"We take note of ... your undertaking to exclude any form of lobbying of the Commission in the course of this new activity. The Commission is pleased to authorise this activity, in the light of your undertaking, but subject to further conditions that, for a period of eighteen months as from this decision: you will not in the course of your new professional activities, establish contacts with or approach the services that came under the authority of Vice-President Verheugen or any of your former colleagues who were members of his cabinet; you will not advise companies who have been addressees or beneficiaries of any indivdual decision prepared by those services under the authority of Vice-President Verheugen”. The Commission continues to "have the right to apply Article 16 ex post to any situation in which it considers that there is a risk for the legitimate interests of the Institution".
The Commission also said: "We take note of the regret you have expressed regarding the late notification of this new activity". Dr Erler had previously written to the Commission to say: “I regret if I have not fully complied with art 16 staff regulation, since I was not aware that this duty was applicable to me and unfortunately was also not made aware.” Her application for authorisation was dated 30 August 2010, more than four months after her new company was created.
In response to concerns raised by CEO in a letter of 11 June 2012, the Commission has defended it's actions, citing further restrictions would have infringed Ms Erler's right to work. See below for more details.
In 2010, both Dr Erler and Commissioner Verheugen left the Commission and in April 2010 set up the European Experience Company (EEC) which apparently offers “creative solutions and the best strategy for your success in dealing with European institutions”. Erler is listed as managing director, Verheugen is a 50 per cent shareholder.
Dr Erler told the Commission that “the company is and will not be engaged in any lobby activities". Source: Information from Petra Erler's application for authorisation under Article 16, Staff Regulations, dated 30 August 2010.
According to the EEC’s own website, the company undertakes activities on behalf of clients, such as: “intensive management seminars … in cooperation with experts from European institutions; analytical background papers and strategy recommendations in the area of EU-policy; support for your public relations endeavours in European affairs”.
CEO considers that these kinds of activities can constitute assisting with lobbying and providing lobby advice.
During the authorisation process for Dr Erler's application an internal Commission 'Joint Committee' (which includes staff representatives) was consulted. At the conclusion of the meeting which included a lengthy discussion on this case, the staff representatives gave a unanimously negative opinion about the approval of this case, citing concerns about possible conflicts of interest and how ambiguities about the case had not been sufficiently tackled. This led to the minutes of the meeting recording that there was a divided opinion (“un avis partagé”). Source: Information from minutes of Joint Committee meeting held in Brussels on 5 October 2010.
Yet a mere two days later on 7 October 2010, the Commission wrote to Petra Erler to say that her proposed new activity was approved, subject to the restrictions outlined above. Source: Information from letter from Michel Magnier, European Commission to Petra Erler, dated 7 October 2010.
More information is available in the ALTER-EU report: Block the revolving door - why we need to stop EU officials becoming lobbyists: http://www.alter-eu.org/revolving-doors
Update: On 13 September, the Commission responded to some of CEO's concerns, rejecting the suggestion that their application of Art. 16 was inadequate or that maladministration had occurred. They emphasised that the “right to work is an overriding principle” including “to pursue a freely chosen or accepted occupation” and “to make the fullest use of the skills and experience the person has acquired”.
Our concern with this response is that the Commission appears to ignore the distinction between an individual's chosen or accepted occupation and an occupation that is acceptable vis-a-vis their legal obligations, undertaken with prior informed consent as part of undertaking the work of a public official, to abstain from situations that create potential conflicts of interest. In terms of acceptable occupations, immediately becoming a lobby consultant for hire by any private client, on dossiers previously worked on in an official capacity, is clearly one such situation.
Nonetheless, the Commissions argues that as Art. 16 “is an exception to this general principle and must thus be interpreted in that light,” a “blanket general prohibition on future employment with other employers in the same or a related field would be contrary to this general principle”. This response seems misdirected, as the Complainants have at no point suggested such a blanket or general prohibition.The Commission further argues that having taken into account the opinion of the various stakeholders (DG Enterprise, the Secretariat General, the Legal Service and the Joint Committee) and “Ms Erler's declaration that any form of lobbying of the Commission in the course of her new activity would be excluded, the Appointing Authority took a balanced decision that imposed restrictions complying with the general principle of proportionality.” They further stated that the restrictions were substantial, and that Corporate Europe Observatory's proposal for wider restrictions “would impose an unreasonable burden upon her which would infringe article 16 of the Staff Regulations and her fundamental right to work.”The problem with this response is the apparent failure to consider whether Erler's new activity would be “directly or indirectly influencing the formulation or implementation of policy and decision-making processes of the EU institutions”, but instead taking at face value the statement that she would not be involved in any form of lobbying. Furthermore, simply stating that a balanced decision was taken does not assuage concerns about the rapidity with which it was taken after serious objections were raised by one of the key stakeholders, the Joint Committee, of which the Commission notes that “the members representing personnel were not in favour.” Nonetheless, the Commission simply asserts that “the opinion of the Joint Committee is not the conclusive element in a Decision.”With respect to the four month delay in applying for permission, the Commission states that in cases of non-compliance with statuatory obligations, “the situation is examined to ascertain whether this is the result of administrative oversight on the part of the person concerned or is of a more serious nature. Several criteria are examined: good or bad faith, the existence of damages etc”, and that Erler's case was not considered to fall into the more serious category. It has already been noted that Ms Erler had stated that she was not aware this duty was applicable to her and “unfortunately was also not made aware”. Given these facts, it is difficult to see how good practice and full implementation of the Staff Regulations will ever become a reality, if the Commission neither ensures its staff are made aware of their obligations, especially at such a high level, nor establishes any repercussions whatsoever when they are not met.
"CEO considers that the restrictions applied to Petra Erler were too narrow and would not prevent the risk of conflicts of interest from arising. Commissioners' senior staff including Heads of Cabinet are surely involved in a wide number of issues which stretch far beyond the scope of their immediate portfolio. Yet there were no wider restrictions or a two-year cooling-off period placed on her to account for this. Additionally, the Commission chose to ignore the strong views expressed by the staff on the 'joint committee' when they expressed deep concerns about this case."