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Questions about Europe?Your Europe - The portal to on-line European and national public servicesTreaty of Lisbon

Decision of the European Ombudsman closing his inquiry into complaint 1341/2008/MHZ against the European Commission

Available languages: en
  • Case: 1341/2008/MHZ
    Opened on 13 Jun 2008 - Decision on 27 Oct 2009
  • Institution(s) concerned: European Commission
  • Field(s) of law: General, financial and institutional matters
  • Types of maladministration alleged – (i) breach of, or (ii) breach of duties relating to: Lawfulness (incorrect application of substantive and/or procedural rules) [Article 4 ECGAB],Requests for public access to documents [Article 23 ECGAB]
  • Subject matter(s): Institutional and policy matters

THE BACKGROUND TO THE COMPLAINT

1. In September 2007, an equipment and sportswear supplier ('the company') offered two senior officials from the Commission's Directorate-General for Trade VIP tickets to attend the opening game of the Rugby Word Cup in Paris. These officials normally deal with anti-dumping cases and could have been involved in the anti-dumping case concerning the same kind of goods as those  produced by this company.

2. The Head of Cabinet of the Commissioner for External Trade allowed the above officials to accept the tickets in question.

3. On 18 December 2007, the complainant, an NGO, sent a letter to the Commission, in which it posed a number of specific questions relating to the above facts.

4. The Commission replied on 7 January 2008, but the complainant was not satisfied with this reply and turned to the Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

5. The complainant alleged that the Head of Cabinet allowed two officials dealing with anti-dumping cases to accept VIP tickets for the Rugby Word Cup opening match from a company which had an interest in their work. In the complainant's view, this could result in a conflict of interest.

6. The complainant also alleged that the Commission failed to answer exhaustively its letter of 18 December 2007.

7. It claimed that the Commission should (a) develop and (b) implement strict guidelines for its officials regarding gifts, favours, honours, decorations and payments from third parties, if the latter have a direct or indirect interest in the issues dealt with by these officials. Moreover, such gifts, favours, honours, decorations and payments should not be accepted as a matter of principle.

THE INQUIRY

8. The Ombudsman sent the complaint to the Commission for an opinion. The Commission replied on 20 November 2008.

9. On 5 January 2009, the Ombudsman received the complainant's observations on the Commission's opinion.

10. On 12 March 2009, the Ombudsman's services conducted an inspection of the documents of the file at the Commission's premises. On 16 March 2009, the report on the inspection was sent to the Commission and the complainant. On 20 March 2009, the Ombudsman made a proposal for a friendly solution, to which the Commission replied on 7 July 2009, after having asked for an extension of the Ombudsman's deadline. The Commission's reply was sent to the complainant on 9 July 2009. The complainant submitted its observations on 8 October 2009.

THE OMBUDSMAN'S ANALYSIS AND PROVISIONAL CONCLUSIONS

A. Allegation of conflict of interest and related claim

Arguments presented to the Ombudsman

11. The complainant alleged that the Head of Cabinet allowed two officials dealing with anti-dumping cases to accept from the company VIP tickets for the Rugby Word Cup opening match. In the complainant's view, this could result in a conflict of interest.

12. In support of its allegation, the complainant pointed out that the above two officials normally deal with anti-dumping cases within the Commission and that the company must have a clear interest in such cases. It concluded, therefore, that the acceptance of the tickets by the two officials could have an impact on their impartiality in anti-dumping cases they are dealing with or could deal with in the future.

13. The complainant claimed in this respect that the Commission should (a) develop and (b) implement strict guidelines for its officials regarding gifts, favours, honours, decorations and payments from third parties, if the latter have a direct or indirect interest in the issues dealt with by these officials. Moreover, such gifts, favours, honours, decorations and payments should not be accepted as a matter of principle.

14. In its opinion, the Commission clarified that it had already developed a set of clear rules and principles regarding ethics and the integrity of officials. Such rules include the Practical Guide to Staff Ethics and Conduct ('the Practical Guide to staff'), which, together with the pertinent provisions of the Staff Regulations (Articles 11 to 26a) and the Commission's Code of Good Administrative Behaviour, constitute the general framework for rights and obligations of officials in relation to gifts, favours and so on. When deciding whether to grant permission to accept gifts, the Appointing Authority takes the following factors into consideration: (i) the reason for offering the gift; (ii) the possible consequences of the offer for the interests of the institution; and (iii) the gift's value.

15. In addition, on 5 March 2008, the Commission adopted an Ethics Action Plan "Communication on promotion of professional ethics in the Commission", which provides guidance on the acceptance of favours, gifts and hospitality, and thus allows a greater harmonisation of the individual decisions taken in this respect.

16. The Commission stated that the two officials complied with the relevant rules. Moreover, it considered that the acceptance of the tickets in question did not give rise to an actual or potential conflict of interest. There was no risk whatsoever that acceptance might affect the judgement or impartiality of the officials concerned. The Commission based its view on the following considerations:

  • the officials' attendance of the match in question caused the company no additional costs because the tickets fell "within [the company]'s overall sponsorship package";
  • transport to and from the event was in a single shared car, arranged by the company and carrying four passengers, two of whom were from the company's Brussels office and "would have used the vehicle in any event";
  • the above transport costs were "extremely moderate", that is, around EUR 70 per person;
  • at that time, there were no on-going anti-dumping investigations "of direct relevance" to the company;
  • the relevant anti-dumping case had been decided and relevant measures were introduced over a year before the tickets were accepted;
  • the officials asked for permission to accept the tickets and the permission was given to them, in accordance with the Commission's rules and guidelines.

17. In its observations, the complainant agreed with the Commission that the two officials had followed the relevant rules when asking the Head of Cabinet for the relevant permission, but did not agree with the Commission's view that there was no risk in accepting the tickets. If officials dealing with anti-dumping cases accept gifts or favours from companies, which they have investigated in the past or might investigate in the future, this creates a risk that their judgement may be affected. The acceptance of such gifts or favours should, therefore, be avoided. Moreover, such acceptance undermines the Commission's own policy that officials should decline offers and favours in general.

18. In particular, the complainant considered that, regardless of how the company paid for the tickets of the two officials in question (either by sponsoring the event or by buying a larger number of tickets), the tickets clearly constitute a gift/favour from the company. In addition, VIP tickets for the opening match of the Rugby Word Cup are normally very expensive.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

19. In response to the complainant's claims, the Commission outlined that it had already adopted a set of internal rules and principles concerning the acceptance of gifts/favours. The Commission provided the complainant with a copy of such rules.

20. According to the Commission's internal rules[1], if officials are offered gifts and want to accept them, they must apply for permission and provide a justification for their proposed actions. The Ombudsman's inspection of documents revealed that both officials concerned had applied orally for permission to accept the company's gift before the rugby match took place. They only submitted formal applications for authorisation to accept the tickets after the match had taken place (respectively, on 12 October 2007 and on 22 September 2008[2].)

21. The Ombudsman did not take a position regarding this fact, given that, by accepting these applications for authorisation, the Commission had sanctioned their belated submission. He understood the Commission to consider that, by having (a) requested permission from their superior to accept the company's gift and (b) accepted the gift only after such permission had been given, the two officials in question followed the institution's internal rules, as referred to above, as well as the relevant provisions of the Staff Regulations[3].

22. However, a first question arose as to whether, by giving such permission, the Commission did in fact interpret and then implement its own rules properly?

23. The Ombudsman points out in this respect that the very purpose of such rules, which were adopted in order to ensure the transparency of the Commission's overall activity, requires that their interpretation and application should be strict.

24. The Commission's Practical Guide to staff, a copy of which the complainant provided to the Ombudsman, recommends that "[a]s a general rule of thumb ... you decline all such offers that have more than merely symbolic value (such as diaries, calendars, small desk items etc)" (emphasis added). The Ombudsman did not see why VIP tickets for an exceptional sporting event should be considered as having merely symbolic value. Ultimately, what was relevant for the above consideration was not the monetary value of these tickets but their unique and exceptional character.

25. The same Guide foresees that "[o]nly if it can be clearly demonstrated to be in the interests of the Commission will approval be given to accept gifts in kind, particularly trips or excursions organised by the third parties." As the complainant suggested in its observations, if the Commission had applied that provision strictly, it should have demonstrated which of its interests would be satisfied by the officials' attending the rugby match at the company's invitation, before giving them permission to accept the tickets concerned. It is hard to see how the Commission might have succeeded in doing so.

26. Nevertheless, the core of the present complaint did not relate to the kind of gift offered but to the professional profile of the officials who accepted it. Even if these officials had not dealt with anti-dumping cases which were in the company's interest in the past, it is not excluded, as rightly pointed out by the complainant, that they might do so in the future.

27. A second question arose, therefore, as to whether these officials might reasonably be influenced in the performance of their duties when dealing with anti-dumping cases by the fact that they accepted the company's gift. It should be noted in this respect that gifts and hospitality offered to public officials are commonly considered as a traditional source of influence.

28. The evidence available to the Ombudsman did not suggest that accepting gifts from the company in the form of tickets for the opening rugby match could have led to what the OECD referred to as an actual conflict of interest. On the contrary, the Ombudsman had no reason to doubt that the officials' behaviour and independence remained unaffected. Nevertheless, it was reasonable to consider that the acceptance of such tickets constituted what the OECD calls an apparent conflict of interest[4]. In the Ombudsman's view, the Commission, as an institution, should do its utmost to avoid not only actual conflicts of interest, but also apparent conflicts of interest, in order to maintain public trust and confidence in its activities and to protect its staff from unjustified suspicion.

29. In light of the above, the Ombudsman considered that it would have been better for the Commission not to have allowed the officials in question to accept the tickets offered by the company. However, the Commission did so. This could have been an instance of maladministration.

30. Article 3(5) of the Statute of the Ombudsman directs the Ombudsman to seek, as far as possible, a solution with the institution concerned to eliminate the instance of maladministration and satisfy the complainant. The Ombudsman, therefore, made the following proposal for a friendly solution to the Commission:

The Commission could admit that it would have been better for it not to have allowed the officials in question to accept the tickets offered by [the company].

The arguments presented to the Ombudsman after his friendly solution proposal

30. The Commission welcomed the Ombudsman's proposal for a friendly solution and stated that it was ready to accept it.

31. The Commission understood the Ombudsman's proposal to emphasise that it should guard against both real and apparent conflicts of interest, in order to maintain public trust and confidence in its activities and to protect its staff from unjustified suspicion.

32. In such circumstances, and for this specific case, the Commission accepted that it would have been better for it not to have allowed the officials in question to accept the hospitality in question.

33. The Commission also confirmed that it is currently updating its internal provisions relating to the acceptance of gifts and hospitality. Under these new rules, requests by staff to be allowed to enjoy hospitality outside of Brussels would be individually considered on their merits. Authorisation would be unlikely in the particular circumstances of the present case.

34. The Commission took note of the Ombudsman's acknowledgement that the officials in question followed the Commission's internal rules relating to gifts and hospitalities. The Commission also noted that both officials sought and were granted oral approval before their participation in the event and that this participation was subsequently confirmed "after the event". The form used to confirm that approval envisaged approval either before or after the acceptance of a gift or hospitality.

35. The Commission concluded by stating that it would forward to the complainant a copy of its Ethics Action Plan.

36. The complainant stated that it very much appreciated the Ombudsman's findings in this case.

37. The complainant was satisfied with the Commission's admission that, in this specific case, it would have been better for it not to have allowed the officials in question to accept the hospitality. It also appreciated that the Commission accepted the friendly solution.

38. The complainant asked the Commisison to provide it with the institution's updated internal provisions relating to the acceptance of gifts and of hospitality.

The Ombudsman's assessment after his friendly solution proposal

39. The Ombudsman considers that the friendly solution has been achieved.

40. He trusts that, as requested in the complainant's last observations, the Commission will provide the complainant with a copy of its updated internal provisions relating to the acceptance of gifts and of hospitality.

41. He appreciates, in particular, that, following its experience with the present case, the Commission is updating its internal rules on gifts and hospitality and encourages the Commission not only to forward these rules to the complainant, but also to make them public on its website.

B. Allegation concerning the quality of the Commission's reply to the complainant's queries

42. The complainant alleged that the Commission failed to answer its letter of 18 December 2007 exhaustively.

43. It argued that, in its reply of 7 January 2008, the Commission failed to answer its specific queries concerning: first, the names and the positions of the officials in question; second, the exact transport costs of their trip to Paris; and, third, the actual costs of the tickets, if the officials had bought them themselves.

44. In its opinion on the complaint, the Commission took the view that "[given] the fact that its relevant rules have been respected, disclosing the officials' names would not add any value to the appreciation of the file and therefore would not be legitimate".

The Commission referred to the exact costs of the transport but did not comment on the complainant's third query.

The Ombudsman's assessment

45. The Ombudsman notes that the complainant did not refer to this allegation in its last observations.

46. The Ombudsman also refers to his finding in paragraph 21 above and accepts the Commission's view concerning the names of the officials in question. For that reason, the present decision, which will be published on the Ombudsman's website, is drafted in such a way as to prevent these names from being identified.

47. By referring to his finding in the last sentence of paragraph 24 above, the Ombudsman does not consider it useful to take a position on the Commission's alleged failure to provide the complainant with a reply to its third query.

48. In light of the above, the Ombudsman considers that no further inquiries are justified as regards this allegation.

C. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

As regards the complainant's first allegation and related claim, the friendly solution has been achieved. The Ombudsman trusts that, as requested in the complainant's last observations, the Commission will provide the complainant with a copy of its updated internal provisions relating to the acceptance of gifts and hospitality.

As regards the complainant's second allegation, no further inquiries are justified.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 27 October 2009


[1] Page 15 of the Practical Guide to Staff Ethics and Conduct 'Gifts, favours and payments': "[Y]ou should not accept gifts, favours or payments ... without obtaining prior permission from the Appointing Authority ...[I]f you are offered any gifts, favours or donations with a combined value of more than EUR 50 given by the same source in any given year and you want to accept them, you must apply for permission, giving a justification."

[2] The application for authorisation was not dated as such but it was attached to an internal note D (20002)8759, signed by the official in question and dated 22 September 2008.

[3] Article 11 of the Staff Regulations: "... An official shall not without the permission of the appointing authority accept from any government or from any other source outside the institution to which he belongs any honour, decoration, favour, gift or payment of any kind whatever, except for services rendered either before his appointment or during special leave for military or other national service and in respect of such service."

[4] Recommendation on Guidelines for Managing Conflict of Interest in the Public Service, June 2003 http://www.oecd.org/dataoecd/13/22/2957360.pdf