Background to the complaint

1. The European Commission is responsible for ensuring that all EU Member States properly apply EU law. In its monitoring role, the Commission may investigate complaints (‘infringement complaints’) about alleged breaches of EU law by a Member State.[1]

2. In March 2022, the complainant, an organisation representing Polish farmers, lodged an infringement complaint alleging a breach of EU law by Poland. The complaint concerned a 2016 amendment to agricultural law, which the complainant alleged created an additional eligibility requirement for farmers to access direct payments under the Common Agricultural Policy. In the complainant’s view, this requirement unlawfully excluded some farmers from receiving EU financial support, and rendered EU funds an instrument of financial pressure against farmers with whom Polish authorities are in dispute. The complaint was assigned to the Commission’s Directorate-General for Agriculture and Rural Development (DG AGRI).

3. In August 2023, while the assessment of the infringement complaint was ongoing, the complainant became aware that one of the members of the Polish Parliament who proposed the 2016 legislation was the brother of the Commissioner for Agriculture. As the Commissioner for Agriculture is responsible for DG AGRI, the complainant raised concerns with the Commission that this could impact the impartial assessment of the infringement complaint. 

4. The complainant did not receive a reply to this letter in which he raised concerns about a potential conflict of interest.

5. In October 2023, the Commission notified the complainant of its intention to close the infringement complaint (by means of a ’pre-closure letter’) as it considered that the Polish legislation in question did not breach EU law.

6. Dissatisfied with the situation, the complainant turned to the Ombudsman on 3 November 2023.

The inquiry

7. The Ombudsman opened an inquiry into how the Commission dealt with the allegations of a conflict of interest in the context of its handling of the infringement complaint.

8. In the course of the inquiry, the Ombudsman asked the Commission to reply to the complainant’s concerns.[2] The Ombudsman inquiry team also inspected the Commission’s file regarding the infringement complaint and the conflict of interest letter, as well as internal exchanges between relevant parts of the Commission.[3]

Arguments presented to the Ombudsman

By the complainant

9. The complainant argued that the handling of the infringement complaint by DG AGRI was at odds with the obligation of impartiality under the Code of Conduct for the Members of the European Commission[4] and the Rules of Procedure of the Commission.[5]

10. More precisely, the complainant argued that the direct family link between the commissioner who is responsible for DG AGRI and one of the politicians who proposed the legislation assessed by that DG, constituted a conflict of interest. The complainant considered that it is impossible for a commissioner effectively to recuse himself from a file handled by his DG. Therefore, referring to the Code of Conduct for the Members of the European Commission,[6] the complainant asked that the assessment of the infringement complaint be reallocated to a department supervised by a different commissioner.

11. The complainant further took issue with how the Commission handled the letter in which the conflict of interest concerns were raised. Specifically, the complainant emphasised that the Commission had taken a substantive decision on the infringement complaint before deciding whether that complaint should be reassigned, and this despite the complainant’s explicit request that the decision-making process be suspended in the meantime.

12. Finally, the complainant expressed doubts as to whether the Commission had properly investigated the conflict of interest allegations, arguing that the Commission’s reply made no reference to evidence it had sent in support of the allegations.

By the Commission

13. In its reply to the complainant, the Commission referred to the Code of Conduct for the Members of the Commission, which states that personal interests include, but are not limited to, any potential benefit or advantage to commissioners themselves, their spouses, partners, or direct family members.[7] The Commission argued that although the Commissioner’s brother was among the members of the Polish Parliament who signed the legislative proposal, there was no indication that his involvement in the matter had gone beyond the normal role of a parliamentarian. The Commission stated that the question of the compatibility of Polish legislation with EU law is a legal matter that might affect the political interests of the Polish Parliament, a parliamentary group, or a political party, but not a personal interest of an individual member of the Polish Parliament. Based on this, the Commission considered that it could not identify any personal interest that would involve a potential benefit or advantage to the Commissioner or his brother.

14. In addition, the Commission argued that reassigning the infringement complaint to another department would not be possible, because DG AGRI is the only Commission department with the necessary knowledge and expertise to assess the complaint.

15. Finally, the Commission noted that the brother of the Commissioner for Agriculture was no longer a member of the Polish Parliament.

The Ombudsman’s assessment

16. In the performance of their duties, Commissioners must devote themselves fully to the general interest of the EU.[8] They must avoid any situation in which a personal interest may influence or may be perceived to influence the independent performance of their duties.[9] When such a situation arises, commissioners must recuse themselves from any discussion on the matter.[10]

17. To this end, the Ombudsman finds regrettable the delay by the Commission in assessing the conflict of interest allegations in this case, and in particular the fact that the Commission appears not to have taken any steps to suspend the decision-making process on the infringement complaint after the complainant raised concerns about a potential conflict of interest. The Ombudsman’s inquiry did not uncover any reasonable explanation for the delay. The Commission, moreover, took an important step in handling the infringement complaint, namely issuing a pre-closure letter, before having reached a conclusion on the conflict of interest allegations.

18. The Commission therefore failed to reassure the complainant that its concerns were being taken seriously and that its handling of the infringement complaint was beyond reproach. The Ombudsman will make a suggestion for improvement to prevent similar situations occurring in the future.

19. The Commission concluded its assessment of the conflict of interest allegations while the Ombudsman’s inquiry was ongoing, informing the complainant that it could not establish the existence of a personal interest. However, to reach that conclusion, the Commission assessed exclusively the personal interest that the brother of the Commissioner might have in the Polish legislation. In doing so, the Commission failed to establish whether the Commissioner himself may have a personal interest in how the Commission was handling the infringement complaint.

20. The brother of the Commissioner for Agriculture proposed the national law at issue in the infringement complaint. It is clear to the Ombudsman that this put the Commissioner in a conflict of interest situation - Article 2(6) of the Code of Conduct says that “a conflict of interest arises where a personal interest may influence the independent performance of their duties.” Considering that the Commissioner for Agriculture is responsible for the department dealing with that infringement complaint, this personal interest is of such a nature that it gives rise to legitimate concerns as to how it could influence or be perceived to influence the independent performance by the Commissioner of his duties.

21. For these reasons, the Ombudsman’s view is that the Commission’s assessment of the conflict of interest allegation was flawed. Instead of assessing only whether the Commissioner’s brother stood to gain from the legislation, the Commission should have assessed whether the Commissioner himself had a personal interest that may have influenced or be perceived to influence his ability to independently perform his duties in the context of the assessment of the infringement complaint in question. Had the Commission correctly assessed the allegation, it could have considered measures to address this.

22. While the Ombudsman accepts the Commission’s argument that DG AGRI is best placed to assess the complaint, it could nonetheless have put in place measures to limit the involvement of the Commissioner or his cabinet in the handling of the infringement complaint. For example, the Commissioner could have recused himself from any decision requiring his input or approval or that of his cabinet.[11]

23. The Ombudsman notes that no final decision has been taken on the infringement complaint in question.

24. Against this background, the Ombudsman considers that, to guarantee the impartiality and public perception of impartiality in how it handled the infringement complaint, the Commission should review its decision-making process on the infringement complaint under the supervision of another commissioner. She will make a suggestion to this end below.

Conclusion

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

While the Ombudsman has identified shortcomings in how the Commission handled the alleged conflict of interest in this case, she considers that no further inquiries are justified.

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

Suggestions for improvement

1. In future, the Commission should ensure that when there is an alleged conflict of interest with a commissioner, any decision-making process supervised directly or indirectly by the commissioner in question is suspended until the Commission has established whether there is a conflict of interest. The Commission should inform relevant Commission departments of the allegation in due time, so that they can review or suspend any relevant ongoing decision-making processes in the meantime. 

2. The Commission should review its decision-making on the infringement complaint at issue to verify that it was impartial and not vitiated by a conflict of interest or a perceived conflict of interest. That review should take place under the supervision of another commissioner, and its results should be communicated to the complainant. It should take place before any further steps are taken on the infringement complaint.  

The Ombudsman asks the Commission to report back on the actions it has taken following her suggestions for improvement within three months.

Emily O'Reilly
European Ombudsman

Strasbourg, 28/10/2024

 

[1] More information about infringement process is available at: https://commission.europa.eu/law/application-eu-law/implementing-eu-law/infringement-procedure_en

[2] Request for reply available at: https://www.ombudsman.europa.eu/en/opening-summary/en/177877

[3] Inspection request available at: https://www.ombudsman.europa.eu/en/doc/correspondence/en/186484

[4] Commission Decision 2018/C 65/06 on a Code of Conduct for the Members of the European Commission, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32018D0221(02)

[5] Rules of Procedure of the Commission C(2000) 3614 and in particular the Code of Good Administrative Behaviour for Staff of the European Commission in their Relations with the Public, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02000Q3614-20200423

[6] Article 2(6) and 4(4) of the Code of Conduct.

[7] Article 2(6) of the Code of Conduct.

[8] Article 2(1) of the Code of Conduct.

[9] Article 2(6) of the Code of Conduct.

[10] Article 4 of the Code of Conduct.

[11] Such as decisions to launch an EU Pilot, to start an infringement procedure, or to close the case under certain circumstances for instance.