“There is no legal obstacle to the Council of the European Union and the European Council becoming parties to the interinstitutional agreement” that will set up the EU Ethics Body, according to the Council’s Legal Service in an opinion dated Thursday 20 July, a copy of which has been sent to EUROPE.
In its initial proposal, the European Commission suggests that the future Body should include the EU institutions and bodies identified in Article 13 TEU, including the EU Council, which would be represented by an emissary at ministerial level from the Member State holding the six-monthly Presidency of the Council (see EUROPE 13197/14). Contrary to the position of the European Parliament (see EUROPE 13221/3), the Body would not have investigative powers or the power to make recommendations on individual cases. This provision is not disputed by legal experts.
They believe that the EU Council’s participation in the EU Ethics Body will make it possible to include the High Representative of the Union for Foreign Affairs, acting as President of the ‘Foreign Affairs’ Council. In their view, the EU Council also has an interest in participating in the Body in order to contribute to the development of ethical standards that will apply to the people it appoints directly.
As far as the European Council is concerned, this is the first time that this European institution will be taking part in an Interinstitutional Agreement at EU level. And the fact that its President is appointed for a limited term, without holding a national office at the same time, makes it easier for the European Council to participate in the institutional agreement in the making.
On the other hand, citing institutional autonomy and the risk of conflict with national rules applying to ministers of a national government, legal experts point out that representatives of a Member State, even when they hold the Presidency of the Council, cannot be included in the scope of the institutional agreement. They therefore set very strict conditions for the Council’s participation in the EU Ethics Body.
“There is no legal basis which would allow the Council to elaborate and adopt internal rules on the conduct of its members going beyond the organisation of its proceedings”, they say. They add that “the Council may not confer any such competence on an interinstitutional body nor commit to implement the standards developed by this body in its internal rules, as this would alter the distribution of competences between the Member States and the Union institutions as laid down in the Treaties”.
The Legal Service therefore recommends deleting any provision in the Interinstitutional Agreement under which the parties would undertake to transcribe the standards of the EU Ethics Body into its internal rules.
Furthermore, taking inspiration from the legal set-up found during the reform of the European Transparency Register, the legal experts are of the opinion that it should be up to each Member State to declare individually that, when it holds the Presidency of the Council of the EU, representatives of the national government will comply with national ethics rules equivalent to those applicable to members of the EU institutions who will be covered by the institutional agreement.
Finally, the legal experts point out that in the Council, the decision-making procedure for approving an Interinstitutional Agreement is an enhanced qualified majority. This is achieved if the following two conditions are met simultaneously: at least 72% of Member States vote in favour (at least 20 out of 27) and the Member States supporting the proposal represent at least 65% of the EU population.
See the opinion of the Council’s Legal Service: https://aeur.eu/f/87t (Original version in French by Mathieu Bion)