‘Not up to scratch’: Uber Files puts spotlight on weak enforcement of EU ethics rules

No one’s standing guard at the EU’s revolving door.

Neelie Kroes, an ex-EU digital chief known for her pro-Uber stance while in office, was first the object of an unprecedented reprimand for failing to disclose income in 2016.

Now, fresh allegations targeting Kroes and revealed as part of the “Uber Files” leaks suggest she may have violated the Commission’s ethics rules in a separate incident — by starting to lobby for Uber before guidelines would have allowed.

The claims, outlined in a massive dump of documents about Uber’s lobbying activities in multiple countries, are sharpening scrutiny of EU ethics rules that campaigners say are barely enforced despite repeated scandals involving former Commission officials jumping into lucrative corporate lobbying jobs after leaving office.

According to reports about the leaked documents, Dutch politician Kroes went from being an internal champion of the ride-hailing app as Commission vice president in charge of the digital agenda to an external one, as a lobbyist for Uber.

Documents leaked to the Guardian by ex-Uber lobbyist Mark MacGann indicate that Kroes personally contacted Dutch authorities and offered to set up meetings with European commissioners well before the end of an 18-month “cooling off” period. Whether her alleged interventions violated the letter of the EU’s safeguards against policymakers profiting from public service — or merely the spirit — is up for some debate among watchdogs.

What’s not: That the Commission wouldn’t notice either way.

“There is little monitoring,” said Emily O’Reilly, the European Ombudsman, of whether former EU commissioners complied with the rules. In a statement, she noted the “propaganda value to Eurosceptics and others of scandals that emerge as a result.”

For now, the Commission is waiting for Kroes to give “clarification” on her activities. Yet, if there was any ex-commissioner to keep an eye on, it was Kroes, who covered competition from 2004 to 2010 and then the digital agenda until November 2014.

In 2016, she became the first ex-commissioner to receive a “reprimand,” after a different leaked trove revealed that she’d failed to disclose her position on the board of a shell company in the Bahamas.

The Commission threw up its hands on questions of enforcement, pleading that they had no “secret police” to track down information that hadn’t been shared.

Ultimately, the Commission’s ad hoc ethics committee opted to “reprimand” Kroes. The neglected directorship turned out not to be the only issue. She also failed to disclose her income in 2015, even though she was receiving a so-called transitional allowance, a sum meant to tide ex-officials over during the cooling-off period.

Former Commissioner Neelie Kroes was known for her pro-Uber stance while in office | Julien Warnand/EPA

While the committee dinged her for not acting with “necessary diligence,” the board opted not to pursue further legal consequences — especially since she quickly paid back the parts of the transitional allowance. (Kroes did not receive a pension, eliminating one tool of leverage.) The Commission declined to share monetary amounts at the time.

As the documents are not public, it’s not immediately clear whether Kroes included Uber income in her updated 2015 financial statement. Reports based on the internal Uber documents note that the Commission explicitly denied Kroes permission to work for the company before the waiting period ended.

Itching to lobby

According to Uber, Kroes did not join the company’s advisory board until May 2016. Yet even at the time, her on-boarding soon after the 18-month pause raised eyebrows, given her vocal advocacy for the American company during her time at the Commission.

This week’s revelations suggest that behind the scenes, she hadn’t waited that long.

The Guardian reports that she called multiple Dutch officials in response to raids on Uber’s Amsterdam offices in 2015 and helped set up meetings with Prime Minister Mark Rutte. The files also suggest she offered to set up meetings with European commissioners Violeta Bulc in 2015 and — just days before the 18-month wait ended — Frans Timmermans.

In comments to the Guardian, Kroes points to an unpaid, Commission-approved role as a special Dutch government envoy for tech companies during that time. However, her work was supposed to be limited to broad themes. (Kroes did not respond to POLITICO’s email requesting comment.)

The EU’s rules also don’t explicitly bar lobbying of national-level officials.

Nonetheless, said Vitor Teixeira, senior policy officer at Transparency International EU, the offers to contact commissioners were a “clear breach” of the cooling-off period. Furthermore, Teixeira and other watchdogs argue, her efforts on behalf of Uber breach a provision of the EU treaties that demands ex-commissioners “behave with integrity and discretion” when it comes to work they accept after leaving.

Since Kroes’ reprimand — and an even higher profile outcry over former Commission President José Manuel Barroso’s move to Goldman Sachs — the Commission has launched ethics reforms, including lengthening the cooling-off period to two years.

Yet the system remains “purely reactive,” said Teixeira. It has no ability to monitor or investigate compliance with conflict-of-interest safeguards until there’s a scandal. “The system,” Teixeira added, is “not up to scratch.”

The European Ombudsman has been broadly critical of the Commission’s handling of staff moves to the private sector.

In a report out in May, O’Reilly urged the Commission to be more assertive about forbidding jobs temporarily if they pose conflict of interest risks that can’t be offset or adequately monitored.

In the statement, O’Reilly flagged the loophole for lobbying national officials  — who have considerable say on EU law through the Council — as one of many improvements needed to EU ethics laws. Declining to comment specifically on the Commission’s handling of the matter, O’Reilly posited that the use of lobbying strategies at both the national and EU level as outlined in the Uber Files “begs the question as to whether there should be an EU directive on lobbying transparency and ethics.”

In Brussels, current Commission chief Ursula von der Leyen’s team has been drafting plans for an EU ethics body, but there’s no timeframe for a concrete proposal.

Peppered with questions at Monday’s daily press briefing, Commission spokesperson Christian Wigand said the Commission has to sort out details on the ethics body with the other EU institutions, but would put forward a plan “as soon as possible in this context.”

“As you can imagine,” Wigand said, “it’s rather complicated.”

Pieter Haeck contributed reporting.