By: Guillermo Ferrer Hernáez, Junior Research Associate, PILPG-NL
As Max Weber said in Politics as a Vocation, “some live for politics, and others live from politics.” There is nothing reproachable in earning money by working in political institutions. Nevertheless, in recent years the issue of “revolving doors,” which refers to the flow of politicians and public staff members between the public and the private sector, has led to growing concern because of the consequences this has on the transparency and accountability of European Union institutions.
On May 18, 2021, after several accusations of lack of transparency in the EU institutions, the European Ombudsman launched a wide-ranging inquiry into the European Commission's handling of staff revolving door cases. This blog will analyze the European Ombudsman's role in ensuring enhanced transparency and accountability in European institutions, looking at the issue of revolving doors.
Legal framework regarding transparency
EU law already contains provisions relating to the impartiality of the institutions of the European Union when exercising administrative functions, and allows for the creation of further provisions to achieve this objective. Article 399 TFEU establishes the obligation of the members of the European institutions to maintain professional secrecy, even after they have ceased to hold office. This provision, contained in one of the founding treaties of the EU, provides the basis for protecting the integrity of the European institutions against conflicts of interest that may arise from the use of revolving doors. In addition, Article 41 of the EU Charter of Fundamental Rights underlines the importance of the right to good administration, which can be affected by the practice of revolving doors.
EU secondary legislation also addresses the issue of transparency and good administration. The EU Staff Regulations underline several provisions regarding how staff should proceed when leaving EU institutions and working for the private sector. The EU Staff Regulations oblige EU former civil servants to carry out their duties and conduct themselves solely with the interests of the Union in mind as established under Articles 16 and 17. In the performance of their new duties, former EU civil servants must not deal with matters in which they have any direct or indirect personal interest that might impair their independence. In addition, several EU institutions, such as the EU Commission, have established their own codes of conduct for staff, providing guidance on how to apply the EU Staff Regulations.
Even if these rules implement clear guidelines for protecting the integrity of the EU institutions and civil service, there is room for their enforcement. For instance, there have been several occasions where European Union’s institutions have failed to address the issue of revolving doors. One such example was where the former Head of the Directorate-General for Communications Networks, Content and Technology was allowed leave to work for Vodafone, where he engaged in lobbying activities.
The role of the EU Ombudsman in the issue of revolving doors
The European Ombudsman promotes good administration at the EU level by investigating complaints concerning EU institutions and organizations' maladministration and proactively looking into more significant systemic concerns. When the European Ombudsman determines that maladministration has occurred, her recommendations are sent to the institution or entity concerned, which has three months to respond to the European Ombudsman. If the institution rejects the recommendations, the European Ombudsman may submit a special report for consideration by the European Parliament. The European Parliament, in turn, can draft a report on the Ombudsman's special report to try to force the institution to change its behavior.
The current revolving doors problem has caught the attention of the European Union's guardian of good administration, Emily O'Reilly. The European Ombudsman has played an active role in the revolving door phenomenon since former Commission President, José Manuel Barroso became the chairman of Goldman Sachs in 2015. The European Ombudsman already carried out a strategic inquiry between 2017 and 2019 to measure how the European Commission manages revolving door situations of its staff members. The report underlined that revolving doors may give rise to 1) conflicts of interest with the legitimate interests of the Commission; 2) the disclosure or misuse of confidential information; 3) former staff’s use of personal relationships with ex-colleagues for lobbying.
The EU Ombudsman's inquiry found that, even if the Commission generally complies with the rules governing EU staff and tries to avoid the issue of revolving doors, more can be done to enforce these rules effectively in a meaningful way, especially in the case of senior officials. As a result of this inquiry, O'Reilly made a series of suggestions to improve the implementation of these practices.
The new inquiry to the EU Commission
Continued accusations by civil society organizations of new revolving doors cases prompted a new inquiry that started in 2020, looking more closely at how the Commission manages cases regarding a certain number of specific Commission departments, also known as directorates-generals (DGs). The Ombudsman has examined documents related to 100 decisions adopted by the Commission in connection with applications for access to a new activity by former staff members of a designated set of DGs and services. The Ombudsman is currently waiting for the Commission to respond to certain questions regarding decisions on post-employment activities of former staff members.
The future of the consequences of the inquiry
In the words of the European Ombudsman, good management of the revolving doors issue is essential to maintain confidence in the EU institutions. Any perception that the rules are not being adequately applied risks creating doubts about whether the EU administration is acting entirely in the public interest. Therefore, although it is not yet possible to know the content of these investigations due to their confidential nature, it is likely that the inquiry will reveal potential conflicts of interest and make the necessary recommendations to put an end to these practices within the EU Commission.