# Decision on how the European Commission dealt with a request for public access to documents concerning the move of a former staff member to the private sector (case 910/2023/SF)
- Author: European Ombudsman
- Date: 2024-12-16T10:00+01:00[Europe/Paris]
- [URL](https://www.ombudsman.europa.eu/en/decision/en/197144)
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> The complainant sought public access to documents concerning the applications by a specific staff member of the European Commission to take up posts in the private sector. The Commission replied that it could neither confirm nor deny whether it held any documents that would fall within the scope of the complainant's request, as even revealing their (non-)existence would amount to a transfer of personal data.
> 
> The Ombudsman inquiry team met with representatives from the Commission to clarify how it dealt with the complainant's public access request. The Ombudsman noted that the Commission's strict approach of refusing even to identify relevant documents risks leading to the impression that the rules set out in the EU Staff Regulations have not been followed.
> 
> The Ombudsman further noted that, in accordance with EU case-law, potential conflicts of interest can be deemed a public interest that would outweigh data protection interests. The Ombudsman considered that, given the staff member's experience at various levels within the Commission, the new post might lead to a conflict of interest or the perception thereof. The Ombudsman therefore proposed as a solution that the Commission reconsider its position on the complainant's public access request.
> 
> The Commission did not accept the Ombudsman's proposal for a solution. It maintained its view that it could neither confirm nor deny the existence of the requested documents.
> 
> The Ombudsman regrets the fact that the Commission insists on maintaining secrecy around this revolving door move. In this case, more transparency would have allowed the complainant to verify whether the Commission and the former staff member followed the rules applying to such staff moves. The Ombudsman notes that the General Court recently confirmed that EU citizens can be sure that there is no conflict of interest only if they have access to the names and the institutional roles. However, as the Commission has reassessed the matter following the Ombudsman's solution proposal, the Ombudsman sees no useful purpose in continuing this inquiry.
> 
Background to the complaint
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**1.**When staff members leave the EU administration to take up positions in the private sector, they are described as going through the 'revolving door'. While EU staff members have a fundamental right to engage in work after they leave the institutions, this must be balanced against the risks that such moves may pose to the legitimate interest of the institutions.

**2.** The EU administration has specific rules in place to govern such moves from the public to the private sector. These rules are set out in the EU Staff Regulations[\[1\]](#_ftn1){#_ftnref1}.

**3.**Where staff members intend to take up posts within two years of leaving the EU administration, or while on unpaid leave, they must request authorisation to do so. When there is a risk of a conflict of interest, the EU Staff Regulations provide that the institution may place conditions or restrictions on the exercise of certain activities or prohibit them altogether.

**4.** In October 2022, the complainant, a civil society organisation, requested public access[\[2\]](#_ftn2){#_ftnref2} to documents relating to certain applications under the EU Staff Regulations[\[3\]](#_ftn3){#_ftnref3} that were made by a former staff member. In particular, the complainant requested access to all job titles with dates of the positions held and to all documents concerning the authorisation of any new role(s).

**5.** The Commission replied that it could neither confirm nor deny that documents falling within the scope of the complainant's request existed. According to the Commission, the documents' identification was prevented by the EU data protection rules[\[4\]](#_ftn4){#_ftnref4} (Regulation 2018/1725).

**6.**The complainant asked the Commission to review its decision (by making a 'confirmatory application'). When the Commission maintained its position that it could neither confirm nor deny that documents existed, the complainant turned to the Ombudsman.

The inquiry
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**7.**The Ombudsman opened an inquiry and the inquiry team met with the relevant representatives of the Commission to discuss the case.

**8.**During the meeting, the Commission stated that, when handling the complainant's public access request, it was aware whether the requested documents existed or not. However, it did not consider it appropriate, should the requested documents exist, to identify them. This is because, should they exist, they would contain personal data throughout, and even revealing their existence and proceeding to identifying them would amount to a transfer of personal data.

**9.**The Commission considered that the complainant had not met the requirement under the EU data protection rules for such a transfer of personal data. In particular, the complainant had not demonstrated a necessity of having the personal data transferred for a specific purpose in the public interest. The Commission noted that it did not inform the former staff member about the access request, nor asked for their consent to disclose their personal data, as this is not required under Regulation 2018/1725.

**10.**The Commission stated that it applies different levels of transparency when handling public access requests related to staff members, depending on whether the request concerns staff members in senior management positions, or below. Therefore, when the complainant submitted similar public access requests that concerned former staff members who held senior management positions or were part of a Commissioner's private office (cabinet), the Commission provided a summary of those former staff members' activities.

**11.** Commenting on the meeting report[\[5\]](#_ftn5){#_ftnref5}, the complainant stated that it clearly outlined the public interest in disclosing the requested documents and that the Commission had failed to consider its arguments.

**12.**In particular, the complainant noted that, according to media reports, the former staff member passed through the revolving door several times, always working in the same area of expertise. At one point, the former staff member even joined the private office (cabinet) of a Commissioner. The complainant further noted that while there is no public information on the exact work of the former staff member, their career history points to a strong overlap between their work at the Commission and in the private sector. Furthermore, the former staff member might have had access to confidential information that they could now use for the benefit of their new employer. Thus, the complainant took the view that there is a risk of a conflict of interest.

**13.**The complainant further noted that the former staff member themselves publicly announced their move from the Commission to the private sector. It is therefore not readily clear how disclosure of the requested documents would undermine the legitimate interests of the former staff member.

**14.** The complainant furthermore stated that the Commission itself acknowledged the importance of access to document requests in monitoring the Commission's procedures for dealing with revolving door issues.[\[6\]](#_ftn6){#_ftnref6}

The Ombudsman's proposal for a solution
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**15.**The Ombudsman noted that staff members have a legal obligation to ask permission before taking up an outside activity within two years of leaving the EU administration, or while on unpaid leave. It is therefore evident that documents must exist whenever a Commission staff member has taken up an activity in the above circumstances.

**16.**The Ombudsman thus considered that the Commission's strict approach of refusing even to confirm or deny the existence of relevant documents risks leading to the impression that the rules set out in the EU Staff Regulations have not been followed.

**17.** Furthermore, the Ombudsman noted that, according to EU case-law[\[7\]](#_ftn7){#_ftnref7}, potential conflicts of interest can be deemed a public interest that would outweigh data protection interests. In this case, the data subject worked for over ten years at various levels in one specific field in the Commission and even served as a member of a Commissioner's cabinet. In view of this, the Ombudsman considered that working in the same field in the private sector might lead to a conflict of interest or the perception thereof. She thus considered that there is a public interest in knowing whether the risk of a conflict of interest has been properly assessed and handled.

**18.**Moreover, the Ombudsman noted that both, the former staff member themselves and their new employer, had made public the move and the former staff member's previous roles. The Ombudsman thus took the view that there was no reason to consider that the former staff member's legitimate interests would be harmed by identifying and disclosing potential documents. On the contrary, identifying and disclosing potential documents would bring more transparency around revolving door situations.

**19.**Furthermore, the Ombudsman considered that it would be good administrative practice to inform (former) staff members of such public access requests, in particular where staff members have previously held senior management positions or were part of a Commissioner's cabinet, and to provide them with the opportunity to consent or object to the disclosure of the requested documents or a summary thereof.

**20.** The Ombudsman therefore proposed as a solution that **the Commission reconsider its position on the complainant's access request.**

**21.**The Commission did not accept the Ombudsman's proposal for a solution. It reiterated that its refusal to confirm or deny the existence of relevant documents is the result of the application of the EU data protection rules and cannot be seen as a confirmation of non-compliance with the EU Staff Regulations. Rather, the wording that the Commission uses, when replying to such requests, is centred on the lack of legal grounds to proceed to the identification of the requested documents.

**22.**The Commission considered that the case-law to which the Ombudsman referred in her proposal for a solution does not seem to set a common uniform standard for determining whether the verification of an institution's activities, which aim to ensure the avoidance of conflicts of interest, is indeed a specific purpose in the public interest for which it would be necessary to transmit personal data. The Commission further considered that there are crucial differences in the personal data and the scope of the court case referred to by the Ombudsman. Notably, the court case concerned the voting behaviour of Members of the European Parliament with an active public mandate in relation to a measure that may concern their individual financial benefits and which may also have implications for the EU budget. This case is different. There is a specific set of internal rules that provide rigorous material and temporal provisions concerning the need for prior permission, prohibited activities and allow for disciplinary measures. Furthermore, the former staff member is not a politically elected representative nor are they part of the senior management.

**23.** The Commission reiterated that it applies different levels of transparency depending on whether the request concerns staff members in senior management positions or below. The Commission considered that, in doing so, it follows guidance of the European Data Protection Supervisor[\[8\]](#_ftn8){#_ftnref8}.

**24.**The Commission maintained its view that the complainant's arguments are insufficient to establish that it was necessary to have the personal data transmitted for a specific purpose in the public interest. It stated that the arguments must go beyond mere references to media reports and abstract, unsubstantiated assertions such as that there is a clear public interest and that there is a clear risk of a conflict of interest.

The Ombudsman's assessment after the proposal for a solution
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**25.**Transparency around revolving door situations and the restrictions that the Commission imposes to mitigate risks of conflict of interest can improve the Commission's ability to monitor compliance with its decisions, and can help deter non-compliant behaviour from those that are subject to conditional authorisations. It is also essential for reassuring the public that the Commission has dealt with the matter in a sufficiently thorough way.

**26.**The former staff member in question had an extensive career within the Commission. They worked for over ten years at various levels in one particular field of expertise. Following their move to the private sector, they now hold a very senior position while continuing to work in the same field of expertise. The Ombudsman thus maintains her view that there is a public interest in knowing whether the risk of a conflict of interest has been properly assessed and handled.

**27.**Furthermore, the former staff member and their new employer published themselves the move and the expertise that the staff member had gained while working for the Commission. They presented the former staff member as a highly experienced practitioner with all the knowledge that comes with being one of the leading specialists in this field within the EU. The Ombudsman therefore still considers that there is no reason to consider that the legitimate interests of the former staff member would be harmed by identifying whether the relevant applications under the EU Staff Regulations were made and conflicts of interests were addressed.

**28.**The Ombudsman thus maintains her view that the Commission's overly strict approach in this case could generate the impression that the rules that are set out in the EU Staff Regulations and that govern such moves from the public to the private sector were not followed.

**29.**The Ombudsman thus urges the Commission to exercise judgment and to consider the specific case when handling public access requests concerning personal data of former staff members. While the last position that the former staff member in question held, before moving to the private sector, was not in senior management, the staff member was, at some point, a member of a Commissioner's cabinet. She further considers that it would be in line with good administrative practice to consult the former staff member in question to obtain their views on disclosing the documents or a summary thereof.

**30.** The General Court[\[9\]](#_ftn9){#_ftnref9} recently dealt with the question of whether enabling citizens to assess if public servants are not in a conflict-of-interest situation may constitute a necessity to have personal data transmitted. The General Court confirmed that it *"was only by having in their possession the surnames, forenames and professional or institutional roles* \[...\] *that the applicants could have ascertained that* \[the public servants\]*were not in a conflict-of-interest situation".* [***\[10\]***](#_ftn10){#_ftnref10} The General Court furthermore confirmed that in the absence of disclosure of the identity of the public servants, the specific purpose in the public interest that the applicants pursued, namely enabling EU citizens to be satisfied that there was no conflict of interest, cannot be achieved.[\[11\]](#_ftn11){#_ftnref11}

**31.**The Ombudsman is aware that this judgment was not yet available at the time that the Commission had to decide on the complainant's public access request. She trusts however that the Commission will apply this ruling when deciding on future similar requests.

**32.**As the Commission has reassessed its position on the complainant's access request following the Ombudsman's proposal for a solution and has come to the same conclusion as in its confirmatory decision, the Ombudsman sees no useful purpose in continuing this inquiry.

**33.**The Ombudsman regrets the fact that the Commission did not seize this opportunity to bring more transparency around revolving door situations and to allow the complainant to verify whether the Commission and the staff member had followed the applicable rules.

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

**As the Commission has reassessed its position on the complainant's access request following the Ombudsman's solution proposal and has come to the same conclusion as in its confirmatory decision, the Ombudsman sees no useful purpose in continuing this inquiry.**

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

Emily O'Reilly  
European Ombudsman

<br />

Strasbourg, 12/12/2024

[\[1\]](#_ftnref1){#_ftn1} Regulation No 31 (EEC) laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community (the Staff Regulations); <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A01962R0031-20140501>

[\[2\]](#_ftnref2){#_ftn2} Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents (Regulation 1049/2001); <https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32001R1049>

[\[3\]](#_ftnref3){#_ftn3} Applications under Articles 12B, 16 and 40 of the Staff Regulations.

[\[4\]](#_ftnref4){#_ftn4} Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (Regulation 2018/1725); <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32018R1725>

[\[5\]](#_ftnref5){#_ftn5} [https://www.ombudsman.europa.eu/doc/inspection-report/196383](/doc/inspection-report/196383)

[\[6\]](#_ftnref6){#_ftn6} See [https://www.ombudsman.europa.eu/en/doc/inspection-report/en/152861](/en/doc/inspection-report/en/152861)

[\[7\]](#_ftnref7){#_ftn7} Judgment of the General Court in case T-115/13, *Dennekamp v Parliament* , para 112; available at: [https://curia.europa.eu/juris/document/document.jsf?text=\&docid=165829\&pageIndex=0\&doclang=EN](https://curia.europa.eu/juris/document/document.jsf?text=&docid=165829&pageIndex=0&doclang=EN)

[\[8\]](#_ftnref8){#_ftn8} See <https://www.edps.europa.eu/sites/default/files/publication/05-07_bp_accesstodocuments_en.pdf>

[\[9\]](#_ftnref9){#_ftn9} Judgment of the General Court in Case T-761/21, *Curtois and Others v Commission¸* *https://curia.europa.eu/juris/document/document.jsf?text=\&docid=288382\&pageIndex=0\&doclang=EN\&mode=lst\&dir=\&occ=first\&part=1\&cid=10271152*

[\[10\]](#_ftnref10){#_ftn10} T-761/21, *Curtois and Others v Commission*, para 73

[\[11\]](#_ftnref11){#_ftn11} Ibid, para 84