The European Ombudsman’s inquiry has found maladministration regarding the European Commission’s meetings with tobacco lobbyists, but the EU executive insists there are sound transparency measures in place.
“The Commission has been uncompromising in delivering the highest standards of transparency – on who we meet and who seeks to influence us,” a Commission spokesperson told Euractiv.
The comments came following EU Ombudsman Emily O’Reilly’s finding of maladministration in her follow-up inquiry into the transparency of the Commission’s interactions with representatives of the tobacco industry.
O’Reilly concluded in December that the Commission had failed to “ensure a comprehensive approach across all its departments to transparency of meetings with representatives of the tobacco industry” including “failure to ensure a systematic assessment, across all directorates-general, as to whether potential meetings are needed with representatives of the tobacco industry”.
The Ombudsman’s findings put into question the Commission’s commitment to the World Health Organisation (WHO) Framework Convention on Tobacco Control (FCTC), particularly Article 5(3), focused on ensuring that parties to the convention protect public health policies from “commercial and other vested interests of the tobacco industry in accordance with national law”.
While the departments for public health and taxation – DG SANTE and DG TAXUD – were evaluated as having strong, “proactive” transparency measures, it was different in a range of other departments, such as the ones for agriculture, environment, trade and the anti-fraud office (OLAF).
The inquiry showed that there were no publicly available minutes from a number of meetings with tobacco industry representatives outside of DG SANTE and DG TAXUD. For some, there were no existing minutes at all.
In her final decision, O’Reilly quoted recommendations of the WHO FCTC secretariat that “it is best when these protective measures are applied government-wide (…) [to] stop the industry from utilising non-health departments to represent its interests to underline or weaken tobacco control”.
“Only through such a comprehensive approach will the Commission be able to fully guarantee that its decision making is protected,” O’Reilly added.
Last time her team conducted an inquiry into the topic in 2016, O’Reilly also concluded that the Commission’s practice was maladministration.
Meetings with tobacco lobbyists
Despite the finding, the Commission spokesperson insisted that there is a “very solid baseline consisting of horizontal rules on ethics and integrity for Commission staff”.
This, the spokesperson added, is “complemented by dedicated arrangements and actions” in DG SANTE, which has “the main responsibility for setting and implementing public health policies with regard to tobacco control”.
The spokesperson added that this “provides an effective and proportionate framework”, putting the Commission in line with the Framework Convention on Tobacco Control.
However, Brian Ward, the executive board member at the European Public Health Alliance, disagreed.
“[Maladministration] is an accurate finding. The facts are very straightforward. It’s about honouring your obligations. The EU and the member states signed up to [the FCTC], and that’s the difference between this and other general lobbying,” Ward argued.
He said that the example of DG SANTE should be followed across all Commission departments and that meetings with the tobacco industry should be limited to what is “purely necessary for the regulation of the products.”
The Commission spokesperson said there is “no specific procedure or rule on assessing whether meetings with representatives of the tobacco industry are necessary”.
Instead, they have a “number of horizontal and specific steps” referring to general guidelines in relations with stakeholders, avoiding conflicts of interest and the specific responsibility for DG SANTE as responsible for public health action.
Obligations under ‘better regulation’ principles
Tobacco Europe, an association representing the industry, offered a different view.
“As a tobacco lobbyist, it’s difficult to have any meetings with the Commission in any DGs,” said its director of EU affairs, Nathalie Darge, who believes that the FCTCs Article 5(3) is often “misinterpreted” and used as an excuse not to meet them.
Darge said that transparency is important, but would want the same rules to apply for all stakeholders. Regarding the findings of maladministration, she expressed regret that “it doesn’t take into account the better regulation principles in which the Commission is supposed to consider all stakeholders”.
Ward, on the other hand, pointed out that the tobacco industry is a long-time proponent of those principles, which, according to the Commission, ensure evidence-based, transparent EU law-making, “involving citizens, businesses and stakeholders in the decision-making process”.
“What we shouldn’t forget is that the Commission is a public institution with taxpayer investment, not private sector investment. I think that should be taken into account,” Ward said.
“Yes, there’s an internal market and a legality part, but there’s also the massive public health concerns reflected in the treaty that’s trying to address the epidemic of smoking, so to speak,” he added.
Delayed action on tobacco control in the pipeline
Following the Ombudsman’s findings, the Commission has announced that “the risks of exposure of different Cabinets and Commission services [will be] carefully analysed and, as necessary, addressed.”
O’Reilly has announced that she will follow up on these steps on 30 June 2024.
Ensuring full transparency is particularly important given that a number of actions on tobacco control are in the pipeline following the goal, stated in the 2021 Europe’s Beating Cancer Plan, of having a tobacco-free generation in 2040, where less than 5% of the EU population uses tobacco.
As a follow-up to an evaluation in 2023, the Commission will present a revision of the Tobacco Products Directive, which is currently scheduled for 2025. Alongside this is the long awaited revision of the Tobacco Taxation Directive, for which the date has yet to be set.
On top of that, the Commission is set to propose updating the Council Recommendation on Smoke-Free Environments – extending its coverage to emerging products, such as e-cigarettes and heated tobacco products, and expanding smoke-free environments, including outdoor spaces.
Originally expected in 2023, it is now scheduled to be presented in the first quarter of 2024.
[Edited by Zoran Radosavljevic]
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