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Decision on the European Banking Authority’s refusal to grant public access to the votes and debates of its Board of Supervisors on an alleged breach of EU law by national supervisory authorities (case 615/2021/TE)

Monday | 07 February 2022

The complaint concerned the European Banking Authority’s (EBA) refusal to grant public access to the voting records of its Board of Supervisors (Board) on two draft Breach of Union Law (BUL) recommendations. BUL recommendations can be made following investigations by the EBA into potential breaches of EU law by national supervisory authorities. The draft BUL recommendations in question, addressed to the supervisory authorities of Malta, Denmark and Estonia, related to alleged money laundering by the Maltese Pilatus Bank and the Estonian branch of the Danish Danske Bank.

The complainant also alleged that there were conflicts of interests as he suspected that members of the Board representing the national supervisory authorities of Malta, Denmark and Estonia had participated in the relevant votes.

In reply to the Ombudsman’s preliminary assessment of the case, the EBA released the two voting records in question. The Ombudsman welcomed this step and considered that, by disclosing the documents, the EBA resolved this aspect of the complaint. The Ombudsman takes the view that disclosing such voting records helps ensure that EBA Board members act independently and in the EU interest. She encourages the EBA to do so in future.

On the conflict of interest issue, the inspection of documents by the Ombudsman’s inquiry team revealed that the Board members in question had indeed voted on whether the EBA should issue a BUL recommendation concerning their own respective supervisory authorities. While the EBA said that the rules in force at the time did not foresee any member of the Board being excluded from voting, the Ombudsman took the view that the requirement to act independently and in the EU interest meant that the Board members should not have voted.

As the EBA adopted, in January 2020, new rules of procedure for its Board and a new policy on conflicts of interest for non-staff, which seem to prevent the conflict of interest situation arising again, the Ombudsman considers that no further inquiries are justified at this stage. She therefore closed the inquiry, again welcoming the significant progress made as a result of the EBA governing bodies’ readiness to embrace greater transparency.

Decision on how the European Commission handled concerns about the composition of the High Level Forum on Capital Markets Union and alleged conflicts of interest of some of its members (case 1777/2020/KR)

Wednesday | 27 October 2021

This complaint-based inquiry concerned the High Level Forum on the proposed EU Capital Markets Union, a Commission expert group. The Forum gathered senior industry executives and top international experts and scholars to develop new ideas on related policies for the Commission and, in 2020, produced a report with recommendations.

Following an extensive inspection of Commission documents and a meeting with the Commission as part of the inquiry, the Ombudsman identified two instances of maladministration:

1. A number of Forum members with links to financial institutions were considered by the Commission as being independent and representing the public interest. With the aim of mitigating the risks of conflicts of interest that the Commission had identified, it applied general measures. The Ombudsman carefully assessed these measures and deemed them to be insufficient.

2. Based on the flawed categorisation of Forum members, the Commission made public a split between Forum members that were supposed to be independent and Forum members that represented a common interest of different stakeholder organisations that deviated significantly from what it was in reality.

The Ombudsman issued a recommendation.

The Commission’s reply to the Ombudsman’s recommendation presented no new information and does not alter the inquiry findings.

The Ombudsman closes her inquiry by confirming her findings and recommendation.