Questions about where and how civil servants of the EU can seek employment once they leave their position, have become subject to discussion again. The European Ombudsman, the European Parliament and academics, have recently expressed their concern regarding the employment of Barroso, former president of the European Commission, by Goldman Sachs. The debate surrounding the ‘revolving door’ that leads from EU bodies and institutions to private companies and vice versa is not necessarily new, nor does it only concern the Commission, as similar events with regard to high-ranking agency officials show. One example is the former Executive Director of the European Medicines Agency (EMA) moving on to work for a pharma consultancy, or the Head of the Genetically Modified Organisms Unit of the European Food Safety Authority (EFSA) leaving the agency to work for a biotechnology company.
Why should one be concerned about an agency staff member moving to the industry regulated by their former agency? A significant factor is the insider knowledge they take with them. Also, undue use of their previously built up network with former colleagues might become problematic. Moreover, it also opens the door to undue influence while the concerned staff member is still working in the agency and is approached by a company with a job offer. Overall, as much as it is required to counteract undue decision-making, the prevention of conflicts of interest of staff members leaving the EU civil service is key to restoring the currently rather damaged public trust in European institutions and bodies.

The status quo: Preventing conflicts of interests of agency staff leaving their positions
The starting point for examining the rules applicable to conflicts of interest of departing agency staff are the Staff Regulations. Article 16 provides that the duty to behave with integrity also extends to future employment relations and obliges former staff to notify any occupational activity within a period of two years after leaving. Where such a notified activity is ‘related to work carried out by the official during the last three years of service and could lead to a conflict with the legitimate interest of the institution’, the occupational activity can be prohibited or made subjects to conditions by the agency. Since 2013 the Staff Regulations specifically provide that during the first year of leaving the service, senior officials should be prohibited by the institution ‘from engaging in lobbying or advocacy vis-à-vis staff of their former institution’. Notably, the Staff Regulations do not cover external experts, Management Board Members and other external people active in the agencies, such as members of the Board of Appeal.

Beyond the Staff Regulations, the agencies individually introduced conflict of interest policies to implement the Staff Regulations, which can also address the situation of staff leaving the agency. The European Medicines Agency (EMA) has adopted a Code of Conduct for its staff members that reflects the notification obligations under the Staff Regulations. Moreover, a Best Practice Guide for staff leaving the agency is in place, stating that staff members should notify their intention of taking up employment somewhere else and that they should notify this before accepting an offer. Moreover, it is also explained that the agency can restrict the activities a staff member can carry out in the agency while still working there. The agency may also prohibit or restrict the employment that can be taken up by former staff members, the conditions are then made public in an annual report.

With regard to its external experts, such as members of the scientific committees, which are in the majority representatives of national authorities, the EMA has updated its conflicts of interest policy in May 2015, resulting in an obligation to notify the intention to take up employment with the pharmaceutical industry, which leads to a full restriction of the activities these members can carry out in the scientific bodies. Furthermore, on-going procedures and in some cases even finalised procedures that could have been subject to undue influence may be reviewed at the discretion of the agency. In addition to this, the EMA also has a conflict of interest policy for its Management Board members, which, however, does not cover conflicts of interest after they cease to serve in the Board. Nonetheless, while members still serve on the Management Board, they are asked to notify the intention to take up occupational activities in the pharmaceutical industry, which will lead to restricting the members activities in the Management Board.

The European Food Safety Authority, on the other hand, has adopted a Decision of the Executive Director on Conflicts of Interests, which is addressed to members of the scientific bodies, the Management Board and the agency staff. For staff members, Article 20 of the Decision, while referring to the obligations under the Staff Regulations, also clarifies that even negotiations with future employers have to be notified. The Decision does not address negotiations with future employers for members of the scientific bodies or the Management Board, and also does not impose any notification duties upon them after they have left their agency position.

A lack of coherence and grey areas
While the Staff Regulations provide a framework for dealing with conflicts of interest for staff leaving the agencies, it is regrettable that there is no coherence in the policies the agencies adopt with regard to conflicts of interest in general. Common rules for the staff of all European agencies as well as experts and Management Board members would ensure coherence and also make the prevention of conflicts of interest more transparent for the public.

What the past has shown, moreover, is that even if rules are in place, the more critical factor is their application in practice. In this regard, the Ombudsman has pointed out that, while the notification duty is placed on the concerned agency staff member, the agencies themselves are under an obligation to make sure that their employees are trained with regard to conflicts of interest and to actively make sure that they obtain all the relevant notifications and information required to assess the notified (future) employment contracts.
It is to be welcomed that the Ombudsman in his recommendations to EFSA clarified that even negotiations of an agency staff member concerning a future employment can amount to a conflict of interest that needs to be notified. However, here again, the policies of the agencies diverge. The EFSA policy now states that at least for staff members negotiations for future employment need to be notified. In the EMA the staff ‘should’ notify the intention before the contract is signed and scientific body members are required to notify the intention to take up employment immediately, which in both cases leaves negotiations with a future employer in a grey area.

Finally, the general lack of notification duties for members of the scientific committees and the Management Boards after their departure is regrettable. However, these persons may be subject to conflict of interest rules in their home institutions, as they are not directly employed by the agencies.

For further discussion see e.g. E. Vos, ‘EU Agencies and Independence’, in D. Ritleng (Ed.), Independence and Legitimacy in the Institutional System of the European Union, (Oxford: Oxford University Press, 2016), pp. 206-228.