FINAL

The European Ombudsman's own-initiative inquiry OI/6/2014/NF concerning the composition of Commission expert groups

Commission's opinion on the European Ombudsman's analysis and suggestions

I. Background

On 19 December 2013, the European Ombudsman closed her inquiry into complaint 1682/2010/(ANA)BEH lodged by Alter-EU against the Commission for maladministration in the area of expert groups.

On 12 May 2014, the European Ombudsman informed the Commission of her decision to open an own-initiative inquiry into the composition of Commission expert groups. According to the European Ombudsman, this own-initiative inquiry aimed at promoting transparency and supporting efforts towards achieving a more balanced composition of Commission expert groups.

On 27 January 2015, the European Ombudsman wrote to the President of the Commission in order to communicate (i) the feedback she received to the public consultation[1] carried out in the context of the above-mentioned inquiry, (ii) her preliminary views on the issues involved, and (iii) a set of suggestions to which the Ombudsman invited the Commission to respond.

II. Ombudsman's general suggestion

The European Ombudsman suggested to the Commission that it consider (i) adopting a decision in 2015 laying down the general framework for expert groups and (ii) reviewing the composition of expert groups which are active or on hold, once this decision has been adopted.

Commission's opinion

The Commission underlines that it is fully committed to a balanced representation of relevant areas of expertise and areas of interest in expert groups and to high standards of openness, ethics, and transparency as regards their composition and work.

A general framework governing the creation and functioning of expert groups has been in place since November 2010[2]. In the decision closing her inquiry into the above-mentioned complaint 1682/2010 of December 2013, the Ombudsman considered that 'the Commission has appropriate rules in place so as to ensure a balanced representation of different interests in its expert groups' (see point 141 of the Ombudsman's decision).

As pointed out in previous correspondence with the Ombudsman, the Commission considers that existing rules on expert groups provide for a well-functioning and coherent framework. However, the Commission can agree to several suggestions put forward by the Ombudsman, in order to improve a number of aspects. As regards the specific issue of composition of expert groups, the Commission remains committed to address any perceived imbalance on a case-by-case basis, in order to remedy possible inconsistencies, in light of specific circumstances.

In order to enhance transparency, a revised Register of Commission expert groups and other similar entities (hereinafter 'the Register of expert groups') taking on board, inter alia, a number of proposals from the Ombudsman is foreseen to be operational by the first quarter of 2016.

Please see below the Commission's opinion on the Ombudsman's individual suggestions.

III. Ombudsman's individual suggestions

A. The (legal) nature of the horizontal rules and achieving a balanced composition:

According to the Ombudsman, the Commission should adopt a decision laying down the framework for expert groups. This Commission decision should require the following:

1. A balanced representation of all relevant interests in each expert group.

2. An individual definition of 'balance' to be set out for each individual expert group.

3. A provision containing general criteria for the delimitation of economic and non-economic interests.

Commission's opinion

The Commission does not deem it appropriate to adopt a new framework for expert groups which would include the requirements proposed by the Ombudsman under heading A, for the reasons outlined below. However, as stated above, the Commission will make a number of improvements in different areas, which correspond to some of the individual suggestions submitted by the Ombudsman under headings B to D.

Communication C(2010) 7649, together with the 'Horizontal rules' on expert groups annexed to it, which provide for the existing framework for Commission expert groups, were adopted by the College. The adoption of a new framework via a Commission decision, as suggested, would therefore not provide for real added value since the applicable rules have also been adopted by the College.

The general framework for expert groups is different in nature than, for example, the Commission decision concerning the 'civil dialogue groups' placed under the responsibility of DG AGRI. In the former case the Commission established general rules on the creation and functioning of expert groups, while in the latter the Commission adopted a decision setting up a number of specific groups in the area of agriculture, based on the general framework. The Commission has adopted many other decisions setting up expert groups over the years.

It is important to underline that expert groups are not set up in the first place to engage in a debate of a general nature with stakeholders or public opinion. The primary function of expert groups is to provide the Commission with high-level expertise in relation to specific and often technical topics, which vary from one group to another. As laid down in the 'Horizontal rules', the composition of expert groups is determined in the first place by the mandate and the type of expertise required. DGs must be able to select members providing real added value in relation to the work to be performed.

The rules provide that when defining the composition of expert groups, the Commission shall aim at ensuring, 'as far as possible', a balanced representation of relevant areas of expertise and areas of interest. This wording reflects the Commission's firm commitment to strive for a balanced composition, but allows for possible specific circumstances and difficulties which it may encounter in the selection phase. The composition of expert groups is subject to a high degree of public transparency via the Register, and this together with the further transparency measures that the Commission intends to undertake, as mentioned below, ensure a high degree of scrutiny and accountability as concerns Commission's application of the principle of balance in practice.

Whether a group benefits from a 'balanced' representation cannot be an exercise in arithmetic in relation to the number of experts present in each expert group, as the Ombudsman recognised when closing the above-mentioned complaint against the Commission. Various factors may determine the membership of an expert group, some of which are not possible to foresee in advance. This is why the Commission considers that it should not introduce a set of rather rigid definitions of 'balance' for each individual group if at the same time it does not have full control over implementing such definition.

First, sometimes differences in the way employers' organisations and trade unions and/or civil society organisations are organised may influence the composition of expert groups. Second, the business community cannot be considered as a homogenous group sharing the same views, as in reality they often have quite divergent interests across different sectors. Third, neither the quality of applications nor the actual interest shown by relevant stakeholders during selection procedures are predictable and, thus, they cannot be taken into account in a theoretical definition of 'balance'. For example, experience shows that civil society organisations do not always respond to public calls for application to become members of expert groups even if widely advertised and/or do no not necessarily accept direct invitations from Commission services to be members of expert groups. In other cases applications have to be rejected because they are not suitable in relation to the work to be performed.

This is why a definition of 'balance' cannot rely on figures alone and, as explained, any attempt to draw up such a definition for each and every expert group on the basis of other criteria would face conceptual problems, be administratively burdensome and, in particular, not provide any guarantees to be effective in practice, as it is not a given that, if introduced, that definition would have a real impact on the group composition.

Finally, as stated in previous correspondence with the Ombudsman, the degree of overall involvement of stakeholders should be assessed in light of all initiatives taken by the Commission, not just on the basis of expert group membership. In fact, the Commission regularly relies on other tools supplementing the work of expert groups, such as public consultations, seminars, studies and reports or opinions provided by European agencies.

In light of the above, the Commission is of the opinion that rather than adopting a definition of 'balance' for each group, efforts should be made in order to make selection processes more transparent and inclusive. This shall be done in two ways:

(1) by clearly outlining in public calls for application the relevant expertise and interests' representation sought by the Commission and its services in relation to the work to be performed; and

(2) by using such calls to select expert group members other than public authorities and representative bodies established by Union legislation for advice in specific areas. In addition, if the necessary expertise can be obtained via a continuously open call a specific new call may not be necessary. Please see the Commission's opinion under heading B for more details.

4. Explain the inconsistent treatment by the Commission of COPA and COGECA as regards membership in expert groups.

Commission's opinion

The Commission points out that in the Register of expert groups COPA/COGECA appeared as separate organisations for all expert groups placed under the responsibility of DG AGRI of which they were members, except for one group ̶ the High Level Steering Board for European Innovation Partnership (E02844) ̶ where they erroneously appeared as one single organisation. In the meantime, this expert group has been closed and replaced by a sub-group of the newly established Rural Network Assembly (E03277).

5. Inform the Ombudsman whether it has, in the same manner, inconsistently treated other organisations appointed to expert groups.

Commission's opinion

Commission departments will review the classification of expert group members in the Register of expert groups in order to avoid inconsistent labelling of organisations. This will be part of the overall exercise to improve data reliability on the Register (see also the Commission's opinion under heading C1).

B. Calls for applications:

1. Publish a call for applications for every expert group.

2. Create a single portal for calls for applications to expert groups.

3. Introduce a standard minimum deadline of 6 weeks for all calls for applications.

Commission's opinion

According to existing rules, public calls are used 'as far as reasonably practicable' in order to select individuals to be appointed in a personal capacity^[3], not other types of members. Where a call for applications is not practicable (for example where extremely specific technical expertise is required), the choice is made on the basis of 'objectively verifiable criteria', which are then explicitly mentioned in the Register of expert groups for each group. In practice, public calls are increasingly used by DGs to select individuals representing an interest and/or organisations. The Commission considers that such flexibility in the selection of members works well.

In order to make selection procedures even more transparent and inclusive, as suggested by the Ombudsman, in principle the future selection of expert group members shall be carried out via public calls for application, except when members of expert groups are public authorities, such as Member States' and third countries' authorities, international organisations, Union bodies and EU agencies ̶ as well as representative bodies established by Union legislation for advice in specific areas[4].

In order to strike a balance between transparency and administrative constraints, the minimum deadline for applications will be of four weeks rather than six as proposed by the Ombudsman. The College may depart from these provisions, where this is deemed justified by overriding priorities or condititions of urgency. If the necessary expertise can be obtained via a continuously open call, e.g. call for experts open from 2013 to 2017 in the area of Research & Innovation (see annex), a specific new call may not be necessary. A continuously open call provides a one-stop-shop for potential experts to signal their willingness to participate in a given sector. It has proved to be an efficient and transparent mechanism for selecting experts and enables a consistent approach across the DGs working in the area of Research and Innovation.

At the end of August 2012, a "News Section" was introduced on the Register of expert groups providing for, inter alia, a single access point to information about new calls for applications. The Commission would consider it disproportionate to create, as suggested, a completely new 'single portal' for calls for applications. Instead, the Commission will enhance the visibility of calls in the framework of the Register of expert groups by creating a section exclusively dedicated to them. This section will include, inter alia, an e-mail alert system for new calls, as suggested by the Ombudsman. A similar alert system will be provided for users wishing to receive notifications about changes introduced in specific groups (membership, tasks, etc.).

C. Link to the Transparency Register:

1. Use the Transparency Register's categorisation to categorise members in Commission expert groups.

Commission's opinion

The two Registers are very different in nature and purpose. First, the Register of expert groups is the single portal assembling all relevant information on Commission expert groups and other similar entities, while the Transparency Register lists organisations and self-employed individuals carrying out activities with the objective of influencing the formulation or implementation of EU policies, i.e. activities which are usually referred to as "lobbying". Second, expert groups are not set up to lobby the Commission, but to provide it with advice and expertise in relation to specific tasks. Third, members of expert groups are not just organisations and self-employed individuals representing a common interest shared by stakeholders who may be listed in the Transparency Register, but also Member States' government authorities – who are explicitly excluded from the Transparency Register – and independent experts appointed in a personal capacity.

The Commission will improve data availability and reliability on the Register of expert groups, in particular by making organisation types more precise, also in order to avoid inconsistent labelling of organisations; where appropriate, a number of categories currently used in the Transparency Register may be used in the Register of expert groups.

2. Require registration in the Transparency Register for appointment to expert groups

Commission's opinion

In order to enhance transparency, the Commission agrees to require registration on the Transparency Register in the case of two categories of expert group members: i) organisations (type C members[5]) and ii) those self-employed individuals appointed to expert groups as representatives of a common interest shared by stakeholders (type B members). Current members of expert groups belonging to such categories who have not yet registered on the Transparency Register shall be asked to do so, in order to continue participating in the work of the group in question.

Registration in the Transparency Register of self-employed individuals because of their sole appointment to a given expert group in their personal capacity (type A members) would be inappropriate, because these experts are required to act independently and in the public interest. However, self-employed individuals should register if they were appointed as type B members in other expert groups. The Commission will provide for more information in the Register of expert groups concerning the interests represented both by type B and type C members. More detailed information on organisations and self-employed individuals appointed to expert groups as representatives of a common interest may be found on the Transparency Register.

The Commission considers that mandatory registration of those organisations whose common interests are represented by type B members would be inappropriate, because these experts do not represent individual stakeholders.

3. Systematically check whether registrants sign up to the right section of the Transparency Register. This most likely would require an increase in resources for the Joint Transparency Register Secretariat.

Commission's opinion

With the new version of the Transparency Register launched on 27.01.2015, the Joint Transparency Register Secretariat (JTRS) has taken further steps to ensure that registrants select the most appropriate section and sub-section based on their profile. This is facilitated via the provision of clearer Guidelines and a more user-friendly registration and update process that features practical tips for users. In addition, the JTRS systematically screens all incoming new registrations and reacts when it identifies registrations submitted in the wrong section. The alerts and complaints mechanism linked to the Register allows any citizen to bring to the attention of the JTRS issues linked to data quality. Own initiative quality checks are also performed (some 900 in 2014).

4. Link each member of an expert group to his/her/its profile in the Transparency Register.

Commission's position

In order to enhance transparency, the Commission will link organisations appointed as type C members and self-employed individuals appointed as type B members of expert groups to their profile in the Transparency Register.

5. See heading D. below for individuals who are not self-employed and who are appointed to expert groups as individual experts in their personal capacity.

Commission's position

See the Commission's views under heading D.

D. Conflict of interest policy for individual experts appointed in their personal capacity:

The Commission should revise its conflict of interest policy and take the following measures:

1. Carefully assess individuals' backgrounds with a view to detecting any actual, potential or apparent conflicts of interest.

2. Ensure that no individual with any actual, potential or apparent conflict of interest will be appointed to an expert group in his/her personal capacity.

3. Consider, in a situation of conflict of interest, the possibility to appoint an individual as a representative of a common interest shared by stakeholders or to appoint his/her organisation of affiliation to the expert group.

4. Publish a sufficiently detailed CV of each expert appointed in his/her personal capacity on the expert groups register.

5. Publish a declaration of interests of each expert appointed in his/her personal capacity on the expert groups register.

Commission's opinion

The Commission is preparing new provisions on managing conflicts of interest of individuals appointed as members of expert groups in a personal capacity, and complementing the Horizontal rules.

These provisions will specify the meaning of a 'conflict of interest' and provide a specific conflict of interest assessment to be performed by all Commission services. They will identify when an expert appointed in a personal capacity must complete a declaration of interests form ("DOI form"), explains how Commission services should assess the information disclosed and outlines the actions to be taken when a conflict of interest is detected. The Commission is also working on a standard declaration of interests and a guidance document for the filling in of the DOI forms drawing on comparable systems used within the EU framework (EU decentralised agencies) as well as on guidelines developed by the World Health Organisation and OECD. As suggested by the Ombudsman, DOI forms shall be made publicly available on the Register of expert groups, subject to relevant provisions on data protection.

The Ombudsman suggested that declarations of interest should be submitted on a yearly basis. The Commission considers that experts should be required to inform the competent Commission services if there is any change in the information previously provided, in which case they would be required to submit immediately a newly completed DOI form describing relevant changes. The Commission considers that this requirement is less burdensome for experts and DGs, without being less effective.

On 12 February 2015 the Commission consulted the European Data Protection Supervisor (EDPS) on the new provisions on conflict of interests. On 20 April 2015 the EDPS replied by submitting a number of recommendations on specific points. The Commission is currently assessing these recommendations.

E. Improvement of data availability on the Register:

1. Re-design the 'statistics' tab on the expert groups Register, in line with the Transparency Register.

Commission's opinion

The Commission does not deem it appropriate to replicate the Transparency Register's categorisation to categorise members in expert groups. However, the Commission will assess whether technical adjustments are possible and warranted, whilst a balance should be struck between transparency and proportionality concerns. In particular, the Commission will assess whether the statistics tab could be redefined to show additional information and to provide a better view on the composition of the group.

2. Publish documents on expert groups' and their subgroups' work on the expert groups register in a systematic and timely manner.

Publication should take place by uploading the documents on the expert groups register, not by hosting them on a different website, for example of the relevant DG.

Commission's opinion

The Commission is committed to ensure that relevant documents are published in a systematic and timely manner. The Commission recalls that exceptions to publication are possible where disclosure of a document would undermine the protection of a public or private interest as defined in Article 4 of Regulation (EC) N° 1049/2001[6].

For the sake of proportionality, the Commission believes that the current arrangements in the way relevant documents are made publicly available should be maintained, as they ensure sufficient transparency on the activities of expert groups.

3. Publish, on the expert groups register, sufficient information on the interest that an individual expert represents as a representative of a common interest shared by stakeholders.

Commission's opinion

This suggestion has been addressed in the Commission's opinion on suggestion C2.

4. Seek to ensure that the minutes that are produced to record expert groups' and their subgroups' meetings, including deliberations, are as detailed as possible.

Commission's opinion

By definition, the work carried out by expert groups is a collective one, which very often leads to decisions taken by consensus, in a spirit of mutual trust. Experts should be able to contribute freely to the work of groups, without any risk of external pressure; it is important that deliberations take place confidentially, as appropriate. Existing arrangements already foresee some flexibility: in agreement with the Commission's services, the group may, by simple majority of its members, decide to open its deliberations to the public.

In order to preserve the smooth functioning of expert groups, the Commission is of the opinion that the current arrangements concerning publication of minutes allow the general public to be adequately informed and, therefore, should be maintained.

Annex: Continuously open call in the area of Research & Innovation.

 

[1] The public consultation took place between mid-May and the end of August 2014.

[2] Framework for Commission Expert Groups: Horizontal Rules and Public Register", cf. C(2010) 7649 final.

[3] C(2010) 7649 final, rule 9 (1).

[4] This is the case, for example, of the group "Advisory Councils Coordination meetings" that is composed of Advisory Councils, which were created by Council Decision 2004/585. Advisory Councils are stakeholder-led organisations that provide the Commission and EU countries with recommendations on fisheries management matters. The role of Advisory Councils has been confirmed and reinforced in the last reform of the Common Fisheries Policy.

[5] It is to be noted that although classified as Type C members, a number of entities, such as EU agencies, Union bodies and international organisations fall outside the scope of the Transparency Register.

[6] These exceptions are intended to protect public security, military affairs, international relations, financial, monetary or economic policy, privacy and integrity of the individual, commercial interests, court proceedings and legal advice, inspections/investigations/audits and the institution's decision-making process.