07 Sep 2020

Was a fair and independent process followed in the Phil Hogan case?


Late in the evening of August 22nd, the leaders of the Irish government called on the EU Trade Commissioner, Phil Hogan, to “consider his position”. Those words mean resign.

They further piled on the pressure by issuing a statement on August 23rd to the effect that Commissioner Hogan had broken their Covid-19 rules.

Phil Hogan resigned some days later, on August 26th. That was his decision and one he was entitled to make.

But Hogan’s resignation sets a precedent that has implications for the political independence of Commissioners from their home governments, and there are lessons to be learned by President von der Leyen, and by the Commission as a whole, as to how and to whom Commissioners should be held accountable.

There are also questions about the internal management and effective collegiality of the Commission. President von der Leyen clearly withdrew her active support from Commissioner Hogan, and unquestioningly accepted the line of the Irish government. This influenced the Commissioner’s decision to resign.

In this, I contend that she did not fulfil all her responsibilities under the treaties.

There is no doubt that the President was faced with a difficult problem. But the treaties were framed to deal with fraught political situations, while preserving the independence of the Commission, and due process.

The Commission is guardian of the treaties and should be seen to defend the rules laid down in them in all circumstances, even when it is politically difficult. Article 245 of the Treaty on the Functioning of the EU (TFEU) requires member states to respect the independence of Commissioners.  Ireland is bound by that article, having ratified it in a referendum. One should note that Article 245 refers to respecting the independence of Commissioners individually, not just to the Commission as a whole.

It could be argued that the public demand for a Commissioner’s resignation, on the grounds of an alleged breach of purely Irish rules, is incompatible with the Irish government’s own Treaty obligation under Article 245.

The government had other options. If any Commissioner is visiting a member state for any reason, he or she is subject to the laws of that state, on the same basis as any other citizen. A visiting Commissioner would not be above the law, but nor would she be below it. If she breached the law, due process in the courts ought to be applied, as to any citizen.

This is what would have happened if the visiting Commissioner was from any country other than Ireland and had encountered the same difficulties as Phil Hogan.

The statements of the Irish government, and the unsatisfactory explanations by Phil Hogan, undoubtedly created a political problem for the President of the Commission. She had to do something. But there were options available to her which, inexplicably, she failed to use.

Commissioners are subject to a code of conduct, last updated in 2018. Under that code,

there is an ethics committee whose job it is to determine if the code has been breached. There is no reason why Commissioner Hogan’s case might not have been referred to this committee. If the matter was urgent, there is provision for a time limit to be set for the committee’s report.

A reference to the ethics committee would have allowed for due process, and a calm and fair hearing. More importantly, using this process would also have asserted the independence of the Commission as an institution.

The code says that it is to be applied “in good faith and with due consideration of the proportionality principle” and it allows for a reprimand where the failing does not warrant asking the Commissioner to resign. Now, because of the course followed by the President, we will never know whether there was any breach of the code by Phil Hogan.

President von der Leyen’s decision to disregard these mechanisms seems to be a serious failure to defend due process and proportionality, and to protect the independence of individual Commissioners, as she was required to do by the treaty.

The Commission and the Parliament should inquire into why she did not do so. If the code of conduct is not to be used in a case of this urgency and gravity, it naturally raises questions about its viability.

Was what Phil Hogan did a resigning matter anyway? Article 247 allows for only two grounds for asking a Commissioner to resign. These are that he or she is “no longer being able to fulfil the conditions for the performance of his duties” or “has been guilty of serious misconduct”.

I do not think either condition was met in this case.

Phil Hogan would have been fully capable of carrying out his duties while the ethics committee did its work. Instead, his position is now effectively vacant.

Most people I have spoken to think that the breaches committed by Phil Hogan, while foolish, did not amount to “serious misconduct” within the meaning of Article 247.

In light of the Dominic Cummings affair in the UK earlier in the year, it is perhaps unsurprising that the Irish government’s reaction was more vigilant that it might otherwise have been. This notwithstanding, while the Commissioner’s failure to recollect all the details of a private visit over two weeks previously, or to issue a sufficient apology quickly enough, might be regarded as political failings, they hardly rise to the level of “serious misconduct”. Any deliberate and knowing breach of quarantine should have been dealt with in the Irish courts, without fuss.

In any event, President von der Leyen would have been far wiser to have sought an objective view on all these things from the ethics committee, before allowing Phil Hogan’s resignation.

Another issue is the President’s failure to call a Commission meeting, if she was considering that a Commissioner should resign.

Under Article 247 TFEU it is the Commission, not the President alone, who may compulsorily retire a Commissioner, and even then, they must have the approval of the European Court of Justice. These safeguards were put in the treaty to protect the independence of the Commission. They were ignored in this case.

In my view, the President’s failure to follow the procedures available to her has resulted in a weakening of the institutional independence of the Commission. This is damaging to European integration, and to the interests of smaller EU states. This should be of concern to the European Parliament.

An earlier version of this commentary was published by euractiv.