By Martin Wilam
9th December 2022, a series of raids led by the Belgian federal police triggers one of the most serious corruption scandals that has hit the European Union in many years. The so-called ‘Qatargate’ has brought to light the need for the European Union to come up with a set of tools encouraging transparency and accountability at the level of the European institutions.
The historical European lack of measures and the thorny road to the first transparency reinforcement proposals
The transparency issue touches upon the lobbying and interest groups in particular, which can influence the decision and policy-making processes within the EU institutions. Considering that Brussels is a city with the second highest concentration of lobbyists in the world, a regulation of the lobbying activities is more than needed. Yet only a Transparency Register has been in place since 2014, requiring that all organisations seeking to influence policy-making in the EU institutions have to be registered and abide by a code of conduct.
President of the European Commission Ursula von der Leyen first shared the idea of broadening the control over the contacts of its civil servants and elected actors during the 2019 Political Guidelines presentation. She stated that “if Europeans are to have faith in the EU, its institutions should be open (…)”. Therefore, she expressed her will to support the creation of an “independent ethics body” common to all EU institutions.
Members of the European Parliament recalled this promise in their resolution from 16th September 2021. They asked the European Commission to “strengthen the transparency and integrity in the EU institutions by setting up an independent EU ethics body”. Their major argument was that a “single independent EU ethics body”, therefore common for every EU institution, “could better ensure the constituent and full implementation of ethics standards to guarantee that public decisions are taken with a view to the common good and citizens’ trust in the EU institutions”. They proposed an interinstitutional agreement based on Article 295 of the Treaty on the Functioning of the European Union (TFEU) for the establishment of the ethics body firstly for the Parliament and the Commission, with the possibility for the other EU institutions to participate in.
Since the European Parliament does not possess a direct right of legislative initiative, it took 17 months for the Parliament’s resolution to give light to the proposal discussed by the Commission. In this case, though, the length of the process was also due to external, unprecedented events, such as the ongoing Covid-19 pandemic and the Russian invasion of Ukraine and the related energy crisis. All these events are obviously major points of interest for the EU policy-makers, and this slowed down the already long process for the ethics body creation.
The Qatargate scandal gave the process a boost again – the Commission’s proposal for a joint agreement between the institutions to establish an inter-institutional ethics body is finally on its way in March 2023.
Need for an independent ethics body
To make the EU institutions more transparent, it is necessary to present a set of strong ethical standards and rules. Not only because of the most recent Qatargate, but also ‘Cash for Amendments’, or ex-MEP Ernst Strasser corruption scandals, there is a clear need for establishing an independent ethics body on an overall EU level to preserve its credibility and justify the EU’s status as a “community of values and rule of law”. Independency is an essential condition for the new body as for its authority and credibility before both the concerned officials and the EU public.
Luckily, speeded up by the recent evolutions, the Commission is finally coming up with its proposal. According to the Commissioner for Values and Transparency Věra Jourová, the newly established ethics body could be common to all institutions and advisory bodies: the Commission, the Council of the EU, the Parliament, the European Central Bank, the Court of Auditors, the Court of Justice, the Committee of the Regions, and the Economic and Social Committee. Within its mandate, the ethics body could also work with and control declaration of assets and conflict of interests. The proposed measures want to ensure common high standards of integrity and independence and also similar control mechanisms to all institutions. It should notably allow the EU to live up to the high standards expected by the EU citizens.
It is of utter importance that both EU elected officials and EU staff must be included in the scope and mandate of that body. It has to be able to cooperate with other bodies, such as the European Anti-Fraud Office (OLAF), the European Public Prosecutor’s Office (EPPO), or the European Ombudsman. Moreover, the body should mainly focus on advising, monitoring, and investigating. If everybody agrees on the body’s advising function to be used for ethical rules, there is quite a controversy regarding the other two powers, namely the monitoring and investigating powers.
Power to initiate investigation is necessary
In her opening remarks on the establishment of an independent ethics body, Commissioner Jourová said that the entity “might be about investigation and probably also sanctioning”, however, the way in which legally presenting the changes remains a challenge. If the EU wants to truly fight unethical behaviour efficiently and also be able to lead inquiries, the power and right to initiate investigation on its own is an indispensable power for the ethics body. In this way it will be able to conduct on-the-spot and record-based investigations, also supported by information gained by third parties. This was equally stressed by the MEPs, in their draft resolution, where they also emphasise the need for the body to check the truthfulness of the declaration of financial interests. The issue here is if the Council of the EU will be eager to sign such a provision, regarding the fact that the ministry-linked diplomats are subject to national laws. This will probably be an issue of future negotiations on the final draft.
Need for mandatory and publicly accessible “transparency registers”
The ethics standards, mostly regarding the lobbying activity, already exist within the institutions, even though the Council does not have a system in place to protect itself from unethical lobbying. The main problems of these existing measures are their fragmentation and non harmonisation, and the fact that they rely on a self-regulatory approach which has proven to be ineffective. Thus, to strengthen the trust in the EU institutions and to bolster its democratic legitimacy, the EU must reform the Transparency Registers systems and present a mandatory, publicly accessible registers, with common rules for all the institutions. The registers need to be imperatively mandatory for all actors, including all the EU staff and the elected figures and their staff (APAs in the Parliament, for instance). Even though the registers will never be 100 % transparent, the EU has to try to approach the highest transparency standards possible. Therefore, all meetings scheduled with third parties are to be put out to the public and recorded in the registers. This rule should be applied to all lobby meetings, not only to those directly related with a dossier, as it is the case in the Parliament. The register must be also easily accessible and in a machine-readable format. It should include information on the meetings, but also on declarations by the officials, and the list of sanctions. The staff is sometimes inefficient and disorganised, and resources are lacking, so it is not always easy to oversee the register, go through the declarations and check documents. All of this creates potential loopholes in the system. EU institutions could update their system using AI technologies that could control the registers and database. This should, nevertheless, still be double-checked by the staff. Finally, if there was a register with common rules, a database that could collect all the registers together and, for instance, compare how many meetings or interviews the EC had with NGOs, private companies, trade unions and so on. It would be possible for journalists and scholars to compare the influence of each of the interest groups in Brussels.
Protecting whistleblowers
It is important that the Commission adds a tool that would protect whistleblowers so that they would feel safe to express their concerns about any rule violation without fear of reprisals. These people need to be protected by all possible means. This point is equally supported by MEPs, who stress that the EU ethics body should supervise the internal and confidential complaint mechanisms. Together with this provision, a revision of the Code of Conduct rules should be envisaged. As emphasised by Transparency International, mandatory training for whistleblowers should take place and be extended to any superior that can receive potential whistleblowing reports.
Improvement of the cooling-off period rule
Parliament equally suggests that the EU ethics body should be tasked with harmonising cooling-off periods throughout the EU institutions. One example of a cooling-off period is the fact that an ancient MEP or other officials cannot lobby for the service they serve immediately after the end of the mandate because of a conflict of interest, a certain period of time has to pass so they can lobby within the EU institutions. We already know that around 50% of ex-Commissioners and 30% of former MEPs worked for companies listed in the lobby register after the end of their mandate. The phenomenon of “revolving doors” has to be under control in order to avoid potential negative influences within the institutions.
Further reforms for the Parliament
To minimise the lack of trust in the public eyes, one year before the election the Parliament should reinforce its ethics and control system and apply further reforms itself. The MEPs themselves should keep in mind that, once elected, they have to be accountable not only to their voters but also to all the citizens. Considering the latest scandal involving Qatar and some MEPs, the Parliament should act and create a Special Committee that will deal with all the consequences Qatar-related in order to reestablish the trust in the institution. The Parliament should revise the MEPs offices’ expenses without any justification. This is wrong in principle and should be revised with obligatory justification and reports. To let the EU organs carry fruitful investigations, the OLAF bureau should be granted access to MEPs offices under the condition of serious suspicion for illegal activities carried on by a MEP. This should be a shared decision and done in cooperation with the Belgian Federal Police. Finally, a ban on unofficial friendship groups with third countries should be presented.
Protection and rehabilitation of the EU’s image
If such scandals as the Qatargate do not undergo an independent investigation and the suspects or persons found guilty do not face the due punishments, EU citizens can very easily lose faith in the European project. Even though most respondents of the last Standard Barometer survey for Winter 2022/2023 say they trust the EU, there is still an important number of EU citizens, notably in the most populated Member States such as Germany, France, Spain, or Italy, that tend to distrust the EU. A year before the European Parliament election, one of the few moments where European politics is directly influenced by the citizens, we are facing many critical situations that can negatively influence the citizens’ trust. This may result in them voting for a populist movement or party whose rhetoric is mostly anti-European. Over time this could unfavourably affect the future of the European project. Thus, an independent EU ethics body will also help preserve and bolster democracy. Authorities have to carefully explain what steps have been taken to restore the situation, especially in the Parliament, and to what extent the new set of rules will help avoid such illegal practices.