European Ombudsman
Decision
in case 904/2014/OV on the European
Commission's public consultation prior to its
legislative proposal for a Regulation concerning
the European single market for electronic
communications
This complaint concerns an alleged failure by the European Commission to
carry out an adequate public consultation in advance of drawing up its Proposal
for a Regulation concerning the European single market for electronic
communications and a Connected Continent. The complaint was made by the
Competitive Telecommunications Association. The Commission submitted its
Proposal on 11 September 2013, a little more than three months after it had
publicly announced it on 30 May 2013. The complainant alleged that the
Commission had wrongly invoked urgency, arising from the Spring 2013
European Council, as a reason for rushing through the consultation process. In
addition, the complainant a gued that the Commission had failed (i) to identify
the different types of stakeholders to be consulted, (ii) to address the points
raised by the Impact Assessment Board, (iii) to carry out a proper inter-service
consultation, and had also (iv) deliberately attempted to conceal the lack of a
public consultation
The Ombudsman found that the Commission's public consultation did not
comply with the general principles and minimum standards which govern the
conduct o such consultations. However, the Ombudsman considered the
Commission's argument that there had been urgency, which resulted in a
limited form of consultation, convincing. The Ombudsman therefore closed her
inquiry with a finding of no maladministration.
The background to the complaint
DRAFT VERSION INTERNAL
1. This complaint, submitted by the European Competitive Telecommunications
Association (ECTA), concerns the Commission's alleged failure to carry out an
adequate public consultation and impact assessment prior to submitting, on 11
September 2013, its
Proposal for a Regulation of the European Parliament and
Council laying down measures concerning the European single market for electronic
communications and to achieve a Connected Continent (COM/2013) final 627)1
(hereafter "the legislative proposal"). An important feature of this proposal was
the gradual phasing out of roaming surcharges.
2. The Commission presented its legislative proposal six months after the
Spring European Council of 14-15 March 2013. In the Commission's view, the
1http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:52013PC0627&qid=1401294158152&from=EN
1 avenue du Président Robert Schuman
T. + 33 (0)3 88 17 23 13
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F - 67001 Strasbourg Cedex
European Council had underlined the urgent need for concrete proposals to be
presented before the October 2013 European Council.
3. The legislative proposal itself was announced by Commissioner Kroes in a
speech of 30 May 2013 to the European Parliament's Internal Market and
Consumer Protection (IMCO) Committee
2. Subsequently, the Commission
organised two events. On 17 June 2013, the Commission organised a public
information session "
Telecoms Single Market" (stakeholder workshop) in
Brussels, in which the complainant took part. The Commission also organised,
together with the Irish Presidency of the EU, a "
Digital Agenda Assembly" in
Dublin on 19-20 June 2013. At a forum organised by the complainant on 3 July
2013 (where officials of the Commission's DG CONNECT
3 were present) and at
a bilateral meeting with the Commission on 17 July 2013, the complainant called
on the Commission to conduct a proper public consultation of all stakeholders.
4. The Commission's legislative proposal was discussed in the Council on 5
December 2013. On 3 April 2014, Parliament adopted its position at first
reading, proposing a series of amendments. It is against this background that
the complainant on 16 May 2014 submitted its complaint to the Ombudsman.
The inquiry
INTERNAL
5. The Ombudsman opened an inquiry into the complaint and identified the
following
allegation:
The Commission failed to carry out an adequate public consultation and an
impact assessment before adopting its Proposal for a Regulation (COM(2013)
final 627) on 11 September 2013.
The complaint did not concern the substance of the Commission's legislative
proposal, but only the procedural aspects of the public consultation. More
particularly, the complainant argued that it was not the Spring 2013 European
VERSION
Council that had asked for an urgent adoption of the Commission's proposal
but that it was the Commission itself which had created such urgency. In
addition, the complainant argued that the Commission had failed (i) to identify
the different types of stakeholders that were to be consulted, (ii) to address the
points raised by the Impact Assessment Board ("IA Board"), (iii) to carry out a
proper Inter-Service Consultation ("ISC"). The complainant also claimed that
the Commission had deliberately attempted to conceal the lack of a public
consultation.
DRAFT
6. The Ombudsman asked the Commission to explain whether it considered
that it had carried out a proper public consultation, or whether there was an
exceptional urgency for not conducting one.
7. The Ombudsman in this context referred to the Commission's statement in
the Explanatory Memorandum of its legislative proposal which mentioned that
"[s
]ince the Spring European Council set out in its conclusions the need for concrete
proposals to be presented before its October European Council, public consultations had
to be conducted within this challenging time-table". The Ombudsman noted that the
complainant seemed to be correct in pointing out that this urgency stemmed
2 http://europa.eu/rapid/press-release_SPEECH-13-484_en.htm
3 Directorate-General for Communications Networks, Content and Technology.
2
from the Commission's self-imposed time frame and not from the European
Council.
8. In the course of the inquiry, the Ombudsman received the opinion of the
Commission on the complaint and, subsequently, the comments of the
complainant in response to the Commission's opinion. In conducting the
inquiry, the Ombudsman has taken into account the arguments and opinions
put forward by the parties.
Preliminary remarks
Developments as regards the Commission's legislative proposal after the
complaint was submitted
9. By the time the complaint was made (16 May 2014), the European Parliament
had already taken a position (on 3 April 2014) on the Commission's legislative
proposal. Subsequently, on 9 July 2014, the Commission adopted its position on
Parliament's amendments. On 4 March 2015, the Council agreed to give its
Presidency the mandate to start negotiations with Parliament with regard to i)
adopting new rules to cut mobile phone roaming fees and ii) safeguarding an
EU-wide open internet access. The other parts of the Commission's legislative
proposal were left out by common decision of the Council
4. On 6 May 2015, the
Commission presented its Communication on "
A Digital Single Market Strategy
INTERNAL
for Europe", which will constitute the basis for several new legislative proposals.
In that Communication, the Commission states that it "
will engage in an ongoing
dialogue with stakeholders to inform on policy-making" and that "[e]
ach action will be
subject to appropriate consultation and impact assessment" (pages 3 and 18 of the
Communication). .
1) Failure to carry out an adequate public
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consultation
Arguments presented to the Ombudsman
10. The
complainant pointed out that the obligation to consult is set out in
various legislative and administrative provisions. It referred in particular to i)
Article 11(3) of the Treaty on European Union (TEU), ii) Article 2 of the Protocol
DRAFT
No. 2 (to the EU Treaties) on the application of the principles of subsidiarity
and proportionality, iii) the Commission Communication of 11 December 2002
"
Towards a reinforced culture of consultation and dialogue - General principles and
minimum standards for consultation of interested parties by the Commission"
5
(hereafter "the 2002 Communication"), iv) the Commission Impact Assessment
Guidelines (SEC(2009) 92) of 15 January 2009
6 (hereafter "the 2009 Guidelines"),
and v) the Commission Communication of 8 October 2010 on Smart Regulation
in the European Union
7.
4 http://www.consilium.europa.eu/en/press/press-releases/2015/03/150304-roaming-and-open-internet-
council-ready-for-talks-with-ep/
5 http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52002DC0704&from=EN
6 http://ec.europa.eu/smart-regulation/impact/commission_guidelines/docs/iag_2009_en.pdf
7 http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52010DC0543&from=EN
3
11. The complainant pointed out that the Commission adopted its legislative
proposal just six months after the Spring European Council of 14-15 March
2013. As regards the Commission's claim that an urgency justified curtailing the
scope of the consultation to be carried out, the complainant argued that this
was a self-imposed Commission deadline.
12. The complainant argued that none of the consultative steps undertaken by
the Commission between March and September 2013 could be regarded as a
proper and effective public consultation. The complainant in particular stated
that the two stakeholder workshops organised by the Commission in Brussels
and Dublin on, respectively, 17 and 19-20 June 2013, could not be considered as
a public consultation. It argued that the Commission had not published any
document which identifies the different types of stakeholders which have been
consulted and their specific positions.
13. The
Commission argued that the political and economic background for its
legislative proposal was the Member States' and the European Union's
determination to promote competitiveness, growth and jobs. On that basis, the
2013 Spring European Council had "
call[ed]
for preparatory work to be conducted
giving priority" to specific issues which included the digital agenda and the
related services, and noted the Commission's intention to report well before
October on "
concrete measures to establish the single market in Information and
Communications Technology as early as po sible". The Commission stated that the
timing set by the European Council was an important contextual factor which
could not be ignored. Furthermore, the difficult economic situation of the
telecom sector called for swift action. At its October 2013 meeting, the European
Council "
welcome[d]
the presentation by the Commission of the "Connected
Continent" package and encourage[d]
the legislator to carry out an intensive
examination with a view to its timely adoption". This confirmed the urgency of the
Commission's proposals and the need to prepare them in such a short space of
time, taking also into account the forthcoming end of the mandate of both the
Commission and Parliament. The need to act promptly was also fully endorsed
by the European Parliament, which in a very short time fully and extensively
examined the Commission's legislative proposal and adopted a final position
before the end of its legislature.
14. The Commission stated that it had fully considered all the information and
data gathered in the past in relation to the main issues at stake, and that it had
actively described and discussed its forthcoming legislative initiative with all
interested stakeholders. The Commission described in detail the various
consultative steps and information gathering processes it had undertaken since
DRAFT VERSION INTERNAL
2010 on the different elements that were included in its legislative proposal.
15. The Commission argued that it also used other open consultation tools in
order to give interested parties the possibility to participate in the debate. In
particular, the intention of the Commission to proceed with a comprehensive
legislative proposal, built upon the cumulative inputs received in the individual
consultations mentioned above, was made public and discussed at the public
event held on 17 June 2013. This public information session was accompanied
by a background paper that referred to the various subjects that were finally
addressed in the Commission's legislative proposal. Some 185 attendants, from
24 different countries representing different kinds of stakeholders (such as
National Regulatory Authorities, other national administrations, telecom
operators, content operators, investors, M2M providers, academia, journalists,
civil society and consumer organisations, IT applications and manufacturing
industry) participated in that event, including the complainant. Moreover, the
4
discussion held in the context of the 2013 Digital Agenda Assembly in Dublin
on 19-20 June 2013 also offered to a wide range of stakeholders the possibility to
discuss options for a possible legislative intervention by the Commission in the
area of digital services.
16. Furthermore, Commissioner Kroes, who was in charge of the preparatory
work for the proposal, spoke on several occasions about the forthcoming
proposal in different
fora. Likewise, senior Commission officials were involved
in several events organised by stakeholders, in particular the 25 June 2013
Conference on a "
Single Market for Telecoms" organised by the complainant itself.
Finally, the above events triggered written inputs and contributions from some
30 stakeholders, including the complainant. A general overview of the
stakeholders' views was included in the Impact Assessment.
17. The Commission stated that the minimum standards set out in the 2002
Communication and the Communication on Smart Regulation do not require
that a specific consultation on the text of a legislative proposal must necessarily
be carried out
. Rather, the Commission must generally ensure to have publicly
consulted on issues that will be reflected in policy initiatives. In this case, the
Commission complied with the minimum standards either directly or by using
wide consultations carried out by EU expert bodies concerning the specific
issues dealt with in its legislative proposal.
18. In its observations,
the complainant argued that it was clear that the
Commission had acted under a self-imposed deadline, as the European Council
had
never requested the Commission to act with urgency, but merely to carry
out preparatory work on specific issues, including the Digital Agenda.
19. The complainant s ated that the Commission's references to instances of
engagement with stakeholders all took place before the legislative proposal was
adopted, in some cases several years before, and did not address the various
measures which were finally included in the Commission's proposal.
The Ombudsman's assessment
Relevant provisions on public consultation
20 Article 1 TEU provides that the Treaty marks a new stage in the process of
creating an ever closer union among the peoples of Europe, "
in which decisions
are taken as openly as possible and as closely as possible to the citizen". The Lisbon
DRAFT VERSION INTERNAL
Treaty introduced in the TEU the Title "
Provisions on Democratic Principles"
(Articles 9-12). Article 10(3) TEU states that every citizen shall have the right to
participate in the democratic life of the Union and reiterates that "[d]
ecisions
shall be taken as openly and as closely as possible to the citizen". Article 11(1) and (2)
TEU provide that the EU institutions shall, by appropriate means, give citizens
and representative associations
the opportunity to make known and publicly
exchange their views in all areas of Union action, and that the institutions
shall maintain an open, transparent and regular dialogue with representative
associations and civil society.
21. As regards more specifically the role of the Commission, Article 11(3) TEU
provides that "[t]
he European Commission shall carry out broad consultations
with parties concerned in order to ensure that the Union's actions are coherent and
transparent". As regards the adoption of EU legislation, Article 2 of the Protocol
n° 2 on the application of the principles of subsidiarity and proportionality
5
provides that, before proposing legislative acts, the Commission
"shall consult
widely. .... In cases of exceptional urgency, the Commission shall not conduct such
consultations. It shall give reasons for its decision in its proposal" (emphasis
added)
.
22. The general principles and minimum standards for public consultation
which were applicable to the consultation process that led to the adoption of
the legislative proposal of 11 September 2013 are set out in the 2002
Communication.
23. Two preliminary observations are relevant. First, although the principles
and standards set out in the 2002 Communication are not legally binding
8, the
Ombudsman considers that it is good administrative practice for the
Commission to apply what it refers to as the 'minimum standards for
consultation', unless there are valid reasons for not doing so in a given case.
24. Second, the 2002 Communication does not require that a specific
consultation is necessarily carried out on the text of a legislative proposal.
However, the 2002 Communication should be interpreted in the light of Article
2 of the Protocol n° 2 on the application of the principles of subsidiarity and
proportionality. This provision requires that [b]
efore proposing legislative
acts, the Commission shall consult widely" (emphasis added). This obligation on
the Commission was already contained in the Protocol n° 7 annexed to the
Amsterdam Treaty. The 2002 Communication refers to this Protocol on page 4,
where it is stated that "
wide consultation is one of the Commission’s duties according
to the Treaties and helps to ensure that proposals put to the legislature are sound. This
is fully in line with the European Union's legal framework, which states that "the
Commission should [...] consult widely before proposing legislation and,
wherever appropriate, publish consultation documents"". The 2002
Communication also states that "[t]
he Commission is committed to an inclusive
approach when developing and implementing EU policies, which means consulting as
widely as possible on major policy initiatives. This applies, in particular, in the
context of legislative proposals" (emphasis added)
.
25. The 2002 Communication provides, in summary, that the following five
minimum standards must normally be observed when a consultation is carried
out
9:
a)
Clear content of the consultation process: All communications relating
to the consultation should be clear and concise, and should include all
necessary information to facilitate responses;
DRAFT VERSION INTERNAL
b)
Consultation target groups: When defining the target group(s) in a
consultation process, the Commission should ensure that relevant parties have
an opportunity to express their opinions; the target group should be clearly
defined prior to the launch of the consultation process10;
c)
Publication: The Commission should ensure adequate awareness-
raising publicity and adapt its communication channels to meet the needs of all
target audiences;
8 The 2002 Communication on page 15 explicitly states that "
When consulting on major policy initiatives
the Commission will be guided by the general principles and minimum standards set out in this document.
.... Neither the general principles nor the minimum standards are legally binding".
9 These five minimum standards are descr bed in more detail on pages 19 to 22 of the 2002
Communication.
10 Page 11 of the 2002 Communication.
6
d)
Time limits for participation: The Commission should strive to allow at
least 12 weeks
11 for the reception of responses to written public consultations;
e)
Acknowledgement and feedback: The results of open public
consultations should be displayed on websites linked to the single access point
on the Internet. With regard specifically to legislative proposals, the 2002
Communication states that "
explanatory memoranda accompanying legislative
proposals by the Commission ... will include the results of these consultations and
an explanation as to how these were conducted and how the results were taken
into account in the proposal." (emphasis added).
Compliance with the general principles and minimum standards of the 2002
Communication
26. The Ombudsman notes that the Commission itself, in the Explanatory
Memorandum, referred to consultation that was carried out after the Spring
European Council in March 2013. In fact, the Commission stated there that the
public consultations had to be conducted "
within this challenging time-table",
which meant within the period starting on 13/14 March (the date of the Spring
European Council) and finishing on 11 September 2013 (the date of the
submission of the legislative proposal) However, the idea for a legislative
proposal was made public for the first time on 30 May 2013, in a speech by
Vice-President Kroes to Parliament's IMCO Committee. This implies that the
potential for any public consultation was in practice limited to the period
between 30 May and 11 September 2013, which is less than three and a half
months. Considering the complexity of the various issues that were included in
the legislative proposal, this was an extremely short time to carry out a public
consultation.
27. The relevant section of the Explanatory Memorandum on the public
consultations carried out is very short. It mentions that:
"
In addition to specific formal consultations and consultative events, the Commission
has engaged extensively with a wide range of stakeholder organisations to assess the
general state of the electronic communications market and how to establish a single
market It has met and received submissions from stakeholders representing all
industry segments, consumer organisations, civil society, and national regulators and
governments.
On top of that, the Commission organised several consultative events attended by
stakeholders representing all segments of the industry, consumers and civil society12.
DRAFT VERSION INTERNAL
These consultations have shown that a large majority of stakeholders share the
Commission's problem analysis and recognise that urgent action is needed ...".
28. With the exception of the two events of 17 and 19-20 June 2013 that are
mentioned, the Explanatory Memorandum refers, in very general terms and
without mentioning any dates, to several consultations and consultative events
carried out by the Commission. The Ombudsman does not therefore agree with
the Commission's view that the Explanatory Memorandum explained the
consultation approach
in a clear and thorough manner.
11 The Ombudsman notes that, in the light of concerns expressed for longer consultation periods,
the
8
weeks period provided for in the 2002 Communication was extended to
12 weeks (namely 3 months) in
the Communication on Smart Regulation (Communication COM(2010) 543 final of 8 October 2010). The
12 weeks consultation period applied as from 2012.
12 The Commission referred in particular to the public information session it organised in Brussels on 17
June 2013 and to the event held in Dublin on 19-20 June 2013.
7
29. In the Ombudsman's view, the public consultation carried out in the present
case does not comply with the minimum standards set out in the 2002
Communication. The Ombudsman takes the view that, in terms of the
minimum standards, the public consultation was deficient because the
Commission:
• failed to publish a consultation document;
• failed to identify the specific groups requiring to be targeted;
• failed to launch a consultation process publicly;
• failed to set a deadline (normally 12 weeks) by which submissions
should be made; and
• failed subsequently to explain how the public consultation was taken
into account in the legislative proposal.
30. In fact, the Commission itself does not claim that its public consultation met
those standards. In Annex I of the Impact Assessment ("
Detailed Overview of the
Consultation of Stakeholders and other EU institutions"), the Commission
acknowledges that "
a fully-fledged public consultation on the specific measures in
accordance with the Commission's guidelines could not be organized". This non-
compliance is evident also from the Commission's Impact Assessment Board
(IA Board) reports of 19 July, 29 August and 6 September 2013. In particular, in
its second negative opinion of 29 August 2013, the IA Board said that the IA
report should outline "
the reasons why an open public Internet consultation has not
been carried out for this initiative". It added that the report "
should explicitly
acknowledge that an open public consultation on the specific measures and their
impacts has not been carried out, ... ". In its third report of 6 September 2013, the
IA Board again refer ed to "
the absence of an open consultation".
31. It is relevant to note that the IA Board issued its first opinion on 19 July
2013. As it is logical to assume that the Commission would consult its IA Board
only after having carried out any consultation necessary, it appears that, in the
Commission's view, the consultation was completed before 19 July 2013.
32 The Commission invoked three main arguments to justify its view that its
onsultation in the present case was sufficient. The sufficiency of the
consultation must be assessed against the Commission's position that there was
an urgency attaching to the matter and that this urgency warranted a departure
DRAFT VERSION INTERNAL
from the minimum standards which would otherwise apply.
33. First, the Commission argued that the events on 17 June and on 19-20 June
2013 constituted consultation.
Second, it argued that the 2002 Communication
does not require that the consultation be carried out by reference to the text of a
legislative proposal or a specific consultation document, but that the
Commission must generally ensure having publicly consulted on issues that
will be reflected in policy initiatives.
Third, the Commission argued that there
had been various consultations and consultative events prior to March 2013.
34. It is not necessary to engage in a detailed assessment of the merits of each of
these arguments. Clearly, the two events in June 2013 constituted public
consultation but not an extensive consultation. The absence of a consultation
document, particularly where the subject matter was quite complex, inevitably
inhibited the consultation. The fact that there had been various relevant
8
consultations and events prior to 2013 is certainly a positive factor but did not
remove the need for more immediate consultation.
35. While the Commission did take certain steps to consult interested
stakeholders, that consultation did not comply with the general principles and
minimum standards set out in the 2002 Communication. However, it remains to
be examined whether the Commission had valid reasons for its decision to
curtail the consultation.
The urgency invoked by the Commission
36. The Commission has argued that it was operating under time constraints
which limited the degree to which it could conduct a consultation.
37. Article 2 of Protocol n° 2 provides that the Commission, in cases of
exceptional urgency, shall not conduct public consultations. In that event,
however, it shall give reasons for its decision in its proposal
. In this
case, the
Commission stated that "[s]
ince the Spring [2013]
European Council set out in its
conclusions the need for concrete proposals to be presented before its October [2013]
European Council, public consultations had to be conducted within this challenging
time-table". It is thus clear that the Commission did not take the view that no
consultation was possible in the present case but that, due to the urgency of the
matter, the consultation needed to be adapted to the timeframe that was
available. The Ombudsman considers this approach to be reasonable. If,
INTERNAL
according to Protocol n° 2, no consultation at all is to be carried out in cases of
exceptional urgency, it clearly makes sense to carry out a limited form of
consultation if the urgency is not such that it leaves no time at all for
consultation.
38. In its Explanatory Memorandum, and on a number of occasions
subsequently, the Commission referred to the Spring 2013 European Council
conclusions as the main reason for the urgency it assumed to exist. It is true
that, in these conclusions, the European Council "
notes the Commission's
intention to report well before October on the state of play and the remaining obstacles
VERSION
to be tackled so as to ensure the completion of a fully functioning Digital Single Market
by 2015, as well as concrete measures to establish the single market in Information and
Communications Technology as early as possible before October 2013". Read in
isolation, this statement would appear to suggest that it was the Commission
that intended to proceed rapidly, and that the European Council merely
accepted this proposal. In that case, any possible urgency resulting from the
European Council's conclusions would have been the Commission's own doing
DRAFT
and could hardly be invoked to justify the absence of a proper public
consultation.
39. However, regard needs to be had to the fact that the above-mentioned
statement is preceded by the following text in the minutes of the meeting of the
European Council:
'The European Council will hold, over the coming months, a series
of thematic discussions on sectoral and structural aspects that are key to economic
growth and European competitiveness. ... with a view to these discussions, it calls for
preparatory work to be conducted giving priority to the following issues: ... (c) digital
agenda and other services'. It is thus clear from these conclusions that the
European Council intended to hold a thematic discussion on the issue of the
digital agenda and other services in October 2013. It is also clear that the
European Council did indeed expect the Commission to submit concrete
proposals as early as possible and in any event before October 2013. In these
9
circumstances, urgency clearly existed, as the Commission thus had little more
than six months to prepare the necessary proposals.
50. Having regard to the assessment above, the Ombudsman finds that the
Commission had valid reasons for curtailing its public consultation in this case
and that its failure to abide by the minimum standards, as laid down in the 2002
Communication, was justified. On this basis, the Ombudsman finds that there
was no maladministration by the Commission arising from its curtailed public
consultation.
2) Alleged insufficiency of the Impact
Assessment
Arguments presented to the Ombudsman
51. The complainant alleged that the Impact Assessment did not comply with
the Commission's Impact Assessment Guidelines of 15 January 2009 (the '2009
Guidelines').
First, the Commission twice failed to obtain the approval of the IA
Board.
Second, even if, in its third opinion of 6 September 2013, the IA Board
acknowledged some improvements in the Impact Assessment, it still
highlighted several points that needed to be addressed. However, in the
complainant's view none of the points raised by the IA Board in its final
INTERNAL
opinion were addressed by the Commission in the final Impact Assessment.
52. The Commission stated that the final version of the Impact Assessment
contains a complete overview of the way the preceding IA Board's
recommendations were taken into account.
The Ombudsman's assessment
VERSION
53. Verification of Impact Assessments can involve complex technical and
scientific questions. That task has been entrusted to a specific independent
body with expert knowledge, that is the Commission's IA Board which is
independent of the Commission's policy making departments
13. The fact that
the Commission's draft Impact Assessment report twice received a negative
opinion from the IA Board cannot be considered as maladministration. The
Commission submitted a third version of its Impact Assessment report to the IA
DRAFT
Board, which then delivered its final opinion, upon which the Commission
adopted the final version of its Impact Assessment report.
54. The issue here for the Ombudsman is whether the Commission complied
with the procedural rules for impact assessments, and, in particular, what
action it took following the final opinion of the IA Board. Section 2.5 of the 2009
Guidelines specifically provides that "[t]
he final version of the IA report should
briefly explain how the Board's recommendations have led to changes compared to the
earlier draft"
.
13 http://ec.europa.eu/smart-regulation/impact/iab/iab_en.htm
10
55. The IA Board's third and last opinion of 6 September 2013 pointed out that
the report had been improved to a fair extent following its previous
recommendations. However, it still contained the following 4 recommendations
for (further) improvements: "(
1) Further improve the problem definition and clarify
the overall objective; (2) Better describe the content of the preferred option; (3) Improve
the assessment of impacts; (4) Better incorporate stakeholders' views".
56. The Commission's final Impact Assessment report of 11 September 2013,
14
which accompanies its legislative proposal, explains how the report was revised
and which further changes were made following the IA Board's
recommendations. The complainant's allegation that "
none of the points raised"
by
the IA Board was addressed by the Commission, prior to the publication of its
legislative proposal, is therefore not correct.
57. The complainant raised four specific arguments in this regard: 1) Failure to
present an adequate problem definition, 2) Operational objectives not defined,
3) Insufficient assessment of the impact of the proposals on SMEs and 4) Choice
of legal instrument and subsidiarity not properly substantiated. The
complainant does not link these arguments directly to the final
recommendations of the IA Board. The Ombudsman will deal with those
arguments only to the extent that they concern one of the four
recommendations made by the IA Board in its final opinion of 6 September
2013.
INTERNAL
58. Argument 1) concerns the problem definition which is the subject of the IA
Board's first recommendation, according to which "[t]
he report should still better
explain how the list of regulatory shortcomings has been identified and should
substantiate further how such regulatory shortcomings affect supply and demand for
cross-border services. It should justify the level of ambition by explaining what this
initiative can realistically achieve in terms of a genuine single market given the effect of
other factors (economic crisis, cultural diversity, divergence in wider regulatory
issues)". The Ombudsman notes that, in its final impact assessment report, the
Commission tried to accommodate the IA Board's concerns. It is not clear
whether the IA Board would have considered the changes the Commission
VERSION
made to the Impact Assessment Report as sufficient. The European Parliament's
Impact Assessment Unit, in an opinion of October 2013 on that report,
considered that the changes were not sufficient. However, it is not for the
Ombudsman to examine the merits of the final Impact Assessment Report.
What the Ombudsman needs to ascertain is whether the Commission failed to
address the comments made by the IA Board. The Ombudsman takes the view
that this has not been established.
DRAFT
59. In the case of the complainant's arguments 2), 3) and 4), the points in
question were not raised in the IA Board's final recommendations and it is not
necessary for the Ombudsman to consider them further.
60. On the basis of the above, the Ombudsman concludes that the complainant
has
not established that the Commission failed to take into consideration the IA
Board's final recommendations of 6 September 2013 in its Impact Assessment
report. The Ombudsman, therefore, has not found any maladministration with
regard to this aspect of the complainant's allegation.
14 http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52013SC0331&from=EN
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3) Alleged failure to carry out a proper Inter-
Service Consultation (ISC)
Arguments presented to the Ombudsman
61. The complainant alleged that the Commission failed to finalise the Impact
Assessment report before the launch of the Inter-Service Consultation ('ISC')
and that the latter was therefore flawed. It argued that the IA Board's
recommendations and considerations should, as a matter of principle, be
addressed
before any draft proposal is submitted to inter-service consultation.
62. The Commission argued that this allegation impinged on the internal
functioning of its services and went well beyond the need to ensure compliance
with the principles of transparency and impartiality
15. In any event, the
Commission argued that, overall, the services consulted had ample opportunity
to provide their views.
The Ombudsman's assessment
63. The Ombudsman notes that Article 23 of the Commission's Rules of
Procedure provides as follows:
INTERNAL
"
2. The department responsible for preparing an initiative shall ensure from the
beginning of the preparatory work that there is effective coordination between all the
departments with a legitimate interest in the initiative by virtue of their powers or
responsibilities or the nature of the subject.
3. Before a document is submitted to the Commission, the department responsible shall,
in accordance with the implementing rules, consult the departments with a legitimate
interest in the draft text in sufficient time".
VERSION
64. In this case, the complainant has not demonstrated that DG CONNECT,
which was the lead DG for the legislative proposal, failed to consult adequately
with the Commission's other DGs with a legitimate interest in the proposal. It
appears from the Commission's opinion that DG CONNECT consulted a total of
7 other DGs as well as the Secretariat-General of the Commission and that at
least three meetings between the services concerned were held between 4 and
15 July 2013.
DRAFT
65. The ISC in this case started on 8 July and lasted until 22 August 2013. This
means that the ISC started before the IA Board delivered its first opinion on 19
July 2013 and that it terminated before the IA Board delivered its second
opinion on 29 August 2013 and its final opinion on 6 September 2013. It is thus
clear that the ISC was not carried out in full compliance with the 2009
Guidelines. However, the complainant did not explain how this could have
affected the substance of the legislative proposal. In fact, as the Commission
stated, the comments of the IA Board were forwarded to the competent services
on 19 July, 29 August and on 6 September 2013. The Ombudsman therefore
considers that there are no grounds for further inquiries into this allegation.
15 The Commission also pointed out that the details provided in the complaint seemed to suggest that the
complainant may have had direct access to internal documents which are not publicly available.
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4) Alleged attempt to conceal the lack of public
consultation
Arguments presented to the Ombudsman
66. The complainant argued that, in the recitals of its Proposal for a Regulation,
the Commission deliberately attempted to convey the idea that it had engaged
in detailed consultations with stakeholders prior to the adoption of its
legislative proposal.
67. In its opinion, the Commission argued that, in line with the current practice
for legislative proposals, the Explanatory Memorandum explained the
consultation approach in a clear and thorough manner while the Impact
Assessment - to which the Explanatory Memorandum refers - broadly gives an
overview of the consultation process and of the stakeholders consulted.
The Ombudsman's assessment
68. The Ombudsman has already found above that the section of the
Explanatory Memorandum of the Commission's legislative proposal dealing
with "
Views of stakeholders" was very short and general in describing the public
consultations that were carried out. However, there is nothing to support the
complainant's view that the Commission deliberately tried to conceal the lack of
a public consultation. The complainant's allegation is also contradicted by the
Impact Assessment report which describes in much more detail the various
consultative steps which, in the Commission's view, were relevant for its
legislative proposal. The Ombudsman thus finds no maladministration with
regard to this allegation.
Conclusions
On the basis of her inquiry into this case, the Ombudsman reaches the
following conclusions:
There are no grounds for further inquiries into the allegation that the
Commission failed to carry out a proper inter-service consultation.
DRAFT VERSION INTERNAL
As regards the remainder of the case, including the main allegation that the
Commission failed to conduct an adequate public consultation, no
maladministration was found.
The complainant and the Commission will be informed of this decision.
[SIGNATURE]
Emily O'Reilly
Strasbourg, XX/XX/2015
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