Background to the complaint

1. The Regulatory Scrutiny Board (RSB) was established in 2015.[1] It is an independent body within the Commission that advises the College of Commissioners. It provides central quality control and support for Commission impact assessments and evaluations at early stages of the legislative process. The RSB reviews and issues opinions and recommendations on all the Commission's draft impact assessments, fitness checks, and other major evaluations of existing legislation. It also provides advice on the Commission’s better regulation policy to the Secretariat-General.[2]

2. Crucially, a ‘positive’ or ‘positive with reservations’ opinion of the RSB is needed for any legislative initiative accompanied by an impact assessment to be tabled for adoption by the Commission. If the RSB’s opinion is ‘negative’, the impact assessment report must be reviewed and resubmitted to the RSB. In case a negative RSB opinion is given twice, it is only the Commission’s Vice-President for Inter-institutional Relations and Foresight who may submit the initiative to the College of Commissioners to decide whether or not to go ahead with the relevant legislative proposal.

3. The RSB consists of seven members, that is, a Commission Director-General who acts as chair, three high-level Commission officials and three experts recruited from outside the Commission.[3] All members work for the board full-time, with no other responsibilities, during a non-renewable term of three years.

4. In May 2022, the complainant requested public access[4] to all declarations of interests submitted by current and past members of the RSB since its establishment in 2015.[5]

5. In June 2022, the Commission replied that it did not hold any documents concerning potential conflicts of interest declared by RSB members with respect to particular reports on which they worked.[6] The Commission referred also to declarations concerning potential or concrete interests that might be in conflict with the duties of RSB members. Such declarations can be made under RSB rules when necessary. However, the Commission said that even informing the complainant whether such documents existed was prevented by EU personal data protection rules. The Commission pointed out that the complainant had not justified why he needed public access to this personal data and that such justification is required under EU legislation.[7]

6. The complainant asked the Commission to review its decision, by making a ‘confirmatory application’. He clarified that he had requested the “declarations of commitment to act independently and in the public interest and to declare any interests, which might be considered prejudicial to his/her independence”, which RSB members are required to make before taking office according to the relevant recruitment notice.[8]

7. In the absence of a reply from the Commission within the applicable time limits, the complainant turned to the Ombudsman.

8. In December 2022, following the Ombudsman’s request,[9] the Commission replied to the complainant by issuing a ‘confirmatory decision’.

9. In its reply, the Commission identified six declarations of interests submitted by past and current RSB members who were recruited from outside the Commission. It explained that RSB members, who are high-level Commission officials, are already bound by the provisions of the EU Staff Regulations concerning conflicts of interest and, as such, they had not been requested to fill in new declarations.

10. The Commission granted partial access to the six declarations.

11. It redacted or removed the part of the forms used by the recruiting service to assess any potentially declared conflicts of interest in relation to the position offered. The Commission considered these parts to fall outside the scope of the request.

12. Moreover, the Commission redacted the parts of the declarations containing personal data, including the part used by RSB members to declare information about their financial, professional or personal interests that might give rise to conflicts. The Commission considered that the complainant had not put forward any arguments to establish the necessity of having this data transmitted for a specific purpose in the public interest. Moreover, the Commission considered that the legitimate interests of RSB members, especially their privacy, might be prejudiced by disclosure of the requested information.

13. Dissatisfied with this reply, the complainant turned to the Ombudsman in January 2023.

14. The complainant disagreed with the Commission’s view that information on whether RSB members declared any interests or not is personal data that should remain confidential. In his complaint to the Ombudsman, he argued that there is a public interest in having access to members’ declarations to assess whether RSB opinions are made free of conflicts of interest and, in case there are any conflicts of interest, whether proper mitigating have been taken. The complainant also disagreed with the Commission’s view that the parts of the declaration forms used by the recruiting service to identify conflicts of interest were out of scope.

The Ombudsman's proposal for a solution

15. The Ombudsman found that it was reasonable for the Commission to consider that the parts of the forms used by the recruiting service to identify any potential or actual conflicts of interest in relation to the position offered were out of scope of the complainant’s request. This request related explicitly to the declarations made by RSB members.

16. The Ombudsman also found that it was reasonable for the Commission to consider any declared interest, including the absence of any declared interest, to constitute personal data. According to the definition of personal data contained in EU legislation, personal data is any information related to an identified or identifiable person.[10]

17. The inspection of the unredacted versions of the six declarations by the Ombudsman inquiry team showed that five out of the six members concerned had not declared any interest. These five declarations of interest were thus empty forms, apart from the name and other personal data identifying the member (such as the email address and telephone number).

18. The Ombudsman understood that the complainant sought public access to the declarations of interest to allay his concerns about the independence of the members of the Regulatory Scrutiny Board. Therefore, she proposed to the Commission that it disclose the parts of the five documents in which the absence of any potential or actual conflicts of interest was declared, that is, the ‘empty fields’, but redact the remaining personal data (the name, address, email address, telephone number, applicant number, vacancy notice number, and signature). This way, the complainant could be reassured that five out of six members of the Regulatory Scrutiny Board declared the absence of any potential or actual conflicts of interest.

19. Alternatively, the Ombudsman proposed that the Commission inform the complainant that five out of six current and former members did not declare any potential or actual conflicts of interest, without saying who these five members are.

20. In reply, the Commission accepted the Ombudsman’s alternative proposal and provided the complainant with the requested information. The Commission considered that disclosing the five ‘empty’ forms without personal data would require it to adopt a new confirmatory decision. However, the Commission considered this not to be justified, as it considered its original decision to be legally sound.

21. In his comments on the Commission’s reply, the complainant expressed satisfaction that the Commission had disclosed the information that five out of the six members of the RSB had declared no interests. However, in his view, the Commission should have also disclosed the sixth declaration. He argued that citizens, and especially journalists, cannot be required to trust the Commission blindly without being able to verify the information about potential conflicts of interest independently.

The Ombudsman's assessment after the proposal for a solution

22. The Ombudsman welcomes the Commission’s positive reply to her solution proposal.

23. The Ombudsman recalls that, in this specific case, the Commission refused to disclose the personal data of RSB members, including the contents of the sixth declaration, because the complainant had failed to put forward, in his initial and confirmatory application, any arguments to establish the necessity of having the personal data of RSB members transmitted to him for a specific purpose in the public interest. This requirement stems from EU legislation on the protection of personal data.

24. That said, the Ombudsman agrees with the complainant that the EU institutions should make efforts to maintain and enhance public trust in the impartiality of administrative bodies involving experts, such as the RSB. She notes, in this context, that some EU bodies publish proactively, and in an accessible way, the declarations of interest made by experts working with them.[11] Moreover, several agencies publish declarations of interest made by members of their management boards.[12]

25. Given the importance of public trust in the independence of the RSB, a body which has an essential role in the preparation of the Commission’s legislative proposals, the Commission should publish the declarations of interest submitted by RSB members proactively. The Ombudsman makes a suggestion for improvement in this regard.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

The Commission accepted the Ombudsman’s solution proposal.

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

Suggestion for improvement

The Commission should publish the declarations of interest made by the members of the Regulatory Scrutiny Board proactively and, if needed, amend the relevant rules governing the Board.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 02/10/2023

 

[1] See Decision C(2015) 3263 final on the establishment of an independent Regulatory Scrutiny Board: https://commission.europa.eu/system/files/2016-05/decision-on-the-established-of-an-independent-regulatory-scrutiny-board_may2015_en.pdf

[2] For more information, visit: https://commission.europa.eu/law/law-making-process/regulatory-scrutiny-board_en#:~:text=The%20Regulatory%20Scrutiny%20Board%20is,legislative%20process%20(Figure%201)

[3] A list of the current members can be found at: https://commission.europa.eu/law/law-making-process/regulatory-scrutiny-board/members-regulatory-scrutiny-board_en

[4] Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ 145/43, https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32001R1049

[5] The access request was made via AskTheEU.org and is available at: https://www.asktheeu.org/en/request/regulatory_scrutiny_board_intere

[6] Such potential conflicts of interest can be declared under Article 4.1. of the Decision setting up RSB, http://epsvlwp095.ep.parl.union.eu:10000/workingarea/2022/incident/202202187/Background%20documents/Decision%20on%20RSB.pdf

[7] Article 9(1)(b) of the Regulation 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, OJ L 295/39, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32018R1725 (hereinafter ‘Regulation 2018/1725’)

[8] The complainant referred to the ‘Publication of a vacancy for a Member of the Regulatory Scrutiny Board at grade AD 14 (Principal Adviser)’ COM/2020/10398 (2020/C 428 A/01), https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3AC2020%2F428A%2F01&qid=1695200008791

[9] The complainant brought also complaint 2187/2022/MIG on the Commission’s failure to issue a confirmatory decision.

[10] Article 3(1) of Regulation 2018/1725.

[11] See for instance, regarding the European Food Safety Authority https://ess.efsa.europa.eu/doi/doiweb/doisearch, regarding the European Environmental Agency https://www.eea.europa.eu/en/about/who-we-are/governance/list-of-scientific-committee-members?activeAccordion=60c58646-7f2b-4fc2-a1bd-6dcadcffc1fd

[12] See for instance, regarding the European Chemicals Agency https://echadoiextprd1.powerappsportals.com/Publdecl/MBdecl/, regarding the European Food Safety Authority https://www.efsa.europa.eu/en/people/mbmembers, regarding the European Medicines Agency https://www.ema.europa.eu/en/about-us/who-we-are/management-board/members