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Décision dans l’affaire 1794/2019/OAM portant sur le refus de la Commission européenne de donner l’accès complet à des documents concernant un événement auquel ont participé des fonctionnaires de la Commission et un ancien chef d’unité de la Commission

L’affaire concernait le refus de la Commission européenne d’accorder un accès du public aux noms figurant dans des documents relatifs à un événement d’entreprise auquel ont participé des fonctionnaires de la Commission et un ancien chef d’unité de la Commission. Le plaignant, un journaliste, souhaitait avoir accès aux informations contenues dans ces documents afin de déterminer si l’ancien chef d’unité de la Commission, qui avait quitté la fonction publique européenne pour occuper un poste dans une entreprise multinationale, avait respecté l’obligation juridique qui lui incombait de ne pas faire pression sur ses anciens collègues.

Dans sa proposition de solution, la Médiatrice a demandé à la Commission de fournir au plaignant une copie des documents demandés sans masquer le nom de l’ancien chef d’unité de la Commission. La Commission a rejeté la proposition de la Médiatrice, soutenant que le plaignant n’avait fait allusion que de manière abstraite et générale à d’éventuels actes répréhensibles commis par un ancien membre du personnel et que de telles suspicions ne pouvaient pas justifier que des données à caractère personnel lui soient divulguées.

La Médiatrice a estimé que le refus de la Commission de divulguer les documents concernés sans occulter les données à caractère personnel en question constituait un cas de mauvaise administration. Dans une recommandation ultérieure à la Commission, la Médiatrice a rappelé son point de vue selon lequel les documents demandés devraient être divulgués sans que le nom de l’ancien chef d’unité soit occulté.

La Médiatrice déplore que la Commission n’ait pas suivi sa recommandation. Elle a souligné à de nombreuses reprises les difficultés rencontrées pour faire respecter les conditions liées aux situations de pantouflage des fonctionnaires. Il est fondamental de maintenir le plus haut niveau de transparence afin que les problèmes puissent être détectés et traités. Le fait que la Commission n’ait pas divulgué toutes les informations dans cette affaire ne contribuera pas à renforcer la confiance du public dans la gestion des situations de pantouflage par la Commission.

Background to the complaint

1. In July 2019, the complainant, a journalist, asked the Commission to receive public access[1] to invitations and other documents related to a corporate event organised by a multinational company in April 2019. This event had been attended by a number of Commission staff members and by a former Commission head of unit.

2. The Commission replied to the complainant in August 2019, granting full access to three documents and partial access to 18 documents, redacting all personal data.

3. The complainant asked the Commission to review its decision by making a so-called ‘confirmatory application’. The complainant stated that he was interested in the role played by the former Commission head of unit during that event. The complainant said that the former head of unit had taken up a position in the company hosting the event at issue and that he was investigating a potential conflict of interest of that person. The person had worked on issues of direct relevance to the multinational company when he was an EU civil servant. The complainant wanted to investigate whether the person had violated obligations as a former EU civil servant by engaging with former close Commission colleagues.

4. In September 2019, the Commission confirmed its initial decision, relying in particular on the need to protect the privacy and the integrity of an individual.[2] The Commission considered that the complainant had failed to establish a need as to why the personal data at issue should be transferred to him. The Commission further considered that there was a real and non-hypothetical risk that public disclosure of the personal data would harm the privacy of the persons concerned, who could become subject to “unsolicited external contacts”.

5. Dissatisfied with the Commission’s reply, the complainant turned to the Ombudsman. The Ombudsman inquired into the Commission’s refusal to disclose the name of the former head of unit contained in the documents. The Ombudsman’s inquiry team inspected the non-redacted versions of the requested documents.

The Ombudsman's proposal for a solution

6. The Ombudsman considered that the conditions for allowing the transmission of personal data from the controller (the Commission) to the recipient (the complainant) were met.[3] In particular, the complainant had demonstrated a need for the transfer of the personal data for a specific purpose that was in the public interest, namely to evaluate whether there was a possible conflict of interest and whether the Commission had respected its own ethics rules. The Ombudsman also considered that any interest the former head of unit may have in having his name redacted from the documents, could not be described as a ‘legitimate interest’. This was because the use of the name in the context of one document related directly to the issue of whether the former head of unit and the Commission in fact respected the restrictions on contacts between them.

7. The Ombudsman therefore proposed that the Commission should provide the complainant with a copy of the requested documents without redacting the name of the former head of unit.[4]

8. The Commission rejected the Ombudsman’s proposal for a solution, reiterating that the need put forward by the complainant was generic and arguing that it was its responsibility alone to scrutinise the activities of (former) Commission staff. The Commission also considered that the interests of the former head of unit were legitimate and could be undermined by disclosing his or her personal data.[5]

The Ombudsman's recommendation

9. The Ombudsman noted that the head of unit concerned had formerly occupied a management position at the Commission and had therefore had a certain level of seniority when working for the EU civil service. Thus, given that the person had then taken up a public affairs role in a company active in the same area of responsibilities that he worked in at the Commission, the Ombudsman took the view that the person must accept a certain amount of public scrutiny.

10. The Ombudsman also considered that the complainant had provided sufficient reasons for having the personal data of the former head of unit transferred. The Ombudsman also considered there were no more appropriate or less intrusive means to fulfil the purpose put forward by the complainant.

11. The Ombudsman therefore found that the Commission’s persistent refusal to provide public access to the requested documents without redacting the name of the former head of unit constituted maladministration. She thus made the following recommendation:[6]

The Commission should provide the complainant with a copy of the requested documents without redacting the name of the former Commission head of unit.[7]

12. The Commission rejected the Ombudsman’s recommendation and maintained its position that it cannot grant access to the name of the person concerned.[8]

13. The Commission reiterated that the evidence provided by the complainant setting out the necessity for having the data transmitted was insufficient to meet the strict legal test provided in the data protection rules[9]. The complainant did not demonstrate how the transmission was necessary to ensure adequate public scrutiny of the alleged conflict of interest and, more specifically, how this review would remedy the alleged inadequacies of the existing Commission scrutiny mechanism in this specific situation.

14. The Commission argued that, by disclosing the personal data, the former head of unit might risk serious reputational damage, since media scrutiny would draw conclusions only from the respective documents, rather than on the basis of an overall picture. The Commission also considered that the person concerned was not a public figure within the meaning employed by existing case law[10].

15. In his comments on the Commission’s reply, the complainant stressed that as a journalist he had a specific watchdog function of ensuring public scrutiny of issues such as conflicts of interest. He made his request as a public watchdog, exercising both his right of access to documents and his right to freedom of expression and information. In denying access to this information, the Commission was “creating barriers to the exercise of freedom of expression and information”.

16. The complainant also underlined that he considered the former Commission head of unit to be a well-known figure in a specific area of policy expertise, having had several public appearances as speaker at industry events. The person’s prominence in the specific area of expertise was the reason he had been hired by the private company. In the complainant’s view, it was precisely the person’s public role that deserved to be scrutinised.

The Ombudsman's assessment after the recommendation

17. The Ombudsman maintains her view that the Commission’s refusal to disclose the name of the former head of unit in the documents at issue was maladministration.

18. When staff members leave the EU civil service to take up positions in the private sector, leading to so-called ‘revolving door’ situations, concerns regarding the inappropriate exploitation of a former public service role often arise. This is a challenge affecting many public administrations. Although such moves can be perceived as a normal part of professional life, they might lead to situations of possible conflicts of interest. Public scrutiny in this area is not only reasonable but also necessary in a democratic society. Allowing for proper public scrutiny increases citizens’ trust in and the legitimacy of the public administration.[11]

19. In this case, the complainant provided specific evidence of an event which had been hosted by the former head of unit’s new employer and had been attended by the former head of unit and current Commission officials with whom he had worked in his former role. This situation was such as to create at least a perceived conflict of interest and to cast doubt on the effective enforcement of the rules to which EU civil servants are subject.

20. The aim of transmitting the data requested was thus to enable the complainant, and other EU citizens, to verify whether the rules set to avoid conflicts of interest were complied with. Ultimately, this public scrutiny can help ensure public trust in the EU administration, either by confirming that there was no evidence of a conflict of interest, or by facilitating public engagement with the public administration to help hold it to account.

21. The Ombudsman also considers that disclosure of the personal data at issue could have been in the former head of unit’s interest:  it could have helped dispel any doubts that had been raised concerning the individual’s integrity.

22. If disclosure had shown that those doubts were justified, the former head of unit’s interest in non-disclosure is arguably not legitimate.

23. As regards the Commission’s concerns that disclosure of the personal data would not have provided the public with the full picture of the situation, it could have chosen to provide the complainant with any additional information that it considers relevant to facilitate his drawing correct conclusions.

24. The Ombudsman has drawn attention, on many occasions, to the difficulties involved in enforcing the conditions attached to officials’ revolving doors moves. Assuring the highest level of transparency is fundamental so that problems can be identified and addressed. The Commission’s lack of full public disclosure in this case will not help in terms of public confidence in the Commission’s management of revolving door situations.

Conclusion

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

The European Commission’s refusal to provide the complainant with a copy of the requested documents without redacting the name of the former Commission head of unit, constituted maladministration.

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

 

Emily O'Reilly
European Ombudsman


Strasbourg, 11/12/2020

 

[1] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents:
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001R1049&from=EN.

[2] In accordance with Article 4(1)(b) of Regulation 1049/2001.

[3] According to Article 9(1)(b) of Regulation 2018/1725 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 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32018R1725

[4] Further information on the complaint and the full text of the Ombudsman's proposal for a solution is available at: https://www.ombudsman.europa.eu/en/solution/en/129972

[5] The full text of the Commission’s reply to the proposal for a solution is available at: https://www.ombudsman.europa.eu/en/correspondence/en/135762

[6] In accordance with Article 3(6) of the Statute of the European Ombudsman.

[7] Further information on the complaint and the full text of the Ombudsman's recommendations is available at: https://www.ombudsman.europa.eu/en/recommendation/en/129973

[8] The full text of the Commission’s reply to the recommendation  is available at: https://www.ombudsman.europa.eu/en/correspondence/en/135763

[9] Article 9(1)(b) of Regulation 2018/1725

[10] Judgment of the General Court of 15 July 2015 in case T-115/13, Dennekamp v Parliament, paragraphs 119-121. http://curia.europa.eu/juris/document/document.jsf?text=regulation+1049%252F2001&docid=165829&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=336586#ctx1

[11] See also the Decision of the European Ombudsman in her strategic inquiry OI/3/2017/NF on how the European Commission manages ‘revolving doors’ situations of its staff members, available at: https://www.ombudsman.europa.eu/en/decision/en/110608.