The Commission's new rules on Expert Groups: the good, the bad, the ugly and the even uglier

In between promoting the UN Sustainable Development Goals and opening the Progressive Economy Forum, Vice-President of the European Commission, Frans Timmermans, also managed to sneak out new rules on Commission advisory groups this Monday, replacing the 2010 rules. Formally called Expert Groups, they have been incredibly important in shaping legislation but frequently dominated by big business interests. The fight by ALTER-EU and CEO for new rules has spanned three different Commissions, with extensive collaboration between civil society and European parliamentarians – even seeing MEPs twice vote to freeze the Commission's budget discharge over the issue. The European Ombudsman made it a priority when taking office, launching her first own initiative inquiry into the topic. Timmermans even had civil society groups into his office a month ago, and appeared to take concerns on board. Yet while there is certainly some good in there, the majority is either bad or plain ugly. The rules fall far short of what's needed to protect policy making from corporate interests, and the chance of real change could be lost for another five years.

The Good

There are two notable improvements:

1) The expert group register will now be linked to the voluntary transparency register. This means all lobbyists who want to sit in an expert group will have to be registered. It's a good step in pushing lobbyists into a register where many are still absent. It also means it will be easier to see who is who – particularly those 'representing an interest' e.g. they're there on behalf of the pharmaceutical industry. Previously it would only say that, and not which pharmaceutical multinational or lobby firm they were from. Now by cross-checking the transparency register you will be able to see.

2) There is now a formal conflict of interest policy, with members appointed in an independent capacity to represent the public interest obliged to complete a publicly-viewable declaration of interest and be assessed whether their other interests “may compromise or be reasonably perceived as compromising the individual's capacity to act independently and in the public interest”. In theory this should put an end to the practice of individuals – either lobbyists or those with corporate ties – being appointed in a personal capacity.

The Bad

While both measures should be welcomed for increasing transparency and accountability, they are not only limited in scope but also far from new. Timmermans' predecessor in charge of transparency, Maroš Šefčovič, agreed to both measures back in June 2013. Three years later and another Commissioner is taking the credit, claiming that, thanks to these new rules,

“the Commission will benefit from high quality expertise while avoiding possible conflicts of interest, and the public will be able to hold us to account.”1

In fact, there are severe limitations with both measures, not to mention the numerous areas that were not dealt with, such as how to avoid corporate domination (see 'the ugly' section below).

Transparency register to the rescue of expert groups?

The link to the register is welcome, but the integration could go far further to enhance transparency. the Commission now has full information on who each member of an expert group is, i.e. are they a trade union, a lobbying consultancy, a corporation, a trade association etc? But the new rearrangement of the Expert Group register doesn't display this information, and therefore prevents the public from seeing how many corporations there are in relation to the rest of the group or compared to NGOs, which civil society and parliamentarians had both been calling for. The new changes are technical and relate to public bodies,2 but as modifications to the register will not be finalised until 31 December 2016, change may still happen.

Conflicts of interest no longer a worry?

On conflict of interest, there are two major problems. The first is that while the process of filling out and publishing declarations of interest for independent individuals is welcome (and has been practised elsewhere in the Commission for many years, e.g. the Scientific Committees), what's then done when a conflict is found is unfortunately weak, despite taking three years to formulate the policy. The assessment will be made by the Commission official responsible for the Expert Group, who will judge the “degree to which an interest may be reasonably expected to influence the individual [member]'s advice”.3 Rather than having objectively verifiable criteria – or even a definition of 'independence' – the Commission official closest to the stakeholder and most in need of his/her advice is supposed to make a judgement call of whether the conflict is significant or not:

“An interest shall be considered to be insignificant or minimal where it is unlikely to compromise or to be reasonably perceived as compromising the expert's capacity to act independently and in the public interest when advising the Commission.”

While the reference to public perception is welcome, it needs to be assessed via objective criteria and against the mandate of the group in question. And what happens to the individual with a conflict of interest? Either they are are removed from the group/not appointed; their participation is “subject to specific restrictions” or they are still appointed to the group but as a stakeholder representing an interest, rather than as an independent. When this relabelling exercise happened to multiple 'independent' industry members in DG Taxation and Customs Union, it led to the group becoming heavily imbalanced in favour of industry as it retained all of its members but they went from being independent to representing industry.

The second problem is who the definition of a conflict of interest should be applied to. It should be far broader than individuals. Both in the meeting with Timmermans and the follow up correspondence, CEO, Birdlife, the European Environmental Bureau, Friends of the Earth Europe, Greenpeace and Transparency International made the case for the definition to also be applied to whether certain stakeholders can fulfil the public interest mandate of an expert group. For example, should tobacco companies be allowed to be in groups on tobacco control, fossil fuel companies on emissions reductions or the car industry on reducing air pollution? Particularly in light of the dieselgate scandal and the proven lobbying by the car industry against tougher air pollution standards, the question of whether companies should be put in charge of their own regulation feels as pertinent as ever. Yet despite making positive noises in the meeting with Timmermans, it was left out of the final rules.

Public call for applications

Timmermans has also trumpeted the mandatory public call for applications, saying they will bring balance. However, public calls have been standard practice since 2013, and the current rules maintain the caveat that the mandatory rule doesn't need to be applied if there are “overriding priorities or cases of urgency”. In such as case, as in the 2010 rules, the choice of experts “shall be made on the basis of objectively verifiable criteria”. Previous experience has shown such criteria to be difficult to verify and definitely not objective, as cases where individuals are hand-picked is by its very nature a political process and based on political preference. And the claim that public calls will ensure balance is not borne out by history, with groups continuing to be imbalanced due to more fundamental reasons (see below).

Full disclosure

Despite continuous pressure from the European Ombudsman, the fight for full disclosure of group discussions has not been granted. The new rules say the minutes will be “meaningful and complete”, but this leaves much down to interpretation. Instead a group “may, by a simple majority of its members, decide that deliberations shall be public.” A difficult situation given the imbalance of groups, and a rejection of the civil society and Parliament position in favour of default disclosure with a justification for otherwise.

The Ugly

The failure to address balance is a particularly ugly element of the new rules. As it stands, politically and economically important groups will continue to be dominated by industry interests, despite the press release claiming,

“The Decision provides a single set of rules and principles aimed at increasing transparency, avoiding conflicts of interest and ensuring a balanced representation of interests”

However, despite the word balance being continuously referenced in the rules themselves, throughout the press release and in all correspondence with the Commission (with civil society, the Parliament and the Ombudsman), there is nothing in the new rules to address corporate domination. As mentioned, even being able to see which interests are in a group is not easy, while the claim that having mandatory public calls for application will enhance balance has not worked in the past. The other proposed solution of having “rolling applications”, i.e. an open door policy, has also failed because it misses the structural reasons NGOs and other public interest groups do not or cannot participate. They cannot compete in terms of finance or numbers in Brussels, so either groups would need to be smaller to ensure balance or a difference needs to be drawn between providing expertise and exerting political influence.

Civil society groups proposed to balance all groups equally between economic and non-economic interests, and where not possible, to ensure that a balanced inner-core was responsible for the political tasks like report writing and voting. This would mean that even if a group was imbalanced with five civil society/non-economic participants and 20 industry, that only 5 industry and five civil society members would be responsible for report writing etc. Despite a verbal agreement to ensure an 'equality of arms' between economic and non-economic actors, the results speak for themselves: there will not even be a definition of what the expected balance would be within a group, and why, as repeatedly asked for by the European Ombudsman, who told Juncker that,

“The balanced representation of all relevant interests should be a mandatory requirement... A Commission decision on horizontal rules for expert groups should require the Commission to set out an individual definition of 'balance' for each individual expert group”4

The lack of balance means policy will continue to be shaped by the same corporate interests who are often lobbying against public interest regulations. But it also has implications for other expert group transparency measures: groups are supposed to vote on whether they disclose deliberations or not, but if the group is imbalanced then it is unlikely the vote will favour transparency. The same goes for the overall findings of an expert group, which are supposed to be decided by consensus but can also be decided by a simple majority.

Special allowances to help NGOs or SMEs attend more meetings – a key point from Parliament – were also limited to individual experts rather than representatives of organisations. This will further undermine balance.

Even uglier

The rules are now published, but unfortunately the process leading to their formulation was particularly frustrating, happening behind closed doors rather than engaging in a public consultation process to benefit from the insight of those who actually participate in groups. The repeated calls for a public consultation were rejected, while at no point was the Commission prepared to share the draft before publishing.

At the time of publishing the rules the Ombudsman and Parliament were in fact both engaged in their own processes to assess expert groups. The Ombudsman had not given her final decission following the Commission's response to her recommendations, and nor had GUE MEP Dennis De Jong finished his Budget Control Committee report into Expert Groups. And when the Parliament voted to freeze the budget in 2014, one of the conditions for lifting it was that the Commission waited for the Ombudsman's inquiry to finish and then create new horizontal rules. but rather than doing so, the Commission pre-empted both the Ombudsman and Parliament.

When requests were made to host a joint meeting with civil society, MEPs and the Ombudsman, the request were rejected in favour of bilateral meetings with Vice President Timmermans and his cabinet. The letter to civil society – received on the Friday evening before the rules were published on the Monday – shows that key points of substance that appeared to be taken up during the meeting were in fact ignored, but by the time the letter was received it was too late to react. Sources in Parliament tell a similar story of unhelpful timing, while those close to the Ombdusman's office say they was never a meeting, and no "fruitful discussion" with the Ombudsman, who never discussed Expert Groups with Timmermans' office, as claimed in the press release. From the perspective of an increasingly disillusioned European public, such an ugly form of politics is not going to build trust in the institution Timmermans claims to be reforming for the better.

The chance to change the rules now they have been published remains slim, but there may be one avenue still open: the European Ombudsman is still to publish her closing decision as to whether the Commission has followed the recommendations (and whether to make a Special Report to Parliament), while MEP Dennis De Jong may complete his own initiative report. If doing so musters sufficient political support then the option of a budget freeze could still be used as leverage to bring changes from the Commission. This may be the only card left to play, the final roll of the dice – at least for another five years.

*Correction: the original article said the Ombudsman was to still make her final recommendations, rather than her final closing decision and then consider a special report to Parliament*

• 1. European Commission – Press Release, 30 May 2016, 'More transparent and balanced interest representation: Commission adopts new expert group rule', quoting Vice President Frans Timmermans, http://europa.eu/rapid/press-release_IP-16-1923_en.htm
• 2. The previous distinction of members was divided from A-D, with Type A for an individual appointed in a personal capacity, B for an individual representing an interest, C for an organisation, D for a member state authority. The extra category added is E, for public entities.
• 3. Commission Decision of 30.5.2016 establishing horizontal rules on the creation and operation of Commission expert groups, http://ec.europa.eu/transparency/regexpert/PDF/C_2016_3301_F1_COMMISSION...
• 4. http://www.ombudsman.europa.eu/en/cases/correspondence.faces/en/58861/ht...