Lobbying the European Union by Committee

Since 2000, the number of expert groups has grown by more than 40 percent, indicate that this way of decision-making has become more central to Commission policy making. Academic study has estimated that the total number of people involved in Commission expert groups is over 50,000. “The In-Sourced Experts”, Rinus van Schendelen, published in The Unseen Hand – Unelected EU Legislators, ed. by Van Schendelen and Roger Scully, London, 2003.Yet as membership of the expert groups remains confidential, these can only be educated guesses.

Following intense pressure from the European Parliament, the European Commission has recently announced it will improve transparency over its expert groups. On June 11 2007, Commission president Manuel Barroso announced that the Commission will establish ‘a database with names, title and sex of most experts’ advising it by the beginning of 2008. Secret working groups soon less secret, Bonde’s Briefing, 11 June 2007; Jens-Peter Bonde’s speech to the joint meeting with national parliaments, 11-12 June 2007. A public register of expert groups has been available on line since a few years. As will be argued in this report, improved transparency on expert groups is long overdue. Moreover, the Commission should put an end to privileged access and corporate capture of expert groups.

Lobbying the committees

While the role of committees and expert groups in EU decision-making seems opaque and non-accountable to the average citizen, professional lobbyists see opportunities to exploit the complexities and lack of transparency. Some are even earning money by organising seminars on how to make the most out of the EU’s committees and expert groups.

Committees assisting the EU institutions: ‘The hidden power’

At the heart of the EU, there are two categories of specialised committees working at three different stages of policy; First, those that “comprise national and/or private-sector experts” Expert groups explained, Secretariat General of the European Commission, undated. Accessed on SG transparency website, 10 July 2007. who assist the Commission in preparing policies and legislation They also undertake monitoring and coordinating tasks. (drafting phase) and are generally called expert groups.

Second, those made up of national government representatives who, in effect replace the Council of Ministers when legislation is being adopted and implemented. The adoption phase involves the European Council’s working groups. The implementation phase concerns the comitology committees.

Committees in the adoption phase (council’s committees) adopt 30 to 40 legislative acts per year which are then signed by the Council of Ministers. Committees in the implementation phase (comitology committees) discuss the implementation of the legislation already agreed by the EU institutions and take 3,000 – 4,000 execution decisions per year.

Advisory committees in the drafting phase should not be confused with the advisory committees in the implementation phase.

The European Training Institute estimates there to be more than 2,000 committees. In 2004, Danish MEP Jens-Peter Bonde received a list with more than 3,000 groups (some of which may now be defunct).The Bonde list, as accessed on Jens-Peter Bonde’s website, 10 July 2007. Only 1,535 The total number of the committees for which there is some kind of public information can come up to 1,700 maybe if we also count the Social Dialogue Committees and the Scientific Committees for which there is dispersed information on the web. groups appear in the European Commission’s two online registers.Expert Groups’ Register and Comitology register.

Lobbyists and the committees’ universe

At the “Comitology Reform” seminar, Daniel Guéguen described how, “80% of the dossiers we deal with as lobbyists are finalised in comitology.” Stressing the importance of these committees for lobbyists, he gave some suggestions how to approach them:

”The bottom-up approach is much more effective than the top-down (lobbying ministers and commissioners); in the bottom-up approach you deal with experts behind the scenes and lobbyist intervention is based on expertise. You have to put forward technical arguments and you also have to know who is dealing with your issue in a very early stage.”

As is emerging in this article’s analysis, a key issue is how to identify all the committees that exists and then ascertain their specific role in the policy making process. This is also a question for industry lobbyists such as those present at the European Training Institute seminar. During the seminar, Mr. Guéguen was keen to promote a recent European Training Institute product; a database developed for a big company to navigate the committee jungle and which can also used by its national branches, via the company’s intranet. Guéguen advertised this tool as a real time saver due to the way it standardises (and specifies) information.

The Adoption phase – Council committees

Committees in this phase are made up entirely of member state representatives (COREPER I and II, specialised committees and working groups). When unanimity exists on a particular issue, the proposed measure is adopted there and then without ministerial negotiation. In these cases, ministers are simply required to sign on the dotted line. The official role of these committees is to ‘save time’ for ministers by achieving agreement between the member states at the civil servant and technical level.Register of Comitology, Frequently Asked Questions, Secretariat General of the European Commission, undated. Accessed on SG transparency website, 10 July 2007.

At the comitology seminar for lobbyists, Daniel Guéguen explained how lobbyists may be able to delay decisions or transfer to the ministers by gaining support, in theory, from just one member state, for their position when it is in opposition to the produced legislation. In practice, lobbyists need a critical mass of four or five countries willing to challenge at this stage, as no government would go alone and risk being labelled ‘non-constructive’.

“The role of the Secretariat of the Council shouldn’t be forgotten by the lobbyists”, Guéguen stressed. “Presidencies come and go, but they stay. They are doing the follow up to each incoming presidency. They can be very useful informing on the manoeuvre margins, even if they refuse to give information on the position of a specific country.” For most in the public-policy arena and on its fringes, these European Council committees are out of sight and out of reach. For professional lobbyists they are an under exploited avenue for political influence.

Guéguen stressed that “all the bodies in this phase can be lobbied, but the more a lobbyist goes down in the hierarchy, the more he has to be technical and credible. One has to lobby them far ahead the meetings and upstream.”

The implementation phase – comitology

Implementation phase committees Ibid. take the final stage in EU decision-making: the implementation of the legislative acts. The Commission chairs these committees, which are composed of national delegates, and takes the final decisions. There are three categories of committees in this phase: Regulatory, Advisory and Management Committees.COUNCIL DECISION laying down the procedures for the exercise of implementing powers conferred on the Commission (1999/468/EC), Official Journal of the European Communities L 184/23, 17 July 1999. Some of these committees meet on a weekly basis and give their opinion on over one thousand matters a year.

Comitology may be efficient, but the democratic nature of this highly technocratic system and its highly complex procedures are clearly questionable. A rare example of a decision made in comitology that surfaced to widespread controversy was an approval by the Commission in 2004 for the authorisation of a genetically modified version of corn, called Bt-11. The matter was voted on in a committee, where representatives of six member states actually voted against the proposal and caused a block. But under the rules of comitology, the Commission then had the right to propose authorisation. This proposal could only be adopted or rejected by a qualified majority in the Council. As there was no such qualified majority either for or against authorisation, the Commission could just push through authorisation, even when half of the member states objected.Re: European ministers split on Monsanto’s GM maize NK603, Chee Yoke Ling, Third World Network Biosafety Information Service, 30 June 2004.

As of 1999, the European Parliament has had an ‘information and opinion right’ at this decision making stage. However, MEPs have been far from satisfied with this ‘right’ and furthermore, the Commission, in more than forty cases, has simply failed to inform them at all.Comitology Reform; Be ahead of the game!, seminar organised by the European Training Institute, 22 January 2007. In mid-2006, as a result of MEP pressure, the proceedings of the Regulatory, Management and Advisory committees in the execution phase have undergone slight reform. The new procedure gives the European Parliament a veto right, but only on measures that are defined as ‘quasi-legislative’.Execution measures are divided to ‘quasi-legislative’ ones and ‘stricto sensu’ ones. If there is a disagreement on the definition of a measure it is the Court of Justice that resolves it. Many important issues are not covered by this definition.Here is an example about this division: the authorisation of an individual GM product is a strictu sensu measure, whether changing the maximum percentage of GM elements that can be found in a product, in order to be considered as a GM one or not is a quasi-legislative measure. The obvious impact of this reform has been to lengthen and further complicate the procedure. According to Guéguen, “95 percent of the public affairs practitioners are not aware of the reform, but – nonetheless – it radically transforms lobbying practices”.

According to Guéguen, the reform has been “no good for the efficiency of the EU, nor has it brought it closer to the citizens, as it results in more bureaucracy.” With extreme frankness, Guéguen expressed how the reform has been good news for professional lobbying consultants like himself because “their job becomes more valuable and useful”. The increased complexity in EU decision-making leads to higher demand for their services and a “premium for competences”.

The comitology reform has failed to tackle the fundamental problems of opacity and lack of democratic control in the world of comitology. Moreover, the European Commission was allowed to keep its extraordinary power to push through regulatory measures, when neither the relevant regulatory committee nor the Council can reach a qualified majority decision for or against a Commission proposal.

Finally, it is important to note that the comitology reform only covers the execution phase, where the committees consist of government officials. It has changed nothing in the drafting phase, where big business lobbyists are directly participating.

The Drafting phase – the Commission’s expert groups

There are over 1,350 drafting phase committees ‘precooking’ the European Commission’s legislative proposals:

• advisory committees and expert groups (industry, professionals, consumers, governments, and NGOs);
• scientific committees consist (scientists);
• social dialogue committees (social partners, such as trade unions and employer organisations);

The Commission’s ‘high level groups’ are also considered expert groups.High Level Groups are most of the times expert groups. The European Commission’s list of expert groups is incomplete and out of date.

Explaining the role of the drafting phase committees (expert groups), the Commission says: “The Commission maintains a high level of in-house expertise, but nevertheless the in-house capacity is limited in view of the breadth of expertise needed and the volume of normative activity of the Commission. As the knowledge required becomes increasingly technical and highly specialised, the Commission must call upon external specialists in their respective fields to feed their advice.” Expert groups explained, Secretariat General of the European Commission, undated. Accessed on SG transparency website, 10 July 2007.

Expert groups and (drafting phase) advisory committees are often highly influential. For example, an expert group established in 1996 by DG Agriculture, chaired by Professor Buckwell, Towards a Common Agricultural and Rural Policy for Europe, Report of an Expert Group, European Commission, Brussels, April 1997. published a report that was a major influence on the Agenda 2000 proposals as presented by the Commission President Jacques Santer to the European Parliament on 17 July 1997.European rural development policy and territorial diversity in Europe, Franco Sotte, Grenoble, March 2005, page 10,11.

European Commission Directorate Generals can establish expert groups whenever they see a need. DG Research, DG Environment and DG Enterprise appoint the most expert groups. Who Consults? The use of Expert groups in the European Union, Ase Gornitzka and Ulf Svedrup, ARENA, University of Oslo, [draft to be presented and discussed at the ARENA seminar May 8, 2007], page 13. Participants in these groups can either be appointed as representatives of a public authority or civil society group, or in a personal capacity. Expert groups explained, Secretariat General of the European Commission, undated. Accessed on SG transparency website, 10 July 2007.

In order to establish a new expert group, European Commission DG’s need only the approval of the Commission’s General Secretariat and there is no public announcement. There are both formal and informal groups. Formal groups are established with a Commission decision or a legal act. For informal groups, there is no public document announcing or acknowledging their existence. The Commission itself states how “the great majority of existing expert groups were created using this second method”. Framework for Commission’s expert groups C(2005)2817, European Commission, Brussels, 27 July 2005.

Even for professional lobbyists, ascertaining the existence and activities of expert groups is not an easy task. If a lobbyist knows about an expert group at an early stage, they can try to be invited on as a member. Daniel Guéguen suggests lobbyists to lobby for the creation of a new expert group. This will put them in a good position to ‘control the agenda’ of the new expert group. This is a widely utilised lobbying strategy and therefore it should come as no surprise that there are many examples of expert groups with an unbalanced composition in terms of interests’ representation.

Lobbying tutor Guéguen also suggests that corporate lobbyists participate in the social dialogue committees as this “can create good links that can give advantage when lobbying on other dossiers”. Lobbyists may be attracted by opportunities to influence scientific committees, but Guéguen expressed caution in this approach as it “is not recommended to lobby them intensively.” Contrary to most other expert groups, the names of the participants of scientific committees are available on-line.See for example the list of scientific committees advising on food safety issues, as accessed on the website of DG Health and Consumer Protection, 10 July 2007.

The European Commission’s expert groups play an important role in the crucial early stages of EU decision-making. As a consequence, they are a major focus for lobbyists, who often succeed in getting a seat or even a position of dominance. Yet the membership of expert groups, generally remains confidential. Given the importance of expert groups and involvement of corporate lobbyists in many of these groups, it is remarkable that the European Commission did not include them in its European Transparency Initiative (ETI), not even in the chapter on improved ‘consultation practices’.See for example the European Transparency Initiative website and the Transparency website of the European Commission.

It is currently impossible to assess the real role that specific interests play in the drafting of EU policy or legislation – a major hurdle for effective democratic scrutiny at the EU level. A comprehensive on-line public directory of expert groups, providing key information such as expert group membership names and organisations, reports and minutes would be a great improvement for EU-level democracy.

The European Parliament has also taken up this issue. At the end of March 2007, the European Parliament called upon the Commission to “publish information on the expert groups upon which it calls in its work, including the names and fields of expertise of the groups’ members”.2005 discharge – Member States’ responsibility in question, European Parliament press release, Budgetary control, 28 March 2007. Furthermore, the Parliament may decide to block the budget for the meeting expenses of the expert groups, should the Commission fail to meet this demand.Discussion with Jens-Peter Bonde, 22 May 2007. The European Commission has long rejected these transparency demands, invoking personal and commercial data protection rights. This argument is clearly unacceptable when it comes to membership of powerful advisory bodies that are involved in policy issues where the public interest in transparency is clear. In June 2007, Commission President Barroso indicated that the Commission will soon change its position on this issue, announcing that by 2008 the Commission will publish a database with names, title and sex of most of the participating experts.See Jens-Peter Bonde’s reaction to this announcement.

However welcome this long overdue reform is, the Commission must also take action to end corporate dominance of expert groups. As has been described in this briefing, in many cases, corporate-interest groups are awarded a seat in the expert group and industry lobbyists may even form the main membership of an expert group. Examples abound of expert groups being dominated by business lobbyists (see the text box above), while public interest NGOs are either under-represented or entirely absent. The Commission’s expert groups provide a great opportunity for corporations with big lobbying budgets to gain privileged access (and influence) in the EU decision making system. For commercial lobbyists, gaining control of expert groups’ agendas is a routine part of their toolbox.Daniel Guéguen in the European Training Institute’s Workshop on Comitology Reform, 22 January 2007.

As the European Commission’s Directorates General continue to expand the number of expert groups and these groups become ever more important in EU decision-making, the EU is facing a critical choice. It is obviously convenient for Commission DG’s, to develop legislation and policy using these opaque committees, which are often dominated by commercial interest lobbyists. Yet such a practice is fundamentally at odds with genuine democratic processes.

The European Commission should take urgent and determined action to reform its expert groups system by replacing the current murky mix of technocracy and lobbycracy with open and balanced democratic procedures for consulting experts and stakeholders.

Apart from disclosure of the membership and key documents for all expert groups the Commission needs to introduce extra safeguards against privileged access or corporate capture, for example by making the launch of new expert groups fully transparent and by establishing open and fair application and selection procedures for expert group membership.