Executive summary
The European Ombudsman has opened an inquiry into how the European Commission conducted a public consultation on its planned legislative initiative for CO2 transportation.
At first sight, this may look like a narrow procedural dispute. It is not.
The consultation forms part of the evidence-gathering process for legislation intended to shape a future EU market and infrastructure framework for transporting CO2. The Commission has said that the consultation results will inform both the initiative and its impact assessment.
That makes the Ombudsman inquiry important for a broader reason: it shifts scrutiny upstream, from the final legislative text to the process by which the Commission constructs the evidence base that may later be used to justify that text.
For Civic Forensics, the case creates a useful analytical chain:
call for evidence → consultation design → stakeholder participation → response structure → factual summary → impact assessment → legislative proposal
The central question is no longer only whether the future legislation is proportionate or well reasoned. It is whether the process that generated the supporting evidence was itself sufficiently robust, inclusive and transparent.
What the Ombudsman is examining
The European Ombudsman opened case 1522/2026/MIK on 18 August 2026 following a complaint submitted in June.
The case concerns how the European Commission conducted the public consultation connected to its legislative initiative on CO2 transportation. The Ombudsman classifies the matter under accountability and inclusive decision-making and identifies potential issues concerning proportionality and legitimate expectations.
The inquiry is ongoing. No finding of maladministration has been made.
That distinction matters. The existence of an inquiry does not establish that the consultation was defective. It establishes that the consultation process itself has become an accountability question.
Why this consultation matters
The Commission launched the consultation on 6 October 2025 and kept it open until 9 January 2026.
Its purpose was to gather evidence and feedback for a possible regulatory framework covering CO2 markets and transportation infrastructure. The initiative follows the 2024 Industrial Carbon Management Strategy and is intended to support the development of competitive CO2 markets and cross-border transportation infrastructure.
The Commission’s call for evidence indicated that a legislative proposal, supported by an impact assessment, was planned for the third quarter of 2026.
Possible areas of intervention include cross-border interoperability, common standards, legal barriers to cross-border CO2 transport, third-party access, infrastructure tariffs, ownership rules, permitting and the reuse of existing infrastructure.
In other words, this is not a marginal technical exercise. The consultation sits upstream of decisions that may affect market structure, infrastructure investment, access rights, regulatory responsibilities and the allocation of financial risk.
The consultation as an evidence-producing mechanism
The Commission’s factual summary report states that the questionnaire contained 55 questions divided into five chapters.
It covered general questions, regulatory certainty and investor confidence, cross-border transportation barriers, competition and cost-effectiveness across the CO2 value chain, and mechanisms for de-risking carbon capture and storage.
The consultation received 206 stakeholder responses and 74 position papers.
The Commission also explicitly states that the consultation results reflect the views of respondents and cannot be regarded as the official position of the Commission.
That disclaimer is important, but it does not resolve the methodological problem.
Consultations are not representative opinion polls. Participation is self-selecting. Organised stakeholders with technical expertise, financial resources and direct economic interests are often more capable of responding to complex questionnaires than ordinary citizens or less-resourced organisations.
The central forensic question is therefore not simply what percentage of respondents supported a policy option?
It is what evidential weight should that percentage carry in the impact assessment and in the final legislative proposal?
Evidence is not the same as preference
A public consultation can generate several different types of information:
- factual or technical evidence;
- descriptions of operational problems;
- estimates of costs or benefits;
- stakeholder preferences;
- legal interpretations;
- predictions about future market behaviour;
- advocacy for a preferred regulatory model.
These categories should not automatically be treated as equivalent.
A company stating that a regulatory obligation would increase its costs is relevant evidence of stakeholder concern. It is not necessarily independent evidence of the actual size of those costs.
A majority of participating organisations favouring a regulatory model may demonstrate stakeholder preference. It does not establish that the model is proportionate, efficient or in the public interest.
For an impact assessment to remain analytically robust, the Commission must be able to distinguish between what stakeholders want and what the available evidence supports.
Questionnaire design is part of the decision trail
The consultation questionnaire itself should therefore be treated as part of the regulatory evidence file.
Question design determines which problems respondents are invited to discuss, which options are made visible, which alternatives remain outside the questionnaire, and how responses can later be quantified.
The Commission’s factual summary states that the questionnaire combined closed and open questions, with open questions intended to reduce possible bias and with respondents able to comment further on closed questions.
That is a relevant safeguard. But it also creates a testable question: whether the structure of the questionnaire allowed materially different regulatory approaches to emerge, or whether respondents were largely being asked to choose between options already framed by the Commission.
A forensic review should therefore compare:
problem definition → available response options → omitted alternatives → open-text responses → factual summary → policy options retained for the impact assessment
If an alternative appears repeatedly in open responses but disappears from the later policy analysis, that omission becomes relevant.
If a predefined option receives strong support because competing options were not meaningfully presented, the headline percentage may overstate the strength of the evidence.
Participation is not representation
The Commission states that it took steps to publicise the consultation widely, including through its website, social media, stakeholder events and contacts with Member State representatives and national regulatory authorities.
That is relevant to procedural openness, but broad publicity does not by itself guarantee balanced participation.
For the next stage of analysis, the most important question is the composition of the 206 respondents.
The appropriate evidence test is not whether every category was represented at least once. It is whether the Commission later accounts for concentration within particular stakeholder groups when interpreting the results.
A technically sophisticated consultation may legitimately attract a large share of industry respondents. The problem arises if self-selected stakeholder preferences are subsequently presented as though they demonstrate a broader social or economic consensus.
The factual summary should therefore be read as an evidence inventory, not as a referendum result.
The missing link: from consultation to impact assessment
The decisive document will not be the factual summary report.
It will be the impact assessment.
That document should reveal how the Commission transformed the consultation record into regulatory reasoning.
A Civic Forensics review should test at least five links:
1. Stakeholder composition → interpretation
Did the Commission explicitly account for who responded when describing levels of support?
2. Stakeholder claims → independent evidence
Were cost estimates, market projections and technical claims independently verified or triangulated?
3. Minority positions → policy analysis
Were materially different views preserved and assessed, even when supported by fewer respondents?
4. Consultation results → policy options
Can the options retained in the impact assessment be traced back to the evidence gathered?
5. Policy option → legislative proposal
Can the final proposal be traced through the impact assessment to a documented evidential basis?
This is where consultation transparency becomes decision transparency.
A Civic Forensics test: Evidence Formation Check
The case supports a reusable Civic Forensics module: the Evidence Formation Check (EFC).
The EFC is designed for cases in which an institution relies on consultations, expert groups, surveys, stakeholder workshops or similar processes to build the evidence base for a later decision.
The analytical chain is:
policy question → evidence-gathering instrument → participant universe → actual participants → question design → raw submissions → synthesis method → factual summary → impact assessment → final decision
The test asks whether the evidence base can be reconstructed, whether the synthesis preserves important disagreements, whether claims are weighted appropriately, and whether the final decision relies on evidence rather than merely on the most visible stakeholder preferences.
This is different from reviewing whether a consultation formally occurred.
A consultation can be formally open, correctly announced and procedurally complete while still producing a weak evidence base.
Why the Ombudsman case matters beyond CO2 policy
The broader significance of case 1522/2026/MIK lies in the stage of decision-making being examined.
Accountability usually begins after an institution has adopted a decision. At that point, reviewers ask whether the decision was lawful, proportionate, reasoned and supported by evidence.
But the quality of that evidence depends on earlier administrative choices.
Who was asked?
What were they asked?
Which answers could be quantified?
Which submissions were treated as technical evidence?
Which competing interpretations survived into the impact assessment?
Those choices occur before the final proposal appears, but they can shape the range of outcomes that later seem reasonable.
That makes evidence formation an accountability issue in its own right.
What to watch next
The Ombudsman inquiry is still at an early stage, so conclusions about the Commission’s conduct would be premature.
The next important evidence will be any detailed Ombudsman correspondence, inspection material or preliminary findings explaining which aspects of the consultation are disputed.
The second critical document will be the Commission’s impact assessment accompanying the legislative proposal.
When that appears, the most useful comparison will be:
206 consultation responses + 74 position papers → factual summary → impact assessment claims → preferred policy option → legislative text
That comparison can show whether the consultation was merely recorded or whether its evidence was actually assessed in a transparent and methodologically defensible way.
The key compliance question is therefore not simply whether the Commission consulted.
It is whether the Commission can show how consultation became evidence.
Sources
- European Ombudsman, Case 1522/2026/MIK, How the European Commission conducted a public consultation on its legislative initiative on CO2 transportation: https://www.ombudsman.europa.eu/en/opening-summary/en/231705
- European Commission, Commission launches public consultation on CO2 markets and infrastructure, 6 October 2025: https://energy.ec.europa.eu/news/commission-launches-public-consultation-co2-markets-and-infrastructure-2025-10-06_en
- European Commission, Factual Summary Report: Public Consultation on CO2 Transportation Infrastructure and Markets, Ares(2026)2155230: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=PI_COM%3AAres%282026%292155230
- European Commission, Call for Evidence for an Impact Assessment — CO2 market and infrastructure in the EU, Ares(2025)6250488: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=intcom%3AAres%282025%296250488
- European Parliament Legislative Train, Development of the CO2 transportation infrastructure and markets: https://www.europarl.europa.eu/legislative-train/carriage/development-of-the-co2-transportation-infrastructure-and-markets/report