Remote inspection arrangements

Purpose of the inspection of documents

On 6 June 2024, the Ombudsman requested the following documents for inspection:

• Any documentation containing the Commission’s assessments of the conflicts of interest referred to in questions 2a and 4b, as set out in the annex to the letter of 10 November 2023.[1]
• Three files where experts did not declare any (potential) conflicts of interest, but the Commission identified an issue that it sought to clarify.
• The EDF Evaluation Methodology, setting out the rules and principles for the process of evaluating EDF proposals, as adopted by the responsible authorising officer.

On 27 June 2024, the Commission shared 15 confidential documents in response to the Ombudsman’s request.

Documents inspected 

The Commission submitted the following confidential documents for inspection:

• Document 1 is the cover page of the ‘Experts for EDF 2023 Calls’ of the Commission;
• Document 2 contains statistics on experts for EDF 2023 calls, which cover data until 2023, including on (potential) conflicts of interest;
• Documents 3 - 11 are internal notes containing the Commission’s assessments of declared potential conflicts of interest, dating from 2022 and 2023;
• Documents 12 and 13 are clarification requests of the Commission in cases where no conflicts of interest were declared, but where one was nonetheless identified;
• Document 14 is an example from EDIDP[2], the EDF’s predecessor programme,  which the Commission said shows that it had a similar practice to risks of conflicts then;
• Document 15 is the DG DEFIS’ internal methodology.

Background

Conflicts of interest of external experts appointed for the purposes of the 2023 EDF call are considered at five stages in the evaluation process. These include preliminary assessments that are carried out by the Commission based on the entries in a database with information on experts or by cross-checking the experts’ CVs with the proposals. The Commission also assesses potential conflicts of interest that experts declared.

Inspection

Statistical data

Document 1 is a screen shot concerning the 2023 call for experts under the EDF, which is open permanently.

Document 2 sets out certain statistical data for the 2023 EDF call.

Self-declared potential conflicts of interest

Documents 3 - 11 concern the assessments by the Commission of potential conflicts of interest that were declared by experts to the Commission, after receipt of the proposals for evaluation.[3]

These assessments include (some of) the following elements (the approach followed by the Commission is not fully consistent):

1. A summary of the facts of the declaration, including the experts’ professional activity that may conflict with the tasks assigned in the evaluation of proposals under the European Defence Fund;

2. The various possibilities of conflicting interests under a part entitled ‘Qualification’. The Commission distinguishes between:

(a) Direct conflicts of interest[4], which, when determined, automatically exclude experts of all or part of the proposals in a call. Direct conflicts of interest occur when an expert was: (i) involved in the preparation of the proposals, (ii) part of the management of the applicants, and/or (iii) employed or contracted by the applicants.[5]

(b) Indirect conflicts of interest^[6] which, when determined, also automatically exclude experts of all or part of the proposals in a call. Indirect conflicts of interest occur when an expert: (i) was involved in the preparation of any proposal submitted to the call, (ii) would benefit if any proposal submitted for the call is rejected or accepted, and/or (iii) has close family ties or close personal relationships with persons involved in the preparation of any proposals submitted to the call with a person who would benefit if such a proposal is accepted or rejected.

(c) Potential conflicts of interest[7], which, when determined, leave the Commission discretion as regards whether or not to take mitigating measures.

Potential conflicts of interest occur when an expert was: (i) employed by an entity involved in the proposals in the last three years, (ii) involved in a contract, grant, prize or membership of management structures, or research collaboration with an applicant, a linked third party or another third party involved in the action in the last three years, or (iii) any other situation that could cast doubt on the expert’s ability to participate in the evaluation impartially or that could reasonably appear to do so in the eyes of an outside party.

The experts can be excluded from the evaluation of all the proposals where the applicant concerned is a participant, or for the evaluation of all the proposals of the call.

3. The Commission’s assessment is concluded with the ‘position of the services’.

For calls under EDF 2021, the Commission concluded that one independent evaluation expert fell within (c)(ii) above (document 3), and three independent evaluation experts fell within (c)(iii) above (documents 4, 5, and 6). In these cases, the Commission recused the expert from the proposal to mitigate possible challenging views and to preserve the reputational integrity of the evaluation.

For calls under EDF 2022, the Commission concluded that one independent evaluation expert fell within (c)(ii) above (document 7), and four independent experts fell within (c)(iii) above (documents 8, 9, 10 and 11). It decided to exclude the experts from the evaluation of those proposals.

Identifying non-declared conflicts of interest and pro-actively mitigating risks

Documents 12 and 13 concern instances where the Commission, on its initiative, sought to clarify whether there was a conflict of interest. The cases at hand were identified by the Commission at the moment of creating a shortlist of experts that could evaluate the calls, based on their CVs.[8]

Document 14 was submitted by the Commission to show the Ombudsman that it took the same approach in EDIDP (see footnote 2), the EDF’s predecessor programme.

In all three cases, the expert concerned was excluded from the call, because the employer/organisation in question was an applicant in the call, which falls under one of the three categories of direct conflicts of interest.

Methodology

Document 15 is the DG DEFIS internal methodology. This document confirms the steps that the Commission set out when replying to the Ombudsman, to avoid conflicts of interest in the evaluation of EDF proposals.

Brussels, 25 November 2024

Jennifer King                                                                                                                               Koen Roovers

Legal Expert                                                                                                                               Inquiries Officer

 

[1] See the Ombudsman’s letter, which is available here: https://www.ombudsman.europa.eu/en/opening-summary/en/177626, and the Commission reply of 8 April 2024, which is available here: https://www.ombudsman.europa.eu/en/doc/correspondence/en/185435.

[2] For more info on the European Defence Industrial Development Programme (EDIDP), see: https://defence-industry-space.ec.europa.eu/eu-defence-industry/european-defence-industrial-development-programme-edidp_en.

[3] These assessments happened during what the Commission referred to as ‘step 6’ in its reply of 8 April 2024, see: https://www.ombudsman.europa.eu/en/doc/correspondence/en/185435.

[4] See Article 2.1 point a) of the applicable code of conduct, available here: https://ec.europa.eu/research/participants/data/ref/h2020/experts_manual/h2020-experts-mono-contract_en.pdf.

[5] In exceptional circumstances, where there are no other experts with similar expertise available, experts found to be in direct conflict of interest may still participate in an evaluation but the remaining experts must be informed. An expert may be kept on as evaluator, when

• the expert works in a different department/laboratory/institute from the one participating in the call and

• the departments/laboratories/institutes within the organisation concerned operate with a high degree of autonomy and

• the participation is justified by the requirement to appoint the best available experts and by the limited size of the pool of qualified experts.

This step is detailed in the code of conduct that is included in the contract that experts sign, but not in the Commissions assessments of potential conflicts of interest.

[6] See Article 2.1 point b) of the applicable code of conduct.

[7] idem, at the end of Article 2.1.

[8] These exchanges happened during what the Commission referred to as ‘steps 3 and 4’ in its reply of 8 April 2024, see: https://www.ombudsman.europa.eu/en/doc/correspondence/en/185435.