‘Nerds, techies and lobbyists’

The Commission is planning to overhaul the extensive system of expert groups.

No one really knows what they do. Nobody can say how many there are. But rising concerns about them are prompting the European Commission to propose an overhaul of them.

They are the Commission’s “expert groups,” panels made up of industry associations, corporate representatives and non-governmental organizations (NGOs) handpicked to help shepherd legislation from conception to implementation. The EU executive has untold hundreds of these groups working on issues from nuclear safety to “Horizontal Questions concerning the CAP” (Common Agricultural Policy), as the Commission web site describes their mission.

Critics say the groups have too much influence, that they have become a free-for-all for lobbyists and vested interests, and that the EU should not be delegating its policymaking responsibilities. Now the Commission’s about to respond with a raft of reforms to this extensive system.

Commission officials said the changes would be proposed in writing to the European Ombudsman on May 29 and made public soon after that. 

According to one official with knowledge of the plans, the proposed changes include: requiring that calls for applications to take part in expert groups are made public (currently not the case); strengthening measures to prevent conflict of interest for panel members; and requiring that expert group members be listed in the EU Transparency Register, a public list of interest groups that lobby the European institutions. 

Industry players say they see no reason for the changes, arguing that the system provides a way for often low-ranking company employees with deep knowledge of a given issue (what one lobbyist describes as “nerds and techies”) to offer the Commission some “no-strings-attached” technical advice.

Lobbyists eagerly take part in expert groups — especially at the initial stages of the legislative life cycle, when ideas are at their most malleable and the officials who are shepherding them are at their most receptive. “[T]he earlier in the process you engage with policymakers the more likely it is that you can influence the outcome,” said Markus Becker, who works for General Electric and has taken part in expert groups on energy issues. “It is key to engage with whoever is in the driving seat and explain your position on the issue at stake.”

But NGOs say that expert groups are currently too vulnerable to influence from industry lobbyists hoping to make their mark on EU legislation at a critical stage. The NGOs say they lack the resources of the private sector and struggle to keep up with the demanding work schedule the groups require.

In a recent review of expert groups, the EU’s public watchdog, the European Ombudsman, concluded that the requirement that expert groups be “as balanced as possible” between industry and other representatives was inadequate. “This provision is unsuitable to guarantee that all expert groups are balanced,” the Ombudsman’s letter to the Commission said. “Nor does it demonstrate commitment on the part of the Commission to strive for a balanced composition.”

Ahead of the Commission’s planned reforms, here is what you need to know about how the expert groups work.

Outsourcing knowledge-gathering

It is referred to as the “generation of knowledge” phase of the legislative process: When the Commission sounds out major players on a particular issue. The idea is to get a sense of the technical requirements future legislation might have while keeping an eye firmly on the political environment.

Expert groups are established either by the Commission as a whole or specific departments (DGs) to advise civil servants as they prepare legislative proposals and policy initiatives. Their mandate is broad but their advice is non-binding — in theory, a commissioner is free to ignore a group’s recommendations.

These ad-hoc panels are made up of at least six members — but often many more than that — who can set their own schedule, subject to loose guidelines from the Commission on how they should go about their business. Expert group participants are not paid for their advice but groups can receive funding to carry out impact assessments or studies.

Depending on the advice sought, groups can be made up of company representatives, research centers, national governments, NGOs, EU bodies and international organizations. Members must be up-front about the interests they represent and are not expected to speak in a personal capacity.

Most groups meet several times a year and may or may not appear on the Commission’s official list of expert groups (there are now 787 on the register, but with no transparency requirements in place some NGOs suggest the figure could be higher).

Many of the groups are extremely technical in nature.

For example, on May 19, the Commission set up a “Multi-Stakeholder Group on Comparison Tools,” whose task is to develop “a set of principles to ensure the compliance and transparency of comparison tools (websites and apps)” while also developing “an action plan to ensure the uptake of these principles.”

That group has 31 members (20 corporate and 11 NGOs) ranging from consumer advocate BEUC and national consumer groups to the employers’ lobby BusinessEurope and companies Kelkoo, Seznam and Skyskanner. Six EU governments have also been asked to provide official representation.

Veteran EU lobbyist Andreas Geiger said these groups are an important part of the legislative process.

“The Commission is not a closed clergy,” he said. “It outsources its knowledge-gathering to generate pluralism. By permeating policy, expert groups provide pathways that help the Commission reach conclusions.”

But some critics say the groups have too much influence, and that the EU should not be delegating its policymaking responsibilities.

“It is passing the buck in a very Soviet way,” said Pablo Sanchez, a spokesperson for the European Federation of Public Service Unions. “If there’s a problem: form a committee. But who can manage thousands of expert groups, sometimes with three or four of them covering the same issues?”

Keeping it real (technical)

Supporters and critics agree that most expert groups are no place for senior managers or lobbyists more interested in political grandstanding than in providing hands-on expertise.

“The Commission wouldn’t allow it,” said Christian Feustel, from industry group BusinessEurope. “They want real life people. They need technical advice and they ask technical questions.”

Nevertheless well-resourced industry groups enjoy the process: They can send experts to answer any technical question that might come their way and are required to do so in a way which takes their employers’ position into account (they are not impartial observers).

US technology company Intel accepted the Commission’s offer to join a recently established group looking into how the EU and businesses can work together to prevent value-added-tax (VAT) fraud.

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“Just as we respond to EU consultations and write position papers, we will join expert groups to provide more detailed technology and business input,” a company spokesperson told POLITICO. “Getting the right experts around a table leads to better outcomes and enables a good working relationship with the Commission.”

But many NGOs say they don’t have enough resources to allow full participation — and that the requirement that they be ready to address highly technical issues every time an expert group meets has them stretched to the breaking point.

“We participate in over 40 different expert groups and it is too much,” said one NGO senior policy adviser who asked not to be named. “The problem is not whether we are invited to take part in the process; it is a structural issue. We will never have the resources. That should be the starting point for this discussion.”

Industry representatives say the advice they provide in many groups addresses technical detail rather than broader policy settings, and that NGOs’ expectations about being part of every group are unrealistic.

But NGOs dismiss that argument, saying that companies with “skin in the game” are exactly the ones that should be excluded from such a delicate legislative moment.

“If we establish an expert group on terrorism, are we going to ask Bin Laden to take part?” asked one NGO campaigner.

NGOs sound the alarm

The relationship between Brussels-based NGOs and the expert groups system has deteriorated in recent months. Even those who manage to get a place at the table express their displeasure with what they argue is industry dominance of the system and a lack of transparency.

Some of these concerns appear to have had an impact, with the Commission now set to take steps towards a greater level of transparency.

“I find the whole system opaque, difficult to follow and impossible for us — with limited resources — to take part in,” said Jorgo Riss, the director of the EU unit of Greenpeace, the global environmental campaigner.

“We all want public policy to be informed by real life experiences and technical expertise,” Riss said. “But whether or not that needs to take the form of expert groups, with their own dynamics and which are staffed by companies with a direct interest in the legislation, is a problematic question.”

NGOs have tried to highlight the role of expert groups, both at the embryonic stages of legislation and at the “comitology” phase — when the Commission fine-tunes legislation that has already been approved.

The most recent foray into the debate is a study published by Alter-EU, a coalition of transparency NGOs, which portrays an expert group system dominated by corporate interests and lacking in basic accountability in how members are appointed and who they actually represent.

The report finds that over 25 percent of the groups it examined are controlled outright by corporate interests (with more than half of their members linked to business); while in 64 percent of the groups, business interests appear to be over-represented (compared to NGOs, member state officials and independent experts).

Commission officials concede this situation is not ideal, but argue that often they struggle to find the right civil society inputs.

“NGOs have been doing the number-crunching about the presence of industry in expert groups — but that simplistic calculation just makes me laugh,” said BusinessEurope’s Feustel. “Of course you are going to have more industry people in these groups, in the same way that the groups dealing with social policy will be dominated by NGOs and civil society.”

Feustel said the reason for industry’s high profile in the groups is that the policy areas which would traditionally be dominated by civil society — health, policing, education, pensions, welfare — are not EU competences. “No one in these groups would mind having a highly competent NGO on board. But these groups are technical bodies — not political fora.”

The Commission responds

The European Ombudsman’s May 2014 decision to launch an investigation into the Commission’s expert groups caught some observers by surprise. As the EU’s public watchdog, the Ombudsman probes cases of maladministration, and some grumbled that this was a case of mission-creep.

The findings of Ombudsman Emily O’Reilly, published in January, were scathing, arguing that “it is currently not possible adequately and consistently to review the composition of specific expert groups” as a result of “deficiencies in the framework governing such groups.”

O’Reilly also found that there was a problem of representational balance on expert groups. She demanded that the Commission “set out an individual definition of ‘balance’ for each expert group” and that it make public the criteria used to select the group.

The Ombudsman also urged the Commission to make its calls for applicants public, effectively curtailing the Commission’s unfettered discretionary powers when appointing the groups’ members.

O’Reilly also advised the Commission to require that those who sign up to its expert groups’ register also appear in the more rigorous EU Transparency Register.

The Commission is now ready to act on those recommendations. A senior official told POLITICO that the Commission remains confident the system is working well, but that it will institute a public call for applications in line with the Ombudsman’s advice. The changes will also see a revamp of the special groups’ register which will now be linked to the Transparency Register.

In a further concession to the Ombudsman’s demands, the Commission has agreed to tough new transparency requirements to avoid conflicts of interests by experts appointed to the groups in their personal capacity — such as academics or retired business leaders — thus addressing the NGO bugbear of “independent” experts with industry links.

“Assessing the level of influence of different members is always going to be a crude process,” said Maria Lee, a University College London academic who has researched the role of expert groups. “It is undeniable that industry is heavily represented in these groups, but it is also understandable because they usually know the most about their own processes and products.”

Lee said that the Ombudsman’s letter to the Commission acknowledges the difficulties of making blanket assessments of “balance” by calling for a case-by-case explanation of how the Commission approaches balance.

“You could demand 50 percent NGOs in every group, but that wouldn’t always be realistic,” Lee said. “The [Ombudsman] has told the Commission not that it needs to achieve a particular balance every time, but that it should articulate its reasons for the balance it has achieved. That may sound banal, but if enforced it could be quite powerful.”

Yet some industry lobbyists believe this is a storm in a teacup instigated by NGOs who do not understand how expert groups work.

“There is no citadel of expertise, ivory tower or hidden cigar room,” said Geiger. “If industry complained that the Commission always listened to the NGOs, ignoring business, would that be a press story? No.”