Mr Andrea Enria
European Banking Authority
Tower 42 (level 18)
25 Old Broad Street
London EC2N 1HQ
Visit to the European Banking Authority (EBA)
Dear Mr Enria,
I am writing in order to share with you the results of the visit that I made to the European Banking Authority (EBA) on Monday 2 May 2011. Before explaining my findings and suggestions, I shall briefly recall: (1) the purpose of the visit; (2) the topics identified for discussion; and (3) the meeting with EBA staff, which was the key element of the visit.
1. The purpose of the Ombudsman’s visit to the EBA
The entry into force of the Treaty of Lisbon in December 2009, gave to the Charter of Fundamental Rights of the European Union the same legal value as the Treaties. Among the rights of citizenship that the Charter contains is the right to good administration (Article 41). Furthermore, the Lisbon Treaty provides for enhanced transparency, for greater opportunities for public participation in the Union's policy-making and for more dialogue with civil society. In order to help the EU institutions to fulfil these promises to citizens and thereby win and maintain their trust, I have decided to devote more of the resources of my office to promoting an administrative culture of service to citizens.
A culture of service involves not only a firm commitment to the principles set out in the European Code of Good Administrative Behaviour, but also
- regarding engagement with citizens as part of core business;
- willingness to do more for citizens than merely fulfil legal obligations;
- taking a proactive approach towards informing and involving citizens and reconciling different rights and interests.
The past fifteen years or so have seen the creation of a large number of EU agencies. The current landscape of agencies results from a case-by-case approach rather than an overall vision of their place in the Union’s institutional framework. Indeed, no generally agreed legal or administrative definition of the term “agency” exists, nor do the bodies that are commonly referred to as agencies have similar legal structures, or the same arrangements for accountability and governance. Their diversity can make it difficult for citizens to understand how the Lisbon Treaty’s promises of public participation, dialogue and greater transparency are to be fulfilled as regards the agencies. Moreover, taken together, agencies now account for approximately 10% of all the complaints that lead to the opening of an Ombudsman inquiry.
In view of the foregoing, it seems important to identify and spread best practices among the agencies in relation to a culture of service. I have decided, therefore, to organise a programme of visits to EU agencies for this purpose. A mission to London in the United Kingdom in early May 2011 provided the opportunity to launch the programme with visits to the European Banking Authority (EBA), the European Medicines Agency (EMA) and the European Police College (CEPOL).
2. The topics identified for discussion
The three agencies visited in early May 2011 (EBA, EMA and CEPOL) were informed in advance of the main questions the Ombudsman wished to address during his visit. These questions, which were the same for all three agencies, were framed on the basis of the above-mentioned general considerations. They were as follows:
- Does the agency make information and documents available to the public proactively, as well as responding correctly to requests?
- How well does the agency respond to complaints?
- Does the agency have appropriate policies and procedures for dealing with ethical issues?
As regards the first question, the Ombudsman’s services carried out a preliminary analysis of the EBA’s website and sent it to the EBA in advance of the visit. The analysis also covered the language policy of the website.
As regards the second question, in November 2010, the Ombudsman received a complaint (2497/2010/FOR) against the EBA’s predecessor, the Committee of European Banking Supervisors (CEBS). Following its establishment in January 2011, the EBA assumed responsibility for the case.
As regards the third question, the Ombudsman identified two aspects in particular that he wished to discuss: (a) the handling of potential conflicts of interest and (b) information to staff on whistleblowing.
3. The meeting on 2 May 2011
The meeting began at 12.30 and concluded at 14.00. The Ombudsman was accompanied by Mr Ian Harden, Secretary General and Mr Fergal Ó Regan, Head of Legal Unit D. The EBA was represented by Mr Adam Farkas, Executive Director, who was accompanied by Ms Despina Chatzimanoli (policy expert, regulation), Mr Joseph Mifsud (legal expert) and Ms Franca Rosa Congiu (press and communications).
The main points made by the EBA representatives at the meeting were that the EBA:
- will adopt provisions on public access to documents by 31st May 2011 as stipulated in the EBA Regulation and publish them on its website;
- will create a link on its website to the Ombudsman’s website;
- is making an effort to use plain language when communicating with the public;
- has made an arrangement with the Translation Centre (CDT) so that it can deal with correspondence and complaints in all 23 official languages;
- aims to increase the number of languages on its website and, subject to resource constraints, to have the homepage and some documents, especially legally binding material, available in all languages;
- has received complaints about the selection of the members of the Banking Stakeholder group. The EBA is responding to the complaints as rapidly as possible;
- is highly sensitive to conflicts of interest, since any perception of such conflicts would seriously undermine the EBA’s credibility among its stakeholders. The EBA is in the process of preparing a code of ethics, drawing on best practice at national level. The code will contain a clear definition of the notion of conflict of interest and will provide for specific whistleblowing arrangements;
- intends to publish on its website reports of meetings concerning regulatory matters, but to keep other meetings, for example those concerning the financial stability of specific institutions, confidential;
- had positive feedback to the Ombudsman’s public consultation on public service principles, finding it useful and beneficial, even though this field is somewhat new to the EBA.
4. The Ombudsman’s findings and suggestions
A. Making information and documents available to the public proactively, as well as responding correctly to requests
(i) The Ombudsman welcomes the EBA’s intention to publish proactively, on its website, reports of meetings with industry concerning general regulatory matters.
(ii) The Ombudsman notes that the fundamental right of access to documents (Article 42 of the Charter of Fundamental Rights, Article 15(3) of the Treaty on the Functioning of the European Union) applies to the EBA. The EBA’s founding Regulation provides that its Management Board shall adopt, by 31 May 2011, practical measures for applying Regulation 1049/2001 on public access to documents.
(iii) In the short time since its establishment on 1 January 2011, the EBA appears to have made a great effort to make documents and information available on-line, particularly in the area of its core activities. The Ombudsman congratulates the EBA on its user-friendly and informative website http://www.eba.europa.eu
The Ombudsman’s suggestions:
(a) The EBA should publish on its website the practical measures to be adopted by its Management Board for applying Regulation 1049/2001, together with easily understandable information on how to make an application for public access to documents.
(b) The EBA should continue to develop its proactive information policy. In particular, the Ombudsman suggests that, as far as possible, all documents should be drafted with a view to being made public. If a document necessarily contains material that falls within the exceptions of Regulation 1049/2001, such material should be put in a separate part of the document, or an annex. This would facilitate proactive publication, as well as rapid handling of access requests. As regards personal data, the Ombudsman encourages the EBA to follow the updated advice given by the European Data Protection Supervisor on 24 March 2011.
(c) The EBA should aim to make the homepage of its website, as well as information on the EBA’s functions and language policy, available in all 23 Treaty languages. By greeting citizens who visit the website in their own language and explaining its functions to them, the EBA would demonstrate clearly that it recognises that all citizens of the European Union have a legitimate interest in its work.
B. Responding to complaints
(i) As noted above, the Ombudsman has only received one complaint relating to the EBA (case 2497/2010/FOR). The complaint was made in November 2010 against the EBA’s predecessor, the Committee of European Banking Supervisors (CEBS). It concerns public access to the list of participants at a public hearing organised by CEBS. In March 2011, within the deadline set by the Ombudsman, the EBA sent its opinion on the complaint. The EBA agreed to disclose (and annexed to its opinion) a list of the organisations that registered to attend the public hearing. The complaint was still under inquiry at the time of the Ombudsman’s visit.
(ii) The Ombudsman notes that the EBA is dealing with complaints made to it directly, concerning the selection of the members of the Banking Stakeholder Group.
The Ombudsman’s suggestions:
(a) The Ombudsman encourages the EBA to regard the complaints as an opportunity to demonstrate its commitment to openness. The EBA could consider, for example, making the CVs of the members available on its website in order to demonstrate their qualifications and experience, as well as publishing any information given to members by the EBA about what is expected of them.
(b) The EBA could also consider what arrangements to make as regards transparency of meetings of the Group and of the advice that the Group and its members provide.
C. Policies and procedures for dealing with ethical issues
(i) The Ombudsman welcomes the EBA’s adoption, on 11 January 2010, of a code of good administrative behaviour, closely modelled on the European Code of Good Administrative Behaviour.
(ii) The Ombudsman also welcomes the EBA’s declared intention to prepare a code of ethics, which will draw on best practice at national level, contain a clear definition of the notion of conflict of interest and provide for specific whistleblowing arrangements.
The Ombudsman’s suggestions:
(a) In preparing its code of ethics, the EBA should have regard to the view of the OECD on the importance of avoiding “apparent” conflicts of interest as well as “real” conflicts. This will help ensure confidence and trust in its work.
(b) The EBA should address the issue of potential conflicts of interest in relation to the Banking Stakeholder Group, as well as in relation to its own staff.
(c) In drafting provisions for whistleblowing, the EBA should bear in mind the need to ensure consistency with the provisions of Articles 22a and 22b of the Staff Regulations, which apply to EBA staff.
5 Concluding remarks
The European Ombudsman aims to be not only an external mechanism of control, provided for by the Treaties, but also a resource to help those with management responsibilities in the EU institutions, bodies, offices and agencies to improve the quality of their administration and to build and maintain a culture of service to citizens. In addition to the suggestions made above, which I hope the EBA will find useful, I and my staff are ready to give advice on request, within the limits of my competence and resources.
I would be grateful if you could inform me, by 30 September 2011, of the follow up you have given to the above suggestions.
Finally, I would like to thank Mr Farkas and his staff for their excellent co-operation before, during and after my visit to the EBA.
P. Nikiforos Diamandouros
cc: Mr Adam Farkas, Executive Director, EBA.
 The Europa website http://europa.eu/agencies/index_en.htm now lists 42 bodies of various types, classified as: policy agencies (23), common security and defence policy agencies (3), police and judicial co-operation agencies (3), Euratom agencies (2), executive agencies (6), financial supervisory bodies (4) and the European Institute of Innovation and Technology.
 Communication from the Commission to the European Parliament and the Council, European agencies – The way forward, COM(2008) 135 final, (SEC(2008) 323), 11 March 2008. The six Executive agencies are an exception, since they have a common legal basis (Council Regulation 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes 2003 OJ L 11 p. 1).
 Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC 2010 Official Journal, L 331 p. 12.
 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, 2001 OJ L 145 p. 43.
 Regulation 1093/2010, Article 68.