European Consumer Organisation’s General Assembley— Speech by the European Ombudsman, Emily O’Reilly
The Ombudsman presented at the European Consumer Organisation’s General Assembley the scope of her work and her main cases especially in relation to EU governance, public interest representation and the impact on consumers.
Good morning everybody. I’m delighted to be here and thank you for the opportunity to address you at this General Assembly. It’s particularly fitting that this is being held in London at a time when the EU is poised to begin the Brexit negotiations in earnest once the British General Election is over.
The end result of those negotiations will affect every single one of us, as individuals, as families, as businesses, as consumers and the work of this association is therefore profoundly important as a voice, an advocate, as the Brexit negotiators on both sides move to chart the next stage of the history of the Union.
My role as European Ombudsman is to act as the watchdog of the EU institutions on behalf of the citizens. I take complaints from citizens, from NGOs, from individual businesses and associations, from anyone who believes that they have been badly treated by the EU administration.
The complaints range from simple communication problems, to late payments to companies doing business with the EU, allegations of conflicts of interest, procedural errors in anti-trust investigations, the transparency of clinical trials, procedures for guaranteeing the safety of chemicals such as pesticides, alleged irregularities in the recruitment of EU officials, the ‘revolving door’ between the public and private sector — a wide range of issues many of which I recognise from your website and publications as also being of concern to you.
I investigate the allegations, inspect all relevant documents, seek information from all relevant officials and, if maladministration is found, make recommendations for redress or for improved future practice. While my recommendations are not binding, the vast majority are accepted.
BEUC contributed to our public consultation on the transparency of the TTIP negotiations and I would at this stage like to thank Monique Goyens for her active engagement with my office which we deeply appreciate. We very much recognise our shared concern vis a vis European citizens. When people criticise the gap between the EU and the citizens, or the lack of a shared European demos, it reinforces our job to help to bridge that gap, to alert the institutions through the voices of the people of what their concerns and needs are.
Today, given the critical importance of Brexit, I want to share with you some of the work we are currently doing on that issue. I understand that this was discussed by the general assembly yesterday and I look forward to hearing your conclusions and your future plans.
I decided to get involved shortly after the referendum when I judged that people will need to know as much as possible and as soon as possible about what the implications will be for them, for their families, for their work and for every other area that Brexit and its fallout across the EU will impact on.
Twenty per cent of the complaints I get relate to transparency and I anticipate that many requests for Brexit related documents will be made to the Commission and other EU bodies once the negotiations get properly underway. Anyone refused documents can appeal the decision to my office. The decision can also be appealed to the courts but while I cannot make binding decisions, the service is free and easily accessible and in many cases, records are released following my office’s intervention.
My first Brexit initiative was to write the Commission President and to the Secretary General of the Council asking them to outline their intentions vis a vis proactive transparency during the Brexit negotiations. I also made suggestions concerning the type of documents that might be released while of course recognising the need to keep certain matters confidential at certain points. We are also keeping the European Parliament fully informed of our work.
President Juncker replied two weeks ago committing the Commission to what he termed ‘unprecedented’ levels of transparency. And already, unlike what happened in TTIP and other negotiations, the European Council’s Brexit Guidelines, the Commission recommendation drawing from those guidelines plus the draft Commission negotiating directives have been published. The Commission has also committed the entire Brexit taskforce only to meet with registered lobbyists, something again that didn’t happen with TTIP.
Naturally, I welcome this commitment so far to transparency but at this stage, as exemplified by the leaking of the details of the recent Downing Street dinner between President Juncker and his team and Prime Minister May and hers, the release or withholding of sensitive information as these negotiations play out, is part of a political strategy on both sides and not necessarily about transparency for its own sake.
The British it seems have called for secrecy and have warned against leaks but it is impossible to imagine a scenario where information shared among 28 member states and EU institutions will not be leaked in the search for political or commercial advantage. That is why I have said that proactive transparency limits the opportunities for selective leaking where the information can be presented in a way that does not reflect the full reality of what is going on.
Yesterday I read details, again in German newspaper, explaining the background behind the figure of 100 billion euro that emerged last week in media reports as the cost of the so-called Brexit bill. According to this report, much of the additional money related to ongoing commitments that the British may or may not have post-Brexit, for example, farm subsidies. It is clear that intensive lobbying is already taking place yet the ad hoc nature of this kind of information sharing and the uncertainties it can create, makes it even more important that proactive transparency become a shared norm while the negotiations continue.
I have to hear formally from the Council and what is still unclear is how the Council will deal with future negotiating directives when the discussions become more detailed. What I have said to the Council is that if those directives are withheld for any reason, those reasons should be justified.
And of course, the EU is insisting that only what is called the ‘divorce agreement’ can be discussed at this stage while the critical details of the UK’s future trade and other relationship with the EU to be left until what is called ‘sufficient progress’ is made on the three issues that comprise the divorce i.e. the amount that the UK will owe the EU on exit, the reciprocal rights of UK and EU citizens and the border issue between Northern Ireland and the Republic. So it may be a while before many consumer issues come to the table.
But I think it is important for your members to know that if they are seeking Brexit related documents in their own member states through their transparency or Freedom of Information legislation, they may also be able to seek the same documents through the EU as many of the documents will be held by the Commission and the Council. Yesterday I met with the UK Information Commissioner to discuss these matters and next month I will meet with other national Ombudsmen from across Europe in Brussels where we will also discuss Brexit.
On a related issue, we had been planning for some time to examine the transparency practices of the secretariat of the Council of Ministers. The Council, as you all know, is a co-legislator with the European Parliament, making laws that affect the lives of over 500 million Europeans, most of whom are probably not very aware of how this is done in practice.
We had already carried out a major Trilogues inquiry — that is the informal deal-making between the Commission, the Parliament and the Council when making laws, and earlier this year we launched an inquiry into the document handling of the Council. We wanted to see what documents are created when the Council is looking at proposed legislation, from the time it is initially discussed at working group level right until it passes through to the Permanent Representatives and finally to the Member State Ministers.
We put 14 questions to the Council on how legislative documents arising from meetings of Member State Ambassadors and deputy Ambassadors, plus the over 150 committees and working parties of national civil servants are handled in accordance with EU transparency standards.
The questions include when and how the positions of individual Member States on draft laws are recorded, and how the Council has dealt with a 2013 European Court of Justice ruling on the Council’s access to documents policy concerning the release of member state positions.
The aim of this inquiry is to shed light on how draft EU laws evolve as they progress through the various meetings of national civil servants and ambassadors in the Council before finally being agreed by government ministers.
There appear to be different practices in preparatory meetings in relation to the documenting of outcomes or compromise proposals, and when these documents are published. While there must be scope for flexibility, such documents are nonetheless the only way the public can follow the process and see the changes made to draft EU laws in the Council.
In the current political climate, it is vital to ensure clarity for EU citizens on the shaping of EU laws. This would help to clear up some popular misunderstandings about who exactly develops and agrees new laws, and separate out in the public mind the responsibility of ‘Brussels’ from the responsibility of the Member States.
In our inquiry opening letter we asked for information in four areas: the consistency of practices between working parties; the completeness of the Council’s document register; the accessibility of documents on the Council’s document register; and the recording of Member States’ individual positions.
On this last issue, we requested details on how a 2013 European Court of Justice ruling has affected the Council’s disclosure policy. In the Access Info Europe case, the Court found that the Council was wrong to refuse public access to parts of a note containing proposals for amendments tabled by Member States. We expect a reply in June.
I mentioned TTIP earlier and while we are currently waiting to see what if any direction President Trump wants to take it in, the Commission’s experience of TTIP is highly relevant both for future trade deals and for Brexit.
The Barroso Commission, even after the problems with ACTA, was arguably taken by surprise by the upsurge in citizen, civil society and parliamentary concern around TTIP and failed to engage early enough;
We opened an inquiry into the transparency of the talks in July 2014, and held a public consultation and thank you again for your contribution to that. We inspected Commission files and made transparency recommendations as did the European Parliament and many civil society activists.
The Juncker Commission and Commissioner Malmstrom did make significant improvements although limited by the US side when it came to records the US did not wish to have published. However, the experience did mark a shift in institutional culture vis a vis trade talks as when Commissioner Malmstrom published the new EU Trade Strategy paper in October 2015, transparency was one of the key pillars.
How this commitment to transparency in trade talks extends to the other trade agreements being negotiated is yet to be seen, and is something I would be happy to hear from you about today, or as complaints to my office. As we know, trade agreements are less about relatively simple issues such as tariffs these days but more about regulatory issues. This is another reason for heighted transparency needs.
One key focus of my office has been lobbying transparency, through which we have worked on issues such as the EU Transparency Register, the balance and transparency of Commission Expert Groups, Trilogues transparency and the difficult challenge of ‘revolving doors’ in Brussels, the most recent notable case being former President Barroso’s move to Goldman Sachs . We act on complaints of course to our office, but also pro-actively in a strategic fashion when we identify issues of concern which are in the public interest.
One area we did not get involved in, was the ‘Dieselgate’ scandal. I understand several members here are in court against Volkswagen seeking compensation for consumers and I have noted your very active engagement on this issue.
While much of my work on lobbying transparency is very relevant to how companies like Volkswagen exert influence in Brussels and in the national capitals, we did not launch an inquiry on this issue the European Parliament had an inquiry committee looking at the issue, and we did not wish to do overlapping work. That does not mean that an issue relating to that matter or a similar issue won’t come to my office and if it does then I am always prepared to use my powers of document inspection and my right to call officials to give information to me, to the fullest extent.
Before I conclude I want to note that I see that BEUC has taken up consumer concerns relating to nanotechnology and to endocrine disruptors and those are also two issues that we have taken an interest in so I hope that we can share our experiences, learn from each other and above all, I hope that you will engage with my office when you consider it useful or appropriate so that we can make even stronger efforts on behalf of European citizens. Just recently, my staff met with an environmental organisation, who are concerned about a specific nanomaterials issue as part of the EU Cosmetics Regulation. We will see if we receive a complaint and if it leads to an inquiry.
All of us are experiencing the current turbulence in the EU and indeed the wider global system. The election of Emmanuelle Macron has certainly calmed nerves and allayed the fears to some extent that the centre could not hold. But a lot is resting on his young shoulders and he has a short time frame in which to execute the very challenging work he faces in his own country let alone the wider Europe. I suspect he is well aware that some percentage of his support was anti Le Pen as opposed to pro-Macron but his initial move in sending out a message of acceptance and inclusivity does augur well.
Ultimately it will be good leadership and healthy and inclusive economies that will support the continuation of the European Union. We must hope that all of our leaders, at national and at EU level, can use the political turbulence of recent years to reimagine and recast our union for the 21st century.
Globalisation and new technologies have shattered the life expectations of many people even in prosperous countries. The EU needs above all to harness its wealth, its influence, its enduring value system and its great founding vision to engage globally and find solutions to the problems that have caused the unease about, and the distrust in, the political and other systems that we have witnessed. And it is up to those of us who deal so directly with citizens and who witness their experiences, to continue to speak the truth of that to their power.