Decision of the European Ombudsman closing his own-initiative inquiry OI/12/2011/(JSA)JF concerning the European Monitoring Centre for Drugs and Drug Addiction
The background to the inquiry
1. The European Ombudsman launched a programme of visits to the agencies of the European Union (the 'EU') in May 2011 with the aim of promoting good administration and sharing best practice among these EU entities. These visits are formally carried out on the basis of the Ombudsman's competence to conduct own-initiative inquiries under Article 228 of the Treaty on the Functioning of the European Union. They provide an opportunity for the Ombudsman and the agencies to engage in a constructive dialogue with a view to nurturing and strengthening an administrative culture of service to citizens.
2. The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) was established in 1993 by Council Regulation 302/93. It is based in Lisbon, Portugal and started operations in 1995. The 1993 Regulation has been substantially amended several times. Since further amendments appeared necessary, it was recast in December 2006 by Regulation 1920/2006 in the interest of clarity and in order to help the Centre better to respond to new challenges in the field of drugs. Though mainly organisational, these changes also introduced more fundamental modifications concerning the Centre's priority areas of activity and tasks.
3. The Ombudsman visited the EMCDDA on 22 November 2011.
The subject matter of the inquiry
4. The meeting with the EMCDDA's management focused on the following issues:
- The EMCDDA's initial contacts with the public
- Transparency, dialogue and accountability
- Tenders and contracts
- Conflicts of interest.
The Ombudsman's findings and suggestions following his visit to the EMCDDA
5. On 15 May 2012, the Ombudsman sent a Report to the EMCDDA containing his findings from the visit as well as the following suggestions.
a. In light of the Centre's commitment to openness, and in order to apply Regulation 1049/2001, the Ombudsman suggested that the Centre could usefully consider the possibility of including in its Annual Management Plan for 2013 the task of examining and implementing the obligation to establish a public register of documents and to publish an annual report on the cases in which it refused to grant access to documents.
b. From the documents (calls for applications) which the Centre submitted to the Ombudsman, it was not clear whether it makes public the identity of selection board members. The Centre was therefore invited to clarify this question in its answer to the Ombudsman. The Ombudsman recalled that disclosing the identity of the members of the selection board is also a condition for citizens to be able to ascertain that there are no conflicts of interest affecting certain members of the boards in selection procedures.
c. The Ombudsman also recalled that, during the visit, the EMCDDA committed itself to indicating explicitly in its calls for tender that the European Ombudsman constitutes a possible review mechanism in case of disputes. He stated that he would therefore welcome it, if, in responding to his report, the EMCDDA were to refer to any developments in this respect.
d. The Ombudsman considered that the EMCDDA could issue concrete guidelines to its staff concerning the obligations laid down in the Staff Regulations for officials and agents leaving the service. Moreover, it could ensure that the declarations of no conflict of interest signed by its experts and staff are sufficiently detailed and substantive and that they are actually checked and concluded upon by the Centre itself, thereby avoiding the eventuality that the declarations are accepted merely at face value and without adequate scrutiny. Finally, the Ombudsman suggested that the Centre forward to him copies of (a) updated declaration forms and of updated written procedures for handling, and concluding upon, such declarations, as well as (b) the internal guidelines to staff concerning their obligations when leaving the service.
The follow-up given by the EMCDDA to the Ombudsman's suggestions
6. On 28 August 2012, the EMCDDA sent a reply explaining the follow-up action it took after the Ombudsman made his suggestions. It explained its position on each of the Ombudsman's suggestions as follows.
As regards suggestion a., the EMCCDA explained that it would include in its draft Work Programme for 2013 the establishment of a public register of documents and that it was planning to include in its next issue of its General Report of Activities, which is published annually, a report on the cases in which it refused to grant access to documents.
In respect of suggestion b., the EMCDDA drew attention to the privacy statement published on its recruitment webpage, which declares that applicants have the "right to have access to the names of the members of the selection committee appointed for the concerned selection procedure upon written request ...".
Regarding suggestion c., the EMCDDA referred to its new tender document template which provides the information the Ombudsman suggested should be included. It also emphasised that its recent calls for tender already explicitly indicated that the European Ombudsman constitutes a possible review mechanism in case of disputes. It pointed out that a similar statement had already been included in all the EMCDDA's calls for tender with an estimated value of over EUR 60 000. The EMCDDA referred the Ombudsman to the copy of a contract notice which it enclosed with its reply and to its webpage on procurement.
With respect to suggestion d., the EMCDDA explained that it adopted 'Internal Guidelines for the Exit Procedure for Staff Leaving the EMCDDA', which it also annexed to its reply to the Ombudsman. It emphasised that these revised guidelines provide for a Declaration Form, which contains a declaration of no conflict of interest, and for updated written procedures for handling and concluding upon such declarations.
The EMCDDA expressed the hope that the above developments meet the Ombudsman's expectations.
The Ombudsman's analysis and conclusions
The Ombudsman's assessment
7. As regards suggestion a., the Ombudsman considers that the EMCDDA complied fully with that suggestion.
As far as suggestion b. is concerned, the EMCDDA's practice of disclosing to candidates the names of the members of selection boards upon a written request to that effect is not incompatible with the Ombudsman's suggestion even if, ideally, the disclosure should be public and not limited to candidates who ask for it explicitly. Nevertheless, the Ombudsman notes that the issue of the disclosure of the names of selection board members has raised a number of questions in the context of his visits to the different agencies. Some of the agencies have sought guidance from the Ombudsman as to the best approach to be adopted in this respect. The Ombudsman therefore considers that the best way forward is to open an own-initiative inquiry concerning the issue of disclosure of the names of selection board members. In view of the subject matter, the Ombudsman will include in his inquiry all EU agencies, and therefore also the EMCDDA.
Regarding suggestion c., the Ombudsman notes that, in the contract notice annexed to its reply, as well as in the "specifications" relating to other invitations to tender available on its procurement webpage, the EMCDDA refers under the title "Procedure for appeal" to both the General Court of the European Union, identified as the "body responsible for appeal procedures", and the European Ombudsman, identified as the "body responsible for mediation procedures". The Ombudsman is pleased that the EMCDDA now explicitly refers to the European Ombudsman as a possible dispute resolution mechanism in the documents it makes available to tenderers. He would, however, appreciate a change in the wording used to the effect that the Ombudsman is indicated as a redress mechanism alternative to the courts. In fact, while the European Ombudsman endeavours to reach friendly solutions to the disputes set out in the complaints submitted to him, he does not 'mediate' in the strict sense of the term 'mediation'.
As regards suggestion d., the Ombudsman examined the 'Internal Guidelines for the Exit Procedure for Staff Leaving the EMCDDA', dated 27 August 2012. He notes that, in those guidelines, the EMCDDA informs staff clearly about the obligations imposed by the Staff Regulations on staff leaving the service. Similarly, the document entitled 'Declaration and acknowledgement of receipt [relating to the] statutory obligations of the EMCDDA's staff members upon departure' makes express reference to the relevant provisions of the Staff Regulations applicable to staff leaving the Centre, namely, in respect of conflicts of interest. Furthermore, the EMCDDA's note drawing attention to the 'Statutory obligations of EMCDDA staff members upon departure', also enclosed with the Centre's reply, provides for additional explanations in respect of the staff members' obligations upon their departure from the Centre, and reproduces the relevant provisions of the Staff Regulations applicable to them in full. The Ombudsman considers these initiatives satisfactory.
On the basis of his inquiry, the Ombudsman closes it with the following conclusion:
The Ombudsman welcomes the EMCDDA’s implementation of the suggestions made after his visit to the Centre. The Ombudsman would, however, appreciate a change in the wording used in the EMCDDA's contract notices and Specifications to tenderers to the effect that the European Ombudsman is indicated as a redress mechanism alternative to the courts.
The Ombudsman notes that the issue of the disclosure of the names of selection board members has raised a number of questions in the context of his visits to the different agencies. Some of the agencies have sought guidance from the Ombudsman as to the best approach to be adopted in this respect. The Ombudsman will open an own-initiative inquiry concerning the issue of disclosure of the names of selection board members and, in view of the subject matter, he will also include the EMCDDA in his inquiry.
The Director of the EMCDDA will be informed of this decision.
P. Nikiforos Diamandouros
Done in Strasbourg on 27.05.2013
 Council Regulation (EEC) No 302/93 of 8 February 1993 on the establishment of a European Monitoring Centre for Drugs and Drug Addiction, OJ 1993 L 36, p. 1.
 Regulation (EC) No 1920/2006 of the European Parliament and of the Council of 12 December 2006 on the European Monitoring Centre for Drugs and Drug Addiction (recast), OJ 2006 L 376, p. 1.
 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ 2001 L 145, p. 43.
 "[S]taff members have a life-long duty of confidentiality even after they have ceased their relationship with the EMCDDA. This covers all information covered by the obligation of professional secrecy. Staff members are required to behave with integrity and discretion after leaving the EMCDDA.
In addition, in line with the Staff Regulations, the EMCDDA is entitled to impose restrictions on employment after members of staff leave the EMCDDA ... In consequence, to comply with the referred article, and in order to evaluate the risk of a conflict with the legitimate interests of the EMCDDA, staff members commit themselves to communicate to the EMCDDA Appointing Authority all elements related to the activity they intend to engage after leaving the EMCDDA. The Appointing Authority may, having regard to the interests of the service, either forbid the staff member from undertaking it or give its approval subject to any conditions it thinks fit.
Staff leaving the EMCDDA are free to use the skills acquired in the course of their employment at the EMCDDA so long as such use does not interfere with their obligation of confidentiality. This is, in particular, intended to prevent breaches of confidentiality that would be prejudicial to the public interest, interests of the EMCDDA or EU institutions and Member States..."
 "I, the undersigned, declare that:
- I was informed of the provisions concerning the servants' responsibilities and in particular articles 16, 17, 17a, 19 and 86 of the Staff Regulations of the European Communities and I declare to take the commitment to respect them.
- In particular and in compliance with article 16, I shall inform the EMCDDA of any activity, gainful or not, I intend to engage within two years of leaving the service of the EMCDDA. I also take notice that if this activity is related to the work carried out by me during the last three years of service and could lead to a conflict with the legitimate interests of the EMCDDA, the Appointing Authority of the latter may, having regard to the interests of the service, either forbid me from undertaking it or give its approval subject to any conditions in thinks fit."
 "On leaving the EMCDDA, your attention should be drawn to certain obligations stipulated by the Staff Regulations of the European Communities, as well as to rules applicable to other agents of these Communities, obligations which concern you and which you should observe. This concerns articles 17, 17a, 19 and 86 of the said Regulation.
In case the obligations are violated, the consequences could be those enumerated in article 86 of the Regulation.
After leaving the service, you continue to be bound by the duty to behave with integrity and discretion as regards the acceptance of certain appointments or benefits (article 16 of the Regulation).
After you leave the EMCDDA you are required to be very discreet with all information that you came across during the execution of your duties; you may not divulge, under any circumstances, to an unqualified person any documents or information which were not previously rendered public (article 17 of the Regulation).
In addition, without the EMCDDA's permission you may not, whatever the circumstances, disclose for any legal proceedings any information that you might have come across during the performance of your duties. However, these rules do not apply to a civil servant / agent giving evidence at the European Communities' Court of Justice. In case pertinent to an agent or former agent of the three European Communities (article 19 of the Regulation)."
 Namely, Articles 16, 17, 17a, 19 and 86.
 See, for instance, the follow-up given by the European Network and Information Security Agency following the European Ombudsman's report (OI/11/2012/ANA), referred to in footnote 8 above.