. The diversity of national rules applicable might, moreover, justify the production of a comprehensive handbook for investigators.

55.

The SC also notes the existence of shortcomings in the legislation concerning the conduct of external investigations in the area of direct expenditure. As far as projects financed exclusively by the European Union, and not jointly managed with Member States, are concerned, it is often difficult for OLAF to identify the national administrative authorities to which it can turn when on-the-spot checks are carried out. In addition, the scope of OLAF’s investigative powers, to which Article 7 of Regulation (EC, Euratom) No 2185/96 refers, is not clearly defined. Cases in which these shortcomings have led to delays in, or serious difficulties with, investigations have been brought to the attention of the SC. The SC therefore holds that a clarification in this particular area is needed when Regulation (EC) No 1073/1999 is reformed.

56.

The entry into force of the Charter has heightened awareness of the significance of fundamental rights and procedural guarantees irrespective of the type of investigation. However, account must be taken of the specific features of OLAF as an administrative investigation service. Simply bringing the procedural obligations for external investigations into line with those for internal investigations would disregard the difference in nature between them and might seriously compromise the effectiveness of investigations without strengthening the rights of the persons concerned in any useful or meaningful way.

57.

The current legislation does not establish any obligation on OLAF to inform the person concerned of their involvement in an external investigation. This lack of notification is justified by the requirements of the investigation. Indeed, the on-the-spot checks and inspections, in particular, are often carried out without prior notice. Notifying the Member State concerned in advance of the performance of an on-the-spot check (but not of an investigation being opened) is a practical requirement, in accordance with the principle of sincere cooperation (66). It must be given ‘in good time’ before the on-the-spot check. In contrast, the Manual provides for the notification of the person concerned when this would not be harmful for the investigation (67). This approach has also been adopted in the reform of Regulation (EC) No 1073/1999.

58.

The SC has noted that in most external investigations the natural and/or legal persons concerned were informed either by a notification of the opening of an investigation or of a forthcoming on-the-spot check or during an on-the-spot check. When the decision was taken not to inform the interested party, reasons were generally given for this. These reasons do not, however, appear in the documents drawn up when transmitting information to the national judicial authorities.

59.

In the context of the on-the-spot checks provided for by Regulation (EC, Euratom) No 2185/96, the investigators must produce a written authorisation indicating their identity and position, and a document indicating the subject matter and purpose of the investigation (68). The second requirement ensures that the rights of the defence are safeguarded (69).

60.

In practice, the SC notes that these rules are not applied uniformly. The written authorisation is made by way of an ‘appointment decision’ for the persons authorised to carry out the investigation, signed by the head of unit. The written authorisation always states the subject-matter and the purpose of the investigation, but, in certain cases, the names of the investigators are not indicated, while, in others, the authorisation is accompanied by an acknowledgement of receipt for the economic operator subject to the on-the-spot check to sign. In addition, the written record of the interview or on-the-spot check does not systematically indicate whether the OLAF investigators produced their authorisation even though this would prevent any subsequent challenges.

61.

The current Community legislation does not explicitly attribute any right to interested parties to express their views on all of the facts concerning them, unlike the stipulations for internal investigations. The Manual does, however, provide for the possibility of giving the interested party the opportunity to express their views before final conclusions are drawn (70).

62.

Article 7 of Regulation (EC, Euratom) No 2185/96 lists OLAF’s powers during on-the-spot checks. The list is not exhaustive and does not make explicit reference to OLAF’s powers to conduct formal interviews or to ask for oral explanations during on-the-spot checks (71). Nonetheless, these powers of access ‘to all the information and documentation on the operations concerned’ through on-the-spot checks can be exercised by the application of national legislation. In its review of investigations, the SC has noted that formal interviews have sometimes been conducted, whereas, in other cases, the persons concerned have had the possibility to express their views during the on-the-spot checks, but not in the form of formal interviews. In addition, reasons were only provided for the fact that no interviews were carried out when transmitting the information to the national judicial authorities.

63.

The SC notes that the reform of Regulation (EC) No 1073/1999 proposes the imposition on OLAF of an obligation to hear the views of the persons concerned, subject to exceptions which would justify its waiver. The SC is of the view that the explicit addition to the reform of Regulation (EC) No 1073/1999 of powers of investigation, such as the possibility to conduct interviews or to ask for oral explanations, is necessary to ensure legal certainty and the consistent and uniform application of the procedural rules.

64.

However, the SC takes the view that such a clarification of the powers of investigation must not necessarily lead to the imposition on OLAF of an obligation to hear the views of the persons concerned so as not to make investigations more cumbersome and prolong the already lengthy procedure through overregulation. OLAF’s administrative investigation is only the preliminary part of a much broader process. Respect for the rights of the defence must be appreciated in relation to the investigation as a whole, that is taking into account the administrative, disciplinary or judicial follow-up of investigations based on full respect for the adversarial principle. Furthermore, for Community case-law as it now stands, OLAF’s external investigations do not give rise to acts having adverse effects, so any failure to ensure the full and complete application of the adversarial principle and the rights of the defence at this stage does not, in theory, cause prejudice to the persons concerned (72)

65.

Regulation (EC, Euratom) No 2185/96 lays down that investigation reports must be drawn up in keeping with national rules of procedure. Consequently, the oral explanations given by the persons concerned during on-the-spot checks must be transcribed in the language of the Member State on the territory of which the check took place. The SC has noted that OLAF has complied with this obligation. In addition, when formal interviews are conducted, the persons concerned have the possibility of expressing their views in the language of their choice.

66.

The right to be accompanied by a person of one’s own choice is not expressly established in the current legislation. The SC consequently supports the proposal by the three Institutions to include it among the procedural guarantees to be respected in OLAF’s investigations (73). This right might also be extended to economic operators when on-the-spot checks are conducted, particularly if it is acknowledged by national legislation.

67.

On this point, the SC refers to Community case-law on the Commission’s powers of investigation in competition matters. What investigations in this field have in common with OLAF’s investigations is the fact that they are intended to gather evidence in order to check the actual existence and scope of a given factual and legal situation. The EU judiciary has consistently ruled that, although the rights of the defence apply only to administrative procedures which may lead to the imposition of penalties, it is, nonetheless, necessary to prevent those rights from being irremediably impaired during preliminary inquiry procedures, including, in particular, checks, which may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings and for which they may be liable. Consequently, although certain rights of the defence relate only to contentious proceedings […], other rights, for example, the right to legal representation or the confidentiality of client-lawyer correspondence, must be respected even during the preliminary inquiry (74).

68.

As with internal investigations, there is no specific case-law on this right and its application to OLAF’s external investigations. It is, nonetheless, one of the procedural guarantees referred to by the Manual and proposed by the reform of Regulation No 1073/1999.

69.

The SC must refer once again to the case-law concerning competition and notes that, in this field, the EU judiciary has held that the right of economic operators not to incriminate themselves must be observed as of the preliminary stage of investigation which comes before the adversarial stage before the Commission. Thus an economic operator can be obliged to provide all necessary information concerning such facts as may be known to it and to disclose such documents as are in its possession and which may subsequently be used against it or against another economic operator (75). However, it cannot be obliged to provide answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove (76).

70.

Nevertheless, the SC wonders to what extent these principles might be transposed to OLAF’s investigations. Unlike the Commission in the sphere of competition, OLAF itself has no powers to impose penalties, although it may, in the event of opposition by economic operators to on-the-spot checks or inspections, benefit from the assistance of the Member State concerned, in accordance with national provisions.

71.

OLAF is under no obligation to inform the persons concerned of the completion of an investigation and/or of its conclusions and recommendations. Such an obligation is provided for in the Manual, except in cases where it is liable to harm the follow-up to the investigation. In practice, such notification rarely occurred in the investigations reviewed. In the context of investigations concerning direct expenditure made by the Commission directly to the beneficiaries, OLAF has not been consistent in its practice.

72.

The SC is aware of the fact that OLAF informs the Member State of the completion of an investigation by sending a final case report in the context of investigations concerning Community expenditure handled by Member States. In so far as the investigation may be the subject of follow-up at the national level, the SC is of the opinion that it would be advisable to consult the competent national authorities before deciding whether or not to inform the person concerned of completion (77).

1.

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 L 136, 31.5.1999, pp. 1-7;

2.

Interinstitutional Agreement of 25 May 1999 between the European Parliament, the Council of the European Union and the Commission of the European Communities concerning internal investigations by the European Anti-Fraud Office (OLAF), OJ L 136, 31.5.1999, pp. 15-19;

3.

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 L 292, 15.11.1996, pp. 2-5;

4.

Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests, OJ L 312, 23.12.1995, pp. 1-4;

5.

Commission Decision of 28 April 1999 establishing the European Anti-Fraud Office (OLAF) (1999/352/EC, ECSC, Euratom), OJ L 136, 31.5.1999, pp. 20-22;

6.

Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community, OJ 45, 14.6.1962, p. 1385, modified;

7.

Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145, 31.5.2001, pp. 43-48;

8.

Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, OJ L 8, 12.1.2001, pp. 1-22.

1.

Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1073/1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) {SEC(2006) 638 } /* COM/2006/0244 final – COD 2006/0084;

2.

European Parliament legislative resolution of 20 November 2008 on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 1073/1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (COM(2006)0244 — C6-0228/2006 — 2006/0084(COD)), OJ C 16E, 22.1.2010, pp. 201-222.

1.

21 September 1989, Hoechst AG v Commission, joined Cases 46/87 et 227/88;

2.

17 October 1989, Dow Benelux NV v Commission, Case 85/87;

3.

18 October 1989, Orkem v Commission, Case 374/87;

4.

11 September 2002, Willeme v Commission, Case T-89/01;

5.

10 July 2003, Commission v BCE, Case C-11/00;

6.

18 December 2003, Gómez-Reino v Commission, Case T-215/02;

7.

7 January 2004, Aalborg Portland A/S and others v Commission, joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P;

8.

9 June 2004, Camós Grau v Commission, Case T-96/03;

9.

13 July 2004, Comunidad Autónoma de Andalucía v Commission, Case T-29/03;

10.

6 April 2006, Camos Grau v Commission, Case T-309/03;

11.

6 July 2006, Franchet and Byk v Commission (No 1), joined Cases T-391/03 et T-70/04;

12.

21 September 2006, Technische Unie BV v Commission, Case C-113/04 P;

13.

2 May 2007, Giraudy v Commission, Case F-23/05;

14.

12 September 2007, Nikolaou v Commission, Case T-259/03;

15.

8 July 2008, Franchet et Byk v Commission (No 2), Case T-48/05;

16.

28 April 2010, Amann & Söhne GmbH & Co. KG and Cousin Filterie SAS v Commission, Case T-446/05;

17.

20 May 2010, Commission v Violetti and others, Case T-261/09 P;

18.

29 June 2010, Commission v The Bavarian Lager Co. Ltd, Case C-28/08 P;

19.

29 June 2010, Commission v Technische Glaswerke Ilmenau GmbH, Case C-139/07 P.

1.

27 February 1980, Deweer v Belgium , Series A No 35;

2.

25 February 1992, Pfeifer and Plankl v Austria , Series A No 227.