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Decision of the European Ombudsman in joint inquiry 853/2020/KR on the European Commission’s decision to award a contract to BlackRock Investment Management to carry out a study on integrating environmental, social and governance (ESG) objectives into EU banking rules

Maanantaina | 23 marraskuuta 2020

The case concerns the European Commission's decision to award to BlackRock Investment Management a contract to carry out a study on integrating environmental, social and governance (ESG) objectives into EU banking rules. The Ombudsman opened an inquiry after receiving complaints from MEPs and a coalition of civil society organisations. The inquiry assessed how the Commission evaluated the company’s offer in the context of the call for tenders for carrying out the study.

The Ombudsman found that the company’s offer gave rise to concerns. First, if a bidder has a direct or indirect financial interest in developments in a market, because it invests in that market, or manages investments in that market, there is a clear risk that those interests may influence the outcome of its work in its own favour. This applies to the company in question. Second, because of the weighting applied by the Commission in its evaluation, the low price the company offered optimised its chances of securing the contract. Winning the contract may enable the company to gain insights and assert influence over a growing investment area of major and increasing relevance to its clients and therefore to the company itself.

The Ombudsman agrees that there are legitimate concerns around the risk of conflicts of interest that could negatively impact the performance of the contract as the company manifestly has an interest in the development of future EU regulation that will impact on itself and on its clients. She concluded that the Commission should have been more rigorous, and brought a wider perspective to bear, as it moved to verify, in compliance with the rules, that the company was not subject to a conflict of interest that may negatively affect the company’s ability to execute the contract. However, not doing so does not meet the threshold of maladministration, given the limitations of EU rules on awarding contracts in such situations on the Commission staff awarding the contract.

The Ombudsman suggests that the Commission updates its guidelines for public procurement procedures for policy-related service contracts, giving clarity to staff as to when to exclude bidders due to conflicts of interest that may negatively affect the performance of the contract. The Ombudsman also suggests the Commission reflect on whether a specific update to the applicable rules is also required to make them more relevant to the EU’s current policy ambitions. The EU is planning a period of unprecedented levels of spending and investment, which will necessarily involve significant linkages with the private sector.

This Decision will also be forwarded to EU legislators. It is a matter for the legislators to agree the legal underpinning of the ‘green transition’ including the appropriate manner in which its development and rollout is influenced.

Decision in case 2168/2019/KR on the European Banking Authority’s decision to approve the request from its Executive Director to become CEO of a financial lobby group

Keskiviikkona | 18 marraskuuta 2020

The case concerned the decision of the European Banking Authority (EBA) to allow its Executive Director to take up a position as CEO of a lobby group.

The Ombudsman found two instances of maladministration and made three recommendations to avoid similar issues arising in future.

First, the EBA should, where necessary, invoke the option of forbidding its senior staff from taking up certain positions after their term-of-office. Any such prohibition should be time-limited, for example, for two years.

Second, the EBA should set out criteria for when it will forbid such moves in future so as to give clarity to senior staff. Applicants for senior EBA posts should be informed of the criteria when they apply.

Third, the EBA should put in place internal procedures so that once it is known that a member of its staff is moving to another job, their access to confidential information is cut off with immediate effect.

The Ombudsman closed the inquiry after the EBA accepted her recommendations and adopted measures to implement them.

The Ombudsman is confident that the policies the EBA has introduced will help it avoid damaging revolving door moves in the future. Other EU institutions and agencies should draw on these new EBA safeguards when revising their own rules.