Published by: EUObserver, July 12, 2013
Written by: Rachel Tansey, whilst a campaigner against “lobbycracy” with the Brussels-based NGO, Corporate Europe Observatory
Last week saw the European Parliament passed new EU staff regulations, the rules that govern the 30,000 plus staff working in the EU institutions.
The dossier has been fraught with difficulties and delays, with pressure from member states to cut staff pay, increase hours and retirement age and otherwise bring EU staff in line with austerity measures.
The compromise agreed last week has left some unions angry and other commentators dissatisfied, but what has not been given much attention are the implications of the new staff regulations for conflicts of interest that arise through the “revolving door.”
The revolving door refers to public officials leaving office and going to work in private sector lobby jobs, often in the same areas they were responsible for in office, or vice-versa.
This creates a significant risk of conflicts of interest, which – if left unmanaged – facilitates the privileged access and undue influence of corporate groups that undermines democratic, public-interest decision-making in the EU.
The cumulative effect of the revolving door is that the interests of the regulated begin to blur with the interests of the regulator. You only need to look at the areas of banking regulation or climate policy to see the damage that this can do.
Corporate Europe Observatory (CEO) has documented many high-profile revolving door cases in the EU institutions, where the rules that exist under the old staff regulations – or the implementation of these rules – have proved to be too weak or have failed to apply because of serious loopholes.
These range from high-level cases in the financial sector to heads of cabinet being permitted to set up lobby consultancies with their former commissioner, despite staff representatives expressing deep concerns.
Several groups from the Alliance for Lobbying Transparency and Ethics Regulation (ALTER-EU), including CEO, have taken the commission to the European Ombudsman, who is now investigating the commission’s systemic failure to properly implement its own revolving door rules.
The Ombudsman’s investigation will include an analysis of all revolving door cases from the last three years.
What we have also seen over the last year, in the wake of the tobacco lobby scandal that ousted commissioner John Dalli last October, are the far-reaching effects of the revolving door.
Suspicions and theories about ‘Dalligate’ have swept through Brussels, including that the whole fiasco could have been a tobacco industry set-up.
Much remains unclear, but what we do know is that the revolving door has been spinning in the background.
The key lobbyist of Swedish Match (the tobacco company that made the complaint that led to Mr Dalli’s downfall), Johan Gabrielsson, and the lawyer, Gayle Kimberly, that Swedish Match hired as a lobby consultant to facilitate contacts with Dalli, are both former EU institution staff.
Amazingly, Gabrielsson, after working at the commission for five years, faced no screening for conflicts of interest or any restrictions when he became a tobacco lobbyist.
According to the rules in both the old and new staff regulation, staff are bound by a two year notification period after they leave their EU job. During this time, they must inform their former institution of any new jobs (paid or not) that they plan to start, so they can be assessed for conflicts of interest.
Their new occupation can then either be permitted in full, with certain restrictions (for example, on contacting former colleagues, working on dossiers previously responsible for, or for clients they previously had contact with) or in extreme cases, forbidden (for that two year period).
In the case of Gabrielsson, no such application for permission was made and consequently his new job as a tobacco lobbyist was not checked for risk of conflicts of interest.
The leaked Olaf investigation report also revealed that Swedish Match had asked their lobby consultancy, Kreab Gavin Anderson, to find them someone “with good knowledge of work within the EU institutions”.
This led Swedish Match to approach Commission-employed Gabrielsson. In other words, helping to recruit your own revolving door case has become a service offered by lobby consultancies in Brussels.
In the case of Gayle Kimberly, the lawyer Swedish Match hired as a lobby consultant, the European Council – where she was employed for 6 years – has refused CEO access to any documents about how she was screened for conflicts of interest when she left in December 2010.
Moreover, whilst they won’t give us access to them, they name several documents which relate to our request – none of which are applications for post-employment activity. This seems to indicate that her new roles were also not screened for risk of conflicts of interest.
Working for the EU and Big Tobacco
But what is even more astonishing in the growing opus of Dalligate-related revolving door cases is that the man charged with advising commission President Jose Manuel Barroso on the revolving door for commissioners – Michel Petite, who is part of the ad hoc ethical committee – is himself a high-profile revolving door case with serious conflicts of interest.
Petite is the former head of the commission’s legal service, who now works as a lobbyist for law firm Clifford Chance, which offers clients assistance in “shaping law and policy as it evolves” and yet shuns the EU’s lobby transparency register.
Dalligate led to revelations that Petite had been having behind-closed-doors meetings with his former colleagues in the legal service on the new and controversial Tobacco Products Directive, whilst having tobacco giant Phillip Morris International as a client.
These meetings very likely broke UN law on tobacco control.
Yet the commission still decided he was a good choice to advise them on conflicts of interests that might arise when commissioners take up new jobs.
The European Ombudsman is now investigating the commission over its staggering lack of judgement, after CEO and other groups complained that Petite’s reappointment breaches the requirements to be independent and to have an impeccable professional record.
All of these things have given the impression that the EU institutions do not care about the impact of the revolving door on both public-interest policy making and on public trust in the EU.
The new staff regulations however offer some opportunity for this foolish disregard of the revolving door to be rectified.
The new revolving door rules differ from the old ones in two main ways: they introduce a one year cooling-off period for senior officials, as well as transparency around these cases, and they set up a system of proper scrutiny for incoming officials.
The new staff regulations, which will enter into force at the beginning of 2014, augment the rules on outgoing officials to include a new 12 month cooling-off period for senior officials.
This bans them from lobbying their former institution “for their business, clients or employers on matters for which they were responsible during the last three years in the service.”
Moreover, all EU institutions will be required – in accordance with data protection laws – to annually publish information on the implementation of this rule, including a list of cases assessed. This is a step forward from the old rules, which contained no cooling-off periods, only the two year notification period for all staff, which also remains in the new rules.
It also offers a promising precedent for transparency about revolving door cases.
Whilst the old staff regulations contain some general language about conflicts of interest, the new rules lay out a concrete procedure for screening new staff.
The new text requires candidates to list any actual or potential conflict of interest they might have vis-a-vis the position they’re applying for, on a specific form. The institution must then examine if this could impair their independence, and issue a “duly reasoned opinion.”
This is good news in several ways.
Firstly, it sets up a concrete procedure that must be followed by the institutions, and secondly, it will create a paper trail that watchdog groups like CEO can use (via access to documents requests) to check if the institutions are taking the rule seriously.
Because the key thing with rules on conflicts of interest, as we have seen, is how they are implemented.
Its not all a bed of roses however. The new rules may mark progress, but they do not go far enough to stop the revolving door’s contribution to the corporate capture of EU policy-making.
The language around the 12 month cooling-off period for senior officials is very narrow and contains several loopholes, not least that ‘senior officials’ refer only to Directors-General and Directors (or their equivalent).
CEO, as part of Alter-EU’s Block the revolving door campaign, believes that a mandatory two year cooling-off period is needed on taking up lobby jobs, or any other role that provokes a conflict of interest with their work as an official, for all EU institution staff.
We have also called for the EU institutions to publish a full and updated list of all revolving door cases on their websites.
The new staff regulations offer first steps on both of these issues.
But as long as restrictions on lobbying, and transparency around the revolving door, remain limited only to very senior officials for one year only, our work to prevent the harmful impacts of the EU’s revolving door will have to continue.
View the original article on EUObserver at http://euobserver.com/opinion/120840