WRITTEN QUESTION P-3836/98

by Eva Kjer Hansen (ELDR) to the Commission

(7 December 1998)

Subject: Establishment of an office to investigate internal and external fraud

Will the Commission provide a legal opinion demonstrating how the establishment of an office for the investigation of internal and external fraud completely independent of and without any links to the Commission (as described by Mr Santer during the debate on the Bösch report in plenary on 6 October 1998), can be based on the Treaty, with reference to both the Maastricht Treaty and the Amsterdam Treaty, or whether the establishment of this office would require an amendment to the Treaty?

Will the Commission also state how such a proposal can be compatible with its obligations pursuant to Article 280 of the Amsterdam Treaty, especially in the light of the debate in several countries on the implications of ratification of that article?

Finally, will the Commission state the legal grounds for using the "catch-all" Article 235 of the current Treaty as the possible legal basis for establishing this office, both in relation to the new Article 280 of the Amsterdam Treaty and in the light of the reservations several Member States have against the use of Article 235?

Answer given by Mr Santer on behalf of the Commission

(2 February 1999)

The Court of Justice has consistently ruled(1) that the choice of a legal basis for an instrument should be based on objective factors amenable to judicial review. These include mainly the purpose and content of the instrument. On 1 December 1998 the Commission presented a proposal for a Regulation establishing a European Fraud Investigation Office(2). Given its aim and content the proposal is based on Article 235 of the EC Treaty and Article 203 of the Euratom Treaty; the Commission considers that in the current state of Community law the Treaties do not provide a specific legal basis for the Regulation.

In the Explanatory Memorandum to the proposal the Commission points out (paragraph 16) that the Amsterdam Treaty in fact establishes a specific legal basis. The new Article 280 EC provides that under the codecision procedure the Community can adopt "the necessary measures in the fields of the prevention of and fight against fraud affecting the financial interests of the Community". The Commission has announced that as soon as the Treaty of Amsterdam comes into force it will amend the proposal using the new provision. Since this proposal for a Regulation is currently under consultation in Parliament more detailed explanations regarding the choice of a legal basis will be supplied in that context.

(1) Judgment of 13 May 1997 in Case C-233/94 Germany v Parliament and the Council [1997] ECR -2405.

(2) COM(98) 717 final.