Background to the complaint

1. Knowledge and expertise are key to EU policymaking. When consulting the public on future initiatives or devising guidelines on policy implementation, the European Commission often seeks the input of external stakeholders, to ensure that its decisions are evidence-based.

2. Expert groups are one of the fora used for external stakeholder involvement. These groups are consultative bodies set up by the Commission, composed of representatives from the public and/or private sectors. They provide specialist advice on particular topics.[1]

3. The expert group at issue in this inquiry, the Industry Advisory Group (IAG), was set up in September 2022 by the Commission’s Directorate-General for Energy (DG ENER). The IAG was created in the context of the Commission’s REPowerEU Plan, and is part of the governance structure of one of the plan’s components, the EU Energy Platform.[2]

4. The Commission launched the REPowerEU Plan in May 2022 in response to the invasion of Ukraine by Russia, to reduce and ultimately end EU dependence on Russian fossil fuels. The EU Energy Platform was one of the tools designed to achieve this goal. It created an emergency mechanism to coordinate EU action on gas markets, among others by offering EU market players the possibility to aggregate their gas demand and make joint purchases, thus leveraging their collective buying power with suppliers.[3] The IAG is one of three entities providing advice to the Commission about the platform.[4] However, while the two other entities (an Ad-hoc Steering Board and Regional Groups) bring together representatives of the public sector, IAG membership is restricted to companies, many of which are linked to the fossil fuel industry. Observers are also limited to public entities other than Member State authorities^[5] and industry associations.

5. In February and May 2023, the complainants and the Commission exchanged about the all-corporate membership of the IAG. The complainants questioned the compliance of the group with the Commission’s general rules on expert groups, which state that the Commission should strive for a balanced composition of expert groups.[6] They asked for the group to be dissolved and for an overhaul of the applicable rules to prevent similar situations in the future. In its reply, the Commission explained its need for industry-only input and its view that a balanced composition was achieved by having representatives of companies that both sell and buy gas. Based on this, the Commission declined to make any changes to the composition of the IAG but did invite civil society and academics to a meeting about the platform that took place in June 2023. 

6. Dissatisfied with the outcome of their exchanges with the Commission, the complainants turned to the Ombudsman on 28 September 2023.

The inquiry

7. The Ombudsman opened an inquiry into how the Commission decided on the composition of the EU Energy Platform Industry Advisory Group, including how it ensured balanced representation in that group.

8. In the course of the inquiry, the Ombudsman inquiry team met with relevant representatives from the Commission to discuss a number of questions, which were provided in advance of the meeting.[7] The meeting report[8] was subsequently shared with the complainants, which submitted comments on it. The Ombudsman inquiry team also inspected the Commission’s file related to several IAG meetings.[9]

Arguments presented to the Ombudsman

By the complainants

9. The complainants took issue with the all-corporate membership of the IAG, which they considered to be at odds with the Commission’s rules on expert groups[10] and the Commission’s broader commitments to ensure balance and representativeness when meeting stakeholders.[11] Further, the complainants claimed that it provides fossil fuel industries with privileged and unmonitored access to EU policymakers.

10. In particular, the complainants stressed that the rules on expert groups require the Commission to strive for a balanced composition when setting up such groups. The notion of “balance”, they argued, cannot be interpreted so narrowly that the presence of companies with diverse commercial interests - but ultimately all dependent on gas for their activities - would suffice to fulfil this requirement. For balance to exist, non-commercial interests and expertise from outside the energy industry would also need to be represented. This need for balance and the inclusion of non-industry members is even more important considering the high social and environmental stakes at play with regard to energy policies.

11. The complainants further argued that, in order to justify the exclusion of civil society and academics from the group based on their alleged lack of relevant expertise, the Commission had framed the activities of the IAG more narrowly than what was set out in the group’s mandate. They emphasised that the group’s tasks were broad and encompassed the provision of policy advice, and claimed that the minutes of at least one meeting showed that such policy discussions were taking place in the IAG. Based on this, they claimed that the exclusion of non-industry experts from membership of the IAG was not justified.

12. Finally, the complainants argued that the Commission had failed to recognise the political implications of the technical advice provided by the IAG. They pointed out that the mechanism set up under the EU Energy Platform had now become a permanent component of the EU energy framework. Therefore, the technical input provided by companies in IAG meetings had shaped future EU policies in the sector.

By the Commission

13. The Commission argued that the IAG’s existence and composition was fully justified considering the specialised knowledge and expertise it was seeking. 

14. More precisely, in the meeting with the Ombudsman inquiry team, the Commission representatives stressed that the applicable rules on expert groups state that when setting up a group, Commission departments must seek to ensure a balanced representation of relevant know how and areas of interest, taking into account the group’s tasks and the type of expertise required. The notion of “balance” is therefore not a mathematical exercise, but is determined on a case-by-case basis.

15. The Commission representatives explained that, at the time of the meeting with the Ombudsman inquiry team, the IAG was one of only two Commission expert groups whose membership was confined to companies. This is out of a total of 650 active groups. This was because the core task of the IAG was to provide technical feedback on an IT tool that the Commission was developing for the exclusive use of industry. The Commission representatives explained that only industry players with experience on gas markets could have the expertise and knowledge (the “know how”) required to perform this task. Moreover, representation of corporate members with varied commercial interests across the value chain (“areas of interest”) was ensured.

16. Based on this, the Commission representatives considered that non-corporate stakeholders would not have the requisite expertise and experience to be members of this group. The participation of civil society organisations and academics as observers was considered inappropriate, as their presence would have led to more general discussions instead of the operational views sought in the IAG.  The Commission nonetheless engaged with the views of a broader set of stakeholders outside of the IAG, through established channels (Ad-hoc Steering Board, Regional Groups) as well as through additional meetings and the review of academic papers. 

17. Finally, the Commission representatives stated that no policy discussion took place during IAG meetings. Instead, exchanges were focused on the technicalities of the aggregation mechanism to be designed.

The Ombudsman’s assessment

18. In a world where science and sector-specific knowledge have become ever more central to modern policymaking, expert groups play a significant role in the EU policy system. Although the Commission has no obligation to follow the advice they provide, their input informs and supports the Commission’s decision-making processes.

19. The Commission’s rules on the creation and operation of expert groups[12] confirm the Commission’s commitment to strive for a balanced composition of expert groups. More precisely, when selecting group members, Commission departments must aim to ensure, as far as possible, a high level of expertise, a geographical balance, as well as balanced representation of relevant know how and areas of interest, taking into account the specific tasks of the expert group, the type of expertise required and the response received to calls for applications.[13]

20. As noted by the Ombudsman in a previous inquiry, these rules do not contain an explicit definition of “balance”.[14] However, they make clear that balance depends upon the group’s tasks and the type of advice required, which must be defined as precisely as possible when the group is set up.[15] The Ombudsman’s longstanding view has therefore been that the composition of an expert group is balanced if it accurately reflects the different types of expertise sought by the Commission, which, taken together, enable the group to fully carry out the mandate conferred on it.

21. In this case, the mandate of the IAG is “to assist the Commission in (...) deliver[ing] on the objectives identified in the REPower EU Communication and subsequent Plan”.[16] Its tasks are to provide feedback on mechanisms for demand aggregation as well as on the diversification of gas supply, to exchange information to support outreach activities towards international suppliers, and to provide other advice relevant to the delivery of the REPowerEU objectives under the EU Energy Platform.[17]

22. In the meeting with the Ombudsman inquiry team, the Commission representatives explained that the IAG meetings to date focused on gathering industry feedback on an IT tool to be used by companies (AggregateEU).

23. From an inspection of the documents provided, it appears that the information sought from the members of the IAG largely related to technical elements of gas trading and procurement necessary to the design of an IT tool for demand aggregation and joint purchasing. It is reasonable to assume that this type of very specific information would only be held by those experts within the gas industry itself.  

24. The Ombudsman accepts that the Commission has provided a reasonable explanation for the corporate-only composition of the group’s membership at the time of its creation, as it appears reasonable to assume that only companies, as the end users of AggregateEU, could have provided meaningful user feedback on the design and development of the tool.

25. That said, concerns remain in relation to two aspects of the IAG. The first is an inconsistency in the terms of the mandate of the expert group and its work in practice, while the second concern relates to the role played by observers in the IAG. The Ombudsman will address both elements below.  

26. First, as regards the mandate of the IAG, the Ombudsman notes that the group’s mandate is not limited to the provision of technical feedback on the IT tool AggregateEU, but also contains tasks that are more general in nature. There is thus only a partial overlap between the group’s mandate and its de facto activities as described by the Commission and confirmed by an inspection of documents. Therefore, under the current IAG mandate, it cannot be excluded that discussions around energy supply and international cooperation agreements could take place in future meetings of the IAG. The possibility of a shift towards such broader discussions is increased by the fact that AggregateEU has been functioning for more than a year now and that the need for user feedback on its design is likely to diminish. Moreover, as the new Regulation on Gas and Hydrogen[18] adopted in June 2024 makes the gas aggregation mechanism a permanent feature of the EU energy framework and envisages its extension to hydrogen, it is unclear what the role of the IAG will be in the implementation of EU energy policies in the future.

27. If there is such a shift towards discussions of a more general nature, the Commission’s argument that only companies possess the expertise required to fulfil the tasks of the group no longer holds.

28. In that regard, the Ombudsman notes that during the 10th and most recent meeting of the IAG[19] a guest speaker from the International Association of Oil and Gas Producers presented a study on “supply sources available to Europe”. Whilst this presentation fell within the group’s mandate, it could be understood as being related to energy policy in more general terms. The speaker made a number of general recommendations with structural implications for the EU energy future, most notably by promoting long-term Liquefied Natural Gas (LNG) contracts, the greater recognition of hydrogen derived from non-renewable sources, and the continuation of regasification infrastructure development. The suggestions made in the presentation have social, environmental, economic and geopolitical implications. It is not clear to the Ombudsman that the expertise required to participate in this discussion would be held by companies only.

29. As the mandate of the current IAG members ends in October 2024, the Ombudsman considers that the Commission should reassess the terms of the group’s mandate and its composition, in order to reflect any tasks the group may perform in the future. She will make a suggestion to this end below.  

30. As regards the role and status of observers, the Commission’s rules on expert groups state that observer status in an expert group may be granted to individuals, organisations or public authorities, either by direct invitation or as a result of a call for application.[20] The status of an observer is more flexible than that of group member, in the sense that those rules do not lay down specific preconditions - for instance in terms of know how - for their appointment.

31. Observers are no substitute for balanced representation in the membership of an expert group, given that there is little scope for their active participation in the group’s tasks.[21] Nor can their presence exempt expert groups from fulfilling their obligations in terms of transparency. However, observer status can usefully complement transparency efforts and help build public trust in the group’s activities by acting as one more bridge between experts and the outside world. Such an additional layer of public scrutiny is even more essential when only corporate interests are represented in a group’s membership.

32. In the case of the IAG, the Ombudsman acknowledges the Commission’s efforts in terms of transparency. The minutes published on the Register of Expert Groups and Other Similar Entities are meaningful, and the documents discussed in meetings appear to be made widely available online. This is particularly laudable in light of the issues discussed in the group (contracts, financial capacity and credit rating, company cooperation, etc.).  

33. However, as regards the group’s observers, the Ombudsman is not convinced by the explanations provided by the Commission to exclude civil society and academics. Considering that entities with no first-hand expertise in gas purchases were invited as observers, it is not clear why non-corporate stakeholders such as think tanks, researchers, consumer associations or more broadly civil society organisations could not attend the group’s deliberations.

34. The Ombudsman further notes that the Commission has found it possible to disclose to the public, on an ex post basis, a significant part of the information discussed during IAG meetings (most notably in PowerPoints published online). This information therefore does not appear to be of such a sensitive nature that the presence of non-corporate stakeholders would have made it impossible to exchange it.

35. The Ombudsman takes the view that opening the observer status to non-corporate stakeholders would have dispelled part of the doubts that led to this inquiry, and would have been a good practice in light of the restricted membership of the group. She will make a corresponding suggestion below.

Conclusion

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

The Ombudsman considers that no further inquiries are justified.

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

Suggestions for improvement

1. The Commission should reassess whether the mandate and the composition of the IAG, or of any similar future expert group set up under the Gas and Hydrogen Regulation, is appropriate in light of any actual tasks the group may perform in the future. If needed, these elements should be updated.

2. The Commission should ensure that, where expert groups contain only corporate members for duly justifiable reasons, other interested stakeholders are granted observer status whenever possible.

The Ombudsman asks the Commission to report back on the actions it has taken following her suggestions for improvement within three months.

Emily O'Reilly
European Ombudsman

Strasbourg, 18/09/2024

 

[1] The list of expert groups and applicable rules can be found on the Register of Commission Expert Groups and Other Similar Entities, available at: https://ec.europa.eu/transparency/expert-groups-register/screen/expert-groups?lang=en

[2] https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/european-green-deal/repowereu-affordable-secure-and-sustainable-energy-europe_en

[3] https://energy.ec.europa.eu/topics/energy-security/eu-energy-platform_en

[4] https://energy.ec.europa.eu/topics/energy-security/eu-energy-platform_en#governance

[5] Representatives of the Member States participate in the EU Energy Platform ad-hoc Steering Board. 

[6] Commission Decision C(2016) 3301 of 30.5.2016 establishing horizontal rules on the creation and operation of Commission expert groups, in particular Recital (3) and Article 10(5): https://ec.europa.eu/transparency/documents-register/api/files/C(2016)3301_0/de00000001029661?rendition=false.

[7] Meeting request and list of questions available at: https://www.ombudsman.europa.eu/en/opening-summary/en/177531 

[8] Meeting report available at : https://www.ombudsman.europa.eu/en/doc/inspection-report/en/190908

[9] Inspection request available at: https://www.ombudsman.europa.eu/en/doc/correspondence/en/190907

[10] Commission Decision C(2016) 3301.

[11] Communication on the Working Methods of the European Commission, available at: https://commission.europa.eu/system/files/2019-12/working-methods.pdf

[12] Commission Decision C(2016) 3301.

[13] Article 10(5) of Commission Decision C(2016) 3301.

[14] OI/6/2014/NF, in particular para 21-23 and the Annex to the closing decision: https://www.ombudsman.europa.eu/en/decision/en/86030#_ftn29

[15] Article 5(1) of Commission Decision C(2016) 3301. This provision is complemented by Article 10(2), which states that calls for applications must also specify the expertise and interests to be represented.

[16] IAG Terms of Reference, p. 2, available at: https://ec.europa.eu/transparency/expert-groups-register/core/api/front/expertGroupAddtitionalInfo/44614/download

[17] More specifically, the following tasks are listed in the Terms of Reference: “(a) to provide feedback and comments on options issued by the Commission for natural gas and LNG (and, in the future, hydrogen) demand aggregation and joint purchasing; (b) to provide the Commission with insights and advice on how to ensure that the Union’s goal of the reduction of dependency on gas supplies from Russia can be  achieved in line with the timeline provided by the REPowerEU Communication, with a particular focus on the diversification of gas supply; (c) to exchange market data and information to support outreach activities, to leverage the European buying power for the benefit of European consumers; (d) to provide other input and advice relevant for the delivery of the RePowerEU objectives, within the remit of the missions of the EU Energy Platform.”

[18] Regulation (EU) 2024/1789 on the internal markets for renewable gas, natural gas and hydrogen, available at: https://eur-lex.europa.eu/eli/reg/2024/1789/oj

[19] Meeting details and guest presentation slides available at: https://ec.europa.eu/transparency/expert-groups-register/screen/meetings/consult?lang=en&meetingId=51298&fromExpertGroups=3865

[20] Article 16(1) and (2) of Commission Decision C(2016) 3301.

[21] More precisely, under Article 16(4) of Decision C(2016) 3301, observers have no voting rights and cannot participate in the formulation of recommendations or advice. They may however be permitted to take part in discussions, depending on the Chair’s decision.