Commission’s behaviour over cosmetics information reprimanded by EU Ombudsman

The European Commission has been reprimanded for bad behaviour by the EU’s transparency watchdog, over its failure to release chemical data.

It follows a series of complaints by ClientEarth over the Commission’s failure to release information on time.

The Commission was legally required to publish a catalogue containing the details of nanomaterials present in cosmetic products by January 2014. Two years later, ClientEarth asked for access to the information sent by cosmetic companies to the Commission and to the draft catalogue. After a further delay, it was finally published in June 2017, but was and still is missing many details about the presence of nanomaterials in everyday cosmetics.

In July 2017, ClientEarth complained to the European Ombudsman because of the Commission’s refusal to provide access to the information.

In responding to ClientEarth’s request for information on those nanomaterials, the Ombudsman has ruled that there was “maladministration” by the Commission, which:

• Denied access to a document on the basis that it did not exist,  which was untrue;
• Denied access to information on the basis that it didn’t have the means to find it, which was also untrue;
• And misapplied an EU Court judgment so as to restrict access to much of the data requested.

ClientEarth lawyer Anne Friel said: “The Commission’s maladministration is evident and the Ombudsman is right to support our request for information that will help people protect themselves and the environment. The Secretariat General of the Commission made inaccurate statements to stop us getting information on nanomaterials breaching EU transparency rules.

“This unacceptable behaviour undermines people’s trust in EU institutions. Upholding our claim shows the importance of the Ombudsman in making sure EU institutions respect transparency rules and work in the interests of the public, not just industry.”

Despite the long delay in publishing, the catalogue still does not let people identify which cosmetics contain potentially harmful nanomaterials, or assess the threat they may pose to human health.

In its answer and official recommendations, the Ombudsman found that the Commission’s handling of the case was “neither citizen friendly, nor in line with the EU public access rules”.

ClientEarth lawyer Alice Bernard said: “Nanomaterials may pose risks to people’s health and the environment specifically due to their small size. Consumers need to be informed so that they can decide for themselves whether to use products containing them. Sadly, the nanomaterial catalogue finally published by the Commission is useless for consumers since it does not identify which products contain the nanomaterials. This is not in line with the cosmetics regulation.”

In its official recommendations, the Ombudsman called on the Commission to give ClientEarth access to the list of notifications that cosmetic companies had to send to the Commission specifying whether their products contain nanomaterials. These notifications allowed the compilation of the catalogue.

Alice Bernard added: “We welcome this support from the European Ombudsman and expect the Commission to fully comply with the recommendations and restore trust.”

The Commission has to send the Ombudsman a detailed opinion on the draft recommendation by 15 June 2018.