Abstract
Public officials taking up roles, particularly lobbying ones, in the private sector after leaving the public service, is a phenomenon that raises concerns about conflicts of interest, affecting public trust in the EU. Art. 16 of the Staff Regulations (SR) provides for an obligation to declare activities after leaving the service and for the possibility of banning or restricting some of them. Is Art. 16 of the Staff Regulations a sufficient basis in order to avoid any potential conflict of interest? Is Art. 16(3), which prevents senior officials from lobbying their own institution after leaving the service efficiently applied?
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Notes
A conflict of interest is defined as “a conflict between the public duty and private interests of public officials which could improperly influence the performance of their official duties and responsibilities”, OCDE [1], p. 15.
According to the Oxford English Dictionary, a revolving door system is “something characterised by repetition of the same events, problems, people, etc., in a continuous cycle”. In the field of lobbying, however, the term is used to describe the movement of persons between the public and the private sectors, i.e., politicians or decision-makers in the public sector becoming interest representatives, and likewise the movement of lobbyists who get elected or appointed to public posts. [3], p. 2.
Chambre haute du Sénat.
Following Art. 25 decies of law no 83-634 of 13 July 1983 on rights and obligations of officials, two new Articles have been inserted which have as follows: «Art. 25 undecies. – Il est interdit à tout ancien fonctionnaire ou agent public d’exercer une activité de conseil qui a trait directement ou indirectement aux missions de service public attachées à ses anciennes fonctions pendant un délai de trois ans. Art. 25 duodecies. – Il est interdit à tout ancien fonctionnaire ou agent public en disponibilité et ayant exercé des fonctions pour le compte d’une entreprise publique ou privée ou pour une société de conseil d’occuper une fonction impliquant une mission de service public ou l’exercice de prérogatives de puissance publique directement ou indirectement liés aux secteurs d’activités dans lesquels il est intervenu pendant un délai de trois ans».
For example retirement, dismissal, resignation or the end of a contract.
Recipients of an invalidity allowance who intend to engage in employment, gainful or not, have to request authorisation from the Appointing Authority in order to do so. However, in those cases, it is not only the risk of a conflict of interest that will be assessed by the Appointing Authority, but also whether such an activity is consistent with the basis on which the invalidity allowance was granted, in accordance with Art. 13(2) of Annex VIII of the SR.
“Activité professionnelle” in the French text.
Including temporary and contract agents by virtue of Art. 11 and Art. 81 of the Conditions of Employment of other servants (CEOS) respectively. By way of exception, Accredited Parliamentary Assistants, i.e., assistants of the Members of the European Parliament, are bound by this obligation only if they have worked for the European Parliament for at least five years (Art. 8 of the Implementing Provisions of Title VII of the CEOS (Decision of the Bureau of the Parliament of 14.04.2014).
Decision of the European Commission of 21.12.218, C(2018)9184 final.
Decision No 61/2015 on outside activities and assignments and Decision No 43/2019 on the implementation of the second paragraph of Art. 16 of the SR and Arts. 11 and 81 of the CEOS.
Decision of the Bureau of the Parliament of 7 July 2008.
Case F-86/13 Van de Water, EU:F:2014:233, point 48 and Case T-667/18 Pinto Teixeira, EU:T:2019:821, point 45.
Case T-667/18 Pinto Teixeira, EU:T:2019:821, point 51.
Idem, point 30.
Idem, point 31.
Case C-90/05 P, de Compte, EU:C:1997:198, point 35.
Art. 15 of the Charter of Fundamental Rights of the European Union (OJ C 326, 26.10.2012, p. 391–407), entitled “Freedom to choose an occupation and right to engage in work” reads as follows: “1. Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation. 2. Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State”.
Senior officials include Directors-General and Directors for all institutions. In particular for the Commission, this also includes “Hors Classe” advisors and Heads of Cabinet as well as principal advisers. For the Parliament and the Ombudsman this term encompasses the Secretary-General and Deputy Secretary-General of the institution.
Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC.
SI/2/2017/NF, https://www.ombudsman.europa.eu/en/case/en/49765.
A French survey indicated 70% support for a system that would oblige civil servants to acquire experience in the private sector during their career, [OECD]. 2010 p. 43.
Draft recommendation of the European Ombudsman in the inquiry based on complaints 2077/2012/TN and 1853/2013/TN against the European Commission, https://www.ombudsman.europa.eu/en/recommendation/en/56216.
CASE 2168/2019/KR, opened on 16 January 2020, decision on 18 November 2020, https://www.ombudsman.europa.eu/en/case/en/56050.
CASE OI/3/2021/KR, opened on 22 February 2021 on the European Defence Agency, https://www.ombudsman.europa.eu/en/correspondence/en/138504.
CASE OI/1/2021/KR, opened on 3 February 2021, https://www.ombudsman.europa.eu/en/case/en/58428.
The broad term “insider information” is commonly used to refer not only to information formally classified as confidential, but also to information to which public officials have access in the course of their duties and which is not available to the public, OECD [2].
The Parliament has adopted recently an own-initiative report for the creation of an independent EU Ethics body that will have investigative and enforcement powers, including in revolving-door cases, https://www.europarl.europa.eu/doceo/document/TA-9-2021-0396_EN.html.
References
OECD: Managing Conflict of Interest in the Public Service: OECD Guidelines and Country Experiences. OECD, Paris (2004)
OECD: Post-Public Employment, Good Practices for Preventing Conflict of Interest (2010)
Revolving doors in the UE and the US. https://www.europarl.europa.eu/cmsdata/216441/EPRS_BRI(2018)625105_EN_revolving_doors.pdf
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Despotopoulou, E. Those doors that keep revolving: reflections on a subject with hardly any case law. ERA Forum 22, 643–653 (2021). https://doi.org/10.1007/s12027-021-00695-1
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DOI: https://doi.org/10.1007/s12027-021-00695-1