Background to the initiative

1. The European Commission is responsible for planning, preparing and proposing new European policy and legislation. As such, commissioners participate in decision-making that, directly or indirectly, affects EU citizens, businesses and organisations. Commissioners’ independence must be beyond doubt, and they must behave with integrity and discretion throughout, and after the end of, their term of office.

2. Following two Ombudsman inquiries[1] and public criticism, the Commission improved its code of conduct for commissioners in 2018.[2] This revision included extending the scrutiny period during which former commissioners have to notify post-mandate activities to the Commission. While this was welcome, the Ombudsman identified a number of outstanding issues.[3]

3. In 2021, the Ombudsman wrote to the Commission to query one former commissioner obtaining authorisation to take up sixteen post-mandate activities[4], including starting a consultancy firm, during the scrutiny period.[5]

4. In 2022, the publication of internal documents from the US transportation conglomerate Uber (the ‘Uber Files’^[6]) gave rise to a number of concerns, one of which was that a former commissioner may have represented the interests of Uber during the 18-month notification period that applied under the code of conduct for commissioners in force at the time (the 2011 version^[7]). Before doing so, the Commission had made it clear to the former commissioner that it would not authorise her joining the company during the scrutiny period during which she was obliged to notify the professional activities in which she intended to engage.

5. In 2023, OLAF conducted an investigation into this matter. Based on the evidence collected, OLAF's investigation did not uphold the allegations of wrongdoing by the former commissioner in her relations with Uber while at the Commission or after her departure. Based on this conclusion, the Commission decided not to pursue the matter. A redacted version of OLAF’s report is public[8].

6. The issue of the former commissioner representing Uber generated significant public interest. In at least two EU Member States, national parliaments looked into the matter.^[9]

7. A new team of commissioners will shortly be voted into office and the Commission’s ethics framework will once again come under scrutiny. Commissioners who will be leaving office will be obliged to notify and obtain the approval of the Commisison if they intend to engage in certain types of activities during a period of two years after leaving office. More than ever, it is important that the public has trust in the ethics framework and its implementation.

The initiative

8. On 7 February 2024, the Ombudsman wrote to the Commission asking if it had taken steps to avoid publicly damaging allegations similar to those referred to above (paragraphs 4 and 6), for future outgoing commissioners, and in relation to how the Commission’s rules are applied. The Ombudsman specifically asked whether the Commission considered changing its practice of encouraging (former) commissioners to withdraw requests for authorisation that were subject to a negative ethics opinion, given the transparency deficit that results.

9. The Ombudsman received the reply of the Commission on 8 July 2024.[10]

Commission rules on post-mandate activities

10. The Commission replied by setting out the applicable legal framework, including the provision that former commissioners have the right to engage in work and to pursue a freely chosen occupation.[11] The exercise of this right after the end of their mandate is limited by the duty to behave with integrity and discretion as regards the acceptance of certain appointments or benefits.[12]

11. The Commission has clarified the obligations of commissioners in a code of conduct[13], which includes that:

• Former commissioners must give the Commission two months’ notice of their intention to engage in a professional activity, whether gainful or not, during the two years following their departure (three years for a former Commission President).
• The Commission examines such notifications to determine whether the intended activity is compatible with their obligations.
• If the activity is related to the former commissioner’s portfolio[14], or in case of doubt, the Commission consults its independent ethics committee[15].
• When the independent ethics committee considers issuing a negative opinion, the (former) commissioner has the possibility to be heard. At this stage, the (former) commissioner may withdraw the notification to stop the procedure.
• The independent ethics committee adopts an opinion, that can be positive, negative, or conditional. Also at this stage, the (former) commissioner can withdraw the notification to stop the procedure.
• The Commission adopts a compatibility decision.[16]

12.  The Commission’s compatibility decision, whether to authorise (with conditions) or refuse a notified post-mandate activity, and the related independent ethics committee’s opinions, are made public (personal data is redacted). Notifications made by former commissioners are not made public.

13. Any unpaid activity not linked to the activities of the European Union and which does not give rise to lobbying or advocacy vis-à-vis the Commission, does not need to be notified. This includes: (i) charitable or humanitarian activities; (ii) activities deriving from political, trade unionist and/or philosophical or religious convictions; (iii) cultural activities; (iv) the mere management of assets or holdings or personal or family fortune, in a private capacity; (v) or comparable activities.[17]

14. The Commission said in its reply that its current rules are fit for purpose and provide an appropriate level of transparency.

Information for commissioners

Reply of the Commission

15. The Commission said that it informs new members of the Commission, and the staff in their private offices (referred to as ‘cabinets’), about the ethical obligations of commissioners when they enter office. Continuous support and information are also offered to them throughout their mandate. Since 2019, commissioners must designate a cabinet staff member as their ethics and transparency contact point, and who will serve as an interlocutor between the administration and the commissioners and their cabinets in such matters.

16. Towards the end of the mandate, the Commission provides specific information about post mandate obligations to all commissioners, both in writing and in meetings.

17. On 15 February 2024, the Secretary-General of the Commission (SG) wrote to commissioners, reminding them of their post-mandate obligations, and cautioning them about exploratory contacts during their mandate concerning future activities. The SG said that exploratory contacts should be avoided as much as possible because they can give rise to an actual or perceived conflict of interest. When such contacts take place, commissioners must inform the President of the Commission and seek advice from the SG. Precautionary measures can be taken to mitigate any risks.

The Ombudsman's assessment

18. The communication referred to in paragraph 17 was made shortly after the Ombudsman launched this strategic initiative. It reminded commissioners of their obligations and cautioned them in particular about exploratory contacts during the mandate concerning future activities.

19. The Ombudsman agrees that exploratory contacts should be avoided as much as possible. Where such contacts occur, the Commission should take measures that mitigate any risks of conflicts of interest, whether real or perceived.

20. It is important that such exploratory contacts are also avoided by possible future employers, and the Ombudsman is aware that certain representative bodies of the private sector do not allow their members to give employment prospects to commissioners.[18]

21. The Ombudsman notes that the commissioners’ code of conduct does not yet address the matter of exploratory contacts in the context of post-mandate activities. The Commission should now update the commissioners’ code of conduct[19] to include its approach to exploratory contacts of commissioners with possible future employers. The Ombudsman will make a suggestion to this effect.

22. As the Ombudsman has previously argued in inquiries into the Commission’s handling of post-mandate activities of former commissioners, the manner in which the Commission applies the rules during the scrutiny period, is critical to ensure that the ethics framework is fit-for-purpose. The potential value of former commissioners to possible future employers is at its peak shortly after commissioners leave office, when their knowledge and contacts within the Commission are most relevant. Where the Commission considers that a notified activity poses risks that cannot be adequately mitigated by restrictions or when restrictions cannot be effectively monitored or enforced, it should forbid (former) commissioners from taking up such positions or activities after their departure for the duration of the scrutiny period.

Withdrawals of notifications

Reply of the Commission

23. When handling former commissioners’ authorisation requests for post-mandate professional activities, the Commission aims to strike a balance between former commissioners’ right to engage in work^[20] and their duty to behave with integrity and discretion as regards the acceptance of certain appointments or benefits after their mandate^[21].

24. The Commission referred to the possibility for former commissioners to be heard when the independent ethics committee considers issuing a negative opinion[22]. This has led to a number of withdrawn notifications for intended jobs by former commissioners. According to the Commission, such withdrawals lead to the approval procedure being closed, without any formal opinion of the independent ethics committee or Commission decision, as the procedure is deemed to be devoid of formal purpose.

25. The Commission said it is no different to when the independent ethics committee does issue an opinion and the former commissioner subsequently withdraws the notification, before the Commission adopts a decision.

26. The Commission said that it is a right of former commissioners to withdraw a notification, and that this is without prejudice to the possibility of current commissioners or of the administration to share their views with a former commissioner in relation to the compliance of an intended activity.

The Ombudsman's assessment

27. The Commission did not address the concerns underpinning the Ombudsman’s question, namely that it should provide greater transparency around the negative opinions of the independent ethics committee. In fact, the Commission included rules in its 2018 code revision that make it highly likely that notifications that are subject to a negative opinion, or would be if pursued, are withdrawn.

28. The Commission, in principle, makes public refusal decisions on notified post-mandate activites and the related opinion of the independent ethics committee. However, in practice this never happened, because notified activities that were subject to a negative opinion of the independent ethics committee were withdrawn before the Commission could adopt a decision.

29. The Ombudsman appreciates that in the context of the right to be heard procedure prior to the adoption by the independent ethics committee of its opinion, a notification may be withdrawn. However, if the former commissioner decides to withdraw the notification, only after being heard and after the independent ethics committee has issued a formal negative opinion, then the procedure did serve a purpose, namely to indicate that the intended activity was incompatible with the former commissioner’s obligations. This has the benefit of guidance for future cases, and enables public scrutiny of the Commission’s ability effectively to ensure compatibility of former commissioners’ post-mandate activities with their duties under the EU Treaties. The Ombudsman considers that the proactive transparency regime should extend to all opinions of the independent ethics committee, as first set out in her related recommendation of 6 March 2018[23].

30. The Commission’s reluctance to make public the negative opinions of the independent ethics committee, risks undermining the entire framework. It deprives future commissioners and the public of essential information about the type of post-mandate activities that are deemed inappropriate. Therefore, the Ombudsman will make a suggestion for improvement, taking into account the Commission’s concerns.

31. To enhance the transparency of the authorisation process for post-mandate activities of former commissioners, the Ombudsman considers that the opinions of the independent ethics committee, once adopted, should always be made public, including those cases where the underlying notification of a (former) commissioner is subsequently withdrawn. The Ombudsman will address this in a suggestion for improvement.

Conclusions

The Ombudsman closes this initiative with the following conclusions:

With the start of a new mandate for the Commission, its ethics framework in terms of post-mandate activities of former commissioners will once again be subjected to public scrutiny.

The Ombudsman is concerned that the Commission does not intend to make public all opinions of its independent ethics committee in order to increase the transparency of the authorisation process of notified post-mandate activities.

Commissioners must avoid, to the greatest extent possible, exploratory contacts with possible future employers.

The Commission will be informed of this closing note.

Suggestions for improvement

1. The Commission should make public all opinions of the independent ethics committee, regardless of whether the underlying notification is subsequently withdrawn.

2. The Commission should, at the very least, make public statistical information on the negative opinions of the independent ethics committee, and on the notifications it has received from (former) commissioners, including withdrawn notifications.

3. The Commission should update the commissioners’ code of conduct to include its approach to exploratory contacts of commissioners with possible future employers.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 23/10/2024

 

[1] In 2014 the Ombudsman found maladministration in how the Commission had dealt with a case of a former Commissioner who had taken up a remunerated position with a company without having notified the Commission, as was obligatory. See: https://www.ombudsman.europa.eu/en/decision/en/68762. In 2017, the Ombudsman found maladministration in how the Commission had dealt with a former Commission President’s move to a US investment bank, just after the obligation to notify such moves had expired. https://www.ombudsman.europa.eu/en/recommendation/en/90956.

[2] Commission Decision of 31 January 2018 on a Code of Conduct for the Members of the European Commission, OJ C 65, 21.2.2018, p. 7–20. See: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32018D0221(02).

[3] See: https://www.ombudsman.europa.eu/en/decision/en/99946.

[4] See: https://commission.europa.eu/about-european-commission/service-standards-and-principles/ethics-and-good-administration/commissioners-and-ethics/former-european-commissioners-authorised-occupations_en.

[5] See: https://www.ombudsman.europa.eu/en/doc/correspondence/en/138070.

[6] See: https://www.icij.org/investigations/uber-files/.

[7] See: https://www.asktheeu.org/en/request/2401/response/8880/attach/2/COMM%20PDF%20C%202011%202904%20F%20EN%20DECISION%20DE%20LA%20COMMISSION.pdf?cookie_passthrough=1. In February 2018, the Commission made changes to this code in the response to the joint inquiry into 194/2017/EA, 334/2017/EA, and 543/2017/EA on the European Commission’s handling of post-mandate employment of former commissioners, a former Commission President and the role of its ‘Ethics Committee’: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32018D0221(02).

[8] See: https://www.asktheeu.org/en/request/13978/response/52943/attach/2/Final%20report%20of%20case%20OC%202022%200514%20Redacted%202.pdf?cookie_passthrough=1.

[9] See report 1521 of 11 July 2023 of the commission of investigation of the French Parliament on to the revelations of the Uber files: https://www.assemblee-nationale.fr/dyn/16/rapports/ceuberfil/l16b1521_rapport-enquete. See also the report on the finance committee hearing in the Dutch Parliament with the Uber Files whistle-blower on 11 April 2023: https://www.tweedekamer.nl/kamerstukken/commissieverslagen/detail?id=2023Z06397&did=2023D13390. The case also led to parliamentary questions in the Dutch Parliament: https://www.tweedekamer.nl/kamerstukken/kamervragen/detail?id=2022Z15176&did=2023D04102.

[10] See: https://www.ombudsman.europa.eu/en/doc/correspondence/en/191563.

[11] See Article 15 of the Charter of Fundamental Rights, available here: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012P/TXT.

[12] See Article 245 of the Treaty on the Functioning of the EU, available here: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A12008E245.

[13] The code was introduced in 1999, and revised in 2004, 2011 (this version was the one that applied in the period covered by the investigation conducted by OLAF) and in 2018.

[14] While the President of the Commission may seek its opinion in cases of doubt, the independent ethics committee does not need to be consulted where former commissioners intend to: (1) continue to serve the European interest in an Institution or Body of the European Union; (2) take up functions in the national civil service of a Member State (at national, regional or local level); (3) engage with international organisations or other international bodies dealing with public interests and in which either the EU or one or several of its Member States are represented; (4) engage in academic activities; (e) engage in one-off activities for a short duration (1 or 2 working days); (6) accept honorary appointments.

[15] The Commission refers to this committee as ‘independent ethical committee’.

[16] See Article 11 of the code of conduct for commissioners. See footnote 2 for the link.

[17] Idem.

[18] See Article 6 of SEAP’s code of conduct concerning former EU personnel: https://seap.be/wp-content/uploads/2024/10/SEAP-Code-of-Conduct-2024.pdf.

[19] See footnote 2.

[20] See: Article 15 of the Charter of Fundamental Rights, which is available here: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012P/TXT.

[21] See: Article 245 TFEU, which is available here: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A12008E245.

[22] Article 12(3) of the code of conduct for commissioners, see footnote 2.

[23] See the second suggestion for improvement: https://www.ombudsman.europa.eu/en/recommendation/en/90956.