European Parliament Budgetary Control Committee (CONT) - Exchange of views on Ombudsman's Inquiry OI/6/2016/AB on the Commission’s Special Advisers
Speech - City Brussels - Country Belgium - Date Wednesday | 21 June 2017
Thank you for the invitation, and it is good to be back in your Committee.
As European Ombudsman, my job of course is to handle complaints but by conducting proactive inquiries I can also tackle systemic issues that arise in the administration and make recommendations and suggestions to help to make it more effective, accountable, transparent and ethical.
In this context, I am very pleased to share with you my strategic inquiry on the system of Special Advisers to Commissioners, which I have just completed last week.
The Commission has, at any one time, approximately 50 Special Advisers. They can be “Institutional Special Advisers” (around 10 each year), who assist specific committees and services such as the Audit Progress Committee, or “non‐institutional Special Advisers” who provide direct assistance to individual Commissioners and they are the subject of my inquiry.
Most Commissioners have one or two Special Advisers, although some of them, and the Commission President, can have four or even five. Special Advisers can be paid but the majority are unpaid: among the 36 non-institutional Special Advisers appointed in March 2016 for example, only 10 received a fee for each day worked. Unpaid Special Advisers are often retired senior Commission officials, former Commissioners or politicians. Most people who are appointed Special Advisers have held high positions in the EU institutions or in Member States at some point.
It is important to note that Special Advisers work only part‐time for the Commission. The number of working days in their contract varies from just 4 days to more than 50. At the same time, as for all EU staff, they have a legal obligation to carry out their duties impartially and objectively guided solely by the interests of the Union.
In this context, the Commission faces a difficult challenge. As Special Advisers are very likely to work outside the Commission, the risk that they will have professional interests that conflict with their role as “public servants” is greater than for full‐time officials. Robust rules and practices are thus necessary to ensure that no conflicts of interest arise between these outside activities and their work as Special Advisers.
The Commission has procedures in place to address this challenge. When a Commissioner wants to appoint one Special Adviser, they submit three documents to DG HR:
(i) Declaration of honour signed by the prospective Special Adviser stating that there is no conflict of interest;
(ii) Declaration of activities;
(iii) Statement of assurance signed by the Commissioner or Head of Cabinet.
DG HR then checks on the basis of these documents that there is no conflict of interest and can recommend “mitigating measures”, that is, measures to reduce or eliminate an actual or potential risk if it finds one. For example, for an Adviser employed by an organisation funded by the Commission, DG HR may recommend that the statement of assurance includes a declaration that the Special Adviser will not be involved in any decision regarding the funding of this organisation.
Following the selection procedure, the Commission submits to the Parliament and the Council the list of intended appointments. For the Parliament, the Budget Committee is informed and can call for an exchange of views if necessary. Special Advisers are then appointed by the College of Commissioners.
I decided to open an inquiry following two individual complaints about Special Advisers, one in 2010 and one in 2015. Both concerned the Commission’s failure to respect its procedural rules when appointing a Special Adviser, as well as its failure to address potential conflict of interests arising from the Special Advisers’ outside activities. In both cases I found maladministration.
In n December 2015, I received another complaint concerning a number of individual cases. I therefore decided to open a strategic inquiry in order to focus on the systemic issue.
My staff inspected all Commission files on the appointment of Special Advisers in 2015 and first semester of 2016, approximately 50 files. I concluded that the Commission has improved its practices in the period since then. . For example in 2015, the Commission appointed Special Advisers before DG HR had communicated its recommendations on which measures should be taken to mitigate risks. The Commission at times also issued press releases announcing appointments before the assessment was over.
The Commission improved its practices in 2016, following concerns expressed by civil society. Commissioners took better account of DG HR’s recommendations and did so before the individuals concerned were appointed. They were also more cautious in drawing up Special Advisers’ mandates and in defining mitigating measures when a risk of conflict of interest was detected. My staff found one case where the Commission decided in the end not to appoint a Special Adviser because the risk of conflict of interest was considered too high.
In the course of my inquiry I also made a number of suggestions which the Commission accepted: for example that the Commission improve the wording of the statement of assurance, and that Special Advisers should be made aware of the mitigating measures included in the statement of assurance.
I take this opportunity to welcome the Commission’s constructive approach but I do consider that more progress is possible and I therefore closed my inquiry last week with several suggestions to the Commission:
1. To be more proactive when assessing risks of conflicts of interest by ensuring it has all information on the Advisers’ mandates and their outside activities. It’s difficult to carry out a meaningful assessment if the mandate of the Special Adviser is vague, which is often the case. I therefore suggested that the Commissioners’ be as specific as possible concerning their duties.
2. The Commission should better justify why it decided to include or exclude an outside activity from the list of overlaps to be addressed through mitigating measures. The Commission should develop a table of example situations that could prevent a prospective Adviser from being appointed or require mitigating measures.
3. Although progress has been made, the quality of the measures taken to mitigate risks can be further improved. They should avoid vague formulations such as “the Special Adviser will not deal with matters linked to [his/her] gainful activities. To be effective, these measures must be clear, realistic and specific to each individual case.
4. The Commission should make sure that it is informed promptly of any change in the Advisers’ activities in the course of their mandate. During my inquiry, I found that some declarations were updated belatedly. The Commission already agreed to my suggestion to periodically remind Advisers of their obligation to update their declaration of activities. I also suggested that the Advisers’ contract could be reviewed to include the obligation to declare any change within two months.
5. Finally, the Commission could enhance public trust in the process by proactively publishing more information concerning Special Advisers. The Commission considers that it already publishes enough information on its website, including the title of the Special Advisers’ mandates, their CVs and their declarations on the honour. I should of course point out this is far more than many Member States publish concerning similar adviser roles.
The Commission usually does grant public access to the Advisers’ declarations of activities and the statements of assurance documents in response to requests for public access. I encourage them to pro-actively publish these documents, to help the public understand how it addresses risks of conflicts of interest and to give them an opportunity possibly to provide additional information.
I also encourage the Commission to publish more background information on the role of Advisers, their range of tasks and limits of their mandate. In my view, publishing whether they are paid or unpaid and the maximum number of working days would also be useful.
This is in summary the results of my inquiry. I have asked the Commission to inform me by end of October of any action it has taken in relation to my suggestions.
Thank you very much for your attention.