Watchdogs wanted an EU ethics cop. They might get a scoldingPOLITICO - Sarah Wheaton - 1/12/22
Without enforcement or investigation powers, a new ethics body ‘misses the point,’ experts say.
The European Commission is making plans for a new ethics cop to police the behavior of current and former EU officials — but don’t expect this sheriff to be making any arrests.
According to Věra Jourová, the Commission’s vice president for values and transparency, a proposal is coming together that would respond to calls for greater scrutiny of ex-officials’ behavior across all EU institutions following a series of scandals.
However, due to legal hurdles and the reluctance of institutions to cooperate with one another, Jourová told POLITICO that the proposal would be a “thin layer,” likely consisting of an “advisory board” without the ability to investigate or enforce rules across EU institutions.
That’s likely to disappoint transparency activists who had been pushing for stronger powers.
Ruling out what she called a “maximalist” approach, Jourová said she was leaning toward a body to “deal with the cases which appear in the institutions,” as well as set standards and definitions, “without the investigative power and the power to sanction.”
“So that’s a very thin layer,” she added.
The mandate to start an ethics body overseeing all EU institutions was in the mission letter Jourová received from Commission President Ursula von der Leyen. And the Parliament last year proposed an overarching watchdog to police the revolving door of civil servants heading into the private sector and other ethics matters.
Those calls grew louder over the summer in the wake of the Uber Files revelations, which showed Neelie Kroes, the former commissioner in charge of digital files, offering to lobby her ex-colleagues on behalf of the ride-sharing platform even before her so-called cooling off period had ended.
‘Missing the point’
The incident underscored the EU’s lack of power to track former officials’ behavior and enforce the rules already on the books.
While institutions, including the Commission, have strict rules and panels to consider ethical questions, they can do little to proactively verify whether officials are complying, and punishments like withholding pensions have limited effect. Other institutions, including the European Banking Authority and the European Central Bank, have also dealt with revolving door scandals in recent years.
While the European Ombudsman has the power to investigate and declare maladministration in such cases, that office cannot enact changes or punishments.
Given those enforcement problems, Jourovà’s light-touch plan “largely misses the point,” said Alberto Alemanno, a law professor at HEC Paris.
“The goal of the ethics body is not to create common integrity standards among EU institutions, but making sure that they are effectively applied,” said Alemanno, who is also director of The Good Lobby consultancy and author of a paper laying out a potential legal path to an inter-institutional ethics body.
Without investigative and sanctioning power the risk is to create yet another organization that — by design — can’t deliver on its mission.Alberto Alemanno
A key Parliament backer of an independent ethics panel said nonbinding recommendations could still have a positive influence, as long as they’re made public. “That makes it very difficult to ignore them,” said German Green MEP Daniel Freund.
Whether Jourovà envisions such prescriptions was not clear.
“We have the idea of creating this standard-setting advisory body — not at all a decision-making body with investigative power,” she added.
Jourovà’s team also harbors doubts about the possibility of using the ethics body to oversee various institutions — not just the Commission, Council and Parliament, but also the courts in Luxembourg, the European Central Bank and the European Banking Authority, among others.
“It is disputable that we have the competences and the power to impose equal rules on every political appointee of all the institutions,” Álvaro de Elera, a member of Jourovà’s Cabinet, told a lobbying professional society in October. “Can we do that really with the tools we have?” he added. “If I had to give an answer to that, no, we cannot.”
Even when it comes to this “thin layer,” Jourová said that except for the Committee of the Regions and the European Economic and Social Committee, institutions had not shown much interest. The Court of Auditors and the Court of Justice of the EU also have a bespoke set of standards.
Freund said the Commission should move forward with institutions that are willing to engage, urging the EU executive not to “just hide behind one or the other institution not wanting to participate.”
He observed that commissioners’ willingness to put hard restrictions on lobbying by their former colleagues “seems to be limited.” As this Commission’s term moves toward its twilight, Freund added, “maybe they already have in mind that they might have an issue shortly.”
Jourovà plans to put forward the proposal anyway, even if there’s not much appetite from the institutions that would have to participate (and in the case of the Parliament and the Commission, that gave her a mandate to create it).
“We are constructive,” she said.