Fight to fix expert groups in full swing
Industry domination of Expert Groups, which are formed to advise on policy and legislation, has been a long-standing problem which the European Ombudsman has been grappling head on.
Despite continued pressure from the European Parliament and civil society – even seeing the Expert Group budgets frozen – the European Commission has failed to tackle the problem. Last May the Ombudsman launched her own inquiries into the problem. First looking at the practice of all groups and Directorates General (DGs), but heavy lobbying of the Commission by the industrial farming lobby while DG Agriculture and Rural Affairs (DG AGRI) was reforming its own new Expert Groups led to a second inquiry to ensure the process was fair.
The two criticisms of DG AGRI, published on her website, concerned transparency and also balance of the groups:
Transparency: DG AGRI has failed to communicate with the public regarding the overall process of choosing members, who would get which seats, and what the balance of groups would be (it states that it wants to find balance between 'economic' and 'non-economic' actors)
Balance: There is no definition of balance so it is difficult to judge what the Commission means by balance between economic and non-economic actors. But her analysis shows that at best non-economic actors occupy 34% of seats, and at worst 4% of seats from as many as 72 available, which leads her to questions whether the Commission should even claim it strives for balance, as it appears to not want it.
A fuller summary can be found in Annex I, below, but the Ombudsman recommended that in order to gain public confidence in the process, DG AGRI:
“Should, in the future, set out and publish an individual definition of balance for each of its CDGs [the name for DG AGRI's Expert Groups]”
But that if DG AGRI is serious about balance between economic and non-economic actors, it should:
“consider limiting the size of groups or take other structural measures that go beyond the scope of this inquiry”
This is important, as the Commission's usual response to imbalance between civil society and industry is that they have 'an open door policy' where anyone who applies can join the group, which hides the structural inequalities (financial and otherwise) between economic and non-economic interests. NGOs cannot compete with the agribusiness lobby. The Ombudsman actually took direct aim at the main industrial farming lobby, COPA-COGECA, calling for its seats to be halved due to over-representation via an accounting loophole (they were considered two organisations rather than one, allowing double representation). But would civil society groups be able to fill those seats? Therefore the recommendation to reduce the size of groups is far more likely to achieve balance.
CEO and others have also been calling for structural reforms to the group system, outlined in the 2013 ALTER report 'A Year of Broken Promises'. But the public is beginning to ask whether those who have most to lose from regulation should be involved at all, given their inherent interest in trying to stop it? The UN treaty on tobacco control has placed a firewall between the tobacco industry and public health officials at the international and national level due to their damaging influence (the Commission is failing to abide by it), and groups are calling for something similar around fossil fuels, particularly as this winter's UN climate talks are almost upon us.
Autumn of change?
These findings are an important step in the fight to clean up Expert Groups once and for all. Many of the findings can be applied across the Commission, rather than just to DG AGRI, as the Ombudsman outline in the initial findings of her more general inquiry. But so far the Secretariat General has resisted even considering updating the horizontal rules which cover all DGs. However, new ammunition is on the way:
September 21st will be a public workshop held by the Budget and Budget Control Committee, presenting research commissioned by two MEPs, Helga Truepel and Dennis de Jong, looking into the how Expert Groups meet the Ombudsman's initial recommendations for all groups.
Early October should see the final recommendations and closing of the Ombudsman's general inquiry, with a deadline set for the whole Commission to act (DG AGRI has been given until February 2016).
Time to act
The Juncker Commission continues to talk about transparency and balance, but the facts underline the continued industry bias. Expert Groups, often responsible for drafting policy and legislation, are no different. Pressure is mounting, and Juncker and his deputy Timmermans need to come up with a comprehensive and timely plan to tackle the problem once and for all across all DGs..
Annex I – summary of Ombudsman's conclusions
DG AGRI calls for balance, but gives no definition, which is “not very helpful” according to the Ombudsman. Applying the dictionary definition of balance means that “each interest would be entitled to an equal representation”, i.e. economic and non-economic;
The Ombudsman asks the Commission to consider whether it should even claim it strives for balance, as this is clearly not what it wants (going by the figures);
The Commission should set out clearly what it means by 'balanced representation'; this should be done via an amendment to the 2013 Decision;
Ombudsman accepts that balance will be different for each group depending on its purpose, yet the Commission still has to balance among all interests in the group, i.e. one interest cannot have more seats than another. This should be done on a case by case basis;
There's a problem of having to select from the limited pool of those who apply;
The Commission should make a general definition of balance for future groups; and an individual one for each group;
Economic and non-economic
No definition of what each category is and who belongs to which one, despite it being a legal requirement to appoint based on those categories;
The Ombudsman recommends classifying all organisations as one category or the other according to the transparency register;
In its internal guidelines (not public), DG AGRI lays out good criteria based on the transparency register, but it didn't follow its own guidelines and applied its own judgement of profit-making and non-profit making;
Those reclassified should be reviewed;
Design of Civil Dialogue Groups
DG AGRI should have to fully justify the size and any member-increase of groups, as structural reasons will mean this increase will benefit economic actors over non-economic ones;
DG AGRI should publicly state which interests gets which seats when groups are being formed/expanded;
DG AGRI gave itself huge discretion in increasing seats for some members, which raises suspicions if there's not a transparent process in place;
DG AGRI needs to be far more transparent in communicating with the public regarding how groups were established and the outcome of who gets which seats, which was not done;
DG AGRI should publish selection criteria, the division of seats and the balance in each group;
DG AGRI need to publish how and why it used discretion in future;
DG AGRI hasn't written the names of organisations properly (spelling inconsistencies or using acronyms), making it difficult for the public to know who is in the group and the resulting balance; it is supposed to match the Transparency Register entry, but doesn't;
All names should be written properly in the 2014 Decision, with links to the Transparency Register;
Outcome of selection process
The ratio of non-economic actors to economic actors was 21:79
The Commission re-classified organisations into the non-economic category which made groups appear more balanced. Without doing so, the ration would be 18:82
The Ombudsman questions the re-classifications, and states that if wrong, DG AGRI should reconsider seat allocation between different interests
The new groups are better than the old ones in terms of representation: 40 new organisations are taking part; bigger traditional organisations have lost some seats; non-economic interests have improved, but only marginally;
Non-economic interests got seats they requested (95% success), but they had no idea how many seats to ask for as had no idea of how many there were nor how they were distributed;
Non-economic interest representation in some groups is only 4% (milk), 8% (wine) or 11% (arable crops and horticulture, olives, spirits);
The strongest non-economic share in a group is 34% (environment and climate change);
Those groups with the heaviest market-oriented focus have fewest non-economic actors, and vice-versa;
The Ombudsman recommends that future groups should outline the number of seats and the distribution between interests;
The Ombudsman specifically singles out COPA-COGECA, who is treated as two organisations to give it more seats: 26% of the 773; although it used to hold 47% in the old groups; the Ombudsman says DG AGRI needs to fix this by labelling it consistently across the Commission, i.e. it is one organisation;
Labelling COPA and COGECA as one organisation should halve their seats, which should then be re-allocated within the groups;
The Ombudsman criticises the Commission for not warning CDG members that they may have their seats reduced as a result of her findings, which they should have done;
The Ombudsman finished by telling DG AGRI that to achieve balance, it needs to consider reducing the size of groups or taking other structural measures;
The Commission has until February 2016 to say how it will implement all changes
To see the ten recommendations, visit the Ombudsman's site: http://www.ombudsman.europa.eu/en/cases/decision.faces/en/60873/html.boo...