(1)

Regulation (EC) No 1073/1999 (hereinafter the OLAF Regulation) provides that the European Anti-Fraud Office (hereinafter the Office) is to initiate and conduct administrative fraud investigations (hereinafter internal investigations) within the institutions, bodies, offices and agencies established by or on the basis of the EC and Euratom Treaties for the purpose of fighting fraud, corruption and any other illegal activities detrimental to the European Communities’ financial interests. Pursuant to the OLAF Regulation, internal investigations may concern serious matters relating to the discharge of professional duties such as to constitute a dereliction of the obligations of members of the staff of such institutions, bodies, offices and agencies liable to result in disciplinary or, as the case may be, criminal proceedings, or an equivalent failure to discharge obligations on the part of members of institutions and bodies, heads of offices and agencies or members of the staff of institutions, bodies, offices or agencies not subject to the Staff Regulations of officials and the Conditions of employment of other servants of the European Communities (hereinafter the Staff Regulations).

(2)

For the ECB such professional duties and obligations, in particular the obligations relating to professional conduct and professional secrecy, are laid down in (a) the Conditions of Employment for Staff of the European Central Bank, and (b) the European Central Bank Staff Rules, and (c) Annex I to the Conditions of Employment concerning the Conditions of Short-term Employment, and (d) the European Central Bank Rules for Short-term Employment; and further guidance is given in (e) the Code of Conduct of the European Central Bank (2), and (f) the Code of Conduct for the members of the Governing Council (3) (together referred to hereinafter as the ECB conditions of employment).

(3)

The OLAF Regulation provides in Article 4(1) that in relation to protecting the European Communities’ financial interests and fighting fraud and any other illegal activities detrimental to the European Communities’ financial interests, the Office ‘shall carry out administrative investigations within the institutions, bodies, offices and agencies’; and in Article 4(6) that each institution, body, office and agency is to adopt a decision which ‘shall in particular include rules concerning: (a) a duty on the part of members, officials and other servants of the institutions and bodies, and managers, officials and servants of offices and agencies, to cooperate with and supply information to the Office’s servants; (b) the procedures to be observed by the Office’s employees when conducting internal investigations and the guarantees of the rights of persons concerned by an internal investigation’. In accordance with Community case-law, the Office may open an investigation only on the basis of sufficiently serious suspicions (4).

(4)

The OLAF Regulation provides (second paragraph of Article 4(1)) that internal investigations should be conducted subject to the rules of the Treaties, in particular the Protocol on privileges and immunities of the European Communities, and with due regard for the Staff Regulations. Internal investigations by the Office are also subject to Article 6(2) of the Treaty on European Union and to other principles and fundamental rights common to the Member States and recognised by the Court of Justice, such as, for instance, the confidentiality of legal advice (legal privilege).

(5)

Internal investigations are carried out in accordance with the procedures set out in the OLAF Regulation and in decisions adopted by each institution, body, office or agency to implement it. In adopting this implementing decision, it is incumbent on the ECB to justify any restrictions on internal investigations affecting the specific tasks and duties entrusted to the ECB by Articles 105 and 106 of the Treaty. Such restrictions should ensure, on the one hand, the confidentiality necessary for certain ECB information and, on the other hand, implement the legislator’s intention of reinforcing the fight against fraud. Other than for these specific tasks and duties the ECB should be treated, also for the purpose of the present decision, as a public entity similar to other Community institutions and bodies.

(6)

In exceptional cases, the circulation outside the ECB of some of the confidential information held by the ECB to perform its tasks could seriously undermine the ECB’s functioning. In such cases, the decision on granting the Office access to information or transmitting information to it will be taken by the Executive Board. Access will be granted to information that is more than one year old in areas such as monetary policy decisions, or operations related to the management of foreign reserves and interventions on foreign exchange markets. Restrictions in other areas such as data received from prudential supervisors regarding the stability of the financial system or individual credit institutions and information regarding the security features and technical specifications of current and future euro banknotes do not have a temporary limit. Although such information, the circulation of which outside the ECB could seriously undermine the ECB’s functioning, has been circumscribed in this Decision to specific areas of activity, it is necessary to provide for the possibility of adapting the Decision to any unforeseen developments to ensure that the ECB continues to fulfil the tasks assigned to it by the Treaty.

(7)

This Decision takes into account the fact that the members of the ECB’s Governing and General Councils who are not also members of the ECB’s Executive Board exercise, in addition to their ESCB functions, national functions. Exercising such national functions is a matter for national law which falls outside the scope of the internal investigations of the Office. This Decision therefore applies only to the professional activities of such persons undertaken in their capacity as members of the ECB’s governing bodies. To the extent that members of the General Council are potentially concerned by internal investigations of the Office, this Decision has been drawn up with the benefit of contributions received from such members.

(8)

Article 38.1 of the Statute provides that members of the governing bodies and the staff of the ECB are required, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy. Under Article 8 of the OLAF Regulation, the Office and its employees are subject to the same conditions of confidentiality and professional secrecy as those applying to ECB staff under the Statute and the ECB conditions of employment.

(9)

Under Article 6(6) of the OLAF Regulation, the national competent authorities support the Office in its investigations of the ECB in conformity with national provisions. The Government of the Federal Republic of Germany and the ECB are signatories to a Headquarters Agreement, dated 18 September 1998 (5), which implements the Protocol on the privileges and immunities of the European Communities in respect of the ECB and contains provisions regarding the inviolability of the ECB’s premises, archives, communications, and on the diplomatic privileges and immunities of the members of the ECB’s Executive Board.

(10)

Pursuant to Article 14 of the OLAF Regulation, any official or other servant of the European Communities may submit to the Director of the Office a complaint against an act adversely affecting them committed by the Office as part of an internal investigation, in accordance with the procedures laid down in Article 90(2) of the Staff Regulations. By analogy the same procedures should apply to complaints submitted to the Director of the Office by ECB employees or members of an ECB decision-making body and Article 91 of the Staff Regulations should apply to decisions taken regarding such complaints,

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members of the ECB’s Governing and General Councils, in matters related to their function as members of such ECB decision-making bodies,

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members of the ECB’s Executive Board,

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members of the governing bodies or any member of staff of the national central banks, who participate in the meetings of the ECB's Governing and General Councils as alternates and/or accompanying persons in matters related to this function,

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permanent or temporary ECB members of staff, who are subject to the ECB conditions of employment,

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persons working for the ECB other than on the basis of an employment contract, in matters related o their work for the ECB,

1.

the following sentence is added after the second sentence of Article 4(a):

‘They shall be bound by the provisions contained in Decision ECB/2004/11 concerning the terms and conditions for European Anti-Fraud Office investigations of the European Central Bank, in relation to the prevention of fraud, corruption, and any other illegal activities detrimental to the European Communities’ financial interests and amending the Conditions of Employment for Staff of the European Central Bank.’;

2.

the introductory sentence of Article 5(b) is replaced by the following:

1.

the following sentence is added after the second sentence of Article 4:

‘They shall be bound by the provisions contained in Decision ECB/2004/11 concerning the terms and conditions for European Anti-Fraud Office investigations of the European Central Bank, in relation to the prevention of fraud, corruption, and any other illegal activities detrimental to the European Communities’ financial interests and amending the Conditions of Employment for Staff of the European Central Bank.’;

2.

the introductory sentence of Article 10(b) is replaced by the following: