European Ombudsman highlights European Commission's weaknesses in dealing with tobacco lobby

In April 2023, Emily O'Reilly, the European Ombudsman, criticised the European Commission for not extending the transparency rules followed by the Health and Taxation Directorates to other directorates. Many other directorates have had contacts with the tobacco industry. The Commission's response was published several months late, but the Ombudsman maintains her opinion of "maladministration".

Developed by countries under the auspices of the World Health Organization (WHO), the Framework Convention on Tobacco Control (FCTC) is the first international health treaty. Its Article 5.3 requires in particular that public policies not be influenced by the commercial interests of the tobacco industry. The implementing guidelines for this Article 5.3 specify that interactions with the tobacco industry are tolerated only when they are strictly necessary. They must then be governed by strict rules of transparency.

Since 2015[1], Emily O'Reilly, the European Ombudsman, calls on the European Commission to comply with the obligations of the FCTC, to which the European Union is a party, and in particular the general obligation to protect public policies from interference by the tobacco industry. The Ombudsman was able to verify that DG SANTE and DG TAXUD (taxation) are correctly observing these transparency obligations which apply to all public authorities, whether or not they fall within the health sector. The Ombudsman wrote to the European Commission in April 2023 to inform it shortcomings concerning other Commission directorates. It had asked the Commission as a whole to comply with these obligations.

Transparency rules insufficiently applied

The investigation carried out by the Ombudsman's services has indeed shown that many other European Commission directorates had engaged in unsupervised interactions with the tobacco industry in 2020 and 2021. These interactions concerned the directorates 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).[2]. The meetings with representatives of the tobacco industry were the subject of only vague or non-existent reports. These meetings could have been conducted by Commission officials or their subordinates. The Ombudsman also regretted that the implementation of the directives of Article 5.3 of the FCTC was not the subject of any formal procedure.

The Commission twice requested a one-month extension for its reply, and replied two months late, on 7 December 2023, to the Ombudsman's preliminary findings. In its reply, the Commission defended its general system of protection against lobbying, which it considers appropriate for relations with the tobacco industry. It considers that, while DG SANTE and DG TAXUD have a proactive approach to transparency issues with the tobacco industry, this requirement would not apply to other directorates, which would have only occasional contacts. Finally, it considers that its staff are trained on these issues, and are able to assess the need to hold meetings with representatives of this industry.

A notice of maladministration addressed to the European Commission

The Ombudsman considered this response insufficient, as the need to meet with industry representatives should, in her view, be assessed formally and on a case-by-case basis. This also concerns the participation of European officials in events organised by the tobacco industry.[3]. For not having extended the requirements of DG SANTE and DG TAXUD to the other directorates, the Commission's opinion of maladministration is confirmed. At the beginning of 2024, the Ombudsman will send the Commission the points that she wishes to see communicated to the Directors-General, Heads of Service and Heads of Cabinet. An assessment of the progress made in this regard must be carried out by 30 June 2024.

This questioning of the Commission on issues of transparency had also been raised on the occasion of the " Qatargate ", and is recurrent on the subject of tobacco products. Other cases, such as that of "Dalligate" or that of partnerships established with cigarette manufacturers on the subject of illicit trade, had indicated that the Commission is not not invulnerable in terms of lobbying. This constant pressure from tobacco lobbyists worries health professionals all the more since the Commission's proposal concerning the new tax directive, promised for the end of 2022, has still not been published.

To learn more about lobbying the European Commission, see our decryption.

Keywords: European Ombudsman, Emily O'Reilly, European Commission, transparency, FCTC, Article 5.3

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[1] Tobacco lobby: Brussels called to order, Breaking Vap, published October 5, 2015, accessed December 26, 2023.

[2] Decision on the European Commission's interactions with tobacco industry interest representatives (case OI/6/2021/KR), European Ombudsman, published on 19 December 2023, accessed on 26 December 2023.

[3] Wheaton S, Commission promises tobacco lobby probe, Politico, EU Influence, published December 21, 2023, accessed December 26, 2023.