A new EU Body for Ethical Standards: Final destination or important interim step?

Markus Frischhut, Jean Monnet Professor (EU law, ethics and values) at Management Center Innsbruck, Austria and Adjunct professor at ‘Alma Mater Studiorum - Università di Bologna’, Italy

Art credit: William Hogarth, An Election: the Polling

 

As ECJ President Koen Lenaerts aptly confirmed in a paper on “mutual (yet not blind) trust”, “[i]t is said that ‘[t]rust takes years to build, seconds to destroy and forever to repair’”. For many, the European Union (EU) is not only geographically, but also emotionally very distant. In addition, various scandals have hampered trust in the EU. These scandals affected various institutions, such as the European Commission (e.g., Dalligate, Barrosogate and Oettigate), or recently the European Parliament (e.g., Qatargate). In the EU, we can identify an increasing reference to ethics (and morality) since the 1990s. In 2020 the author elaborated a study commissioned by the European Parliament, which suggested an ‘Independent Ethics Body’ (IEB). These suggestions were based on an analysis of the status-quo of ethics, integrity and transparency rules in EU institutions, etc. In June 2023 the European Commission published a proposal for the creation of an interinstitutional Ethics Body, the ‘Interinstitutional Body for Ethical Standards’ (IBES). Now we see the outcome of the negotiations between the EU institutions (see, for example, for the European Parliament), which shall be formally signed mid-May 2024. In other words, we now have a body for ethics in EU institutions and not an independent ethics body advising for example the European Commission on current policy topics with ethical implications, as in case of the ‘European Group on Ethics in Science and New Technologies’ (the EGE; equipped with a new mandate in 2021).

Current proposal

Ethics rules need to be defined and then enforced. The 2020 IEB study carried out a legal comparison covering France (the ‘Haute Autorité pour la transparence de la vie publique’ [HATVP]), Ireland (Bill for a Public Sector Standards Commissioner) and Canada (Conflict of Interest and Ethics Commissioner [CIEC]). In terms of enforcement, the French HATVP and the Canadian CIEC stand out as best-practice standards. But even amongst EU institutions, different approaches can be identified. An analysis of enforcement powers of the IBES is quite short, as there are none. Art 6(3) of the Inter-Institutional Agreement (IIA) on the IBES (IBES-IIA) states that it shall “not be competent as regards the application of a Party’s internal rules to individual cases”. This is a major issue, as rules on paper that are not properly enforced (‘walk the talk’) can even backfire in terms of public trust. In addition, a self-regulatory approach is a major shortcoming that was addressed by the European Parliament itself (European Parliament, recital J; European Parliament, recital C).

Another question is, who is covered? The 2020 study had focussed on the EU institutions mentioned in Art 13(1) TEU, and the two ancillary bodies mentioned in paragraph 4 (Economic and Social Committee and Committee of the Regions), plus some others (Ombuds[wo]man, European Data Protection Supervisor [EDPS] and the Euro Group, together with the Euro-Summit). Within these EU bodies, the European Central Bank (ECB) stands out for a more ambitious approach. The new IBES covers all EU (ancillary) institutions covered in Art 13 TEU, with the exception of the European Council (EUCO) and only partially the Council of the EU. Partially, because only the High Representative is covered. Hence, the ministers or not covered and not even the “representatives at ministerial level of the Member State holding the Presidency of the Council”, as suggested by the Commission.

Likewise, the substantive rules that are set-up can be more or less ambitious. Besides that, substantive ethical rules can be developed ex ante and then an EU ethics body can be tasked with further clarification and enforcement, alongside awareness raising, training, etc. However, the main task of the IBES is to serve as a platform for the afore-mentioned parties (Art 13 TEU minus EUCO; partially the Council) “to develop common minimum standards for the conduct of the members of the Parties” (Art 6[2] lit a). This shall happen within the first six months (see Art 8[5]).

Unlike proposed by others, the staff of these Parties is not included, only the members defined in Art 2 (e.g. members of the European Parliament, or of the European Commission). As the task is to harmonize existing standards, similar challenges can arise as in case of harmonization of national law via EU directives. Therefore, the approach taken is reminiscent of ‘minimum harmonization’ in case of EU directives (e.g. Case C‑509/07, Scarpelli), where Member States don’t have to, but can lay down higher standards. Hence, in our context, each Party to the IBES-IIA can “impos[e] higher ethical requirements on its members, in particular in consideration of a specific risk associated with the mandate and tasks of the Party to this Agreement or of its members” (recital 10). At the same time, a Party already having higher standards shall not be obliged to lower their ethical standards (recital 11).

Similar to the EU’s motto (‘united in diversity’), in the application of the IBES-IIA, “full account should be taken of the characteristics and specific status of each Party to this Agreement and its members” (recital 9). This makes sense, as common standards are clearly preferable, while at the same time allowing for differences, where objectively necessary due to different legal settings or standards, especially if foreseen in EU primary law. For example, some years ago, the ECJ derived standards on avoidance of “any conflict of interest” (Case C-130/19, Court of Auditors v Pinxten) out of the obligation of members of the Court of Auditors to “be completely independent in the performance of their duties” (Art 285 TFEU). While conflicts of interest should be included for all Parties (see also below), the rules might need to be tougher or more tailored in case of some Parties.

Amongst the Parties, because of “the independence of the judiciary” (recital 9), the CJEU only participates as an observer. Besides the Parties, the IBES shall be assisted by five independent experts who shall attend all meetings as observers and shall advise the members of the IBES “on any ethical question related to the mandate of the Body” (Art 5 [1]). This task mainly refers to the development of “common minimum standards for the conduct of the members of the Parties” (Art 6[2] lit a). Briefly to mention that the other tasks refer to updates of these standards, exchange of views, “abstract interpretation”, and the promotion of cooperation.

Both the members of the Body (Art 13) and the independent experts (Art 5[3]) have to avoid conflicts of interest. Hence, it is interesting that the topic of conflicts of interest does not explicitly figure amongst the areas to be covered by the common minimum standards (Art 8[2]). The minimum standards shall cover declarations of both financial and non-financial interests (lit a). During the term of office, they shall cover external activities (lit b), acceptance of gifts (lit c) and awards (lit d), as well as rules on activities after the end of the term of office (lit e). Finally, the IBES shall elaborate minimum standards concerning “conditionality and complementary transparency measures” (lit f), under the IIA on the mandatory transparency register, i.e. “the principle whereby registration in the register is a necessary precondition for interest representatives to be able to carry out certain covered activities” (Art 2 lit h leg. cit.).

Coming back to the independent experts, at the beginning in the crucial starting phase external experts are side-lined, as in the first year when the IBES is set up, the “independent experts shall be appointed for a full mandate from amongst the current or former members of the existing internal bodies responsible for ethical questions of the Parties” (Art 22[1]). Moreover, in case they are consulted they can only issue a “confidential and non-binding written opinion” (Art 7[3]), and they only “provide an anonymised and aggregated annual account” (Art 7[4]). Hence, no ‘naming and shaming’.

Legal competence

Could the EU have provided for a more ambitious approach? The answer is, yes. Two arguments that are often invoked against more ambitious rules are the Meroni case-law (starting with Cases C-9/56 and C-10/56; analysed here, pp. 102-107) and the institutional balance. First, the ECJ stated that “the powers conferred on an institution include the right to delegate, in compliance with the requirements of the Treaty, a certain number of powers which fall under those powers, subject to conditions to be determined by the institution” (Case Tralli v ECB, C-301/02 P, para 41). Therefore, a delegation is possible. What is also often overlooked is the fact that Meroni was about a delegation from the High Authority (today: the European Commission) to private entities, whereas here a delegation would take place to an EU body charged with ethical tasks. Other requirements stemming from this case-law (obligation to state reason; nemo plus iuris transferre potest quam ipse habet; no unlimited discretion; etc.) have to be considered, but are no obstacles.

The ‘separation of powers’ was also covered by the ECJ, but rather concerning national situations. Likewise, this concept had been developed by Montesquieu to avoid misuse of power. Similarly, also the ‘institutional balance’ is often invoked as an argument against an Ethics Body. According to the Court, the institutional balance “requires that each of the institutions must exercise its powers with due regard for the powers of the other institutions” (Case C-409/13, Council v Commission, para 64). In case of an ethics body complementing and substantiating EU primary law, the institutional balance can even be seen as an argument in favour of such a body.

A starting point for the substance of ethical rules should be the EU’s common values (Art 2 TEU), supplemented by legal and ethical principles (here, p. 28; here, p. 203). A good example is the above-mentioned link between primary law (e.g. Art 285 TFEU) and the ethical concept of avoiding a conflict of interest. This could be a fruitful combination of legal and ethical requirements. As we know, the ECJ applies a judicial self-restraint concerning the ethical perspective (e.g. Case C-506/06, Mayr, para 38). Besides that, the CJEU’s power enshrined in Art 19(1) TEU (“ensure that in the interpretation and application of the Treaties the law is observed”) shall not be impaired.

In terms of legal bases, Art 295 TFEU (IIA) is the appropriate legal basis for an IIA concluded by the European Parliament, the Council and the Commission. The other parties would have to rely on their ‘procedural autonomy’ and the above-mentioned Meroni-doctrine. However, Art 295 TFEU cannot create legal obligations for third parties (e.g., if one would like to include lobbyists). Art 298 TFEU (sound administration) can only be used for the executive branch of powers, not for the others. Finally, Art 352 TFEU (gap-filling clause) is possible, but very challenging (unanimity in the Council), and the ‘implied powers’-doctrine too uncertain (see also here for more details).

In conclusion, does this IBES-IIA lead to a more ‘Ethical Union’? Certainly, it fits within the step-by-step approach of European integration at large (see also here). One could have also tried to include staff under (Art 2[2]) of the Staff Regulations. At least, the IBES-IIA foresees the sharing of best practices concerning the implementation of staff rules (recital 17). Likewise, more powers on enforcement could have been added (cf. Alemanno, 2021, pp. 54-56). While some could see this outcome as an example of a ‘failing forward’ (here and here), there was presumably the aim to present an outcome before the upcoming EU elections (June 2024) and the compromise reached was probably the price for having so many (eight) EU institutions and advisory bodies on board. As a reminder, only the Parliament and the Commission were initially on board for the transparency register, with the Council only joining in May 2021. Therefore, this new ethics body can be seen as an important step forward, even if further steps can and should follow.

 

Barnard & Peers: chapter 8 (especially also delegation of powers, pp. 217-218) and chapter 9

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