Background to the initiative

1. Since 2012, the European Ombudsman has been closely scrutinising the manner in which the European Commission is handling risks related to ‘revolving door’ situations involving its staff, including risks to which intended post-service activities may give rise.[1] When closing her first inquiry on this subject, the Ombudsman established there was ‘systemic’ maladministration in how the Commission dealt with some revolving door cases.[2] In the inquiries that followed the Ombudsman noted progress in the manner in which the Commission dealt with revolving door cases, while making proposals to further improve the Commission’s practice.

2. The Ombudsman concluded her last related inquiry saying that the Commission should apply a more robust approach in relation to revolving door moves of its most senior staff to private sector jobs, shortly after departure or retirement, related to matters on which they worked while in the Commission. When an intended post-service activity poses risks that cannot be adequately mitigated by restrictions, or when restrictions cannot be effectively monitored or enforced, the Ombudsman said that it would be prudent to (temporarily) forbid former staff members from taking up such positions.[3]

3. In her Decision of 16 May 2022, the Ombudsman addressed the hypothetical situation of a senior official in DG COMP wanting to move to a private firm that is specialised in challenging the Commission in competition matters. The Ombudsman said that the Commission should consider a temporary prohibition on such a post-service activity.[4]

4. On 8 May 2024, a law firm announced that a “[former DG Competition director] is a brilliant addition to our growing European competition team, [bringing] unparalleled insight from [the former director’s] extensive experience in EU competition law, where, among other things, [the former director] has been involved in many significant and complex merger matters and policy initiatives. [The former director] will be a tremendous asset to our clients.”[5] This gave the clear impression to the Ombudsman that the Commission had allowed one of its senior officials to work for a law firm that anticipated major benefits from that inside knowledge.

5. The lack of information from the Commission on any restrictions it placed on the activities of the former staff member, with a view to mitigating the risk of conflicts of interest, compounded the matter. Therefore, the Ombudsman launched this strategic initiative in the hope that, by pointing out the risks that high-profile revolving door moves pose, the Commission would improve its practice in line with the Ombudsman’s proposals in this area.

The initiative

5.1. On 17 May 2024, the Ombudsman wrote to the Commission with questions related to a revolving door case of senior manager of DG Competition who joined a corporate law firm. [6] The Ombudsman asked the Commission to:

i. make public without delay the restrictions it has placed on the move of this former senior staff member,

ii. explain how, in this specific case, it had taken into account the outcome of her previous inquiries in this area.

6. The Ombudsman received the reply of the Commission on 2 August 2024.[7]

Timely public information on mitigating measures

Reply of the Commission

7. The Commission repeated its position, as formulated earlier in its reply to OI/1/2021/KR,[8] that there is no legal basis for disclosing restrictions imposed on senior officials’ post-service occupational activities outside an annual report, as provided by the EU Staff Regulations[9]. Therefore, the restrictions imposed on the former DG COMP director, which are subject of the current strategic initiative, will be disclosed in 2025 as part of the next annual report.

8. The Commission shared the decision in question with the Ombudsman in confidence.

9. The Commission added that, as of end of June 2024, and in particular, in cases where its reputation is more at risk, it is imposing an obligation on former officials to specify in any public communication or announcement about their future position that restrictions were imposed by the Commission. However, the extent to which former officials would want to disclose details of those restrictions would be a matter for them to decide. (The case that is subject to this initiative, preceded this new administrative practice.)

The Ombudsman's assessment

10. While the EU Staff Regulations explicitly require the publication of an ‘annual’ report, the Ombudsman has argued that this requirement should be read taking into account the purpose behind the legal obligation, which is to ensure transparency so that businesses, civil society organisations and the public are aware of any restrictions and can monitor whether they are complied with. This principle of transparency is enshrined in Article 15(1) of the TFEU, which states, ”[i]n order to promote good governance and ensure the participation of civil society, the Union's institutions, bodies, offices and agencies shall conduct their work as openly as possible.” Public information also serves the purpose of deterring former senior officials from engaging in those prohibited activities.

11. Making the information public in a more timely manner would thus be more effective as a deterrent and as a means of monitoring compliance with the decision. For example, by the time the Commission intends to make public summary information on the restrictions it has placed on the former senior official in question (probably by the end of June 2025, as is customary), the statutory one-year lobbying ban that applies in this case has lapsed.

12. The Ombudsman notes that, when following up on her Decision in case OI/1/2021/KR, the Commission said it was considering possible legal options for disclosing certain elements of authorisations of post-service activities of its former senior staff members, to protect trust in the public administration. This, the Commission specified, concerned especially restrictions imposed on authorised occupational post-service activities, for example following public questions with regard to a specific case and the adequate protection of the general interest.[10]  The Commission said that any solution should be proportionate and in compliance with data protection rules.

13. The Ombudsman believes that, in the absence of public information on the mitigating measures, the risk of reputational damage to the Commission remains. The Ombudsman therefore welcomes the measure that the Commission introduced after the Ombudsman launched this initiative, namely to require former staff members to indicate that mitigating measures were applied, which she understands to be the Commission’s preferred legal option for ensuring that the restriction on certain post-service activities are disclosed.

14. However, the Ombudsman finds it questionable whether the manner in which the Commission applies this measure is sufficiently effective. This is because the Commission allows the former officials to decide on the extent to which they disclose details on the restrictions that the Commission imposed. In doing so, the Commission has ceded control over how the restrictions it has applied to mitigate risks to its legitimate interests, which are public interests, are communicated.

15. If the Commission has now concluded that it is not able to make information on the restrictions public in a timely manner itself, then it should require the former staff members to describe the restrictions imposed accurately and in a meaningful way. The Ombudsman will make a suggestion to this end.

Taking account of the Ombudsman’s inquiries

Reply of the Commission

16. The Commission said that it is fully committed to driving an institutional culture based on the highest ethical standards and maintaining public trust in the integrity of its staff and its decision-making processes.

17. The Commission said that its assessment of the former DG COMP senior official’s post-service employment and its related Decision were in line with the approach communicated to the Ombudsman in the context of her inquiries. In essence, this approach is to define an appropriate balance between respecting former officials’ fundamental right to engage in work and to pursue a freely chosen occupation and protecting the Commission’s legitimate interests through temporary prohibitions and restrictions.

18. The Commission said that the assessment in this case, led to the activity being authorised subject to a set of restrictions, which the Commission considers reliable, appropriate and effective to mitigate identified risks of real, potential or perceived conflicts between the senior official’s interests and those of the Institution, while remaining proportionate. The Decision is also consistent with previous similar cases, according to the Commission.

19. The Commission, in its public reply, indicated what it does in general in cases such as the one concerned, namely:

• “prohibit the former staff member from dealing with files, cases or matters related to the work carried out by them during their last three years of service, including related or subsequent cases and/or court proceedings.
• impose a ‘cooling off period’ excluding the former staff member from, for example, professional contacts with former colleagues or relevant Commission services/departments or from representing opposing parties.
• impose restrictions on the entities they can accept as clients, where relevant.”

20. Moreover, former staff members involved in legal cases (for instance in DG COMP) are prevented from working directly or indirectly on any case, in which they were involved during their entire service at the Commission. This also includes the prohibition to deal with other cases directly related to those mentioned above, including appeals brought before the European Courts against a decision of the European Commission. This prohibition is unlimited in time.

21. Other obligations after leaving the service, which are also unlimited in time, include, in particular:

i. The prohibition to disclose any unauthorised information received in the line of duty, unless that information has already been made public or is accessible to the public;[11]

ii. The duty to behave with integrity and discretion as regards the acceptance of certain appointments or benefits.[12]

22. In line with the duty to act with discretion and integrity, former staff members involved in legal cases (such as in DG COMP) are required to refrain from advising or working on behalf of a new employer or new clients on matters in which they participated personally and substantially and which would entail relying upon information received in the line of duty which has not been made public. This concerns for example contracts, policy files, grants, ongoing legislative procedures, and in particular competition cases, claims, and investigations.

23. The Commission requests systematically from former officials that they share the restrictions imposed on their new post-service activity with their new employer and clients.

24. Underpinning all of these obligations, is the Commission’s trust in former staff members’ to comply.

The Ombudsman's assessment

25. Based on the inspection carried out in OI/1/2021/KR, the Ombudsman agrees that the Decision that is subject to the present initiative is consistent with earlier Commission Decisions on similar cases.

26. The Ombudsman takes the view that, if the restrictions that the Commission applied, along the lines as set out in general above (paragraphs 19 to 23), are complied with in full, then the risks of conflicts of interest are arguably mitigated.

27. The Ombudsman sees a challenge in cases such as the one concerned by this initiative, in that it is difficult, and to an extent impossible, for the Commission to monitor compliance with its authorisation decision that is subject to restrictions. As the Ombudsman has made clear before, in her view, when restrictions cannot be effectively monitored or enforced, it is prudent to (temporarily) forbid former staff members from taking up such positions. When defining a balance between the Commission’s legitimate interests and the former officials’ interest in pursuing a freely chosen occupation, sufficient account must be taken of the institution’s legitimate interest in maintaining public trust in the integrity of its staff and its decision-making processes.

Conclusion

The Ombudsman closes this initiative with the following conclusion:

The Ombudsman welcomes the measure that the Commission introduced after her initiative, namely that in cases where its reputation is at greater risk, it is now imposing an obligation on former officials to specify in any public communication or announcement about their future position that restrictions were imposed by the Commission.

The Commission will be informed of this closing note.

Suggestion for improvement

In applying the above measure, the Commission should require former staff members to describe the restrictions the Commission has imposed accurately and in a meaningful way.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 24/09/2024

[1] See cases 2077/2012/TN and 1853/2013/TN which were treated jointly: https://www.ombudsman.europa.eu/en/opening-summary/en/52661, case OI/3/2017/NF: https://www.ombudsman.europa.eu/en/decision/en/110608#_ftn8, and case OI/1/2021/KR:  https://www.ombudsman.europa.eu/fr/case/en/58428.

[2] See paragraph 13 of the recommendation issued in the joint inquiry into 2077/2012/TN and 1853/2013/TN: : https://www.ombudsman.europa.eu/en/recommendation/en/56216.

[3] See: https://www.ombudsman.europa.eu/fr/decision/en/155953.

[4] Idem, see paragraph 42.

[5] See: See: https://www.paulweiss.com/about-the-firm/firm-news/leading-eu-competition-lawyer-joins-paul-weiss-as-firm-opens-office-in-brussels?id=51463.

[6] See: https://www.ombudsman.europa.eu/en/opening-summary/en/186549.

[7] See: https://www.ombudsman.europa.eu/en/doc/correspondence/en/192971.

[8] See: https://www.ombudsman.europa.eu/fr/doc/correspondence/en/170935.

[9] See Article 16(4) of the EU Staff Regulations. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A01962R0031-20140501.

[10] See: https://www.ombudsman.europa.eu/en/doc/correspondence/en/163018.

[11] In line with Article 17 of the Staff Regulations, see footnote 9.

[12] In line with Article 16(1) of the Staff Regulations.