European Ombudsman calls Commission to order over relations with tobacco lobby

The European Ombudsman has asked the European Commission to review the modalities of its interactions with tobacco industry lobbyists. According to her, only the Directorate-General for Health and Food Safety (DG Sante) proactively publishes the details of these interactions with the tobacco lobby, whereas many Commission services in contact with the industry do not comply with these obligations. The Ombudsman also points out that these interactions are not limited to what is strictly necessary, as required by the regulations.

The role of the European Ombudsman, Emily O'Reilly, is to investigate reported cases of maladministration. In particular, this often involves verifying whether the institutions' administrative procedures are being properly complied with. This issue of transparency in the interactions between the tobacco industry and the European institutions appears crucial in the context of the revision of the Taxation Directive and the Tobacco Products Directive.

Insufficient level of transparency in Commission services

In 2016, the European Ombudsman recommended that the European Commission apply DG Santé’s transparency policy on tobacco representatives to all its departments. This requires “the online publication of all meetings of its staff with representatives of the tobacco industry and the minutes of these meetings, regardless of the seniority of the official concerned”. According to the Ombudsman, details of meetings with Commissioners, members of their cabinet or Directors-General were made public. However, information on meetings held at a lower level was “not proactively made available to the public”. Furthermore, between 2020 and 2021, the Commission received 19 requests for public access to documents concerning meetings with the tobacco lobby, but only granted full or partial access to 12 of them. The WHO Framework Convention on Tobacco Control, which has been ratified by the European Union, requires that "transparency be ensured" when interacting with representatives of tobacco industry interests. For this reason, the Ombudsman considers that this lack of compliance with the obligations of the FCTC constitutes "maladministration" and a breach of the European Union's obligations as a Party to the treaty.

Furthermore, Emily O'Reilly points out that the Commission has not identified minutes of many meetings, posing a problem in ensuring the protection of European public authorities from the influence of the tobacco industry, also required by the FCTC. Similarly, this "lack of transparency and therefore accountability" constitutes "maladministration" on the part of the Commission.

Interactions beyond the legal framework of “strictly necessary”

According to the Ombudsman, the European Commission has refused only one request for a meeting from a representative of the tobacco industry interests, on the grounds that the meeting was “deemed unnecessary from a regulatory perspective”. Indeed, the implementing guidelines for Article 5.3 of the WHO FCTC recommend that Parties “only interact with the tobacco industry when necessary and strictly limited to what is necessary to enable them to regulate the tobacco industry and tobacco products effectively”. However, as the Ombudsman notes, this refusal seems to be more of an exception than the rule in the functioning of the Commission services. For this reason, the Ombudsman urges the European Commission to clarify within the next three months:

• Situations in which the Commission considers that interaction is necessary;
• How is this assessment carried out;
• How this assessment is documented.

The European Union institutions are a prime target for tobacco industry interference, and the EU's capacity to respond to this influence is still too weak. However, protecting European public policy-making from the influence of the tobacco industry is a key issue, both for the protection of public health and because decisions taken at EU level have an impact at international level.

FT