Date: Tuesday, 12 March 2024

Remote meeting via WebEx, 14:30 - 16:30

Present

European Commission

Head of Unit, Evaluation and Impact Assessment, RSB Secretariat

Deputy Head of Unit, Ethical Conduct Unit, DG HR

Officer, Ethical Conduct Unit, DG HR

Senior Expert, Co-ordinator for Inter-Institutional Relations with the European Ombudsman

European Ombudsman

Koen Roovers, Inquiries Officer

Jennifer King, Legal Expert

Michał Krajewski, Inquiries Officer

Krzesimir Wawrzyczek-Seifert, Inquiries Trainee

Purpose of the inspection meeting

The purpose of the meeting was to get a better understanding of how the Commission assesses conflicts of interest, how it ensures a balanced composition of the Regulatory Scrutiny Board (RSB) in terms of the expertise and experience required and how the RSB interacts with interest representatives.

The meeting was organised in order to clarify questions that arose when inspecting the documents that the Commission had identified as falling within the scope of the Ombudsman’s request. The discussion points had been sent to the Commission in advance of the meeting, together with the meeting request, on 31 January 2024.

Introduction and procedural information

The Ombudsman inquiry team introduced themselves, thanked the European Commission representatives 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 European Commission as confidential, neither to the complainant nor to any other person outside the Ombudsman’s Office, without the European Commission’s prior consent.^[1]

The Ombudsman inquiry team informed the Commission representatives that they would receive a draft of the inspection meeting report to verify its accuracy, before making any parts of the report public.

Documents inspected

The Commission made available the following documents for inspection:

• Six completed and signed declarations of conflict of interests (DOI[2]) of external RSB members;
• Fourteen written contributions on individual files provided by interest representatives and the response of the RSB;
• Two examples of standardised replies to interest representatives sent by the RSB secretariat;
• Four Commission Decisions concerning the extension of RSB members’ mandates;
• The CVs of all RSB members.

Most of these documents include personal data. To the extent possible this report has been drawn up so as not to identify individuals.

Information exchanged

The discussion followed the Ombudsman’s 11 discussion points (in cursive font below) shared in advance of the meeting, which are subdivided into four themes.

I. Declarations of conflict of interests

1. In relation to the declaration of interests that has 2020 in its file name, did the Commission assess the personal interests that were declared in this case that could lead to any actual or potential conflict of interest relevant to the position offered? If so, how?

The Commission assessed the personal interests that had been declared in the specific case, taking into account actual and potential conflicts of interest. The Commission’s conclusion was that there were no risks of conflict of interest. The Commission said that the service requesting the recruitment and the Authority Empowered to Conclude Contracts of Employment had concluded that there was no conflict of interest within the meaning of Article 11 of the Staff Regulations.

As regards the assessment of the candidate’s DOI, the Commission representatives acknowledged that there had been a clerical mistake. Namely, Part II of the form, which is to be filled out by the service requesting the recruitment, indicated that the candidate had not declared any personal interests, which was manifestly incorrect as the candidate had declared a number of personal interests. The Commission said that it should have recorded that the candidate had declared personal interests, but that, according to the Commission, these did not give rise to risks of conflict of interest. As a result of incorrectly categorising the reply of the candidate in part II of the form, the Commission also did not provide any reasoning as to why such declared interests by the candidate were not considered by it to be conflicts of interest.

In any event, the Commission stated that manifestly the personal interests of the candidate did not give rise to a conflict of interest. This was so because the candidate made known their intention to take appropriate mitigating measures, consisting in stopping all professional activities before starting their duties at the Commission. The Commission deemed these measures sufficient.

The Commission representatives stressed that following an audit by the European Court of Auditors and an inquiry by the Ombudsman on the Commission’s approach to the revolving doors (OI/3/2017/NF), the Commission updated the template for declarations of conflict of interest to provide better guidelines for the candidates on identifying the relevant personal interests to be declared, as well as for those assessing the declarations in terms of how to assess conflicting interests, and where so identified, how to mitigate risks.

2. Did the Commission assess the proposed mitigating measures put forward by the member? If so, how?

The service requesting the recruitment and the Appointing Authority considered the mitigated measures proposed by the candidate before concluding that there was no conflict of interest. The fact that the candidate had expressed the intention to wind up their professional ties and take leave from their previous employment, had resolved any potential issue for the Commission as all their professional activities had stopped before the candidate entered into service.

3. The declaration of interests form sets out that, in case potential conflicts of interest are identified, copies of the declaration must be transmitted to the responsible team in the Commission’s department for Human Resources and to the Business Correspondent of the Secretary-General. Was this procedure followed in this case? If so, what was the reply of the relevant services of the Commission?

The Commission representative underlined that the declaration of conflict of interest form filled in by the candidate provides that, in case potential conflicts of interest are identified by the Appointing Authority/Authority Empowered to Conclude Contracts of Employment, copies of the declaration must be transmitted to the responsible team in the Commission’s department for Human Resources and to the Business Correspondent of the Secretary-General. Given that the Authority Empowered to Conclude Contracts of Employment confirmed that there were no potential or actual conflicts of interest, such a referral was not necessary. The Commission said that the procedure provided for in the conflict of interest form was therefore respected. 

There is thus no additional documentation in this regard.

4. Did the Commission monitor compliance with the proposed mitigation measures in this case? If so, how?

Concerning the fact that the candidate had informed the Commission about their commitment to wind up their professional relations, albeit without giving an indication as to when this would happen, the Commission said their commitment was considered sufficient as its relationship with the staff member is based on trust.

After the candidate had been appointed to the RSB, the Commission was informed of a delay in the administrative process of implementing the member’s commitments. The candidate had no control over that administrative process handled by a national administration. The Commission consulted internally on this aspect of delay and concluded that nothing more was necessary in this regard, as the activity was de facto stopped. The Commission acknowledged that it did not follow-up or monitor the measure voluntarily undertaken by the member.

5. In five out of six signed declarations of interests, the candidate RSB candidate member declared no potential or actual conflicts of interest. The form used for the declaration of interests provides that, where no interests are declared by the candidate member, the Commission is still obliged to confirm the absence of conflicting interests based on the declaration and the updated CV of the candidate. Did the Commission conduct its own assessment in these cases to confirm the candidates’ self-declared absence of conflicting personal interests and, if so, how?

According to the Commission, the instructions in the declaration of conflict of interest form indicate that if a candidate does not declare any interests that could give rise to a conflict of interest and this is also confirmed by the recruiting service, based on the analysis of the candidate’s CV, the form is considered to be complete and the Commission does not assess the declaration further, in line with the procedure provided for in the conflict of interest form.

The Ombudsman inquiry team pointed to the 2016 declaration of interests of an external RSB member, the first to be assessed in this capacity by the Commission, where the Commission had confirmed the absence of risks of conflicts of interest based on the interview with the candidate, the candidate’s CV and personal file. This explanation of how the Commission formed its opinion was lacking from the five subsequent declarations of interest that the Commission assessed.

The Commission said that in order to confirm the candidates’ self-declared absence of conflict of interest, in line with the instructions in the declaration of conflict of interest form, it reviews the CV of the candidate as the relevant background document and takes account of the interview with the candidate as well as of the assessment of the recruitment service. The Commission stated that in all of the cases in question, it had conducted such an assessment and it had concluded that no risks were identified. If there is no potential conflict of interest identified and this is confirmed by the recruitment service, the Commission does not carry out any further assessment, in line with the instructions provided in the declaration of conflict of interest form.

In case there is a doubt arising from a review of the candidate’s CV concerning risks of conflict of interest, even though the candidate has themselves declared nothing, this fact is also documented in the form. The Commission representatives referred to point 3 of Part 2 of the form, which would allow the Commission to record its assessment of a potential or actual conflict of interest where it identified such an issue.

The Commission representatives stated in reply to a question from the inquiry team concerning the diverging approaches of the Appointing Authority in terms of explaining the basis for the conclusions reached, that completion of the conclusions section of the signed declarations is not compulsory if there is no potential or actual conflict of interest identified. The Commission representatives acknowledged that the risk of perceived conflict of interest is also taken into account in the revised version of the declaration of conflict of interest form. If such a risk is identified then this should also be addressed in the declaration of conflict of interest form.

As regards the four forms which did not include any written observation in the conclusion section, the Commission said that it had been clear, in terms of the factual situation, that there was no risk of conflict of interest.

The Commission stated that, according to Article 11a of the Staff Regulations, personal interests that may give rise to risks of conflict of interest may include family and financial interests such as to impair staff members’ independence in the performance of their duties. These personal interests must be evaluated in the context of a recruitment and in light of the tasks that the candidate will be responsible for. As regards the category of family interests, a Commission representative confirmed that the Commission’s practice is in line with the requirements of the Staff Regulations.

II. Meetings of the RSB with interest representatives

6. The complainant said that a meeting that took place in 2020 between the RSB and an interest representative for French businesses was listed by the RSB as having concerned an individual file. Could the Commission please submit for inspection the documents it holds in relation to the meeting in November 2020 between the then RSB Chair and the French corporate lobby referred to above, including minutes if available?

The Commission made available the email exchange in question for inspection. In it, an interest representative addressed the RSB with a request to discuss an individual file. The RSB chair replied that they were not in a position to discuss individual files, but that they would be willing to give a presentation on the role of the RSB in the EU’s regulatory process in general terms, and did so.

The Commission said that the RSB is an independent advisory body, which scrutinises impact assessment and major evaluations. The RSB does not participate in the policymaking process, and RSB members do not advocate for certain policy solutions. The discussions within the RSB concern the issues related to methodology, as well as an assessment of the evidence base used by the Commission as a basis for proposals.

As regards the outreach activities of the RSB members, the Commission said that RSB members do not discuss individual files with external stakeholders. The Commission sees no problem in RSB members participating in public events, also not in terms of risks of perception of conflict of interest. Outreach activities are seen as an important part of the RSB’s work in terms of advocacy for Better Regulation and help to develop Better Regulation methodologies. On the contrary, the Commission considers that there is a risk that the RSB would become too detached from developments of better regulation and stakeholders‘ views on it, should RSB members no longer be involved in outreach activities.

7. In its comments, the complainant pointed to a recent request for public access to documents which included correspondence from 2023 between the RSB Chair and a Brussels-based think tank interested in regulation and innovation. In its reply of 8 September 2023, the Commission informed the Ombudsman that the RSB Secretariat has sent standardised replies on behalf of the RSB since December 2021. Could the Commission please comment on the above-mentioned correspondence between the RSB Chair and the think-tank?

The Commission said that the correspondence between the RSB chair and the think-tank was related to an invitation to lunch and that the chair replied out of courtesy. The invitation was politely declined, and the chair indicated that they could not discuss individual files with the interest representative.

The Commission said that the reason for the decision at the end of 2021 to have RSB-member correspondence handled by the RSB secretariat was to relieve the RSB members from the burden of replying to interest representatives, not that it was seen as a form of protection from external pressures. The secretariat has since sent standardised replies on behalf of the RSB members.

The Commission representatives did not identify a risk in the attempts by interest representatives to try to influence the members of the RSB during the latter’s outreach activities. As the RSB is tasked with conducting reviews of impact assessments, there is no necessity to protect it by putting any kind of firewall around its members. The Commission sees more value in RSB members explaining their role to stakeholders.

The Commission representatives stated that the RSB does not take into account unsolicited material submitted by external stakeholders on individual files and/or related policy areas. Such material is usually provided also to the relevant Commission service during the preparation of the legislative proposal and is incorporated into the supporting material provided by those services to the RSB.

8. Have there been any other cases in which the RSB Chair or members corresponded directly with interest representatives after December 2021?

The Commission confirmed there had been no other instances of this happening since December 2021.

  III. Extensions of RSB members’ periods of appointment

9. RSB members serve a three year-period that is non-renewable, save for an extension of one year in exceptional circumstances. In its reply to the Ombudsman of 8 September 2023, the Commission indicated that one RSB member served for more than six years, albeit on different contracts. What is the purpose of the non-renewable three year appointment of RSB members (which may exceptionally be extended by up to one year)?[3]

The Commission representatives said that the reason behind this temporal limitation is that the work of the RSB is intense and that renewed expertise of its Members is positive. Therefore RSB members are appointed for a non-renewable period of three years. The RSB has a quorum for its operations (currently at five members, previously at four). Because of this, and because recruitment procedures can take time, there have been cases when an extension of the mandate of an RSB member was necessary to maintain business continuity. Moreover, RSB members are not appointed at the same point in time, but in a staggered fashion. Therefore, RSB members’ mandates end at different moments. As a result, RSB’s composition is never renewed all at once.

10. Does the Commission consider the case of the RSB member who served for more than six years contradictory to its rules that include a limit of four years?

The Commission representatives said that this case had happened at a critical moment for the RSB, when it was being restructured. The Commission Decision of 2019 removed the post of advisor, which had the effect that all members were now appointed at the level of principal advisors (apart from the Chair and the Deputy Chair, respectively Director General and Director). The Commission said the RSB had a non-hierarchical, cooperative way of working.

Furthermore, the Commission said that the RSB member in question had applied for a vacant post as principal advisor that had been published. According to the Commission they had been eligible to do so, despite having served already for three years in the role as an advisor within the RSB at the time of application. Therefore, the subsequent appointment involved a different type of function (resulting in a different contract and grade). The RSB member was successful in the selection procedure. They retained this position until their retirement, two years and six months later. The Commission representatives stated that this practice was in line with the Commission decision on the RSB, because the member was qualified (in terms of experience and expertise) and their participation ensured the continuity of the RSB. They also stressed that this person had been reappointed after a selection procedure, and not extended.

The Ombudsman inquiry team asked whether, it was possible under the terms of the current RSB decision for a principal advisor to be appointed as deputy chair and then subsequently a chair of the RSB at the end of each mandate, thereby serving in total a period far in excess of three, or the exceptional four, years. The Commission representatives agreed that this is not explicitly excluded, but rather improbable and that the situation of the RSB member in question was exceptional and would not happen again.

IV. Expertise of RSB members

11. According to the Commission’s Better Regulation guidelines, impact assessments are required for Commission initiatives that are likely to have significant economic, environmental or social impacts or which entail significant spending, and where the Commission has a choice of policy options. The Commission replied to the Ombudsman that RSB members are “recruited specifically for their knowledge of Better Regulation and their analytical skills and abilities”.

The standards under the Better Regulation guidelines include matters of macroeconomics, microeconomics, social policy and environment policy. The complainant implies that there is a risk of bias when (most) RSB members have a background in economics, and not in social or environmental policy. Could the Commission please comment on this concern?

The Commission representatives said that RSB members are recruited based on their analytical skills not based on particular sectoral expertise. The Commission explained that the board members need to possess good analytical skills and apply a broad range of tools to conduct their tasks. These tasks include, among others, climate consistency checks and competitiveness checks. Notwithstanding the terms of the Commission’s Communication, they clarified that RSB members are not expected to be experts in all areas. Instead, it is sufficient that the necessary competences are reflected in the RSB as a whole, and not that each member has all of those competences individually.

The representatives stated that the background of members is very varied and rich. RSB members change regularly and new RSB members bring a new set of expertise. The Commission representative stated that there is no actual bias towards economic backgrounds as it is not the only competence needed to be appointed as a RSB member.

Follow-up

The Commission representatives agreed to provide the inquiries team with a copy of the most up to date template of the Declarations of Interest form following the meeting.

Conclusion of the inspection meeting

The inquiry team thanked the Commission representatives for their time and for the explanations provided, and the meeting ended.

 

Brussels, 19/4/2024

Jennifer King                                                                                                                    Koen Roovers

Legal Expert                                                                                                                     Inquiries Officer

 

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

[2] DOI are completed and signed by external candidates only. Commission officials on the RSB are subject to the Staff Regulations which includes provisions on avoiding conflicts of interest.

[3] The Commission’s Decision on an independent Regulatory Scrutiny Board of 23 January 2020, see Article 3(4): https://commission.europa.eu/system/files/2020-01/rsb_decision_23_01_2020_en.pdf.