Ms Ursula von der Leyen President European Commission

 

 

Dear President,

On 19 December 2023, I closed the above inquiry, welcoming your commitment to instruct the Commission’s management to assess the risk of exposure to the tobacco industry.[1]  I am now writing to emphasise the points that I believe are important for directors-general, heads of service, and heads of cabinets to keep in mind as they conduct this assessment.

According to the Commission, tobacco consumption is the single largest avoidable health risk. Around 50% of smokers die prematurely.[2] Both the EU and its Member States are contracting parties to the WHO Framework Convention on Tobacco Control (FCTC).[3] Among the obligations set out in the FCTC, Article 5(3) requires the EU to protect its public health policies from “commercial and other vested interests of the tobacco industry”. FCTC contracting parties must thus limit their interactions with representatives of the tobacco industry to those that are strictly necessary to regulate the sector.

Although Article 5(3) focuses on public health, the WHO subsequently specified, in its 2008 Guidelines for implementation of Article 5(3)[4] that “tobacco industry interference (...) cuts across a number of tobacco control policy areas”. The Guidelines also emphasise that, when interactions occur, it is crucial that they are conducted transparently. This entails, for example, public hearings, public notice of interactions, as well as making public any meeting minutes.

The above inquiry demonstrated that numerous Commission departments have had meetings with tobacco interest representatives during the period in scope (2020/2021). This includes the departments for Agriculture and Rural Development (DG AGRI), Climate Action (DG CLIMA), Environment (DG ENV), Financial Stability, Financial Services and Capital Markets Union (DG FISMA), Internal Market, Industry, Entrepreneurship and SMEs (DG GROW), Mobility and Transport (DG MOVE), Neighbourhood and Enlargement (DG NEAR), Trade (DG TRADE), as well as the European Anti-Fraud Office (OLAF).

The inquiry also demonstrated that these meetings not only took place with senior staff within the Commission (commissioners, heads of cabinets and directors-general), but also with staff at lower levels. This illustrates a gap in the Commission’s current transparency framework vis-a-vis the tobacco industry, where there is no requirement to make proactively public the existence and/or minutes of such interactions unless they involve DG SANTE or DG TAXUD. While it remains possible to ask for public access to documents relating to these meetings, this is next to impossible if the public is not aware the meeting took place.

To prevent the tobacco industry from seeking to lobby different parts of the Commission as other Commission department become less amenable to its demands, it is crucial that proactive transparency requirements are applied across all departments and in respect of all staff levels.

Finally, the inquiry showed that minutes do not seem to exist for a number of meetings Commission staff had with tobacco interest representatives. For some other meetings, the minutes do not provide a meaningful account of the content of the meeting, thereby failing to record the main discussion points and the outcome(s) of the meetings in question. Meaningful record-keeping is a precondition for transparency. If EU institutions are to be accountable for their actions, they first need to keep records of those actions.

The closing decision in OI/6/2021/KR includes further details on these matters.

I would be pleased to hear about the outcome of the assessment that you have called for, when it becomes available.

Should your services need any clarifications, they can contact Mr Koen Roovers.

Yours sincerely,

Emily O'Reilly
European Ombudsman

Strasbourg, 29/01/2024

 

[1] See: https://www.ombudsman.europa.eu/en/decision/en/179448.

[2] See: https://health.ec.europa.eu/tobacco/overview_en.

[3] See: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ%3AJOL_2004_213_R_NS005.

[4] See: https://fctc.who.int/publications/m/item/guidelines-for-implementation-of-article-5.3.