Decision in case 906/2020/VB on a request made by the European Commission to the members of the EU Expert Group on the Birds and Habitats Directive (NADEG) concerning a proposed restriction on lead gunshot in wetland areas
Case 906/2020/VB - Opened on Tuesday | 04 August 2020 - Decision on Thursday | 17 December 2020 - Institution concerned European Commission (No further inquiries justified )
The case concerned an information paper sent by the European Commission to the members of the Expert Group on the Birds and Habitats Directives (NADEG). In the paper, the Commission asked NADEG members to contact their national authorities to raise awareness about and encourage them to vote in favour of a draft Commission Regulation, which included new restrictions on lead gunshot in wetland areas.
The complainant, an MEP, contended that, in making this request, the Commission was acting beyond its mandate by seeking to influence, through the members of NADEG, a vote on a draft implementing act.
The Ombudsman notes that the Commission has a legitimate interest in seeing its regulatory proposals approved. That having been said, she considers that, in this case, the Commission’s request went beyond what is appropriate to promote its legitimate interest.
The Ombudsman has no evidence that this is a standard Commission practice. As such, and given that the relevant vote has taken place, the Ombudsman finds it sufficient to make the Commission aware of her views on the matter and that no further inquiries are justified.
Background to the complaint
1. In 2015, the European Commission asked the European Chemicals Agency (ECHA) to investigate the risks posed by the use of lead gunshot in wetland areas. After examining the matter, ECHA drew the conclusion that the use of lead gunshot in wetlands leads to a risk to waterbirds that ingest spent lead gunshot and to species that scavenge birds contaminated with lead gunshot.
2. Based on the opinion of ECHA’s scientific committees, the Commission prepared a draft Regulation prohibiting the use and the carrying of lead gunshot in or within one hundred metres of wetland areas.
3. The draft Commission Regulation was put forward for adoption under a so-called comitology procedure, according to which the Commission submits draft implementing acts to the relevant ‘comitology committee’ - in this case, the REACH Committee - for its opinion. Following a positive opinion, the Commission submits the draft implementing act to the European Parliament and to the Council of the EU. If the Parliament or the Council oppose the draft, the Commission cannot adopt it.
4. In May 2020, the Commission circulated an ‘information paper’ about its work on introducing the restriction on the use of lead gunshot in wetland areas to the members of the Expert Group on the Birds and Habitats Directives (NADEG). In the information paper, the Commission asked the members of NADEG to ”contact the competent national authorities in charge of REACH, in particular their national representatives in the REACH Committee, to raise awareness on the issue and to ensure a positive vote on the draft Commission Regulation [which included the proposed restriction]”.
5. A Member of the European Parliament (MEP) contacted the Commission about the matter. He considered that, in making this request, the Commission was acting beyond its mandate by seeking to influence, through the members of NADEG, a vote on a draft implementing act. He asked the Commission to explain its actions and to inform him what steps it would take to prevent a similar situation from happening again in the future.
6. The Commission replied that the implementation of the Birds and Habitats Directives and the REACH Regulation should be mutually supportive. It said that the members of NADEG, which includes the national contact points for the implementation of the Birds and Habitats Directives, are clearly concerned by the ongoing procedure to introduce a restriction on the use of lead gunshot in wetland areas. It explained that its information paper sought to raise their awareness about the upcoming deliberations in the REACH Committee, so that the national authorities would take coordinated and coherent decisions.
7. In May 2020, a different MEP decided to submit a complaint to the Ombudsman about this matter.
8. On 3 September 2020, the REACH Committee took a positive vote on the draft Commission Regulation. On 24 and 25 November 2020, the European Parliament rejected two motions for a resolution opposing the Commission’s proposal. The Commission Regulation is thus expected to be adopted in the near future, and the restriction on lead gunshot will be applicable 24 months after the Regulation enters into force.
9. The Ombudsman opened an inquiry into the Commission’s request to NADEG members to contact national representatives in the REACH Committee to ensure a positive vote on the draft Commission Regulation.
10. In the course of the inquiry, the Ombudsman received the reply of the Commission on the complaint and, subsequently, the comments of the complainant in response to the Commission's reply.
Arguments presented to the Ombudsman
11. The Commission reiterated its argument described in paragraph 6 above. It added that NADEG is a sub-expert group within which representatives from the Commission, Member State authorities and other stakeholders deliberate on the implementation of the Birds and Habitats Directives. It explained that the members of NADEG do not have to act independently, as they represent interests that are openly declared or express the views of the public authorities that they represent.
12. The Commission said that it had acted in line with the rules governing expert groups in seeking the support of NADEG members on a Commission proposal that is critical for the achievement of the objectives of the Birds and Habitats Directives.
13. The complainant noted that expert groups are supposed to support the Commission in its decision-making process. He said that the Commission should have used the meetings of the NADEG to collect the opinions of stakeholders and experts, and not to ask the members of a purely technical body to influence a vote on a draft implementing act to be taken in the REACH Committee. The complainant considered that such a request was in breach of the rules governing expert groups.
14. The complainant said that the right to good administration not only requires EU institutions to take impartial and objective decisions, but also that the procedure leading to those decision is impartial and objective.
The Ombudsman's assessment
15. The Commission has a legitimate interest in seeing its regulatory proposals approved. Thus, it is understandable that the Commission wishes to promote its position in different fora and set out the benefits that it seeks to achieve with its proposals to obtain support for them. The Ombudsman considers that the Commission is entitled to raise awareness among members of expert groups about matters that are of interest for the work of the group. The Commission is also entitled to ask the Member States’ representatives in an expert group to inform their counterparts in a comitology committee of a Commission proposal and of its potential benefits. It cannot be said that the Commission is acting inappropriately when it carries out such actions.
16. However, the Ombudsman considers that the Commission’s request went beyond what is appropriate to promote its legitimate interest when it explicitly asked NADEG members to contact their national authorities to advocate for a positive vote on the draft Commission Regulation. In accordance with the rules governing expert groups, the role of these groups is to provide advice and expertise to the Commission. Their role does not ostensibly extend to influencing a vote in a comitology committee.
17. The Ombudsman acknowledges that NADEG is composed of representatives of Member States authorities. Each Member State representative is, of course, free to contact his or her colleague in another part of the national administration taking part in a comitology committee. However, this does not change the fact that an expert group is not the appropriate forum for the Commission to make a request such as the one that it made to NADEG members.
18. In light of the above, the Ombudsman considers that the Commission’s request to NADEG members was not appropriate in this case. However, she has no evidence to suggest that what happened in this case reflects a standard Commission practice. In light of this, the Ombudsman considers that it is sufficient to make the Commission aware of her views on the matter and that no further inquiries are justified. This is particularly the case given that the European Parliament, as a political body, has decided not to invoke its right to oppose the adoption of the Commission Regulation at issue in this case.
Based on the inquiry, the Ombudsman closes this case with the following conclusion:
No further inquiries are justified on the basis of this complaint.
The complainant and the Commission will be informed of this decision.
Director of Inquiries
 In accordance with the procedure set out in the REACH Regulation: Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:02006R1907-20200824.
 Articles 69 to 73 of Regulation (EC) 1907/2006 set out the procedure to introduce restrictions on the manufacturing, placing on the market and use of certain dangerous substances, mixtures and articles.
 European Chemicals Agency, ANNEX XV Restriction Report, proposal for a restriction - lead, p. 2, https://echa.europa.eu/documents/10162/13641/restrictions_lead_shot_axv_report_en.pdf/6ef877d5-94b7-a8f8-1c49-8c07c894fff7.
 Article 70 and 71 of Regulation (EC) 1907/2006 provide that the Committee for Risk Assessment and the Committee for Socio-Economic Analysis shall formulate an opinion on the suggested restriction. The Committees’ Opinion on the Annex XV dossier proposing restrictions on lead in gunshot is available at https://echa.europa.eu/documents/10162/07e05943-ee0a-20e1-2946-9c656499c8f8.
 Draft Commission Regulation (EU) amending Annex XVII to Regulation (EC) No 1907/2006 of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) as regards lead in gunshot in or around wetlands (D064660/06), https://ec.europa.eu/transparency/comitology-register/screen/documents/064660/6/consult?lang=en.
 Regulatory procedure with scrutiny, Article 5a of Council Decision 1999/468/EC.
 Comitology committees include one representative from every EU country and are chaired by a Commission official. More information: https://ec.europa.eu/info/law/law-making-process/adopting-eu-law/implementing-and-delegated-acts/comitology_en.
 Expert groups are consultative bodies set up by the Commission and its departments to provide them with advice and expertise. More information: https://ec.europa.eu/transparency/regexpert/index.cfm?do=faq.faq&aide=2.
 NADEG is a sub-expert group of the Co-ordination Group for Biodiversity and Nature where the Commission, the Members States, and stakeholders’ representatives cooperate to facilitate the implementation of the Birds and Habitats directives.
 REACH Committee, External voting sheet - Draft Commission Regulation (EU) amending Annex XVII to the REACH Regulation (EC) No 1907/2006 as regards lead in gunshot in or around wetlands, https://ec.europa.eu/transparency/comitology-register/screen/documents/068887/1/consult?lang=en.
 Motions for a Resolution B9-0364/2020 and B9-0365/2020. The voting results on the motions can be found at https://www.europarl.europa.eu/doceo/document/PV-9-2020-11-25-VOT_EN.pdf.
 Commission decision establishing horizontal rules on the creation and operation of Commission expert groups, Article 3, https://ec.europa.eu/transparency/regdoc/rep/3/2016/EN/3-2016-3301-EN-F1-1.PDF.
 This complaint has been dealt with under delegated case handling, in accordance with Article 11 of the Decision of the European Ombudsman adopting Implementing Provisions.