Present

Representatives from the Secretariat of the EU Transparency Register

- Coordinator of the Transparency Register Secretariat, European Commission

- Team Leader, European Parliament

- Policy Officer, Council of the EU

- Team Leader, European Commission

- Policy Officer, European Commission

- Legal administrator, European Parliament

- Senior expert, Secretariat-General, European Commission

Representatives from the European Ombudsman

- Ms Jennifer King, Legal Expert

- Ms Francesca Abbo, Inquiries Officer

- Mr Michał Krajewski, Inquiries Officer

- Ms Natalia Chiner Ridaura, Inquiries Trainee

Purpose of the meeting

The purpose of the meeting was for the Ombudsman inquiry team to obtain clarifications about how the secretariat of the EU Transparency Register handles complaints and carries out investigations into alleged non-compliance of a registrant with the code of conduct, and more specifically, in relation to the entities concerned in this case.

Introduction and procedural information

The Ombudsman inquiry team introduced themselves, thanked the representatives of the secretariat of the EU Transparency Register (the secretariat) for meeting with them and set out the purpose of the meeting. They outlined the legal framework that applies to meetings held by the Ombudsman, in particular, that the Ombudsman would not disclose any information identified by the secretariat as confidential, neither to the complainant nor to any other person outside the Ombudsman’s Office, without the secretariat’s prior consent.^[1]

The inquiry team explained that they would draw up a report on the meeting to be sent to the secretariat and to the complainant. No confidential information would be included in the report or otherwise provided to the complainant or any third party.

Information exchanged

1) How the secretariat conducts investigations

a) General information

The Ombudsman inquiry team asked the secretariat to explain how it conducts investigations into complaints concerning alleged non-compliance of registrants with the code of conduct.

The secretariat clarified the steps of the complaints-handling procedure, as laid down in Annex III of the Inter-institutional Agreement on a mandatory transparency register[2] (IIA), which constitutes the legal basis for the investigations carried out by the secretariat.

The secretariat explained that the structure of this procedure is set out in a comprehensive and detailed manner in the IIA. It clarified that, as a first step, the secretariat examines the admissibility of a complaint and then informs the complainants. If a complaint is deemed admissible, the registrant concerned is notified, provided with a copy of the complaint, and asked to give a reasoned response within 20 working days. Based on the assessment of the complaint, the secretariat drafts a formal report containing the findings of the investigation, which are agreed among the Transparency services of the three institutions operating the Transparency register - the European Parliament, the European Commission and the Council of the EU. The secretariat also explained that, in the course of an investigation, it takes all steps necessary to cooperate effectively and to receive the necessary clarifications from the registrants concerned.

The secretariat clarified that, for each investigation, one of the institutions is designated as the ‘chef de file’, and takes the lead on the investigation. This designation depends on the workload and the number of complaints received. The secretariat explained that, although one of the institutions takes the lead, all decisions within the investigative process are discussed with representatives from all three institutions and are adopted by consensus. These discussions take place in the context of technical meetings, where the assessment made by the lead institution is discussed and agreed upon by representatives of all three institutions. The secretariat explained that the decisions adopted at all stages are notified by letters signed by the secretariat coordinator. The secretariat noted that it always tries to be as objective as possible when conducting investigations, in particular as there are often underlying tensions between complainants and the registrants concerned.

The secretariat explained that, since the adoption of the new IIA in 2021, they have received an increasing number of complaints, as they have taken action to raise awareness of the Transparency Register. More specific information about the number of complaints is available in the Annual reports on the functioning of the Transparency Register.[3]

b) the complaints at issue in this case

As regards the two complaints at hand, the representatives of the secretariat confirmed that all procedural steps laid down in the IIA were duly followed, and that the registrants concerned cooperated in a constructive manner and updated the information provided in the register following the identification by the secretariat of some data quality issues.

The Ombudsman inquiry team noted that the reports on the secretariat’s findings contained limited information. The secretariat confirmed that the full extent of the assessment made on the complaints had been included in the reports. The secretariat explained that not all of the content of the discussions on the complaints are included as such in the report, but the reports contain all of the findings arising from the investigations, as required by Annex III of the IIA.

The secretariat clarified that the length of the reports depends on the nature of the allegations made in the complaint. It stated that, while some complaints are more complex and thus give rise to more extensive reports, others, such as the two complaints at stake, are more straightforward and result in shorter assessments and reports.

2) How the secretariat’s monitoring role relates to its investigative powers

While both the secretariat’s monitoring activities and investigations aim to improve the data quality of registrants, they have two separate functions. The secretariat monitors the entire content of the register, in which over 12,000 entities are registered. The monitoring powers encompass the conducting of eligibility and quality checks on new applications for registration and targeted quality checks, for instance in relation to the register’s annual priorities. While monitoring is related to the register’s data quality function, complaint-handling relates to the potential non-observance of any of the points of the code of conduct set out in Annex I to the IIA, including data quality (point f), which contains the general ethical rules and principles that registrants must comply with in their interactions with the EU institutions.

3) How the secretariat checks the veracity of the information provided by registrants in the course of an investigation

The Ombudsman inquiry team asked the secretariat if, when gathering information to draw up its findings, it asks registrants for supporting documents to ensure the veracity of the information provided.

The secretariat clarified that its main power in the context of an investigation is to request additional information or clarification from registrants. As such, the secretariat may ask registrants to reply to specific questions in relation to a complaint. In some cases, the secretariat will request registrants to provide documents to support the replies provided and allow the secretariat to draw conclusions on a case.  

The secretariat stated that it cannot force an entity to provide information or documentation, however, entities are required under the code of conduct to cooperate with the secretariat, and failure to do so is a breach of the code of conduct which can lead to the removal from the register.

The secretariat clarified that it does not rely exclusively on the replies and documents provided by registrants but may take further steps to confirm that the information provided is accurate. This includes checking the information provided against all available sources, including searching for available information online. The secretariat may also consult internally other services of the EU institutions that may have relevant information on an entity.

The secretariat noted however that, although the register conducts many quality checks, the secretariat does not have the means to verify that the information provided by all registrants is accurate. Notwithstanding the fact that the register is a voluntary system, it is in the best interest of registrants to provide accurate data as without entry in the register, they are unable to engage in certain types of covered interest representation activities that the EU institutions have made conditional upon prior registration.

The Ombudsman inquiry team asked whether, in the context of investigations, the secretariat asks for information about the registrants concerned from national authorities. The secretariat explained that it does not cooperate with national authorities in this context. It noted that the secretariat has competence to deal only with matters related to covered activities, which are lobbying activities at the EU level. This means that cooperation with national authorities would most likely not provide useful information in this context, as the focus of the information collected by national authorities is different. Moreover, this would likely pose data protection issues.

Regarding the specific complaints at issue, the Ombudsman inquiry team asked the secretariat whether it had requested supporting documents from the registrants, in particular in relation to the association, its members and legal status.

Regarding its legal status, the secretariat explained that it did not ask for supporting documents, given that the legal form of registrants is irrelevant for being registered in the register. The secretariat stressed that the IIA concerns only covered activities and that the conditionality principle only applies to certain types of covered activities. Complaints should thus focus on these covered activities in reporting alleged breaches of the code of conduct. The complaint in question did not relate to the legal status of the association, so this issue was not investigated.

Regarding the membership of the association, the secretariat explained that such information is usually available on the registrant’s website. The association in this case provided a link to its manifesto. The website informs that this manifesto is supported by individuals coming from different backgrounds. The representatives of the secretariat confirmed that they would inquire into the membership of a registrant if a complaint raised concerns in this regard.

The Ombudsman inquiry team asked whether it was considered relevant for determining the affiliation of both entities that the alliance failed to provide information about the signatories to the manifesto as this information was not available on the website. The secretariat explained that they believed that this information was not relevant due to the scope of the complaint.

4) How the secretariat determines the affiliation of entities on the register

The secretariat noted that, when registering, registrants are asked to provide information on their membership and affiliation. The implementing guidelines indicate what kind of information registrants are expected to provide in these sections.

The secretariat explained that while registrants can be, by definition, legal persons or natural persons, the secretariat can only ask natural persons registered as self-employed to declare their personal activities and any possible memberships and/or affiliation. Therefore, the term ‘affiliation’ cannot be construed in terms of individual membership, but only in terms of relations between entities, e.g., if a company is a member of a trade union, or if an association is part of a broader umbrella association.

Therefore, the secretariat considers that if the same individual is a member or an employee of two entities, the two entities would not be considered as affiliated entities in the register. The same applies in the case at issue where the head of the consultancy is also the founder of the association. The secretariat also highlighted that the two registrants have not concealed in any manner that they are led by the same person, since this data visibly appears in the respective registration forms of the two registrants concerned by the complaints. However, the Secretariat conceded that this link would only be identifiable if one searched using the name of the individual concerned and not by reference to the name of the consultancy or alliance.

The secretariat further explained, in reply to a question from the Ombudsman inquiry team, that there is no available definition of what an ‘affiliation’ is. It is a broadly constructed term, which does not have a strict legal definition. As the register is a transparency tool, it does not apply a formalistic definition of affiliation. The secretariat referred to guidelines produced which provide guidance to registrants as to what information should be included in the register.

The Ombudsman inquiry team asked how the registration of the policy officer as “self-employed/none” would have enabled her to adequately identify the entity she represented in light of points a), n) and o) of the code of conduct, and how the secretariat considered this to be appropriate registration.

The secretariat explained that this issue falls outside the remit of the transparency register. It clarified that participants to an event organised by Parliament do not need to be registered in the register to attend the event. As such, attendance to a public event does not require registration in the Transparency register. The secretariat further clarified that lobbying is mostly exercised in the context of meetings, in which interest representatives aim to influence the formulation or implementation of policy or legislation, or the decision-making processes of EU institutions. Mere attendance of events generally does not fall within these covered activities as it does not have the same objective. As such, the secretariat considered that this element of the complaints at hand did not fall within the scope of the code of conduct of the IIA and thus within its remit to investigate.

Similarly, the secretariat also confirmed that the aspect of the complaint, concerning the potential misuse of the accredited access to the Parliament by employees of the consultancy for the interest of the association was also outside its remit. The secretariat found that this is rather a matter of how Parliament gives accreditation to entities’ representatives and did not form part of the code of conduct as set out in Annex I of the IIA.

The Ombudsman inquiry team noted that the secretariat had not explained to the complainant that these aspects were inadmissible. The secretariat explained that it deals with the admissibility of complaints as a whole, as provided for in the IIA[4], without distinguishing between admissible and inadmissible aspects. Therefore, the secretariat acknowledged that the complainant was not informed of the fact that the secretariat considered the attendance at the event or the allegation concerning the abuse of parliamentary access, to be inadmissible. The secretariat however noted that it had provided some additional clarification to the complainant upon request, and would have happily provided more information on how it dealt with the complaints if requested.

Conclusion of the meeting

The inquiry team thanked the representatives of the secretariat of the EU Transparency Registry for their time and for the explanations provided, and the meeting ended.

Brussels, 20/06/2023

 

Jennifer King            Francesca Abbo

Legal Expert             Inquiries Officer

 

[1] Article 4.8 of the European Ombudsman’s Implementing Provisions.

[2] Interinstitutional Agreement of 20 May 2021 between the European Parliament, the Council of the European Union and the European Commission on a mandatory transparency register.

[3] Available here Transparency Register (europa.eu)

[4] IIA, Annex III, pt. 2.1.