In 1999, the European Commission established the European Anti-Fraud Office (OLAF) on the
basis of the EC Treaty. OLAF's powers to conduct administrative investigations within Community
institutions, bodies, offices and agencies are defined in a Community regulation adopted in
1999. 1 The ECB and the EIB decided 2 to reserve power to
conduct such investigations within their organisations to their own internal departments.
The Commission brought two actions before the Court of Justice for annulment of
the decisions of the ECB and the EIB. It claims that the decisions
are contrary to the 1999 regulation concerning investigations conducted by OLAF.
The ECB and the EIB contend that the regulation does not apply to
them.
The Court starts by pointing out that under the 1999 regulation OLAF may
carry out investigations within the institutions, bodies, offices and agencies established by, or
on the basis of, the Treaties establishing the European Communities. The ECB and
the EIB are therefore concerned by the regulation, since they were established by
the EC Treaty.
The Court goes on to recall that the ECB and the EIB are
granted independence by the EC Treaty for the purpose of carrying out the
tasks assigned to them by the Treaty. However, the purpose of that autonomy
is not to set them completely apart from the European Community and exempt
them from every rule of Community law: thus, both of them must, in
particular, contribute to the attainment of the European Community's objectives and there are
no grounds which prima facie preclude the Community legislature from adopting, by virtue
of the powers conferred on it in the area of fraud prevention, legislative
measures capable of applying to the ECB and the EIB.
The Court finds, furthermore, that neither the ECB nor the EIB has shown
how the investigative powers conferred on OLAF affect their ability to perform their
specific tasks independently.
Although OLAF was established by the Commission and was incorporated into the framework
of that institution, the Community legislature has provided for guarantees intended to ensure
that OLAF is fully independent and that it is required to comply with
Community law.
In addition, under the 1999 regulation, OLAF's powers are clearly defined and delineated.
A decision to open an investigation must accordingly be based on sufficiently serious
suspicions. Furthermore, the investigation must be carried out in accordance with the rules
of the Treaties and in compliance with the conditions and procedures provided for
in the 1999 regulation and in decisions adopted by each institution, body, office
and agency, which allow account to be taken, in certain circumstances, of any
matters specific to those entities.
Finally, the Court states that the Community legislature was entitled to take the
view that the establishment of a centralised investigative system, which is independent and
specialised, such as that set up by the 1999 regulation, was necessary for
the purpose of stepping up the fight against fraud.
The 1999 regulation concerning investigations conducted by OLAF is, therefore, applicable to both
the ECB and the EIB.
Since the decisions of the ECB and the EIB have precisely the effect
of preventing that regulation from applying to them, the Court decides that the
decisions should be annulled.
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