Tuesday, 4 May 2021

The tug o’ war for subcontracting in public procurement

 



 

Trygve Harlem Losnedahl, Doctoral Research Fellow at the University of Oslo, Centre for European Law.

 

Current interest

 

Brussels’ internal market watchdogs are communicating diverging views on subcontracting in public procurement.

 

In a large report on good practice for socially responsible procurement from May 2020, the Commission praises the Norwegian municipality of Skien’s model to combat social dumping and work related crime in public procurement.* Among the measures taken by the municipality is to limit the length of the contract chain to increase transparency and control, by requiring that every sub-contractor must be under the direct control of the main contractor.

 

At the same time, the EFTA Surveillance Authority (ESA), which corresponds to the Commission with regard to the EEA-states of Iceland, Liechtenstein and Norway, has sent a letter of formal notice to Norway claiming that a less restrictive national limitation on subcontracting chains is contrary to EU law. The Norwegian national rule applies to the construction and cleaning sectors, and sets the maximum length of three links in the contract chain, i.e. main contractor, sub-contractors and sub-sub-contractors. In the letter of formal notice, ESA leans heavily on a CJEU preliminary ruling from 26 September 2019, C-63/18 Vitali (see brief comments on the judgment by David McGowan in PPLR 2020 issue 1). Vitali was the first ruling from CJEU under the “new” procurement directives of 2014 regarding limitations on subcontracting. The ruling has apparently left quite some uncertainty.

 

In the following, I will give a brief background of the conflicting interests in limitations on subcontracting in public procurement, and case law up until the adoption of the new procurement directives of 2014. A presentation of the Vitali-case will then follow before I (critically) assess ESAs interpretation of the Vitali-case and ESA’s application of the Vitali-case on the Norwegian legislation.

 

The background – getting to the Vitali-case

 

To subcontract or not to subcontract, that has been the question in a number of judgments from the CJEU during the last thirty years (especially Cases C-389/92 Ballast Nedam Groep I, C-5/97 Ballast Nedam Groep II, C-176/98 Holst Italia, C-314/01 Siemens AG Österreich and ARGE Telekom & Partner, C-94/12 Swm Costruzioni 2 and Mannocchi Luigino). There has been a kind of tug-o-war where public buyers have been pulling for a right to limit subcontracting, for such reasons as preventing work related crime (Vitali) and quality control of the procured services (C-406/14 Wroclaw and C-94/12 Swm Costruzioni 2 SpA and Mannocchi Luigino DI). On the other side, supporters of unrestricted competition on the internal market have been pulling to reduce any limitations which could make public contracts less attractive for businesses. From an internal market perspective, limitations on subcontracting are seen as restrictions on the right to provide services. It has especially been seen as restraining small and medium sized enterprises (SMEs). Because SMEs are unable to compete for large public contracts, the only way for SMEs to get a slice of the larger public contracts is via the main contractor, i.e. via the main contractor’s right to subcontract.

 

The interpretation in favour of open competition reached a peak in the Wroclaw-case (C-406/14 Wroclaw), which was decided under the now repealed 2004-directive, and has similar facts as the Vitali-case. The Polish city Wroclaw initiated a procurement procedure for a roadworks contract. The tender specifications set out that tenderers were “obliged to perform at least 25% of the works covered by the contract using its own resources”. In other words, no more than 75% of the works for the specific contract could be subcontracted. Such a tender requirement was compatible with the Polish law at the time, and the Polish government argued that it was compatible with the 2004-directive article 26. Article 26 allowed contracting authorities to “lay down special conditions relating to the performance of a contract, provided that these are compatible with Community law and are indicated in the contract notice or in the specifications.” Article 26 also stated that such conditions relating to the performance of a contract could concern social and environmental considerations.

 

The CJEU found that the 25%-stipulation was contrary to EU law, i.e. the stipulation that the main contractor had to perform 25% of the works itself. The court ruled that the 2004-directive art. 48(3) provided a right to subcontract which was “in principle, unlimited” (para 33). As regards to the argument set out by the Polish government that the 25%-stipulation was a “special condition” allowed under article 26, the court rejected the view. The court stated that “since [the 25%-stipulation] is contrary to Article 48(3)”, the stipulation “is contrary to EU law”. As mentioned, the wording of art. 26 contains the reservation that special contract conditions have to be “compatible with Community law”. Thus, the court must be understood as concluding that since another article of the directive gives a right to subcontract, special conditions under art. 26 which limits that right, are incompatible with union law. As one can see, the court gave the general right to subcontract according to article 48(3) precedence over art. 26, and left art. 26 basically without any substance in relation to setting conditions which could limit subcontracting.

 

To further underscore the court’s view on the right to use subcontractors as a strongly protected right, AG Sharpston argued that in her view, there was only one permissible restriction on subcontracting (paras 31-34). Namely, when contracting authorities are not in a position to verify the technical and economic capacities of the subcontractors and those subcontractors are to perform essential parts of the public contract. The court had opened for such an exception in C‑314/01 Siemens and ARGE Telekom (para 45-46).

 

As I will comment on further below, the 2014-directives intended to put more emphasis on social, environmental and labour protective considerations, thus tilting the balance back from the unrestricted market position.

 

The Vitali-case

 

On 18 April 2016, the Italian legislature adopted legislation which set out that “any subcontracting shall not exceed 30% of the total amount of the contract for works, services or supplies” (para. 9). In other words, 70% of the contract value had to be performed by the main contractor, and there were no exceptions from this 30% limitation. The legislation’s main objective was to combat Italy’s many criminal organizations, which regularly made use of subcontracting in public contracts due to the reduced transparency and division of responsibility that comes with subcontracting. (Reduced transparency and control in contract chains is also highlighted in the Commission report on socially responsible procurement in a case study from Copenhagen (page 240).)

 

The Vitali-case (C‑63/18) treated a restricted tendering procedure launched by the publicly owned Autostrade per l’Italia SpA in August 2016, for the award of works on a motorway close to Milan. The contract value was roughly 85 million euros. Vitali SpA placed an offer in which more than 30% of the service was to be performed by subcontractors. Vitali was excluded since the offer did not comply with the new national 30%-limitation on subcontracting.

 

One does not have to be a trained lawyer to see the apparent discordance between the ruling of the Wroclaw-case and the new Italian 30%-limitation. It follows from the Vitali-judgment that the Italian legislature was aware of the conflict between the ECJ case law and the 30%-limitation, but that the legislature took the new 2014-directives as an opportunity to adopt measures which the former directives prohibited (paragraph 16). However, Italy’s view fell on deaf ears at the court. The court chose to render its judgment without an Opinion from the Advocate General.

 

The CJEUs main reasoning is found in paragraph 38 to 42 of the judgment. The court presents its conclusion (somewhat pre-emptively) in paragraph 38, that the Italian limitation “goes beyond what is necessary” to combat criminal organizations. In paragraph 39, the court presents the legal basis for the necessity condition, namely that article 18 of the directive obliges the contracting authority to observe the principle of proportionality. In paragraph 40 and 41, the court presents arguments for the disproportionality of the Italian 30%-limitation, before it in paragraph 42 argues that combating crime could be achieved with less restrictive measures, thus returning in paragraph 43 to the conclusion that “a restriction on the use of subcontracting such as that at issue in the main proceedings cannot be regarded as compatible with Directive 2014/24”.

 

Since ESAs proceedings against Norway is based on an interpretation especially of the Courts reasoning in paragraph 40 and 41, I cite them in full:

 

“40  In particular, as pointed out in paragraph 30 of the present judgment, the national legislation at issue in the main proceedings prohibits, in general and abstract terms, use of subcontracting which exceeds a fixed percentage of the public contract concerned, so that that prohibition applies whatever the economic sector concerned by the contract at issue, the nature of the works or the identity of the subcontractors. Furthermore, such a general prohibition does not allow for any assessment on a case-by-case basis by the contracting entity (see, by analogy, judgment of 5 April 2017, Borta, C‑298/15, EU:C:2017:266, paragraphs 54 and 55).

 

41 It follows that, in the context of national legislation such as that at issue in the main proceedings, in respect of all contracts, a significant part of the works, supplies or services concerned must be performed by the tenderer itself, failing which it will be automatically excluded from the procurement procedure, including where the contracting entity would be able to verify the identity of the subcontractors concerned and would take the view, after verification, that such a prohibition is not necessary in order to combat organised crime in the context of the contract in question.”

 

ESA’s (mistaken) reasoning

 

As mentioned, ESA has sent a letter for formal notice to Norway claiming that a national legislation which limits subcontracting chains, is contrary to EU/EEA-law. Norway has rejected ESA’s view, and ESA is currently assessing whether to instigate infringement proceedings before the EFTA court (the EFTA equivalent of the CJEU under the EEA Agreement). ESA states in the letter that it “relies on the judgment of the CJEU in Vitali to conclude that the necessity condition is not met”, i.e. that the Norwegian three chain limitation on subcontracting in public procurement is not necessary to combat work related crime.

 

In my opinion, ESA makes three mistakes in its interpretation and application of the Vitali-case. Firstly, ESA cherry-picks legal sources, not taking sufficiently into account amendments in the new directive. Secondly, ESA mistakes a characterization by the CJEU for criterion. Thirdly, ESA fails in its assessment of the similarities and differences between the Italian and the Norwegian rule. I will substantiate these three claims in the following.

 

Mistake 1: Cherry picking legal sources from the 2004-directive, and ignoring changes to the new directive

 

The “new” 2014-directives intended to open more for social, environmental and labour protective considerations, thus tilting the scale a bit back from pursuing the goal of an ever less restricted competition on the internal market. The Commission report addresses this in its introduction:

 

“The 2014 Public Procurement Directives make it clear that social aspects can be taken into account throughout the procurement cycle, from preliminary market consultation, through to the use of reservations and the light regime, and to social award criteria and contract performance conditions. Public buyers across Europe are starting to take advantage of these opportunities and demonstrate real social impact in their purchasing. Despite this, Member States are not yet fully exploiting the possibilities of public procurement as a strategic tool to support social policy objectives.”

 

The most important amendment of the directives in this regard, was the articles on principles of procurement. The “principles-clause” in the 2004/18-directive (article 2) only included the principle of equality, transparency and non-discrimination. When the EU legislator adopted the 2014-directives, it included in the new “principles-clause” (article 18 of the 2014/24 directive) a requirement that economic operators must comply with applicable obligations in the fields of environmental, social and labour law. In Tim SpA (C-395/18) paragraph 38, the CJEU underlined that “the Union legislature sought to establish” the requirement to comply with social, environmental and labour law as a principle of procurement law, “like the other principles”, i.e. equal treatment, non-discrimination, transparency, proportionality and prohibiting the exclusion of a contract from the scope of Directive 2014/24 or artificially narrowing competition. In other words, the CJEU understood (and accepted) the EU legislators’ view that these social principles should be on the same foot as the traditional inner-market principles.

 

Through article 18, the EU-legislator also clarified and limited what had been argued to be a (wide) principle of competition in public procurement law. (See especially Sanchez Graells “Public Procurement and the EU Competition Rules”, 2nd edition, 2015, and for an opposing view, Sue Arrowsmith, "Purpose of the EU Procurement Directives: Ends, Means and the Implications for National Regulatory Space for Commercial and Horizontal Procurement Policies, The," Cambridge Yearbook of European Legal Studies 14 (2011-2012): 1-48.) Article 18 now establishes that “[t]he design of the procurement shall not be made with the intention of excluding it from the scope of this Directive or of artificially narrowing competition.” By including “intention” and “artificially” in the wording of the “principles clause”, it is clear that the competition principle includes a subjective element. Even though it is not clear how this will be interpreted and operationalized, there must be an “intention” in some form by the public buyer to “artificially narrowing” competition.

 

Unlike the Commission report, ESA does not appear to take this development in legislation, nor new case law, into account. ESA does not comment on the development of the directive’s “principles clause”, nor on Tim SpA.

 

Quite to the contrary, ESA appears to cherry pick some of the more “competition friendly” case law from the CJEU, even though this case law concerns the now repealed 2004-directives and despise the fact there exists relevant case law concerning the 2014-directives. An example is that ESA chooses to cite Borta (C-298/15) when it argues that the Norwegian sub-contracting limitation puts unjustified restrictions on competition, even though the CJEU explicitly states in Borta that the new 2014-directive “cannot be taken into consideration in order to answer the questions referred” (para. 29). In Borta the CJEU strongly underscored the interest of competition, as it wrote that “it is the concern of the European Union to ensure the widest possible participation by tenderers in a call for tenders” (para. 48). As to relevant case law under the 2014-directive, Vitali itself addresses the goal of competition under 2014-directive, but the wording that CJEU uses in Vitali (para. 27) is that it is “in the interests of the European Union to ensure, in the field of public procurement, that the opening up of competition in tendering procedures is enhanced.” – in other words, a quite more reserved formulation.

 

ESA’s choosing and interpretation of legal sources, as opposed to the Commission’s, directs ESA to a view which excessively emphasizes the interest of unrestricted competition. This naturally affects ESA’s assessment of the proportionality of the Norwegian limitation.

 

Mistake 2: Characterization, not criteria

 

The other mistake is that ESA takes Vitali’s characterization of the Italian rule as “general and abstract” for criteria. Under the heading “Assessment of the necessity condition”, ESA begins:

 

“The Authority [i.e. ESA] relies on the judgment of the CJEU in Vitali to conclude that the necessity condition is not met… In reaching its conclusion, the CJEU relied on the fact that the [Italian] provision was in general and abstract terms, so that the prohibition applied whatever the economic sector concerned by the contract at issue, the nature of the works or the identity of the subcontractors, and that it did not allow for any assessment on a case-by-case basis by the contracting entity.

 

The Authority considers [the Norwegian provisions] to be materially similar to the provision in Vitali in that they are also in general and abstract terms and do not allow for any case-by-case assessment as to whether or not they are necessary to meet their objective.”

 

In the letter, ESA returns to an assessment of whether the Norwegian rule is set in “general and abstract” terms and if it allows for a proper case-by-case assessment. ESA holds that the Vitali-judgment establishes these as two criteria, which each is sufficient to conclude that at national limitation on the right to subcontract in public procurement is contrary to the proportionality principle, i.e. the necessity condition. The two criteria are (1) that the limitation is set “in general and abstract terms”, or (2) does “not allow for a case-by-case assessment”.

 

As to the first of these two, i.e. “general and abstract terms”, ESA has mistaken a characterization for criteria. When the CJEU writes that the Italian provision was set "in general and abstract terms", it must be understood as a characterization of the Italian percentage rule, not as a criterion for what types of provisions that are (always) considered to fall short of the necessity condition. In law making, general and abstract rules have been an ideal ever since the first (and less successful) codifications of the Enlightenment, such as the very detailed style of the Prussian ALR of 1794, with its 19 160 articles at a detailing level such as “to a library is to be counted the shelves and cabinets where the books are located” (Anners, Erik: ''europeiske rettens historie''. Utg. Universitetsforl.. 1983. Page 211-212).

 

More importantly, such a criterion would be quite impossible to apply. What does it mean that a rule is general or abstract? How do you measure generalness or abstractness of a provision? When does a rule tip to general and abstract from, I suppose, specific and concrete?

 

ESA does not try to develop or elaborate how it understands the criteria of “general and abstract”. ESA does however conclude that the Norwegian three-chain limitation is not “general”, since it is limited to the sectors of construction and cleaning services. Even so, ESA finds that the limitations “are otherwise in abstract terms”, as they “apply limitations on subcontracting based on the number of links in the chain without any further assessment of the nature of the works/services or the identity of the subcontractors.”

 

In my view, neither “general” nor “abstract” are criteria that the CJEU established to assess the necessity of limitations on subcontracting. What the CJEU did in Vitali was to look at the specific traits of the national limitation, to assess whether the limitation was necessary to achieve the limitation’s goal of combatting organized crime. The specific traits that the CJEU highlighted in Vitali paragraph 40, were that it “prohibits, in general and abstract terms, use of subcontracting which exceeds [1] a fixed percentage of the public contract concerned, so that that prohibition [2] applies whatever the economic sector concerned by the contract at issue, [3] the nature of the works or [4] the identity of the subcontractors. Furthermore, such a general prohibition [5] does not allow for any assessment on a case-by-case basis by the contracting entity…” [Numbers added to clarify the different elements].

 

As is often the case when the CJEU undertakes a proportionality assessment, it does not state whether each of the elements in its reasoning are to be understood as criteria that are necessary and/or sufficient for reaching the same conclusion in similar cases. As I have shown above, ESA understands “general and abstract terms” as criteria that are sufficient to conclude that a limitation on subcontracting falls short of the proportionality test. This leads ESA to an all too narrow approach to the necessity condition, instead of a comprehensive assessment where all relevant traits of a national limitation are taken into account.

 

Mistake 3: Not identifying the differences

 

I will here highlight three important differences between the Italian rule in the Vitali-case and the Norwegian rule, which ESA, as opposed to the Commission, misses and/or misjudges.

 

Firstly, the Italian rule applied to all sectors and all contracts. The Norwegian rule is limited to the construction and cleaning sectors, which are sectors especially troubled with work related crime. As shown above, ESA finds that this sectorial limitation does not make the Norwegian rule as “general” as the Italian, but since ESA means that the Norwegian rule is otherwise set in “abstract terms”, it concludes that it has similar shortfalls as the Italian rule. In my view, this is a misjudgement by ESA, which follows from ESA’s own form of Begriffsjurisprudenz, where “abstract” is mistakenly applied as a legal criteria. The differences in sectorial scope of the Norwegian and Italian rules is highly relevant in a normal proportionality assessment. Since the Norwegian rule only applies to two sectors, it is a less restrictive measure than the Italian pan-sectorial rule.

 

The second important difference is that the Italian rule prohibited main contractors from subcontracting more than 70 % of the value of the contract to subcontractors, whereas the Norwegian rule prohibited tenderers from allowing more than two links of subcontractors in the contract chain, i.e. the main contractor, subcontractors and sub-subcontractors. The Norwegian rule sets limitations neither on the value that can be sub-contracted nor on the total numbers for subcontractors or sub-subcontractors, just the length of each chain.

 

The Commission report highlights both these two traits of the Norwegian rule in its presentation of the procurement policy of the municipality of Skien. The municipality has established a main rule of maximum one level of subcontracting under the main supplier, i.e. an even more restrictive rule than the national two-level-limitation. The Commission report argues:

 

“While there is no restriction on the number of subcontractors or the proportion of the contract subcontracted, all subcontractors must be under direct control of the main contractor in order to avoid fragmentation of responsibility. This provision accounts for possible specialisation needs within a contract and does not impair access to public procurement by smaller operators.”

 

Under the Norwegian limitation, subcontractors can carry out 100 % of the works. That was impossible under Italian law, where 70 % had to be carried out by the main contractor itself. So, where the Italian rule effectively removes 70% of the public procurement market of large contracts from SMEs, the same cannot be said of the Norwegian rule. This is a major difference between the Norwegian and Italian limitations.

 

ESA does identify that the Italian provision “limited the proportion of the contract which could be subcontracted”, but ESA does not appear to see, or does not find it of relevance, that the consequence of such a 30 % proportional limitation is that 30 % of the public procurement market is made unavailable to SMEs.

 

The third important difference between the Norwegian and Italian rule, is that the Norwegian rule, unlike the Italian, has exceptions. Norwegian contracting authorities can accept longer supply chains in construction and cleaning contracts when it is “necessary to ensure adequate competition” and where unforeseen circumstances mean that more links are necessary for the contract to be performed. ESA dismisses the relevance of the second since it only addresses practical issues. ESA dismisses the first, since the condition for the exception is “to ensure adequate competition”. ESA means that the condition for the case-by-case assessment should not be conditioned upon the necessity of “adequate competition”, but on the necessity to achieve the objective of the restrictive measure, i.e. to combat work related crime. I agree with ESA that such an exception would better encompass the elements of the EU/EEA proportionality test. In the overall proportionality assessment however, I mean that the case-by-case possibility adds to the conclusion that the Norwegian limitation is in accordance with the proportionality principle in Article 18 of the directive.

 

Conclusion

 

The procedure is still ongoing between ESA and Norway. ESA required more information from Norway on the applicability of the exception, which was provided by the Government in mid-February. ESA is now assessing whether to file an infringement procedure before the EFTA court. Given the uncertainty ESA’s position has stirred up, at least in the EFTA-states, and especially among municipalities and labour unions, we can hope ESA actually files a lawsuit – and loses.

 

* The Report is by the Executive Agency for Small and Medium-sized Enterprises, published 4 June 2020, page 63-64. The report was updated in September 2020, where it is stated on page 63: “This updated version of the report omits a paragraph on subcontracting elements of this practice, which was included in the original version. The paragraph has been removed pursuant to doubts which arose with respect to the lawfulness of such elements.”

 

Photo credit: Erik den yngre, via Wikimedia commons

Friday, 30 April 2021

The new mandate of the European Commission’s ethics advisory body for science and new technologies. Further developments and larger context


 

Markus Frischhut*, Jean Monnet Professor, Chair on EU law, ethics and values, Innsbruck, Austria

 

Technical developments, especially biotechnological inventions in the 1990s, have led to increasing references in EU law to non-legal concepts such as ‘ethics’ (Frischhut, 2015). In November 1991, the European Commission had incorporated ethics into the decision-making process for research and technological development policies via the so-called ‘Group of Advisers on the Ethical Implications of Biotechnology’ (GAEIB). This advisory body was replaced in December 1997 by the ‘European Group on Ethics in Science and New Technologies’ (EGE), who’s mandate was extended to cover all areas of the application of science and technology. As of 2019 (see Fig. 1 below), the EGE has delivered 30 opinions (and various statements, etc.) throughout its five different mandates. Recently, the EGE has issued a joint opinion on pandemic preparedness and management (No 31), as well as on 19 March 2021 opinion No 32 on ethics of genome editing.



Figure 1: Overview EGE (source: Frischhut, 2019, p. 102)

The analysis of these 30 opinions in terms of the ‘normative theories’ (deontology, consequentialism, virtue ethics) they referred to (see Pirs & Frischhut, 2020; Frischhut, 2019, p. 108) and a detailed analysis of various provisions of EU law (primary, secondary, case-law, etc.) referring to ‘ethics’ (and ‘morality’) led to the identification of the ‘Ethical Spirit of EU law‘, a book published open access in 2019.

Beyond the field of science and new technologies, the European Parliament is currently picking up the idea also addressed by Commission President von der Leyen in July 2019, supporting “the creation of an independent ethics body common to all EU institutions”. While ethics in public administration (of both members and staff) deals with different challenges compared to new technologies, there are nonetheless some underlying similarities. Several analyses of (public administration) ethics committees, both with regard to the EU but also worldwide, have highlighted the importance of the institutional setting of these bodies (cf. Alemanno, 2020; Frischhut, 2020). As the European Commission has recently adopted the 6th mandate of the EGE, in the following this new setting shall be compared to the previous 5th mandate from 2016 (for a first analysis see the following Twitter thread), in order to address some key changes.

The timeframe of the mandates has been limited so far to approx. five years (see Fig. 1). In this regard the new mandate brings a remarkable change insofar as it sets up the EGE for an “indefinite period” (recital 4). While the number of members of the EGE has constantly increased from six to fifteen persons (see Fig. 1), the term of EGE membership has increased from two (1st mandate) to five years (4th mandate). However, the previous 5th mandate (from 2016) has followed a different approach, which resembles the EUCO President’s term of office, that is to say splitting up five years into two times 2.5 years (Art 15(5) TEU). The new mandate now increases the term to three years (Art 5(6)), which can be qualified as a small turning point. No changes occurred regarding a second (or third) term of office of EGE members, as such a term is (still) renewable up to a maximum membership of three terms. Hence, the slight increase from 2.5 to three years membership is no big step forward, while the mandate for an ‘indefinite period’ is clearly innovative. However, this change is not set in stone, as this current Commission Decision (EU) 2021/156 (= 6th mandate) can be changed by a next Commission President in any direction.

EGE members are not appointed by the college of the European Commission, but by the Commission President. Since 2000, the EGE was part of the ‘Bureau of European Policy Advisers’ (BEPA), a Directorate General (DG) of the Commission, reporting directly to the Commission President. Under the 5th mandate, the EGE was docked with DG Research and Innovation. While this makes sense content-wise, this can be also be qualified as a downgrading. The new 6th mandate replaces DG Research with the ‘responsible Commission department’, which can be seen as a more flexible solution against the background of the ‘indefinite period’ of this mandate.

Another difference concerns the qualification criteria that an EGE member must meet. While these criteria have been mentioned in the 5th mandate (Art 4(6)), under the new 6th mandate they are now ‘outsourced’ to the call for applications (Art 5(1)). For this very reason, it is worth briefly considering the old criteria (in the following paragraph, Articles refer to the 5th mandate). According to Art 4(6)(a) the composition of the EGE shall allow for “independent advice of the highest quality […], combining wisdom and foresight”, two criteria that should generally receive more attention. The members had to be “internationally recognised experts, with a track record of excellence and experience at the European and global level” (Art 4(6)(b)). In terms of the interdisciplinarity necessary for such an ethics advisory body, the mandate required the members to “reflect the broad cross-disciplinary scope of the group's mandate, embracing philosophy and ethics; natural and social sciences; and the law” (Art 4(6)(c)). Another qualification criterion, which makes sense, is membership in national ethics committee (Art 4(6)(e)), to establish a vertical connection between the EGE and national ethics committees. The call for applications was published on the relevant Commission website two days after the publication of the 6th mandate in the Official journal (i.e. 10 February 2021) and closed on 22 March 2021. This call for applications from 12 February has referred to the EGE’s “crucial role in the embedding of ethics in EU policies and in furthering the Union as a community of values” (pt. 1) and comprises the above-mentioned qualification criteria of the 5th mandate (pts. 2.1 to 2.3, pt. 4).

The 6th mandate (recital 7) continues with a well-established tradition of an “independent Identification Committee” for the selection process of EGE members (see also pt. 5 of the call for applications), a phenomenon which has been successfully applied at the CJEU (Art 255 TFEU). Advocate General Bobek mentioned that “the 255 Panel became widely regarded as a success story in terms of guaranteeing a greater quality of Union courts' appointees” (Bobek, 2015, p. 280).

In 2005, there was criticism that some EGE members were too closely linked to the Catholic Church (Plomer, 2008, p. 844, Frischhut, 2019, p. 103). That is why both the 5th as well as the new 6th mandate emphasize that EGE members are “appointed in their personal capacity, acting independently and in the public interest” (emphases added) and have to inform the responsible Commission department of “any conflict of interest which might undermine their independence” (recital 7; Art 4(3)-(4)).

As Plomer has emphasized (2008, p. 846), the EGE does not have a ‘president’, but a ‘chairperson’ only. While the first mandate had referred to a chairperson, the second mandate ‘upgraded’ this job to an EGE ‘president’, with mandates No 3 to 5 again only referring to a ‘chairperson’ (Frischhut 2019, p. 104). While from a legal perspective this might not be a huge difference, the symbolic meaning of such wording should not be underestimated. The new 6th mandate does not bring any change in this regard when it also refers to a chairperson (Art 6). An adaptation to the already existing reality is brought by the new Article 6 in that now up to two deputies are foreseen (currently Herman Nys and Siobhán O'Sullivan). The same holds true for Art 7(6) mentioning that opinions “shall be forthwith published and made available on the EGE website” (opinions, etc. already now freely available on the following EGE website).

 

The task of the EGE has been, as already mentioned, “to advise the Commission on ethical questions relating to sciences and new technologies and the wider societal implications of advances in these fields” (Art 2 of the 5th mandate). The new mandate widens this mission by referring to the “task of the EGE […] to provide the Commission with independent advice on questions where ethical, societal and fundamental rights dimensions intersect with the development of science and new technologies” (Art 2 of the 6th mandate, emphasis added). Recital 6 emphasizes that the “EGE’s tasks are essential for the integration of fundamental rights and values into Union policies in all areas of scientific and technological innovation” (emphasis added). These references to fundamental rights and values (cf. also recital 1) correspond to the practice of EGE opinions, where both fundamental rights and the EU’s common values have been frequently referenced (see Pirs & Frischhut 2020; Frischhut 2019, p. 114). As mentioned above, the recent call for applications referred to the EGE’s role in the context of the “Union as a community of values” (pt. 1).

Over all, the new (6th) and the previous (5th) mandate do not differ substantially. Some details have been further clarified and the mandate has been restructured (for instance, the old Article 4 ‘membership & appointment’ has been split up into distinct articles (Article 4 on membership, and Article 5 on the selection process), which adds more clarity to this structure (other examples mentioned in the Table below). This Table annexed to this contribution compares the two mandates and links the relevant parts. This comparison also shows, which items are not covered by the new mandate, such as the report on the activities of the EGE, which had to be produced “under the responsibility of the chairperson before the end of its mandate” (Art 5(12) 5th mandate).

To summarize, we can observe a lot of continuity, as well as some new elements, such as the indefinite period, 3 years instead of 2.5 years of membership, and the outsourcing of qualification criteria to the call for applications. It would have been desirable to still to refer to the EGE as an “independent, pluralist and multidisciplinary” body (cf. Art 4(4) of the 5th mandate). At least these characteristics are mentioned in the recent call for applications (pt. 1). As space precludes covering all differences between the two mandates, the table below shall provide additional information.

What is regulated and emphasized without changes in the mandates themselves is the absence of conflict of interest. An advisory body dealing with ethics also has to adhere to ethical standards with regards to its own members, as can also be seen from ethics advisory bodies outside the field of science and new technologies (Demmke, et al. 2020; Frischhut, 2020). Art 5(2) of the new mandate now provides for rules on ‘declaration of interests’ (DOI); see also the recent call for applications (pt. 4 and annexes). Such advisory bodies have not only to be independent in terms of no conflict of interest of their members, but also independent regarding the institutional framework, they are operating in. One difference of a science and new technologies advisory body and ethics committees in the field of public administration is their composition. While ‘pure expertise’ might be less of an issue in case of a body like the EGE, the composition of ethics committees checking the behaviour of members and staff of public administration is clearly trickier.

While the activity of bodies such as the EGE is advisory by nature, it makes perfect sense to allow them to issue opinions or statements on issues they themselves deem important. While it might not have been a big issue so far, the wording “ethical analyses suggested on the own initiative of the EGE, shall be agreed by the responsible Commission department” (Art 7 (3), emphasis added) might sound like a veto right. Likewise, the current AFCO draft report “on strengthening transparency and integrity in the EU institutions by setting up an independent EU ethics body” also suggests that “that the EU Ethics Body should have the power to initiate procedures” (pt. 8).    

*As mentioned on p. 12 of this draft report, the EP rapporteur has received input on the preparation of this draft report, amongst others, from the author of this blog contribution.

 

Barnard & Peers: chapter 9

 


 

Commission Decision (EU) 2021/156 of 9 February 2021 renewing the mandate of the European Group on Ethics in Science and New Technologies

Commission Decision (EU) 2016/835 of 25 May 2016 on the renewal of the mandate of the European Group on Ethics in Science and New Technologies

Analysis and comments

OJ L 46, 10.2.2021, pp. 34–39

OJ L 140, 27.5.2016, pp. 21–25

 

 

 

 

(1)

Article 2 of the Treaty on European Union enshrines the values on which the Union is founded. Article 6 of the Treaty on European Union accords the Charter of Fundamental Rights of the European Union the same legal value as the Treaties and provides that fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, constitute general principles of Union law.

(1)Article 2 of the Treaty on European Union enshrines the values on which the Union is founded and Article 6 accords the Charter of Fundamental Rights the same legal value as the Treaties and establishes that fundamental rights shall constitute general principles of Union law.

Same content, but new text longer (ECHR, etc.)

(2)

On 20 November 1991, the Commission decided to incorporate ethics into the decision-making process for Community research and technological development policies by setting up the Group of Advisers on the Ethical Implications of Biotechnology (‘GAEIB’).

(2)On 20 November 1991, the European Commission decided to incorporate ethics into the decision-making process for Community research and technological development policies by setting up the Group of Advisers on the Ethical Implications of Biotechnology (‘GAEIB’).

(almost) identical

(3)

On 16 December 1997, the Commission decided to replace the GAEIB by the European Group on Ethics in Science and New Technologies (‘EGE’) extending the group’s mandate to cover all areas of the application of science and technology. The EGE’s mandate was subsequently renewed, most recently by Commission Decision (EU) 2016/835 (1) for a period of 5 years, which ends on 28 May 2021.

(3)The Commission decided on 16 December 1997 to replace the GAEIB by the European Group on Ethics in Science and New Technologies (‘EGE’) extending the Group's mandate to cover all areas of the application of science and technology. The EGE's mandate was subsequently renewed, most recently by the Commission Decision 2010/1/EU (1). It is now appropriate to renew the mandate for a period of 5 years and subsequently to appoint the new members.

(almost) identical; but now not 5 years renewal of mandate

(4)

It is appropriate to renew the mandate of the EGE beyond that date, for an indefinite period, and to appoint the new members, in compliance with Commission Decision C(2016) 3301 final of 30 May 2016 establishing horizontal rules on the creation and operation of Commission expert groups (‘the horizontal rules’).

 

New, indefinite period

 

New, Decision expert groups

(5)

The EGE should continue to provide independent advice at horizontal level to the Commission on all Union policies and legislation where ethical, societal and fundamental rights dimensions intersect with the development of science and new technologies, either at the request of the Commission or on its own initiative and in agreement with the Commission.

(4)The EGE is tasked with providing ethical guidance to the European Commission either at the request of the Commission or on its own initiative and upon agreement with the Commission.

Not attributed to one DG only (horizontal level)

 

Emphasizing independent advice

 

Broader: all policies, etc., where intersection with science and new technologies

 

How work can be started: similar

The Commission may draw the EGE’s attention to issues considered by the European Parliament and the Council to be of major ethical importance.

The Commission may draw the EGE's attention to issues considered by the European Parliament and the Council to be of major ethical importance.

Identical

(6)

The EGE’s tasks are essential for the integration of fundamental rights and values into Union policies in all areas of scientific and technological innovation. To this end, the EGE should develop in-depth analyses and specific recommendations addressing major ethical challenges in opinions and statements.

 

Emphasizing values

 

More detailed

(7)

The EGE should be composed of highly qualified and independent experts, appointed in their personal capacity, acting independently and in the public interest. For their selection the Commission should be assisted by an independent Identification Committee. Selection should take place on the basis of objective criteria, following an open call for applications.

 

New (at least emphasizing it here in the preamble)

(8)

Rules on disclosure of information by members of the EGE should be laid down.

(5)Rules on disclosure of information by members of the group should be laid down.

(almost) identical

(9)

Personal data should be processed in accordance with Regulation (EU) 2018/1725 of the European Parliament and of the Council (2).

(6)Personal data should be processed in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council (2).

Same, only new Regulation

(10)

In the interest of clarity and legal certainty, Decision (EU) 2016/835 should be formally repealed with effect from 28 May 2021. With regard to the need to review the provisions of the selection process and meeting expenses prior to the expiry of the mandate under Decision (EU) 2016/835, the relevant provisions should apply as from the day of adoption of this Decision,

(7)Decision 2010/1/EU should be repealed,

Different

 

 

 

Article 1 Subject matter

 

The European Group on Ethics in Science and New Technologies (‘EGE’) is set up.

Article 1 Mandate

 

The mandate of the European Group on Ethics in Science and New Technologies, hereafter referred to as ‘EGE’, is renewed for a period of 5 years.

Not referring to mandate, as not just a 5 years renewal

 

 

 

Article 2 Task

 

The task of the EGE shall be to provide the Commission with independent advice on questions where ethical, societal and fundamental rights dimensions intersect with the development of science and new technologies, either at the request of the Commission or on its own initiative, expressed through its chairperson and agreed with the responsible Commission department.

 

In particular, the EGE shall:

 

identify, define and examine ethical questions raised by developments in science and technologies;

(b)          provide guidance critical for the development, implementation and monitoring of Union policies or legislation in the form of analyses and recommendations, presented in opinions and statements, that shall be oriented towards the promotion of ethical Union policymaking, in accordance with the Charter of Fundamental Rights of the European Union.

Article 2 Task

 

The task of the EGE shall be to advise the Commission on ethical questions relating to sciences and new technologies and the wider societal implications of advances in these fields, either at the request of the Commission or on request by its chair with the agreement of the Commission services. The Group therefore shall:

 

(a)          identify, define and examine ethical questions raised by developments in science and technologies;

 

(b)          provide guidance in the form of analyses and recommendations that shall be oriented towards the promotion of ethical EU policymaking, with due regard to the Charter of Fundamental Rights of the European Union.

Broader

 

Emphasizing independence

 

How work can be started: similar

 

EC department instead of EC services

 

Lit. a: identical

 

Lit. b: defined, what guidance is developed for | same: analyses and recommendations

 

Clarified: “presented in opinions and statements”

 

 

 

Article 3 Consultation

 

The Commission may consult the EGE on any matter related to the tasks set out in Article 2. In that context, the Commission may draw the EGE’s attention to issues considered by the European Parliament and the Council to be of major ethical importance. The EGE shall be consulted as required by other expert bodies established by the Commission on matters related to the tasks set out in Article 2.

Article 3 Consultation

 

The Commission may consult the group on any matter in the remit referred to in Article 2. In that context, the Commission may draw the Group's attention to issues considered by the Parliament and the Council to be of major ethical importance.

Almost identical: third sentence new (i.e. EGE can be consulted by other expert bodies)

 

EGE instead of Group

 

 

 

Article 4 Membership

1.   The EGE shall be composed of up to 15 members.

Article 4 Membership — Appointment

 

1.   The EGE shall have up to 15 members.

Title: now membership in Art 4, appointment in Art 5 (called selection process), hence one article split up into two

2.   Members shall have competence in the tasks set out in Article 2.

Members shall have competence in the remit referred to in Article 2.

 

3.   Members shall be individuals appointed in a personal capacity.

2.   Members shall serve in a personal capacity.

 

4.   Members shall act independently and in the public interest. Members shall inform in a timely manner the responsible Commission department, in the Directorate-General for Research and Innovation, of any conflict of interest which might undermine their independence.

They shall advise the Commission in the public interest and independently from any outside influence. Members shall inform the Commission in due time of any conflict of interest which might undermine their independence.

Similar

 

Contact: EC, not only DG Research

5.   Members who are no longer capable of contributing effectively to the EGE’s deliberations, who, in the opinion of the responsible Commission department, do not comply with the conditions set out in Article 339 of the Treaty on the Functioning of the European Union or who resign, shall no longer be invited to participate in any meetings of the group and may be replaced for the remainder of their term of office by a person appointed by the President of the Commission from the reserve list referred to in Article 5(7).

11.   Where a member is no longer capable of contributing effectively to the work of the EGE, or resigns or does not comply with the conditions set out in Article 339 of the Treaty on the Functioning of the European Union, the President of the Commission may appoint a replacement member from the reserve list, for the remaining duration of the original member's term of office.

More detailed (no longer be invited to participate)

 

Decision in either case to be taken by Commission President

 

 

 

Article 5 Selection process

 

1.   The selection of the EGE’s members shall be carried out following a public call for applications to be published on the Register of Commission expert groups and other similar entities (‘the Register of expert groups’). In addition, the call for applications may be published through other means, including on dedicated websites. The call for applications shall clearly outline the selection criteria, including the required expertise in relation to the work to be performed. The minimum deadline for applications shall be four weeks.

[Art 4] 7.   The selection of the EGE members will be made on the basis of an open call for expression of interest, specifying the modalities for submitting a complete application. The Commission shall publish the call on the Europa website. A link from the Register of Commission expert groups and other similar entities (‘the register of expert groups’) to the Europa website will also be ensured.

 

[Art 4] 8.   Nominations may be submitted, provided the nominee follows the modalities for submitting a complete application.

 

[Art 4] 9.   The list of EGE members shall be published by the Commission in the Register of expert groups.

 

[Art 4] 6.   The following factors and criteria will be taken into account for the selection of candidates for membership of the Group:

 

(a)          The composition of the group shall ensure that independent advice of the highest quality can be provided, combining wisdom and foresight. The credibility of the group shall be built on the balance of qualities amongst the women and men who make it up, and they shall collectively reflect the breadth of perspectives across Europe. Gender balance shall be strictly taken into account, and due consideration accorded to age balance and geographical distribution.

(b)          The Members of the group shall be internationally recognised experts, with a track record of excellence and experience at the European and global level.

(c)           The Members shall reflect the broad cross-disciplinary scope of the group's mandate, embracing philosophy and ethics; natural and social sciences; and the law. However, they shall not perceive themselves as representatives of a particular discipline, worldview, or line of research; they shall have a broad vision which collectively reflects an understanding of important ongoing and emerging developments, including inter-, trans-, and multi-disciplinary perspectives, and the need for ethical advice at the European level.

(d)          Beyond their proven reputation, the membership shall collectively bring experience in providing ethical advice to policymakers, acquired across a broad range of Member States, and at European and international levels.

(e)          The group shall include members with experience in bodies such as advisory councils and committees, government advisors, national ethics councils, universities and research institutes. It may be valuable to the group to include members who have gained experience in more than one country and members from outside the European Union.

Now ‘public call for applications’, strengthening the EC Register of expert groups (preciously: ‘ open call for expression of interest’)

 

In short: qualification criteria not in this Decision, but outsourced to ‘call for applications

2.   Individuals applying for membership shall disclose any circumstances that could give rise to a conflict of interest. In particular, the responsible Commission department shall require those individuals to submit a declaration of interests (‘DOI’) form on the basis of the standard DOI form for expert groups, together with an updated curriculum vitae (CV), as part of their application. Submission of a duly completed DOI form shall be necessary in order to be eligible to be appointed as a member in a personal capacity. The conflict of interest assessment shall be performed in compliance with the horizontal rules.

 

New DOI rules

3.   The Members of the EGE shall be appointed by the President of the Commission, on the basis of a proposal from the member of the Commission responsible for the Commission department providing the secretariat of the EGE, from amongst specialists with competence in the areas referred to in Article 2 and who have responded to the call for applications.

[Art 4] 3.   Members shall be appointed by the President of the Commission on the basis of a proposal from the Commissioner in charge of Research, Science and Innovation, following the submission of their candidacy to a call for expression of interest for membership of the EGE and a selection process overseen by an Identification Committee, based on the criteria set out in paragraphs 4 and 6 of this Article.

Moving from DG Research in a more flexible way to ‘responsible department’

4.   The selection process shall be overseen by an Identification Committee. In particular, the Identification Committee shall assist the Commission in identifying and selecting potential members of the EGE and in assessing their availability and willingness to serve as such. The Identification Committee shall consist of three members, appointed by the member of the Commission responsible for the Commission department providing the secretariat of the EGE and supported by a secretariat provided by the responsible Commission department. The Identification Committee shall make an assessment of the eligible candidates from the list submitted by the responsible Commission department on the basis of an initial assessment of all applications against the selection criteria. The Identification Committee shall submit its recommendation to the member of the Commission responsible for the Commission department providing the secretariat of the EGE.

[Art 4] 4.   When proposing the composition of the EGE, the Identification Committee shall aim at ensuring, as far as possible, a high level of expertise and pluralism, a geographical balance, as well as a balanced representation of relevant know-how and areas of interest, taking into account the specific tasks of the EGE, the type of expertise required and the response to the call for expression of interest. The EGE shall be independent, pluralist and multidisciplinary.

More detailed, to some extent codifying the current practice (on the three current members, see the EGE website)

 

Not mentioning now “independent, pluralist and multidisciplinary”

5.   Where selecting members of the EGE, the responsible Commission department shall aim at ensuring, as far as possible, a high level of expertise and pluralism, a geographical and gender balance, as well as a balanced representation of relevant know-how and areas of interest, taking into account the tasks of the EGE set out in Article 2, the type of expertise required and the response of the candidates to the call for applications.

 

Gender balance: before in Art 4(6)(a)

6.   Members shall be appointed for a term of maximum 3 years. They shall remain in office until replaced or until the end of their term of office. Their term of office may be renewed. Membership of the EGE shall be limited to a maximum of three terms.

[Art 4] 5.   Each member of the EGE shall be appointed for a term of 2 ½ years. At the end of a term, his or her appointment may be renewed. Membership of the EGE shall be limited to a maximum of three terms.

Now 3 years, instead of 2.5 years

 

Renewal and maximum of three terms unchanged

7.   The responsible Commission department shall establish a reserve list of suitable candidates that may be used to appoint members’ replacements. The responsible Commission department shall ask applicants for their consent before including their names on the reserve list.

[Art 4] 10.   Suitable candidates who are not appointed pursuant to paragraph 2 of this Article, shall be placed on a reserve list. The President of the Commission may appoint members from the reserve list.

 

Now responsible Commission department, instead of EC President

 

 

 

Article 6 Chair

 

The EGE shall elect a chairperson and one or two deputy-chairpersons from amongst its members for the duration of their term of office by simple majority.

[Art 5] 2.   The EGE shall elect a chairperson and a deputy-chairperson from among its members for the duration of their term by a simple majority.

New: one or two deputies (so far also two deputies, i.e. Herman Nys and Siobhán O'Sullivan)

 

 

 

Article 7 Operation

 

1.   The responsible Commission department, acting in close cooperation with the EGE’s chairperson, shall be responsible for coordinating and organising the work of the EGE and for providing its secretariat.

Article 5 Operation

 

1.   The Directorate-General for Research and Innovation, acting in close cooperation with the EGE's chairperson, shall be responsible for coordinating and organising the work of the EGE and for providing its Secretariat.

Responsible EC department, instead of DG Research

 

Rest identical

2.   Commission officials from other Commission departments with an interest in the proceedings may request to attend meetings of the EGE and its sub-groups.

 

 

3.   The EGE Work Programme, including ethical analyses suggested on the own initiative of the EGE, shall be agreed by the responsible Commission department. Each request for an ethical analysis shall include the parameters of the requested analysis. The Commission shall, when seeking the advice of the EGE, set a time limit for the analysis.

[Art 5] 4.   The EGE Work Programme, including such ethical analyses suggested on the own initiative of the EGE, shall be agreed by the Commission. Each request for an ethical analysis shall include the parameters of the requested analysis. The Commission shall, when seeking the advice of the EGE, set a time limit within which such advice shall be given.

Now more specific, from EC as such to ‘responsible EC department’

 

Time limit in either case to be set by EC

4.   EGE opinions shall include recommendations. They shall be based on an overview of the state of the art of the sciences and technologies concerned and a thorough analysis of the ethical issues at stake. Relevant services of the Commission shall be informed of the recommendations produced by the EGE.

[Art 5] 5.   EGE Opinions shall include a set of recommendations. They shall be based on an overview of the state of the art of the sciences and technologies concerned and a thorough analysis of the ethical issues at stake. Relevant services of the Commission shall be informed of the recommendations produced by the EGE.

Identical

5.   The EGE shall operate in a collegial way. The working procedures, based on the rules of procedure, shall seek to ensure that all members may take an active role in the activities of the group. In principle, the group shall adopt its opinions and statements by consensus. In the event of a vote, the outcome of the vote shall be decided by simple majority of the members. The members who have voted against or abstained shall have the right to have a document summarising the reasons for their position (as a ‘minority opinion’) annexed to the opinion or statement together with the name(s) of the dissenting member(s).

[Art 5] 6.   The EGE shall operate in a collegial way, seeking consensus among its members. The EGE shall adopt its Rules of Procedure on the basis of the standard Rules of Procedure for expert groups with the agreement of the Commission's representative. The working procedures shall seek to ensure that all members take an active role in the activities of the group.

 

[Art 5] 8.   The Group shall endeavour to reach consensus. However, where an Opinion is not adopted unanimously, it shall include any dissenting point of view (as a ‘minority opinion’) together with the name(s) of the dissenting Member(s).

Unchanged: requiring active role of members

 

Still: by consensus

 

Clarification that voting requires simple majority

6.   Each opinion shall be transmitted to the President of the Commission or to a representative designated by the President. Each opinion shall be forthwith published and made available on the EGE website and be transmitted to the European Parliament and to the Council after its adoption by the EGE.

[Art 5] 8 [continued from above]

 

The Opinion shall be transmitted to the President of the Commission or to a representative designated by the President. Each Opinion shall be forthwith published and transmitted to the European Parliament and to the Council of the European Union after its adoption.

Now specifying that publication on EGE website (already practice so far)

7.   The meetings of the EGE shall, in principle, be held on Commission premises, in accordance with the modalities and the calendar fixed by the responsible Commission department. The EGE shall meet at least six times during a 12-month period, representing at least 12 working days a year. Further meetings may be organised when necessary, in agreement with the responsible Commission department.

[Art 5] 7.   The meetings of the EGE shall normally be held on Commission premises according to the modalities and the calendar fixed by the Commission. The EGE should meet at least six times during a 12-month period involving around 12 working days a year. Further meetings may be organised when necessary, in agreement with the Commission's representative.

 

 

(almost) identical

8.   For the purpose of the preparation of EGE analyses and within the limits of the available resources, the responsible Commission department may initiate studies in order to collect all necessary scientific and technical information and establish close links with representatives of the various ethics bodies in the Member States and in third countries.

[Art 5] 7 [continued from above]

 

For the purpose of the preparation of EGE analyses and within the limits of the available resources, the Commission's representative may:

 

           Invite experts and representatives of relevant NGOs or representative organisations when appropriate for an exchange of views on an ad hoc basis. The Commission may also enlist external experts to participate in the work of the EGE on an ad hoc and temporary basis should it be deemed necessary to cover the wide spectrum of ethical questions related to advances in science and new technologies.

 

          Initiate studies in order to collect all necessary scientific and technical information.

           Allow for working groups to be set up to consider specific issues.

           Establish close links with representatives of the various ethics bodies in the Member States and in third countries.

 

 

Now shortened

 

Does not mention working groups (on sub-groups, see now Art 8, on invited experts now Art 9)

9.   The responsible Commission department shall organise a public round table in order to promote dialogue and improve transparency for each opinion of the EGE. The EGE shall establish close links with the Commission departments concerned by issues on which the EGE is working.

[Art 5] 7 [continued from above]

 

Moreover, the Commission shall organise a public round table in order to promote dialogue and improve transparency for each Opinion that the EGE produces. The EGE shall establish close links with Commission departments concerned by issues the Group is working on.

Almost identical

10.   Where operational circumstances require that advice on a particular subject be given more quickly than the adoption of an opinion would allow, short statements or other forms of analyses can be issued, to be followed if necessary by a fuller analysis in the form of an opinion, while ensuring that transparency is respected as for any other opinion. Statements shall be published and made available on the EGE website. As part of its Work Programme, in agreement with the responsible Commission department, the EGE may update an opinion, if it considers it necessary.

[Art 5] 9.   If operational circumstances require that advice on a particular subject be given more quickly than the adoption of an Opinion would allow, short Statements or other forms of analyses can be produced, to be followed if necessary by a fuller analysis in the form of an Opinion, while ensuring that transparency is respected as for any other Opinion. Statements will be published and made available on the EGE website. As part of its Work Programme, in agreement with the Commission's representative, the EGE may update an Opinion if it deems it necessary.

Identical (only adaption of ‘responsible EC department’)

 

 

On short statements and other form of analyses

11.   The EGE's discussions shall be confidential. In agreement with the responsible Commission department, the EGE may, by a simple majority of its members, decide to open its deliberations to the public.

[Art 5] 10.   The EGE's discussions shall be confidential. In agreement with the Commission's representative, the EGE may, by a simple majority of its members, decide to open its deliberations to the public.

Identical (only adaption of ‘responsible EC department’)

 

12.   Minutes on the discussion on each point on the agenda and on the opinions delivered by the EGE shall be meaningful and complete. Minutes shall be drafted by the secretariat under the responsibility of the chairperson.

 

New: details on minutes

 

 

 

Article 8 Sub-groups

1.   The responsible Commission department may set up sub-groups for the purpose of examining specific questions on the basis of terms of reference defined by the responsible Commission department. Sub-groups shall operate in compliance with the horizontal rules and shall report to the EGE. They shall be dissolved as soon as their mandate is fulfilled.

 

Working groups previously in Art 5(7)

2.   The members of sub-groups that are not members of the EGE shall be selected via a public call for applications, in compliance with Article 5 and the horizontal rules (3).

 

 

 

 

 

Article 9 Invited experts

 

1.   The responsible Commission department may invite experts and representatives of relevant organisations with specific expertise or perspectives to take part in the work of the EGE or its sub-groups on an ad hoc basis for an exchange on a subject matter on the agenda.

 

Invited experts previously in in Art 5(7)

2.   The responsible Commission department may also enlist external experts to participate in the work of the EGE on an ad hoc basis should it be deemed necessary to cover the wide spectrum of ethical questions related to advances in science and new technologies.

 

 

 

 

 

Article 10 Rules of procedure

On a proposal by and in agreement with the responsible Commission department the EGE shall adopt its rules of procedure by simple majority of its members, on the basis of the standard rules of procedure for expert groups, in compliance with the horizontal rules.

 

 

Previously only mentioned in Art 5 (6)

 

 

 

Article 11 Professional secrecy and handling of classified information

 

The members of the EGE and members of sub-groups, as well as invited experts and members of the Identification Committee, are subject to the obligation of professional secrecy which, by virtue of the Treaties and the rules implementing them, applies to all members of the institutions and their staff, as well as to the Commission’s rules on security regarding the protection of Union classified information, laid down in Commission Decisions (EU, Euratom) 2015/443 (4) and (EU, Euratom) 2015/444 (5). Should they fail to respect these obligations, the Commission may take all appropriate measures.

[Art 5] 3.   Members of the EGE, as well as invited experts, shall comply with the obligations of professional secrecy laid down by the Treaties and their implementing rules, as well as with the Commission's rules on security regarding the protection of EU classified information, laid down in Commission Decisions (EU, Euratom) 2015/443 (3) and (EU, Euratom) 2015/444 (4). Should they fail to respect these obligations, the Commission may take all appropriate measures.

Also including sub-groups, and mentioning members of the Identification Committee

 

 

 

Article 12 Transparency

 

1.   The EGE and its sub-groups shall be registered and the names of the members shall be published in the Register of expert groups.

 

 

2.   All relevant documents, including the agendas, the minutes and the participants’ submissions, shall be made available either on the Register of expert groups or via a link from the Register to a dedicated website, where this information can be found. Access to dedicated websites shall not be submitted to user registration or any other restriction. In particular, the agenda and other relevant background documents shall be published in due time ahead of the meeting, followed by timely publication of minutes. Exceptions to publication shall only be foreseen where it is deemed that disclosure of a document would undermine the protection of a public or private interest as defined in Article 4 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council (6).

[Art 5] 11.   All relevant documents related to the activities of the EGE (such as agendas, minutes, Opinions and participants' submissions) shall be made available either in the Register of expert groups or via a link from the Register to a dedicated website. Exceptions to publication are possible where disclosure of a document is deemed to undermine the protection of a public or private interest as defined in Article 4 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council (5).

 

 

Now more specific, with regard to open access character

 

[Art 5] 12.   A report on the activities of the EGE shall be produced under the responsibility of the chairperson before the end of its mandate. The report shall be published and transmitted according to the modalities set out in paragraph 11.

Report not covered in new Decision

 

 

 

Article 13 Meeting expenses

 

1.   Participants in the activities of the EGE and its sub-groups shall not be remunerated for the services they offer.

Article 6 Meeting expenses

 

1.   Participants in the activities of the EGE shall not be remunerated for the services they render.

Also mentioning sub-groups

2.   Travel and subsistence expenses incurred by participants in the activities of the EGE and its sub-groups and by the members of the Identification Committee shall be reimbursed by the Commission. Reimbursement shall be made in accordance with the provisions in force within the Commission and within the limits of the available appropriations allocated to the Commission services under the annual procedure for the allocation of resources.

2.   Travel and subsistence expenses for the meetings of the EGE shall be reimbursed by the Commission in accordance with the provisions in force.

 

3.   Those expenses shall be reimbursed within the limits of the available appropriations allocated under the annual procedure for the allocation of resources.

More specific

 

 

 

Article 14 Repeal

 

Decision (EU) 2016/835 is repealed with effect from 28 May 2021.

Article 7 Final provisions

 

The present decision will be published in the Official Journal of the European Union and shall enter into force on the day following that of its publication in the Official Journal of the European Union. Decision 2010/1/EU is hereby repealed.

 

 

 

 

 

Article 15 Applicability

 

Except for Article 5 and Article 13, this Decision shall apply as from 28 May 2021.

 

 

 

 

 

Done at Brussels, 9 February 2021.

 

For the Commission

 

The President

 

Ursula VON DER LEYEN

Done at Brussels, 25 May 2016.

 

For the Commission

 

The President

 

Jean-Claude JUNCKER