What’s wrong with OLAF? Accountability, due process and criminal justice in European anti-fraud policy - Common Market Law Review View What’s wrong with OLAF? Accountability, due process and criminal justice in European anti-fraud policy by - Common Market Law Review What’s wrong with OLAF? Accountability, due process and criminal justice in European anti-fraud policy 47 3

Although OLAF has numerous areas of activity – such as performing coordination, assistance and monitoring functions, improving cooperation with and between the Member States and developing anti-fraud policy – its investigation function is of prime importance. When OLAF carries out internal and external investigations, it should obviously do so with integrity, impartiality and professionalism, respecting above all individuals’ fundamental rights and freedoms. Unfortunately, this is not always the case in practice. OLAF is indeed in a delicate position and has to balance the effectiveness of its investigations and the so-called “culture of accountability”. Problematically, the judicial review of OLAF’s acts is still very weak and the action in damages is often the only remedy available to the persons in the investigatory process. This lack of protection has been a matter of constant worry since OLAF’s establishment. The case law of the Union judicature is nowadays particularly active and rather progressive when it comes to the protection of the rule of law within OLAF’s investigations. Notably, the Civil Service Tribunal has delivered some very innovative rulings on this matter which depart from the mainstream case law. This judicial tension reflects, arguably, a deeper malaise. Perhaps, an institutional reform should be undertaken. This is all the more true since the Lisbon Treaty clearly brings to us new perspectives on the protection of Union financial interests, for instance developments in EU criminal law and the possibility of a European Public Prosecutor.

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