Thursday 9 May 2024

A new EU Body for Ethical Standards: Final destination or important interim step?

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 C509/07, 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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