Brussels, 12 October 2017
Note to the attention of Mr Jean-Claude JUNCKER
President of the European Commission
Subject: Your announcement of September 13 on strengthening the Code of Conduct for Commissioners, the rules and procedures regarding activities at the end of the mandate and the management of conflicts of interest
Ref.: Dossier Barroso (see. Dossier November 2016)
Our notes on the Barroso case and the need to reform the Code of Conduct
Note to the attention of Mr Italianer, Secretary-General: reply to our note of 2 May 2017 ( read )
Note to your attention: Barroso case, European Ombudsman’s decision of 24 February 2017 to open an investigation … – 7 March 2017 ( read )
Note to your attention: Kroes case, Commission decision of 21 December to inflict blame on former Vice-President Kroes … – 10 January 2017 ( read )
Note to your attention: Bahamas Papers “and articles published in the European press … – 23 September 2016 ( read )
Note to your attention: Barroso case, your reply of 9 September to the European Ombudsman – 14 September 2016 ( read )
Note to your attention: Barroso case – 9 September 2016 ( read )
Note to your attention: Appointment of Barroso as Advisor and Non-Executive Chairman of International Operations to investment bank Goldman Sachs International – 4 August 2016 ( read )
Note to the members of the College – 12 July 2016 ( read )
Open letter to Mr Barroso – 12 July 2016 ( read )
At the outset, we would like to inform you of the many positive reactions of colleagues following your announcement to reform in depth the Code of Conduct of the members of the Commission.
Indeed, by your decision to reform the code of good conduct in depth, the institution is finally demonstrating, even belatedly, the full validity, among other things, of the demands of thousands of your staff who have appealed to your sensitivity in expressing their confidence through the petition “Not in our name” that R&D has supported with the utmost conviction .
Recall of facts
As soon as the Barroso and Kroes cases were triggered by our numerous referenced notes and while firmly supporting the clear positions of the European Ombudsman and the European Parliament, R & D drew your attention on the urgent need and the obligation to ensure, a rapid, efficient and rigorous management of these cases that provoked more than virulent reactions and profoundly challenged the credibility of our institution (see the dossier Barroso-Kroes).
At the same time, and with the greatest respect for the collective autonomy of the colleagues who initiated it, R&D immediately supported the “Not in our name” petition .
We regretted the lethargic attitude of our institution which gave the impression of cultivating the illusion – both by its inaction and its obviously inadequate reactions – that these cases would fade away, despite all the solicitations of the staff and its representatives, as well as political reactions within all Member States.
This attitude not only exacerbated the reactions of citizens, your staff and the press, but also provoked increasing firm positions and criticism of the European Parliament concerning the management of these cases.
It should be remembered that in the Barroso case, the decision of the European Ombudsman on February 24 (Complaint 194/2017/EA), to open a formal investigation on the question of how our institution managed the revolving door of our former President is only the last step in a process that our institution has managed in an absolutely unsatisfactory manner by questioning both its credibility and the confidence of its staff.
As regards the Kroes case, in our note of 10 January 2017, we already had to note the laughable nature of the arguments put forward by Mrs Kroes to justify the allegations against her and the unreliable nature of the Commission’s decisions taken in secret on 21 December in this case. We were sorry to denounce this double-speed ethic: the unlimited indulgence reserved for Mrs Kroes is in no way comparable to the sanctions which would be given by the Appointing Authority – for similar acts – to any member of staff. In this regard, and in order to appreciate the proportionality of this decision and again the existence of a two-speed ethic, it is needless to speculate on the fate of any staff member confronted to those same allegations and, namely, whether it could have been laundered by the IDOC and/or the Appointing Authority by invoking, like Mrs Kroes, the fact that she continued, unbeknown to herself, to be a director of a company that is useless at the other end of the world in a tax haven!
And as requested by the signatories of the petition, by the European Parliament, by the European Ombudsman, we indicated that there was an urgent need for a thorough reform of the rules governing the conflicts of interest of former members of the Commission.
In this regard, we underlined the inadequate, insufficient and incomplete nature of the first proposal to reform the code of good conduct
In particular, we welcomed your announcement in late November to extend from 18 months to 2 years for former Commissioners and to 3 years for the President of the Commission the waiting period, requiring them to inform the institution prior to getting into a new function.
In particular, while appreciating your decision in our note of 15 November 2016 ( read ), we invited you to go beyond this because the measures envisaged were clearly inadequate, insufficient and incomplete in view of the gravity of the credibility crisis that harmed our institution.
We stressed the need to continue these efforts by strengthening the implementing rules in this field, by setting up a genuine independent committee to replace the ad hoc ethics committee that was clearly in no position to provide the safeguards that citizens are entitled to request. We have taken also the liberty to remind that the Commission had to abandon purely bureaucratic and formalist approaches and that it was essential that Commissioners avoid not only situations of conflict of interest but also situations that might be perceived as such.
As all observers have indicated and as confirmed by the European Parliament by its resolution adopted by an overwhelming majority on last 1st December (2016/2080(INI)), notwithstanding your decision to extend the waiting period, procedures concerning the management of conflicts of interest of members and former members of the Commission, remained largely insufficient to enable the Commission to manage such cases which have a devastating effect on the credibility of our institution and the European project.
We welcome your position on the occasion of the State of the Union address of 13 September
In view of the above, we have noted with satisfaction the announcement of a reform in depth of the Code of Conduct of the members of the Commission, which is no longer limited to simply extending the deadlines and provides, inter alia:
– the establishment of clearer rules and higher ethical standards,
– the introduction of greater transparency in a number of areas,
– the creation of an independent ethics committee in place of the current ad hoc ethics committee in order to reinforce its status and control and enable it to issue opinions on the ethical rules.
We have also particularly appreciated that the new Code of Conduct will define for the first time what a “conflict of interest” is and will retain the principle – which we have constantly recalled – that Commissioners must avoid not only situations of conflict of interest, but also situations that can be perceived as such.
In addition, if former Commissioners intend to work in areas related to their former portfolios, it is important that they consult with the Independent Ethics Committee. The decisions of the Commission and the opinions of the Committee on these decisions will now be made public.
Similarly, it is appreciable that, in relation to the tasks that can be performed by former members of the College, restrictions on certain activities are established, in particular those of lobbying the Commission members or its staff, those same missions that our former President Barroso had imagined he could accomplish.
Finally, stricter rules will also apply to the financial interests of Commissioners. They will be required to declare any investment of more than €10,000 whether or not there is a conflict of interest and, in the event of a conflict of interest due to a specific property of a commissioner, the President shall be entitled to request the transfer of such property or its placement in a blind trust.
Conclusion : Potius sero quam nunquam
If it is obvious that it is always better late than ever, it is nevertheless sad to have waited so long for the reform of this code of good conduct.
On the one hand, there is no denying that, taken as a whole, your proposals constitute a considerable change in approach and create a way more rigorous and credible legal framework.
On the other hand, the thousands of colleagues who signed the petition “Not in our name“, like all the other bodies and institutions that sent you the same invitation, would have deserved more attention and listening while, for months, our institution gave itself up to a desperate and despairing defense of the exemplary character of the old code of good conduct, whose limits and inadequacy were nonetheless so obvious.
Let us be pleased to note that if your decision to reform these rules in depth was taken directly after the Barroso and Kroes cases, recognizing at once all the limits of the old Code of Conduct, our institution could have avoided criticism, reactions from citizens, your staff and the press, as well as the increasingly firm and critical positions of the European Ombudsman, the European Parliament, etc.
The fact that the Commission has, by its attitude and inaction, largely contributed to feeding all these reactions, allows some people to claim that it is only in response to these pressures that our institution would have now been forced to reform the rules in question … those same rules of which a few weeks ago, it still dared to confirm the exemplary character … being obviously the only instance on the planet to believe it…
Looking forward to obtain more details about all aspects of your proposal, which we would like to thank you for again, we express the hope that in future it will be possible to establish a better, frank and open dialogue between you, your staff and its representatives, also on matters not related solely to personnel policy.
It should never be forgotten that in your efforts to relaunch the European project which you presented in your State of the Union address and which we sincerely appreciate, your staff is still your first and best ally.
Copies: Members of the College
Ms E. O’Reilly, European Ombudsman
Mr Pascal Durand Member of the EP