Being a member of the European Commission seems to turn more and more into a mere stepping stone on the way to a lobbying post with a private company or an interest group. All but one of the members of the Barroso I Commission (in office until 2009) have signed on with the corporate sector. Now it’s the Barroso II Commission’s turn, and the former Commission president himself is leading the way. It was him who, in 2009, pushed for a tightening of the “Code of conduct for Commissioners” (CoC) after some spectacular and scandalous cases of former commissioners changing sides. The fact that many of these cases happened already during the “cooling-off period” turned the spotlight on the composition and the procedures of the Ad hoc Ethical Committee – which is exactly the issue where the College has so far shown the least willingness to change.
The Barroso II commissioners learned from their predecessors’ mistakes. They waited for the 18-month period to lapse. The rules were respected, thank you very much. The case of former Commissioner Kroes is one of its own, where also the Commission itself was taken for a ride – I cannot imagine that the Commission was aware of her having kept the post at the offshore firm.
The Goldman Sachs hiring of Mr Barroso is an exceptional provocation, but in a way I am grateful for it, because it highlights important weaknesses of the current rules.
These weaknesses concern the Commission President, who always may and must be his own judge, as well as the length of the 18-month cooling-off period. The international environment with which we are dealing also plays a role: Vice-President Timmermans never gets tired of asserting that the CoC is indeed strict enough when compared to other systems worldwide. On closer inspection, one can find many examples of clearer rules and less room for interpretation.
- Three studies – one dating from 2009, its updated version from 2014, and another study from 2015 – spell out several shortcomings of the current provisions. Currently, commissioners only have to disclose information “which might create a conflict of interest in the performance of their duties” (CoC, section 1.3). There are two problems with this: first, commissioners can decide themselves whether an information is worth disclosing, and second, there are no clearly defined criteria that may guide them through such a decision. In fact, there is not even a precise definition of what constitutes a conflict of interest.
What is more, current rules are limited to the portfolio of the commissioners, which ignores the fact that commissioners act as a college and are thus involved in other policy areas beyond their own portfolio.There is also no requirement to declare debts and liabilities, and no obligation to divest assets that may be affected directly or indirectly by Commission decisions.
The updated study makes the following recommendations:
- Commissioners should declare all financial interests (assets and liabilities) above a certain value (e.g. €10,000).
- Partners and dependent children of commissioners should disclose the same information as their spouses.
- An electronic, machine-readable format of the declaration should be introduced.
- Introduce sanctions for minor infringements (e.g. reporting of infringements).
- Publish annual reports on the CoC’s application.
- Establish a dedicated website on the CoC’s application.
- Establish guidance materials (e.g. define the term ‘conflict of interest’) and disseminate information on ethics ‘cases’.
Establish a structure to oversee the application of the CoC (Advisory Group on Standards in Public Life or ‘widened’ Ad hoc Ethical Committee), with members to be nominated in agreement between the European Commission and Parliament, and supported by a secretariat (e.g. one post within the Commission Secretariat-General).
The most recent study is interesting because it lists the information requirements for members of national parliaments. Commissioners are no MPs, but they hold a public office, so the requirements for MPs may serve as examples or benchmarks for the declarations of financial interests of commissioners. In national parliaments, members have to disclose the following additional information:
- travel paid by third parties,
- gifts, benefits, donations and hospitality received during the past year, as well as the identity of donors,
- movable property of value (such as e.g. a yacht),
- assets located within and outside the EU,
- financial interests of spouses/partners and dependent children,
- conflicts of interest in relation to family members.
There is another issue that is not mentioned in any of the studies: in recent years, NGOs have become one of the most active lobby groups (e.g. Bureau Européen des Unions de Consommateurs, Friends of the Earth Europe, Greenpeace Europe, WWF, Transport and Environment, Oxfam…). They are the most frequent visitors to Commissioners, and their lobbying impact should not be underestimated. When it comes to environmental legislation, NGOs dominate the lobbying field. NGOs also act in their own interest, so the ties of Commissioners to such NGOs are of public interest. Therefore, memberships in such organizations, or donations to NGOs, may also be considered relevant for disclosure.
It would be best if the Commission opted for a “Regulation on Commissioners”, which would define the rights and obligations of active and former Members of the Commission, and which would be adopted in a democratic manner through the codecision procedure, rather than provoking further scandals time and time again through imposed voluntariness. Credibility would also help. Never before has there been an Ad hoc Ethical Committee like the present one, whose members work at the same time as advisers to the very commissioners on whose further employment they might have to give a verdict later.