Lawyer Monthly Magazine - March 2020 Edition

which suggests that the alleged breach of customs legislation is not present. In this case, the customs authorities issued their decision based on the information and allegations they received from the Anti-Fraud Office, but if the court was to reverse that decision, it was the customs authorities who would have had to cover the court fees. This, in turn, is not fair, because customs authorities are not equipped to verify whether the allegations made by the Anti-Fraud Office are true and issue their statements based on the information which OLAF provides. However, if it turns out that the allegations are not substantiated by due process of law, the court would overturn the decisions of the customs authorities, but still cannot award the costs of the case to OLAF. Thus, a costly investigation conducted by the European Anti-Fraud Office, whose allegations were not supported by evidence, could result in unnecessary costs for local administration – mainly because it is obliged to not question OLAF’s reports. What this example illustrates is that instead of investigating fraud, OLAF could sometimes harm national administrative bodies, whilst trying to gather additional funds for the EU budget. ow straightforward are OLAF’s investigations? Many people are not aware that in addition to its responsibilities, OLAF can conduct investigations on fraud reported by people who choose to remain anonymous – something that is not common amongst other administrative institutions. This, however, can be quite costly. Once an investigation is launched, those working on it will, in most cases, travel across the globe – to wherever the investigation takes them. The anonymous nature of the signal begs the question – is this investigation economically justified if it does not achieve its desired outcome? For instance, it doesn’t uncover tax fraud, which has had a harmful impact on the EU budget. When we talk about such investigations, it might be worth questioning whether they mainly relate to the anonymous person who reported the h fraud and their interests, or whether it’s something that’s actually worth investigating. In this context, it is unclear what OLAF’s procedure is when it comes to dealing with anonymous reports and the lack of clear and precise regulation on the subject raises doubts about the investigators’ objectivity. Anonymity provokes unjust, costly investigations Generally speaking, all of this could make it possible for the European Anti-Fraud Office to settle personal corporate interests by working on investigations which were reported by someone who remained anonymous, whilst the person who’s being questioned faces the costs of defending their rights. I have witnessed similar cases throughout my career, namely when the court overturns a customs decision based on a report by the Anti-Fraud Office or information received from them during the inspection, My intention is not to argue that the EU does not need OLAF altogether, however, I believe that it could perhaps revise the institution’s functions and powers. Why OLAF Investigations Should Be Subject to Judicial Review The European Anti-Fraud Office (OLAF) is an institution mandated by the EU with the notion of protecting the Union’s financial interest. It is an administrative body which investigates fraud against the EU budget, corruption and serious misconduct within the European institutions, and develops anti-fraud policies. But are their investigations thorough and meet legal requirements, or do they merely result in administrative bodies paying out a lot of money for an unjust, poorly conducted investigation into fraud? 70 WWW.LAWYER-MONTHLY.COM | MAR 2020 Expert Insight By Svetlomira Zhelyazkova, Attorney at Law