5 ways EU’s ethics body just might work — or not
BRUSSELS — The European Commission says it has a plan to create a serious ethics watchdog.
Critics say it’s nothing but a “toothless bulldog.”
A plan to create an independent ethics body that would align ethical standards and approaches to enforcement among EU institutions long predates Qatargate. Yet the six-month-old European Parliament bribery scandal created fresh urgency — and highlighted the limits of current self-enforcement.
Transparency advocates inside and outside of the Parliament wanted to see the Commission create an external ethics cop that would investigate accusations of corrupt conduct and dole out punishment.
Věra Jourová, who is Commission vice president for values and transparency and responsible for creating the ethics body, has consistently ruled out using this type of power for an ethics body. At an unveiling event on Thursday, she described “a very strong legal reason” for leaving decisions on individual cases to each institution. “The institutions have full legal power for such things.”
Yet she insists the body won’t be toothless, and her team is attempting a feat of legislative jujitsu to dodge the political and legal obstacles that have thus far blocked substantial accountability.
Jourová said she would personally “defend” the proposal; her work is cut out for her. Here are five ways the Commission’s proposal could have teeth — and how critics contend it could be defanged.
Common rules
Right now, Commissioners have a two-year cooling off period before they can lobby their colleagues, while it’s (only just now) six months for MEPs. This is the type of standard the bodies would work to align — along with policies on asset disclosure, side jobs, accepting third-party gifts and other factors related to conflicts of interest. There’s a nonregression policy, meaning an institution can’t backslide to a common standard if it’s lower than what it already has. Under the agreement, institutions are obligated to implement the common standard.
Critics say: Each institution gets to choose its own representative to sit on the ethics body — and the ethics body’s decisions must be reached by consensus. So by sending a less ambitious member, an institution could lower the common denominator. The ethics body could agree, for example, on a six-month minimum cooling-off period, keeping the Parliament in compliance, while the Commission keeps its two-year enforced break.
Legal accountability
Many critics of the EU’s current ethics regime point out that existing rules are poorly enforced. The NGO at the center of Qatargate, for example, wasn’t in the Transparency Register — so it should not have been able to hold events on Parliament premises. In addition to setting common ethics baselines, the body would also agree on enforcement standards, including how to approach sanctions.
The thinking in the Commission is that if the ethics body can’t enforce rules itself, it can be used for institutions to require external accountability for their internal enforcement. Crucially, if an institution is found to be in breach of the common standards, it could be subject to a challenge in the Court of Justice of the EU.
Critics say: Whether the ethics body or other institutions could actually take one of their fellow legislators to court is highly disputed. The institutional agreement “will oblige each signatory institution to collaborate on defining minimal standards BUT it can’t impose on the same institution their adoption,” said Alberto Alemanno, a professor of EU Law at HEC Paris, in an email. “The question is not whether another institution can bring the [Parliament] before the ECJ, but whether the new standards will be adopted by the [Parliament] in the first place.”
Even if it is possible, others argue, it’s such a complicated process that this is not a serious solution. A recent precedent for using inter-institutional agreements to enforce integrity standards was illustrative: An effort to make entry in the Transparency Register mandatory for meetings is being widely panned as a failure.
Deadlines
The parties aren’t able to slow walk, as the Commission sees it, writing multiple deadlines into the agreement. Common standards would have to be adopted within six months, and there would also be deadlines for implementing them in each institution.
Critics say: What’s the consequence of missing a deadline?
Report cards
It should be pretty easy for interested citizens to see what the new standards are, and whether the institutions are adhering to them, according to the Commission design. Each institution would have to write a self-assessment about how their current approach squares with the new standards. And you wouldn’t just have to just take their word for it — five independent experts who observe the ethics body also get to weigh in, and their views are incorporated into a final report that goes public.
Critics say: So what? This isn’t going to create enough political pressure to improve the broken system of self-policing. “MEPs check on MEPs, then we get bad grades from the ethics body telling us, ‘Look you should sanction harder,’” said German Green MEP Daniel Freund, the rapporteur on the Parliament’s 2021 call for a sanctioning body, mocking the plan.
Freund acknowledged that sanctioning power might need to stay within the institutions — but the ethics body would need to be more specific to be effective. For example, he said, it could issue public recommendations on how to punish instances of wrongdoing — but that, again, would involve investigative powers the ethics body doesn’t have.
Leaks
Deliberations of the ethics body would be private, reflected publicly only only in publications of its agreements, assessments of members’ compliance and in an annual report. However, the work of the ethics body includes a built-in set of discussions and debates amongst the body’s members — along with the independent observers. Sure, it’s all supposed to be confidential, but that’s not lost on anyone that this creates opportunities for anonymous sources frustrated by a lack of process to name-and-shame players who are holding back serious overhaul.
Critics say: Given how even post-Qatargate pressure ahead of an election year hasn’t yet prompted serious soul-searching about ethics, why would some insider sniping have any impact? (PSA: POLITICO is here for all your insider sniping.)
Bottom line
Best-case scenario, the Commission has cleverly circumvented political and legal obstacles to enact an overarching ethics referee. Yet even a technical triumph could prove a Pyrrhic victory when it comes to the public.
It is “really important not to fool the people,” said European Ombudsman Emily O’Reilly on Tuesday, in advance of the proposal’s unveiling. “What most people commonly understand is it would be independent […] that it would have strong powers of investigation.”
Even as she defended her proposal’s potential to have a real impact, Jourová hinted at frustration of those looking to the Commission to clean up the Parliament — and suggested MEPs clean up their own house.
“There are things that should be clarified in the European Parliament,” she said, “and in my view it should be done before the [June 2024] elections.”
Nicholas Vinocur contributed reporting.
