Strategic Inquiry: OI/5/2025/KR

Case title: How EU agencies deal with ‘revolving door’ cases

Date: Thursday, 29 January 2026

Remote meeting

Present

ESMA representatives

• Head of Legal and Enforcement Department - Data Protection Officer - Ethics Officer
• Legal Officer – Deputy Ethics Officer

Ombudsman representatives

• Mr Koen ROOVERS, Inquiries Officer
• Ms Ludovica AQUINO, Inquiries Officer
• Ms Jennifer KING, Legal Expert
• Ms Tanja EHNERT, Inquiries Coordinator
• Mr Tobias FLUCK, Inquiries Trainee

Purpose of the meeting

The purpose of the meeting was for the Ombudsman inquiry team to clarify outstanding questions that had arisen in the course of the inspection of the policy documents and individual case files handled between January 2023 and the end of June 2025 and submitted for inspection by ESMA.

This inquiry builds on previous cases of the Ombudsman related to how the EU administration, including EU Agencies, apply the rules on post-service activities of (former) staff members^[1].

Introduction and procedural information

The Ombudsman inquiry team introduced themselves and thanked the ESMA representatives for meeting with them. They outlined the legal framework that applies to meetings held by the Ombudsman, in particular, that the Ombudsman would not disclose any information identified by ESMA as confidential without ESMA’s prior consent.^[2]

The Ombudsman inquiry team informed the ESMA representatives that they would receive a draft of the inspection meeting report to verify its accuracy. The report would then be made public. No confidential information would be included in the report or otherwise provided to any third party.

Considering ESMA’s interactions with the private sector, ESMA representatives welcomed the Ombudsman’s work on the matter with a view to learning from and contributing to this inquiry.

Documents inspected

• Conflict of interest policy for staff
• Redacted ethics logbook for staff-post service
• Decision on seconded national experts (SNEs)
• Conflict of interest policy for ESMA governing bodies
• Implementing rules on measures concerning unpaid leave for temporary and contract staff of the European Union
• Redacted ethics logbook for staff-outside activity
• One application file for post-service activities of former senior and managerial staff members
  
  

Information exchanged

The Ombudsman inquiry had shared several questions with ESMA in advance.

1) (Former) members of the ESMA Boards - post-mandate activities

a) Policies

The ESMA representatives referred to ESMA’s policy on avoiding conflicts of interest for non-staff members (such as members of the Board of Supervisors and the Management Board), which make it compulsory for members to declare their prospective employment in writing to the Chair and that this duty is applicable for two years after leaving the Board (See Article 6 – Declaration of prospective employment).

The Ombudsman team noted that certain elements of Article 16 of the Staff Regulations, which is applicable to post-service activities of staff members, are not reflected in ESMA’s policy for non-staff members, such as that notifications must be made prior to taking up new jobs.

The ESMA representatives provided some contextual information, explaining that ESMA takes its ethics responsibilities very seriously to ensure the utmost integrity of its Board of Supervisors members who are representatives of national competent authorities, hence not ESMA staff members, by putting in place a conflicts-of-interest policy (CoI policy) for non-staff. As regard its staff members, in its CoI policy for staff, ESMA has applied measures that go beyond the Staff Regulations, such as a requirement for submitting annual conflict of interest declarations and most of the detailed CoI rules also apply to SNEs and trainees. The ESMA representatives stated that the Authority’s approach to put in place special CoI rules to its governing bodies (although they are not covered by the Staff Regulations) and measures to adhere to the highest ethical standard by ESMA staff were largely recognised by a report of the European Court of Auditors (ECA) in 2021.

The ESMA representatives further referred to the two main applicable legal bases for its policy for non-staff members, within its founding act (ESMA Regulation[3]), namely:

• Article 42 on the independence of Board members and
• Article 70 on professional secrecy.

The latter provision was revised in 2020, as the original version referring to Article 16 of the Staff Regulations was found to be illegal given that Board members are not ESMA staff and thus not subject to the Staff Regulations.

Despite this change to Article 70, the ESMA representatives stated that the Authority has not changed its policy and that similar provisions to those of Article 16 of the Staff Regulations (insofar as members of Board of Supervisors should notify their future professional activity) continue to be reflected in the policy for non-staff.

At the same time, the ESMA representatives stressed that the Authority must balance these duties against the right of employment of departing and former Board members, who are employees of their national administrations and thus subject to specific national rules.

ESMA representatives referred to a survey that compared all the national rules applicable in the National Competent Authorities (NCAs). The conclusion was that, while differences might apply, general rules are in place. The best practices arising from this survey were shared with NCAs for inspiration.

In view of this, the ESMA representatives acknowledged that there is a high sense of duty and integrity in the Board, also thanks to the potential leverage to be exercised by NCAs, which leads Board members to timely inform ESMA of their intention to leave. This is set out in ESMA’s policy for non-staff, which provides that Board members must notify the Chair before taking up any new duties. In practice, this is further encouraged by having in mind reputational risks, as well as possible restrictions imposed at national level.

b) Timely submission and handling of notifications by Board members

The Ombudsman inquiry team invited ESMA to consider adding a reference in its policy about advanced notification.

The ESMA representatives acknowledged that there is no explicit reference related to advanced notifications in their policy for non-staff but said that there are two reasons for this:

i. The Ethics Policy has just been reviewed and there is no legal basis to modify the policy to replicate Staff Regulation requirements, as confirmed by the ECA report; and

ii. Taking into account potential upcoming changes in ESMA’s governance, as proposed by the Savings and Investments Union (SIU) initiative presented by the Commission, the governance of ESMA may change in the foreseeable future  and require a review of the Ethics Policy for ESMA governing bodies.

Moreover, from a risk prevention perspective, ESMA ensured that its Board members would not be able to own direct shares or bonds in relation with the supervised areas within the mandate of ESMA. The change suggested by the Ombudsman inquiry team would thus not represent a priority at this stage.

The Ombudsman inquiry team asked what action ESMA can take if a former Board member does not notify the Authority of their intention to pursue a post-mandate activity within two years of leaving the Board.

ESMA representatives replied that it only has limited options in such cases. However, when Board members leave, they are systematically reminded in writing of their duty to inform the ESMA Chair of their future activity and have an incentive to notify ESMA, due to reputational considerations. This is why most of them actually inform Board members of their future job at their last Board of Supervisors meeting. In ESMA’s experience, unnotified activities are rare. Furthermore, in agreement with the Management Board (a governing body composed of the ESMA Chair and six members of the Board of Supervisors), ESMA could liaise with the relevant NCA in order to obtain missing information of future positions of the former Board of Supervisors members.

c) Process for handling notifications, including the role of the Ethics Officer

The ESMA representatives mentioned that they recorded 26 notifications in total, including Board members and their alternates, of which the majority was going back to their NCAs or to another post in the public sector.

They added that there had been one case where a Board member had expressed the intention to move to the private sector. That case, according to the ESMA representatives, did not raise any specific concerns since it did not fall within the categories identified as potentially conflicting. As the post-mandate activity was deemed not to comprise any inherent risks, no mitigating measures were considered.

In general terms, in absence of any legal basis to enforce mitigation measures, the ESMA representatives said that ESMA had only two options, namely:

1. express concerns to the relevant NCA to prompt a reaction, or
2. express concerns towards the remaining Board members.

Regarding possible internal measures that could be taken, ESMA could suggest to the Board of Supervisors to avoid contacts with and any lobbying from the leaving member in a potentially conflictual position. When adopting such measures, ESMA takes into account a number of criteria, such as the implementation and duration of a cooling period, the nature of the job and responsibilities to be undertaken, the territorial scope (in- or outside the EU), and any mitigating factors that are relevant for its assessment

Referring to Article 9.3 of ESMA’s policy on avoiding conflicts of interest of non-staff members, the Ombudsman inquiry team asked how ESMA handled situations of potential disagreement with the NCA and/or the Board member.

The ESMA representatives said it could happen that, in certain cases, the national rules prevent Board members from joining certain listed entities in the home country but not in the neighbouring country, while for ESMA the actions to be taken are not limited to the Member State but extend to the entire EU.

In any case, the risk would be related mostly to disclosure of sensitive information that Board members could have and unduly use in their post-mandate activity, rather than a real influence on the voting of the board.

In this respect, ESMA has rules of procedure for professional secrecy that go beyond information that is covered by Article 17 of the Staff Regulations. This information is defined as “ESMA information” which relates to everything which is not in the public domain - for example, if former Board members want to mention or share ESMA information with a Finance ministry for budget purposes, this cannot be done without an explicit prior request to the ESMA chair.

d) Applying the right to be heard to (former) Board members where the Authority identifies a conflict of interest

The Ombudsman inquiry team asked whether ESMA grants the right to be heard to the (former) Board member before adopting its position and/or decision that restricts or prohibits a post-mandate activity.

The ESMA representatives replied that this would have to be discussed internally but ideally, it would be granted in writing.

e) Informing former Board members of the means of redress in case they are not satisfied with Authority’s position

As per the above, ESMA considers that there are limited grounds to impose any binding measures towards the former Board of Supervisors member; hence the means to redress would not be applicable.

f) Publication of decisions (or information) on post-mandate activities of Board members

The Ombudsman inquiry team asked the ESMA representatives to clarify whether the position and/or decisions adopted pursuant to Articles 6, 9.1 to 9.3 of ESMA’s policy on avoiding conflicts of interest for non-staff members are made publicly available.

The ESMA representatives confirmed that, in case of restrictive measures, they would have to be public.

g) Monitoring compliance of former Board members with their obligations

The ESMA representatives said that, before Board members leave, the ethics team is notified and those leaving receive a letter reminding them of their duties and obligations, including professional secrecy, within two years after leaving the Board.

After a Board member leaves, ESMA does not carry out a systematic follow-up. Instead, it relies on the information received at the prior notification stage. In case of doubt, ESMA reverts to the relevant NCAs. Nonetheless, the CoI policy for non-staff sets the clear expectation that it is for the Board member to come forward. The ESMA representatives reiterated that ESMA  annually prepares an ethics report which is shared both with staff and the Management Board.

2) (Former) Senior staff members - post service activities

a) Policies

The ESMA representatives referred to ESMA’s policy on avoiding conflicts of interest for staff members. The ESMA representatives explained that the Authority also applies Commission Decision C(2018)4048 by analogy to its staff. They confirmed that ESMA had provided the Ombudsman inquiry team with all relevant policy documents.

b) Timely submission and handling of Article 16 notifications

The Ombudsman inquiry team asked about ESMA’s experience with the 30 working-day deadline and whether this time limit could be suspended at any time.

The ESMA representatives said that the time limits are usually not exceeded because of the requirement in the policy to adopt a decision within 30 working days. Otherwise, this would trigger an implicit acceptance. Also, if information is missing during the procedure and, thus, no meaningful assessment can be provided, the deadline can be suspended.

Generally, staff members are invited to notify the ethics team as soon as possible and most importantly before taking up any new job.

c) Process for handling Article 16 notifications, including the role of the Joint Committee

The Ombudsman inquiry team asked the ESMA representatives to confirm whether the Joint Committee is always consulted in the case of Article 16 notifications or only in instances where a potential or actual conflict of interest is identified in relation to the intended post-service activity of a staff member.

The ESMA representatives said that for the sake of administrative efficiency, only in cases of potential restrictions or a prohibition the Joint Committee would be involved, in line with its guidance. In cases of post-service activity in EU institutions, bodies or agencies, for example, the Joint Committee is not consulted.

The Ombudsman inquiry team also asked the ESMA representatives to clarify if the opinion of the line manager is taken into account systematically by the Joint Committee and, if so, how this is documented.

The ESMA representatives said that, in the internal approval workflow, where declarations are processed, line managers are the first to assess the new job description and to signal any concerns. These comments might be presented in different forms in the workflow and might not be reflected individually in the final form, but are duly taken into account. This is done systematically.

For the workflow, ESMA uses an ICT tool called “paperless”, which is audit-trail based. All the inputs must be recorded to access the following workflow step, so it provides a safeguard to ensure that each step is completed. 

The Ombudsman inquiry team asked if ESMA considers lobbying bans for all staff members.

The ESMA representatives confirmed that, the lobbying ban, as foreseen in ESMA’s CoI Policy for staff extends to all staff and not only to senior staff members.

The Ombudsman inquiry team asked whether ESMA requests notifying (former) staff members to provide a formal job description or vacancy notice to ensure that the tasks of the future post-service activity are not misrepresented.

The ESMA representatives answered that they normally request such a proof of the post-service employment. Yet, they acknowledged that, since they ask staff members to submit their notification as early as possible, they may not yet have a work contract or other formal documents describing their specific future activity. This is why the application form specifies that the activity was assessed as it was presented by the staff member. The responsibility for an incorrectly declared activity remains with the staff member.

d) Applying the right to be heard of notifying (former) staff members in case a notification is refused or conditionally approved

Where the intended new professional activity is authorised subject to conditions or is to be prohibited, the staff member concerned is being granted right to be heard, after the recommendations of the Ethics Officer and the opinion of the Joint Committee (both of which are shared with the staff member), before the final decision is made by the appointing authority.

e) Informing former staff members of the means of redress in case they are not satisfied with the Article 16 decision

In ESMA’s experience, future activities raising CoI concerns and thus meriting restrictive decisions are rare and usually accepted by the staff member. Nevertheless, ESMA undertakes to revise its templates to ensure this information is expressly included in the final decisions.

f) Publication of decisions (or information) on post-employment activities of former staff members^[4]

ESMA publishes decisions regarding the assessment of post-service activities of its former Senior Managers (AD 14+), as mandated by Article 16, fourth sub-paragraph of the Staff Regulations.

g) Monitoring compliance of former staff members with their obligations

The ESMA representatives said that it is standard practice that whenever a member is resigning, a meeting with the ethics team takes place. During this meeting, the staff member concerned is reminded of the obligations related to future activities that are applicable within two years from leaving ESMA. In addition, ESMA carries out regular awareness raising and communication campaigns.

The ESMA representatives also shared that information related to ethics obligations has been added to ESMA’s vacancy notices, including those related to post-service employment, and possible restrictions when leaving the Authority. ESMA added that its strict rules for internal cooling off periods in practice are also observed in respect of trainees, even if they are not subject to the CoI Policy in this respect.

h) Communication of conditional authorisations (including mitigating measures) to the future employer of a former staff member

ESMA representatives confirmed that ESMA applies this practice in cases where a decision includes restrictions or prohibitions.

3) (Former) senior staff members - external activities while on unpaid leave

a) Policies

See part 2(a) above.

Conclusion of the meeting

The inquiry team thanked the ESMA representatives for their time and for the explanations provided, and the meeting ended.

Brussels, 20/04/2026

Koen ROOVERS                                                                                        Jennifer KING

Inquiries Officer                                                                                           Legal Expert

 

 

 

[1] For reference, see ’How the European Commission manages ‘revolving doors’ moves of its staff members’ (case OI/1/2021/KR); ‘How the European Banking Authority (EBA) handled the move of its former executive director to become CEO of a financial industry lobby group’ (case 2168/2019/KR) and ‘How the European Defence Agency (EDA) handled the application by its former Chief Executive to take on senior positions at Airbus’ (case OI/3/2021/KR)

[2] Article 4.8 of the European Ombudsman’s Implementing Provisions.

[3] Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC, OJ L 331, 15.12.2010, pp. 84.

[4] This concerns decisions based on Article 16 of the Staff Regulations, see https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A01962R0031-20260101