Background

1. The European Commission’s system of expert groups plays an important role in informing the decisions taken by the Commission. Currently, there are around 660 expert groups and 460 sub-groups, which cover a broad range of policy areas such as customs, economic monetary affairs, consumer affairs, foreign and security, public health, and the environment. Expert groups provide non-binding advice to the Commission in these areas, including in relation to the preparation of legislative proposals and policy initiatives. There are different types of expert groups, which can be composed of experts appointed by EU governments, and/or academics, representatives of civil society, and representatives from the relevant industrial or economic sectors.

2. Even though expert groups do not take decisions, their contributions may carry an important weight in Commission decisions on policy and legislative proposals, and how these decisions are implemented in practice. Expert groups that are composed of representatives of Member State governments are an important sounding board for the Commission, including before it adopts delegated acts[1], given that the Council of the EU, along with the European Parliament, can object to such acts after their adoption.[2]

3. Expert groups may also be composed of independent experts in a particular field (such as academic researchers), representatives of private interests or of civil society. Such expert groups serve as a forum for the Commission to gather external opinions and advice. Experts in such groups are selected based on public calls for applications.

4. In May 2016, the Commission revised its rules on the creation and operation of Commission expert groups[3], in the context of an own-initiative inquiry of the Ombudsman[4].

5. Concerns regarding how the transparency provisions in these rules are applied have been raised by civil society^[5] and academics^[6], as well as in the context of the Ombudsman’s public consultation on transparency and participation in EU environmental decision-making^[7]. An Ombudsman inquiry into the publication practices of one specific expert group found that certain documents related to the work of the expert group were not made public proactively, even though this should have been done.^[8]

The inquiry

6. The Ombudsman opened this own-initiative inquiry to follow up to her earlier inquiry and assess how the Commission applies its rules for expert groups. In particular, the inquiry analysed how the Commission ensures that the transparency measures set out in these rules are complied with in a meaningful way.

7. In the course of the inquiry, the Ombudsman received the reply of the Commission to a set of detailed questions[9].

Arguments presented by the Commission

Publication of expert group documents

8. The Commission said that its rules on expert groups (referred to by the Commission as ‘horizontal rules’)[10] set out that all relevant documents of active expert groups should be available via the register of expert groups[11]. This includes agendas, minutes of meetings and participants’ submissions. As such, the Commission argued that this register ensures the proactive transparency of expert groups. The Commission explained that the responsibility for uploading documents to the register is decentralised and is done by the relevant departments that manage the individual expert groups. Exceptions to publication should be foreseen only where it is deemed that disclosure of a document would undermine the protection of a public or private interest as defined in the EU legislation on public access to documents[12].

9. According to the Commission, many stakeholders search on dedicated Commission websites for documents related to the activities of expert groups when seeking access to information concerning the relevant policy area. Therefore, Commission staff members responsible for expert groups make available expert group documents either directly in the register of expert groups, or via a link from this register to dedicated Commission websites. For updates, stakeholders can subscribe for automatic notifications that are sent when new documents are uploaded.

10. Minutes on expert group meetings should be meaningful and complete, and in any case reflect the discussions on each point of the agenda and the opinions of the group. In principle, minutes should allow for a detailed understanding of the positions expressed by participants and of possible conclusions. To ensure consistency, the Commission provides a template to prepare meeting minutes. 

11. To ensure quicker, easier, and timely publication of relevant documents, such as agendas, the register of expert groups has been integrated with the Commission’s online tools for managing invitations to Commission meetings and reimbursement processes since 2024.[13]

12. Individuals can search the register of expert groups for documents based on the respective expert groups or under specific meetings. The Commission indicated that it is open to examining the possibility of developing additional search functionalities for documents made public on the register, taking into account the available budget, and based on a dedicated analysis, including of the usefulness of additional search facilities.

13. When expert groups are discontinued, their documents, including minutes of meetings, are kept on the register for another five years. Afterwards, the documentation is archived but may be retrieved on request.

Information on expert group members and observers

14. Both expert group members and observers are selected in view of their expertise, taking into account the tasks of their group. However, observers do not have voting rights, nor do they participate in the formulation of recommendations or advice of the expert group. Normally, all members and observers are invited to expert group meetings. However, sometimes, only certain types of members or observers are invited, in light of the specific topics to be discussed.

15. Normally, expert groups decide on their ‘outputs’[14] by consensus. However, in the event of a vote, experts who voted against or abstained have the right to have their position annexed to the opinion, recommendation or report in question.^[15] The Commission does not report back to expert groups on how their advice has been taken into consideration[16] as their role is advisory only.

16. The personal data of experts that are appointed in their personal capacity (so-called ‘Type A experts’) and experts appointed to represent a common interest shared by a group of stakeholders (so-called ‘Type B experts’) is made public on the Commission’s expert group register. This data is not anonymised in the related documents, unless the expert so requests and provides reasons to justify the request.^[17] The declarations of interests of experts appointed in their personal capacity are available while expert groups are active. The names of other types of experts, namely those representing specific organisations, EU Member States, or non-EU countries (Types C, D and E respectively), may be made public on the register, if these experts provide their consent.^[18]

17. Since December 2017,[19] there have been 91 in-person meetings that were open to the public, 41 meetings that were streamed live online, and 46 meetings that were both open to public and streamed.

Support and guidance for Commission staff

18. Commission staff members responsible for expert groups are supported by one or more local coordinator(s) for expert groups in each Commission department, in particular in relation to setting up and operating expert groups. Expert group coordinators from all Commission departments form a dedicated network that promotes and monitors compliance with the rules on expert groups. The Commission’s Secretariat-General provides support by offering advice and expertise in case of more complex or cross-cutting issues.

19. The Commission adopted internal guidelines on the implementation of the rules on expert groups in September 2022, and modified these in October 2023 (the ‘internal guidelines’).

20. To encourage more openness by holding expert group meetings in public, the Commission included this possibility in expert group templates[20] and in training courses for relevant Commission staff members.

The Ombudsman's assessment

21.  Ensuring a high level of transparency in relation to the work of expert groups and similar bodies is vital to the democratic functioning of the EU, given the important work these groups carry out in the context of the Commission’s activities.

22. The Ombudsman acknowledges the efforts the Commission has made in providing training to relevant staff members, and ensuring that there is coordination between its departments to promote and monitor compliance with the rules on expert groups. The Ombudsman welcomes in particular the initiative of the Commission to put in place a dedicated internal network of expert group coordinators, which meets periodically, to monitor and promote the correct implementation of the rules by Commission departments. The Ombudsman also takes note of the Commission‘s internal guidelines for the implementation of the rules related to expert groups, which provide further helpful guidance to Commission staff members that work with expert groups.

23. At the same time, the Ombudsman’s inquiry demonstrated a number of areas where the Commission could further improve the transparency of expert groups.

Publication of expert group documents

24. Publication of documents relevant to the work of expert groups and sub-groups is the default rule according to the Commission’s internal guidelines. When the Commission decides not to make an expert group document public, this must be based on an exception to disclosure as set out in the EU legislation on public access to documents[21]. The Commission’s internal guidance refers to the possibility that Members of the European Parliament, civil society organisations, media organisations or the European Ombudsman may enquire about the non-publication of expert group documents. However, neither the rules, nor the internal guidelines, instruct the Commission’s departments to make public the fact that certain relevant documents are withheld from publication. This absence of transparency complicates public scrutiny.

25. As the Ombudsman found in a previous inquiry,[22] to further enhance transparency and enable the public to request access if necessary, the Commission should include in the minutes of expert group meetings a list of documents that were discussed, but which the Commission determined could not be made public proactively. The Commission agreed to adopt this practice as a follow up to the above-mentioned inquiry in the context of a specific expert group. The Ombudsman suggests that the Commission adopt this practice more broadly in relation to all its expert groups, and updates its internal guidelines accordingly. In addition, the Commission could review a randomised sample of the reasons not to disclose expert group documents, to see if their non-disclosure was justified.

Timely publication of documents

26. Agendas and other relevant background documents must be made public in due time ahead of meetings, and minutes must be made public after the meeting “in a timely fashion”.^[23] Nevertheless, the internal guidelines do not impose any time limits for the publication of documents before or after meetings, which allows for different practices across expert groups regarding the timing of publication. The Ombudsman therefore suggests that the Commission set deadlines for the publication of expert group documents before and after expert group meetings to ensure timely access to documents and consistency in the application of the rules.

Searchability of the public register

27. Currently, to be able to find a document in the register, users need to know the name of the expert group concerned to which the document relates, and the date on which the meeting took place. This makes finding relevant documents a challenge for anyone outside the expert group. A parallel search in the registers of implementing acts and delegated acts[24] may also be needed, or searching in another platform to which the register of expert group refers, depending on the expert group.

28. In reply to the Ombudsman, the Commission indicated it is willing to explore whether it can improve the search functions for documents on the register of expert groups. The Ombudsman welcomes this willingness to improve the accessibility of expert group documents. The Ombudsman is of the view that the Commission should seek feedback from users of the register to inform its assessment.

Information included in expert group meeting minutes

29. According to the internal guidelines, the minutes of expert group meetings should cover the discussions on each point on the agenda and the opinions issued by the group in a meaningful and complete manner. The Ombudsman agrees that minutes should be drafted to allow for a detailed understanding of the positions expressed by participants and of possible conclusions, as stated in the internal guidelines. Any deviation from this standard should be applied with restraint.[25]

30. The Ombudsman will make corresponding suggestions for improvement below.

31. Based on the information provided by the Commission, the Ombudsman does not see the need for further inquiries at this stage.

Conclusion

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

No further inquiries are justified.

The Commission will be informed of this decision.

Suggestions for improvement

To enhance the transparency of expert groups further, the Commission should:

1. Make public the internal guidelines provided in the context of this inquiry, with appropriate redactions if necessary, to clarify what the public can expect from the Commission’s implementation of the rules on expert groups.

2. a. Include in the minutes of expert group meetings a list of documents that were discussed, but which the Commission determined could not be made public proactively, to allow the public to request access if necessary. The internal guidelines should be updated to reflect this practice. 

b. Conduct a review of a randomised sample of the reasons not to disclose expert group documents, to verify that they are justified.

3. Set deadlines for the publication of expert group documents before and after expert group meetings to ensure timely access to the documents and consistency in the application of the rules.

4. Improve the search functions on the registers that are relevant for the work of expert groups. In doing so, the Commission could seek feedback from users of the expert group register to inform its assessment.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 21/02/2025

 

[1] Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making, OJ L 123, 12/05/2016, p. 1–14, paragraph 28, available at: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:32016Q0512%2801%29

[2] Once adopted, such delegated acts may be vetoed by the Council in accordance with Article 290(2) of the Treaty on the Functioning of the EU, available at: https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E290:en:HTML.

[3] See: https://ec.europa.eu/transparency/documents-register/detail?ref=C(2016)3301&lang=en.

[4] Decision of the European Ombudsman in her strategic inquiry OI/6/2014/NF concerning the composition and transparency of European Commission expert groups, see: https://www.ombudsman.europa.eu/en/decision/en/86030.

[5] See for example: https://corporateeurope.org/en/expert-groups/2017/02/corporate-interests-continue-dominate-key-expert-groups and https://eeb.org/wp-content/uploads/2023/06/NGO-Letter-on-the-functioning-of-the-Expert-Group-on-Carbon-Removals-and-its-meetings-June-2023.pdf.

[6] See for example: Radulova et al (2021) "The European Commission's Expert Groups: Adapting to the Contestation of Expertise", in The Contestation of Expertise in the EU, pp 91-121

[7] Public consultation on the transparency and participation in EU decision making related to the environment (SI/5/2022/KR). See: https://www.ombudsman.europa.eu/en/document/en/168767.

[8] See for example paragraph 13 of case 2132/2022/KR on how the European Commission ensures the transparency of the Medical Devices Coordination Group: https://www.ombudsman.europa.eu/en/decision/en/185429.

[9] See: https://www.ombudsman.europa.eu/en/opening-summary/en/188875.

[10] See footnote 3.

[11] https://ec.europa.eu/transparency/expert-groups-register/screen/home?lang=en

[12] Article 4 of Regulation 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001R1049&from=EN

[13] This means, for example, that when a new meeting of an expert group is organised, the relevant documents sent with the meeting invitation are automatically exported from the ‘Advanced Gateway for Meetings’ portal to the register of expert groups.

[14] Documents setting out the evaluation, advice, opinions, recommendations and so forth of the expert group concerning specific policy matters.

[15] In accordance with Article 13(8) of the rules.

[16] In contrast with the practice for stakeholder consultations, where the Commission provides a ‘response to comments’.

[17] As laid down in Articles 11(6) and 23 of the rules.

[18] As per Article 23(1)(c) and (d) of the rules.

[19] Before this date, no statistical data on public meetings was recorded.

[20] For example, it is included in templates for Commission decisions and terms of reference establishing expert groups.

[21] The exceptions under Regulation 1049/2001 are applied to this proactive publication.

[22] See footnote 8.

[23] See Article 26(1) of the Commission’s rules, which are available in footnote 1.

[24] See: https://webgate.ec.europa.eu/regdel/#/home.

[25] For example, the Ombudsman is aware of the practice in the Global Gateway Business Advisory Group, where minutes are drawn up to reflect the  discussion at a high level, but not the positions of the individual members. This limits the public information on the discussions and positions in the expert group. See the meeting minutes of the group here: https://ec.europa.eu/transparency/expert-groups-register/screen/meetings/consult?lang=en&meetingId=50256&fromExpertGroups=3898.