I. General Framework

1. Introduction

The European Anti-Fraud Office (OLAF) is merely an administrative investigative service but its work extends into a particularly sensitive area: criminal justice. OLAF is to forward to the judicial authorities of the Member State concerned information obtained by the Office during internal investigations into matters liable to result in criminal proceedings.¹ Reports drawn up by OLAF on the basis of its investigations constitute admissible evidence in judicial proceedings in the same way and under the same conditions as administrative reports drawn up by national administrative inspectors.²

Under these circumstances, it is obvious that OLAF’s communication with the media and with the general public must be strictly based on respect for the rule of law, for the confidentiality of investigations, and for individual rights, in particular, the presumption of innocence of those persons – natural and legal – under investigation. However, any communication strategy for OLAF must also take into consideration that, as is the case with any other public institution, it has the obligation to inform the citizens on how public funds are being spent, including when these funds are assigned to an investigative service.³

Striking the balance between the public’s right to know and the legal obligations that restrict this right is the main legal issue for the communication strategy of any investigative body like OLAF. It is, however, even more challenging within the transnational legal context in which the Office operates.

2. Duty to Inform and Administrative Discretion

a) Principle of openness

OLAF is first and foremost an administrative body within the institutional framework of the European Union. The concept of openness for the European Union’s administration is enshrined in the Treaty on European Union.⁴ Openness guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Openness contributes to strengthening the principles of democracy and respect for fundamental rights as laid down in Article 6 of the EU Treaty and in the Charter of Fundamental Rights of the European Union.⁵

The European legislator has laid down concrete rules for one specific aspect of public access to information – the access to documents – in Regulation (EC) 1049/2001. From the specific perspective of OLAF’s remit, the European Court of Justice puts particular emphasis on the objective of guaranteeing public access to documents relating to any irregularities in the management of financial interests, with the aim of giving citizens the opportunity to monitor more effectively the lawfulness of the exercise of public powers.⁶

b) Duty to inform in response to direct requests for information

On this basis, all further considerations involve distinguishing between situations where there is a direct request for information by citizens and situations where there is not.

Any citizen may seek access to documents held by OLAF, including investigative reports, on the basis of Regulation (EC) 1049/2001. When there is a request for information that is not contained in documents, the Code of Good Administrative Behaviour for Staff of the European Commission in their Relations with the Public⁷ establishes similar but less far-reaching rules of conduct for the administration.

c) Administrative discretion in the absence of direct information requests

A need to inform the public may also arise if there is no direct request for access to information. Beyond the general stipulations of openness, the Community Courts have defined a framework for OLAF’s communication activities. The Civil Service Tribunal recognises that “a culture of accountability has grown up within the Community institutions, responding in particular to the concern of the public to be informed and assured that malfunctions and frauds are identified and, as appropriate, duly eliminated and punished. The consequence of that requirement is that officials and other servants who hold posts of responsibility within an administration such as the Commission must take into account the possible existence of a justified need to communicate a degree of information to the public”.⁸

The European Anti-Fraud Office, in particular, is called upon to respond to this “concern of the public”: unlike the situation for other parts of EU administration, for OLAF, the identification of malfunctions and frauds is its principal activity; within all institutions, bodies, offices, and agencies established by, or on the basis of, the Treaties, OLAF is the entity responsible for administrative investigations fighting fraud, corruption, and any other illegal activity affecting the financial interests of the European Community. It is also responsible for investigating, to this end, serious matters relating to the discharge of professional duties, such as the constitution of a dereliction of the obligations of officials and other servants of the Communities.⁹

In spite of that, OLAF’s power to communicate has been put into question by several complaints before the European Court of Justice. The Court, however, has held that OLAF indeed has the power to communicate with the public about its work as informing the public about its activities is an accessory activity to an administration’s principal activity.¹⁰ In view of the autonomy granted to OLAF by Regulation 1073/1999 and in view of the general objective of press releases providing information to the public, OLAF enjoys discretion as regards the appropriateness and content of its communication activities in respect of its investigatory activities.¹¹ In the context of the review of an OLAF investigation, the European Court of First Instance also recognises that, in principle, public authorities may inform the public about ongoing criminal investigations.¹² This must – a fortiori – be equally valid for OLAF’s merely administrative investigations.

3. Legal Constraints on Public Information

Regardless of whether public information has to be given following a legal obligation or is imparted within the limits of administrative discretion, it is subject to legal constraints. Written legal bases explicitly take account of these constraints (e.g. Article 4 of Regulation 1049/2001). Specific constraints for OLAF’s discretion in its public information activities are the following: (1) the confidentiality of its investigations, (2) the duty to protect its investigators,¹³ (3) the presumption of innocence, (4) the respect for privacy and personal data,¹⁴ and (5) the right to a good reputation and protection of legitimate commercial interests.

a) Confidentiality and professional secrecy

According to Article 287 of the Treaty establishing the European Community (TEC), the officials and other servants of the Community are required not to disclose information of the kind covered by the obligation of professional secrecy, even after their duties have ceased. More specifically, the OLAF Regulation lays down the principles of confidentiality governing the work of the Office.¹⁵ The European Court of First Instance defined the limits of professional secrecy – in contrast to the public interest – such that the activities of the Community institutions take place as openly as possible.¹⁶

b) Protection of investigators

As the employing authority, OLAF has a statutory obligation to protect its staff.¹⁷ The scope of this duty has been defined by the Community Courts (duty of care/solicitude). This encompasses the protection of OLAF’s investigators from external influences and from exposure to the media.

c) Presumption of innocence

The presumption of innocence is a fundamental right laid down in Article 6 paragraph 2 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and Article 48 paragraph 1 of the EU Charter of Fundamental Rights. The European Court of Justice clarified that this right protects natural and legal persons affected by an OLAF investigation.¹⁸

d) Privacy and data protection

Another fundamental right to be taken into account when communicating is the right to privacy, as protected by Article 8 ECHR and Article 7 of the Charter of Fundamental Rights. Its most concrete implementation is the legislation on the protection of personal data in Regulation (EC) 45/2001. Unlike the presumption of innocence, its provisions protect only individuals but not legal persons. As far as requests for access to documents containing personal data are concerned, the Court clarified that they are not to be scrutinized under Regulation 45/2001, but under Regulation 1049/2001.¹⁹

e) Right to a good reputation and protection of legitimate commercial interests

The right to a good reputation protects natural and legal persons, regardless of whether or not they exercise a commercial activity and are damaged therein.²⁰ It also needs to be taken into account when deciding about any public communication activity.

II. Direct Requests for Information

1. Requests for Access to Documents and to Information Contained therein

a) Right of access

The right of access to documents held by the administration is laid down in the Treaty establishing the European Community, whereby any citizen of the Union, and any natural or legal person residing or having their registered office in a Member State, shall have a right of access to the Institutions’ documents.²¹ Therefore, journalists seeking information from OLAF can request access to documents. They are not required to justify their request and therefore do not have to demonstrate any interest in having access to the documents requested.²² Even access to documents containing personal data falls under this Regulation, according to which, in principle, all documents of the institutions should be accessible to the public.²³ In terms of Article 3 of Regulation 1049/2001, “document” means any content, whatever its medium. For OLAF, this includes, in particular, all case-related content as stored in the Case Management System (CMS) and other databases.

The concept of a “document” must be distinguished from that of “information”. The public’s right of access covers only documents and not information in the wider sense of the word and therefore does not imply a duty on the part of the institutions to reply to any request for information.²⁴ Nevertheless, the right to access not only covers documents held by the institutions as such, but also information contained in these documents.²⁵ The information may only be contained within documents, which presupposes that such documents already exist.²⁶ Consequently, if anybody can ask for an entire document and obtain it, a journalist enquiring about only one specific element of information contained in an OLAF Final Case Report (e.g., the suggested follow-up) may not be treated differently (i.e., more restrictively) than a journalist seeking access to the full Final Case Report.

b) Legal constraints

Whenever such a request for documents or information contained therein would lead to the revelation of information concerning natural or legal persons, Article 4 (1) lit. b) of Regulation 1049/2001 applies: OLAF shall refuse access to the information where disclosure would undermine the protection of privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data. This restriction constitutes an exception to the principle of the right to information.

The European Court of Justice, however, clarified that exceptions to that right must be interpreted and applied restrictively so as not to defeat the general principle enshrined in this Regulation.²⁷ This is particularly true for the institutions’ own staff and, consequently, for internal investigations, as the European Data Protection Supervisor emphasises:²⁸ according to him, employees in a public administration must be aware that – for several reasons – their personal data would be of public interest to a different degree to if he or she were working in the private sector. Two such interests are accountability and transparency. For these reasons, certain personal data can, in general, be disclosed without consent, provided that the disclosure is appropriate and motivated by the activities of the institution. The higher the grade of the civil servant, the more relevant this will be.²⁹

Furthermore, OLAF will always have to take into account the exceptions of Article 4 (2) of Regulation 1049/2001, according to which it shall refuse access to a document where disclosure would undermine the protection of commercial interests of a natural or legal person, including intellectual property, court proceedings, and legal advice, or for the purpose of inspections, investigations, and audits, unless there is an overriding public interest in disclosure.

2. Requests for information not contained in existing documents

OLAF has no obligations under Regulation 1049/2001 concerning information that is not contained in any document.³⁰ The handling of such requests follows the Code of Good Administrative Behaviour for Staff of the European Commission in their Relations with the Public,³¹ according to which the Commission undertakes to answer enquiries in the most appropriate manner and as quickly as possible. In these cases, the general rules apply. In particular, the principle of openness and the possible need to communicate have to be taken into consideration, as openness guarantees that the administration is more accountable to the citizen in a democratic system.

OLAF first checks whether the information has already been made public before giving it out. If this is not the case, OLAF may consider that it is not in the Community interest for the information to be disclosed. In this case, OLAF should explain why it is unable to disclose the information and refer, as appropriate, to the obligation to exercise discretion as laid down in Article 17 of the Staff Regulations. The legal constraints mentioned above apply accordingly.

III. No Direct Requests for Information

As explained above, in the absence of direct information requests, OLAF decides about the imparting of public information on the basis of its administrative discretion. OLAF has to exercise its discretion as regards the appropriateness and the content of its public information activities according to generally accepted criteria: (1) it has to act in pursuit of a clearly defined objective, (2) the action must be appropriate in order to achieve this objective; (3) the action must be proportionate.

1. Objectives of Public Information

In line with the existing legal framework, any communication by OLAF needs to pursue one of the following objectives:³² (a) satisfaction of the citizens’ right to know (openness); (b) fraud prevention; (c) protection of investigations, investigators, confidentiality, personal data, and other rights; (d) safeguarding the statutory operational independence of OLAF. These objectives respond as much to the rights of the citizen as to the interest of the service and to the duty of care towards staff.

a) Satisfaction of the citizens’ right to know (openness)

As elaborated above, OLAF, in its communication activities, must endeavour to satisfy the citizens’ right to know. In a democratic society, citizens have a right to be informed and assured that malfunctions and frauds are identified. Therefore, there exists a justified need to communicate a certain degree of information to the public. Openness guarantees that the administration is more accountable to the citizen in a democratic system.³³

b) Fraud prevention

Successful anti-fraud activities are built not only on detection and prosecution, but also on prevention and education.³⁴ Communication about the fight against fraud and corruption contributes, firstly, to deterring possible future perpetrators, as they are shown that illegal acts do not remain without consequences. Secondly, communication raises the awareness of all citizens and makes them more vigilant towards possible illegal acts. It also encourages them to come forward with concrete information in the event of them becoming aware of an irregularity, thus facilitating the work of OLAF.

c) Protection of investigations, investigators, confidentiality, privacy and personal data and other rights such as the presumption of innocence

The protection of investigations, investigators, confidentiality, privacy and personal data, and other rights such as the presumption of innocence not only puts a constraint on OLAF’s public communication (as discussed above), but also constitutes objectives for OLAF’s public information activities.

The reason for this approach is that, in relations with the media, nothing is more harmful than silence.³⁵ It is fallacious to believe that the more restrictively official communication is handled, the better investigations, investigators, confidentiality, and personal data are protected. Anti-fraud and anti-corruption topics at the EU level are too much in the limelight of public interest³⁶ to aspire to reduce media coverage by reducing official communication. Lack of official communication instead leads to illegitimate unofficial information flows, also known as “leaks”. A determined journalist will always be able to find information about OLAF’s activities: sources may be the initial informant, a witness, a national law enforcement authority operating under less restrictive communication rules, or even disloyal staff who, for different reasons, objectives, or interests, may be willing to leak information (or, even worse, confidential documents) that could damage the outcome of investigations, individual rights, and the credibility of the investigative service.

Furthermore, the scarcity of official information from OLAF promotes the spread of rumours and leaves the door open to spin and misinformation from interested parties. At this point, at the latest, OLAF will often be obliged to undertake some official communication activities in order to prevent further damage to its investigations, its investigators, or to the Office as such, as well as to protect the individuals affected by an investigation.

d) Safeguarding OLAF’s statutory operational independence

In its communication activities, OLAF has to safeguard its statutory operational independence.³⁷ In view of the extraordinary media interest in EU anti-fraud and anti-corruption topics, it is clear that, if OLAF does not speak for itself, others will do so instead or even on its behalf, thus putting the Office’s independence in danger. Furthermore, if an investigative body such as OLAF has no possibility to publicly rectify or clarify allegations and speculation that threaten to compromise it, this would damage not only its image, but its credibility and thereby, ultimately, its independence. Finally, by raising the general awareness of OLAF’s work, public communication also fosters the Office’s operational effectiveness: when OLAF is widely known, the contacts of its investigators with operational partners, witnesses, and concerned persons are facilitated.

1. Appropriate Actions of Public Information

In general, there are two basic types of communication actions that can be undertaken: bilateral communication and public communication. Such communication can take place in writing or orally. In principle, OLAF may use bilateral as well as public communication instruments³⁸ within the limits of its discretion. However, the strain on the affected persons (natural and legal) is naturally less when the information is only given to one counterpart.³⁹ Written and oral information are equally authorised means of communication. The European Court of Justice even allows more latitude for oral communication, holding that oral statements cannot be expected to be as detailed and nuanced as written statements.⁴⁰

2. Proportionality of Public Information

When exercising its discretion, OLAF must respect proportionality as regards the objectives pursued by the publication.⁴¹ This requires, in particular, a balancing of the rights of the natural or legal person affected (as outlined above) with countervailing public interests such as the interest in transparency about the use of community funds or that of deterring fraud by enhanced publicity. As a general rule, OLAF, like any other public authority, may inform the public about the outcome of its administrative investigations and even about ongoing investigations with all the discretion and circumspection necessary if the presumption of innocence⁴² and other legal restrictions (confidentiality, data protection) are respected.

One of the key questions is whether OLAF is allowed to publish information that would allow the identification of a person concerned by an investigation. It is obvious that OLAF may publish information that is anonymous. For information to be considered anonymous, it is sufficient that the individual concerned cannot be identified by the ordinary public. The publication does not constitute a violation of OLAF’s discretion if only some expert observers with knowledge of the case are able to identify the individual.⁴³ If information is duly made anonymous in the way described above, no issue of data protection or violation of other subjective rights such as privacy can possibly arise.

In exceptional cases, however, the person in question may also be identified: the European Court of Justice⁴⁴ holds that “exceptionally, and in particular where there is a serious malfunction affecting the lawfulness and regularity of revenue and expenditure or sound financial management”, the “matters found” may be “fully” reported, “thereby giving the names of third parties directly involved.” According to the Court “[i]t must be accepted […] that there may be specific circumstances, which may be due to the seriousness of the facts or the risk of confusion liable to harm the interests of third parties”, where it “is allowed to mention by name in its reports persons […], subject to the condition that such persons are entitled to a right to a hearing”.

In several typical situations, the names of persons concerned by an OLAF investigation are already in the public domain:

When the names of persons concerned by an OLAF case appear in the published rulings of the Community courts, OLAF may publicly quote these names in the same context. The same goes for names appearing in documents published by the European Ombudsman and names appearing in documents published by the European Data Protection Supervisor. Furthermore, OLAF may publicly quote names appearing in decisions, reports, legislative acts, or other documents published by the other institutions when they are related to an OLAF case.

As mentioned above, OLAF may not, in principle, publicly quote any personal data contained in rulings delivered by national courts. However, when an action is brought against an OLAF activity as such before non-Community courts or where such an action is brought that implicitly requires the scrutiny of an OLAF activity, OLAF may publicly refer to this action and to the decisions delivered in its course.⁴⁵

The question of how to deal with information that allows the identification of natural persons is particularly delicate when this information is already in the public domain:⁴⁶

• if there is correct information in the public domain, the European Court of First Instance holds that OLAF should not make any declaration on this information, as any such declaration would confirm the information and thereby change its nature from “unconfirmed” to “confirmed”.

• If there is erroneous or false information in the public sphere concerning a person affected by an investigation, OLAF is, in principle, barred from publishing any correction if the correction could, in any way, lead to the identification of that person. The European Court of First Instance argues that any correction of wrong information implicitly contains the confirmation of the remaining information.

• If there is erroneous or false information in the public sphere, in particular in the media, connecting a person to an OLAF case whilst, in reality, that person is not affected by an OLAF case, OLAF is, according to the Court, barred from publishing any correction if the correction could, in any way, lead to the identification of that person. The reason is that such corrections would create the justified expectation by the public that OLAF always corrects false information in circulation. This would imply that whenever OLAF does not publish any correction, the information is correct: thus, OLAF, by remaining silent, would implicitly identify persons concerned by investigations. In consequence, OLAF may not publicly clear anybody’s name on its own initiative.

IV. Conclusion

As can be seen from this analysis, OLAF’s public information activities are subject to a broad range of constraints that go well beyond the normal legal constraints on the EU institutions’ communication activities. However, OLAF is subject to a duty to inform the public and must weigh this obligation against the existing restrictions.

Whilst this article has concentrated on the legal scope for legitimate official communication by OLAF, it has not discussed any aspects of illegitimate communication.⁴⁷ Even in a service such as OLAF, determined third parties can find disloyal individuals who are willing to leak information. Such leaks can severely damage the outcome of investigations, individual rights, and the credibility of the investigative service itself. It is for these reasons that the leaking of documents and other information can never be a tool of communication.⁴⁸