Case C-838/26, Sconto – OLAF in Taiwan, and the report no one can check
OLAF may carry out checks outside the Union “in accordance with” the agreements in force. The Czech Supreme Administrative Court asks what happens to its findings when it went to Taiwan.
Facts
SCONTO, s. r. o. is in dispute with the Czech General Directorate of Customs (Generální ředitelství cel) before the Nejvyšší správní soud. The case concerns suspected imports of goods of non‑preferential origin from the People’s Republic of China, and turns on the reports of two external investigations by the European Anti‑Fraud Office in Taiwan: Mission 1, from 24 September to 3 October 2013, and Mission 2, from 17 to 24 May 2014. The referring court treats Mission 1 as governed by Regulation (EC) No 1073/1999 and Mission 2 by Regulation (EU, Euratom) No 883/2013, which replaced it. It asks whether Article 3 of each regulation can be the formal legal basis for the missions; if not, whether OLAF’s reports are valid; if they are, whether they can be the sole evidence in national proceedings when their content cannot be verified “due to the absence of reciprocity”; and, if so, what weight they carry.
Questions Referred
1. Can the following be deemed to constitute the formal legal basis for external investigations conducted in Taiwan concerning suspected imports of goods of non-preferential origin from the People’s Republic of China: Article 3 of Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) in respect of investigations conducted by the European Anti-Fraud Office from 24 September 2013 to 3 October 2013 (Mission 1); and Article 3(1) of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 in respect of investigations conducted by that office from 17 May 2014 to 24 May 2014 (Mission 2)?
2. If there is no valid legal basis under Regulation No 1073/1999 and/or Regulation No 883/2013, are the reports of the European Anti-Fraud Office concerning the external investigations conducted in Taiwan and issued in the context of Missions 1 and 2, referred to in the grounds of the present order, valid?
3. If the second question is answered in the affirmative, can those reports of the European Anti-Fraud Office concerning the external investigations conducted in Taiwan be used as the sole evidence in administrative (and/or judicial) proceedings conducted in a Member State, even though their content (including the annexes thereto) cannot be substantively verified in any way, due to the absence of reciprocity?
4. If the third question is answered in the affirmative, what weight is to be given to the evidence obtained in that manner, in the assessment of evidence in proceedings before the national authorities?
Sources
OJ notice C/2026/5211 (EUR‑Lex) · Case file on CURIA · Regulation (EC) No 1073/1999 · Regulation (EU, Euratom) No 883/2013
Comment
The legal basis question turns on a few words. Article 3 of Regulation 1073/1999 let OLAF carry out on-the-spot checks “in the Member States and, in accordance with the cooperation agreements in force, in third countries”. Article 3(1) of Regulation 883/2013 broadened the phrase to “the cooperation and mutual assistance agreements and any other legal instrument in force, in third countries and on the premises of international organisations”. Neither text gives OLAF a free-standing power to investigate abroad; each makes the power depend on an instrument outside the regulation. The referring court’s question is whether Article 3 alone can be “the formal legal basis” — in other words, whether the reference to agreements describes the conditions of a power the regulation confers or a limit beyond which there is no power at all. Mission 1 adds a timing problem: Regulation 883/2013 was published on 18 September 2013 and entered into force on the first day of the following month, so the mission began under the old regulation and ended under the new one.
The second question asks what follows if there was no legal basis, and it matters because of what OLAF’s reports are worth in national proceedings. Under Article 11(2) of Regulation 883/2013, as under Article 9(2) of its predecessor, reports “shall constitute admissible evidence in administrative or judicial proceedings of the Member State in which their use proves necessary, in the same way and under the same conditions as administrative reports drawn up by national administrative inspectors”. That status is conferred by the regulation on reports drawn up under it; Article 11(1) itself requires a report to “give an account of the legal basis for the investigation”. A report produced without a legal basis may therefore lose the status that makes it evidence at all.
The third and fourth questions concern evidence that survives. The same Article 11(2) gives OLAF’s reports “the same evidentiary value” as national administrative reports — which means the weight of the report is set by the national rules on evaluating evidence, not by EU law. The referring court’s concern is a report whose content, annexes included, “cannot be substantively verified in any way, due to the absence of reciprocity”. Treating such a report like a national inspector’s report assumes that it can be tested like one. Where it cannot, the Court will have to say whether it may still be the sole evidence in national proceedings, and whether EU law sets any floor for the weight it is given.