Qatargate: A Missed Opportunity to Reform the Union

VERFASSUNGSBLOG – Alberto Alemanno discusses the need to establish an EU ethics body in the aftermath of the Qatargate scandal.

When the news broke about the arrest of EU Parliament’s Vice-President Eva Kaili in flagrant offence for corruption and money laundering, many observers – including myself – instantly qualified Qatargate as the largest and the most damaging scandal affecting the European integration process since its inception. Since then, this prediction proves truer day by day, revelation after revelation. Yet, despite unprecedented media coverage and a shocked public, this scandal has not yet generated within the EU and national political class a good enough response to mitigate its damaging effects. Let’s examine the EU institutional and political response to Qatargate in an attempt to gauge its impact on the state of EU democracy one year before the kick-off of the next EU Parliament election campaign.

The many shades of Qatargate

The scandal opened multiple Pandora’s boxes all at once. It first revealed the flawed EU ethics system for MEPs, which tolerates them having side jobs without being subject to a corresponding obligation to declare their meetings with third parties in the name of the freedom of their electoral mandate (e.g. Kaili, TarabellaCozzolino). Second, it unveiled the absence of post mandate rules for MEPs (i.e. Panzeri), who are thus allowed at the end of their parliamentary mandate to monetize their privileged access, both physical and immaterial, to the EU Parliament. Third, it showed the absence of a dedicated regime governing third-country lobbying, whose players remain exempted from registration, despite their growing numbers and resources. Fourth, it exposed the weaknesses of the EU Commission’s ethics system applicable to former Commissioners, such as Avramopoulos, who was authorized to provide services – during their cooling off period – to an NGO that failed to register in the Transparency Registry (i.e. Panzeri’s Fight For Impunity). Last but not least, the scandal also revealed all the major structural limitations of the current EU ethics and integrity framework, ranging from its high fragmentation within and across EU institutions – with each EU institution having its own dedicated framework, limited in its independence, and lacking adequate investigatory authority –, and weak enforcement of its underlying standards to its limited awareness within the specialized and wide public.

How did the EU react to Qatargate?

Despite the unprecedented nature of the scandal and damage caused to the Union’s image in the eyes of EU citizens and beyond, the EU institutional response has thus far been modest, essentially short-termist and aimed at deflecting attention away from its most damaging effects. One the one hand, the President of the EU Parliament framed the Qatargate as a major attack on democracy. Rather than humbly acknowledging the significant shortcomings of the EU political and ethical system, notably of that applicable to the assembly she presides, Roberta Metsola preferred to divert blame to third-countries. On the other hand, the EU Commission President appeared relieved that the scandal did not affect her own institution. Since the average EU citizens fails to distinguish between the EU Parliament and the Commission, they will likely perceive Qatargate as a major system failure of the entire EU project.  As for the Council, it skillfully avoided to formally discuss the issue with EU leaders, gathering in December’s EU Council, also dismissed the events as a Parliament’s problem. Even as each member of the EU Council is also a political leader belonging to the very same political party system invested in the scandal.

What the different institutional responses to Qatargate have in common is that they downplay the role politics has in ensuring probity by giving up all responsibility to the very same institutions. Yet ethics and integrity rules do not exist in a vacuum, and their enforcement cannot be policed by the institutions alone. Ensuring integrity and ethical conduct in politics is a matter of shared responsibility. In the incomplete EU electoral and political system, it is first and foremost up to the national and European political parties to identify, select, and vet candidates fit for the job (quid non). Second, it should be then up to the European political groups to monitor, oversee and sanction MEPs’ conducts once elected (quid non). Third, it is exclusively when national and European political parties should fail to prevent ethical misconducts that institutional mechanisms must come into play to safeguard the political system’s integrity. Finally, during the entire ethical accountability cycle, civil society and the press monitor and watchdog the integrity guardians. Yet today, when ethical breaches come to light, this is usually not the case due to systematic checks by political parties, be they national or European, by the EU institutions or internal reporting, but rather through journalistic investigations. Moreover, an additional layer of complexity in enforcing of ethics standards has to do with often overlapping considerations of political nature that blur the evaluation of the ethical conduct.

Against this backdrop the reform package put forward by Parliament’s President Metsola, being merely reactive to the scandal, appears to fall short of the challenges raised by the scandal. While badly needed and long-awaited, none of the 14 proposals appear able to structurally address the EU ethics rules’ original sin, that of having their enforcement entrusted to the political – as opposed to legal – authority of the institution’s President. This affair has indeed exposed the inherent inadequacy of an EU ethics system whose enforcement relies on self-policing, with politicians judging politicians (in the case of the EU Parliament) and the President of the EU Commission judging their own colleagues, and that far from public scrutiny. That is what puts their neutrality – and the credibility of the whole system – into question.

Towards an EU Ethics Body?

Acknowledging the inadequacy of the system, as previously exemplified by multiple cases of revolving doors both within the Commission and Parliament, incoming President-elect Ursula von der Leyen promised, in her 2019 political priorities, the establishment of an ethics body, common to the three main EU institutions. If successfully established, this would render the enforcement of ethics and integrity rules move from the sole political responsibility of each individual institution to the legal authority of an independent body.

Yet when the Qatargate broke – on December 9 2022 – 3 years and a half had passed, and no proposal had come from Commissioner Jourová, who had been in charge of the file according to her 2019 mission letter. In the meantime, the European Parliament (the very same player that today appears as the villain of EU ethics) repeatedly called for such as EU ethics body’s proposal to be put forward by the Commission. It adopted a resolution, on 21 September 2021, calling for the establishment of such an independent ethics body. That proposal originates in the model for an EU Ethics Bodythat I had the opportunity to craft between late 2019 and mid-2020 and presented to the European Parliament on several occasions.  Under the proposed model, the EU Ethics Body would pool the existing enforcement mechanisms in each main EU institution into one independent body. That would be competent to apply the current ethical frameworks to members and staff of the participating institutions. As such, it would have had a broad competence for the examination of conflicts of interest before, during and after public office and be granted the power to initiate investigations on its own initiative and the power to adopt public recommendations to the respective institutions regarding their members and staff, including recommendations for sanctions.

Why the Commission resisted calls for an EU Ethics Body

Far from endorsing the EU Parliament’s model for an independent EU ethics body, the EU Commission put forward a series of arguments aimed at questioning both its underlying rationale and legality. We strived to address the Commission’s arguments in a study presented before the EU Parliament two days before the Qatargate news story broke and co-authored with American and Australian colleagues. Awkwardly, not only was the Parliament’s hearing scarcely populated but also, no representative from the Commission was in attendance. In its response to the Parliament’s resolution, the EU Commission questioned the need to set up such a new institution in the first place. It rejected the conclusions reached by the EU Court of Auditors, and widely shared by the relevant academic literature, that while the EU ethics system imposes a great, detailed set of rules of conduct to prevent ethical misconducts, its enforcement fails to guarantee their application, and dissuasive effect. Once it contested the need to set up such a new body, the Commission expressed a series of legal concerns aimed at questioning the legality of the proposed model put forward by the EU Parliament. First, it highlighted the risk of “interference between the body and the work of the European Anti-Fraud Office (OLAF), the European Public Prosecutor’s Office (EPPO), the European Ombudsman, the European Court of Auditors or the CJEU”, without however substantiating such a concern.

Under the proposed model, the body’s scope of action would not overlap with any of the existing institutions, whose mandate is ancillary to the current ethics body and therefore withstand its establishment (e.g. OLAF is only involved in case of “serious misconducts”). The narrow scope of action of these specialized institutions leaves open an entire category of misconducts by members of the EU institutions that by failing to qualify as ‘serious’ they may escape OLAF’s investigatory powers, as well as the initiative by the Commission and Parliament (and their Presidents) vis-à-vis its own members. Second, the Commission contested the possibility of entrusting the proposed body with decision-making powers, in addition to its advisory authority, by invoking the Meroni delegation doctrine. However, this statement seemed to lack a full grasp of the proposal put forward by the Parliament, which merely entails the transfer of competences enjoyed by the existing ethics bodies scattered across the EU institutions to one, independent body.  Third, the Commission contested the proposed legal basis to set up the body, by arguing that it would exclude all “other institutions, agencies and bodies from joining at a later stage and concern issues, which affect Members of all EU institutions in the same way”.  This, however, does not reflect current legal practice where bodies have been established on this basis, such as the EU Publications Office, the European Administrative School, and the Computer Emergency Response Team (CERT), and remain open to subsequent accession.

It light of the above legal arguments, EU Commissioner Věra Jourová announced in early December 2022, just a few days before the scandal erupted, that the proposal would likely be a “thin layer,” consisting of an “advisory board” without the ability to investigate or enforce rules across EU institutions.

The largest and most damaging political scandal struck less than two weeks after Jourová’s announcement. As this captured and shocked the entire EU political and institutional system, one might have reasonably expected a major change of gears. Yet, at the time of writing, it appears unlikely that von der Leyen’s original promise to structurally improve the existing EU ethics system through establishing an independent Ethics Body will be kept. Should it ever see the light of the day, this new institution might be a mere advisory body at best or a toothless institution at worst. Ultimately, the Qatargate’s legacy may boil down, in line with the historical evolution of the EU ethics regime, into adopting a few incremental, marginal reforms. In other words, not even the unprecedented and crude nature of such a scandal generated enough political will within the EU political class to lead to serious reform. Political leaders seem to stick to the long-held belief that as long as the damaging effect of the scandal fades away, they will be able to get away with it.

Qatargate as a missed reform opportunity for the Union? 

This complacent reaction by the EU political leadership does not only appear a risky bet, a few months ahead of the next EU Parliament’s election in May 2024, but also a missed opportunity for the Union’s democratic life. According to the literature on the impact and legacy of political scandals, events such as the Qatargate have a potentially positive effect on institutional accountability and voter attentiveness. Notably, scandals may increase the quality of discourse in the media about issues by clarifying the public understanding of obscure phenomena, be it lobbying (conceptually different than corruption) or the very same operation of the European Union.  When one considers that the European public is notoriously illiterate regarding EU governance – often even being unable to answer basic questions about its players, procedures, or the overall system –, Qatargate might still offer both an unmissable pedagogical opportunity and political momentum for reform. While individuals, rather than the system, have been in the eye of scandal, Qatargate’s overall coverage has brought the European Parliament to the attention of the many. More citizens than ever realized that if third countries – like Qatar or Morocco – are willing to spend unlimited sums to influence EU decision-making that suggests that the EU Parliament has power, and that therefore they had better pay attention next time they are called upon to vote for their representatives.

Amid the disappointing procedure that led to the choice of Ursula von der Leyen as Commission President – in manifest breach of the Spitzenkandidaten process –, EU leaders can hardly afford to miss this unique opportunity to prepare a convincing answer to the question many citizens will soon be asking: Why vote in the next EU Parliament’s election in 2024?