Ombudsman says rogue process beyond her brief – I say ‘look again’

On 13 January, I made a complaint to the European Ombudsman about the European Commission sidestepping the treaty requirements for […]

Does it do what it says on the  tin?
Does it do what it says on the tin?

On 13 January, I made a complaint to the European Ombudsman about the European Commission sidestepping the treaty requirements for consultation, reasoned justification, impact assessment and scrutiny of legislative proposals when it comes to the 4,500 words of new legislation about e-cigarettes negotiated in secret in a process that has led to scientific, legal and procedural defects.  This has led to further exchanges…

The short version

The Ombudsman says she will not investigate my complaint about the Commission avoiding consultation, impact assessment etc because it would intrude on the political work of the European Parliament.  For unstated reasons, they don’t like to do that – hardly surprising as she is appointed by the Parliament, but not supported by the Ombudsman’s own rules of procedure.  Needless to say I disagree and have written back to ask her to reconsider, arguing that (1) all of this was the responsibility of the Commission; (2) asking what’s so special about the European Parliament anyway? It is also governed by the treaties. The involvement of the European Parliament should not be cover for maladministration by the Commission; (3) this implies no-one is responsible or accountable – so it’s unsurprising that they cut corners. 

She has however, required the Commission to write back to me, which it has now done.  I have responded to the Commission pointing out its reply avoids the main points and asking it to: (1) justify the process followed for the directive and; (2) the credibility of the measures in the directive. The Ombudsman asked for observations on the Commission’s reply, and I have copied my new letter to the Ombudsman as my observations.  I await a new response from the Commission.

It all adds to my sense that the EU has gone rogue, with inadequate accountability for sticking to the rules  – see my Manchester University policy blog:  Do we need a ‘new settlement’ with Europe – or just a better sausage factory?

In more detail

The European Ombudsman, Emily O’Reilly, has replied and her letter is here (PDF).  Her reply does two things:

1. It states that the complaint is outside the Ombudsman’s mandate because if she made an inquiry into this complaint, which although was about the European Commission, it would impinge on the European Parliament’s political role. She states that her institution “takes the view that complaints concerning concerning the political work of the European Parliament fall outside the concept of maladministration”.   I don’t accept the logic in this position and have just written back to her to request that she reconsiders this ruling.  My letter with the arguments why she should reconsider is here (PDF) and set out in full below. The Ombudsman is barred from intervening in cases before the European Court of Justice, but there is nothing in its statute that stops the Ombudsman doing this.

2. It asserts that the Commission should have responded to my e-mail of 23 October to Dominik Schnichels and Joanna Darmin of DG SANCO in the European Commission. The Ombudsman requests that the Commission now responds. The Commission has responded (PDF here) and I have just written back to them pointing out they have avoided the main issues and requesting a substantive response on the reasons for avoiding the main process obligation of the EU Treaties, and on the lawfulness of the measures proposed in time for the European Parliament plenary.  My reply to the Commission is here (PDF) and set out in full below.

Reply to Ombudsman

Here is my reply…

1st February 2014

Dear Ms O’Reilly

Re: Complaint 81/2014/OV (Procedures followed for Tobacco Products Directive)

Thank you for your letter of 22 January responding to my complaint of 13 January 2014. I am grateful for the rapid turnaround, your considered response and for your decision to request a substantive reply from the Commission to my letter of 23 October 2013.  I have now received the Commission’s reply.  I was disappointed, however, that you have ruled my maladministration complaint to be outside your mandate. I would like to invite you to reconsider this ruling, both for this case and more generally.  I think there are three main responses to your reasoning.

1. The complaint was strictly procedural and related to responsibilities of the Commission, not the European Parliament.  It is a legitimate case of maladministration.

I have not requested that you examine the substance of the legislation, only the process followed.  The Commission is responsible for consultation, impact assessment and reasoned justification to support legislative proposals and no consultation, justification or impact assessment has been done.  The Commission does have powers to withdraw proposals or not to adopt amendments.  It could and should have chosen to do this in order that the treaty obligations were met.  It does have an unambiguous responsibility to uphold European law, including the treaties, and therefore it should have acted in a way that enabled it to do this.  Because it has the powers, it also has the responsibility to see the process is conducted lawfully.  The outcome I seek is not “to block the existing (revised) proposal”, but to see that the proposal is subject to the practices mandated in the treaties, which give citizens a role in law-making and provide checks on arbitrary decision-making. Legislation made with proper consultation and analysis is less likely to be disfigured with scientific and legal errors or beset by unintended consequences, and I am sure that was the intention of those drafting the treaties.

2. The European Parliament is not ‘sovereign’, rather it is constrained by the treaties, both in terms of policy and process

I argue above that my complaint was strictly about the Commission and the powers and responsibilities it has under the treaties.  However, you have argued that this impinges on the political work of the European Parliament.  In doing so, you have taken a deferential approach to the European Parliament’s ‘political role’. This mirrors the approach that administrators would take towards many national parliaments in order to recognise their ‘sovereignty’. However, that is far less obviously justified or necessary in the European Union and I can find no reason, other customary practice that you have done this.  The European Parliament is not sovereign in the same sense as most members state parliaments.  It is a directly elected debating and voting assembly embedded within a complex international agreement (the EU treaties). As a legislature, it plays a joint role with two other institutions, the Commission and Council, with relationships and responsibilities governed by the treaties. The existence of a directly elected Parliament should not provide ‘cover’ for another institution to avoid its responsibilities.   The Parliament is not unfettered – for example, it does not have the power of legislative initiative (other than via request to the Commission), yet it has created extensive brand new legislation through amendment.  Finally, the more recent developments of the treaty give an enhanced role to national parliaments, and they should also expect the European institutions to follow due process.  Given the requirements of the treaties and other institutions involved, the ‘political role’ of the European Parliament should not trump the treaties, but fit within them.

3.  The implications of your ruling is that there is no administrative responsibility for adherence to the treaties during the legislative process

Completely new legislation, amounting to 4,500 words or 12 pages, has been created for an important emerging industry with millions of consumers and thousands of businesses involved, and with many contentious views in the expert community.  There is a treaty requirement to consult, provide relevant analysis and subject proposals to scrutiny in national parliaments.  All of this has been sidestepped, even though it could have been done properly if the Commission acted within its powers. The corollary of your decision is that no-one has administrative responsibility and accountability for ensuring that this process operates in the way intended. It implies that interested parties should have no expectation that their rights to due process will be protected.  It is not hard to see therefore why the European legislature will be prone to expediently side-stepping its obligations.  Whilst the European Court of Justice provides a final challenge, an important purpose of good administration is to avoid the need for citizens to incur the expense, difficulty and delay of going to court to challenge unlawful decisions and process violations retrospectively.

To summarise, I am not an expert in this field, but I do feel strongly that it cannot be right to bring significant new legislation into being without any consultation or supporting analysis.  I believe that the treaties support that view and I have tried to show why in detail in my complaint.  I also think it is quite clear that the Commission has the responsibility and powers necessary to see that these treaty requirements are upheld. I cannot see why the parallel involvement of the European Parliament should stop this being a case of maladministration.

I hope you will look favourably at my request to reconsider based on the arguments above.

Yours sincerely

Clive Bates

Reply to the European Commission

Here is my reply….

1st February 2014

E-cigarettes and Tobacco Products Directive

Dear Mr Schnichels

Thank you for your reply of 29 January 2014 to my email of 23 October 2013.  I am grateful for your considered response.  However, the most substantive points I made in my 23 October message remain unaddressed.

In a closed process between October and December 2013, over 4,500 words of new legislation have been formulated to apply to e-cigarettes, which are a significant emerging technology with great public health potential.   Article 18 of the TPD is now for all practical purposes a new legislative proposal and could be written as a separate directive.  As I am sure you are aware, there are treaty obligations to consult on legislative proposals, to provide a reasoned justification, and to develop an impact assessment. It is the Commission’s responsibility to see that these requirements are met, but none of this has been done. The Parliament does not have the power of legislative initiative, but had rejected the essence of Commission’s proposal to regulate these products as medicines. At that point, the Commission should have withdrawn the proposals that related to e-cigarettes so that a proper legislative process could be followed, meeting the treaty requirements for consultation, supporting analysis and timely scrutiny by national parliaments.  The Commission is the ‘guardian of the treaties’ but appears to have sides-stepped these important treaty obligations when it had the power to do otherwise. This was the primary point of my letter of 23 October.

I was not trying to be obstructive – the treaties require consultation, reasoned argument and impact assessment for good reasons.  Though I support the Parliament’s rejection of medicines regulation for e-cigarettes in October, I do not think the text that emerged from the trilogue process in December is worthy of the EU legislature. Like many others, I believe it is disfigured by scientific misunderstandings, arbitrary and inconsistent measures and legal weaknesses. In my view, these would have been flushed out had there been proper supporting analysis and a more open Commission-led process in which the views of consumers, businesses and experts could have been considered properly.

I am sorry to say that after 23 October, I had given up communicating with the Commission. However, I accept your point that my letter may have appeared to be sent to you for information rather than for a response. I have subsequently elaborated at greater length on the technical and legal deficiencies of the directive, most recently in the attached letter to ENVI committee MEPs of 19 January 2014. I realise now that I should have also sent this to you and asked you for a response.

I would be grateful therefore, for your response on the following:

1. Why the TPD provisions related to electronic cigarettes were not withdrawn and recast as a new legislative proposal in order that the requirements of the treaties with respect to consultation, justification, impact assessment and scrutiny could be met.

2. A response to the criticisms I have made of the measures described in the attached letter in the appendix under the heading ‘unlawful measures’. I think an explanation and justification for the controversial provisions of this directive would be very helpful at this point, before the formal first reading.

It is a matter of regret that I am compelled to ask these questions and make these points almost in retrospect and as the legislative process is drawing to a close. It would be better in future if the proper process was followed and such widely held concerns were understood and anticipated in advance through consultation.

I look forward to receiving your reply.

Yours sincerely

Clive Bates

Appendix: Flawed science, irregular procedure, unlawful measures – letter to ENVI MEPs 19 January 2014

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26 thoughts on “Ombudsman says rogue process beyond her brief – I say ‘look again’”

  1. I had dreamed of a Federal Europe, with a sovereign parliament in Brussels to which a European government would be responsible.
    Vapers across Europe have now discovered the detail of how the current set-up actually works. It more than disgraces my dream, it insults due democratic process. It now appears to be the worst of all solutions.
    The jury’s still out, but the tone and brevity of the Commission’s response smacks of disdain for carefully composed argument supported by hundreds of specialists and millions of citizens.
    We will fight on but in the meantime,I for one would like to thank Mr Bates for his incredible hard work and dedication on our behalf. Thankfully he is not alone.

  2. Thank you Clive yet again for your astute and detailed communications to both the Ombudsman and Commission. I may not be a lawyer or a politician but to a layman like myself albeit with I hope a semblance of intelligence and common sense it is clear that the EU with regard to Art. 18 of the TPD simply hasn’t followed its own rules laid out in the legal treaties designed for the protection of its citizens. Failure to accept this fact will be tantamount to acknowledging that the treaties are not fit for purpose, which I fear could manifest into a widespread public opinion that if the EU can’t or won’t follow its own treaties and legal responsibilities, than what moral right or even legal basis has it to expect others to comply with other parts of the treaties. It’s a slippery slope and one that may well be dangerous for the EU on a wider scale.

  3. Your knowledge, eloquence and persistence in challenging the rights and wrongs regarding the EUs practice is excellent. Thank you.

  4. Jeroen Dehaene

    You have clearly struck a nerve. Would’t it be a good time for a lawsuit? You could launch a crowdfunding campaign to pay for legal costs, I would be happy to chip in.

    1. I think that it is our moral duty to do so. It is looking increasingly likely that the only way to get any justice whatsoever in this matter is to go to the courts. They have securely battened down the hatches and the tin hats are firmly in place. I too would be more than happy to chip in to any fund set up for this cause.
      Thank you again Clive for doing what many of us simply don’t have the wherewithal to do. We know what we want to do, but don’t know how to do it. I was fobbed off by the ombudsman and didn’t know how to take it forward. If court is the ultimate option then I feel that now is the time to do it. Even if it means toppling the whole shooting match like a pack of cards. They deserve it.

  5. Pingback: Clive Bates lodges complaint with EU Ombudsman

  6. Rob Fox-Freeman

    Many thanks for your tireless efforts in regard to the proposed EU regulation of e-cigarettes.
    It is sincerely appreciated by the many people who`s lives have been considerably improved by the availability of suitable devices.
    I have nothing useful to add that has not already been said many times I just wanted to pass on my sincere gratitude for your continued efforts in this matter.

    I think I speak for many when I say we are truly thankful for the role you are playing in bringing truth and common sense to what has become a tangled mess.

  7. Once again I want to thank you for standing up for what is right in such an eloquent way. There are many people; including myself; who regard your tireless work on article 18 as a lifeline in a very troubled period.

    The fact that you also use language that the layman understands is a real bonus also.

  8. Well done Clive. Your persistence gives encouragement to so many.

    It seems SANCO are not exactly strangers to fudging the rules, when looking closer at the aftermath of the Dalli debacle and the actions they took, apparently without informing the Commissioner.

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  10. Pingback: Anonymous

  11. Mr Clive Bates I have been following as much as I can understand politicaly. Manipulation of mine and many others future health is at risk.I must say I truly do admire your dedication to this issue surrounding such a simple invention as the electronic cigarette. My research on this device indicates it was rejected way back in the sixties when the idea was actually designed and created but nobody at all seemed to be interested. Fast forward to now. Everyone is interested as the new developers fine tune that same device. The ones seemingly more interested however are the very same regulators who back then dismissed concerns about health. Only after public outcry over the deception from Tobacco Company’s did anyone act responsible….working diligently with them of course.
    Back to the present. After forty years of smoking I have a fine tuned device in my hand. I’ve had it since Sept 2013. I haven’t had a cigarette since. I had to quit or die within 6 months of being told of my options. I found this better alternative, to smoking, chemo therapy and radiation. I regulate my smoking….oops vaping now. I quit smoking . You can tell them on my behalf, If they want to regulate somehting like this….keep the grubby hands of Tobacco and Pharma off of my device. It’s helping me live a better healthier quality of life right now.

    P.S. Since it also appears we have no Ombudsman to represent us any longer. What do we pay the salarys for?? Thanks you sir and God Bless

  12. A tale of ivory wind mills, monsters, knights and peasants

    Once Professor WHO decreed that it was very urgent to create a new creature and laid out his framework. In the sure knowledge of his own omniscience he has long forsake pesky irritants like rhyme or reason. His faithful devotees won’t question him anyway.

    The tink tank tought (they lost some h, since h might be bad for you and age is the ultimate killer) and consulted with the wise wizards of BigP. Those also help Professor WHO to know what he wants. Of course they have no ulterior motives and their advise is totally altruistical. Lady Rothberry can’t imagine anything else.

    When the tinkers proudly presented their pamphlet Lady Lackwit was put in charge of the mad scientists in the ivory wind mill. Her enthusiasm to show that she can be even more faithful to Professor WHO infected her grootesque gaggle and she gloated triumphantly. Word of warning that this creature might do more harm than good were ignored. The majority of the rogue rabble had no clue what this was all about. But they decided anyway. WHO knows, WHO cares.

    Meanwhile an increasing number of knights and peasants from the village of europe knock at the doors of the ivory wind mill and politely mentioned some dangerous flaws in the design. Only a few of the scientists were still sane and listened to the concerns of the lowly peasants. But their voices were ignored. WHO cares about a few wailing peasants. The syccophants–courtesy of BigP and BigT–keep telling Lady Lackwit and her grootesque gaggle that they are on the right track.

    And then a miracle happens. Not really great, but bareable. The reasonable had to concede a lot of sense to irrational regulation addicts. But it was done. Lady Lackwit was very disappointed. Her brain(?)child with the stylish straight jacket was rejected.

    Now the knights and peasants cheer that the scientist have seen at least some reason and their creation might wreck some havoc but won’t kill all. Well, it may be far from perfect, still reason enough to rejoice. A bit.

    But then the puppeteers enter the scene in the shadows and pull some of the scientists and the tink tank into the near impenetrable dungeon. And there–guided by the wise wizards of BigP and creepy crawlers of BigT–they twist and turn. WHO cares what the sane scientists have to say. The tinkers are only too happy to lend a helping hand in the twisting and pretzeling to fit some parts into the molds provided by BigP and other to the whims of BigT. After all, they both stand to profit as greed makes some strange bed fellows. WHO cares about a few voices of reason. The don’t stand a chance against massed might of ignorant ideology.

    Meanwhile the knights and peasants grow concerned by the bits and pieces that leak out.

    When Lady Lackwit triumphantly reappears she proudly presents the new creation: A Terrible Prudence Deficient monster. It isn’t quit as deadly as the tink tank’s original design or Lackwit’s baby, and it bears only a superficial resemblance to the mostly sane intermediate result. But it has a huge destructive potential. The syccophants–as directed by the creepy crawlers of BigT–are full of praise.

    Now the knight dons his shining armour and attacks the ivory wind mill. But he isn’t alone. The peasants are tired of being ignored. They pick up their pitch fork, torches and sonic screw drivers and gather at the ivory wind mill and get louder and angrier.

    Lady Lackwitt and her grootesque may have simply ignored the few voices of reason within, Don Quixote attacking the ivory wind mill of ignorance, and patient peasants’ pleas. But is she really sure her house of cards is solid enough the withstand the righteous fury of the growing masses?

    Time will tell. Maybe enough of the mad scientists will see the light, come to their senses, and stop the monster before it goes forth–subtly guided by BigP and BigT–to demolish the lives and hopes of the supposedly negligible peasants. If not, those peasants might surprise them. They are not all sheep content to be lead to the slaughter. Beware of the wind you sow. You might reap a storm you can’t weather.

  13. By the way – thanks for all the kind comments left here. But it is relentless, articulate and authentic pressure from vapers that is making the difference on this… we need a huge push in the next 3 weeks. Clive

  14. Clive what can we do now?

    This is a disaster- this Directive is completely immoral and nonsensical. All the people I know who have quit using e-cigarettes use devises and liquid strengths beyond those permitted by the new Directive. I personally know 2 people who have died from smoking including my Father. I have not smoked for 4.5 years due to devices that will be prohibited. I am very sad indeed. To think I used to be very pro EU

    Smoking Cessation Practitioner and Psychologist.

  15. Tom Teasdale

    Clive , This initiative appeared to die in mid-stream.What happened next ? Assuming you received no satisfaction would the next move not be the Court of Justice ? I see on their website an item called “Action for Annulment” which would appear to be the next logical step ? That is of course that the Commission is subject to any law but it’s own.


    1. Clive Bates

      Hi Tom – this what happened:
      1. I wrote making a complaint
      2. They said the complaint was beyond their mandate
      3. I tried to argue it is within their mandate because the EP is part of the treaties and not ‘sovereign’ and the Commission has responsibilities under the Treaties
      4. They didn’t accept the argument (or consider it really)
      5. I decided it was a waste of time going further

      You are right that the Article 20 or 2014/40/EC can be challenged in the European Court of Justice, and much of the argument I put to the Ombudsman is legally orientated and designed to encourage a case. There are two main legal arguments:

      1. Failed process and maladministration in formulating Article 20 -as argued in the complaint to the Ombudsman – failures include no consultation; no justification; no impact assessment and limited national parliament scrutiny.

      2. Unlawful measures -within Article 20 measure that fall foul of principles enshrined in the treaties or have inadequate legal base: the advertising ban; the strength limit; the small bottle sizes; the large and inaccurate warnings.

      It is beyond me to bring a challenge but I would very much welcome a challenge. The institutions have carried on as if the legally binding provisions of the treaties do not matter at all – just an obstacle to be sidestepped on the way to a deal, no matter how poor.

  16. Tom Teasdale

    Clive , Thank you for your prompt reply. It is very disappointing that you feel unable to go further.The TPD appears to have been very expertly designed to ban generation 2 and 3 vaping and with the big tobacco companies buying into lookalikes they are going to be in a perfect win/win situation , “we don’t mind if you vape or smoke because you will still be buying from us”. It is a sad fact that vapers or even the British public at large are so stiff-upper-lip even when they are being dumped on from a great height. We have so few champions but perhaps someone with some legal expertise may read this and decide to take up cudgels on our behalf.

  17. Tom, don’t get me wrong. I just think there is no further scope with the Ombudsman and any further work would be a waste of energy with an opportunity cost. What we need to do is: (1) build awareness of the flaws in the member states and new EP; (2) find avenues for challenge – including the ECJ but possibly other ways too.

    For what it’s worth I don’t think the TPD will ban 2/3gen… But there’s a fight to have in the implementing regulations – and opportunities


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