The EU’s Enduring Ethical Deficit in the Aftermath of Huawei
It took over two decades and several high-profile ethical scandals, including the shocking Qatargate, for the main EU institutions to finally agree on the establishment of a joint authority to ensure the public integrity of its members. This authority – the Interinstitutional Body for Ethical Standards – aims to “strengthen trust in Union institutions and their democratic legitimacy”. Nevertheless, a year later, this ethics body is nowhere to be found, largely blocked by the reluctance of the largest EU political group in the EU Parliament – the EPP – and hard-right factions (the ECR, Patriots and Sovereigntists).
Very few would have noticed if it were not for yet another public integrity scandal shaking the EU Parliament. This time it is not a third country, but a third-country company – the Chinese tech giant Huawei – that is suspected to have bribed some Members of the EU Parliament and their assistants to advance its commercial interests in the EU.
Contrary to Qatargate, which involved direct cash payments to MEPs, Belgian prosecutors (who have been investigating since 2021) accuse Huawei of more mundane – and fairly conventional – lobbying practices. These include free football tickets, lavish gifts, and even all-expenses-paid trips to China in exchange for favourable treatment. To the extent that all of these types of conduct are governed (and constrained) by existing EU ethical standards applicable to the EU Parliament and its Members, the unfolding scandal provides tangible proof of the inadequacy of the Parliament’s ethical framework, notwithstanding the much-acclaimed post-Qatargate reforms.
As such, this latest debacle exposes the EU Parliament’s significant and ongoing failure to correct two structural flaws in the EU public integrity framework: the contested nature of the ethical standards imposed on MEPs and the lack of an independent authority to enforce them.
The contested nature of MEPs’ ethical standards
MEPs are independent and cannot be bound by party mandate (1976 Act). However, like EU Commissioners, MEPs are still subject to a set of ethical standards. These include “disinterest, integrity, openness, diligence, honesty, accountability and respect for Parliament’s reputation”. They must also “act in the public interest by refraining from obtaining or seeking to obtain any direct or indirect financial benefit or other reward” (Article 1 Code of Conduct MEPs).
Although typically referred to as “ethical” provisions (or “general principles of conduct”), these are binding legal norms whose compliance must be assured to avoid incurring sanctions.
Yet, the very existence of these standards – notably their application to MEPs – has traditionally been opposed. A rather maximalist interpretation of the principle of freedom of mandate (enshrined in Article 6(1) of the 1976 Act and with Article 2(1) and Article 3(1) of the Statute for MEPs) has been defended by inter alia the EU Parliament’s Legal Service and systematically advanced by numerous MEPs. However, although the ECJ’s case law is still largely underdeveloped, it seems to contradict this interpretation and instead favours a fairer balance between the EU’s delegated freedoms and other obligations. For instance, in Dennekamp, following the request for access to documents to identify those MEPs that benefited from an additional pension scheme in order to identify possible conflicts of interest, the EU General Court rejected the EP’s argument that the publication of the names of the MEPs would undermine the independence of their mandate. Moreover, the MEP’s freedom of mandate is arguably not absolute – it must be balanced against other core democratic provisions. Namely, with the principle of the equality of the citizens, “who shall receive equal attention from its institutions”, the principle that “every citizen shall have the right to participate in the democratic life of the Union”, that “decisions shall be taken as openly and as closely as possible to the citizen” and that “the Union’s institutions, bodies, offices and agencies shall conduct their work as openly as possible” (Articles 9 and 10(3) of the Treaty on European Union (TEU) and Article 15(1) TFEU).
Following Qatargate, additional ethical standards were introduced, such as reporting obligations for all scheduled meetings with interest representatives falling within the scope of the Transparency Register and third countries’ public authorities or a six month post-mandate cooling-off period. Some existing standards were also strengthened, including harsher penalties for breaches of the Code of Conduct, increased details in members’ declarations of interests, and mandatory declarations of assets at the beginning and end of every term of office. But despite these changes, loopholes persist. MEPs can still hold side jobs in the name of the freedom of their electoral mandate (this was the case for MEPs Eva Kaili, Tarabella, Cozzolino and today approximately 15 MEPs under investigation in relation to Huawei). Moreover, owing to an absence of serious post-mandate rules for former MEPs, at the end of their mandate former MEPs and their assistants can cash in on privileged access, both physical and immaterial, to the EU Parliament and members. They are only prohibited from lobbying the new Parliament during its first 6 months, which is typically the least active moment of the entire EP cycle, anyhow.
The oversight of ethical standards without an independent authority
Compliance with these ethical standards and integrity obligations is essentially entrusted to the President of the EU Parliament, who may consult the Advisory Committee on the Conduct of Members (PACCM). The latter is composed of eight MEPs appointed by the (same) President based on their experience and on political and gender balance. In case of breaches, the President may impose a variety of penalties, be it a reprimand, a prohibition from representing the EP in particular settings, a restriction from accessing confidential information, a suspension of the daily allowance, or a suspension from participation in parliamentary activities. Alternatively, and more frequently, the President may merely turn a blind eye to such conduct. In case of a proposed removal, it is for the Conference of Presidents to request the Parliament to end – by a 2/3 majority vote – the term of an MEP that has engaged in “serious misconduct”.
Overall, the current design of the EU Parliament’s ethical oversight system entrusts its operation to the political – not legal – responsibility of its President (who partly shares it with the Conference of the Presidents). The resulting self-policing is a form of self-regulation of the ethical rules that, by definition, lacks any form of independence and accountability.
Several proposals have been put forward to establish a dedicated EU ethics body to address some of these structural limitations of the existing EU integrity system applicable to the EU Parliament. These can be categorized into two main models, based on the core competence assigned to the body: that of enforcing ethical rules or merely establishing them across EU institutions.
The previous EU Parliament identified enforcement as the main weakness of the EU public integrity system. It pushed for an independent authority – largely inspired by the French Haute Autorité pour la Transparence de la Vie Publique (HATVP) – that could monitor, investigate, and sanction breaches while also being able to provide guidance on ethical rules. This approach contrasts with the previous Commission’s view (von der Leyen I) that the primary flaw lies in the lack of common minimum ethical standards rather than enforcement mechanisms. Instead of assigning the body the mandate to directly enforce ethical standards, the final inter-institutional agreement envisaged the body as a mechanism for institutional coordination and establishment of common ethical standards. Therefore, it did not entrust the body with the authority to directly apply ethical rules, nor – as a matter of principle – to deal with individual cases.
Although the interinstitutional ethics body agreed last Spring has not been established, the ongoing Huawei investigations cast serious doubts on the assumptions underpinning its creation. If MEPs (and their assistants) were effectively monitored and held accountable to the existing ethical standards – including those imposed by each EU political group and their national political party – their conduct could have been deterred, or at least subject to political (if not legal) scrutiny, quod non.
Conclusions
We’ve seen this before. Every major EU integrity scandal – from the 1999 Santer Commission’s collapse to the 2009 cash-for-amendments scandal, to Barroso’s gold-plated revolving door exit to Goldman Sachs – has raised the public profile of the EU in the eyes of the citizens, while prompting widespread demand for reform. Yet, this effect has typically proven short-lived, petering out after the adoption of a few minor tweaks to existing rules. If the Santer chute led to the creation of an ad hoc independent ethics committee within the Commission, the Barrosogate prompted the extension of the “cooling-off period” from 18 to 24 months for Commissioners and from 18 to 36 for former Presidents, while Qatargate resulted in the adoption of additional reporting obligations on MEPs.
And yet, here we are again. Studies on political scandals suggest that those related to public integrity can have a potentially positive effect on institutional accountability and voter attentiveness. Notably, scandals may increase the quality of discourse in the media by clarifying the public understanding of obscure phenomena, be it lobbying (conceptually different from corruption) or the operation of the European Union.
Hence, this raises the provocative, somewhat counter-intuitive and open question: aren’t Qatargate and Huawei exactly the crises the European Union needs right now?
When considering that the European public is notoriously illiterate about EU governance, this series of scandals could present both an invaluable pedagogical opportunity and political momentum for reform. However, it remains uncertain whether our political leaders will seize the moment or allow yet another opportunity for real reform to slip away.