The Ethical Committe’s Opinion on Barroso
In the aftermath of the publication of the opinion of the ad hoc Ethical Committee of the EU Commission, the media fret to communicate that Mr Barroso didn’t break ethics rules when joining Goldman Sachs.
It is key to contextualize and assess the merits of such an opinion.
- The opinion is merely advisory in nature and responds to a request submitted by President Juncker whose terms of reference remained unknown. The attempt at obtaining the text if this referral to the ethical committee was unsuccessful.
- The EU Commission (rectius the College of Commissioners) is now expected to take a decision on how to proceed, in line with Article 245 TFEU, in relation to Mr Barroso potential breach of its duties of former Commissioner. Under Article 245, “in the event of any breach of these obligations, the Court of Justice may, on application by the Council acting by a simple majority or the Commission, rule that the Member concerned be, according to the circumstances, either compulsorily retired in accordance with Article 247 or deprived of his right to a pension or other benefits in its stead”.
- In the absence of full knowledge of the original request, it is a difficult task to assess the merits of the opinion. All the more so, when this reads more as a judgment of the CJEU than as an advisory opinion capable of providing guidance to the college of commissioners on how to proceed with Mr Barroso. One may observe tongue-in-cheek that one of the committee’s members served as judge for more than a decade.
- The Ethical Committee adopts a rather restrictive view of its own consultative competences. Contrary to what is suggested the committee enjoys this authority – by virtue of Article 2.3 of the Code of Conduct – well beyond the notification period foreseen in parallel to the cooling off period of 18 months. Yet the Committee “exceptionally” accepts to examine whether Barroso’s decision to join Goldman violates the code of conduct, notably its duty of integrity and discretion, under Article 245(2) TFEU.
- To verify whether those duties have been breached, the Committee structured its own assessment upon the three main objections stemming from the ‘stormy reception in the media’:
a. Goldman Sachs is not any other bank
b. Barroso was hired to advice on Brexit
c. Instance of ‘Revolving doors’
- While the opinion recognizes that duties of integrity and discretion formally exist well beyond the cool-off period, it then abruptly concludes that the Code of conduct fails to operationalize such ongoing duties (para 12). Indeed, the existence of those duties would de facto cease to exist – as confirmed by the corresponding duty of notification – after the expiration of the 18-month cooling off period.
- This is the fundamental yet the least persuasive point of the opinion. The duties of integrity and discretion derive from Article 245 TFEU and as such they prime over the Code of Conduct, and that regardless of the language herewith employed. Putting the blame of the “(in)sufficiently” strictness of the Code to its language does not only sound unconvincing but also legally inaccurate, all the more so when this argument is used all along the opinion (also in relation to b and c). While it is true that the Committee “must base its opinions on the Code of Conduct as it stands”, its advisory competence must not be exercised in a vacuum but in the light of the relevant Treaty provisions.
- The EU ombudsman in her likely forthcoming inquiry might recognize the committee’s overall approach to the exercise of its prerogatives as a case of maladministration. One may indeed question whether it is correct to argue – as the Committee did – that it is not its role to determine if the Code of Conduct is sufficiently strict.
In its opinion, the Ethical Committee provides a rather formalistic and as a result narrow interpretation of the ethical duties imposed on former EU Commissioners. In substance, it denies the existence of ethical duties on former Commissioners beyond the cooling-off period of 18 months. This conclusion denies not only the rationale but also the effet utile of Article 245 TFEU.
While reading the opinion one cannot escape the realization that its tone, reasoning and conclusions all reflect the old-boy-network’s approach that characterizes the EU ethical system.
Time for plain speaking as an antidote for plain action?