Guest blog post by Roberto Yunquera Sehwani, Law and Political Science student at Universidad Autónoma de Madrid.
As a result of Goldman Sachs’ recent recruitment of former President of the European Commission, Jose Manuel Durao Barroso many have wondered whether Brussels has any rules to control the European Commission’s revolving doors. The EU indeed has rules on the employment of former Commissioners and even an Ad Hoc Ethical Committee to assess risks of conflicts of interest. However, in practice, after an eighteen month cooling off period, much of the control relies on the former Commissioner’s own assessment of whether his new occupation violates his duty to “behave with integrity and discretion.”
The Limited Rules
Article 245 of the Treaty on the Functioning of the European Union states that “when entering upon their duties [European Commissioners] shall give a solemn undertaking that, both during and after their term of office, they will respect the obligations arising therefrom and in particular their duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain appointments or benefits” (emphasis added).
A Commission Decision on a Code of Conduct for Commissioners of 2011 establishes further rules on the activities of Commissioners once they leave office and imposes a cooling off period of eighteen months. Former Commissioners must inform the Commission within a minimum four week notice whenever they intend to accept an occupation during the cooling off period. Unless they engage in public office, during the cooling off period former Commissioners may also not lobby or advocate with Members of the Commission on matters for which they have been responsible during their time in the Commission.
After the eighteen month cooling off period, former Commissioners are no longer prohibited from lobbying the Commission and are not required to notify their planned occupations. Nevertheless, they continue to be subject to the general obligations of Article 245 of the TFEU to behave with integrity and discretion. This means that former Commissioners may not disclose any confidential information or engage in activities that may harm the image of honesty of the Commission.
Former Commissioners that fail to comply with these obligations risk being deprived of their right to a pension or other benefits. However, this punishment can only be imposed by the Court of Justice of the European Union (“CJEU”) following a request by the Council or the Commission, but not the European Parliament. Up to date, no case has ever been brought to the CJEU for this matter.
The Ad Hoc Ethical Committee
The Code of Conduct also requires the Commission to decide on planned occupations notified by former Commissioners that are related to their formal portfolio “in light” of the opinion of an Ad Hoc Ethical Committee. This Committee, was created by a Commission Decision in 2003 and is composed of three members: a former judge of the General Court of the European Union, a former Member of the European Parliament and a former Director-General of the European Commission. A Unit in the Secretariat-General of the Commission acts as a secretariat of the Ethical Committee.
Since 2014, the Committee has issued at least 30 opinions on proposed occupations of former Commissioners. Many of the opinions of the Committee refer to occupations in academia and foundations, but quite a few also refer to positions in the private sector.
The Authorization Procedure
In practice, the Commission follows a three step procedure to decide on planned occupations notified by former Commissioners:
- Preliminary Review: The Secretariat-General of the Commission will first review the former Commissioner’s notification and assess whether it requires an opinion of the Ethical Committee. If the notified occupation is an honorary activity or public office, the Commission’s general view is that its authorization is not necessary and it will simply take note of the planned occupation.
If the notified occupation is not related to the former Commissioner’s portfolio, the Commission may avoid requesting an opinion of the Ethical Committee and simply grant an authorization. Past cases suggest that the Commission tends to take the view that the planned occupation will not be related to the former Commissioner’s portfolio if it has a strong academic or cultural background. However, even in these cases the Commission will tend to ask the opinion of the Ethical Committee if the former Commissioner had a bigger responsibility within the College of Commissioners (e.g., President of the Commission).
- Opinion of the Ethical Committee: If the planned occupation is related to the former Commissioner’s portfolio, the Commission must request the opinion of the Ethical Committee. The President of the Commission may also always ask the Ethical Committee for an opinion in case of doubt.
Past decisions suggest that the Committee will look at whether “there is a risk of incompatibility with the interests of the European Union or with Article 245(2) of the TFEU [i.e., duty to behave with integrity and discretion.]”. In assessing this, the Committee puts emphasis on whether there is a risk of conflict of interest. It will also assess other factors, such as whether (i) the planned occupation is “remotely linked to the portfolio of the former Commissioner;” (ii) the new employer is a profit seeking entity; (iii) there were any business contacts between the former Commissioner or his Directorate General and the new employer during the former Commissioner’s mandate; (iv) the former Commissioner will receive a financial gain from the new occupation; (v) the new employer may use the former Commissioner’s privileged knowledge of the EU to gain competitive advantages; and (vi) the former Commissioner will have an executive or advisory role.
While there have been negative opinions of the Ethical Committee (or negative draft opinions), the Commission has refused to disclose them. In practice, we understand that if the Committee issues a negative opinion, the Secretariat-General of the Commission will “informally” ask the former Commissioner to reconsider its planned occupation or postpone it. In effect, after the eighteen month cooling off period, the former Commissioner may take up an occupation even if the Committee rendered a negative opinion provided that he complies with his duty to behave with integrity and discretion.
- Decision of the Commission: The College of Commissioners will issue a decision on the planned occupation of the former Commission unless it is honorary or in public office. Overall, the Commission authorizes most of the planned occupations that are notified.
Most positive Commission decisions will still remind former Commissioners of their obligation not to lobby the Commission within the eighteen month cooling off period and to continue to abide by their obligations of integrity and discretion.
Moreover, even if the opinion of the Ethical Committee was positive or if the Commission has doubts, the Commission may subject its approval to specific conditions. Examples of these conditions include an obligation on the former Commissioner or new employer to abstain from requesting EU funds; requiring the former Commissioner to inform the Commission if any situation with a risk of conflict arises; an obligation to abstain from defending the interests of the new employer before the Commission; and even a prohibition on the new employer from engaging in any type of professional contacts with the units of the Commission that were previously under the responsibility of the Commissioner.
To date, no case against a decision of the Commission on the new occupation of a former Commissioner has been brought before the EU Courts. In theory, a former Commissioner may challenge a negative decision of the Commission before the Courts of the European Union. If the decision of the Commission is positive, private parties or public organizations are not likely to be able to challenge it before the Court. Only the Council and Parliament may challenge it.
As indicated above, the Commission and Council may also ask the CJEU to take disciplinary action against a former Commissioner if he fails to notify the Commission of its planned occupations, lobbies the Commission during the cooling off period, or more generally does not “behave with integrity and discretion.” But again, neither the Commission nor the Council have yet asked the CJEU to take action against any former Commissioner.
In effect, practice to date suggests that after the cooling off period, the only effective control is the former Commissioner’s own assessment of his obligation to behave with integrity and discretion. Nevertheless, the existing rules do allow the EU institutions to exert a tighter control on the Commission’s revolving doors.Blogactiv Team