President European Commission

 

Dear President,

In the context of Russia’s war of aggression against Ukraine, the EU is financing donations of military equipment by EU Member States to Ukraine through the European Peace Facility^[1], and has enacted legislation aimed at increasing ammunition production to help Member States maintain their reserves whilst ensuring the delivery of ammunition to Ukraine.[2] 

The EU will also spend EUR 8 billion between 2021 and 2027 through the European Defence Fund to complement Member States’ investments in research and development in the area of security and defence. According to the European Defence Fund Regulation[3], the European Commission is responsible for deciding how to allocate these funds. In doing so, it is assisted by external experts, who contribute to the evaluation, ethics review and budget estimate assessment of proposals.

The Commission must select experts based on their skills, experience and knowledge, taking account of the tasks to be assigned to them, seeking to ensure an appropriate rotation of the experts and appropriate private-public sector balance. The independent experts should not evaluate, advise or assist on matters with regard to which they have any conflicts of interest, in particular as regards their position at the time of the evaluation. Normally, when the Commission selects and remunerates external experts to assist in the evaluation of proposals, lists of the experts are made public, thereby allowing for some public scrutiny. However, the EDF Regulation explicitly derogates from this general rule in that the identity of these experts is not publicly disclosed.[4] It is therefore all the more important that the conflict of interest assessment, conducted by the Commission when selecting experts, is robust.

In the context of previous correspondence on the subject of the European Defence Fund^[5], the Commission informed my Office of its “corporate approach” regarding conflict of interest management, which seems to rely largely on the selected experts’ self-declaration of (the absence of any) conflicts of interest.

Against this background, I have decided to open an inquiry to examine how the Commission ensures that there are no conflicts of interest with external experts who assist it in project proposal evaluations, ethics assessments and cost estimations under the European Defence Fund.

I have concluded that, as a first step, it would be useful to receive a written reply from the Commission to the questions listed in the annex. Please note that I will make the Commission’s reply public.^[6]

The inquiries officer responsible is Mr Koen Roovers.

I would be grateful to receive the Commission's reply by 31 January 2024.

Yours sincerely,

Emily O'Reilly
European Ombudsman

Strasbourg, 10/11/2023

 

Annex - Questions for the Commission in OI/5/2023/KR

1. In the context of previous correspondence on the subject of the European Defence Fund^[7], the Commission explained that Commission staff members in charge of dedicated European Defence Fund topics conduct preliminary checks of absence of conflict of interest when pre-selecting experts from the Expert Management Internal (EMI), a database with experts’ profiles (‘pre-selection stage’). It further explained that Commission staff members report internally, to the responsible head of unit, on the method followed for the pre-selection screening of experts, individually and as a whole. This includes aspects such as verifying expertise, availability, apparent absence of conflicts of interest, and diversity of backgrounds.

Before proposals for projects under the European Defence Fund are assigned to external experts for their evaluation, Commission staff members check, based on the experts’ CVs, that the experts appointed to assess proposals do not have the same employer as those applying for funding (pre-receipt of proposals stage).

a. May Commission staff members involved in these assessments:

• ask for additional information from potential experts to better understand whether there are risks of conflicts of interest? If so, please provide some examples.
• use publicly available material to cross-refer or verify aspects or do they rely solely on the information provided by (or in the response of) the experts?

b. What information do experts need to fill in when registering online?[8] Please provide the relevant template.

If experts are required to upload a CV, does the Commission prescribe a certain format/minimum information to be provided?

c. Could the Commission please elaborate on how the elements provided under chapter 2 on ‘Impartiality’ of the applicable code of conduct for experts[9] are assessed at pre-selection stage?

2. In the context of previous correspondence on the subject of the European Defence Fund[10], it transpired that the Commission applies a “corporate approach” regarding conflict of interest management, which relies largely on the selected experts’ self-declaration of (the absence of any) conflicts of interest.

a. How often have experts self-declared conflicts of interest to date? Please provide data for each annual spending round.[11]

b. Similarly, how often were experts recused from the evaluation of proposals? Please provide data for each annual spending round.

3. When a conflict of interest is identified that would normally lead to the exclusion of the expert[12], Commission staff members may decide to retain the expert, if the following three cumulative conditions are met:

• i. the expert works in a different department/laboratory/institute from the one where the action is to be carried out and
• ii. the departments/laboratories/institutes within the organisation concerned operate with a high degree of autonomy and
• iii. the participation is justified by the requirement to appoint the best available experts and by the limited size of the pool of qualified experts.’

a. How often have experts with conflicts of interest[13] been retained in evaluation panels?

b. Similarly, has the Commission issued guidance for staff members involved in managing conflict of interest situations, including as regards how to exercise discretion for applying the derogation to exclusion? If so, please provide a copy of this guidance with the reply.

4. The following situations may be considered as constituting a conflict of interest, if the Commission staff members so decide “in view of the objective circumstances, the available information and the potential risks”:

i. employment of the expert by one of the applicants (or linked third parties or other third parties involved in the action) in the last three years

ii. involvement of the expert in a contract, [..] or membership of management structures (e.g. member of management or advisory board etc.) or research collaboration with an applicant, linked third party or other third party involved in the action in the last three years

iii. any other situation that could cast doubt on his/her ability to participate in the evaluation impartially, or that could reasonably appear to do so in the eyes of an outside third party.[14]

a. Based on the model contract, is it correct that, where one or more of these instances arise, the responsible Commission staff members may decide to exclude the expert from the evaluation of the proposal concerned, or also for competing proposals or the entire call, and, if necessary, to replace him/her and organise a re-evaluation?

b. How many cases has the Commission identified as falling under points i. to iii. above? Please provide data for each annual spending round.

c. In how many of these cases were experts with conflicts of interest excluded from the evaluation panels? Please provide data for each annual spending round.

d. Has the Commission issued guidance for staff doing this conflict of interest assessment, including as regards how to exercise discretion for retaining potentially conflicted experts on the evaluation panels? If so, please provide a copy of this guidance with the reply.

5. a. Did the Commission receive alerts, for example from other experts, applicants or third parties, as regards risks of conflict of interest, aside from self-declarations of experts? If yes, please provide examples and data for each annual spending round.

b. Does the Commission provide for other possibilities to raise such alerts with it?

c. Are experts informed about the applicable whistleblowing rules? If so, how?

d. Is it possible for the Commission to carry out audits or ex post reviews to ensure that the experts appointed are not conflicted?

6. Does the Commission report on any issues related to conflicts of interest outside the Commission, for example, to the Programme Committee (representatives of EU Member States) or to the European Parliament?

 

[1] The European Peace Facility is based on a decision adopted by the Council. See: https://www.consilium.europa.eu/en/policies/european-peace-facility/.

[2] See the Act in Support of Ammunition Production (ASAP): https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2023.185.01.0007.01.ENG&toc=OJ%3AL%3A2023%3A185%3ATOC.

[3] Regulation 2021/697 establishing the European Defence Fund, see: https://eur-lex.europa.eu/eli/reg/2021/697/oj.

[4] See Article 26(2) of Regulation 2021/697, linked in footnote 2.

[5] See: https://www.ombudsman.europa.eu/en/doc/correspondence/en/172253.

[6] If you wish to submit documents or information that you consider to be confidential, and which should not be made public, please mark them ‘Confidential’. Encrypted emails can be sent to our dedicated mailbox.Information and documents of this kind will be deleted from the European Ombudsman’s files shortly after the inquiry has ended.

[7] See: https://www.ombudsman.europa.eu/en/doc/correspondence/en/172253.

[8] See: https://ec.europa.eu/info/funding-tenders/opportunities/portal/screen/work-as-an-expert.

[9] See the situations listed in points (a) on pages 1 to 5 of Annex 1 of the Model Contract for Experts: https://ec.europa.eu/research/participants/data/ref/h2020/experts_manual/h2020-experts-mono-contract_en.pdf.

[10] See: https://www.ombudsman.europa.eu/en/doc/correspondence/en/172253.

[11] The Commission has taken decisions as regards two annual spending rounds:

· 20 July 2022: https://defence-industry-space.ec.europa.eu/funding-and-grants/calls-proposals/european-defence-fund-2021-calls-proposals-results_en;

· 26 June 2023: https://defence-industry-space.ec.europa.eu/funding-and-grants/calls-proposals/result-edf-2022-calls-proposals_en#:~:text=Following%20the%20second%20calls%20for,Million%20are%20selected%20for%20funding

[12] See the situations listed in Annex I “Code of Conduct”, 2.1 point (a) on page 2 of the Model Contract for Experts: https://ec.europa.eu/research/participants/data/ref/h2020/experts_manual/h2020-experts-mono-contract_en.pdf.

[13] As per Article 2.1 (a) of Annex 1 of the Model Contract for Experts, see footnote 7.

[14] Idem.