“her obligations under Articles 245(2) and 339 TFEU and the Code of Conduct for Commissioners, including protection of collective responsibility and confidentiality in respect of matters covered by the Commission during her two terms of office, and refrained from lobbying the Commission or its departments on behalf of Bank of America Merrill Lynch within eighteen months of leaving office.”
“provided that Ms KROES (i) fulfilled, in all circumstances, her obligations under Articles 245(2) and 339 TFEU, and the Code of Conduct for Commissioners, including protection of confidentiality and collective responsibility in respect of matters covered by the Commission during her two terms of office, (ii) refrained from lobbying the Commission or its departments within eighteen months of leaving office, and (iii) did not make use of any confidential information to which she had had access during her time as a Member of the Commission.”
At its meeting on 28 April 2015, the Commission authorised Kroes' new role as non-executive member of the management board of the Open Data Institute
"provided that Ms KROES fulfilled, in all circumstances, her obligations under Articles 245(2) and 339 TFEU and the Code of Conduct for Commissioners, including protection of collective responsibility and confidentiality in respect of matters covered by theCommission and information she may have had access to regarding companies and their business relations or their cost components during her two terms of office, and that Ms KROES refrained from lobbying the Commission and/or its departments on behalf of the Open Data Institute and/or any specific company related to the Institute within 18 months of leaving office, and that Ms KROES ensured that no company using the services of the Open Data Institute could unduly benefit from the knowledge and expertise she had gained during her terms of office."
Neelie Kroes was a commissioner under Barroso for ten years, firstly for competition and then for the digital agenda until 31 October 2014. Prior to that she had had a career in domestic politics in the Netherlands serving as minister of transport, public works and water management in the 1980s. She then took a number of corporate jobs and sat on the boards of Royal P&O Nedlloyd, New Skies Satellites, Thales Netherlands, MM02, Volvo amongst others.
When she joined the Commission in 2004, Kroes listed 25 corporate posts in her official CV that she had held in the previous decade and at the time the Wall Street Journal wrote:
“EU officials acknowledge that they have never dealt with a commission candidate with such extensive business ties - and potential conflicts.”
However, Kroes did not disclose all her previous private sector roles, including her lobbying (seven years earlier) for arms manufacturer Lockheed Martin which had strong ties to Italian firms being investigated by the office she would later head. Kroes said she did not reveal this work because she considered it "one-off advice for a specific project".
According to the WSJ, DG Competition reviewed Kroes' outside interests before her confirmation hearing with MEPs. This review was not published but it was said to suggest that if she had been commissioner over the previous five years, she would have had to recuse herself from as many as 35 merger and anti-trust cases as they involved her previous corporate employers.
At the time, Kroes pledged to avoid any cases involving boards she served on for matters that related to her time on the boards. For other matters involving companies whose boards she was on, she said she wouldn't participate in cases for one year.
The Wall Street Journal also reported that
“Kroes also promised to never engage in business activities once her five-year commission term ends in 2009, when she will be 68.”
A second Commission mandate later, ten years on Kroes has now taken several new jobs: special government envoy for start-up companies in the Netherlands; and special adviser to Bank of America Merrill Lynch. Subsequently she has joined boards at Salesforce and Uber - see below.
Special government envoy
Kroes has described her likely activities as special envoy for start-ups as follows:
“together with the civil service of the Ministry I will go on several international missions and meeting public as well as private stakeholders who are active in the field of Start-Ups. Furthermore I will speak at events and I will be chairing a 'Board of Influencers' who will advise me on how to reinforce the Start-Up ecosystem in the Netherlands, with particular attention to Amsterdam. This board will consist of politicians, CEOs of enterprises and people from the academic world. As a Special Envoy I will not receive any payment, other than the remuneration of expenses.”
Bank of America Merrill Lynch
Bank of America Merrill Lynch is the corporate and investment banking division of Bank of America. It is registered in the EU lobby transparency register with an annual lobby expenditure of less than €50,000 in the year to April 2014 (contrasting with a lobby spend of US$2,730,000 in the US in 2014) and four members of staff who are involved in lobbying activities. It has no registered European parliamentary passes and no office in Brussels. It lists its interest in the EU institutions as “regulation and policy changes related to the financial services industry” and it is also a member of the big lobby vehicles Isda (International Swaps and Derivatives Association), AFME (Association of Foreign Markets in Europe) and the BBA (British Bankers Association), among others.
In 2013, it held at least three lobby meetings with representatives from DG internal market, presumably to discuss financial services regulation. Since 1 December 2014 when lobby meetings held by commissioners, their cabinets and directors-general must be publicly listed, Bank of America Merrill Lynch has met with Commissioner Valdis Dombrovskis and his cabinet member Tuure Taneli Lahti on “Eurozone macro-economic outlook and the Banking Union as it currently stands, as well as the state of the European and American economy” at Davos on 21 January 2015; while meetings were also held with cabinet member of Commissioner Jyrki Katainen (Valérie Herzberg) on securitisation in February 2015 and Edward Bannerman (also of Katainen's cabinet) on the Commission's investment plan.
In documents released to CEO under access to documents, it has been revealed that Kroes told the Commission that:
"The contact has been established by a third party and not directly by the management of the Bank. The role of the Special Advisor is limited to giving advice. Via sharing experiences, insights and exchanging perspectives, the Bank aims to strengthen its client engagement and relationships. More concretely for my role as an advisor, this means I could be requested to contribute to conferences and engaging politicians and thought leaders. Or for instance, being asked to give advice on female leadership within the organisation or business opportunities and raising awareness and stimulating interaction on new initiatives at major events, such as at the World Economic Forum ... For the role of Special Advisor I will receive a fee."
She also said:
"I would also like to inform you that during my mandate as Vice-President for the Digital Agenda their have not been any business contacts between myself and the management of the Bank of America which could have lead up to this request. The content of the topics with which the Bank of America concerns itself are only very remotely linked to the activities of the Digital Agenda. In the unlikely event that a topic would create a conflict of interest with my previous role, I can assure you I will withdraw myself from any involvement whatsoever."
Documents from the Commission indicate that there was contact between Kroes and Bank of America Merrill Lynch while she was still a commissioner. She was invited on two occasions to address Bank of America Merrill Lynch events, including the 2014 Global Telecom and Media Conference.
Open Data Institute
The Open Data Institute says that it convenes "world-class experts to collaborate, incubate, nurture and mentor new ideas, and promote innovation. We enable anyone to learn and engage with open data, and empower our teams to help others through professional coaching and mentoring." It was co-founded by Sir Tim Berners-Lee and is "independent, non-profit, non-partisan". Considering Kroes' background as digital commissioner, it is not surprising that ODI was keen to recruit Kroes to its management board. ODI's corporate members include many, many big names including: Experian, Ove Arup, Telefonica, Lockheed Martin and Merck. ODI is not part of the EU lobby transparency register.
The Commission's authorisation documents for this role show that it is unremunerated.
The Commission's rules
The current code of conduct for commissioners says that when they leave office they must abide by an 18 month notification period, during which time they must seek Commission authorisation for any new professional activities. The code further stipulates that the Commission should seek the view of its ad hoc ethical committee if the new professional activity is related to the commissioner's former portfolio. All commissioners are banned for 18 months from lobbying “members of the Commission and their staff for his/her business, client, or employer on matters for which they have been responsible”. The lobby ban is waived when former commissioners take up public office. In CEO's view, there are several loopholes and problems with these rules. The notification and lobby ban periods are far too short; lobbying is not defined; and the targets and content of proscribed lobbying are too narrowly-drawn.
As an ex-commissioner, Kroes is entitled to a very generous transitional allowance after she leaves the Commission of between 40 and 65 per cent of final basic salary for the three years after she has left office. In addition, the transitional allowance scheme provides for commissioners to earn up to a further €9000 (approximately) a month from other sources without their pay-out being affected. In CEO’s view, the transitional allowance, the purpose of which was to enable ex-commissioners to not have to seek out immediate new employment, and thus avoid the risk of possible conflicts of interests, clearly needs to be reformed.
Before publishing this statement, we contacted Neelie Kroes via Bank of America Merrill Lynch and Twitter to ask some questions; no reply was received.
Update 28 October 2015: You can read our new report The revolving doors spin again, Barroso II commissioners join the corporate sector on our website. The report includes this case and many others, analyses all the revolving door moves of the Barroso II Commission and includes a spreadsheet which collates all known information about the 100 plus new roles of the former commissioners.
Update 6 April 2016, Salesforce: The US tech company Salesforce has announced that ex-Commissioner Kroes will join its board of directors as of 1 May 2016. The date is significant as this will be exactly 18 months since Kroes and the other members of the Barosso II Commission left office and therefore, the end of the requirement contained in the code of conduct for commissioners to seek Commission authorisation for new roles. Eighteen months is also the end of the lobby ban on ex-commissioners. The Commission has confirmed to CEO that the former commissioner has not sought authorisation for this role.
On Kroes’ appointment, Marc Benioff, chairman and CEO, Salesforce said:
“We are delighted to have Neelie Kroes join our Board of Directors. She is an amazing and respected leader who has done extraordinary work at the highest levels of government, technology policy and business in Europe. Salesforce will benefit greatly from her broad experience across both the public and private sectors.”
Kroes herself said:
“Salesforce is one of the world's most admired companies and a leader in digital transformation for business. It's an honor for me to serve on the Salesforce Board of Directors.”
Salesforce is a major US software tech company providing ‘cloud computing solutions’ to other businesses and there are likely to be considerable policy overlaps between Kroes’ role as a board director and her most recent EU role as commissioner for the digital agenda. Considering European Commission action against other US tech firms accused of uncompetitive practices, her stint as competition commissioner will also be highly relevant.
Salesforce is an active EU lobbyist, at least since its registration on the EU lobby register in 2015, spending €200,000 - €299,999 in 2014. It is active in several Commission expert groups, including the Network and Information Security (NIS) Platform and several Cloud Computing Strategy Working Groups. Salesforce has lobby interests in the EU-US trade deal (TTIP), the digital single market (DSM) strategy and others. It has held several lobby meetings with senior officials in the Commission in recent months, including on the DSM strategy. Salesforce is part of a trend of IT and digital companies, particularly those from the US, who have recently been growing their EU lobby presence.
TechCrunch.com has reported that Salesforce has “been ramping up its presence in Europe over the last several years … the company last September announced a $100 million fund to invest in European cloud startups...”.
Update 5 May 2016, Uber:
Now it has been announced that Kroes will join a new eight-member public policy advisory board of Uber, the controversial US taxi digital application. According to Bloomberg, the board will be full of other revolving door appointees including an ex-cabinet secretary and a policy adviser to Barack Obama, and a former prime minister of Peru. The board will apparently meet twice a year and its members will receive shares in the company by way of payment, although the precise value of those shares is not known. TechCrunch reports that the new board "will help Uber navigate as it expands into new countries — but it seems that Uber has its eye on shaping yet-to-be-established public policies that will govern the ridesharing economy."
During her time in office as digital agenda commissioner, Kroes was vocal in her support for Uber. In a blog, hosted by the European Commission and published in Kroes' name in April 2014, just two years ago, Kroes wrote: "I am outraged at the decision today by a Brussels court to ban Uber, the taxi-service app." She went on: "I’ve met the founders and investors in Uber. My staff have used the service around the world to stay safe and save taxpayers money. Uber is 100% welcome in Brussels and everywhere else as far as I am concerned. She even announced via twitter that she wanted to "start a new # tag ... #UberIsWelcome in Brussels and everywhere."
Uber joined the EU lobby register in April 2014 and in 2015 spent between €400,000 - €499,999 on EU lobbying. IntegrityWatch indicates that Uber has had 19 meetings with senior Commission staff since December 2014, including sessions with Commissioners Bieńkowska, Moedas, Katainen, Ansip, Moscovici and Bulc, an impressive haul.
“These new revolving door moves by ex-Commissioner Kroes exemplify why the Commission's 18 month lobby ban and notification period is not sufficient. It is not hard to imagine why major US tech firms like Salesforce and Uber, with a keen interest in digital agenda policy-making in Brussels, would want to recruit the ex-digital agenda commissioner to its board. It is also safe to say that even after 18 months out of office, contact books and insider know-how can remain fresh and highly relevant. This is why we argue that all former commissioners should be explicitly forbidden from accepting any new role which risks creating a conflict of interest with their former role as a European commissioner for three years after their departure. This should include a full and comprehensive three year lobbying ban. The Commission should wise-up and apply such provisions in this case. Meanwhile Kroes' statement, quoted by the Wall Street Journal when she was first appointed to the Commission in 2004 that she "promised to never engage in business activities once her five-year commission term ends...” has clearly been long-forgotton!”
“The lack of transparency around this and other revolving door cases involving former commissioners means that adequate scrutiny for possible conflicts of interest remains difficult. Information about such roles only comes to light after trawling through recent Commission minutes and requesting further documents through time-consuming access to documents requests. And as Ms Kroes has not responded to CEO's enquiry, it is not possible to know what precise topics she will advise Bank of America Merrill Lynch on and whether she will provide behind-the-scenes lobby advice to her new employer. Furthermore, considering the corporate interests in the Open Data Institute, CEO would argue that an 18 month lobby ban is not sufficient. All ex-commissioners should face a clear three-year ban on all direct and indirect EU lobbying.”