Ireland's Emily O'Reilly will soon leave her role as EU Ombudsman after more than a decade in the job. Under her watch governance of the bloc has become more transparent and accountable, but she feels more work needs to be done.
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00:00The European Commission needs to be more accountable, more transparent about which powers are influencing
00:06it, and open to hear all parts interested.
00:10These are key points made by Emily O'Reilly, European Ombudsman, our guest on The Global
00:16Conversation.
00:19Mrs Emily O'Reilly, thank you very much for accepting our invitation to this program.
00:26After around a decade, you are going to soon be leaving your job as European Ombudsman,
00:34monitoring the level of transparency of the European Union institutions.
00:38But there is still a lot of work to do, and just very recently, last week, you opened
00:43a new inquiry into the European Commission's decision to somehow lighten some of the rules
00:50regarding the Common Agricultural Policy that disburses a lot of money for farmers
00:55that have heavily protested during this year.
00:59So what are the explanations that you expect from Ursula von der Leyen?
01:03I believe you asked for a meeting.
01:05Yes, we will be inspecting the documents in relation to that, and we'll be interviewing
01:11the officials who are involved in that.
01:13So basically, as you say, this is about the Common Agricultural Policy and changes that
01:17were made that were seen to make what farmers had to do in relation to environmental protection
01:24a little less onerous, a little less difficult.
01:27And of course, you will recall that there were major farmers' demonstrations indeed
01:30in this city and elsewhere, and following on from that, these changes were made.
01:36So organizations that are involved in environmental protection were concerned about this because,
01:42according to the complaint that we've got, the only people that were consulted were farming organizations.
01:50So we're trying to find out basically what happened, you know, how did you go about making
01:54these changes?
01:55Who did you consult?
01:56What did you take into consideration?
01:58And once we get those answers, then we'll make a decision in relation to whether they
02:03did it properly or whether we need to make recommendations in relation to how they would
02:07do it in the future, or we just simply give them general guidance in relation to how they
02:11should properly manage these particular issues, which are of huge concern to citizens.
02:16So this is a perception of somehow unfairness in the treatment of the several stakeholders
02:23in this matter?
02:24I think so, yeah.
02:25And that's sort of been a theme of our work, because a lot of the work that we've done,
02:28if there's a general theme over a lot of it, it's influence.
02:32Who is influencing the regulations, the laws that Brussels make?
02:35And you know that Brussels is a huge lobbying center, it's the second biggest lobbying
02:40center in the world after Washington.
02:43And so citizens have a right to know how regulations are made, who's influencing them, and then
02:49part of our job when we get complaints or when we open investigations on our own initiative
02:53is to make sure that the Commission, for example, or indeed the other institutions, are listening
02:57to all sides, and they're not making decisions influenced too much or inappropriately by
03:03one side of the debate.
03:05Lobbying as you said, it's extremely important, but most of the lobbying agents are registered
03:10and they are well known.
03:11What might be a little bit more sometimes secret is the advisors, experts that are somehow
03:17invited, connected to this case, there is now the news of this German academic that
03:23might have received 150,000 euros for a six-month period to give advice on agriculture.
03:30So does this also contribute to this perception that there is not so much clarity on transparency
03:36on who makes decisions of who is giving this advice?
03:40Yeah, well, a lot of people talk about the Commission as being a huge administration.
03:44It isn't, it's actually quite small relative to member state administrations.
03:49So obviously they don't have all of the in-house expertise that they need when they are drawing
03:54up and advising on regulations.
03:56And so they do bring in various experts from the different sectors that they're working
04:00on.
04:01And one of the investigations we did quite a few years ago was to explore the balance
04:05of these expert groups.
04:07And of course, if you're a big corporation, by definition, you have a lot of money and
04:11you can pay a lot of people to be your eyes and ears in Brussels and find out what's going
04:14on.
04:15If you're an NGO with a lesser budget, you don't have that same capacity to deploy lots
04:21of people to find out whatever it is you need to find out.
04:24And therefore the Commission has an obligation to make sure that the NGOs, civil society
04:28and others, their voices are heard as much as others.
04:31And do you think the balance is better after all these years that you have been involved
04:36in observing?
04:37I think so.
04:38I think there's a greater awareness of it, certainly within the Commission, both because
04:41of the work that we've done, the work the media has done, the work the civil society
04:45and others have done as well.
04:47But sometimes issues still arise, you know, and sometimes you're looking at these things
04:51on a case by case basis.
04:52But I think overall, culturally, there's a greater acceptance of the need for a better
04:57balance when major issues of public interest are being decided, everybody's voice has to
05:04be heard.
05:05Well, one of the most notorious cases involving Ursula von der Leyen, the president of the
05:10European Commission, was the exchange of messages with the CEO of Pfizer during the crisis of
05:16Covid-19 for a contract on vaccines.
05:20The president has refused to today to release that information, that content.
05:26You consider it to be maladministration, but somehow she has not been hearing very much
05:34this advice or this criticism that she receives.
05:37Does she value when this criticism is?
05:41Well, the European Court of Justice is now going to deal with it all.
05:47So we'll see what happens then.
05:48And so we asked a number of questions and we found maladministration primarily because
05:55initially the commission didn't accept that these SMS messages, text messages are documents.
06:02But you don't need to be a genius or a lawyer to be able to read Regulation 1049 and see
06:06that they are documents because it's not the medium that matters.
06:11It's the subject matter.
06:12It's the subject matter.
06:13So therefore, if you are texting what's happening or what's happening or whatever you're doing
06:17with issues that have to do with the business of the institution, then they are documents.
06:25It doesn't mean that they have to be immediately released.
06:28They can be tested against the exemptions that you find in Regulation 1049.
06:33But we found maladministration because initially they didn't accept that they were documents,
06:37which my view, they clearly are.
06:40So nothing happened then in relation to that.
06:42I was critical of the commission.
06:44And then the New York Times, which was the media outlet that originally reported on this,
06:49they've now taken the commission to court.
06:52We don't know when the court case is going to happen, but I think it'll be good for everybody.
06:55It'll be a clarification by the highest court in the EU about this issue.
07:00But do you think there were lessons learned that somehow Ursula von der Leyen has corrected
07:06her behavior in that sense?
07:07Well, I don't know what she does on a daily basis.
07:09I'm sure she does pay attention, of course.
07:12But certainly within the commission, we have had discussions with them.
07:15And I know the commission has now given guidance to its staff in relation to the retention
07:20of text messages and how they should be properly registered and published and all of that.
07:24So, you know, the generality of that issue, I think, is being dealt with.
07:29And I think we all know now that if we're doing business on our WhatsApps or Snapchats
07:33or whatever it is we're doing business on, that we need to know, certainly if you're
07:36in a public administration, that they are potentially releasable.
07:39Anyway, as you mentioned, you know, these messages are documents.
07:44Would you say that access to documents is probably one of the biggest complaints that
07:49you receive?
07:50Yeah, transparency generally is a big issue.
07:54I think roughly a quarter, even more of the complaints we get relate to transparency generally
08:01and access to documents.
08:02And as I've said before, it's where we get the most pushback.
08:04I mean, generally, we get on very well with the commission.
08:07We work very well with them.
08:08Indeed, in access to documents cases as well.
08:10But we find there can be huge delays.
08:12And when the documents contain issues that may be deemed to be, let's say, politically
08:18sensitive by the commission, then there can be delays that go beyond the delays that are
08:23allowed under the law.
08:25So last year, I brought a report to Parliament, a special report to Parliament in relation
08:31to this.
08:32I only did it twice in the last 11 years.
08:33So that's how important I considered it to be.
08:36The Parliament overwhelmingly supported the work that we've done, the recommendations
08:41that we made.
08:42So we'll see what happens now with the new commission and whether those particular lessons
08:49have been learned.
08:50Because sometimes people think that issues like transparency, access to documents are
08:55things that only concern NGOs, civil society, academics, ombudsman.
09:00But they're so vitally important because citizens have a right under the treaty to take part
09:05in the life of the union.
09:06But would you say it's a culture of secrecy or is just that in terms of bureaucracy, it's
09:11too difficult to give access to the documents?
09:13I think no.
09:15I think the reflex in most public administrations is to be defensive and, you know, can this
09:20get us into trouble, you know.
09:22But the default position, you know, in relation to access in the treaties and the regulation
09:28is to publish, to give.
09:31It's not, you know.
09:32So you should, as soon as you get an access to documents request, you think, how can I
09:36release this?
09:37Whereas it tends to happen in the opposite way.
09:39How can I stop this from being released if it is the particular issue?
09:43I mean, now the commission will say, well, we give out thousands of documents and so
09:46many percent of our initial requests are accepted.
09:49But we're not talking about the vast majority of cases.
09:52We're talking about those cases where issues of significant public interest about the environment,
09:57defence, security, international relations, for example.
10:00And let's go then back to the European Commission in the sense that they are, Ursula von der
10:06Leyen is re-elected.
10:08She has presented 26 nominees for the future executive.
10:12The European Parliament will be scrutinizing, first phase will be to look into the curriculum,
10:20to the financial declarations.
10:22Do you think the European Parliament has enough tools to actually scrutinize if there are
10:27suspicions about a conflict of interest?
10:30I mean, that's a good question.
10:33You know, the Parliament has certain powers of investigation, but not the same powers,
10:39for example, that would relate to the European Public Prosecutor's Office, for example, or
10:43OLAF, the fraud agency.
10:47So I think, yeah, I mean, it could be an issue with some commissioners designated.
10:54I absolutely have no idea.
10:56But I think more importantly is whether this Parliament will really inhabit its role of
11:05being, you know, an accountability mechanism for the Commission, you know, that it is making
11:11sure that the Commission is accountable.
11:14And you know, over time, some parliaments do it in a very strong way, others not so
11:18much, you know.
11:20And so it's probably too early to tell how strong this particular Parliament will be
11:25in relation to the degree to which it holds the Commission to account.
11:30OK, so let's recall the corruption scandal involving members of the European Parliament
11:35at the end of 2022 called Qatargate, still open also in the courts.
11:42Are the new rules strong enough to prevent the new elected members of the European Parliament
11:49for committing wrongdoing?
11:51The rules have been tightened up in relation to, you know, the recording of meetings that
11:56they're having and all of that.
11:57So they can't just wander around sort of privately and meet with people and especially if
12:01they're if they're involved in a file.
12:04But our issue has been, while we are pleased with that, what is the follow up going to
12:10be? I mean, what happens if somebody is found to be in breach of a particular rule?
12:15Because neither the Commission nor the Parliament and the Parliament particularly got away
12:20from self-regulation, you know.
12:23So there is a there is a committee in Parliament that looks at alleged breaches of the
12:31various codes and the rules and so on.
12:34But they then report to the president and it's the president who makes the decision.
12:39There had been a move to have independent experts, independent people join this particular
12:44committee that was voted down by the Parliament.
12:47So the people who are on the committee are parliamentarians themselves.
12:49Nothing. I'm sure they're fine, wonderful, upstanding people.
12:53In fact, I think you were very critical at the time that they were very resisting to
12:58having OLAF, the European Anti-Fraud Office, looking into their business as well.
13:03Well, I mean, should that be an option?
13:04Yeah, well, I mean, that's been a huge issue between OLAF and the Parliament.
13:07OLAF believes that under its statute, it has the right to investigate in the way it can
13:12investigate. Any other institutions can go into your office, it can look at your computer
13:16and so on and so forth.
13:18The Parliament disagrees with that.
13:19So, for example, when Cattergate happened, now it was, you know, I think the security
13:24services of Belgium, maybe other countries who discovered all of that.
13:27It wasn't our own anti-fraud agency.
13:29And I know that the head of OLAF has made the point that, you know, the Parliament needs
13:34to allow them to have the same access as the other institutions allow them to have.
13:39So that's ongoing.
13:41That could be maybe for your successor to deal with.
13:45Another issue very important during these transitions after the elections is a lot of
13:49officials, including commissioners, leave and work for the private sector.
13:54There is the so-called revolving doors phenomenon.
13:58Are you seeing signs that this time along things might be different?
14:03Because there's already cases, people from the commission, from the competition
14:07department, a director from the European Investment Bank.
14:11So is this just the tip of the iceberg?
14:14Well, I think President von der Leyen has written to the outgoing commissioners, reminding
14:19them of their obligations in relation to cooling off periods and all of that.
14:22And again, it's a question of whether this is going to be adequately monitored.
14:26I mean, when people head off, it's not quite clear, you know, how, you know, if they're
14:33breaching some of the codes that are supposed to apply to them or the rules or protocols,
14:37you know, how this is going to be monitored.
14:39I mean, it has been such a slow process to get the commission in particular to really
14:47to shift its culture in relation to a greater understanding of why this matters and the
14:52harms that certain revolving doors cases can cause.
14:55So among the institutions that Ombudsman monitors are also EU agencies, namely Frontex.
15:02You are very critical of the EU Agency for Border Control and Cost Guard, especially
15:07concern the case of the tragedy with the Adriana's boat.
15:12More than 500 people died last year in the Mediterranean Sea.
15:17What should be the changes in terms of rescue at the sea?
15:23We were looking specifically at Frontex, which is the coast guard and border agency, and
15:28therefore people would expect them to have a role in search and rescue.
15:32But they were very clear to us that they are not a search and rescue operation.
15:37They're there to monitor.
15:38Monitoring.
15:39Yeah, exactly.
15:40So this was changing you from your point of view.
15:43Yeah, but we we discovered really in the course of our investigation that there is no proactive
15:50search and rescue operation in the EU.
15:54Should this be European efforts like they were in the past after the Syrian war?
15:59Yes, exactly.
16:00Exactly.
16:01And then a lot of NGOs who attempted to do these rescue missions in the Mediterranean,
16:07they were threatened with prosecution or prosecuted.
16:09We also found as well that Frontex, once one of these incidents happen, is under the control
16:16of whatever member state authority is directing the operation.
16:20So Frontex can't act independently.
16:22And on four occasions during that, when the boat was out there and before it had capsized,
16:27Frontex attempted to contact the Greek authorities to offer help.
16:31The Greek authorities simply didn't reply, the Greek Coast Guard.
16:35And so when we put all of that together, we basically handed it over to the legislators.
16:40This is the gap between what citizens probably think you can do and what actually happens
16:47under the law and practice and so on and so forth.
16:50And if you want to fix that gap, you fix it.
16:52You have to change the way Frontex can operate.
16:56So the migration and asylum pact is also another key challenge in this issue.
17:02It raises questions not only of legality, but I would say of justice, of decency, of humanism.
17:08And there is now this policy of externalizing the management to countries outside the EU,
17:14Tunisia, Egypt, Lebanon.
17:18What are the biggest risks that you see in this strategy?
17:23Well, there's been a lot of excellent reporting done on what's happening in some of these countries.
17:28I mean, just this week or last week, the Guardian newspaper in the UK published a big report
17:33on what's happening to migrants in Tunisia.
17:35And as you know, the EU has a memorandum of understanding now with Tunisia,
17:41in which it is giving it money in return for helping it to prevent migrants from crossing and so on and so forth.
17:49And the Commission itself knows that that is risky for it,
17:57because it cannot but know that their abuse is being carried out.
18:03But can this be remediated now, once detected and announced?
18:07Well, one would hope they would be.
18:09I mean, one of the things we've been looking at, we asked the Commission if they had carried out
18:13a fundamental rights assessment, impact assessment before they did the deal.
18:16No, they didn't. But they have human rights clauses in the contracts they have with implementing bodies,
18:23the bodies that spend the money in Tunisia.
18:25So it's again monitoring and following up on those clauses?
18:28Yeah, exactly. The question is, first of all, you know, it's very difficult to make a complaint in relation,
18:35if you feel that abuses have occurred.
18:39But secondly, you know, the question, is the EU prepared to stop the funding or take back the money
18:47if it feels that the human rights are being are being violated?
18:52So, I mean, it is I understand how politically difficult it is.
18:57You know, you have Europe, which is sort of shifted slightly to the right,
19:00where migration is used as a as an instrument of power or by certain groups, certain political leaders.
19:08So we are about to end our interview.
19:12I mentioned that you have been doing this job for a decade.
19:18What is the main conclusion that you draw from all the experience and the people that you met along this time?
19:25And if you could give an advice or suggestion to your successor, what would it be?
19:32My advice would be do what you're supposed to do.
19:34You know, the European Ombudsman, I say it's a it's a small office with a big mandate.
19:40It is the watchdog of the entire European administration.
19:44It's not a little office that deals with little complaints and keeps its head down.
19:47It really has to inhabit that role.
19:50And that is what I've tried to do over the last 11 years.
19:52Madam Emily O'Reilly, thank you very much for your contribution to our program.
19:55Thank you indeed. Thank you for inviting me.