Background to the complaint

1. The EU Transparency Register was set up to allow the public to follow the activities of interest representatives and be aware of their potential influence on EU policies and decision-making. The EU institutions rely on the Register when engaging with stakeholders. The Register is an online database jointly run by the European Parliament, the Council of the European Union and the European Commission, on the basis of an interinstitutional agreement (IIA).[1] Interest representatives are invited to register and to provide information on their organisation and the interests pursued. Each institution has rules in place that make registration a precondition for carrying out certain interest representation activities. In addition, all registrants must observe a code of conduct.[2]

2. The Register is managed by a joint Secretariat, made up of officials from each of the three institutions, which monitors the information provided and can investigate cases of alleged non-observance of the code of conduct by registrants.

3. In this case, the complainant, a consumer organisation, made two complaints to the Secretariat of the Transparency Register regarding the alleged non-observance of the code of conduct by two registrants, a consultancy firm and an association that advocates against the nutriscore labelling system on food products. The complainant argued that both entities failed to disclose their links with the food industry and provided misleading information about the relationship between them, the interests they represent and the sources of their funding.

4. More specifically, the complainant argued that notwithstanding the fact that the founder and managing director of the consultancy is also the founder of the association, the two entities are not linked or associated in the Transparency Register. Moreover, the consultancy did not disclose in the Register its links with the food industry although it previously represented clients in this sector and appears to be still active in this field. The complainant further noted that the association did not disclose any information on the Register about its members, sponsors and partners. It was thus concerned that the consultancy disguised its use of the association to defend the interests of its clients regarding food labelling.

5. The complainant further alleged that employees of the consultancy misused their accreditation to access the Parliament’s premises on behalf of the association and that a policy adviser of the consultancy attended a food-related event organised by Parliament registering themselves as self-employed rather than as employees of the consultancy.

6. The Secretariat opened two investigations into the complaints. This resulted in the consultancy clarifying that it had no clients with interests in food policy and that the employee who attended Parliament’s event was an independent, self-employed advisor of the consultancy, and had thus accurately registered her employment status for the event. For its part, the association informed the Secretariat that it does not have a budget, as it is managed pro bono by its founder. It also has no members or affiliates.

7. The Secretariat found that both entities had given satisfactory explanations and had updated the information provided in their registrations. It closed the investigations and informed the complainant accordingly.

8. Dissatisfied with how the Secretariat carried out its investigations, the complainant turned to the Ombudsman in March 2023.

The inquiry

9. The Ombudsman opened an inquiry into how the Secretariat of the Transparency Register handled the complaints and assessed the information provided on the Register by the entities concerned.

10. The Ombudsman inquiry team inspected the file of both complaints to the Secretariat, including the reports and reasoned opinions adopted in relation to the investigations, as well as correspondence between the complainant, the Secretariat and the registrants.

11. In June 2023, the Ombudsman inquiry team met with the representatives of the Secretariat to obtain further clarifications on how it conducted its investigations into both complaints.[3] The Ombudsman shared the meeting report with the complainant and the complainant provided comments.

Arguments presented to the Ombudsman

By the Secretariat of the Transparency Register

12. During the meeting with the Ombudsman inquiry team, the Secretariat stated that it had followed all the steps of its complaint procedure and that the registrants concerned had cooperated in a constructive manner and updated the information in the Register.

13. The Secretariat also explained that, in the context of its investigations, it had asked the registrants for additional information and clarifications, including information on the membership of the association. The association explained that it had no members and provided a link to its online manifesto. The Secretariat considered that the link was not relevant for the investigation.

14. Regarding the relationship between the two entities, the Secretariat acknowledged that registrants have to provide information on their membership and affiliation. However, there is no strict legal definition of what ‘affiliation’ is. The Secretariat took the view that affiliation could not be construed in terms of individual membership, but only in terms of a relationship between entities, for example, if a company is a member of a trade union, or if an association is part of a broader umbrella association. Therefore, the Secretariat considered that if an individual is a member or an employee of two entities, the two entities cannot be considered as affiliated entities for the purposes of the Register. In the case at hand, even though the head of the consultancy is also the founder of the association, the Secretariat did not consider them ‘affiliated’ entities. The Secretariat noted that, in any case, the fact that the same individual manages both entities is visible in the Register when searching for the individual in question. 

15. The Secretariat further clarified that, regarding the participation of an employee of the consultancy in an event organised by Parliament and the potential misuse of accreditation to Parliament by the consultancy, both matters fall outside the activities covered by the Transparency Register. The Secretariat explained that the mere participation by an interest representative in events organised by Parliament does not require registration in the Transparency Register as it considers that such participation generally does not aim to influence EU policies or the decision-making processes of EU institutions. Regarding accreditation, the Secretariat explained that it was rather a matter of how Parliament gives accreditation to entities and did not fall under the code of conduct.

By the complainant

16. The complainant argued that the membership of the association was an essential element of its complaint and that the Secretariat should have investigated this aspect further in order to assess the possible links between both entities.

17. The complainant also considered that the Secretariat had relied on a narrow definition of ‘affiliation’, which goes against the spirit and objective of the Transparency Register. It argued that, in cases where the same individual manages both entities, they should be considered as ‘affiliated’ entities and this information should be disclosed in the Register.

18. The complainant also considered that, regarding the event at Parliament, contrary to what the Secretariat claims, registrants are required, in their relations with EU institutions, to identify themselves and the entity they work for or represent, and there is no distinction in relation to the type of event organised.

The Ombudsman's assessment

19. The Transparency Register is of particular importance when it comes to ensuring a transparent and ethical EU administration and maintaining the trust of EU citizens in the EU decision-making process. The Register allows the public to monitor the activities of interest representatives who seek to influence EU legislation and policies. It is thus of primary importance that the information provided by registrants is “complete, accurate and not misleading”, as required by the code of conduct,[4] and that the Secretariat carries out meaningful and thorough investigations of complaints into alleged non-observance of the code of conduct. The Ombudsman’s inquiry into this case sought to assess whether the Secretariat conducted meaningful investigations.

20. In this case, the Secretariat opened two investigations into the alleged non-observance by the two registrants of the code of conduct. It provided the registrants with copies of the complaints and asked them for additional information and clarifications regarding certain aspects of the complaints. The Secretariat assessed the replies it received and, based on that assessment, asked the registrants to update the information in the Register. As the Secretariat considered that the registrants had cooperated in a constructive manner and updated the information in the register, it closed the investigations.

21. Based on the inspection of the files, the Ombudsman considers that the clarifications provided by the registrants in this case should have raised concerns, which, in turn, should have triggered the Secretariat to investigate further.[5] In particular, while the association declared that it had neither members nor affiliates, it mentioned that other entities provided ‘assistance’ to it on an ad-hoc basis and referred to the signatories of its manifesto, without providing information on the individuals and entities involved, nor whether their involvement concerned activities covered by the Transparency Register. The Secretariat did not seek any further information to clarify the ‘assistance’ that ‘other entities’ provided to the association. Rather, it considered that the link to the manifesto was not relevant to its investigation. In view of this, the Ombudsman finds that the Secretariat carried out only a limited assessment of the replies received from the two registrants.

22. Moreover, the Secretariat considered that the two registrants in question were not affiliated despite being managed by the same individual. It explained that it considers entities as being affiliated only in terms of links between two legal persons or natural persons registered as self-employed, and not where there is a link at an individual level (by a member or an employee) between entities.

23. While registrants are clearly required to provide information on their “members and/or affiliation with relevant networks and associations”,[6] there is no definition of affiliation in the IIA or in the guidelines for applicants and registrants, which provide only limited clarification in this regard.[7] In the absence of clear guidance, it is necessary to look at the purpose of the Transparency Register, which aims to allow the public to monitor interest representatives who seek to influence EU legislation and policies.[8] This involves providing the public with information on “what interests are being represented at EU level, by whom and on whose behalf”.[9] Affiliation should thus be understood in light of the need to ensure public scrutiny, so that the public is provided with all relevant information to allow it to adequately monitor the influence of interest representatives on EU policies and decision-making. In line with the underlying rationale of the Register, the notion of ‘affiliation’ should be construed broadly to cover all situations where registrants have a clear and relevant relationship with another entity

24. It is undisputed that the entities concerned in this case are founded and managed by the same individual and engage in lobbying activities towards the EU institutions in the same area of interest.[10] There is thus a clear link between both entities, which should have been reflected in the Register.

25. In light of the above, the Ombudsman agrees with the complainant that the Secretariat applied a narrow definition of ‘affiliation’, which is not in line with the spirit and objective of the Transparency Register. She also considers that the investigations conducted by the Secretariat were too limited, as the clarifications provided by the registrants in this case should have triggered further inquiries. It is precisely because the Secretariat does not have the means to monitor all the information provided by registrants that it should ensure that it conducts meaningful and thorough investigations when it receives complaints into alleged non-observance of the code of conduct. This was not the case here.

26. Regarding the alleged abuse of accredited access to Parliament, the Ombudsman first notes that the Secretariat did not address this issue in its replies to the complainant as part of its investigation. It was only during the meeting with the Ombudsman inquiry team that it explained that this aspect is outside the scope of the code of conduct and rather concerns how Parliament issues accreditation.

27. The Ombudsman notes that, although registrants submit their accreditation request through the Transparency Register portal, it is for Parliament to decide whether to issue such accreditation, under its own rules, and to ensure compliance with these rules.[11] Nevertheless, under the code of conduct, registrants are required to “respect, and avoid obstructing, the specific access and security rules and arrangements established by the signatory institutions.”[12] This implies that, in the context of activities covered by the Register, the Secretariat can investigate alleged disrespect or obstruction of specific access and security rules. The Secretariat failed to make this distinction and to assess the complainant’s allegations within the limits of activities covered by the Transparency Register.

28. Taken together, the Ombudsman finds that the shortcomings identified amount to maladministration. However, as the association is no longer on the Transparency Register, she finds that a recommendation to conduct a new investigation into the two complaints lodged by the complainant would not serve any useful purpose. Rather, the Ombudsman will make suggestions based on the above findings.

29. Regarding the alleged misrepresentation of a policy advisor of the consultancy as “self-employed” during an event organised by Parliament, the Ombudsman notes that the Secretariat provided inconsistent information to the complainant. It first clarified the employment status of the policy advisor to the complainant, only to add, during the meeting with the inquiry team, that this element of the complaint did not fall within the activities covered by the Transparency Register, as mere participation in an event organised by Parliament does not require registration.

30. While the Ombudsman regrets that this was not clearly explained to the complainant in the context of the investigations carried out by the Secretariat, she finds that the Secretariat’s position is in line with the new rules adopted by Parliament in this regard.[13]

31. In light of the above, the Ombudsman closes the case with four suggestions. She further notes that the European Court of Auditors is currently auditing the Transparency Register and preparing a special report, for which she awaits its conclusions. She will continue, in this context, to monitor the role of the Secretariat as regards the monitoring and enforcement of the Transparency Register.

Conclusion

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

There was maladministration in how the Secretariat of the Transparency Register carried out the investigations into the two complaints.

The complainant and the Secretariat of the Transparency Register will be informed of this decision.

Suggestions

The Secretariat should ensure the following when it carries out investigations into complaints concerning alleged breaches of the code of conduct:

(a) that it carries out a thorough and meaningful investigation, including  seeking additional information from registrants;

(b) in case of doubt as to the veracity of the information provided, it should seek to verify the information from independent and/or publicly available sources;

(c) that it clarifies its guidance concerning the concept of ‘affiliates’ in order to ensure that it captures all elements needed to enable public scrutiny of registrants’ activities;

(d) where elements of the complaint do not fall within the remit of the Secretariat’s investigative powers, this should be clearly communicated to the complainant with explanations provided.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 07/02/2024

 

[1] 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: http://data.europa.eu/eli/agree_interinstit/2021/611/oj; Transparency Register available here: https://ec.europa.eu/transparencyregister/public/homePage.do?redir=false&locale=en

[2] Set out in Annex I of the Interinstitutional Agreement.

[3] meeting report available here : https://www.ombudsman.europa.eu/en/doc/inspection-report/en/172516

[4] point (f) of Annex 1 of the IIA

[5] Point 3.3 of Annex III of the IIA says that “[t]he Secretariat shall take into account any reasoned response received under point 3.2, gather any relevant information, and draft a report on its findings.” (emphasis added).

[6] point (i) of Annex II of the IIA

[7] The guidelines add that “[a]ny relevant information about subsidiaries, affiliates or similar (e.g. carrying out activities covered by the Register and related costs) should be included here [field ‘Membership and affiliation’]”, see Transparency Register Guidelines for Applicants and Registrants, 1 September 2021, p. 20, available here: https://ec.europa.eu/transparencyregister/public/staticPage/displayStaticPage.do?locale=en&reference=GUIDELINES.

[8] Recital 5 of the IIA

[9] See section of the Transparency Register on ‘What is the Transparency Register?’ (accessed 30.11.2023)

https://ec.europa.eu/transparencyregister/public/staticPage/displayStaticPage.do;TRPUBLIC-ID-prod=SSEgsIQMHdolsaCeYsMQemV527fy9syvTG7JRfSmSk27YAXLV5_F!918671259?locale=en&reference=WHY_TRANSPARENCY_REGISTER

[10] Both entities identified on the Register as a field of interest “food and health” and “food safety”.

[11] the Implementing provisions in respect of the rules governing passes granting access to parliament premises, adopted by the Directorate General for Security and Safety of the Parliament on 25 November 2016

[12] point (p) of Annex I of the IIA.

[13] Rules governing the participation of interest representatives in events held on Parliament’s premises, Bureau decision of 12 June 2023: https://www.europarl.europa.eu/RegData/publications/reg/2023/750.730BUR/EP-PE_REG(2023)750.730BUR_EN.pdf