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Journal of European Public Policy

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The European Anti-Fraud Office (OLAF): a European

policy to fight against economic and financial fraud?
Vronique Pujas

Institut d'Etudes Politiques , Grenoble, France

Published online: 04 Feb 2011.

To cite this article: Vronique Pujas (2003) The European Anti-Fraud Office (OLAF): a European policy to fight against
economic and financial fraud?, Journal of European Public Policy, 10:5, 778-797, DOI: 10.1080/1350176032000124087
To link to this article: http://dx.doi.org/10.1080/1350176032000124087

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Journal of European Public Policy 10:5 October 2003: 778797

The European Anti-Fraud Office

(OLAF): a European policy to fight
against economic and financial
fraud?
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Veronique Pujas

ABSTRACT The setting-up of the European Anti-Fraud Office (OLAF) is

studied, exploring the genesis and the institutionalization of a new paradigm in
European policy, the protection of the Communities financial interests, in the
context of increasing public anxiety regarding issues of security. It is argued that
the European Commission actually took advantage of being cast as the scapegoat
in the 1999 crisis by progressively strengthening its own powers within the third
pillar, progressing towards the construction of a single judicial area in Europe. In
that respect, anti-fraud fighting is both a means and a strategy to reinforce the
legitimacy of European governance. Nevertheless, such a strategy is risky when we
observe that the effectiveness of European anti-fraud policy is highly dependent on
the operational means mobilized by the member states, strictly managed by
intergovernmental rules.
KEY WORDS Financial fraud; governance; legitimacy; OLAF; security; transnational crime.

In order to understand the historical and institutional background which led

to the creation of the Unit for the Co-ordination of Fraud Prevention (UCLAF)
in the late 1980s, which made way for the European Anti-Fraud Office
(OLAF) a decade later, it is necessary to highlight the emergence of a new
priority in the member states institutions and policies. This new field of
activity in public action is in its infancy but its place on the public agenda
recently became a priority owing to the political circumstances of September 11.
It is therefore interesting to study the development of the new phenomenon
of fighting fraud and corruption at the European level. The emergence and
identification of the problem thus defined, and its progressive transformation
into a new paradigm of public action at a supranational level, are neither
fortuitous nor trivial and therefore deserve analysis. How can we account for
the emergence of such widespread practices of fraud and corruption in a
particular context, which may act as an obstacle to European construction? Is
it the mere transfer of the difficulties met by national authorities in their fight
Journal of European Public Policy
ISSN 1350-1763 print; 1466-4429 online 2003 Taylor & Francis Ltd
http://www.tandf.co.uk/journals
DOI: 10.1080/1350176032000124087

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779

against domestic corruption on to the European level? Or is it that the

emergence of a single market and the progressive integration of the states within
a border-free European area create new opportunities for the development of
Europe-wide fraudulent practices? In such a case, is the incorporation of antifraud fighting on the European agenda the concrete and objective representation of new problems to be addressed, or can we assert that it is the creation
of a new public enemy which would make it possible to institutionalize on
the European level new domains of public policies as a guarantee of national
sovereignty? In short, who are the European and/or national actors who have
contributed to the emergence of this new public policy? What are the stakes
in such an issue? To what extent is the implementation of a new anti-fraud
policy part and parcel of the establishment of a new mode of legitimacy in
European integration? Could it reduce the democratic deficit that plagues
European institutions?
We will first study the emergence of this new paradigm in European public
action the prevention and repression of fraud and other illegal activities
detrimental to the Communities financial interests and more particularly
its links with the creation of UCLAF and its subsequent transformations. Such
institutional innovations have been brought about by the discovery of fraudulent practices within the Commission as well as by its alleged incapacity to act
against mismanagement of Community funds by member states. Our aim is
to identify the national and supranational actors who may play a role in the
institutionalization process of this new problem on the European level, as well as
highlight their converging and diverging interests. Two traditional approaches, a
neo-institutional and an intergovernmental one even if declared obsolete by
the Convention on the future of the European Union (EU)1 are still very
useful and will provide us with the necessary general framework to interpret
the orientations of anti-fraud fighting in Europe. The second part will be
devoted to a more intra-institutional approach in order to account for the
failure of the first taskforce of fraud prevention, better known by the acronym
UCLAF. In contrast, its successor, OLAF, which was set up under exceptional
circumstances, was the fruit of a political will to increase European citizens
trust in the European institutions which nevertheless still lack the necessary
means for such a purpose.
THE PROTECTION OF THE COMMUNITIES FINANCIAL
INTERESTS AND THE EMERGENCE OF UCLAF/OLAF
The historical and institutional process which has led to the setting-up of the
anti-fraud taskforce is linked to the institutional development of two key
sectors in European construction the budgetary and financial competences
granted to the supranational European institutions and the furthering of
member states integration within a single judicial area (first and third pillars).
These sectors have gone through turbulence and show that fighting fraud, the
lame duck in Community politics, is still embryonic in Europe. Also, we

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need to acknowledge the fact that fighting fraud and corruption should be
dealt with by the European institutions and is more an artefact of political
dynamics than the actual nature of problems which need to be addressed. The
construction of this public problem is, in fact, the result of tensions between
the Commission, whose strategy aims at strengthening supranational institutions, and member states, who want to reinforce intergovernmentalism under
the third pillar the real stake in anti-fraud fighting. They are opposed to the
idea that European supranational institutions should have responsibility for
leading an anti-fraud and anti-corruption policy, a highly salient issue in
domestic politics.2
Agenda-setting of a new public issue: fraud and other illegal activity
detrimental to Community financial interests
The actors of the European supranational institutions became aware that fraud
and corruption were of direct concern when the Community institutions were
granted own resources independent from member states in the 1970s.
Fraud, which had always existed and only became visible under certain
circumstances, was then presented as a problem which ought logically to be
addressed by the European Community (EC), within the frame of the
Community building process, and no longer by member states alone. Paradoxically, the institutional and economic evolution which fostered the emergence
and shaping of the notion that Community-wide fraud and corruption should
be addressed on the supranational level was to prove detrimental to the actual
resolution of the problem, as we will see.
Alongside the allocation of own financial resources, the European Court of
Auditors was created in 1978. The task of this independent body was to
evaluate and control Community expenditure. As early as the 1980s, the
Courts reports revealed instances of fraud and irregularities, notably concerning
mismanagement of agricultural subsidies (the common agricultural policy
accounted for 70 per cent of all Community expenditure at that time) (Nugent
1999: 390). These critical reports were presented to Members of the European
Parliament (MEPs) by the Budgetary Control Committee respectively in 1984,3
1994,4 19955 and 19986 on the occasion of the budget discharge procedure.
With the task of auditing the Community institutions, the Court of Auditors
was not granted the necessary means and competences to investigate instances
of fraud.7 While acknowledging these shortcomings, the Court upheld the
denunciations by the Budgetary Control Committee which called for a real
Community action plan in order to fight against European funds evasion.
On the basis of an internal report about anti-fraud fighting activities, the
Commission decided on the creation of the Unit for the Co-ordination of
Fraud Prevention (UCLAF8) in 1987. It was to be divided into anti-fraud
units among the various expenditure and revenue departments. It became
operational in July 1988. However, the Court of Auditors reports still revealed
instances of fraud and irregularities. Within the framework of the discharge

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procedure in 1990 and 1994 by the European Parliament, UCLAFs competences remained divided between Directorate-General (DG) VI (Agriculture,
the most important budget in the EC), DG XIX (Budgets), DG XX (Financial
Control) and DG XXI (Customs and Indirect Taxation), although its staff was
increased. In 1995, UCLAF was placed under the responsibility of Mrs
Grandin, the Swedish Commissioner in charge of financial control, and
consequently of fraud protection. In the same year, all UCLAF operational
activities were centralized. Nevertheless, in 1996 the investigation committee
created by the European Parliament on the common transit regime9 pointed
to the shortcomings and failures in UCLAFs activities. It advocated the
development of the role of UCLAF as an information-gathering unit on crime
and the creation of a central bureau to exchange information in order to help
national courts in their transnational legal activities.
With the support of the Commission and the European Parliament, the
member states, during the 1993 Copenhagen European Council, admitted their
inadequate management of Community funds and came to the unanimous
conclusion that they had to address Community fraud in the same way that
they dealt with the problem of domestic fraud and its detrimental impact
on their national budgets. This issue was debated during the meeting of Justice
and Home Affairs Ministers in Essen in December 1994 who requested that
the member states should adopt common measures. This collaboration was
formalized in an agreement in principle during the 1994 Corfu European
Council and led to the adoption of a Convention on the protection of the
Communities financial interests10 in 1995, which defined the general framework of the Commissions anti-fraud fighting activities.11
Europes concerted policy against fraud, hampered by the slow ratification
process of the Convention and of its additional protocols signed in 199612 and
199713 (PIF (Protocol for the Convention on the Protection of the European
Communities financial interests) instruments for the protection of Community
financial interests) which granted the necessary legal and judicial means to
conduct such actions, nullified any concrete European collaboration on this
issue. It also cast doubt on the member states real political will to fight
effectively against fraud and corruption. Indeed, the practical enforcement of
measures for the recovery of misallocated funds and the judicial follow-up
were still under the sole responsibility of member states, some of which had
not been very efficient in their fight against domestic fraud and corruption
(Pujas and Rhodes 1999; Pujas 2000, 2001).
The context was one of political awareness by member states within the
Council that such a problem existed objectively, while the enforcement
measures remained essentially in the hands of the selfsame states. The creation
of UCLAF, a Community body in charge of fighting against corruption within
the Commission, complemented the internal financial supervisory activities
which already existed within DG XX. In spite of UCLAFs various mutations
between 1987 and 1999, its more numerous staff, and the successive declarations of intent and official statements in support of the fight against all

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forms of fraud detrimental to Community interests, the financial auditing

departments repeatedly revealed cases of very flexible and twisted adaptations
of the rules in the European institutions. The shortcomings revealed in the
discovery of fraud and irregularities, as well as in the related investigations,
and the absence of any efficient and coherent legal proceedings at the level of
the European Union were denounced by Herbert Bosch, the Budgetary
Control Committee rapporteur on 7 October 1998. In his conclusion, he
insisted on the necessity of reforming UCLAF, which was also the object of
strong criticism within the Commission itself.
Thus, the European Parliament expressed its mistrust of the Commission
on several occasions, by highlighting the Commissions responsibility for the
emergence of irregularities and instances of nepotism, as revealed in the
Auditors report. This new stance, as a counter-force, allowed the European
Parliament to strengthen its new co-decision and budget control powers,
whereas its legislative activities had decreased over the previous years. It was
also the opportunity to reveal to the public its activism in its fight for
transparency. During the budget discharge procedure of 1998, two motions of
censure were voted, but none with the necessary majority to be adopted.
Nevertheless, the first motion led to the creation of a Committee of Independent Experts, also known as the Committee of Wise Men, whose non-political
report, outside the Community institutions, was aimed at calming things
down while highlighting the accusations made by the Parliaments Budgetary
Control Committee. The so-called Bosch Report was very critical and confirmed the Commissions failure to prevent and punish the instances of
mismanagement within its own services. Its conclusions led to the resignation
of the Santer Commission in March 1999. The Bosch Report was adopted by
the Parliament in May 1999 and the creation of OLAF was confirmed,
alongside the adoption of related legislation according to the co-decision
procedure.
European anti-fraud strategy in context
After the presentation of the historical and institutional evolution which has
led to the emergence of a new European anti-fraud policy and the appearance
of a new paradigm in public politics and its institutional foundation (the
protection of Community financial interests), the somewhat blurred but consensual perception of this issue needs to be analysed. Indeed, a number of
national experts and scientific studies have confirmed that fraud and irregularities had reached unprecedented levels in the context of global trade14 and the
abolition of borders linked to the creation of the single market (Salbu 1999;
Abbot 1999). It is difficult to evaluate to what extent the scandals in the
1990s caused by the discovery of acts of corruption and misuse of power by
representatives from many member states (Italy, France, Belgium, Spain, Portugal or even Germany and the United Kingdom) added to the alarmist rhetoric
about the Mafias activities from Eastern countries after the end of the Cold

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War. The extravagant evaluations that organized crime activities accounted for
a third of global monetary exchanges certainly contributed to a climate of
anxiety about economic and financial crime in general. Indeed, politicians were
obliged to react to the concerns of European citizens in a unique context of
general denunciation of fraud at European and global level. A Eurobarometer
survey in Spring 1996 showed that, in answer to the question of what Europes
voters think are high priorities for the EU, 87 per cent answered fighting
organized crime and 86 per cent answered fighting drug trafficking. So politicians had to adapt their rhetoric and political initiatives to this new concern.
For all that, the idea that Community institutions should be in charge of
fighting fraud has not emerged easily considering the volume and distribution
of fraud in the special structure of EU expenditure. Indeed, fraud concerning
administrative expenditure only 1.4 per cent of the EUs total budget was
trivial but proved much more significant as regards resources from European
subsidies, by far the most important part of the budget under the direct
management of the member states.
We are thus forced to recognize that the Commission played the role of a
scapegoat in the general condemnation of corruption problems, notably
when the budget discharge procedures were repeatedly postponed, and more
particularly during the legitimacy crisis which led to the resignation of the
Commissioners. Such an interpretation, and the perception that the EU has
to deal urgently with cross-border crime have been reinforced by the crisis
following the attacks of September 11, as well as the Enron scandal in the
United States. Indeed, it appeared that operational details of the September 11
attack were largely planned within Europe. Also, efforts to fight organized
crime and issues of financial transparency became a key concern for the
European Parliament. Two hypotheses explaining these developments can be
suggested: either the Commission chose to play the strategy of strengthening
supranational institutions even if it meant assuming total responsibility for
the crisis of confidence caused by the revelation of recurring problems of fraud
in its management or the member states, so attached to reinforcing
intergovernmental judicial and police co-operation, deliberately stigmatized
the Commissions poor management and stressed the importance of new
transnational crime in order to weaken the Commission and achieve their own
political preferences.
First hypothesis: towards reinforced institutions in the EU and EP
According to the first (neo-functionalist) hypothesis, the placing of fraud on
the agenda as a new problem to be addressed was made by supranational
actors the European Parliament and the Commission who were intentionally alarmist and wished to develop a new field of competence for the
supranational institutions with a view to reinforcing their activities. Indeed,
the fact that the Commission systematically put the problems of fraud on the
agenda during Council meetings (notably the Tampere Summit in 1999), as

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well as during parliamentary discussions of mismanagement by some European

civil servants and even some Commissioners, paved the way to the creation of
a new agency. With the initial task of investigating instances of mismanagement
in the internal administration, the new agency progressively imposed itself not
only as an inquiry agency endowed with important powers (and increasingly
independent from the Commission), but also as an agency co-ordinating
national sanctions. The Commissions role as an agenda-setter and also as coordinator and legislator is also definitively strengthened in many areas, not
only in the administrative first pillar, but also in the intergovernmental third
pillar with significant developments in matters such as immigration or economic and financial crime which were presented both as a threat and as the
result of insufficient internal security within the EU.
Under the first pillar, the Council regulation which established the protection of the European Communities financial interests15 was first conceived to
provide a legal framework for the fight against fraud led by the Community
and de facto by the Commission as its executive arm. Likewise, the Council
regulation concerning on-the-spot checks and inspections conducted by
the Commission for the protection of the Communities financial interests
empowered the Commission in practice UCLAF then OLAF to carry out
administrative investigations into member states, acting on its own initiative
and responsibility. Its fields of action were greatly extended regarding its power
of internal investigation into the administrative activities which were under its
direct responsibility.
Under the third pillar, the Commission made more significant progress as
it led to promoting the necessary establishment of a general framework which
paved the way to judicial integration. Though the convention on the protection
of the Communities financial interests had not yet been ratified by a majority
of member states, it dealt with the judicial dimension of fraud. Emphasis was
laid on co-operation between member states and co-ordination in their
investigating, judicial and sanctioning actions. It must also be added that
EUROPOL was created in 1998 with the explicit task of promoting cooperation between police forces, customs authorities and other competent
authorities in the member states. The Commission was openly granted an
extended role as it could from then on conduct administrative investigations
in the same way as member states.
Though progress was less significant on legal matters, European integration
was furthered by reinforced operational co-operation between police forces
and other policing bodies, improved information-gathering and processing,
and heightened judicial co-operation.16 The Commission17 was from then on
more concretely involved in the development of inter-state co-operation
owing to its obligation to provide technical help, or exchange information.
On this basis, a first institutional compromise was reached; it confirmed the
reinforcement of the third pillar with the creation of EUROJUST in March
2002, a temporary unit of judicial co-operation, composed of fifteen public
prosecutors, in charge of fighting serious transnational crime. Presented as the

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judicial counterpart of EUROPOL which had taken the lead, this new
form of co-operation mirrored police co-operation which was already well
established; it was greeted by the Italian Justice and Home Affairs Minister as
a reorientation of the European justice and security area in favour of justice.
Even though this aspect appears to support the intergovernmental theoretical
approach which we consider later, the Member states commitment to justice
and home affairs matters was reinforced by numerous initiatives taken by the
Commission, notably via the Maastricht Treaty which explicitly referred to the
Commissions task of reinforcing judicial co-operation. The Commissions role
was also strengthened by various European conventions although many of
them have not yet been ratified on justice and police issues. Such developments may herald future strengthening of the third pillar towards more
communitization, through the need for a corpus juris18 and the appointment
of a European Public Prosecutor, suggested (and highly publicized) by the
Commission in the Green Paper of January 2001, thus confirming the major
influence of European institutions in the area of high politics (Hoffmann
1966).19 In support of this proposal, the European convention relaunched the
debate on the creation of a European Prosecutors Office in December 2002.
A revision of the EC Treaty in terms of strengthening the criminal law
dimension in the fight against fraud could facilitate re-examination of the
institutional basis of OLAF. However, by addressing a major source of anxiety
in European society (namely the rise in crime), and proposing an institutional
response through the creation of a specialized taskforce to fight fraud, the
Commission has made a symbolic political move, thus enabling it to increase
its legitimacy and possibly restore the citizens trust in European institutions.
Second hypothesis: shifting fraud fighting to the supranational level
The intergovernmentalist (Moravcsik 1993, 1998) theoretical approach highlights the stigmatization of the Commission both as the instigator and the
target in the denunciation process of the fraudulent management of Community resources. Above all, by presenting the European institutions as accountable
for fighting transnational crime, member states avoid public responsibility for
the lack of effective anti-corruption policy. This has been a convenient way
for member states to find a culprit which is part and parcel of such a
denunciation process (Pujas 1999). Thus, member states laid the blame on the
College of Commissioners, who were discredited and eventually forced to
resign in March 1999; the Commissioners therefore paid a high price for the
developing legitimacy crisis when it became obvious that Europes anti-fraud
policy was a failure. In reality, some national governments were incapable or
lacked the political will of initiating institutional reform in order to reduce
mismanagement of public funds.20 Instead, they saw a window of opportunity
(Lascoumes 2001; Pujas 2001) to gain public credit by taking action against
the Commission which they blamed for misuse of Community funds, while
they themselves were actually in charge of the management of these funds.

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Moreover, the new political priority of fighting fraud is mainly the result of
decisions made by national actors regarding the European integration of national
administrations in charge of domestic security matters. Indeed, fighting corruption necessarily implies the progressive integration of national judicial systems
within a more global and standardized European judicial area. Fraud cannot be
fought effectively in the absence of European penal legislation. However, all
Community decisions on questions of penal jurisdiction have always been highly
sensitive matters as they could potentially threaten national sovereignty. In
matters of justice and home affairs co-operation, the states, not bound by the
European directives or regulations that are instrumental in the implementation
of Community policies, have kept total autonomy in such matters, which has
consequently hindered the enforcement of coherent and standardized policies.
The distinction between the strictly administrative competences and the
penal jurisdiction of UCLAF and OLAF is far from clear, and reflects the two
contrasting theoretical perspectives on European integration discussed above
namely, neo-functionalist and intergovernmentalist approaches. In practice,
some national administrations engaged in the process of European integration
have favoured an intergovernmental approach, yet hope to draw some advantages from it (rent-seeking). Other actors have actually been keen to develop
European police and judicial co-operation. In security matters, for example,
the involvement of national civil servants in transnational security networks
has increased their room for manoeuvre away from the supervision of their
home administrations, but has also created a new situation in terms of power
and legitimacy in a national context of strong competition between security
agencies.21 Needless to say, national security agencies, like the judicial police
services, are often anti-European and deeply hostile to the very existence of
EUROPOL and the creation of UCLAF/OLAF. This may partly explain its
failure. The report which led to the resignation of the Santer Commission had
clearly shown UCLAFs shortcomings in terms of co-ordination between the
various authorities in the member states. Several reasons may be put forward
to account for the lack of trust in OLAF expressed by its national counterparts
and interlocutors, notably sensitive questions of sovereignty, lack of knowledge
about UCLAFs role, reluctance to give judicial information to a body which
is part of the Commission, and probably scepticism as regards UCLAFs
competences and way of working.22 We must also add that at least two of the
most important players, France and the United Kingdom, do not seem to be
ready to see the emergence of a European Prosecutor in the near future.
In many ways fighting fraud at a European level is a classic catch-22
situation. On the one hand, the 1999 scandal worsened the already bad image
and lack of legitimacy that have hampered the Commission ever since its
creation. On the other hand, any initiative in matters of fighting fraud is likely
to fail as long as there is no effective co-operation between national bodies and
agencies. The European institutions, and more particularly the Commission,
therefore took a high risk when they became active in this new policy area: if
the results were poor it would further erode the institutions legitimacy. The

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audit in the aftermath of the 1999 crisis called for reinforced financial and
disciplinary control. But conversely, far from bringing more transparency and
legitimacy to European governance, such measures could make it more opaque.
However, the dramatic events of September 11 reinforced co-operation between
the judiciary, police and information services of the fifteen EU member states.
Measures that had been discussed for years, but remained blocked for political
and technical reasons, were now incorporated in an action plan to combat
terrorism and organized crime. The plan explicitly included corruption in all
the relevant texts. For example, in November 2001 a new directive on money
laundering was adopted, obliging member states to combat laundering of the
proceeds of all serious crime, including corruption. The European Arrest
Warrant adopted in June 2002 is another illustration of the new, common
European approach. Introduced to fight transnational crimes including corruption, it replaces extradition procedures and requires that an arrest warrant
issued in one EU country be recognized and executed in all other EU member
states. EU ministers reached political agreement on the warrant in December
2001, but the process was contentious. Italys Prime Minister Silvio Berlusconi
agreed to the warrant only under intense pressure from other EU member
states. His opposition was based on the inclusion of provisions on money
laundering, corruption and fraud. Furthermore, the requirement that national
parliaments ratify the warrant may delay its implementation (scheduled for
January 2004) even though six states have decided to implement it so far.
Such rapid improvements (as well as substantial obstacles such as the late or
non-ratification of most conventions adopted by the Council) confirm that,
in the present state of development of the third pillar, the member states hold
the key.
Our two chosen theoretical approaches present different perspectives on the
problem, as both supranational actors, such as the Parliament or the Commission, and national actors have tried to hijack and exploit the denunciation of
fraud to their own advantage. In the real world, a European anti-fraud policy
will succeed only if a compromise between these two visions of European
integration is found. Also, much will depend on the progressive evolution of
the third pillar towards more communitization, especially on enlargement and
the difficulties of dealing with yet more diversity, heterogeneity, and numbers
of partners needed to implement such policy. Also, the elaboration of a general
normative framework which may account for the emergence of European
public anti-fraud policy cannot overlook a more intra-institutional approach
that can explain the internal balance of power within the European institutions
which prompted the evolution of UCLAF/OLAF. It is to the important interand intra-institutional matters that we now turn.
INTER-INSTITUTIONAL AND INTRA-INSTITUTIONAL
TENSIONS DURING THE CREATION OF UCLAF
Two types of tension may account for the evolution and predicted failure of
UCLAF. The treatment of cases related to instances of fraud and irregularities

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in Europe has caused tensions which have occasionally worsened between

European institutions such as the Parliament and the Commission, but also
within the Commissions own agencies and bodies. UCLAF applied pressure,
with the support of some MEPs, for the creation of an anti-fraud structure
within the Commission. In fact, the very genesis of UCLAF may account for
the diverging views and interests of the Commission and the Parliament.
Besides, the creation of UCLAF and its subsequent reform into OLAF have
obviously modified the balance of power between intra-Community services.

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A successful outcome for both the EP and the Commission

The European Parliament conducted its campaign against fraud and corruption
in the management of Community funds through the Budgetary Control
Committee (Georgokakis 2000).23 The initiative in this domain was therefore
political. As the Parliaments role and influence are restricted in the decisionmaking process, it is no surprise that it should have devoted resources to the
limited domain of activity conceded to it; indeed, since 1977, it has played an
increasing part in budgetary control activities and has used to the full its
capacity to create inquiry committees. The budgetary discharge is, in fact, the
main instrument of control over the budget as implemented by the Commission
and is based on the annual report of the Court of Auditors and the declaration
of assurance (a function which is now exercised during the whole term of office
of the Commission). By using such institutional possibilities the European
Parliament has gained a double advantage: the control of Community expenditure has allowed it to advertise what it regards as a weakness in the EU, but it
has also made it possible for the Parliament to take on a moral image as the
guardian of good governance in the European institutions, on behalf of a
European public already sensitive to problems of domestic corruption. This
has helped to present the Parliament as an institution which defends European
taxpayers and which can overcome its own political differences and chaotic
parliamentary debates.
In the 1990s, four opportunities were offered to the European Parliament
to express its lack of trust in the way the Commission managed Community
resources. The first episode took place in 1994 when the Parliament provided
for fifty new posts in the 1994 budget for UCLAF agents, and insisted that
clear supervisory responsibilities be established. It postponed the discharge
procedure of the 1992 budget in order to compel the Commission to take the
necessary measures. Likewise, in 1995, the Parliament used its new right to
create an inquiry committee, as stipulated in the Treaty of European Union
(TEU). The inquiry committee issued a report on allegations of fraud
and misadministration in the Community transit system. It called for the
development of the role of UCLAF as an information-gathering unit on crime,
together with the creation of an information exchange central office (which
in fact now exists in OLAF) in order to help national prosecutors in their
transnational legal proceedings. Again in December 1998, the Parliament

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postponed the discharge procedure of the 1996 budget following the discovery
of serious irregularities in the calculation of travelling expenses within the
Economic and Social Committee, during an investigation by the Court of
Auditors. Then in 1999 the Parliament voted two motions of censure on
instances of favouritism and nepotism by some Commissioners.
In addition to the institutional opportunity offered to the Parliament to
highlight its supervisory role by systematically denouncing problems of fraud
and urging the Commission to provide for the necessary means to address
these problems, the political context during the first quarter of 1999 may also
explain the scale and timing of the crisis over financial irregularities. European
elections were approaching. As Le Monde put it, the opportunities offered by
the affaires for some MEPs, notably from the Greens, to come to the fore,
has certainly not helped to calm things down. 24 In the same vein, the ongoing
negotiations Agenda 2000 on the financing of Europe up to 2006 and the
reform of the common agricultural policy and the structural funds (which,
combined, represent the second main source of misuse of Community funds)
were an excellent occasion for the Parliament to highlight its role and positions.
One of the direct consequences of this winning strategy was the postponement of the appointment of the new Commission until the election of the
new Parliament. Indeed, the representatives of the member states lost ground
to the Parliament when they agreed not to appoint, as initially planned, the
president of the new Commission (20002004) before the mid-June 1999
European elections. The European Parliament was seen by public opinion as
the great winner in this crisis.25
Paradoxically, the confrontation between the Commission and the European
Parliament and the ensuing institutional crisis seem to have strengthened both
institutions, albeit via different dynamics. The democratic legitimacy of the
Parliament and its role as political counterweight have certainly been consolidated thanks to its dual role as denouncer and initiator of anti-fraud policies.
Though at first sight the new institutional balance of power seems to have
been more in favour of the Parliament to the detriment of the Commission,
the Commissions initiative and management capacity were also confirmed
within the first, and more particularly the third, pillars, thanks to the reform
of UCLAF which then became OLAF. Contrary to the commonly held opinion
that the Parliament was the great victor in the 1999 crisis, the fact that the
report, written by the Committee of Independent Experts, led to the resignation
of the Santer Commission actually weakens the theory of a binding democratic
control by the European Parliament. The creation of the Committee of Wise
Men was indeed the result of a compromise between the Parliament and the
Commission, in order not to further exacerbate tensions between the two
institutions. It confirmed the highly symbolic position and authority of the
Commission as the embodiment and defender of Community interests.
Likewise, the first motion of censure was intended to give new legitimacy to
the Commission, in agreement with the majority Socialist group. Lastly, the
very critical report on UCLAF which was issued during the debate on the

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motion of censure was aimed at reinforcing the governmental position of the

Commission with a heightened and reformed role given to UCLAF/OLAF
within the Commission. All these elements tend to confirm the neo-institutionalist approach according to which, thanks to the emergence of the idea of
the absolute necessity for anti-fraud policies, Community institutions have
been strengthened and vested with new powers.
The creation of UCLAF was the result of the confrontation between the
Parliament and the Commission, but the emergence of this new agency also
generated competition within the internal services of the Commission which
partly explains its failure and subsequent recent reform. Indeed, internal
competition between the Commissions and UCLAFs services is the origin of
a predictable failure. The tensions between the internal financial control
services of the Commission and UCLAF reveal the ambiguous dimension of
their supervisory function and have not really been addressed by the subsequent
reforms initiated by the new Commission. The tensions were also obvious
between the personnel departments and UCLAF on the questions of sanctions
against deviant civil servants, and performance incentives intended to lessen
administrative mismanagement which was at the origin of irregularities or
fraud.
Competition between DG XX and UCLAF
Competition appeared at the very inception of UCLAF and was the consequence of rivalries between UCLAFs investigation services for the detection
of administrative and/or financial irregularities and the Commissions financial
services (DG XX). UCLAF was obliged to work from case files drafted by the
audit division of DG XX in order to establish instances of fraud. In fact, the
auditors expertise was very important for the drafting of fraud files as UCLAF
staff lacked expertise in that domain. Such encroachment between the mission
of the services in charge of internal auditing and those of the anti-fraud unit
triggered competition strategies which proved detrimental to effective antifraud fighting. The de facto exclusion of DG XX was really sterile in so far as
the auditors expertise remained essential for OLAF investigations. 26 Likewise,
the DG XX services rigidly retained information because they felt UCLAF
had no legitimate right to have access to information which DG XX had
gathered, in terms of expertise, allocations27 and staff.28 In their report, the
Wise Men listed a number of grievances against UCLAF. They criticized the
fact that an excessive number of UCLAF staff were temporary agents, which
created endless turnover and a lack of continuity in the organization. The
Wise Men also commented that the staff had not been selected carefully and
the rules on the confidentiality of information were not complied with in a
coherent way. It was also noted that, as for documentation or investigation
follow-up, there was no standardized procedure, nor was there any measure
guaranteeing that case files followed norms demanded by judicial procedures
in the Member States. Electronic resources were not entirely operational either,

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or lacked efficiency, and the concrete use of databases was therefore very
limited. Finally, they observed that the co-operation between the Member
States was hampered by the attitude of the Commission about the privileges
and immunity of EU staff. It was left to a member of the Commissions
financial control unit out of desperation at not receiving any response from
his supervisors to denounce publicly to politicians and the media the abusive
practices of some services and civil servants on whom he had drawn up detailed
reports. His explicit and irrevocable criticisms of UCLAF made a major
contribution to the ensuing crisis (Van Buitenen 2000).
Even if the auditors role was not to detect and investigate criminal acts,
UCLAF was not granted the necessary means to remedy such shortcomings.
Indeed, the criminal jurisdiction of UCLAF depended on collaboration with
the national authorities which were endowed with the necessary powers of
investigation. It can therefore easily be understood that rivalry developed
between both services, given the fact that the Anti-Fraud Unit had originally
been integrated in DG XX services (and in DG VI, XIX and XXI as well) but
had progressively become more independent (in 1994 and 1995), thanks to
the centralization of its services and its more numerous staff, to the detriment
of DG XX though the Unit officially remained a structurally dependent unit
within the DG.
In the aftermath of the 1999 crisis, the Court of Auditors, an external audit
unit, produced reports which were clear and to the point, but it appears that
only one branch of the budgetary authorities, the Budgetary Control Committee, used them efficiently. In contrast, the audit and control mechanisms
within the Commission did not function properly, for seemingly political
reasons. The small size of the audit unit within DG XX did not enable it to
examine all cases, and it was incapable of developing the necessary procedures
to prevent further irregularities and instances of fraud. The creation of OLAF
therefore offered the opportunity to highlight the weaknesses of the financial
control units within the European institutions and more particularly within
the Commission.
We must also stress the ambiguous situation of UCLAF/OLAF regarding
the control function of the highly bureaucratic European institutions. The
UCLAF investigations were of an inquisitorial (as a unit hunting down fraud)
and delegitimizing nature for the services under scrutiny which objected
strongly to what they considered as interference. The anti-fraud unit was
accused of conveying a negative image of the Commission services. Thus, the
Commission services were very reluctant generally to collaborate with an
agency with such weak legitimacy.29
Several operational services with which the Committee of Independent
Experts had contact were critical about the way UCLAF worked, while others
saw its activities as a concrete obstacle to the resolution of some cases a view
confirmed by some UCLAF staff interviewed over the period 199495.30 This
critical stance was reinforced by the fact that the agency, which was under the
Commissions Secretariat General, was often perceived as preventing any

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presentation of compromising information to other services or arenas. Likewise,

the August 1998 report of the Court of Auditors on UCLAF revealed many
problems in matters of internal and external communication and collaboration
with other services. For the agents of the other services of the Commission,
UCLAF was seen as a very secretive unit which might even distort information
on fraud, without any legal redress. The report also revealed that far from
considering UCLAF as an ally in the fight against fraud, some services perceive
it as a rival with which only minimal and essential collaboration should be
maintained. 31 From this viewpoint, UCLAF appeared to produce results quite
opposite to those originally intended. Some services have even contested its
monopolistic position regarding information about fraud. UCLAF was sometimes considered as some sort of censor which would arbitrarily decide on
fraud issues. This lack of trust was intrinsically linked to the creation of
UCLAF, and its staff found it difficult to restore its image as a positive and
impartial control unit.
OLAF: an ambiguous step towards a European area of freedom, security and justice
OLAF is the fruit of exceptional circumstances in the aftermath of a scandal.
It reflects the necessity of restoring credibility. 32 Born in a context of institutional crisis, it was created to bring renewed legitimacy to the Commission and
was granted a dual statute which aimed at giving the Office the necessary
operational independence, desired by the political authorities, while it remained
within the Commission for its budget and administration. In fact, OLAFs
many problems are mainly due to this semi-autonomous state. OLAF is an
administration with investigative powers but it lacks a legal personality, has no
recognized power to impose penalties and is overseen by a Supervisory Committee designed to control and guarantee its independence. As a consequence
of such deficiencies, the legitimacy of OLAF is regularly questioned by national
and European institutions because of the lack of guarantees regarding the
objectivity and transparency of its investigations as well as the deficient protection of the fundamental rights and freedoms for the personnel investigated.
(There are no guidelines about the conduct of investigations or the collection
of evidence and very few investigations lead to action before a court.)
The end result is that relationships between OLAF and the other European
institutions and organs remain problematic. With regard to the European
Parliament, when the request for information is designed to put the Commission under political pressure, the provision of documents and information has
remained the focus of serious tension.33 In particular, the circumstances of the
investigations (begun in February 2002) into the alleged misuse of EU funds
donated to the Palestinian Authority illustrate the ambiguity of the institution
designed to investigate fraudulent practices. Indeed, in this case (probably
influenced by the memory of the 1999 crisis) three different initiatives have
been taken at the European level. In a first stage, the European Parliament has
taken up the issue, with 170 MEPs signing a petition calling for a parliamentary

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investigation. The day after this petition, OLAF announced the start of a new
investigation. Finally, the Foreign Affairs Parliamentary Commission and
COCOBU (French acronym for the Budgetary Control Committee) proposed
setting up a working group to control the use of European subsidies by the
Arafat administration. Obviously, each of these institutions judged itself the
most capable of investigating such issues, but it again opens the debate about
who is the legitimate European actor to tackle the problem of the misuse of
EU funds. Thus, the question has not been resolved even with the creation of
OLAF. With regard to OLAFs position within the European Judicial Area and
its new components EUROPOL and EUROJUST (added to the previously
created European Judicial Network), it is symptomatic that the decision to set
up these institutions was not planned in the light of the relationships between
them. Only very recently have agreements been made for co-operation between
the Commission (and through it OLAF) and EUROPOL,34 and EUROJUST
and OLAF.35 These bodies respective tasks have not been clearly defined even
though their powers have been extended and reinforced.
Finally, they were several disputes about the new inter-institutional internal
investigation system which illustrate the lack of legitimacy of OLAF within
the European institutions. The European Central Bank (ECB) and the
European Investment Bank (EIB) each adopted an internal decision incompatible with OLAFs investigative power which covered all the institutions of
the EU. Court action was launched by the Commission through the European
Court of Justice. The opinion of the Advocate-General (presented in October
2002) recommended the annulment of the decisions of the ECB and EIB,
which has been approved by the ECJ in July 2003. The question of whether
MEPs immunity protects them from action taken by OLAF has also been
brought before the Court of First Instance (in February 2002).36
The lack of support by other European agencies which have not yet agreed
to co-operate with OLAF contrasts with the multiplication of sub-bodies
created to support OLAF in its task. At least three new institutions have been
set up by the Commission since 1992: the Investigation and Disciplinary
Office (IDOC) with the function of conducting administrative investigation
and preparing disciplinary procedures,37 the creation of independent Authorities specializing in financial irregularities for each institution,38 and finally the
OLAF Anti-Fraud Communicators Network (OAFCN) whose aim is to create
dialogue and work to inform, raise awareness and develop a prevention culture
among the professional circles and national authorities.39 It is difficult to
imagine how such a mosaic of bodies will be able to co-ordinate their action
efficiently, not only at the European level but also in relationships with the
myriad of national institutions aimed at fighting crime. The complexity of the
institutional tools created by the European institutions is in stark contrast with
the need for simplicity and clarity in order to make an anti-fraud policy
operational and efficient.
To sum up, OLAF, which was created to protect the European communities
financial interests, notably under the first pillar, comes rather under the

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intergovernmental framework of the third pillar. Indeed, as long as the question

of the evolution of the third pillar towards more communitization is not
addressed implying a more concerted and binding management of European
justice and policing policies all forms of anti-fraud activity are probably
bound to fail. The role of the European Parliament and the Commission may
be reinforced because of their commitment to anti-corruption fighting, but
this is a short-term outcome: the European institutions remain prisoner of the
prevailing intergovernmental doctrine and they run the risk of being unable
to offer satisfactory results and eventually resuming their former role of a
scapegoat, should a new crisis occur.
CONCLUSION
The protection of the communities financial interests and anti-fraud
fighting: would they provide a new legitimacy for European integration?
The creation and institutionalization of this new paradigm in public action,
the protection of the European communities financial interests, offers a new
tool that may be used to heighten and renew European governance as
championed by the Commission. More widely, the emergence of European
anti-fraud policies brings into question the integration process of the member
states in new domains of Community action. They are not trivial as they
pertain to security and justice affairs, the last sanctuary of national sovereignty
against European integration.
By promoting anti-fraud policies, the EU spurred on by the European
Parliament and the Commission has clearly adopted a strategy of judicial
integration, following on from economic integration. As is the case with
European immigration policy, anti-fraud policies highlight the turning point
in the development of the new control paradigm under the third pillar, which
is currently rather weak.
The development of an anti-corruption strategy is therefore linked to the
realization of a much bigger project, i.e. the construction of a single judicial
area in Europe. In that respect, anti-fraud policy is both a means and a strategy
to reinforce the legitimacy of European governance in the present critical
situation in the construction of Europe. It is symbolic as it embodies a political
will to strengthen European institutions, while means and resources still depend
on intergovernmental decisions under the third pillar. We cannot, therefore,
say if the introduction of this new policy domain (the fight against abuse of
Community funds), which is based on a discrepancy between the objectives
(the strengthening of the Parliament and the Commission) and its means
(intergovernmental decisions under the third pillar), will eventually contribute
to making good the deficit in the legitimacy of the European institutions.
Address for correspondence: Veronique Pujas, Research Fellow CNRS, CIDSP,
Institut dEtudes Politiques BP 48, 38040 Grenoble Cedex 9, France. Tel:
04 76 82 60 45. Fax: 04 76 82 60 50. email: pujas@cidsp.upmf-grenoble.fr

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NOTES
1 The European Conventions working group on freedom, security and justice,
Conv. 426/02, proposes substituting the communitization and intergovernmentalism approaches with a clearer distinction between legislation (legal
instruments, legislative procedures, implementation in large part to be aligned
with Community procedures law) and reinforced co-ordination of operational
collaboration at the European level. http://register.consilium.eu.int/pdf/en/02/cv00/
00426en2.pdf
2 Developments in December 2001 in Italy (not included in this article) regarding
the failure to agree on the European arrest warrant, after the events of September 11,
tend to confirm the hypothesis that the fight against corruption is a sensitive issue
for domestic politics. Some member states, without severe problems of corruption
in their political life, will be much more receptive to a European policy to fight
corruption, whereas countries with corruption problems involving the political
elite in Italy and France, for example, will be more reluctant to implement
European norms.
3 Jan. 1984, Doc. 11346/83.
4 The Bosch Report, A4-0297/98, 22 September 1998, p. 10.
5 Parliamentary Inquiry Committee on the transit system.
6 A4-0097/1998 resolution informing the Commission about the reasons for
postponing the discharge decision on the execution of the EU general budget for
the year 1997, adopted on 30 March 1998.
7 OJC C348 of 18 November 1997, Court of Auditors covering 1996, Vol. 2.
8 COM (87) 572 and COM (87) 891.
9 The Common Transit Procedure which permits goods to enter the territory of the
Union and its EFTA partners (and that of Poland, Hungary and the Czech
Republic) without paying customs duties or excise, provided that they are reexported, has been the subject of serious frauds which had an impact on public
budgets. In Fraud and the EU Budget, DG Research, EP 167.114, p. 9.
10 OJC C316 of 27 November 1995, EP Resolution of 19 September 1996, OJC
C320, 28 October 1996.
11 Reg. no. 2988/95.
12 The first protocol on 27 September 1996 defines corruption that is detrimental to
the Communitys financial interests, and the obligation by the member states to
fight and punish it. The protocol on 29 November 1996 is about the interpretation
of the PIF Convention and of its protocols by the ECJ.
13 The second protocol on 19 June 1997 is about the obligation of the member
states to fight money laundering, and provides for the responsibility of legal
persons. It makes provision for the seizure and confiscation of crime-related
instruments and revenues. It also makes provision for the rules governing cooperation between the Commission and the member states, and for the protection
of data.
14 In the mid-1990s and in the context of globalization awareness, the World Bank
and the IMF began to devote more resources to research into the economic impact
of corruption. Several leading economists including Vito Tanzi, Paulo Mauro and
Daniel Kaufman produced IMF and Bank publications, detailing empirical evidence about the costs of corruption to international business and development
efforts.
15 Council Regulation 2988/95.
16 Notably with the creation of liaison judges for each member state with the task of
co-ordinating judicial co-operation.
17 We can therefore infer that the Commission, thanks to the mobilization of
Community institutions on fraud problems, is taking the initiative in taking on

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19
20
21
22
23

24
25
26
27

28
29
30
31
32
33
34
35
36
37
38
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Journal of European Public Policy

the role of agenda-setter that the observers of the third pillar deplored so much.
This hypothesis is confirmed by the directive drafted by the Commission on
23 May 2001 which aimed at ensuring the criminal protection of European funds.
According to this directive (adopted according to the co-decision procedure by the
Council and the European Parliament), the member states were to adopt common
definitions of offences (fraud, corruption, money laundering) that are detrimental
to the Communitys financial interests, together with common rules in matters of
accountability, sanctions and co-operation with the Commission. This directive is
interesting as it made provision for the control mechanisms of the first pillar.
Corpus juris would introduce an autonomous code for the investigation, prosecution
and punishment of fraud and other crimes against the Communitys finances. This
code would apply in a single legal/judicial area comprising all member states.
High politics issues are those which touch on the fundamental definition, identity
and security of the nation-state.
Cf. the failure of some member states to prevent and punish public funds evasion
through fraudulent management of public contracts, invitations for tenders,
subsidies.
Ibid.
Report of the Committee of Wise Men, ch. 5, p. 20.
Didier Georgokakis explains the denunciation role of the Budgetary Control
Committee in a number of ways: it is not a prestigious parliamentary committee
and it consequently gathers members from minority groups such as the Liberals
and the Greens; it was under the presidency of a German member of the European
Peoples Party at a time when pressure on the Commissions budget was strong
and the accused Commissioners were socialist.
Le Monde, 20 January 1999.
Ibid.
Report of the Committee of Wise Men.
UCLAF, as a statutory administrative body, does not have the same legal arsenal
of attributions as a police force, which is necessary to carry out more thorough
work than than of the auditors (Report of the Committee of Independent Experts,
p. 21). We may add that the creation of OLAF has not solved the problem.
Before 1995: 25 customs inspectors, 15 agricultural inspectors, 8 tax inspectors, 8
financial inspectors/accountants, 7 police officers; i.e. a total staff of 163.
Interviews with UCLAF/OLAF staff conducted in December 2000.
Ibid.
Report of the Committee of Wise Men, ch. 5, p. 20.
Interview with a member of the OLAF staff, December 2000.
Supervisory Committee, Report September 2001June 2002, 18 June 2002, p. 52.
18 February 2003, www.europol.eu.int
On 14 April 2003, OLAF and EUROJUST signed a memorandum of understanding putting in place the modalities for their future co-operation. http://europa.eu.
int/comm/anti_fraud/press_room/pr/index_en.html
There is currently an appeal to the Court of Justice against the judgment of the
Court of First Instance.
2 April 2003, Commission Report, Evalutation of OLAF, COM (2003) 150
Final, p. 21.
Ibid. p. 22.
Ibid. p. 29.

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