Commission claims its house is in order, rejects key Ombudsman recommendations
The European Commission has finally responded to the Ombudsman investigation into its advisory groups, but the answer is a serious anti-climax and puts a big question mark over Vice-President for Transparency Frans Timmermans' commitment to tackling excessive industry influence within these groups.
Formally known as 'Expert Groups', they are particularly influential at the beginning of the legislative process, shaping – and even drafting – Commission directives. This makes them a key target for industry lobbyists, who have traditionally dominated the most politically and economically important groups, something European Parliamentarians and civil society groups have been fighting against for years while the Commission drags its feet.
The feet-dragging continues: in his response to Ombudsman Emily O'Reilly this week, having missed the original deadline of 30th April, Timmermans flatly rejects the two main recommendations: that groups need to be more balanced and that horizontal rules are needed across all directorates general (DGs) to ensure the problem is tackled across the board.
While there were some concessions on areas such as group member conflicts of interest and making sure the calls for membership are open to all, even here caveats ensure that business as usual is likely to continue.
The Ombudsman still has her final report to write, but it appears that only supported by a concerted effort from the European Parliament and Europe's citizens can the central tenets of her proposed reforms see the light of day in the face of an obstinate Commission.
Just say No: Commission rejects the Ombudsman's core recommendations
At the heart of the Ombudsman's recommendations was a call for Commission Expert Groups to be more balanced. That was the focus of the investigation, and it also made up the bulk of the recommendations. Yet despite claiming it was “fully committed to a balanced representation” within its groups, the Commission still rejected the measures proposed: from outlining what 'balance' actually means for each group, to ensuring a fair split between economic and non-economic actors, to allowing the public to clearly see which interests are represented in the group via the website.
The Commission argues that these groups are purely technical, providing it with expertise, and that where that expertise comes from is not important: these are experts not lobbyists, so vested interests don't count. Following this line of argument, the Commission is keen to retain the power to appoint whoever it likes to these groups, rather than being tied-down to rules on industry dominance or quotas for different stakeholders, which it dismisses as “an exercise in arithmetic”. Yet the world of Brussels lobbying is very savvy as to the huge importance of expert groups and lobby groups regularly target Expert Group membership to make sure their business interests are being served at the very initial, and arguably most important, stage of law-making. This begs the question of whether the Commission is simply naïve or intentionally wants to favour the agenda of big business.
The refusal by Frans Timmermans, and his predecesor Maros Sefcovic, to see the political nature of 'advice' is not shared across the Commission. In DG Agriculture and Rural Development, they have legally-binding rules of balance between economic and non-economic actors, although the DG does not appear to be following them. Equally, the law creating the Securities and Markets Stakeholder Group, (part of the European Securities and Markets Authority, or ESMA), which gathers advice from stakeholders to develop technical standards and guidelines, it outlines quotas for different stakeholders. However, it did take an ombudsman complaint and a resignation to ensure those rules were enforced.
Not only does the Commission proposal protect big business interests, it also makes no mention of how to bring more civil society actors into Expert Groups – which has been a chronic and well-documented problem – and instead the claims there are other avenues for stakeholders to participate through, such as public consultations. While true, many of these other 'avenues' are equally loaded in favour of industry – either in their framing or participation, and it is pretty hard to equate a written submission to a narrowly-framed public consultation, to having a seat at the table.
The outright rejection of measures to improve balance (the Ombudsman had not even recommended stakeholder quotas, but had simply asked for an explanation of what balance means for each expert group and why) underlines the firm institutionalisation of privileged access, and reinforces the need for the Ombudsman's reform proposals as first step rather than a destination. There's a need for clear quotas and even limiting participation of certain stakeholders whose interests are clearly not aligned with the public interest, such as the fossil fuel industry or tobacco companies. In fact, the World Health Organisation (WHO) introduced a firewall between public health officials and tobacco lobbyists for this very reason. Unfortunately, despite signing up to the measure, the Commission has not enforced it.
To tackle a structural problem such as industry domination of Expert Groups, structural solutions are needed. That's why the Ombudsman recommended a new legally-binding framework, so that her recommendations would be implemented across the board and not just by a few DGs, as is the case at the moment. For example, DG Education and Culture (EAC) reported in a 2012 review that its groups were balanced because “no single interest category, (business, union or other) has a majority of the non-government and non-EU seats in the group”, which sounds reasonable. However, DG Taxation and Customs Union (TAXUD) claimed in a review one year later that there was no problem with one of its groups looking at tax evasion because “there is a balance in the representation of the relevant areas of expertise and areas of interest – 8 work in consultancy and 8 in multinational enterprises”. Less reasonable, and certainly not balanced.
The current rules are clearly being interpreted and applied differently across different departments, but research shows that the biggest problems occur in those groups of the highest political and/or economic importance. Without strong rules applied to all groups, the European Parliament and Europe's citizens will have to make do with the word of the Commission. And we have been here before. In 2012 the Commission promised to tackle the problem, but two years of obfuscating saw the Parliament vote to re-freeze the budget, as well as the Ombudsman opening her own investigation.
In its defence, the Commission claims that new rules would not provide “real added value”, as the current rules have been adopted by the whole College of Commissioners (although of course there is no reason why it could not adopt a set of new rules). Instead it sees no problem with different DGs having different rules, and writes that the current 'framework' for Expert Groups from 2010, which says that the Commission will ensure balanced representation 'as far as possible', “reflects the Commission's firm commitment to strive for a balanced composition”, despite evidence showing it has seriously failed to deliver, and certainly not across the board.
The European Parliament has frozen the Expert Group budget twice in four years in frustration at the lack of progress made in this area. Horizontal rules – as well as a clear timetable of when they will be implemented – were a clear demand when the freeze was approved by the whole plenary in 2014. Yet the Commission still refuses. Instead of horizontal rules, it proposes to address any “perceived imbalance” on a “case-by-case basis”, in order to remedy “possible inconsistencies”. This would be acceptable were the problem not structural and endemic, with study after study confirming the findings despite the Commission's protests to the contrary. This is the same approach the Commission has taken with civil society groups: don't allow them to engage at the horizontal level, but keep them occupied with individual cases, fighting fire after fire, distracted from the bigger picture.
The Commission goes as far as to claim that there is a “high degree of scrutiny and accountability” surrounding the balance of Expert Groups, but the only scrutiny comes from civil society and the European Parliament rather than the Commission itself. The level of scrutiny is actually relatively low, as it is impossible to track more than 700 groups containing non-government stakeholders, but the measures proposed by the Ombudsman would have greatly improved this. Clearly scrutiny is not something the Commission wants, and certainly not across the board.
Cleaning up conflicts of interest
A consistent problem within Expert Groups, highlighted again in the 2014 conditions to unfreeze the budget, is lobbyists and corporate executives sitting in groups in a personal capacity and claiming to be independent and impartial. The previous Commission Vice President for Transparency, Maros Sefcovic, told civil society groups in mid-2013 that he would look into and deal with the issue of conflicts of interest. No action has been taken to date.
In the Ombudsman's recommendations, she called for CVs of all independent experts to be published, along with declarations of interest (DOIs). The Commission has at least agreed to provide DOIs for experts, but omitted any mention of CVs (despite some Expert Groups already doing this as standard). However, while it is currently “preparing new provisions on managing conflicts of interest,” their application is again left to the discretion of each DG, which will “identify when an expert appointed in a personal capacity must complete a declaration of interest form.” Surely this should apply to all experts, particularly as some DGs are far less serious about identifying and tackling conflicts of interest than others? Equally, rather than a new form being submitted each year, experts should inform the Commission if and when there is a change in the information, leaving it once more to the discretion of individuals.
Opening up a closed shop: public calls for application
Instead of improving balance directly through the Ombudsman's suggested measures, the Commission thinks improving its Expert Group application process can have an equally good effect. Except that the two proposals for improvement that it makes are already in use across all DGs: it suggests that calls for application should clearly outline the expertise required as criteria for joining the group (tick); and that those criteria should then be used to pick members accordingly (we can only assume that's why they were in the call for applications?). So in short, no improvement on what happens already. The Commission rejected the Ombudsman proposal for a standard six-week period for calls to be open, opting for four, but the one hard-fought concession is that groups will now have public calls for application as standard, although mainly because DGs were doing this anyway. However (here come the caveats), “the College may depart from these provisions, where it is deemed justified by overriding priorities or conditions of urgency”. More of a gentleman's agreement than binding rules.
Disappointingly, there is no mention of better outreach when calls for new groups are announced, how to ensure civil society actors are more aware of these calls, or other measures which go beyond business as usual and can lead to more balanced groups (as this was the intention of the Commission's 'alternative' way to ensure balance).
One measure the Commission proposes to improve civil society participation is a broad open door policy for all groups, i.e. any stakeholder can apply at any time to join an expert group. However, many DGs have had this system in place since 2013, and it has not led to a rebalancing of groups. In part due to more fundamental problems of participation (see CEO's submission to the Ombudsman public consultation) and also because if no-one knows that either the group or the open door policy exist, there is little value in it. Tough and proactive action is still needed by the Commission to tackle the closed-shop nature of many Expert Groups.
Shine a light on Expert Groups – but not too strong, mind you
The Commission claims that Expert Groups are “subject to a high degree of public transparency via the Register”, which may be true compared to the days when there was no register, but the Ombudsman found systematic failings which meant the public was not able to see which interests were in groups, its overall balance, or what the group had been discussing. The Commission has agreed to review 'inconsistent labelling', i.e. business lobbies being called NGOs, or trade unions as corporations, but refuses to systematically use the same labels found in the Transparency Register for Expert Group members, as it claims they are not lobbyists. However, it has agreed to do so in cases “where appropriate” and has agreed to “assess whether technical adjustments [to the Register website to conveniently show the balance of interests] are possible and warranted,” which is a long way off a promise for action and sounds like similar commitments made during the feet-dragging of the past decade.
One positive move, first suggested in mid-2013 by Transparency International, is the link between the Transparency Register and the Expert Groups Register, so the public can see the lobby register profile of expert group members. This will apply to organisations and self-employed individuals, but bizarrely will not apply to self-employed individuals or organisations who are 'representing an interest' in expert groups. This is a strange category that was created to accommodate individuals who are not there as an independent expert (because they have a clear vested interest), but nor are they in the group representing an organisation (even if they work for a big bank or oil company). Instead they represent an 'interest', such as the banking or insurance sector. The Commission has said that information in the register on these representatives of interests will improve, but it won't be introduced until the first quarter of 2016. One can only hope that the category will not prove to be a loophole for lobbyists to withhold information about themselves and who they represent.
Regarding documents and minuting of meetings, the Commission has refused to improve its processes as recommended by the Ombudsman, claiming that they are already good enough. It claims that more detailed minutes would disturb the atmosphere of mutual trust between different actors, and inhibit them from speaking freely. However, we believe that as most members are there representing an organisation and putting forward organisational positions, whether technical or otherwise, they should have nothing to hide. Secondly, some Expert Groups, such as the Automatic Exchange of Financial Information (problematic in many other ways though it is), are already going further, publishing detailed minutes with names of the stakeholders attributed. But as there are to be no horizontal rules, best practice will not be across the board.
Will the Commission have the last word on Expert Groups?
In his response to the Ombudsman, Frans Timmermans has clearly outlined that his preferred way of doing government is with a slight improvement to transparency, but to steer clear of measures which would impact the privileged access enjoyed by business.
However, now his response is in, it will be down to the European Parliament and the European people to ensure Timmermans doesn't have the last word. When the Parliament froze the 2015 Expert Group budget, one of its conditions was that the Ombudsman's findings should be implemented in full. Yet the budget freeze was 'mysteriously' removed during negotiations between the Commission, Council and Parliament. The Commission removed the freeze from its proposed draft budget, telling the rapporteurs for the other institutions that it had in fact met the Parliament's demands; in fact this was not the case at all. The Parliament is still serious about the issue, as an upcoming report from the Budget and the Budget Control Committee into Expert Group composition shows, but is the Commission taking the Parliament's concerns seriously?
The Ombudsman must now publish her final opinion, and her initial response to the Commission has asked serious questions about why the recommendation for horizontal rules has been rejected. Root and branch structural reforms are needed yet the Commission is clearly not going to give in without a fight. It's down to the Ombudsman to stick to her original recommendations but with added pressure from civil society groups and the Parliament (particular the newly-formed intergroup on integrity and transparency) we can ensure the last word goes not to the Commission but to those representing the public interest.