The Commission's Secretary-General, Catherine Day has told CEO that:
“The Commission has carried out a proper analysis of possible conflicts of interest before deciding to appoint Mr Frydman, and it did not identify any conflict of interests which would have prevented his appointment.”
Jan Eric Frydman is a partner in the Swedish law firm Ekenberg & Andersson*, where he leads the transatlantic practice. In March 2015, he was appointed special adviser for trade policy and transatlantic affairs to EU trade commissioner Cecilia Malmström, a position that grants him extraordinary access to the current negotiations on the Transatlantic Trade and Investment Partnership (TTIP). Frydman has been allowed to keep both positions simultaneously, raising concerns that potential conflict of interests have not been duly assessed.
Frydman's professional career has been split between law and business, private and public positions. In the 1990s, Frydman worked as a business lawyer at Mannheimer Swartling where, according to his CV as published by the Commission, he worked with “international transactions and mergers and acquisitions” and he “was also the Firm's Head of Information and Knowledge Management.” Years after Frydman had moved away, Mannheimer Swartling controversially represented Swedish energy giant Vattenfall in an investor-to-state challenge against the German government for its divestment from nuclear energy.
Frydman joins the Commission
In 1996, Frydman became a European Commission official (legal adviser). In the following years, he held a variety of roles at the Commission, including those related to trade policy, including acting as principal administrator for relations with the US and Canada (1999-2002), deputy and acting head of unit for international affairs (2002-2011) and head of unit for international regulatory affairs and toy safety (2011-2012) at DG enterprise and industry.
Frydman's time in the Commission gave him detailed insights into trade policy, especially at the transatlantic level. His CV highlights that, during this time, he “coordinated with the US department of Commerce the government side of the Transatlantic Business Dialogue (TABD)” and “created the structure for regulatory cooperation between the EU and the US”.
The TABD (now renamed TABC – Transatlantic Business Council) links business leaders of more than 70 multinationals from both sides of the Atlantic with US cabinet secretaries and European commissioners. TABC's main aim is to reduce barriers to inter-Atlantic trade and for the past 20 years it has been targeting domestic regulations on each side of the Atlantic as “the new obstacles to trade”. Its deregulation hit lists included a wide range of environmental, health and safety regulations.
Other transatlantic dialogue structures were created at a later stage, focusing on the environment, labour and consumers, but these were never given the same access and influence by public officials as TABD.
Frydman joins Ekenberg & Andersson
In 2013, Frydman retired from the Commission and went on to serve as adjunct judge of the Sva Court of Appeals in Stockholm for eight months. Frydman then joined law firm Ekenberg & Andersson in 2014.
The Commission authorised Frydman's moves to the Sva Court and Ekenberg & Andersson; for the latter he was asked to "notify the Commission again when he would intend to accept an individual client whose activities are related to those which he had in the Commission in his last 3 years of service".
In response to questions from CEO, Frydman described his work saying:
“I work on general civil (i.e. not criminal) law issues. This means I advise clients on things like contract law (draft or review contracts, for example the sale and purchase of goods or real estate, cooperation agreements, etc.), company law, liability issues, international private/family law, pension law, citizenship issues, etc. I also do some EU law, in particular related to the internal market, and also work on human rights law (I specialised in human rights law while at law school). I have particular expertise in transatlantic relations, so I would also be available to advise international clients, including clients in the US, on Swedish law, and also work with clients in France on Swedish law matters as I speak French.”
Ekenberg & Andersson and trade policy
Ekenberg & Andersson's website places a different emphasis on Frydman's role saying that he “works mainly with international transactions, EU-law and leads the firm's transatlantic practice”. His hiring certainly seems to have been a welcome addition to the firm's international practice as was made clear in the firm's press release where senior partner Thomas Ekenberg declared that:
“With Sweden’s membership in the EU, the need for knowledge of EU law and, not least, how the EU institutions work is increasing. Transatlantic relations are also becoming increasingly important. Many decisions affecting Swedish business are taken either in Brussels or in Washington, something that can be expected to continue given the negotiations between the EU and the U.S. on a free trade agreement (TTIP). With Jan’s many years of experience in both the EU and the U.S., our Firm will be able to offer a unique expertise in these areas.”
Early on in his time at the law firm, Frydman promoted his interest and pre-existing knowledge of TTIP by writing about the hurdles facing regulatory cooperation and possible ways forward solutions for the TTIP negotiations. The regulatory cooperation chapter negotiated as part of the trade agreement aims to reduce differences in EU and US regulations and is likely to significantly change the way regulations will be decided in the future. Under current proposals, the EU and US will be able to negotiate on contentious topics such as chemicals or banking regulation behind closed doors, far away from public and parliamentary scrutiny, but likely following the agenda of big business. Regulatory cooperation has been described by consumer groups as the “surreal institutionalisation of lobbying”.
This negotiating chapter follows a similar logic to TABD's, targeting regulatory standards in the name of harmonized rules to favor transatlantic trade and investment. The proposed system currently on the table has been built upon the bedrock of decades of transatlantic business dialogue and the groundwork laid down by Commission insiders like Frydman.
Intellectual property rules are another controversial issue in the TTIP negotiations and the Transatlantic Consumer Dialogue (TACD) has already warned that the new “international benchmarks” established between the EU and the US could limit citizen's access to knowledge and medicine. Frydman's law firm has an “intellectual property practice” (covering patents, trade secrets and other intellectual property rights).
Frydman becomes Commission special adviser
It is unsurprising that the law firm welcomed Frydman's appointment as special adviser to Cecilia Malmström, the commissioner directly handling the TTIP negotiations. Thomas Ekenberg said:
"We are all glad that Jan, as the only Swedish attorney in such a role, has been appointed Special Advisor to the European Commission. With his vast experience in international trade matters, Jan will support Sweden's EU Commissioner and contribute to the successful implementation of the EU's trade agenda, not least the important negotiations now under way for a Transatlantic Trade and Investment Partnership (TTIP). With continued globalization and increased trade, trade law will become increasingly important, and our Firm is able to offer unique expertise in this area [emphasis added]."
This press release could be interpreted as an attempt by Ekenberg & Andersson to benefit from Frydman's new role as special adviser, to attract new clients. The law firm's website does include a footnote stating that:
"*) Update: In March, 2015, our partner Jan E. Frydman was appointed Special Adviser to the European Commissioner for Trade. In this role he is bound by rules on confidentiality and impartiality in accordance with European Union rules governing Special Advisers and he therefore does not offer expertise covered by such rules"
CEO is not clear whether this was added before or after an article was published by CEO which criticised Frydman's appointment.
In response to CEO's enquiries, Frydman declared that:
“I perceive no overlaps at all between what I do at Ekenberg & Andersson and my role as Special Adviser to Commissioner Malmström. As I already mentioned, I don't take on lobbying matters. Moreover, our firm only practices Swedish law. The trade, regulatory or transatlantic issues that I would possibly work on would typically involve advising international, including American, clients on Swedish law and Swedish clients on how the legal system works in the US in cooperation with local US counsel, something I used to do when I practised law before I joined the European Commission. I would of course never advise clients on anything that involves what I do or have learnt in my role as Special Adviser to Commissioner Malmström.”
When asked about what areas of expertise he considered to be excluded from his activities as a result, Frydman said that
“as I will be advising Commissioner Malmström on trade policy and trade relations with the USA, I will not advise any clients on anything that would be a part of such issues.”
CEO complaint to the Commission
As part of the rules relating to the appointment of special advisers, Frydman had to sign a 'Declaration on the Honour' stating that he has no conflicts of interest. CEO has requested access to the documents on the assessment of such conflicts but only received a declaration of activities form that sets out the positions Frydman holds and a statement of assurance signed by Malmström's head of cabinet. Following an access to documents request, the Commission informed CEO that “no other documents […] were drawn up on this assessment.”
Considering the information provided in response to our questions by the European Commission to be insufficient, in April 2015 CEO wrote a complaint to the Secretary-General Catherine Day arguing that it had not performed an adequate scrutiny of conflicts of interest, particularly in respect to Frydman's experience in regulatory cooperation issues and how Ekenberg & Andersson could benefit from privileged access to this and the intellectual property chapters in TTIP.
Day's answer did not appease our concerns and instead stated that
“the examination of possible conflicts of interest that was carried out in accordance with the Rules on Special Advisers did not reveal any element which would have stood in the way of Mr Frydman's appointment as Special Adviser. It was confirmed by the Head of Cabinet of Commissioner Malmström in the Statement of Assurance that the tasks performed by Mr Frydman in his capacity as Special Adviser will have no link with cases related to his activities as lawyer.”
Day mentioned that “Mr Frydman does not take on any cases that could represent a conflict of interest with his role as a Special Adviser”, but this seems insufficient in the light of his role as head of Ekenberg & Andersson's 'EU and transatlantic practice'. It would seem that the obligation to avoid conflicts of interest should apply to Ekenberg & Andersson as a whole or at the very least to its EU and transatlantic practice. It remains unclear whether the European Commission has assessed whether Ekenberg & Andersson (and its clients) might unduly benefit from Mr Frydman's role as Special Adviser.
CEO's report on revolving door cases related to TTIP can be found here.
* Update 5 July 2017: Jan Eric Frydman seems to have stopped working for Ekenberg & Andersson in March 2017. According to his Linkedin profile, he is now Head of Delegation of the Swedish Bar to the Council of European Bars.
"The Commission's responses to both CEO's complaint and request for access to documents were highly unsatisfactory. We were told that there were no other documents relating to the assessment of possible conflict of interests in Frydman's appointment. This lack of a paper trail strengthens CEO's suspicion that the Commission did not undertake an adequate, proactive and critical assessment of possible conflicts of interest in this case."
"CEO considers that there is an inherent conflict of interests between Frydman's position as head of Ekenberg & Andersson's “EU and transatlantic practice” and his role as special adviser for trade policy and transatlantic affairs. Both Frydman himself and the Secretary-General refer to the rules governing special advisers and to Frydman's declaration of honour as enough protection against possible conflicts of interest. In our opinion, this is unconvincing as the rules are ambiguous and unclear and do not specify which activities are off-limits. Even if Frydman had removed himself from a wide range of clearly defined areas of work within Ekenberg & Andersson, his role as partner at Ekenberg & Andersson would still give rise to potential conflicts of interest, as his advice could be biased towards the wider financial interests of this company."
"The Commission should be more thorough when appointing special advisers and it should take the initiative of putting far stronger safeguards in place to prevent possible conflicts of interests."