Ethics commissions in the EU institutions

Important differences also exist amongst the EU institutions as regards the existence of ethics commissions and/or ethics officers. Compared to countries like the USA, Canada and Australia, the EU institutions have no external ethics committees or inter-institutional ethics bodies. Instead, some of the European institutions have established internal committees or advisors who should be consulted on ethical questions. For example, the European Commission and the European Investment Bank have established ad hoc committees which should be consulted concerning post-employment issues. Also the Code of Conduct and the Rules for Implementing the Rules of Procedure of the European Court of Auditors provide for a committee responsible for examining outside activities of the Members of the Court of Auditors. To this should be added the Ethics Advisor of the

European Central Bank and the Compliance Officer in the European Investment Bank.

The European Court of Justice and the European Parliament have no advisory bodies.

Because of the non-existence of (independent) external ethics committees (with investigative and/or sanctioning powers), all EU institutions reply on the principle of self-regulation of conflicts of interest. Self-regulation means that the ultimate decision-making and sanctioning powers will be decided by internal bodies or persons.

Interesting cases concern the Code of Conduct of Commissioners, the Code of the European Investment Bank and of the European Court of Auditors. For example, the Code of Conduct of Commissioners stipulates: “Whenever Commissioners intend to engage in an occupation during the year after they have ceased to hold office, whether this be at the end of their term or upon resignation, they shall inform the Commission in good time. The Commission shall examine the nature of the planned occupation. If it is related to the content of the portfolio of the Commissioner during his/her full term of office, the Commission shall seek the opinion of an ad hoc ethics committee. In the light of the committee's findings it will decide whether the planned occupation is compatible with the last paragraph of Article 213(2) of the Treaty” (1.1.1. Outside activities, Code of Conduct for Commissioners).

The Code of the Investment Bank is very similar. According to the Code former members of the Board of Directors shall “submit for adjudication to the Secretary General” any official/professional position proposed to them”, for a period of six months following the termination of their mandate. If the Secretary General considers that a potential conflict of interest could arise, he will advise the President of the Bank to submit it to the Ethics Committee (Code of Conduct of the Board of Directors, p.4).

In the European Court of Auditors Art. 6 of Decision No. 92 – 2004 rules: “Members shall declare their outside activities to the President of the Court who forwards these to a Committee which is composed of three Members of the Court, who shall preferably not be engaged in outside activities.”

When reading these rules carefully it can be seen that the ultimate decision-making powers on conflicts of interest should be kept internal. There is no space here to discuss more extensively whether these forms of self-regulation are effective, credible or whether they may even produce new conflicts of interest for those persons who must ultimately decide. In most cases the decision-making power is given to internal persons (the Commission, the President, Members of the Court of Auditors) who are in close contact with the person in question.

the Director General of the Legal Service who shall assess whether the particular situation relates to a:

– Category I situation (factual circumstances involving a specific undertaking listed in Annex 2 during the time that the Commissioner served in boards or as an advisor)

– Category II situation (factual circumstances involving any specific undertaking listed in Annex 2 although the Commissioner was not serving on a board or as an advisor), and

– Category III situation (other factual circumstances that may give rise to a potential conflict of interest)

Whereas the rules and standards which are laid down in this international arrangement may be impressive⁷⁵, it is another question whether they do not create new dilemmas for the Directors-General concerned and the President of the European Commission when analysing actual or potential CoI. The President may decide on the reallocation of the dossier to another Commissioner or to decide to take the case himself. It should be stressed that, in accordance with the Framework Agreement on relations between the European Parliament and the Commission, the President of the Commission shall be fully responsible for identifying any conflict of interest which renders a Commissioner unable to perform his/her duties. The same framework agreement adds that the President of the Commission shall inform the President of Parliament of all cases of reallocation of dossiers due to possible conflicts of interest.

Thus, according to these rules the ultimate decision on a breach of the Code by a Commissioner lies with the President of the European Commission. This raises the question whether the ultimate power to decide on breaches of interests of individual Commissioners will not produce another conflict of interest for the President of the Commission. Even if he/she is neutral would he/she have an interest in provoking a crisis within his/her own commission? Or would he/she be tempted to save the face of the Commission? And what happens if the President breaches the code? A similar question arises as to the position of the Quaestors in the European Parliament.

In the Court of Auditors too internal conflicts of interest may be provoked when Members of the Court declare their outside activities to the President of the Court who forwards these to a committee which is composed of three Members of the Court, who shall preferably not be engaged in outside activities (Decision No. 92 – 2004) The President of the Court ensures that negative recommendations by the committee are implemented. This practice also poses enormous challenges as to the independent behaviour of the President.

However, the European Commission and the EIB (and partly the CoA) are still far ahead of the other institutions that have no or even weaker forms of internal self-regulation. In order to change this situation the European Commission proposed setting up an Advisory Committee on Standards in Public Life in the year 2000. The purpose of the 2000

75 It should be mentioned here that additional detailed ethical rules o financial interests, gift policies, insider dealing and personal relationships apply to the Staff of DG Competition as well as to seconded national experts and the Cabinet of the Commissioner.

proposal was to propose a very “light” form of ethics committee. The committee’s tasks were to offer independent advice to the European institutions on standards of ethics. It was NOT expected to comment on individual cases. However, the European Parliament did not support the proposal made by the Commission in 2000 for a single advisory ethics committee. Rather the Parliament felt that it should have its own ethics committee and not a single body competent for all institutions. However, until the present no such committee has been set up.

VII. EVIDENCE AS TO THE EFFECTIVENESS OF