Out of Commission: Team Juncker moves on

Is there life after the European Commission?

Some members of Jean-Claude Juncker’s team are about to find out. They won’t just be looking for new jobs; they’ll also have to navigate new rules on the jobs they can take and when they can take them.

Juncker’s Commission says it’s made the rules tougher. Brussels doesn’t want a repeat of the anger that erupted when previous Commission President José Manuel Barroso joined Goldman Sachs. Barroso started work at the banking giant, widely criticized for its role in the global financial crisis, right after his official 18-month post-Commission “cooling-off” period came to an end.

The new code of conduct for commissioners “is tough enough to protect the public interest,” said a Commission spokesperson, who declared that it “sets new standards for ethical rules in Europe.”

But campaigners for transparency and against undue corporate influence in politics say the rules don’t go anywhere near far enough to stop potential conflicts of interest.

Emily O’Reilly, the European ombudsman, also concluded after investigating the Barroso case that the new regime falls short. “While welcome, the revised Code of Conduct would not prevent a Barroso-like situation arising in the future,” O’Reilly declared. “Ex-Commissioners have a right to post-office employment, but as former public servants they must also ensure that their actions do not undermine citizens’ trust in the EU.”

The new rules will be put to the test as members of Juncker’s College of Commissioners take up their next roles. Right now, though, it looks like that test may come later rather than sooner.

Many commissioners who have announced their future plans are either sticking around for another term at the EU executive’s Berlaymont HQ or heading for low-profile public-sector jobs back home.

One notable exception is Budget Commissioner Günther Oettinger, who has already set up a consulting firm in Hamburg. The German commissioner has rejected accusations that his new company is an example of the “revolving door” through which politicians pass seamlessly into the private sector to cash in on contacts and knowledge they built up in public service.

Oettinger said setting up the consultancy was “just a preparatory step” and suggested he was just going back to his old job. “I’ve been a tax lawyer before I came to politics and I want to go back as a lawyer,” he told POLITICO’s EU Confidential podcast. “I know my obligations, my ethical obligations, I know all of them.”

However, Oettinger’s firm is described in a legal registration document as a consultancy offering economic and political advice. “The object of the business is to advise businesses, public institutions and individuals at home and abroad on economic and political affairs,” the document says.

Margarida Silva, a researcher and campaigner at Corporate Europe Observatory, which aims to curb business influence on EU politics, said the Oettinger case highlights one of the loopholes in the Commission’s rules.

Silva said the Commission had made improvements to the code of conduct but “this College didn’t think enough about the ethical implications when a commissioner sets up his own operation.”

The Commission said a committee set up to look into commissioners’ work after they leave the EU body had been consulted about Oettinger’s company. But it appears the committee will only fully consider the case once it has a specific example of the business Oettinger plans to conduct.

The committee will give an opinion “once the Commissioner has notified a concrete activity,” a Commission spokesperson said.

Ethics rules, OK?

Campaigners for tougher “revolving door” rules say there is nothing wrong with people moving between politics and the private sector per se. Such moves “can rather be a healthy process in a mature democracy,” said Alberto Alemanno, a law professor who filed one of the complaints to the ombudsman about Barroso’s move on behalf of a group called The Good Lobby.

“We are not saying that the revolving door is prohibited. Nobody’s saying that you cannot switch, but those transitions should happen in the most transparent way to avoid undue influence to occur,” he said.

“The nature of the scrutiny and related sanctions remain very weak and therefore the incentives for those individuals to behave differently or to turn down certain offers are still not there.”

Under the rules, outgoing commissioners have to notify the Commission at least two months in advance of work they plan to take up. That rule applies for two years after leaving office, or three years in the case of Juncker, as ex-president. (Juncker’s Commission increased those periods from 18 months when it updated its code of conduct.)

During the two-year “cooling-off” period, ex-commissioners are forbidden from lobbying the Commission on issues related to their old portfolio.

But there’s also a more fundamental question: Does any new job comply with the EU treaties?

Commissioners have a “duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain appointments or benefits,” according to Article 245 of the Treaty on the Functioning of the European Union.

Sometimes, the rules state, the Commission does not need to scrutinize a proposed appointment — for example, if an outgoing commissioner is going to serve in an EU institution, go to their national civil service back home or join academia.

If it’s debatable whether a job complies with the treaties, the Commission president can call upon a three-person Independent Ethical Committee.

But the recommendations of the committee, whose deliberations are confidential, are not binding. Nor does the committee have the power to initiate its own investigations or issue any sanctions.

It’s been hard to know whether the Commission follows the panel’s advice. Until last month, the only way to find out whether the committee was even consulted was to read through the minutes of meetings of the College of Commissioners.

An analysis of the minutes by Transparency International found the committee (which previously existed in a different form) had been consulted at least 141 times up to 2017 and that a negative opinion was issued at least five times. In every case, the former commissioners withdrew their plans before the full College made a decision, according to the NGO.

Judge and jury

The committee’s opinions and the final decision of the College are now proactively published, as required by the new code. But even with the updated code, the College can simply ignore the committee and decide as it wants.

“Ultimately commissioners are deciding on former colleagues, knowing in a few years time they will be in their shoes,” said Vitor Teixeira, an EU integrity policy officer at Transparency International. “The Commission is the judge and jury.”

So far, the outgoing Commission has approved future gigs for four of its members — academic posts for Christos Stylianides and Tibor Navracsics and roles for Carlos Moedas at UNESCO and on the board of think tank Notre Europe/Institut Jacques Delors.

It has consulted the ethics committee over Oettinger and outgoing Vice President Jyrki Katainen. The Commission decided in October that Katainen’s plan to become president of the Finnish Innovation Fund SITRA “is compatible with the ethical obligations of former Commissioners.”

Katainen’s case was the first time the Commission published the College’s decision, the opinion of the ethics committee and its letter confirming its green light.

But incoming Commission chief Ursula von der Leyen seems to agree with critics that the  system remains flawed. She has tasked Vĕra Jourova, one of her vice presidents, to work with the Parliament and the Council to create an independent ethics body common to all EU institutions.

Such a body would be important, according to Daniel Freund, a Green MEP and former EU integrity advocate at Transparency International, to ensure that “the general population doesn’t get the impression that these people are just in it for the money ⁠— [that] they’re using politics as a sort of springboard to get rich afterwards in the private sector.”

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