Decision (EU) 2016/456 of the European Central BankDangos y teitl llawn

Article 1 Scope of application

This Decision applies to:

• members of the ECB's Governing and General Councils, in matters related to their function as members of these ECB decision-making bodies,

• members of the ECB's Executive Board,

• members of the ECB's Supervisory Board, in matters related to their function as members of that body,

• members of the ECB's Administrative Board of Review, in matters related to their function as members of that body,

• members of the ECB's Mediation Panel, in matters related to their function as members of that body,

• members of the ECB's Audit Committee, in matters related to their function as members of that body,

• members of the ECB's Ethics Committee, in matters related to their function as members of that body,

• members of the governing bodies or any member of staff of the national central banks or national competent authorities, who participate in the meetings of the ECB's Governing and General Councils and Supervisory Board as alternates and/or accompanying persons in matters related to that function

(hereinafter jointly referred to as ‘participants in the decision-making and other bodies’), and

• permanent or temporary ECB members of staff, who are subject to the ECB conditions of employment,

• persons working for the ECB other than on the basis of an employment contract, including members of staff of national competent authorities who are members of joint supervisory teams and on-site inspection teams, in matters related to their work for the ECB

(hereinafter jointly referred to as ‘relevant persons’).

Article 2 Duty to cooperate with the Office

Without prejudice to the relevant provisions of the Treaties, Protocol No 7 on the privileges and immunities of the European Union, the Statute of the ESCB and the Staff Regulations, with full respect for human rights, fundamental freedoms and the general principles common to the Member States and subject to the procedures laid down in Regulation (EU, Euratom) No 883/2013 and to the rules laid down in this Decision, participants in the decision-making and other bodies and relevant persons shall cooperate with and supply information to the Office, while ensuring the confidentiality of an internal investigation.

Article 3 Duty to report any information about illegal activity

1. Relevant persons who become aware of information which gives rise to a suspicion of the existence of possible cases of fraud, corruption or any other illegal activity affecting the Union's financial interests shall without delay provide either the Director Internal Audit, the senior manager in charge of their business area, or the member of the Executive Board who is primarily responsible for their business area with such information. The latter persons shall without delay transmit the information to the Director-General Secretariat. Relevant persons must in no way suffer inequitable or discriminatory treatment as a result of having communicated the information referred to in this Article.

2. Participants in the decision-making and other bodies who become aware of information as referred to in paragraph 1 shall inform the Director-General Secretariat or the President.

3. When the Director-General Secretariat or, where appropriate, the President receives information in accordance with paragraphs 1 or 2, they shall, subject to Article 4 of this Decision, transmit it without delay to the Office and inform the Directorate Internal Audit and, where appropriate, the President.

4. In cases in which a participant in the decision-making and other bodies or a relevant person has concrete information supporting the possible existence of a case of fraud or corruption or any other illegal activity within the meaning of paragraph 1, and, at the same time, has justified reasons to consider that the procedure provided for in the above paragraphs would prevent in that specific case the proper reporting of such information to the Office, they may report directly to the Office without being subject to Article 4.

Article 4 Cooperation with the Office with regard to sensitive information

1. In exceptional cases, in which the circulation of certain information outside the ECB could seriously undermine the ECB's functioning, the decision on whether to grant the Office access to such information or to transmit such information to it shall be taken by the Executive Board. This shall apply to: information concerning monetary policy decisions, or operations related to the management of foreign reserves and interventions on foreign exchange markets, provided that such information is less than one year old; information concerning the tasks conferred upon the ECB by Regulation (EU) No 1024/2013; data received by the ECB from the national competent authorities regarding the stability of the financial system or individual credit institutions; and information concerning the euro banknotes' security features and technical specifications.

2. Any such decision of the Executive Board shall take all relevant factors into account, such as the degree of sensitivity of the information required by the Office for the investigation, its importance for the investigation and the seriousness of the suspicion as presented by the Office, by the participant in the decision-making and other bodies or the relevant person to the President, and the degree of risk for the ECB's future functioning. If access is not granted, the decision shall state the reasons for this. With regard to data that the ECB receives on the stability of the financial system or individual credit institutions, the Executive Board may decide not to grant the Office access if it or the relevant national competent authority considers that disclosing the information concerned would place the stability of the financial system or the individual credit institution at risk.

3. In very exceptional cases that concern information related to a particular area of ECB activity, of equivalent sensitivity to the categories of information referred to in paragraph 1, the Executive Board may provisionally decide not to grant the Office access to such information. Paragraph 2 shall apply to such decisions, which shall be valid for a maximum of six months. Thereafter, the Office shall be granted access to the information concerned, unless the Governing Council has in the meantime amended the present Decision by adding the category of information concerned to the categories covered by paragraph 1.

Article 5 Assistance from the ECB in internal investigations

1. When initiating an internal investigation of the ECB, the Office's agents shall be granted access to the ECB's premises by the manager in charge of ECB security upon production of a written authorisation issued by the Director-General of the Office, which indicates the following:

(a) the agents' identity and job title in the Office;

(b) the subject matter and purpose of the investigation;

(c) the legal bases for conducting the investigation and the investigative powers arising from those bases.

The President, the Vice-President and the Director Internal Audit shall be informed immediately.

2. The Directorate Internal Audit shall assist the Office in the practical organisation of investigations.

3. Participants in the decision-making and other bodies and relevant persons shall supply any requested information to the Office's agents who are conducting an investigation, unless the requested information could be sensitive within the meaning of Article 4, in which case the Executive Board shall decide whether or not the information should be provided. The Directorate Internal Audit shall record all information supplied.

Article 6 Informing interested parties

1. Where the possible implication of a participant in the decision-making and other bodies or a relevant person in fraud, corruption and any other illegal activity within the meaning of Article 3(1) emerges, the interested party shall be informed rapidly provided that this will not be harmful to the investigation(1). In any event, conclusions referring by name to a participant in the decision-making or other bodies or a relevant person may not be drawn without the interested party being given the opportunity to express their views on all the facts relating to them, including any evidence existing against them. Interested parties have the right to remain silent, to refrain from incriminating themselves and to seek personal legal assistance.

2. In cases necessitating the maintenance of absolute secrecy for the purpose of the investigation and/or requiring the use of investigative procedures falling within the remit of a national judicial authority, compliance with the obligation to invite a participant in the decision-making or other bodies or a relevant person to express their views may be deferred for a limited period in agreement with the President or Vice-President.

Article 7 Information on the closing of an investigation with no further action taken

If, following an internal investigation, no case can be made against a participant in the decision-making and other bodies or a relevant person against whom allegations have been made, the internal investigation shall be closed, with no further action taken, by decision of the Director-General of the Office, who shall inform the participant in the decision-making and other bodies or relevant person thereof in writing.

Article 8 Waiver of immunity

Any request from a national police or judicial authority for waiver of applicable immunity from judicial proceedings of a participant in the decision-making and other bodies or a relevant person in possible cases of fraud, corruption and any other illegal activity affecting the financial interests of the Union shall be transmitted to the Director-General of the Office for his opinion. The Governing Council shall decide on any relevant waiver as far as participants in the decision-making and other bodies are concerned, and the Executive Board shall decide on any relevant waiver as far as relevant persons are concerned.

Article 9 Entry into force and repeal

1. This Decision shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

2. Decision ECB/2004/11 is repealed with effect from the twentieth day following the publication of this Decision in the Official Journal of the European Union.

3. References to Decision ECB/2004/11 shall be construed as references to this Decision.

Done at Frankfurt am Main, 4 March 2016.

The President of the ECB

Mario Draghi