Unboxing the EU Body for Ethical Standards
VERFASSUNGSBLOG – Alberto Alemanno argues that the creation of the EU Body for Ethical Standards is a potential step forward in improving the EU ethics system.
Despite being dismissed as ‘toothless’ by several observers, the creation of a dedicated EU Body for Ethical Standards carries the potential to mark a qualitative difference in the development of the EU ethics system as we know it.
After over two decades of institutional debates – and amid several high-profile ethical scandals including the recent Qatargate –, the main EU institutions (with the sole exception of the EU Council and the CJEU joining as observer rather than as party) eventually decided set up a joint authority aimed at “strengthening trust in Union institutions and their democratic legitimacy”.
Yet to attain such a goal, they did not entrust the Body with the authority to independently enforce existing ethical standards (such as independence, integrity and discretion in office and post mandate) – as wished for by the EU Parliament in its resolutions of September 2021, December 2022 and July 2023.
Instead, they tasked the Body with the development of new ethical standards – the so called “common minimum standards” – that each of the participating institutions would then apply on its own members. As such, in a twist of history, this new authority resembles more the failed 2000’s Advisory Group on Standards in Public Life – originally put forward by Neil Kinnock in the aftermath of the Santer Commission’s fall – than the most recent 2021 EU Parliament proposal for an “EU Ethics Body”. The institutional model proposed by the latter originated in a legal opinion I was asked to craft for the Greens in 2020 – and which inspired by the French High Authority for the Transparency of Public Life (HATVP). I presented it to the EU Parliament Committee on Constitutional Affairs in 2021 and discussed with other key decision-makers over the past four year
This essay intends to analyse whether and how the new inter-institutional body can contribute to strengthening the existing and largely fragmented EU ethics framework. After briefly identifying the main structural limitations of such a framework, it examines the extent to which the Body – given its subject-matter, scope, composition, and operation – could effectively address such limitations.
The EU Public Ethics System
The EU has, over time, put in place ethical standards governing the conduct of its institutions’ staff and members to prevent, or at least mitigate against, the risks of unethical conduct. The resulting EU ethical and integrity system appears in general more comprehensive and sounder than in most Member States. Yet, as acknowledged by the EU Court of Auditors, while many elements of an ethics infrastructure are in place, the absence of a systematic and comprehensive approach has led to a framework with no clear indication of what the EU ethics and integrity system is and how it works.
First, the EU ethics system applicable to members – be they elected (i.e., MEPs) or appointed (i.e., Commissioners) – is highly fragmented, with each EU institution having its own set of ethics standards and rules (only the Council lacks a dedicated regime). The latter are scattered across multiple legal sources, ranging from the EU Treaties to dedicated Rules of Procedure to Codes of Conduct and, in the case of EU officials, to EU Staff Regulations.
Second, each EU institution has its dedicated enforcement mechanism – characterised by self-policing (where Commissioners, officials and MEPs police one another in their respective systems) – to ensure the application of these different ethics standards. These range from ad hoc committees governing the application of the standards to the members of the European Parliament and Commission, to – in the case of EU officials – Appointed Authorities helped by Disciplinary Boards (not affected by the new Body) as well as, ultimately, the General Court of the EU (following the suppression of the EU Civil Service Tribunal) as well as the Court of Justice.
Third, the different ethics bodies have limited sanctioning powers for ethics-related breaches and – as highlighted by the EU Court of Auditors – they seldom use them. Sanctions differ in nature, from (i) reputational sanctions, such as calls to order and reprimands; (ii) organisational sanctions, such as relegations in step and downgrading for staff; (iii) irreversible ones such as the removal from post as well as (iv) financial decisions, such as temporary forfeiture of entitlement to the daily subsistence allowance for MEPs and the deprivation of the right to a pension or other benefits in the case of members of the Commission and staff. However, the limited and lax enforcement inevitably reduce the dissuasive effect attached to these sanctions.
Fourth, the EU ethics system is also characterised by little awareness among EU institutions’ members and staff as well as limited guidance regarding the ethics standards applicable to them.
The EU Body for Ethical Standards
At first glance, the newly adopted Body does not appear well-placed to address any of the abovementioned structural shortcomings of the current system. The Body is expressly prohibited from deciding on individual cases (Art. 6(3)). As such, it is not set to replace all existing ethical authorities but merely complement their operation. Yet, a closer analysis reveals that the Body has been designed to play a more compelling role than what it might first appear. While its declared, lofty mandate consists of promoting a “common culture of ethics and transparency” among the participating institutions, its core task entails the development of “common minimum standards” for the conduct of the members of each institution. Within a record-time of 6-month from its establishment, the Body is expected to agree on common standards on some of the most contentious aspects of the EU ethics regimes applicable to members. Those include (in a non-exhaustive list): (i) declaration of financial and non-financial interests; (ii) external activities during the members’ terms of office; (iii) gifts, hospitality and travel offered, as well as awards, prizes and honours; (iv) post-mandate activities as well as (v) general procedures to ensure compliance with those standards, including the composition, reporting and enforcement mechanisms (Art. 8(3), let. (a)).
This suggests that the participating EU institutions – from the Parliament, Commission, Council, European Central Bank, European Court of Auditors to the European Economic Social Committee and Committee of the Regions – have de factodelegated to the Body not only the definition of the standards applicable to their members (e.g. what is a conflict of interest) but also the modalities of their enforcement (e.g. how to verify the declarations of interest, how to examine individual cases of alleged conflict of interest, how to sanction a breach, etc). Upon their “formalisation in writing”, each Institution is bound to self-assess its existing standards against the new ones, after those have been formalised in writing, and do so within a mandatory period of 4 months (Art. 8). This self-imposed requirement is however only procedural in nature, and not substantive. Therefore, if each institution is bound to periodically review its existing standards against new ones, their adoption may occur only “where each Party deems it appropriate” (Art. 10). Yet as the institution-by-institution self-assessment will be subject to the Body’s authority and made public, one may reasonably expect that each EU participating institution might – under both institutional and public pressure – typically align itself with the new standards.
As a result, the Body’s operation may lead to entirely redesign the EU ethics system, both in terms of standard-setting and enforcement mechanisms. This is expected to occur in less than one year from the Body’s inception, which appears unlikely to happen before 2025.
Mixed Composition
The Body’s composition foresees the participation of one representative by each Institution (at vice-president level or equivalent). As such, the Body is not independent from the very same institutions is supposed to advise. To partly remedy the Body’s lack of independence, its members are assisted by five ‘independent experts’. While acting as observers – not full members –, these experts – who are proposed and confirmed by consensus by all institutions – are tasked to advise the Body’s members on “any ethical question related to the mandate of the body”. Behind this rather vague expression hides a vast delegation of authority capable of turning the experts into the intellectual engine of the whole construct. First, upon the demand by any of the participating EU institution, the experts are entitled – unlike any of the Body’s members – to provide advice on individual cases, based on applicable standards (Art. 7). Such an advice must be confidential and non-binding, and – in the absence of consensus among experts – may contain one or more dissenting opinion(s). Second, experts are also expected to play a role during the institution-by-institution self-assessment, by offering an opinion – this time public – on the alignment of existing standards with the newly adopted one (Art. 7(3)). Third and last, experts may also be involved in future revisions of the minimum standards (recital 12; Art. 7(4)).
Conclusions
Historically, the genesis and evolution of the EU public ethics system can be seen as the by-product of a long and gradual series of reactive reforms to the political scandals of the day. The newly created “Interinstitutional Body for Ethical Standards”, agreed on April 25, 2024 is no exception to such a trend.
Yet, as illustrated above, the creation of such a Body carries the potential to profoundly alter both the quality of the ethical standards and their enforcement on the participating institutions’ members. This is due to the multiple functions entrusted to the Body.
First, the Body is set exercise a standard-setting function, in relation to both the development of ethical standards and their enforcement by each of the existing ethical authorities. Moreover, ethical standard-setting is a permanent, not temporary, task insofar as the Body is mandated to continuously upgrading the overall capacity and effectiveness of the EU ethics regimes of the participating institutions.
Second, despite the members of the Body being expressly prohibited from doing so, the Body through its independent experts may also play an advisory role in relation to individual cases. This can happen through the involvement of independent experts, who – unlike the members – are better placed to offer an independent opinion, and – as a result – promote an uniformed interpretation and application of the soon-to-be minimum common standards.
Third, the Body is also expected to raise awareness around the existence, promotion and respect of EU ethical standards, by acting as a forum where each of the existing institution-by-institution competent authority regularly gathers and exchanges. The ensuing socialisation of otherwise separated bodies will be unprecedent. This may in turn lead each of the participating institution to favour common approaches to concretise the application of the existing ethical obligations. This is not to suggest the need to pursue full harmonisation in the interpretation and application of ethical rules. The various ethical and integrity principles may and should vary considerably among the different categories of public office holders insofar as they have different powers, work in different institutions, are subject to different types of influence, enjoy a different degree of public scrutiny, and eventually operate in different organisational, institutional, political, and legal settings.
Against this backdrop, one of the Body’s strengths is its facilitation role in promoting a more coherent, and effective practice without necessarily imposing a one-size-fit-all approach throughout all institutions and their members.
Yet, in the absence of accountability mechanisms that may be prompted by third parties – such as civil society organisations –, the new Body risks becoming yet another inter-institutional construct whose operation is left to the good will of the participating institutions. A glance at the EU Transparency Registry offers a cautionary tale on what any well-intentioned policymaker should avoid when turning the new Body into reality in the new 2024-2029 EU policy cycle.