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A Failure to Protect the Independence of the European Commission
By John Bruton
Lack of Fair Process, or of Respect for the EU Treaties
I have always believed that the independence of members of the European Commission was a keystone of successful European integration. Commissioners are obliged by their oath of office to seek a European solution to problems, rather than just seek a balance between conflicting national interests. Since 1958, they have done so, and this is why European integration has succeeded, while efforts at integration on other continents have failed, under the weight of national egoism.
The larger the membership of the European Union became, the more important did the independence of Commissioners from national politics become. Some believe the Commission is too large. From an efficiency point of view, they have a point. But Ireland, among others, has insisted that, despite this, each member state should have one of its nationals as a member of the Commission at all times.
But if the "one Commissioner per member state" rule is to be kept in place, as the Union enlarges, Commissioners, from all states large and small, must demonstrate that they put the European interest first, and are not subject to the vagaries and passions of politics in their country of origin. In other words, European Commissioners must be independent, and be seen to be so. All member states must be seen to respect this.
This is why I am so deeply troubled by the attitude take by the Irish government, and then by President Von Der Leyen of the European Commission, to calls for the EU Trade Commissioner Phil Hogan to resign.
Both of them failed in their understanding of the European Union, and of one of its vital interests… namely the visible independence of members of the European Commission from the politics of any one EU state, large or small.
I was genuinely shocked by what happened. Late in the evening of 22 August, the leaders of the Irish Government called on the EU Trade Commissioner, Phil Hogan to "consider his position". Those words mean resign. They piled on the pressure thereafter, with a further statement, on 23 August, containing a political determination that he had broken their Covid 19 rules. Phil Hogan did resign on 26 August. That was his decision and one he was entitled to make.
Lessons from this Precedent
But there are profound lessons to be learned by President Von der Leyen, and by the Commission as a whole , as to how, and to whom, Commissioners should be held accountable, and a need to understand what this precedent means for the future political independence of Commissioners from their home governments.
Separately, there are also questions to be asked about the internal management of, and the collegiality, of the Commission. I will set out my concerns here, drawing on the words of the EU Treaty, which I helped draft as a member of the Convention on the Future of Europe.
On the 26 August, President Von der Leyen clearly withdrew any active support from Commissioner Hogan, and unquestioningly accepted the line of the Irish Government. This influenced him to resign his position. In this action, I contend that she did not fulfil all her responsibilities under the Treaties. I know she faced a genuine political difficulty. But the Treaties were framed do deal with fraught political situations, while preserving the independence of the Commission and due process.
The Commission is guardian of the Treaties, and should be seen to defend the rules laid down in the Treaties in all circumstances, even when it is politically difficult. Article 245 of the Treaty requires member states to respect the independence of Commissioners. Ireland is bound by that article having ratified it in a referendum.
One should note that Article 245 refers to respecting the independence of Commissioners individually, not just to the Commission as a whole. It is for the Irish government to say whether publicly demanding a Commissioner's resignation, for an alleged breach of purely Irish rules, is compatible with the Irish government's Treaty obligation under Article 245 to respect his independence, It had other options,
If any Commissioner is visiting a member state for any reason, he or she is subject to the laws of that state, on the same basis as any other citizen. A visiting Commissioner would not be above the law, but nor would she be below it either. If she breached the law, due process in the Courts ought to be applied, as to any citizen. This what would have happened if the visiting Commissioner were from any country other than Ireland and had had the difficulties which Phil Hogan had…. due process would have been followed.
The statements of the Irish government, and the unsatisfactory explanations by Phil Hogan, did create political problems for the President of the Commission. She had to do something, but not necessarily what she did do. But there were options available to her which, inexplicably, she failed to use or even consider.
Rules Ignored
Commissioners are subject to a Code of Conduct, last updated in 2018. Under that Code,
there is an ethics committee to determine if the Code has been breached. If the matter was urgent, there is provision for a time limit to be set for a report by the Committee. But a reference to the Ethics Committee would have allowed for due process, and a calm and fair hearing. More importantly using this process would also have asserted the independence of the Commission as an institution.
The Code says that it is to be applied "in good faith and with due consideration of the proportionality principle" and it allows for a reprimand. where the failing does not warrant asking the Commissioner to resign. Now, because of the course followed, we will never know if there was any breach at all of the Code at all by Phil Hogan.
President Von der Leyen's failure to use these mechanisms seems to be a serious failure to defend due process and proportionality, and to protect the independence of individual Commissioners, as she was required to do by the Treaty. The Commission and the Parliament should enquire into why she did not do so. There are consequences now for the viability of the Code of Conduct, if it is not to be used in a case like this.
Criteria Not Applied
Was what Phil Hogan did a resigning matter anyway? Article 247 allows for only two grounds for asking a Commissioner to resign. There are that he or she is "no longer being able to fulfil the conditions for the performance of his duties", or "has been guilty of serious misconduct". I do not think either condition was met in this case. Phil Hogan would have been fully capable of carrying out his duties while the Ethics Committee did its work. Instead his position is now effectively vacant.
Most people I have spoken to do not think the breaches committed by Phil Hogan, while foolish, amounted to "serious misconduct" within the meaning of Article 247. Failure to recollect all the details of a private visit over 2 weeks, or to issue a sufficient apology quickly enough, may be political failings, but they hardly rise to the level of "serious misconduct". Any deliberate and knowing breach of quarantine should have been dealt with in the Irish courts without fuss.
In any event, President von der Leyen would have been far wiser to have got an objective view on all these things from the Ethics Committee, before allowing Phil Hogan's resignation.
Why Did the Commission Not Meet?
Another issue is the President's failure to call a Commission meeting, if she was considering that a Commissioner should resign. Under article 247 it is the Commission, not the President alone, who may compulsorily retire a Commissioner, and even then, they must have the approval of the European Court of Justice. These safeguards were put in the Treaty to protect the independence of the Commission. They were ignored in this case.
The resultant weakening of the institutional independence of the Commission is very damaging to European integration and to the interests of smaller EU states. This should be of concern to the European Parliament.
John Bruton is former Taoiseach (Prime Minister) of Ireland and former EU Ambassador to the United States.
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