Accountability In Addition To Defenestration: The Dalli Saga

 

Dr Marios Costa, Lecturer inwards Law, City University

The en bloc resignation of the Santer Commission inwards 1999, against a background of allegations of fraud, maladministration together with chronic mismanagement, is still topical, nigh ii decades afterwards. The European Commission has long been criticised for its administrative inadequacies together with for the structural deficiencies inwards the Union’s organisation of accountability. There get got been a number of reports depicting the Commission every bit an establishment suffering from structural together with political irregularities. 

On xi May 2015 the General Court gave a important judgment on a legal challenge brought past times the quondam European Union wellness Commissioner, Mr John Dalli, against the Commission. Dalli argued that he was forced to resign, past times the together with thus President of the Commission, Jose Manuel Barroso, without given plenty fourth dimension to consider his legal rights. Rather paradoxically, the General Court ruled that Mr Dalli resigned voluntarily together with dismissed the activeness every bit inadmissible.  

This judgment raises broader constitutional implications. With all due respect, the ruling comes every bit a surprise together with fails to clarify issues inwards relation to the powers that tin endure lawfully exercised past times the President of the Commission when he loses confidence inwards whatsoever of the members of his Commission. This commentary examines the appropriateness of the recent ruling together with concludes that the General Court lost a rather rare chance to dominion on important aspects of the Treaty powers granted upon the President of the Commission to sack the private Commissioners together with every bit a termination every bit good fails to remedy the accountability deficits of the Commission.

Facts of the Case

Dalli, the quondam Maltese Commissioner, was defendant of soliciting bribery for the amount of lx meg euro inwards telephone substitution of seeking to influence hereafter legislative proposals inwards favour of the tobacco maker Swedish Match. Following a electrical load to the Commission from the latter, the EU’s Anti-Fraud Office (OLAF) initiated investigations into the serious bribery allegations. On xv Oct 2012, OLAF sent its concluding study to the Commission highlighting that at that spot was no conclusive prove that the Commissioner was involved inwards requesting coin from the tobacco manufacturer. Yet, at that spot was to a greater extent than or less prove confirming that Mr Dalli was at to the lowest degree aware of the fact that a Maltese entrepreneur was using his shout for the purposes of getting fiscal benefits from the tobacco maker.

On sixteen Oct 2012, Mr Dalli had a coming together amongst the President of the Commission where he was presented amongst ii already drafted press releases past times the Commission: ane stating that Mr Dalli decided to resign ‘voluntarily’, whilst the other stated that Barroso requested him to resign past times exercising his prerogative powers nether Article 17(6) TEU. During their meeting, the President showed the roofing alphabetic lineament of the OLAF’s study to Mr Dalli. Nevertheless, access to the total study was refused on the grounds that it was confidential. Towards the goal of their meeting, the President made it clear that he was going to forcefulness the applicant to resign if he was non going to do thus voluntarily. The applicant asked for at to the lowest degree 24 hours to consult a lawyer together with to detect out what his legal rights were. Barroso said that he could give him no to a greater extent than than xxx minutes. Mr Dalli chose to resign.  

Mr Dalli challenged the legality of the oral determination taken past times Barroso to terminate his term of role every bit the European Union Health Commissioner. The Court declared the activeness every bit inadmissible since at that spot was no clarity inwards relation to the deed whose annulment was sought. The Court could non distinguish whether Mr Dalli was seeking the annulment of the determination of the President to take away him from role pursuant to Articles 245 together with 247 TFEU or the allegedly oral determination taken past times Barroso to asking Mr Dalli’s resignation under Article 17(6) TEU. In consequence, the activeness was dismissed every bit inadmissible.

Legal Framework on the Commissioners’ Accountability

The Treaty is non soundless on the number of Commission accountability.. Article 245(1) TFEU provides that ‘[t]he Members of the Commission shall refrain from whatsoever activeness incompatible amongst their duties’. Additionally, Article 245(2) TFEU covers the instance of compulsory retirement of an private Commissioner. It reads every bit follows:

The Members of the Commission may not, during their term of office, engage inwards whatsoever other occupation, whether gainful or not. […] they shall give a solemn task that, both during together with after their term of office, they volition abide by the[ir] obligations […] inwards detail their duty to comport amongst integrity together with discretion every bit regards the credence […] of sure enough appointments or benefits.  In the trial of whatsoever breach of these obligations, the Court of Justice may, […], dominion that the Member concerned be, according to the circumstances, either compulsory retired inwards accordance amongst Article 247 or deprived of his correct to a pension or other benefits inwards its stead.

Moreover, Article 247 TFEU, which contains the entirely reference to the personal liability of Commissioners, reads every bit follows:

If whatsoever Member of the Commission no longer fulfils the atmospheric condition required for the surgical operation of his duties or if he has been guilty of serious misconduct, the Court of Justice may, on application past times the Council acting past times a unproblematic bulk or the Commission, compulsorily retire him.

Furthermore, Article 234 TFEU provides for to a greater extent than or less other form of responsibleness which the Commission owes to the European Parliament (EP), the ‘censure’ motion, every bit follows:

If a motion of censure on the activities of the Commission is tabled earlier it, the EP [and] … is carried past times a two-thirds bulk of votes cast, representing a bulk of the constituent Members of the EP, the Members of the Commission shall resign every bit a body.

Finally, pursuant to Article 17(6) TEU, ‘[a] fellow member of the Commission shall resign if the President thus requests’.    

Comment together with Analysis 

The Dalli judgment is a lost chance past times the Court to clarify the abovementioned provisions every bit regards accountability of the European Union Commissioners. Surely, whatsoever failure past times an private Commissioner to come across the standards described inwards in Article 245 TFEU, every bit laid out above, tin Pb to a important harm of Earth icon of the Commission.  This is non a hypothetical observation if ane looks at the events leading to the collective resignation of the Santer Commission together with to the closely related Cresson judgment (Case C-432/04, Commission v Cresson, ECLI identifier: EU:C:2006:455). Consequently, ane tin empathize the concerns of President Barroso to avoid repetition of the discredited Santer Commission inwards 1999. Barroso’s commitment to high standards of direction is perfectly legitimate. What is non legitimate, however, is the physical care for that led to the resignation of Mr Dalli. Notably, the Commission tin entirely succeed if private Commissioners operate impartially together with independently, without influence from external sources, whether national governments or private individuals together with without engaging privately amongst stakeholders to accomplish fiscal benefits. This is the entirely means for the Commission to gain confidence from other institutions every bit good every bit Member United States of America together with citizens.

The Commissioners must come across the highest standards non exactly on external matters, but on their conduct within the Commission.  They should perform their duties without partitioning or external influence due to their high ranking together with sense inwards the political arena.  In particular, every bit already explained above, Article 245(1) TFEU requires Commissioners to endure costless from whatsoever external influence. This indicate is vital if the Commission is to rest independent of Member United States of America or individuals. But let’s assume for a piece that at that spot was plenty prove that Mr Dalli obtained pecuniary advantages from the Swedish tobacco maker. Assume farther that the OLAF study concluded that the Commissioner needs to endure held accountable for infringing his duty to comport amongst integrity pursuant to Article 245 TFEU. Is the physical care for that forced him to resign acceptable together with does it abide by the dominion of law? Or does it confirm an do of abusive behavior past times the President? Forcing an private Commissioner to resign without allowing him to consult a lawyer together with without given the chance to see the OLAF study constitutes a manifest violation of his basic correct to reply to the prove against him. Any occupation lawyer volition concord that this behavior is a classic instance of constructive dismissal. Surely this is non something that tin endure justified, peculiarly if this comes from the President of the Commission, an establishment supposedly entrusted amongst the duty to guard together with ensure that the dominion of police line is duly respected.  

Conclusion

Unfortunately, the General Court did non clarify the organisation of accountability for the Commissioners’ actions. The Court rather exactly decided to dismiss the activeness every bit inadmissible. Taking into concern human relationship the OLAF study together with every bit good the factual background of the previously decided Cresson case ane tin realise that a lot of irregularities tin bring house within the Commission together with at that spot is a deficit of whatsoever meaningful notion of accountability of the Commission. The General Court has made a incorrect determination inwards refraining to clarify what obligations are mandatory for European Union Commissioners every bit laid within the Treaty framework. Additionally, together with most importantly, the judgment fails to laid the boundaries of the prerogative powers of the Commission’s President to sack the members of his cabinet. Whether or non Commissioners tin endure held accountable for their decisions has been completely ignored inwards Dalli.

 

Barnard & Peers: chapter 3

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