Background to the complaint

1. The complainant, a non-governmental organisation working on lobbying transparency, raised concerns about the Regulatory Scrutiny Board (RSB). The RSB is an independent body within the European Commission that reviews and issues opinions and recommendations on all Commission draft impact assessments that accompany legislative proposals and evaluations of existing legislation.

2. The RSB is part of the Commission’s ‘Better Regulation agenda’[1], and advises the Commission on related matters.^[2]

3. The RSB consists of (a maximum of) nine members: a Commission Director-General who chairs the RSB, four high-level Commission staff members and four experts recruited from outside the Commission.[3] RSB members work for the RSB full-time, with no other policy responsibilities, for a non-renewable term of three years, which can be extended by up to one year under exceptional circumstances. The Commission’s Secretariat-General provides administrative support for the activities of the RSB, including planning and preparation of RSB meetings, interactions with departments within the Commission and associated follow-up (‘RSB secretariat’).[4]

4. Where the RSB reviews draft impact assessments, a positive opinion[5] of the RSB is needed before the related legislative proposal can be tabled for adoption by the Commission. If the RSB gives a negative opinion, the Commission must amend the draft impact assessment, to address the concerns of the RSB, before resubmitting an amended draft. Should the RSB at that stage issue another negative opinion, only the Commission’s Vice-President for Inter-institutional Relations and Foresight may submit the legislative proposal to the College of Commissioners to decide on whether to proceed. The RSB therefore has a significant influence on the course and outcomes of the Commission’s decision making regarding legislative proposals, among other things.

5. The complainant was critical of the role of the RSB in relation to a specific file, where the RSB issued two negative opinions on draft impact assessments related to a legislative proposal. The complainant also shared wider concerns in relation to the independence of the RSB and exchanged with the Commission on these matters in 2022.

6. Dissatisfied with the Commission’s replies, the complainant turned to the Ombudsman.

The inquiry

7. The Ombudsman opened an inquiry into the following aspects of the complaint:

1) the interactions of the RSB and its members with interest representatives in general, and the mechanisms in place to ensure that there is no conflict of interest with or undue influence on the work of the RSB.

2) the composition of the RSB, and whether there is sufficient diversity of expertise.

8. In the course of the inquiry, the Ombudsman received the reply[6] of the Commission on the Ombudsman’s questions[7] and, subsequently, the comments of the complainant on the Commission's reply[8]. The Ombudsman inquiry team also inspected a series of documents in the Commission's file on this case, and met with representatives of the Commission to discuss issues that emerged during the inspection.[9] The complainant submitted comments on the inspection meeting report.[10]

Interaction of the RSB with interest representatives

Arguments presented to the Ombudsman

By the complainant

9. The complainant argued that when RSB members interact with interest representatives, they risk being influenced by them and may prioritise private over public interests when evaluating Commission impact assessments.

10. Through requests for public access to documents,[11] the complainant obtained documents that, in its view, give the impression that the RSB was open to the views of interest representatives on individual files. The complainant pointed to one case in which a member of the RSB met with an individual stakeholder.

11. The complainant said that the RSB mostly interacted with interest representatives representing corporations or industry. According to the complainant, RSB chairs have met consistently with stakeholders that support the Better Regulation agenda, and with hardly any organisations that are critical of it.

12. The complainant also questioned RSB members’ involvement in outreach activities with interest representatives more generally. The complainant is of the view that, even if RSB members do not formally discuss specific files, such meetings could offer opportunities to influence the RSB's work.

13. The complainant furthermore questioned why RSB members’ email addresses are listed on the Commission’s website, as this could be interpreted as encouraging direct interactions. The complainant believes that the RSB should be more prudent and state publicly that it cannot consider any unsolicited information provided to it through external contacts.

By the Commission

14. The Commission said that the RSB assesses the methodology and the evidence presented to it by the Commission in support of the Commission’s policy initiatives. The Commission added that the RSB does not participate in its policy-making process, and that RSB members do not advocate for any specific policy choices. Further, it said that the RSB does not have any veto power either within the Commission’s decision-making process or in the legislative procedure that follows the adoption of the legislative proposal.

15. The Commission said that the members of the RSB do not discuss individual files with stakeholders. However, the members can conduct outreach activities and the Commission believes that these activities are important for developing the process of, and approach to, the Better Regulation agenda and the related guidelines[12]. The Commission also sees value in RSB members themselves explaining their role to stakeholders. Furthermore, the RSB does not take into account position papers submitted by stakeholders on individual files and/or related policy areas.

16. The Commission explained that, in the case pointed to by the complainant, an interest representative addressed the RSB with a request to discuss an individual file. The RSB chair replied that they were not in a position to discuss individual files, but that they could give a presentation on the role of the RSB in the EU regulatory process in general terms, and did so.

17. The Commission said that it had not identified any risks of conflicts of interest in the RSB’s outreach activities, including perceived risks. However, it does see a risk that the RSB would become too detached from stakeholders’ views regarding better regulation, should RSB members no longer be involved in outreach activities.

18. At the end of 2021, the Commission tasked the RSB secretariat with handling RSB members’ correspondence to relieve them from the burden of replying to interest representatives. The secretariat has since sent standardised replies on behalf of the RSB members. However, it may still occur that there is direct contact between RSB members and interest representatives, for example, where a reply is sent out of courtesy.[13]

The Ombudsman's assessment

19. The RSB plays a significant role within the Commission by ensuring the quality control of draft impact assessments and evaluations of existing legislation. Without a positive opinion of the RSB on the impact assessment, it is difficult for the Commission to proceed with the adoption of a legislative proposal. In exercising this role, it is therefore of utmost importance that the RSB is completely independent.

20. This is reflected in the Commission’s Decision on the RSB, which requires RSB members to act independently and not to seek or take instructions.[14] The Commission has also put in place safeguards to ensure the independence of RSB members, namely by requiring them to fill in a declaration on conflicts of interest ahead of their appointment (in the case of RSB members that come from outside the Commission), to raise any conflicts of interest that may arise in the exercise of their duties with the RSB chair, and to only meet with interest representatives that are registered on the EU Transparency Register.

21. The Ombudsman assessed how the Commission verifies the personal interests declared by the RSB members, especially, where they could lead to a conflict of interest with their tasks. Of the six declarations of interest reviewed in the inquiry,[15] one declaration did not include an assessment by the Commission of the interests declared by the individual in question, which the Commission said was due to a clerical error. In any event, the Commission stated that, manifestly, the interests declared by the individual did not give rise to a conflict of interest.

22. The Ombudsman believes that the Commission should record in a clear way in the declaration form how it assessed any declared interests. The Commission indicated that it has made improvements in how it assesses such declarations of interest in the meantime, in part as a follow up to suggestions from the Ombudsman.[16] The Ombudsman therefore does not see a need to address another suggestion for improvement concerning this matter, but will monitor the issue.

23. While the Ombudsman has not assessed the RSB’s handling of individual files in the context of this inquiry, the inspection of documents did include numerous interactions with interest representatives from before 2022 that were related to an individual file that the RSB was handling at the time. In inspecting these documents, the Ombudsman’s inquiry team did not identify objective and relevant evidence of undue influence on the RSB members.

24. Since the end of 2021, the RSB secretariat has been sending standard replies to unsolicited correspondence from interest representatives. The Commission said that this change was to alleviate the RSB members from replying to correspondence, and not because they should be shielded from potential influence of interest representatives. There has only been one exception to this, namely in 2023, where the RSB chair replied personally to an invitation. The Ombudsman inquiry team assessed that reply, and confirmed that the RSB chair had replied in a manner similar to that used by the RSB secretariat in dealing with other correspondence (see footnote 13).

25. In the Ombudsman’s view, ensuring the independent function of the RSB requires taking very seriously any concerns about undue influence by stakeholders. The Commission should seek to dispel proactively any doubts that the public might entertain as to its independence and impartiality. It is crucial that the RSB is seen by the public as being fully independent given its significant role, as described above.

26. The Commission’s Decision on the RSB explicitly permits RSB members to conduct ‘outreach activities’, including “consultations and exchanges of views on horizontal, sectoral or methodological issues in the context of better regulation, with other institutions of the Union and of the Member States, think-tanks and international organisations, relevant institutions in third countries and other stakeholders involved in regulatory impact analysis and evaluation”. The same rules stress that “[t]he Board members shall not discuss individual files with directly concerned stakeholders”.[17] The Ombudsman notes that the notion of “other stakeholders involved in regulatory impact analysis and evaluation” is very broad and may in practice encompass business organisations affected by EU regulation.

27. Apart from the perception that RSB members may be influenced during such outreach activities in relation to their work, even if individual files are not discussed, this interaction carries with it also the potential that RSB members may be influenced indirectly. Interest representatives try to build and cultivate relationships with civil servants and public representatives whose actions may impact future legislation in which they have an interest. Thus, even if individual files are not discussed, interest representatives may seek to influence the RSB, so as to advance the interests they represent. This risk should not be underestimated.

28. The Commission argues that the outreach activities of RSB members are useful “to explain its role and operations to external stakeholders” and to “ensure transparency of the Board’s work”. In its meeting with the Ombudsman inquiry team, the Commission representatives added that “[o]utreach activities are seen as an important part of the RSB’s work in terms of advocacy for Better Regulation and help to develop Better Regulation methodologies”.

29. It is not readily clear to the Ombudsman how outreach activities, in the form of meetings with individual interest representatives, could help develop Better Regulation methodologies. Also, while the Ombudsman accepts that exchanges with a variety of stakeholders in yearly conferences on Better Regulation and, possibly, widely attended networking events, may be an opportunity for the RSB to explain its role and operations to external stakeholders, the Ombudsman does not find it convincing that RSB members must meet with individual interest representatives for these purposes. On the contrary, the Ombudsman very much sees the risks involved in such direct contacts when it comes to the perceived independence of the RSB. She considers that, if outreach activities of RSB members, in particular meetings with interest representatives, give rise to doubts as regards the RSB’s independence and impartiality, RSB members should refrain from such activities, even if they consider that these activities entail no actual risk of them being unduly influenced.  

30. In light of the above, the Ombudsman calls on the Commission to ensure that RSB members avoid holding meetings with individual interest representatives. When choosing their outreach activities, the RSB members should consider not only the actual risk of undue influence of those activities but also the public perception of their independence. The Ombudsman will make a corresponding suggestion below.

Composition of the RSB

Arguments presented to the Ombudsman

By the complainant

31. The complainant argued that there is not sufficient diversity among the members of the RSB. In its communication on the role and functioning of the RSB[18], the Commission stated that RSB members’ expertise should cover macroeconomics, microeconomics, social policy and environment policy. The complainant considered that, based on the RSB members’ CVs, the required social and environmental expertise is lacking, both when considering each RSB member’s CV and the RSB as a whole. The complainant is concerned that, due to the absence of social and environmental expertise, economic policy considerations are prioritised over other issues in how the RSB carries out its tasks.

32. The complainant also pointed out that RSB members’ terms are limited to three years (with a one-year extension possible in exceptional circumstances), but that one of the members had been on the RSB for more than six years.

By the Commission

33. The Commission said that RSB members are senior officials who have a broad range of knowledge of EU policies. They are appointed specifically for their knowledge of the Better Regulation agenda, as well as for their analytical skills and abilities.

34. The Commission said that RSB members are not required to have specialist knowledge of sectoral policy areas, which is the role of the Commission departments that prepare impact assessments and the related draft legislative proposals. The Commission added that the RSB’s role is solely to assess whether draft impact assessments meet the requirements laid down in the Better Regulation guidelines^[19]. Also, the RSB does not make a political assessment of an initiative covered by a draft impact assessment.

35. The Commission said that RSB members’ terms have never been extended beyond four years. However, in one case, a member had served a term of three years and eight months as an advisor and, subsequently, a term of two years and eight months as a ‘principal advisor’ based on a different contract. The second appointment was possible following a revision of the applicable rules^[20], which changed the status of RSB members. The Commission added that this RSB member did not serve on the RSB based on the same type of contract and in the same position. The Commission emphasised that this case was exceptional and that the practice of extending RSB members’ term through different contracts would not happen again.

The Ombudsman's assessment

36. According to the Commission’s communication on the RSB from 2015,^[21] RSB members’ “expertise will cover macroeconomics, microeconomics, social policy and environment policy (so as to cover the three pillars of sustainable development).” The Ombudsman finds it legitimate that the complainant asked whether the RSB’s current membership covers these policy areas effectively.

37. The Commission explained that the RSB is composed of senior officials with broad experience, which is necessary given the wide scope of the RSB’s tasks, namely to conduct quality checks of impact assessments and other evaluations across all areas. During the meeting with Ombudsman inquiry team, the Commission representatives clarified that “RSB members are not expected to be experts in all areas. Instead, it is sufficient that the necessary competences are reflected in the RSB as a whole, and not that each member has all of those competences individually.” They added that “the background of members is very varied and rich”.

38. The Ombudsman accepts that the RSB is not required to have “specialist subject knowledge of sectoral policy areas”, which is indeed the role of the Commission services preparing the impact assessment. That said, she considers it important that there is a diversity of backgrounds among RSB members, covering the fields mentioned in the Commission’s Communication on the RSB, in order to bring different perspectives and sets of skills and abilities to the RSB’s scrutiny.

39. The Ombudsman finds the Commission’s explanations regarding the RSB’s composition not entirely clear. In particular, the Commission did not explain whether it ensures the diversity of the required expertise among RSB members by considering the university degrees of candidates, their subsequent professional experience, or any other factors. Neither did the Commission explain whether it ensures the diversity of the required expertise by recruiting the RSB members from candidates with experience in public authorities, industry and civil society.

40.  As such, the Ombudsman considers that the Commission should ensure that, in the future, the composition of the RSB clearly corresponds to the diversity of the expertise required in its Communication on the RSB. The Commission should also clearly describe the criteria it applies for selecting RSB members to this end. The Ombudsman will make a corresponding suggestion below.

41. Finally, the Ombudsman is not convinced by the Commission’s explanation of how an RSB member could serve for more than six years on the RSB. The Commission’s rules clearly state that RSB members can only serve a three year, non-renewable term (with a one year extension in exceptional circumstances), which the Commission said was because the work of the RSB is intense and that it seeks to renew the expertise of RSB membership. The Ombudsman found that the extension of the RSB member’s tenure beyond the limit that the Commission had set itself, risked undermining the Commission’s aim of the diversity and renewal of expertise within the RSB membership. However, as the RSB member in question has retired in the meantime and as the Commission said that such a reappointment would not happen again, the Ombudsman will not pursue this matter.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

No further inquiries are justified.

The complainant and the Commission will be informed of this decision.

Suggestions for improvement

The Commission should ensure that:

1) when choosing their outreach activities, RSB members consider not only the actual risk of undue influence but also the public perception of their independence. In this context, RSB members should avoid holding meetings with individual interest representatives;

2) the composition of the RSB clearly corresponds to the diversity of the expertise required in its Communication on the RSB, that is, the three pillars of sustainable development, namely macro- and microeconomics, social policy and environment policy. The Commission should clearly describe the criteria it applies for selecting RSB members to this end.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 13/09/2024

 

[1] More information on the Better Regulation agenda: https://commission.europa.eu/law/law-making-process/planning-and-proposing-law/better-regulation_en.

[2] See: https://commission.europa.eu/law/law-making-process/regulatory-scrutiny-board_en.

[3] See: https://commission.europa.eu/document/download/639f77db-f0b4-41f3-99fa-d893eb2b9053_en?filename=RSB%20Decision%2011%2012%202022.pdf.

[4] See: https://commission.europa.eu/document/download/a56c4562-6ce2-477a-9caf-c2a0c7141e4a_en?filename=communication-on-the-regulatory-scrutiny-board-mission-tasks-and-staff_may2015_en.pdf

[5] Possibly with reservations.

[6] [LINK TO THE COMMISSION REPLY]

[7] [LINK TO THE OPENING LETTER]

[8] [LINK TO THE COMPLAINANT’S COMMENTS]

[9] [LINK TO THE INSPECTION MEETING REPORT]

[10] [LINK TO THE INSPECTION MEETING REPORT]

[11] Under Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145/43, https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32001R1049

[12] In accordance with Article 2(4) of the Commission’s Decision on the RSB of 2020, outreach “activities may include consultations and exchanges of views on horizontal, sectoral or methodological issues in the context of better regulation, with other institutions of the Union and of the Member States, think-tanks and international organisations, relevant institutions in third countries and other stakeholders involved in regulatory impact analysis and evaluation. The [RSB] members shall not discuss individual files with directly concerned stakeholders.” (emphasis added). See: https://commission.europa.eu/document/download/29d9b281-3d50-43a2-9a21-09777fdaae8d_en?filename=rsb_decision_23_01_2020_en.pdf. 

[13] This was for example the case for 2023 correspondence between the RSB chair and a think-tank in relation to an invitation to lunch. The invitation was declined, and the chair indicated that they could not discuss individual files.

[14] See Article 4 on ‘Independence’ of: https://commission.europa.eu/document/download/29d9b281-3d50-43a2-9a21-09777fdaae8d_en?filename=rsb_decision_23_01_2020_en.pdf.

[15] See questions 1 to 5 in the inspection meeting report that is available here: https://www.ombudsman.europa.eu/en/doc/inspection-report/en/185537.

[16] The Commission updated the template for declarations of conflict of interest to provide better guidelines for the candidates on identifying the relevant personal interests to be declared, as well as for those assessing the declarations in terms of how to assess conflicting interests, and where so identified, how to mitigate risks, following an inquiry by the Ombudsman (OI/3/2017/NF). See: https://www.ombudsman.europa.eu/en/decision/en/110608.

[17] Article 2(4) of the Commission’s Decision on the RSB.

[18] See page 3: https://commission.europa.eu/system/files/2016-05/communication-on-the-regulatory-scrutiny-board-mission-tasks-and-staff_may2015_en.pdf.

[19] See: https://commission.europa.eu/law/law-making-process/planning-and-proposing-law/better-regulation/better-regulation-guidelines-and-toolbox_en

[20] See : https://commission.europa.eu/system/files/2020-01/rsb_decision_23_01_2020_en.pdf.

[21] See: https://commission.europa.eu/law/law-making-process/regulatory-scrutiny-board_en.