EU Ombudsman slams ‘maladministration’ in Commission’s sustainability Omnibus

The EU Ombudswoman has found several procedural shortcomings in the way the European Commission handled its Omnibus framework for sustainability rules – a conclusion that sets a precedent to challenge future simplification processes.

The Commission has received a wide array of criticism for the way it moved forward on its sustainability Omnibus to reduce the scope of the Corporate Sustainability Reporting Directive (CSRD) and Corporate Sustainability Due Diligence Directive (CSDDD). Critics deemed the urgency with which the process advanced unnecessary and worried about the lack of sufficient impact assessments – despite the fact that these directives took years of stakeholder engagement to develop.

Now, these concerns have been officialised after an investigation by the EU Ombudswoman, the watchdog for European institutions. In a landmark finding published this week, Ombudswoman Teresa Anjinho said the Commission’s handling of the Omnibus (as well as its reform of the Common Agricultural Policy) amounted to “maladministration”.

Failure to justify urgent procedure

Specifically, the Commission failed to properly justify the use of the urgent procedure or to document its reasoning for deviating from Better Regulation rules.

“The Commission must be able to respond urgently to different situations, particularly in the current geopolitical context. However, it needs to ensure that accountability and transparency continue to be part of its legislative processes and that its actions are clearly explained to citizens.

“In future, a better balance needs to be struck between having an agile administration and guaranteeing minimum procedural standards for law-making. Certain principles of good law-making cannot be compromised even for the sake of urgency,” Anjinho wrote, adding that Better Regulation rules should be improved to maintain transparency even in the case of urgent legislation. 

Her recommendations include ensuring a predictable, consistent and non-arbitrary application of the Better Regulation rules and clarifying in the rules that climate assessments should be carried out for all legislative proposals, as well as minimum standards for stakeholder consultations in urgent procedures.

Ammunition for future legal challenges

While EU Ombudsman decisions are only advisory, they do carry legal weight, with sustainability and legal experts now expecting more litigation against future simplification omnibuses.

Ana Maksimovic, independent corporate sustainability consultant said: “This creates an interesting precedent. Future simplification packages can now be challenged on process grounds. Keep documentation of any changes that affect your compliance roadmap.”

Alberto Alemanno, Professor of Law and Public Policy at HEC Paris added that while the recommendation can’t stop this legislative file, it carries “major implications for the entire simplification agenda”: “It confirms our legality concerns in relation to the many more omnibuses to come (and likely legal challenges that will be brought against them).

NGOs welcome ‘a major milestone for transparency’

The NGOs that had brought the complaint to the Ombudswoman last April welcomed the conclusion, calling it “a major milestone for transparency, democracy, human and environmental rights”. 

ClientEarth Head of Brussels Anaïs Berthier said: “At a time when EU political leaders are under pressure from foreign powers and corporate lobbies to dismantle the protections that ensure we – and our children - can live healthy lives in a safe environment, this decision is a vital reminder that the Commission is not above the law. It confirms that it must comply with the Better Regulation Guidelines, the EU Climate Law and carry out proper assessments. Civil society and the progressive part of the industry must not be sidelined – they need to be given the space to contribute meaningfully.”