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Decision of the European Ombudsman on complaint 2740/2006/TN aagainst the European Commission

Available languages: en
  • Case: 2740/2006/(TN)(ID)TN
    Opened on 27 Sep 2006 - Decision on 14 Dec 2007
  • 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: Requests for public access to documents [Article 23 ECGAB]

Strasbourg, 14 December 2007

Dear Mr R.,

On 22 August 2006, acting on behalf of Greenpeace, you submitted a complaint to the European Ombudsman against the European Commission concerning a statement it made regarding the Greenpeace report "Toxic Lobby, How the Chemicals Industry is trying to kill REACH".

On 27 September 2006, I forwarded the complaint to the President of the Commission. Having twice been granted an extension of the deadline for submitting its opinion, the Commission sent its opinion on 22 March 2007. I forwarded it to you with an invitation to make observations, which you sent on 29 May 2007.

I am writing now to let you know the results of the inquiries that have been made.


THE COMPLAINT

The relevant facts according to the complainant can be summarised as follows.

The complaint concerns the Commission's statement regarding the Greenpeace report "Toxic Lobby, How the Chemicals Industry is trying to kill REACH"(1).

According to the complainant, one section in the Greenpeace report "Toxic Lobby" addressed four cases of 'revolving doors' between the Commission and the chemical industry and lobby groups:

"For example, [Mr M.], a very active and well-known player in the lobby campaign against REACH, worked for over 20 years in the European Commission, where he served as Director-General of DG Enterprise and Industry from 2002 to 2004. Since October 2004, he has been working as General Adviser to the Union of Industrial and Employers' Confederations of Europe (UNICE)."

"(...) CEFIC's(2) former director of the REACH Unit, [Ms P.], worked for six years in the Chemicals Unit of DG Enterprise and Industry before moving to CEFIC. Another example is [Ms K.]. After 14 years working for [the] chemical company Bayer AG and seven years as a lobbyist for CEFIC, reaching the position of Director of Chemicals Policy and Regulatory Affairs, she recently moved to the REACH Unit of DG Enterprise and Industry. [Mr B.], who started in 1986 at the Product Safety unit of BASF, becoming EU Governmental Affairs Manager in 1998, first joined the REACH Unit of DG Enterprise and Industry in September 2001, and then moved on to the German Ministry for Economic Affairs in 2004, where he is still in charge of REACH."

The complainant went on to note that, in a statement to the press on 4 May 2006, the spokesperson for Commissioner Verheugen dismissed Greenpeace's findings, stating that

"[r]egarding the three individuals singled out, two of them have never actually worked on REACH. So it is a mystery to me how one can possibly try to construct a claim of revolving doors, improper behaviour. (...) I utterly find these allegations unfounded, unfair and based on sloppy research".

According to the complainant, the Commission's statement of 4 May 2006 was misleading, inaccurate and slanderous. The statement failed to provide detailed, factual information on any of the four cases of 'revolving doors' raised in the report. The statement was not transparent, since it did not clarify which two individuals had never worked on REACH. Nor did it clarify whether the Commission accepted that the other individuals had worked on REACH and that there was a case of 'revolving doors'.

The complainant further argued that the facts presented in the report were based on scrupulous research and were supported by documentary evidence available on the Internet, including archived Internet pages of the Commission. The argument that the research was 'sloppy' was damaging to Greenpeace's reputation, especially since the Commission did not present any evidence to contradict the facts presented in the report.

The complainant argued that, rather than denying and obscuring the facts in the report when questioned by the media, the Commission should inform the public of all cases where individuals working at the Commission have been associated, immediately before, during or after their employment at the Commission, with companies and organisations that have a direct financial interest in the relevant EU legislation.

Greenpeace wrote to the Commission on 2 June 2006, asking it publicly to correct the statement made by Commissioner Verheugen's spokesperson and publicly to apologise to Greenpeace for damaging its reputation with unfounded allegations. The Commission replied to Greenpeace but failed to acknowledge that the above statement was misleading, inaccurate and slanderous. Instead, the Commission reiterated its denial regarding the cases of 'revolving doors', without providing facts to disprove Greenpeace's findings. In addition, the Commission consistently ignored the fourth case of 'revolving doors' referred to in the report, concerning Mr M.

The complainant considers that, by making misleading, inaccurate and slanderous accusations and by failing adequately to answer Greenpeace's requests, the Commission did not respect the principles of good administration.

The complainant alleged, in substance, that the Commission has:

(1) Insulted Greenpeace's research by making misleading, inaccurate and defamatory accusations; and

(2) Failed to provide:

(i) Detailed and factual information on the four cases of 'revolving doors' referred to in the report; and

(ii) A clarification as to which individuals referred to in the report have - in the Commission's own words - "never actually worked on REACH".

The complainant claimed that the Commission should:

(1) Publicly revise the inaccurate statement made by Commissioner Verheugen's spokesperson; and

(2) Publicly apologise to Greenpeace for having damaged its reputation with unfounded allegations.

THE INQUIRY

The Commission's opinion

The Commission's opinion can be summarised as follows.

Background

The complaint concerns the Commission's reaction on 4 May 2006 to questions from the media about a section of the Greenpeace report "Toxic Lobby, How the Chemicals Industry is Trying to Kill REACH". On that day, the Financial Times had published an article, "Chemicals Companies 'Watered down Law'", which referred to the above report and three cases of alleged 'revolving doors' between the Commission's Directorate-General ("DG") for Enterprise and Industry and the chemical industry and its lobby groups. One of these cases concerned a temporary agent who had moved from the Commission to work in industry, and the two other cases related to temporary agents who had moved from industry to DG Enterprise and Industry. According to the report, such movement allowed these three individuals to influence the EU chemicals legislation REACH. The report alleges that these agents worked directly on REACH. In reply to the questions concerning the Financial Times article, the s pokesperson for DG Enterprise and Industry dismissed Greenpeace's allegations and stated, inter alia, that the findings were based on 'sloppy research' and that two of the three agents singled out in the report never actually worked on REACH.

The complainant wrote to the Commission on 2 June 2006, complaining about the above statements made by the spokesperson. A detailed reply to the claims by Greenpeace was given by letter of 28 June 2006 . The letter stated that, taking into account the absence of a balanced and accurate picture of the role of the persons concerned, the Commission could not agree with the claims by Greenpeace with regard to the comments made by the spokesperson and, accordingly, the question of an apology did not arise.

The complaint to the Ombudsman

The Commission deeply regrets what is, in effect, the unjustified calling into question of the integrity of the persons named in the Greenpeace Report, and the unnecessary distress caused to these persons as a result of their being named in the report and in related press comments. The Commission continues to believe that this was uncalled for, all the more so in a situation in which the Greenpeace report does little more than recall their past careers without any evidence that they acted improperly in their respective positions.

Greenpeace argues that the spokesperson referred to only three out of the four persons indicated in its report. This is the case because the spokesperson was referring to the press article that appeared in the Financial Times on 4 May 2006, which only referred to three persons.

As regards the role in REACH of the three temporary agents who were the subject of comment in the Greenpeace Report, it should be noted that the task of drafting the proposal and of representing the Commission in the negotiations on REACH was, from the start, shared jointly by DG Enterprise and Industry and by DG Environment. As such, preparatory documents, replies to questions from Parliament, interpretation of the requirements, and so on, as well as negotiations in Parliament and in the Council, have been carried by the officials of both DGs working in close co-operation. The desk officers who had key roles in the drafting and negotiating of REACH were both permanent officials who are still in the services of the Commission.

It is a fact that two out of the three persons (temporary agents) mentioned in the Greenpeace report were not responsible for the drafting of the REACH legislation, or for its subsequent negotiation. And, while the third person concerned did work on some aspects of REACH, he had by no means a central role in its drafting or in its negotiation.

In the first case mentioned by Greenpeace, the person concerned had in fact left the Commission before the drafting of the proposal started. The fact that her name appeared as the contact point for further information following the publication of an article referred to on the website of DG Enterprise and Industry (Chemicals Unit) cannot credibly be put forward to prove that she had responsibility for REACH. In that context, it is to be noted that the article itself was published under the name of a different official . It was this official, rather than the person named by Greenpeace, who was at the time directly responsible for the reform of the chemicals regime. Besides, at that stage, the drafting of the REACH proposal had not begun.

In the second case, the person concerned began to work at the Commission at a point when the REACH proposal was in a very advanced stage of negotiation. The person concerned did not take part in the negotiations on REACH. Her primary task relates to the implementation in Community law of the UN Globalised Harmonisation and Classification System ("GHS") for chemical substances. While the task of preparing this proposal lies with the REACH Unit, to imply that by virtue of her presence in the REACH Unit and the fact that she delivered a speech at a conference in Vienna which addressed a number of REACH issues, she has had an influence on the negotiations on REACH is not correct. In effect, her speech in Vienna, referred to by Greenpeace, was on the subject of the GHS, not REACH.

In the case of the third person named in the Greenpeace report, his task, as an expert, was to provide technical information on animal test requirements and on IT aspects in order to ensure efficient delivery of the data required under REACH. The spokesperson acknowledged that this person could be considered to have worked on REACH.

The spokesperson's statement that two out of the three persons indicated did not work on REACH was therefore a fair reflection of the situation.

The Commission has strong reservations about the Greenpeace approach, which relies on making public accusations first and then requiring those accused to disprove them. In the face of such accusations, it is to be expected that the Commission should provide a forceful response to refute them, which is exactly what the spokesperson did. Rebuttal is part of the core business of Commission spokespersons. Besides, it should be understood that this type of accusation, which appears to have been launched without an adequate inquiry into the precise role and contribution of the persons concerned in relation to REACH, is a grave slur on the integrity of the Commission and of its personnel. Greenpeace's accusions imply that the Commission has permitted a situation in which a critical piece of legislation has been improperly influenced by persons with previous experience in industry or with intent to continue their careers in industry. The facts of the matter provide no valid grounds for reaching such an implication.

Greenpeace alleges that, in responding to the press queries on the individuals concerned, the spokesperson did not make available details of their careers or of their work. In that context, the persons concerned had already suffered distress as a result of being named in the Greenpeace report and in related press articles. In a situation in which the precise details of their activities in the Commission had already been described, they risked suffering further as a result of details about their background and work becoming a matter for public discussion. The spokesperson's approach was therefore reasonable and correct.

As regards the source of recruitment of persons to the Commission, the position is that, given the complexity of sectors such as the chemicals sector and the need to understand and resolve problems which require the highest technical competence and practical experience, it is essential to have a mix of competent personnel with high technical qualifications and with a wide variety of backgrounds. In the case of DG Enterprise and Industry, this has involved the recruitment of specialist personnel both from health and environment backgrounds, and from industry.

Furthermore, it has traditionally proved very difficult, if not impossible, to recruit persons with the necessary qualifications and experience from the normal open competitions for administrators. In this regard, the Commission notes that, in the past, it recruited such experts on the basis of special competitions, and with contracts of limited duration. The persons recruited to DG Enterprise and Industry have had backgrounds in the health and environment sectors as well as in industry.

The fourth person named in the Greenpeace report was a former Director-General of the Commission. As Director-General of DG Enterprise and Industry he would have been responsible for all aspects of the work of DG Enterprise and Industry. This also involved, together with his counterpart in DG Environment, progressing work on the adoption of the REACH proposal by the Commission, a task that was successfully achieved. The concern in the Greenpeace report appears to be that, through contact with former colleagues, he and others would have exercised undue influence on the Commission's position after he had left the Commission. No evidence has been advanced in the report to justify such claims which in effect call into question the integrity of the individual concerned, and also that of several Commission officials. The reality is that there has been a very high level of lobbying activity by stakeholders from all backgrounds and with different, often opposing, interests, who have sought to influence all the Community institutions with respect to REACH. The officials dealing with REACH within the Commission are well aware of the interest of all such lobbyists and the degree of attention that should be given to their proposals, having regard to the overriding requirement for officials to protect the Community interest.

The Commission concludes its opinion by putting forward the view that the statement made by the spokesperson for DG Enterprise and Industry on 4 May 2006 in the Press Room in reference to the Financial Times article of that day was not inaccurate. It was a fair reflection of the situation and did not insult Greenpeace's research by making misleading, inaccurate and defamatory accusations. Therefore, the question of a public revision of this statement or of a public apology does not arise.

The complainant's observations

The complainant's observations can be summarised as follows.

The complainant regrets that the Commission persists in reducing the facts presented in the "Toxic Lobby" report to what it describes as the "unjustified calling into question of the integrity" of four individuals. According to the complainant, the report exposes the persistent and pervasive influence of the chemicals industry on the reform of the European chemicals policy. In scrutinising the lobbying tactics of the chemicals industry, the report also addresses the issue of 'revolving doors', that is, the movement of individuals from public service jobs to lobbying jobs and vice versa. Contrary to the Commission's interpretation, the report does not call into question the integrity of the named individuals or allege that they committed any fault while in public office. The report rather focuses on the interest of companies and lobby organisations in hiring former officials who then lobby the same institution for which they formerly worked as well as former colleagues. The report mentioned the employment history of several individuals in order to verify the observations made about 'revolving doors'. In its opinion, the Commission did not question the accuracy of these facts.

Instead of accepting that the practice of 'revolving doors' could constitute a problem requiring redress, with an eye to improving the transparency of the EU institutions, the Commission seeks to tarnish the reputation of the messenger, that is, Greenpeace.

In its opinion, the Commission finally acknowledges that two of the individuals named in the report (Mr B. and Mr M.) did work on REACH. This acknowledgement came ten months late and only partially clarifies the obscure statement made on 4 May 2006, according to which two of the individuals named in the report had "never actually worked on REACH". However, the complainant remains concerned that, in its opinion, the Commission tries to argue that none of the other two individuals (Ms P. and Ms J.) worked on REACH and that, therefore, the spokesperson's statement was a "fair reflection of the situation". The complainant considers the Commission's argument in this regard to be inaccurate and misleading. The Commission employs a very narrow definition of 'work', limiting "working on REACH" to having the prime responsibility for drafting the legislative proposal and for subsequent negotiations. Based on this definition, the Commission considers that officials who worked on aspects of REACH within a Commission Unit dedicated to REACH, and who officially represented the Commission on REACH, cannot really be considered to have worked on REACH. The complainant finds it difficult to see how the Commission's definition in this regard relates to common sense and understanding.

The complainant considers that, by its narrow interpretation of 'work', the Commission resorts to such an artificial definition that it breaches the principles of good administrative behaviour and the requirement of objectivity in several instances. First, the Commission's use of a very narrow and artificial definition of 'work' is contrary to the general use of the word and the Commission does not otherwise employ such a special definition of the word. The use of a special definition in this case thus goes against the legitimate and reasonable expectations of the public that the administration should communicate in a clear, consistent and transparent way. Second, the Commission statement supposes that only the draftsman and official negotiator of a legislative proposal have influence on that proposal, which does not reflect the reality of policy making within the Commission(3).

Regarding the specific cases of Ms P. and Ms J., the Commission argues that the fact that Ms P. was named as the contact person for REACH in an official Commission publication does not mean that she actually worked on REACH. However, the Commission did not explain why Ms P. should be named as a contact for an issue on which she did not work. Furthermore, the Commission argues that Ms P. cannot be considered to have worked on REACH since she left the Commission and joined CEFIC before the Commission began drafting the legislative proposal in 2001. What the Commission omits to mention is that Ms P. was in charge of Council Directive 76/769EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations(4), which became an integral part of REACH. She was also directly involved in the White Paper Strategy for a future Chemicals Policy, which the Commission published in February 2001. It is generally known that, as a normal part of EU decision-making process, the drafting of new legislation is preceded by significant preparatory work. In the case of REACH, the drafting process of the legislative proposal was preceded in 1998 by a Commission report on the functioning of existing chemicals legislation(5) and in 2001 by the White Paper Strategy for a future Chemicals Policy(6). The White Paper of 2001 set out the main principles and structure, including the name, of REACH. The Commission's argument that Ms P. did not work on REACH is therefore untenable.

The Commission acknowledges that Ms J. works in the REACH Unit and that she delivered a speech at a conference in Vienna which addressed a number of REACH issues. However, again the Commission argues that these elements do not suffice to consider that Ms J. worked on REACH.

The complainant further considers that the Commission is very selective as regards the information provided in its opinion. It focuses on the - in this context irrelevant - responsibility of Ms J. for the GHS, and completely omits any information on her responsibilities related to REACH. According the research made by Greenpeace, Ms J. participated in high-level meetings on REACH within the Commission and also regularly represented the Commission on REACH externally. This information appears to be confirmed by e-mail correspondence to which Greenpeace has obtained access through an access to documents request. The e-mail correspondence in question clearly suggests that, in 2005, the Head of the Commission's REACH Unit delegated to Ms J. responsibility for some face-to-face meetings with the chemical industry, following industry requests to discuss "the draft REACH regulation" and "the state of play of the proposal". It "beggars belief" that the Commission continues to defend its argument that Ms J. did not 'work' on REACH.

The complainant considers that the Commission has failed to prove its case and that it therefore should retract its accusation that the report contained "unfounded" allegations and that it was based on "sloppy research". The Commission's statement that two of the individuals named in the report did not work on REACH was inaccurate and misleading.

THE DECISION

1 Introductory remarks

1.1 The European Ombudsman would like to underline the importance of some of the issues related to the present complaint, which have to do with transparency in relation to lobbying activities exercised during the legislative procedures of the European Union. The importance of this issue has been acknowledged by the European Commission in the framework of its European Transparency Initiative(7). The Ombudsman also had the opportunity, in a recent decision(8), to underline the importance of guaranteeing an adequate level of transparency in relation to people involved in lobbying activities.

1.2 As acknowledged in the European Transparency Initiative, the question of lobbying is also related to the behaviour of current or former officials and agents of the European Union and is a matter which has been explicitly addressed and dealt with by the applicable provisions of the Staff Regulation for Officials and by the Conditions of Employment of Other Servants(9). The professional ethics of the EU staff are regulated in those instruments which identify the duties and obligations of officials and agents working for the institutions, and of former officials and agents who left the European Civil Service. It is clear that their correct and thorough implementation by the Institutions concerned is an essential part of the strategy necessary to guarantee the achievement of the high standards of transparency that the EU considers are part of the legitimacy of any modern administration.

1.3 The Ombudsman would like however to clarify from the outset that his inquiry does not aim to ascertain whether such rules and obligations have been respected in the present circumstances, that is, whether the Commission acted in conformity with the obligations laid down in the applicable regulations and has correctly applied them to its current or former officials and agents. This was not the object of the complaint presented by the complainant and has not been the scope of the present inquiry. The Ombudsman also recalls that the complainant himself expressed the view that, contrary to the Commission's interpretation, the report in question does not call into question the integrity of the named individuals, nor does it allege that they committed any fault while in public office. The complainant has rather stated that the report focuses on the interest of companies and lobby organisations in hiring former officials who then lobby the same institution for which they formerly worked as well as former colleagues. However, the Ombudsman also notes that the complainant has not raised or substantiated any particular allegation concerning potential non-compliance by the Commission or its former officials in relation to the above-mentioned obligations laid down in the Staff Regulations.

1.4 The Ombudsman's inquiry in the present complaint therefore limits itself to dealing with the complainant's allegation that the Commission, through its spokesperson in the course of a press conference, "made inaccurate, misleading and defamatory accusations in relation to a study issued by Greenpeace entitled "Toxic Lobby, How the Chemicals Industry is trying to kill REACH"".

2 The allegation that Greenpeace's research was insulted by misleading, inaccurate and defamatory accusations

2.1 The complaint concerns the Commission's statement regarding the Greenpeace report "Toxic Lobby, How the Chemicals Industry is trying to kill REACH"(10) ("the report")(11). As noted by the complainant, one section in this report addressed four cases of 'revolving doors'(12) between the Commission and the chemical industry and lobby groups. The complainant considers the practice of 'revolving doors' to be problematic. On 4 May 2006, the spokesperson for Commissioner Verheugen appears to have made the following statement in relation to the 'revolving doors' section of the above report: "Regarding the three individuals singled out, two of them have never actually worked on REACH. So it is a mystery to me how one can possibly try to construct a claim of revolving doors, improper behaviour. (...) I utterly find these allegations unfounded, unfair and based on sloppy research".

Greenpeace wrote to the Commission on 2 June 2006, asking it publicly to correct the statement made by the spokesperson and publicly to apologise to Greenpeace for damaging its reputation by making unfounded allegations. The Commission replied to Greenpeace but the complainant considers that it failed to acknowledge that the statement made by the spokesperson was misleading, inaccurate and slanderous. Instead, the Commission reiterated its denial regarding the cases of 'revolving doors', without providing facts to disprove Greenpeace's findings. In addition, the Commission consistently ignored the fourth case of 'revolving doors' referred to in the report, concerning Mr M. In his complaint to the Ombudsman, the complainant alleged that the Commission had insulted Greenpeace's research by making misleading, inaccurate and defamatory accusations.

2.2 In its opinion, the Commission rejected the complainant's allegation. In summary, it expressed deep regret for what it considered to be, in effect, the unjustified calling into question of the integrity of the persons named in the report. In the Commission's view the Greenpeace report does little more than recall the past careers of the persons concerned, without any evidence that they acted improperly in their respective positions. It is a fact that two temporary agents (Ms P. and Ms J.) mentioned in the report were not responsible for the drafting of the REACH legislation, or for its subsequent negotiation. And, while the third person concerned did work on some aspects of REACH, he had by no means a central role in its drafting or in its negotiation. The spokesperson's statement that two out of the three persons indicated did not work on REACH was therefore a fair reflection of the situation. The Commission has strong reservations about the Greenpeace approach, which relies on making public accusations first and then requiring those accused to disprove them. In the face of such accusations, it is to be expected that the Commission should provide a forceful response to refute them, which is exactly what the spokesperson did. Rebuttal is part of the core business of the Commission spokespersons.

2.3 In his observations, the complainant stated, in summary, that contrary to the Commission's interpretation, the report does not call into question the integrity of the named individuals, nor does it allege that they committed any fault while in public office. The report rather focuses on the interest of companies and lobby organisations to hire former officials who then lobby the same institution and colleagues with whom they used to work. The report mentioned the employment history of several individuals in order to verify the observations made about 'revolving doors'. Instead of accepting that the practice of 'revolving doors' could constitute a problem requiring redress with an eye to improving the transparency of the EU institutions, the Commission seeks to tarnish the reputation of the messenger, that is, Greenpeace. The complainant also made certain arguments to the effect that Ms P. and Ms J. had in fact worked on REACH.

2.4 The Ombudsman recalls that the complainant's allegation is that the statement by the Commission's spokesperson "was inaccurate, misleading and defamatory of Greenpeace". The statement in question, whose content is not disputed by either party was the following:

"Regarding the three individuals singled out, two of them have never actually worked on REACH. So it is a mystery to me how one can possibly try to construct a claim of revolving doors, improper behaviour. (...) I utterly find these allegations unfounded, unfair and based on sloppy research".

The Ombudsman will first analyse whether the first part of the Commission's statement concerning the fact that "the three individuals singled out, two of them have never actually worked on REACH. So it is a mystery to me how one can possibly try to construct a claim of revolving doors, improper behaviour" is, as alleged by complainant, inaccurate and misleading.

2.5 I n the Ombudsman's view, the report could reasonably be considered as suggesting that the persons identified in its 'revolving doors' section had played an influential role in the context of the chemical's industry efforts "to kill REACH". In this regard, it was thus reasonable for the Commission spokesperson to address the issue of the "work" of these persons on the Commission's REACH proposal, since the report could reasonably be understood as referring to the participation of these persons in the drafting and negotiation (within the Community institutions) of the Commission's proposal on REACH.

2.6 The Commission noted, in its reply to Greenpeace's letter of 2 June 2006, that two of the three persons named in the Financial Times article, to which the spokesperson responded in his comments, had not been involved in drafting or negotiating the Commission's legislative proposal on REACH. The Commission went on to state that, in the case of the third person also named in the article, his involvement was minor compared with that of several other officials directly concerned with REACH.

In its opinion on the complaint, the Commission further explained that, in the first case mentioned by Greenpeace, the person concerned (Ms P.) had in fact left the Commission before the drafting of the proposal started. The fact that her name appeared as the contact point for further information following the publication of an article referred to on the website of the Commission's Directorate-General (" DG") for Enterprise and Industry (Chemicals Unit) cannot credibly be put forward to prove that she had responsibility for REACH. It was the official in whose name the article was published, rather than the person named by Greenpeace, who was at the time directly responsible for the reform of the chemicals regime. Besides, at that stage, the drafting of the REACH proposal had not begun. In the second case, the person concerned (Ms J.) began to work for the Commission at a point when the REACH proposal was in a very advanced stage of negotiation. The person concerned did not take part in the negotiations on REACH. Her primary task related to the implementation in Community law of the UN Globalised Harmonisation and Classification System ("GHS") for chemical substances. While the task of preparing this proposal lies with the REACH Unit, to imply that by virtue of her presence in the REACH Unit and the fact that she delivered a speech at a conference in Vienna which addressed a number of REACH issues, she has had an influence on the negotiations on REACH is not correct. In effect, her speech in Vienna, referred to by Greenpeace, was on the subject of the GHS, not REACH.

2.7 The Ombudsman notes that the complainant does not appear to have presented specific and duly substantiated arguments demonstrating the inaccuracy of the Commission's statements regarding the non-participation of Ms P. and Ms J. in the drafting and negotiation of the proposal. The Ombudsman notes, in this regard, that the complainant has simply put forward, in his observations, certain arguments to the effect that (i) Ms P. had been dealing with a Directive covering matters also addressed in the context of REACH; (ii) Ms P. had been involved in the preparation of the Commission's 2001 White Paper Strategy for a Future Chemicals Policy; (iii) Ms J. had delivered a speech on REACH issues and had represented the Commission in meetings with representatives of the chemical industry in relation to REACH. The complainant also argued that Ms J. participated in high-level meetings on REACH within the Commission. However, the complainant has not presented any specific supporting information in order to cast reasonable doubt on the truthfulness of the Commission's statements. It appears therefore reasonable for the spokesperson to have stated that "[r]egarding the three individuals singled out, two of them have never actually worked on REACH."

2.8 The Ombudsman further remarks that the Commission has given reasonable explanations about its relevant recruitment practices. The Commission put forward in this regard that, given the complexity of the chemicals sector and the need to understand and resolve problems which require the highest technical competence and practical experience, it is essential to have competent personnel with advanced technical qualifications and with a wide variety of backgrounds. Furthermore, according to the Commission, it has traditionally proved very difficult, if not impossible, to recruit persons with the necessary qualifications and experience from the normal open competitions for administrators and it has therefore been necessary in the past to recruit such experts on the basis of special competitions, and with contracts of limited duration.

The Ombudsman therefore concludes that the complainant has not succeeded in establishing that the statement in question was inaccurate and misleading.

2.9 The Ombudsman must however still consider whether the second part of the statement in question can be considered to be defamatory of Greenpeace ("I utterly find these allegations unfounded, unfair and based on sloppy research"). Taking into account the arguments and documents put forward by the parties, the Ombudsman notes the following. Viewed in the context in which it was presented in the report(13), the term 'revolving doors' could reasonably be considered as calling into question the integrity of the persons concerned and the proper discharge of the duties imposed on them by Articles 11 and 16 of the Staff Regulations(14).

2.10 The Ombudsman therefore understands and finds it acceptable for the Commission's spokesperson to have interpreted the report in the above way and to have viewed it as containing an allegation about "improper behaviour" in the above sense. However, the Ombudsman notes that, as rightly remarked by the Commission, such an allegation was not supported in the report by any specific, duly substantiated, arguments. This lack of substantiated arguments can reasonably explain why the Commission's spokesperson, asked by journalists to comment on this issue at a press conference and in the exercise of his duty, reacted strongly on the matter by saying that the "allegations in the report were unfounded, unfair and based on sloppy research". The strong rebuttal statement of the Commission's spokesperson, in the particular circumstances it was pronounced, does not mean however that Greenpeace was defamed by the Commission. Moreover, in its answer to the complainant of 28 June 2006, the Commission clarified its position by expressing its "strong reservations about the Greenpeace approach, which relies on making public accusations first and then requiring those accused to disprove them". Even though the complainant may have clarified that the report did not intend to call into question the integrity of the named individuals, or to allege that they committed any fault while in public office, it is understandable and reasonable that readers could have interpreted the report in that sense. Therefore, it is understandable and reasonable that the Commission took the position mentioned in its letter of 28 June 2006 to the complainant.

2.11 In light of the above, the Ombudsman considers that the complainant's allegation that the Commission's statement was inaccurate, misleading and defamatory has not been substantiated and he therefore finds no maladministration by the Commission regarding this aspect of the complaint.

3 The allegations that the Commission failed to provide information and a clarification

3.1 According to the complainant, the Commission spokesperson's statement of 4 May 2006 failed to provide detailed, factual information on any of the four cases of 'revolving doors' raised in the report and did not present any evidence contradicting the factual statements in the report. Moreover, the statement was not transparent, since it did not clarify which two individuals had never worked on REACH. Nor did it clarify whether the Commission accepted that the other individuals had worked on REACH and that there was a case of 'revolving doors'. Greenpeace wrote to the Commission regarding the matter on 2 June 2006. However, the Commission's reply reiterated its denial regarding the cases of 'revolving doors', without providing facts to disprove Greenpeace's findings. In addition, the Commission consistently ignored the fourth case of 'revolving doors' referred to in the report, concerning Mr M.

The complainant alleged that the Commission had failed to provide (i) detailed factual information on the four cases of 'revolving doors' referred to in the report; and (ii) a clarification as to which individuals referred to in the report have - in the Commission's own words - "never actually worked on REACH".

3.2 The Commission argued that the spokesperson referred to only three out of the four persons indicated in the report because his statement was based on the press article in the Financial Times, which only referred to three persons. Furthermore, the persons concerned had already suffered distress as a result of being named in the Greenpeace report and in related press articles. In a situation in which the precise details of their activities in the Commission had already been described, they risked suffering further as a result of details about their background and work becoming a matter for public discussion. The spokesperson's approach, which was not to make available further details of their careers or of their work, was therefore reasonable and correct. The Commission expressed strong reservations about the Greenpeace approach, which relies on making public accusations first and then requiring those accused to disprove them.

3.3 In his observations, the complainant stated that the Commission finally acknowledged, in its opinion on the complaint, that two of the individuals named in the report (Mr B. and Mr M.) did work on REACH. According to the complainant, this acknowledgement came ten months late and only partially clarified the obscure statement made by Commissioner Verheugen's spokesperson on 4 May 2006 that two of the individuals named in the report had "never actually worked on REACH".

3.4 Taking into account his findings in point 1 of the present decision, the Ombudsman considers reasonable the Commission's approach that it was not required to support its statement, made in the Press Room on 4 May 2006, with the information and evidence indicated in the complainant's allegation. The Ombudsman therefore finds no maladministration by the Commission as regards this aspect of the complaint.

4 The complainant's claims

4.1 In his complaint, the complainant claimed that the Commission should (1) publicly revise the inaccurate statement made by Commissioner Verheugen's spokesperson; and (2) publicly apologise to Greenpeace for having damaged its reputation with unfounded allegations.

4.2 In view of his conclusion in points 1 and 2 of the present decision, the Ombudsman finds no grounds further to pursue the complainant's claims.

5 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Commission. The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS


(1) REACH is the new European chemicals regulation (Regulation 1907/2006, OJ 2006 L 396, p. 1) and stands for "Registration, Evaluation and Authorisation of Chemicals". See http://ec.europa.eu/comm/environment/chemicals/reach.htm and http://ec.europa.eu/enterprise/reach/index_en.htm. The "Toxic Lobby" report can be found at http://www.greenpeace.org/toxiclobby.

(2) The European Chemical Industry Council.

(3) The complainant refers in this regard to the "expert opinion" of Professor Ludwig Krämer, former Head of Unit at the Commission, in which he states that "[i]nside an administration which deals with chemicals, there are discussions on the different issues, within the administrative unit itself and between such a unit and the director and director general. It is thus not decisive that a specific official is not the actual draftsman of REACH. He has many opportunities to convey his opinion - and if he has practical experience as he comes from industry, this will even have more weight." The "expert opinion" was submitted to Greenpeace in the context of its investigation of 'revolving doors' in the Commission.

(4) OJ 1976 L 262, p. 201.

(5) SEC(1998)1986.

(6) COM(2001)88.

(7) See the Commission's Green paper on the European Transparency Initiative COM(2006)194.

(8) See the European Ombudsman's decision on complaint 3269/2005/TN, which is available on his website (http://www.ombudsman.europa.eu/decision/en/053269.htm).

(9) Article 11 of the Staff Regulations provides: "An official shall carry out his duties and conduct himself solely with the interests of the Communities in mind; he shall neither seek nor take instructions from any government, authority, organisation or person outside his institution. He shall carry out the duties assigned to him objectively, impartially and in keeping with his duty of loyalty to the Communities. (...)".

Article 16 of the Staff Regulations provides: "An official shall, after leaving the service, continue to be bound by the duty to behave with integrity and discretion as regards the acceptance of certain appointments or benefits.

Officials intending to engage in an occupational activity, whether gainful or not, within two years of leaving the service shall inform their institution thereof. If that activity is related to the work carried out by the official during the last three years of service and could lead to a conflict with the legitimate interests of the institution, the Appointing Authority may, having regard to the interests of the service, either forbid him from undertaking it or give its approval subject to any conditions it thinks fit. (...)".

Article 11 of the Conditions of Employment of Other Servants establishes that "[t]he provisions of Article 11 to 26 of the Staff Regulations, concerning the rights and obligations of officials, shall apply by analogy (...)" to temporary agents.

(10) REACH stands for "Registration, Evaluation and Authorisation of Chemicals" and concerns the new EC chemicals regulation. See http://ec.europa.eu/comm/environment/chemicals/reach.htm and http://ec.europa.eu/enterprise/reach/index_en.htm.

(11) The "Toxic Lobby" report can be found at http://www.greenpeace.org/toxiclobby.

(12) The Ombudsman notes from the "Toxic Lobby" report that Greenpeace considers the "'revolving door' tactic" to be when officials of public authorities and industry lobbyists are "trading working places among themselves".

(13) The Ombudsman notes, for instance, that the 'revolving doors' part of the report is illustrated by a wind-up doll and that, on the front page of the report, there is a marionette operated by a person whose face is not visible.

(14) See footnote 9.