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
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