The protection of fundamental rights in OLAF composite enforcement procedures: (with an outlook to the EPPO)

Abstract

In this dissertation I examine whether OLAF’s composite enforcement procedures can result in violations of the person concerned’s fundamental rights and, if so, how the OLAF and national frameworks must be adjusted to prevent such violations? OLAF is the European Union’s anti-fraud office. OLAF’s mission is to fight fraud, corruption and any other illegal activity that affects the financial interests of the Union. To that end, OLAF carries out administrative investigations, where it gathers evidence itself, and coordination cases, where OLAF coordinates the Member States’ investigations. OLAF’s investigation and coordination cases are conceived of as mere derivatives of other more traditional forms of law enforcement cooperation in which authorities enter into obligations to cooperate with one another, but each acts to fulfill these obligations within its own separately identifiable legal order on the basis of its own law. This system, in its most conventional form, is founded on the notion of territorial sovereignty. If we extend the logic of this approach from enforcement (the ‘sword’) to fundamental rights (the ‘shield’), issues in relation to the latter – and the accompanying responsibility to prevent and/or remedy them – can arise only in individual (sovereign) legal orders. The way in which we appreciate OLAF, as an evolved cognate of traditional forms of law enforcement cooperation, therefore directly dictates which, and the way in which, fundamental rights issues enter into the equation. In this dissertation I pitch a new contrasting way of looking at OLAF: so-called ‘composite enforcement procedures’. In these types of procedures, responsibilities for the entirety of enforcement are attributed to the inextricably linked European Union and Member State legal orders. If we stare at OLAF through this new looking glass, which I think we should do, other fundamental rights issues can step into the fore that would otherwise go unnoticed. These are issues that come about not in single legal orders, but rather exist in between or among the EU and the Member States. The goal this dissertation sets out to achieve then is to find out whether such fundamental rights problems indeed exist and, naturally, how they can be resolved. I do so by considering the ‘person concerned’: the natural or legal person who is the subject of an OLAF investigation or coordination case. At the end of this dissertation I assess whether, and if so how, the fundamental rights problems identified for OLAF also manifest themselves in criminal cases under the lead of the European Public Prosecutor's Office.