guidelines on the prevention and management of conflicts of

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Guidelines

on the prevention and management of conflicts of interest

in EU decentralised agencies

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EXECUTIVE SUMMARY

• By including conflict of interests in the list of issues to be addressed, the Common Approach on EU decentralised agencies underlines how important this issue is for the EU institutions.

• Decentralised agencies were created in order to respond to very specific needs identified by the EU and its Member States in different areas. To meet the objectives entrusted to them, agencies need to have access to the highest level of expertise available in each of their respective fields.

• In many areas this expertise is so specialised and there is not always a genuine choice of alternative expertise available. It is therefore essential that the agency can still be given access to specialised experts - while being made fully aware of all the interests involved and possible risks of conflict of interests or appearance of conflict of interests, in order to act upon these risks.

• Conflicts of interest or appearance of conflicts of interest therefore cannot always be entirely avoided. Risks of actual or perceived conflicts of interest should be identified and correctly managed. All agencies falling under the scope of the Common Approach, as well as any other future decentralised agency, should have a policy on management or prevention of conflicts of interest.

• However, agencies' exposure to the issue of conflict of interest varies significantly from one to the other, depending notably on the tasks entrusted to them.

• These Guidelines aim at supporting agencies, by providing a set of principles and tools that they should consider in order to develop their own conflict-of-interest policy, with due consideration to the specific context in which each one of them operates, as well as their degree of exposure to the risk of conflict of interest.

• Before developing a conflict of interest policy, each agency should therefore perform an assessment to identify its degree of exposure. The policy developed by each agency should draw upon the core principles and tools proposed in these guidelines, concerning in particular its transparency, the clarity of rules and awareness-raising, its selection procedures for experts and board members, declarations of interest, its internal decision-making, the identification of risk levels, the preventive actions applicable in case of conflict of interest, breach of trust and remedial actions, rules applicable to agencies' staff members subject to the Staff Regulations, monitoring and periodical review of the effectiveness of such policy.

• While these Guidelines aim to provide a common set of principles and tools, agencies are legally independent entities and they alone are responsible for the way they handle this issue in practice. As such, ultimately, agencies are responsible for developing their own framework on conflicts of interest (including on declarations of interest, identification of risk levels, preventive and corrective actions), for its implementing, monitoring and reporting. Management attention and clear communication conveying core values such as integrity and impartiality are equally necessary. The Network of EU Agencies should also continue to serve as an important channel for discussion and sharing of best practices in this area.

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Background

The Common Approach endorsed by the Inter-institutional Working Group on EU decentralised agencies in July 2012 mandates the Commission to "examine, together with the agencies, if there is scope for a harmonised approach" on preventing and managing conflicts of interest for management board members and directors. It also suggests looking at the issue with regard to members of scientific committees and boards of appeal in the agencies.

Therefore, as part of the Roadmap on the follow-up to the Common Approach, adopted by the Commission on 19th December 2012 the Commission committed itself to elaborate, in cooperation with agencies, Guidelines for a coherent approach to "the prevention and management of conflicts of interest for members of the management boards and directors1, experts in scientific committees and members of boards of appeal".

Preparation of these Guidelines

In preparation of these Guidelines, the Commission pursued an extensive mapping of existing rules and practices in all the agencies, to identify the current state of play, as well as good practices. A summary of this inventory is presented in Annex 1. The inventory shows that all agencies have in place conflict-of-interest policies for their statutory staff, while many of them have also implemented specific rules or policies for those not bound by the Staff Regulations such as management board members and experts.

The Commission also took into account the main recommendations addressed to agencies in this area by the European Parliament (in the framework of the discharge), the European Court of Auditors (in its Special Report nr. 15/2012 "Management of conflict of interest in EU selected Agencies"), the Ombudsman (on the occasion of his visits to several agencies, as part of a programme launched in May 2011) and Commission's Internal Audit Service (also the internal auditor of the agencies), as well as Commission's own rules on ethics.

The Commission worked closely with the agencies during the preparation of these Guidelines, through the network of Heads of EU Agencies. As they had already gathered very valuable information, experiences and examples of best practices, this served as a useful contribution to the process. Agencies are encouraged to continue sharing new developments/experiences, with the support and guidance of the network of Heads of EU Agencies and/or one of its specialised sub-networks.

Agencies seeking to develop a comprehensive conflict-of-interest policy can, where applicable, also benefit from the experience acquired by those agencies that have already developed more advanced procedures. Some benchmarking could also be carried out against activities undertaken by international bodies such as OECD or WHO, provided they are applicable in scope. The relevant documents are generally publicly available on their websites.

1 Directors are covered by the Staff Regulations - see below on Objective and scope of these Guidelines

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Objective and scope of the Guidelines

As agencies are legally independent entities, they alone are responsible for the way they handle this issue in practice.

The objective of these Guidelines is to give support to agencies, by providing a set of principles and tools they should consider, with due consideration to the specific context in which each one of them operates and their degree of exposure to the risk of conflict of interest, in order to develop their conflict-of-interest policy.

The Guidelines concern the following persons:

Members of management boards, boards of regulators and boards of supervisors (with particular attention - but not limited to - those nominated in 'a personal capacity'). These bodies are responsible for the supervision of agencies' activities and make strategic decisions. It is therefore important that they act in the full interest of the specific mission entrusted to the agency.

• Experts in scientific committees or similar bodies2 directly collaborating with the Agency but who are not employed by the Agency (e.g. scientific panels, technical advisory bodies, advisory forums, groups of experts, individual experts). By providing scientific and technical advice e.g. with regard to the final decisions/opinions adopted by their bodies or providing technical knowledge in preparation of complex tender dossiers, they play a crucial role, especially when their opinions form the basis of subsequent Commission decisions.

• Members of boards of appeal: Boards of appeal are set up in agencies that adopt individual decisions, which may be challenged by third parties. Their role is to review whether the challenged decision is in line with the applicable rules and regulations. Their independence and objectivity are therefore of paramount importance.

• Staff members of the agencies subject to the Staff Regulations and Conditions of Employment of Other Servants (CEOS) including the Directors of agencies (see section 9).

• Beneficiaries of EU grants and contracts when the grants or contracts relate to work for which independence is required.

• Seconded national experts and trainees.

All decentralised EU agencies falling under the scope of the Common Approach (Annex 2) - as well as any other future decentralised agency - should have a policy on the prevention and management of conflicts of interest.

Other EU decentralised bodies, such as the Joint Undertakings and the European Institute for Innovation and Technology, may also use these Guidelines as reference to develop a conflict-of-interest policy.

2 The Guidelines do not apply to stakeholders or Member States "representatives" in such bodies.

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GUIDELINES FOR CONFLICT-OF-INTEREST POLICIES IN EU DECENTRALISED AGENCIES

INTRODUCTION

1. Definition: what constitutes a conflict of interest?

A conflict of interest generally refers to a situation where the impartiality and objectivity of a decision, opinion or recommendation of an Agency is or might be perceived as being compromised by a personal interest held or entrusted to a given individual.

Relevant personal interest may be of financial or non-financial nature and it may concern a personal or family relationship or professional affiliations (including additional employment or "outside" appointments or former employments or appointments) and other relevant outside activities.

Not only actual independence but also perception of independence is important, since it can impact on agencies' reputation by raising doubts about the conclusions reached. The appearance of conflict of interest can constitute a reputational risk to the agency, even if it turns out to be unsubstantiated.

Therefore, giving due consideration to proportionality, specific backgrounds, all relevant facts and mitigating circumstances, a risk of perceived conflict of interest should be treated as if it were an actual conflict.

2. Expertise

Agencies were created in order to respond to very specific needs identified by the EU in different areas. To meet the objectives entrusted to them, agencies need the highest level of expertise available in their respective fields.

Such expertise is built over time, through contact and collaboration with the relevant stakeholders in a specific sector.

However, the need to avoid conflicts of interest should not prevent agencies from collaborating with and seeking input from high level experts. As the persons concerned are generally experienced and may have interests arising out of their professional background and capacity, appearance of conflict of interest, cannot always be entirely avoided. The risks of actual or perceived conflicts should be identified, evaluated and managed (see below). This is particularly relevant in areas where available expertise is limited.

A fair, proportionate and timely handling of each case should therefore be ensured.

3. Transparency

The best way to foster integrity and accountability is to ensure transparency in all instances, within the limits of the respect of personal dignity, in compliance with the data protection legislation, in particular Regulation (EC) No 45/2001 (and the consultation of the European Data Protection Supervisor as appropriate) whilst avoiding a disproportionate administrative burden.

The individuals concerned should assume individual responsibility by declaring their interests or absence of interest in good faith.

Transparency should be complemented by a culture of declaring interests and possibly abstaining in cases where a conflict of interest exists or could be perceived. Withdrawal should not automatically imply full resignation. In certain situations of CoI, declaring the interest while abstaining from

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contributing, giving advice or participating in the decision-making, could be considered proportionate (see below point n°7 on preventive actions).

4. Agency's exposure to conflict of interest and risk assessment

Agencies fulfil very different roles: some contribute to the Commission decision-making process: some have regulatory powers themselves, while others act as observatories/monitoring centres in their respective field.

Their governance structure is also different: some only have management boards (whose members may be appointed by national administrations, but also by different bodies at EU or European level, or even in a personal capacity), others also have boards of regulators or boards of supervisors. Scientific committees or similar bodies (or simply the possibility that the agency reverts to external experts) are present in almost half of the agencies. Boards of appeal are also functioning in about a third of them.

Agencies' exposure to the issue of conflict of interest therefore varies significantly from one to another. However, efforts shall be made in order to implement the general principles and tools set in the draft Guidelines in a coherent manner across the agencies.

Before developing a conflict-of-interest policy, agencies should therefore perform an assessment to identify their degree of exposure to conflicts of interest, taking into account the following risk factors:

• the powers entrusted to the agency, with a focus on their regulatory and economic significance: conflict of interest is particularly relevant in agencies entrusted with regulatory or inspection powers, or with significant decision-making with potentially important costs involved and/or impacts, or form an indispensable part of the basis for the Commission decision-making.

• areas of responsibility of the persons concerned: generally speaking, conflict of interest is particularly relevant in respect of persons directly involved in or having an influence on a decision-making process.

• number of persons concerned and duration of relationship with the agency: the risk of conflict of interest may need different controls in case of a large number of one-off experts than with a limited group of experts on repeated contracts.

• the lack of a conflict-of-interest policy in the agency (or, if such a policy exists, its limited scope or weak implementation).

• the internal governance / decision-making structures of the agency (whether: panels/committees' composition is balanced, decision-making collegiate, etc.)

• the agency's control over selecting and monitoring the persons concerned (e.g. experts selected unilaterally by Member States or employed in the national authority; board members)

The IAS will help Agencies develop risk factors to be taken into consideration in assessing each agency's degree of exposure to CoIs.

Based on the results of this assessment, each agency should decide the specific way in which the principles and tools below should be implemented:

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1. TRANSPARENCY

Agencies should publish on their websites their policies and rules for the management or prevention of conflict of interest, in a clear and easily identifiable manner. These rules / policies should be adopted by each Agencies Management Board.

Bearing in mind the legal rights of individuals in relation to personal data protection, in particular Regulation (EC) No 45/2001, and in accordance with the policy adopted by the Management Board:

− the names of board members and external experts should be published on agencies' websites, together with the name of their employer(s) or any organization which pays them3;

− Minutes of meetings should also be published on agencies' website for public scrutiny, along with the list of participants, any declaration of interests made by any one of the attendees and consequent decision to abstain or step down.

A special section on the implementation of the conflict-of-interest policy could also be included in the annual activity report of the agency.

2. CLARITY OF RULES AND AWARENESS-RAISING

Effective application of rules requires that the rules are clear, unambiguous and easily accessible. Codes of conduct or relevant guidelines should state clearly the requirement for independence, impartiality and objectivity and contain provisions clearly detailing any exceptions based on confidentiality, regimes of pre-established incompatibilities, rules on gifts and hospitality, rules on declaration of interest and rules applicable in case of conflict of interest, rules on contact with third parties differentiating between public and private actors if and where appropriate i.e. public or private interests, selection procedures and persisting obligations after leaving the post. The relevant rules of the Staff Regulations are implemented by the agencies. Ethical guidelines and Code of Good Administrative behaviour can also serve as a reference by analogy in this respect.

The rules should further be discussed and endorsed by each agency's management board. Agencies should make sure that the persons concerned are aware of their obligations and that they bear an individual responsibility for disclosing their interests. Agencies should therefore implement awareness-raising measures, particularly ensuring the provision of information on the policy and the knowledge of its practical application (for instance by means of training on the policy to be applied but also on how to deal with various concrete situations, based on experience of implementation). Senior management of agencies should consistently deliver the message that it is important to deal with these issues in an appropriate manner.

3. SELECTION PROCEDURES

Where agencies are responsible for the selection procedure of experts or ad personam board members, they should ensure that this is to the greatest extent possible undertaken following an open and transparent call for applications, and that clear and objective eligibility / selection criteria exist.

Agencies should also examine whether the selected candidate has any personal interest such as to impair his/her independence or any other conflict of interest.

3 For stakeholders representatives, it would suffice to list the organisation represented.

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To this end, declarations of interest may be requested as part of the application. Identification of existing interests requiring interest management should facilitate the implementation of appropriate management measures.

4. DECLARATIONS OF INTEREST

The persons concerned should fill in declarations of interest statement covering both current and past interests or, if requested, their absence. The reference period for past interests should be decided by agencies themselves, depending on their assessment of their degree of exposure to actual or potential conflicts of interest.

Declarations of interest should at least include the following information on all interests that are (or could be perceived as) related to the domain of activity of the agency:

• Past activities: posts held over the last (minimum xx; maximum xx) years in foundations or similar bodies, educational institutions, companies or other organisations (the nature of the post and the name of those bodies should also be indicated); other membership/affiliation or professional activities held over the last (minimum xx, maximum xx) years, including services, liberal professions, consulting activities, and relevant public statements.

• Current activities: posts held in foundations or similar bodies, educational institutions, companies or other organisations (the nature of the post and the name of those bodies should also be indicated); other membership/affiliations or professional activities, including services, liberal profession, consulting activities, and relevant public statements.

• Above a certain minimum threshold4, any direct financial interests, (managerial stakes in companies, including ownerships of patents or any other relevant intellectual property rights), or assets (shares and/or securities held in companies) or grants or other funding which might create a conflict of interests in the performance of their duties, with an indication of their number and value, as well as the name of the company/provider of the grant/funding.

• Any other relevant interests.

• Spouse's/partner's/dependent family members’ current activity and financial interests that might entail a risk of conflict of interest

The persons concerned should be responsible for their own declarations.

Depending on the degree of exposure to the risk of conflicts of interest, agencies may request that DoIs are submitted at least annually in writing and updated. In addition, an oral or written DoI could be made with regard to the agenda of each meeting if deemed necessary. Finally, targeted written declarations may be requested in addition ahead of a meeting in relation to the specific agenda items.

These targeted declarations could be required in order to avoid any biased deliberation or decision or appearance of conflict of interests. If interests are declared ahead of or during a meeting, the identified situation should be stated in that meeting's minutes and the appropriate follow-up identified in the minutes.

The persons concerned should be directly responsible for updating the declarations of interest whenever their situation changes in respect of the interests declared.

4 To be determined by each agency depending on its degree of exposure to conflicts of interest.

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Written declarations of interest should be available for public scrutiny (including on agencies' website), with due respect to EU rules on protection of personal data. Where deemed relevant, the concerned person's CV (or a summary of his/her professional experience) could also be made available.

The agency's policy should also determine which checks are needed on the information provided in the DoIs, in order to verify if the rules are well understood and so as to detect inaccurate / incomplete declarations.

The agency's policy should also determine how training and awareness-raising is organized in order to ensure that the rules are well understood.

5. IDENTIFICATION OF CONFLICT OF INTEREST (Col)

It is worth noting that a DoI does not imply the existence of any conflict of interest. Declaring an interest does not necessarily mean having an actual or potential conflict of interest, nor does it automatically disqualify a person from participating in the activities of the agency.

The above-mentioned checks on the accuracy and completeness of information should allow the agency to react smoothly to any alleged CoI, whether substantiated or not. As mentioned above, the mere appearance of a CoI may constitute a reputational risk for the agency.

In addition, agencies should set up internal rules ensuring that each DoI is screened against the assessment mentioned above, including the specific activity that the person in question is requested to carry out in the agency, to ensure that situations implying a risk of conflict of interest are managed adequately.

Rules also need to be established to decide on the actions to be taken as a result of this screening, depending on the assessment of the degree of exposure to conflicts of interest. To this end, some agencies have developed an identification system of the degree/level of exposure to conflicts of interest.

6. DECISION-MAKING PROCEDURES FOR BOARDS, COMMITTEES AND PANELS

Decision-making procedures should be clear and transparent. They should be detailed in a set of rules of procedures that should also be made available on agencies' websites.

Upon request, minority opinions should be included in the minutes and made public, thereby ensuring transparency on divergent views.

7. PREVENTIVE ACTIONS (IF A RISK OF CONFLICT OF INTEREST IS IDENTIFIED)

To ensure adequate management of situations implying conflict of interest or appearance of conflict of interest, the person concerned should draw attention to the possible conflict before giving an opinion or advice, and rules in place should provide for restricted / no participation in those decision-making procedures (see above).

In case of conflict of interest, rules should be set up to ensure that the person concerned should either give up the conflicting personal interest (if possible e.g. at the stage of selection of the expert), or pull out/recuse himself/herself from relevant decisions and if appropriate debates for which such a conflict may arise.

Depending on the determination of the level of exposure to a risk of conflict of interest of each

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expert (that can be translated in the assignment of a risk level), he or she may therefore as a result: not be selected to form part of the group; not be appointed as or play the function of (Chair, rapporteur); not participate in the decision/vote; if appropriate not participate in the deliberations leading to that decision. In the latter case the agency will need to decide whether to benefit from the expert knowledge via other means where the expert is not involved in any participation to decision making and discussions (e.g. expert hearing/invitation on ad-hoc basis by a committee/panel).

Restrictions on the level of participation should be made publicly available. (This should also apply to decisions made in written procedure).

8. BREACH OF TRUST AND REMEDIAL ACTIONS

Appropriate actions should be foreseen in case of breach of trust (failure to declare an actual or potential conflict of interest or failure to comply with the agency's conflict-of-interest policy), for example: (i) letter of reprimand, (ii) revocation of nomination (iii) duty to resign or request for resignation. The appropriate remedial action should take into account the reasons for the failure to declare (negligence, justified lack of knowledge (for example due to confidentiality connected to the profession of the household member)). A review procedure should also be foreseen to allow for the protection of the rights of the individual concerned.

If the concerned person was involved in a decision-making procedure without having declared an interest, the agency may undertake remedial actions, in particular to review or cancel that decision if seriously affected by the conflict of interest. This implies carrying out an ex post review of the person's activities and contributions to the agency's output.

9. RULES APPLICABLE TO THE STAFF MEMBERS OF AGENCIES SUBJECT TO THE STAFF REGULATIONS AND CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS

Any staff member is obliged to carry out his/her duties independently, objectively, impartially and in keeping with his/her duty of loyalty to the EU.

Rules for staff members bound by the Staff Regulations and the CEOS are clearly foreseen in Title II (Rights and Obligations) of the Staff Regulations and the appropriate implementing rules:

− a staff member shall carry out his/her duties and conduct him/herself solely with the interest of the agency in mind (cf. Art. 11);

− a staff member shall neither seek nor take instructions from any government, authority, organisation or person outside his agency (cf. Art. 11);

− a staff member shall not without the permission of the agency accept any honour, decoration, favour, gift or payment (cf. Art 11);

− a staff member shall inform the agency of any potential conflict of interests due to any personal interest before his/her recruitment or at the end of the unpaid leave period (cf. Art. 11) (coming into force on 1 January 2014);

− a staff member shall not deal with a matter in which, directly or indirectly, he/she has any personal interest such as to impair his/her independence (cf. Art. 11a);

− a staff member shall refrain from any action or behaviour which might reflect adversely upon his position (cf. Art. 12);

− a staff member shall inform his/her agency if his/her spouse is in gainful employment (cf. Art. 13);

− a staff member shall notify his/her agency if he/she intends to stand for public office (cf. Art. 15);

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− a staff member shall refrain from any unauthorised disclosure of information received in the line of duty including after leaving the service (cf. Art. 17 and 19);

− a staff member shall inform his/her agency of his/her intention to engage in an outside activity (cf. Art. 16 and 40).

As far as outside activities are concerned, 3 types of cases are possible:

• When a staff member is on active employment, if he/she wishes to engage in an outside activity, whether paid or unpaid, or to carry out any assignment outside the agency, he/she shall first obtain the permission of the Appointing Authority. Permission shall be refused if the activity or assignment in question is such as to interfere with the performance of the official's duties or is incompatible with the interests of the agency.

• When a staff member wishes to engage in an outside activity during his/her unpaid leave, the same conditions apply. In addition and more strictly, the permission shall not be granted to a staff member for the purpose of his/her engaging in an occupational activity, whether gainful or not, which involves lobbying or advocacy vis-à-vis his/her agency and which could lead to the existence or possibility of a conflict with the legitimate interests of the agency (coming into force on 1 January 2014).

• A staff member shall, after leaving the service, continue to be bound by the duty to behave with integrity and discretion as regards the acceptance of certain appointments or benefits. Staff members intending to engage in an occupational activity, whether gainful or not, within 2 years of leaving the service shall inform the agency thereof using a specific form. If that activity is related to the work carried out by the staff member during the last 3 years of service and could lead to a conflict with the legitimate interests of the agency, the Appointing Authority may, having regard to the interests of the service, either forbid him/her from undertaking it or give its approval subject to any conditions it thinks fit (coming into force on 1 January 2014).

In the case of former agencies' Directors, the management board shall, in principle, prohibit them, during the 12 months after leaving the service, from engaging in lobbying or advocacy vis-à-vis staff of their former agency for their business, clients or employers on matters for which they were responsible during the last 3 years in the service (coming into force on 1 January 2014).

In addition, in line with Article 110 of the Staff Regulations, agencies adopt the relevant implementing rules for giving effect to the Staff Regulations, including in the area of ethics. If justified, the agencies may submit to the Commission's approval the rules adjusted to their specificities if justified.

As regards staff covered by the Staff Regulations and the Conditions of Employment, awareness raising actions and adequate communication (see above) are equally desirable for them in order to ensure that they correctly understand and apply relevant rules and procedures.

10. KEY PERFORMANCE INDICATORS (KPIs) AND REGULAR REVIEW

KPIs

Agencies could consider developing key performance indicators targeted at the detection and management of conflicts of interest. Examples of KPIs already in use by some agencies are % of declarations of interest (DoIs) processed on time; number and % of DoIs screened and evaluated;

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number and % of potential conflicts of interest identified; number and % of preventive measures /decisions limiting participation/taken in compliance with the agency's conflict-of-interest policy; number and % of cases of breach of trust; number of remedial actions / corrective actions taken / agency's output reviewed.

Periodical Review

Each agency should regularly assess the effectiveness of the existing conflict-of-interest policy, in order to adapt it to possible new risks.

The EU Agencies should continue to share between themselves new developments / best practices in this field, including on the implementation of their conflict- of-interest policies. The European Commission will stay in close contact with the agencies to that end.

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Decentralised agencies falling under the scope of the Common Approach

Nr. crt. Acronym Full name

1. ACER Agency for the Cooperation of Energy Regulators

2. BEREC Office The Office for the Body of European Regulators for Electronic Communications

3. CEPOL European Police College

4. CdT Translation Centre for the bodies of the EU

5. CEDEFOP European Centre for the Development of Vocational Training

6. CPVO Community Plant Variety Office

7. EASA European Aviation Safety Agency

8. EASO European Asylum Support Office

9. EBA European Banking Authority

10. ECDC European Centre for Disease Prevention and Control

11. ECHA European Chemicals Agency

12. EEA European Environment Agency

13. EFCA EU Fisheries Control Agency

14. EFSA European Food Safety Authority

15. EIGE European Institute for Gender Equality

16. EIOPA European Insurance and Occupational Pensions Authority

17. EMCDDA European Monitoring Centre for Drugs and Drug Addiction

18. EMA European Medicines Agency

19. EMSA European Maritime Safety Agency

20. ENISA European Network and Information Security Agency

21. ERA European Railway Agency

22. ESMA European Securities and Markets Authority

23. ETF European Training Foundation

24. eu-LISA Agency for the operational management of SIS II, VIS, EURODAC and other large-scale IT systems in application of Title IV of the EC Treaty

25. EU-OSHA European Agency for Safety and Health at Work

26. EUROFOUND European Foundation for the Improvement of Living and Working Conditions

27. EUROJUST European Union's Judicial Cooperation Unit

28. EUROPOL European Police Office

29. FRA Fundamental Rights Agency (ex - European Monitoring Centre on Racism and Xenophobia)

30. FRONTEX European Agency for the Management of Operational Cooperation at the External Boarders of the Member States of the EU

31. GSA European GNSS Supervisory Authority

32. OHIM Office for Harmonization in the Internal Market

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CONFLICTS OF INTEREST PREVENTION AND MANAGEMENT: comparative table of existing rules

I. Are policies and procedures on conflicts of interest in place?

Agencies Staff5 Management

Board Scientific

committees and/or

experts6

Boards of Appeal7

COM staff COM expert groups

Commissioners Comments

1. ACER8 X X X 2. BEREC X12 X13 – 3. CdT X X 4. CEDEFOP X X 5. CEPOL X – – 6. CPVO X – X 7. EASA X X X X

YES9 YES10 YES11

5 Decision C((2004)1597) of 29 June 2004 (outside activities) adopted by analogy 6 Only concerns: BEREC, CEPOL, EASA, ECDC, ECHA, EEA, EFSA, EMA, EMCDDA, EMSA, ENISA, ERA, FRA, GSA 7 Only concerns: ACER, CPVO, EASA, ECHA, EBA+ESMA+EIOPA (joint body), EUROJUST (JSB), EUROPOL (JSB), OHIM 8 ACER also has a Board of Regulators, whose competence is mainly to provide opinions on draft recommendations and decisions considered for adoption by the Management Board as well as to provide guidance to the Director (cf. art. 15 of the ACER Founding Regulation). There are no ACER-specific CoI rules applying to the members of the Board of Regulators, as they are already bound by strict CoI rules at national level. They are neither requested to make any DoI. 9 Staff Regulations (art. 11, 11a, 12b, 13); Decision C(2004)1597 of 29 June 2004 (outside activities) 10 Commission's rules on expert groups state that the selection of experts appointed in a personal capacity shall be carried out in such a way as to avoid any conflict of interests. The same rules state that: "The Commission services concerned shall inform experts who are appointed in their personal capacity that, by accepting to be members of the group, they commit themselves to act independently and in the public interest. Commission services shall also inform those experts that they may be excluded from the group or a specific meeting thereof, should a conflict of interest arise." 11 Code of Conduct for Commissioners (art. 1.1 to 1.5) 12 Also for SNEs; only upon taking up duties. 13 Also for the Board of Regulators

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8. EASO X – 9. ECDC X X X 10. ECHA X X X X 11. EEA X – X 12. EFCA X X 13. EFSA X X X 14. EIGE X – 15. EMCDDA X X X 16. EMA X X X 17. EMSA X X – 18. ENISA X – – 19. ERA X X – 20. ETF X – 21. EU–OSHA X – 22. EUROFOUND X – 23. EUROJUST X – X14 24. EUROPOL X – X15 25. EBA X –16 26. EIOPA X –17 27. ESMA X –18

X

14 JSB Rules of Procedure (art. 3.5): reference to members having to be independent and not be members of Eurojust staff or other Eurojust bodies. Also, where a conflict of interest arises, the person concerned has to declare that interest and withdraw from taking part in the discussion and the decision on the matter. The person concerned may be excluded by unanimous vote cast in a secret ballot by the members attending the meeting. 15 JSB Rules of Procedure (art. 4.2): reference to members having to be independent and not be members of Eurojust staff or other Eurojust bodies. Also, where a conflict of interest arises, the person concerned has to declare that interest and withdraw from taking part in the discussion and the decision on the matter. The person concerned may also be excluded by a majority of the votes cast in a secret ballot by the delegations attending the meeting. 16 General policy is under development 17 Idem 18 Idem

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28. FRA X X X 29. FRONTEX X – 30. GSA19 X – – 31. eu-LISA X – 32. OHIM X – X

19 Idem

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II. If rules are in places, which areas do they cover?

1. DECLARATIONS OF INTERESTS AND RELATED POLICIES Agencies

Staff Management Board

Scientific committees

and/or experts

Boards of Appeal



1. ACER – X X 2. BEREC X – – 3. CdT – – 4. CEDEFOP – – 5. CEPOL X – – 6. CPVO X23 – X 7. EASA X X X X 8. EASO – – 9. ECDC X X X 10. ECHA X X X X 11. EEA X – X 12. EFCA – X 13. EFSA X X X

NO20 NO21 YES22

20 Declaration of interests is not imposed by the Staff Regulations, so in general there is no such requirement for the Commission staff. Nevertheless, some DGs, taking into account their specific tasks, have more specific rules on declaration of conflicts of interest (art. 11a of the SR). NB!!! there is a big difference between declaration of interests and declaration of conflict of interests. 21 The Commission rules in force until November 2010 foresaw that experts appointed in personal capacity make each year a written declaration of commitment to act in the public interest, together with a declaration as to whether there is any interest which would prejudice their independence. According to the new rules it is not mandatory for experts to submit such declarations. However, in practice several DGs require experts appointed in a personal capacity to sign these declarations. 22 Code of Conduct for Commissioners (art. 1.5) 23 Only for the management team

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14. EIGE – – 15. EMCDDA – – – 16. EMA X X X 17. EMSA X X – 18. ENISA X24 X X25 19. ERA X – X26 20. ETF X X 21. EU–OSHA – – 22. EUROFOUND – X 23. EUROJUST – – – 24. EUROPOL X – – 25. EBA X X27 26. EIOPA X X28 27. ESMA X X29

X

28. FRA X X X 29. FRONTEX – – 30. GSA – – – 31. eu-LISA – – 32. OHIM X – X

24 Only for the Executive Director and SNEs 25 For SNEs and expert hired under calls for expression of interest 26 Only for the "independent experts" 27 Policy is in the process of being adopted 28 Idem 29 Idem

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2. POLICIES FOR SCREENING THE CANDIDATES

Agencies Staff Management

Board Scientific

committees and/or experts

Boards of Appeal



1. ACER – – – 2. BEREC X – – 3. CdT – – 4. CEDEFOP – – 5. CEPOL – – – 6. CPVO – – X 7. EASA X –32 X X 8. EASO – – 9. ECDC X X X 10. ECHA X X X X 11. EEA X – X 12. EFCA – – 13. EFSA X X X 14. EIGE – – 15. EMCDDA X X X 16. EMA X X X 17. EMSA X – – 18. ENISA X – –

NO NO30 YES31

30 Commission's rules do not address this specific point. 31 TUE (art.17) for the appointment of the Members of the Commission; Code of Conduct for Commissioners (art. 1.12) for the composition of the cabinets of the Members 32 Under development

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19. ERA – – – 20. ETF X X 21. EU–OSHA –33 – 22. EUROFOUND – – 23. EUROJUST – – – 24. EUROPOL X – – 25. EBA – – 26. EIOPA – – 27. ESMA – –

–

28. FRA X X X 29. FRONTEX X – 30. GSA – – – 31. eu-LISA – – 32. OHIM X – X

33 Members of the selection committee sign a declaration.

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3. CONFLICT OF INTEREST POLICIES FOR THE OUTSOURCING OF SCIENTIFIC ACTIVITIES34


Board Scientific


Boards of Appeal



1. ACER NA NA NA 2. BEREC NA NA NA 3. CdT NA NA 4. CEDEFOP NA NA 5. CEPOL NA NA NA

6. CPVO NA NA X NA 7. EASA NA NA – NA 8. EASO NA NA 9. ECDC NA NA X 10. ECHA NA NA NA NA 11. EEA X NA X 12. EFCA NA NA 13. EFSA NA NA X 14. EIGE NA NA 15. EMCDDA NA NA X 16. EMA NA NA X 17. EMSA NA NA NA 18. ENISA NA NA NA 19. ERA NA NA NA 20. ETF NA NA

NA NA NA

34 Situations of conflict of interests in the outsourcing of scientific activities are regulated by the Framework Financial Regulation (art. 41) by which agencies are bound.

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21. EU–OSHA NA NA 22. EUROFOUND NA NA 23. EUROJUST NA NA NA 24. EUROPOL – – NA 25. EBA NA NA 26. EIOPA NA NA 27. ESMA NA NA

NA

28. FRA NA NA – 29. FRONTEX NA NA 30. GSA NA NA – 31. eu-LISA NA NA 32. OHIM NA NA NA

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4. POLICY ON GIFTS AND INVITATIONS

Agencies35 Staff Management

Board Scientific


Boards of Appeal



1. ACER X – – 2. BEREC X – – 3. CdT X – 4. CEDEFOP X – 5. CEPOL X – – 6. CPVO X – – 7. EASA X –38 X X 8. EASO – – 9. ECDC X – X 10. ECHA X X – X 11. EEA X – – 12. EFCA X – 13. EFSA X X X 14. EIGE X – 15. EMCDDA X – – 16. EMA X X X 17. EMSA X – –

YES36 NO YES37

35 The agencies were informed about the new Commission guidelines on gifts and hospitality. However, the agencies do not submit their policy in this area for the Commission approval under article 110 SR. 36 Guidelines on gifts and hospitality for staff members (SEC(2012)167 of 7 March 2012) 37 Code of Conduct for Commissioners (art. 1.11) 38 Under development

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18. ENISA – – – 19. ERA X – – 20. ETF X – 21. EU–OSHA –39 – 22. EUROFOUND X – 23. EUROJUST – – – 24. EUROPOL X – – 25. EBA X – 26. EIOPA X – 27. ESMA X –

–

28. FRA – – – 29. FRONTEX X – 30. GSA X – – 31. eu-LISA – – 32. OHIM X – X

39 Included in the Ethics Info-session

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5. BREACH OF TRUST PROCEDURES


Board Scientific


Boards of Appeal



1. ACER X40 X X 2. BEREC – – – 3. CdT – – 4. CEDEFOP – – 5. CEPOL – – – 6. CPVO – – – 7. EASA X –43 X X 8. EASO – – 9. ECDC X – X 10. ECHA X X X X 11. EEA – – – 12. EFCA – – 13. EFSA X X X 14. EIGE X X 15. EMCDDA – – –

NO NO41 YES42

40 Follow-up procedures on outsides activities for all staff, including the executive director 41 According to the Commission's rules, the obligation of professional secrecy which, by virtue of the Treaties and the rules implementing them applies to all members of the institutions and their staff, is also relevant for expert groups advising the Commission. In the same manner, the provisions of the Commission's rules on security regarding the protection of EU classified information is applicable to expert groups. Members of expert groups and their representatives, as well as invited experts and observers, are bound by those obligations. Should they fail to comply with those obligations, the Commission may take all appropriate measures. 42 TUE (art.17.6), TFUE (art. 245 and 247), Code of Conduct for Commissioners (art. 2.1) 43 Under development

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16. EMA X X X 17. EMSA X – – 18. ENISA – – – 19. ERA – – – 20. ETF – – 21. EU–OSHA – – 22. EUROFOUND – – 23. EUROJUST – – – 24. EUROPOL X – – 25. EBA – – 26. EIOPA – – 27. ESMA – –

–

28. FRA – – – 29. FRONTEX X – 30. GSA – – – 31. eu-LISA – – 32. OHIM – – –

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6. POST–EMPLOYMENT POLICIES ('REVOLVING DOOR' POLICIES)

Agencies44 Staff45 Management

Board Scientific


Boards of Appeal



1. ACER X NA NA 2. BEREC X NA NA 3. CdT X NA 4. CEDEFOP X NA 5. CEPOL X NA NA 6. CPVO X NA NA 7. EASA X NA46 X NA 8. EASO X NA 9. ECDC X NA NA 10. ECHA X NA NA X47 11. EEA X NA NA 12. EFCA X NA 13. EFSA X NA NA 14. EIGE X NA 15. EMCDDA X NA NA 16. EMA X NA NA

YES

Staff Regulations

(art. 16) Decision

C((2004)1597) of 29 June

2004 (outside activities)

NA YES

(art. 1.2 CCC + art. 245 TFEU)

44 In its 2012 Special Report "Management of conflict of interest in selected EU agencies", the European Court of Auditors notes that the experts, the Members of the Management Board and external Members of the Board of Appeal are not bound by the Staff Regulations, so the post-employment provisions are not applicable to them, acknowledging that there are legal limitations for enforcement of such post-employment obligations upon them. 45 Decision C((2004)1597) of 29 June 2004 (outside activities) adopted by analogy 46 Under development 47 For the regular members who are ECHA staff members

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17. EMSA X NA NA 18. ENISA X NA NA 19. ERA X NA NA 20. ETF X NA 21. EU–OSHA X NA 22. EUROFOUND X NA 23. EUROJUST X NA NA 24. EUROPOL X NA NA 25. EBA X X48 26. EIOPA X X49 27. ESMA X X50

NA

28. FRA X NA NA 29. FRONTEX X NA 30. GSA X NA NA 31. eu-LISA X NA 32. OHIM X NA NA

48 According to article 70 of the EBA founding act, article 16 of the Staff Regulations applies to members of the EBA Board of Supervisors 49 According to article 70 of the EIOPA founding act, article 16 of the Staff Regulations applies to members of the EIOPA Board of Supervisors 50 According to article 70 of the ESMA founding act, article 16 of the Staff Regulations applies to members of the ESMA Board of Supervisors

guidelines on the prevention and management of conflicts of

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