President European Commission

 

Dear President,

I have received a complaint against the European Commission from ClientEarth and BirdLife Europe and Central Asia.

The complainants are concerned about how the Commission prepared a proposal to amend legislation related to the Common Agricultural Policy.[1] The proposal came in response to massive protests by farmers in several EU Member States against, among others, certain EU rules that farmers considered as imposing an excessive burden on them. With the legislative proposal in question the Commission aimed at providing farmers with greater flexibility in complying with certain EU rules for the protection of the environment.

The Commission presented its proposal, without an impact assessment, on 15 March 2024. The European Parliament and the Council adopted the legislative act on 24 April 2024 and 13 May 2024, respectively.[2]

The complainants have raised concerns about how the Commission prepared the legislative proposal. They consider that the Commission’s process was not in line with the Better Regulation Guidelines and Toolbox, as well as with case law[3]. They are particularly concerned that the Commission might have relaxed certain environmental requirements without having examined, in a comprehensive manner, the available evidence to make sure that the new rules would not undermine the environmental and climate goals of the EU, as well as the sustainability of EU agriculture in the long run. They are also concerned that the Commission did not appropriately consult the public on its proposal.

After careful consideration of the complaint, I have decided to open an inquiry into the Commission’s application of its Better Regulation Guidelines and Toolbox, as well as legal requirements, when preparing legislative proposals that it deems urgent.

As a first step, I have concluded that it would be useful to receive a written reply from the Commission to the questions listed in the Annex to this letter.

I would kindly request the Commission to send its reply to my Office by 16 December 2024.

At the same time, I have decided it would be useful for my inquiry team to meet with representatives of the Commission to discuss the Commission’s reply shortly after this reply is provided, in early 2025. I would be grateful if your staff could contact Mr Michał Krajewski, who is responsible for this inquiry to arrange for this meeting to take place.

I also consider it useful to inspect the documents mentioned in the Annex.

Please note that I am likely to send your reply and related enclosures to the complainant for comments. I also intend to publish your reply.^[4]

If, in the course of this inquiry, the Commission becomes involved in court proceedings concerning the same subject matter as this complaint, I would ask you to let me know.

Yours sincerely,

 

Emily O'Reilly
European Ombudsman

Strasbourg, 16/09/2024

Annex: List of questions for written reply

1) Does the Commission have in place internal procedures for deciding on whether to derogate from the impact assessment requirements of the Better Regulation Guidelines and Toolbox in case of ‘urgent’ legislative proposals? At what stage in the preparation of a legislative proposal is it decided that a derogation is needed? How are such decisions taken and by whom?[5]

2) In case of legislative proposals that the Commission considers to be urgent, how does the Commission ensure that it observes the principle of evidence-based decision-making, as laid down in its Better Regulation Guidelines and Toolbox, as well as in case law?

In this case, the Ombudsman understands that the Commission relied on a previous impact assessment carried out in 2018. What actions, if any, did the Commission take to ensure that the findings made in the impact assessment of 2018 remained relevant and up-to-date at the time of the legislative proposal in question? Please share any documentation pertaining to the Commission’s internal assessment in that regard.

3) Could the Commission please confirm whether it completed the ‘analytical document’, which replaces the impact assessment in the case at hand? If so, please share a copy of the ‘analytical document’. If not, please explain why it has not yet been completed.

4) How does the Commission give effect to Article 6(4) of the European Climate Law[6]? Does the Commission monitor for how many of the legislative proposals it adopts a climate consistency assessment is carried out? If so, please provide us with these statistics.

Are there circumstances in which the Commission considers that it can derogate from the duty to ensure the consistency of legislative proposals with the climate-neutrality objectives set out in the European Climate Law and, if so, on what grounds?

Does the Commission have in place an internal procedure to ensure that such consistency is systematically assessed?

In cases in which the Commission does not carry out an impact assessment, how is the consistency assessment made publicly available?

In the case at hand, did the Commission carry out such a consistency assessment? If so, please share it with us.

5) In case of legislative proposals that it considers to be urgent, how does the Commission ensure that it observes the principle of public consultation or the requirements of a targeted consultation, as laid down in its Better Regulation Guidelines and Toolbox, and more generally the principle of openness enshrined in the EU Treaties?

In this case, the Commission sought the views of certain farming organisations. Could the Commission please explain why it decided not to consult, within the same timeframe, other stakeholders, such as environmental organisations? Please share any documentation pertaining to the Commission’s internal assessment in that regard.

 

[1] COM(2024) 139 final, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52024PC0139.

[2] Regulation 2024/1468 of the European Parliament and of the Council of 14 May 2024 amending Regulations (EU) 2021/2115 and (EU) 2021/2116 as regards good agricultural and environmental condition standards, schemes for climate, environment and animal welfare, amendment of the CAP Strategic Plans, review of the CAP Strategic Plans and exemptions from controls and penalties, OJ L 2024/1468, 24.5.2024, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32024R1468.

[3] Judgment of 3 December 2019, C-482/17, Czech Republic v Parliament and Council, ECLI:EU:C:2019:1035, paragraphs 76-94 regarding whether the Commission took into account all relevant information while preparing a legislative proposal, https://curia.europa.eu/juris/document/document.jsf;jsessionid=DFDE68DF1B893E5168C274A2224623E3?text=&docid=221244&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=8291960.

[4] If you wish to submit documents or information that you consider to be confidential, and which should not be disclosed to the complainant or published on the Ombudsman’s website, please mark them ‘Confidential’. Encrypted emails can be sent to our dedicated mailbox.

[5] See, in this context, the EO’s Further Remark in Decision in case 904/2014/OV on the European Commission's public consultation prior to its legislative proposal for a Regulation concerning the European single market for electronic communications, https://www.ombudsman.europa.eu/en/decision/en/60965.

[6] Regulation 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No 401/2009 and (EU) 2018/1999 (‘European Climate Law’), OJ L 243/1, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32021R1119.