Accountability and Defenestration: The Dalli Saga

 

Dr Marios Costa, Lecturer in Law, City University

The en bloc resignation of the Santer Commission in 1999, against a background of allegations of fraud, maladministration and chronic mismanagement, is still topical, almost two decades afterwards. The European Commission has long been criticised for its administrative inadequacies and for the structural deficiencies in the Union’s system of accountability. There have been a number of reports depicting the Commission as an institution suffering from structural and political irregularities. 

On 11 May 2015 the General Court gave a significant judgment on a legal challenge brought by the former EU health Commissioner, Mr John Dalli, against the Commission. Dalli argued that he was forced to resign, by the then President of the Commission, Jose Manuel Barroso, without given enough time to consider his legal rights. Rather paradoxically, the General Court ruled that Mr Dalli resigned voluntarily and dismissed the action as inadmissible.  

This judgment raises broader constitutional implications. With all due respect, the ruling comes as a surprise and fails to clarify issues in relation to the powers that can be lawfully exercised by the President of the Commission when he loses confidence in any of the members of his Commission. This commentary examines the appropriateness of the recent ruling and concludes that the General Court lost a rather rare opportunity to rule on significant aspects of the Treaty powers granted upon the President of the Commission to sack the individual Commissioners and as a result also fails to remedy the accountability deficits of the Commission.

Facts of the Case

Dalli, the former Maltese Commissioner, was accused of soliciting bribery for the amount of 60 million euro in exchange of seeking to influence future legislative proposals in favour of the tobacco maker Swedish Match. Following a complaint to the Commission from the latter, the EU’s Anti-Fraud Office (OLAF) initiated investigations into the serious bribery allegations. On 15 October 2012, OLAF sent its final report to the Commission highlighting that there was no conclusive evidence that the Commissioner was involved in requesting money from the tobacco manufacturer. Yet, there was some evidence confirming that Mr Dalli was at least aware of the fact that a Maltese entrepreneur was using his name for the purposes of getting financial benefits from the tobacco maker.

On 16 October 2012, Mr Dalli had a meeting with the President of the Commission where he was presented with two already drafted press releases by the Commission: one stating that Mr Dalli decided to resign ‘voluntarily’, whilst the other stated that Barroso requested him to resign by exercising his prerogative powers under Article 17(6) TEU. During their meeting, the President showed the covering letter of the OLAF’s report to Mr Dalli. Nevertheless, access to the full report was refused on the grounds that it was confidential. Towards the end of their meeting, the President made it clear that he was going to force the applicant to resign if he was not going to do so voluntarily. The applicant asked for at least 24 hours to consult a lawyer and to find out what his legal rights were. Barroso said that he could give him no more than 30 minutes. Mr Dalli chose to resign.  

Mr Dalli challenged the legality of the oral decision taken by Barroso to terminate his term of office as the EU Health Commissioner. The Court declared the action as inadmissible since there was no clarity in relation to the act whose annulment was sought. The Court could not distinguish whether Mr Dalli was seeking the annulment of the decision of the President to remove him from office pursuant to Articles 245 and 247 TFEU or the allegedly oral decision taken by Barroso to request Mr Dalli’s resignation under Article 17(6) TEU. In consequence, the action was dismissed as inadmissible.

Legal Framework on the Commissioners’ Accountability

The Treaty is not silent on the issue of Commission accountability.. Article 245(1) TFEU provides that ‘[t]he Members of the Commission shall refrain from any action incompatible with their duties’. Additionally, Article 245(2) TFEU covers the case of compulsory retirement of an individual Commissioner. It reads as follows:

The Members of the Commission may not, during their term of office, engage in any other occupation, whether gainful or not. […] they shall give a solemn undertaking that, both during and after their term of office, they will respect the[ir] obligations […] in particular their duty to behave with integrity and discretion as regards the acceptance […] of certain appointments or benefits.  In the event of any breach of these obligations, the Court of Justice may, […], rule that the Member concerned be, according to the circumstances, either compulsory retired in accordance with Article 247 or deprived of his right to a pension or other benefits in its stead.

Moreover, Article 247 TFEU, which contains the only reference to the personal liability of Commissioners, reads as follows:

If any Member of the Commission no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct, the Court of Justice may, on application by the Council acting by a simple majority or the Commission, compulsorily retire him.

Furthermore, Article 234 TFEU provides for another kind of responsibility which the Commission owes to the European Parliament (EP), the ‘censure’ motion, as follows:

If a motion of censure on the activities of the Commission is tabled before it, the EP [and] … is carried by a two-thirds majority of votes cast, representing a majority of the component Members of the EP, the Members of the Commission shall resign as a body.

Finally, pursuant to Article 17(6) TEU, ‘[a] member of the Commission shall resign if the President so requests’.    

Comment and Analysis 

The Dalli judgment is a lost opportunity by the Court to clarify the abovementioned provisions as regards accountability of the EU Commissioners. Surely, any failure by an individual Commissioner to meet the standards described in in Article 245 TFEU, as set out above, can lead to a significant damage of the public image of the Commission.  This is not a hypothetical observation if one looks at the events leading to the collective resignation of the Santer Commission and to the closely related Cresson judgment (Case C-432/04, Commission v Cresson, ECLI identifier: EU:C:2006:455). Consequently, one can understand the concerns of President Barroso to avoid repetition of the discredited Santer Commission in 1999. Barroso’s commitment to high standards of administration is perfectly legitimate. What is not legitimate, however, is the process that led to the resignation of Mr Dalli. Notably, the Commission can only succeed if individual Commissioners operate impartially and independently, without influence from external sources, whether national governments or private individuals and without engaging privately with stakeholders to achieve financial benefits. This is the only way for the Commission to gain confidence from other institutions as well as Member States and citizens.

The Commissioners must meet the highest standards not just on external matters, but on their conduct inside the Commission.  They should perform their duties without division or external influence due to their high ranking and experience in the political arena.  In particular, as already explained above, Article 245(1) TFEU requires Commissioners to be free from any external influence. This point is vital if the Commission is to stay independent of Member States or individuals. But let’s assume for a while that there was enough evidence that Mr Dalli obtained pecuniary advantages from the Swedish tobacco maker. Assume further that the OLAF report concluded that the Commissioner needs to be held accountable for infringing his duty to behave with integrity pursuant to Article 245 TFEU. Is the procedure that forced him to resign acceptable and does it respect the rule of law? Or does it confirm an exercise of abusive behaviour by the President? Forcing an individual Commissioner to resign without allowing him to consult a lawyer and without given the opportunity to see the OLAF report constitutes a manifest violation of his basic right to respond to the evidence against him. Any employment lawyer will agree that this behaviour is a classic case of constructive dismissal. Surely this is not something that can be justified, particularly if this comes from the President of the Commission, an institution supposedly entrusted with the duty to guard and ensure that the rule of law is duly respected.  

Conclusion

Unfortunately, the General Court did not clarify the system of accountability for the Commissioners’ actions. The Court rather simply decided to dismiss the action as inadmissible. Taking into account the OLAF report and also the factual background of the previously decided Cresson case one can realise that a lot of irregularities can take place within the Commission and there is a deficit of any meaningful notion of accountability of the Commission. The General Court has made a wrong decision in refraining to clarify what obligations are mandatory for EU Commissioners as set within the Treaty framework. Additionally, and most importantly, the judgment fails to set the boundaries of the prerogative powers of the Commission’s President to sack the members of his cabinet. Whether or not Commissioners can be held accountable for their decisions has been completely ignored in Dalli.

 

Barnard & Peers: chapter 3