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The powers of OLAF concerning on-the-spot-checks at economic subjects in the Netherlands

by Sabine Poethke

OLAF (Office de la lutte anti-fraude) has the task of uncovering fraud, corruption and other irregularities that affect the financial interests of the European Community. Previously, this task was carried out by the Member States, until it became obvious that this was not effective.

With Council Regulation Nr. 2185/96 first the European Commission obtained certain investigative powers to protect the Communities financial interests against fraud and other irregularities. Within the Commission UCLAF (Unite de coordination de la lutte anti-fraude) carried out the inspections. It soon turned out to be problematic that UCLAF was, on the one hand, under the control of the Commission but, on the other, obliged to run internal investigations within the Organs of the European Community. Following irregularities within the European Commission in 1999, OLAF was established. OLAF is now completely independent and protects the financial interests of the European Community.

OLAF carries out internal investigations within the European Institutions as well as external investigations (i.e. on-the-spot-checks) on economic subjects in the Member States.  Most of the time these on-the-spot-checks are carried out in close cooperation with the relevant national investigation service. Nevertheless, OLAF has its own investigative powers resulting from Regulations Nr. 2185/96, 1073/99, 1074/99. These regulations do not grant explicit powers but refer to the relevant national law.

The most important referrals to national law are:

1. Investigation procedure (Art. 6 (1) (3)  Reg. No. 2185/96; Art. 6 (4) Reg. No.1073/99)

2. Access to information and documentation / inspection facilities (Art. 7 (1) sentences 1 and 2 Reg. No. 2185/96)

3. Secrecy and protection of information (Art. 8 (1) Reg. No. 2185/96)

4. Requirements concerning the reports (Art. 8 (3) Reg. No. 2185/96; Art. 9 (2) Reg. No. 1073/99)

In the Netherlands the relevant provisions are located in the following laws:

- Algemene Wet Bestuursrecht (a general law concerning administrative procedure)
- Algemene wet inzake rijksbelastingen (a general tax law)
- Douanewet (the special law for customs controls)

My task is to illuminate the interaction of the Community Regulations with the above mentioned national laws in order to determine the actual inspection possibilities concerning on-the-spot-checks in the Netherlands.



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