10 November 2021

The Multiple EU Rule of Law Crises

The European Court of Justice and the Pinxten Case

The European Court of Justice (ECJ) has recently delivered a judgment in the Pinxten case (C-130/19, 30 September 2021). The decision specifically concerned a question of financial misappropriation at the European Court of Auditors, but its significance goes far beyond this single case. It reveals multiple misfunctions at the top of the European Court of Auditors. Most people, however, will never hear about it, because even though the Court of Justice gathered most exceptionally a full court to deal with this case, the judgment won’t be published and has thus (against the Court’s own rules) not been translated. There is not even a press release in other languages than Dutch and French.

Pinxten and the Court of Auditors

To understand the systemic nature of this judgment crisis, we must quickly return to its origins. Pinxten was formerly the Belgian Minister of Agriculture in the Dehaene government. In this capacity, his incompetence contributed brilliantly to the dioxin crisis in 1999. Despite his resistance, Prime Minister Dehaene forced him to resign, notably for hiding information about infections for more than a month (and for being largely absent from his cabinet during the crisis, just like his colleague Colla).1)The author was at the time special representative of the Dehaene government for European affairs, and regularly had to explain this amazing context to the European Commission.

This did not prevent Pinxten from pursuing an outstanding career. He quickly switched parties to remain connected to the new governmental coalition and was rewarded with an appointment to the European Court of Auditors in 2006. In 2018, although he was already under investigation by the European Fraud Office (OLAF), the Michel government reappointed him, and persisted even when the investigation was subject of the preliminary debate in the European Parliament. The Pinxten case, as we can see, is European, but from Verhofstadt to Michel the origins of its persistent impunity lie in Belgium.

Once appointed at the Court of Auditors, Judge Pinxten immediately began fiddling the accounts. The first item of the Court of Auditors‘ legal action against him covers hundreds of events. Advocate General Hogan’s excellent Opinion (a must-read) offers in this respect a realistic and very sad course on the art of financial embezzlement. The OLAF file encompasses more or less 25,000 pages. Among other things, Baron Pinxten (because his incompetence in the dioxin crisis also brought him into the Belgian nobility) had the European taxpayer finance multiple private trips and receptions. He used his official fuel card to feed third-party vehicles. He continued to exercise political activity during his function. He used his official car and driver for personal trips. He was absent for long periods. For all of this, he has naturally made false statements several times. He even managed to get taxpayers to finance a 15-day private stay in Cuba, a nice stay in Crans-Montana, and his repeated participation in hunts in Ciergnon and the castle of Chambord. Faced with such an avalanche, it is understandable that the Court of Auditors wanted to recover more than 500,000 euros and reduce his pension.

Systemic mismanagement

The Pinxten case, however, goes far beyond the person of Pinxten himself. This is even its most striking aspect. The exposed mismanagement appears extremely systemic.

In the first place, it is striking to see how this massive industry of unjustified spending has been deployed for more than ten years without encountering the slightest resistance, though it resulted from a very systematic strategy. During this period, that strategy never encountered obstacles. As a matter of fact, had Pinxten stopped after eight years, nothing would have ever been discovered.

Secondly, this cataract of budgetary misappropriations took place at the Court of Auditors, that is to say the EU institution precisely created to prevent them. If the Court is not even capable of carrying out a most basic control over its own expenditures, one may question its ability to do so over the other institutions’ expenditures, especially complex ones. (Similarly, Selmayr’s illegal appointment as General Secretary of the Juncker Commission weakened the Commission’s role as the protector of the rule of law. It is difficult for the Commission to criticize bad administration in the Member States or third States if it is not even able to uphold its legal standards in its own management.) The Pinxten case thus confirms the reputation of the European Court of Auditors as an eminently political body, obese, often lazy and famous for not investigating eagerly the other institutions.

Thirdly, this fraud was finally stopped not thanks to internal controls, but to a whistleblower. So, the people paid to perform internal controls in fact did not fulfill them. This point shows how deficient the internal functioning of the institutions remains. Similarly, after Selmayr’s illegal appointment as General Secretary of the Juncker Commission, the information was made public only by the press, whose indispensable nature has been once again proven.

Fourthly, the responsibility for this catastrophic situation does not lie solely with Pinxten. For ten years, the Presidents of the Court of Auditors countersigned these countless unjustified expenses. Certainly, Pinxten’s lies may explain some cases. Nevertheless, in many other cases, this justification doesn’t seem to count. Any manager knows very well that repeated hunts in Chambord or Ciergnon do not correspond to any definition of an official mission, and therefore to the interest of the institution. This does not require – by far – a PhD in public management (or public ethics). Consequently, one cannot escape the conclusion that these presidents were either incompetent or complicit. (The Court of Justice has indeed pointed out that this situation partly diminishes Pinxten’s liability.)

Furthermore, it is revealing that Pinxten argued in his defense that such practices were common in the Court of Auditors. The Court of Justice wisely decided not to explore the veracity of his argument, considering that it was not necessary. However, it is hard to believe that the institution’s successive presidents granted Pinxten an exclusive treatment. One can foresee that the Court will have little enthusiasm to investigate itself. However, should there one day be a serious body in the EU in charge of expenditure control, it would certainly be highly educational to have it examine the expenditures of the other members of the Court of Auditors.

Fifthly, this incredible case illustrates the enormous opacity of the management of the institutions. Here, the European Court of Justice bears a heavy responsibility. The internal controls of the European institutions often have weaknesses, especially vis-à-vis their members. The presidents of the institutions, elected by their members, sometimes want to avoid offending them – and keep their votes (less so at the Commission, where the president possesses another legitimacy). This makes external controls all the more essential. However, since 2010, the Court of Justice has largely weakened these controls by adopting an increasingly reduced definition of the transparency principle. In its jurisprudence, it has multiplied the exceptions and procedural obstacles to public access to administrative documents.

Curtin and Leino-Sandberg explain this in more depth in their excellent 2016 study for the European Parliament : Openness, Transparency and the Right of Access to Documents in the EU. “The general presumption is of openness in line with the Treaty. The Treaty recognises no general presumptions of secrecy (such as those recently introduced by the Commission and confirmed by the Court). (…) The CJEU should be encouraged to facilitate more pro-actively the access to its own documents and the documents of intervening parties in a structured and transparent manner, except where the requirements of secrecy should prevail (in particular as regards deliberations among the judges) in the public interest. (…) The balance between transparency and data protection is currently too strongly tilted towards the latter and disregards the fact that transparency and openness are also fundamental rights that should override especially in situations where disclosure does not create harm for privacy.” Since 2016, alas, the situation has still worsened.

The Court of Justice itself deploys an extremely restrictive regime concerning its own administrative documents, as is very well documented in Dominique Seytre’s chronicles about the Court in “Land”. The systemic opacity strategy of the Court of Justice is also reflected by its very persistent refusal to streamline hearings, though it has already acquired for years the capacity to do so

To understand the consequences of this approach, one must only read the 2018 Psara judgment (T-639/15) of the EU General Court, which is very revealing. Journalists had asked to control the expenses of some MEPs. The Parliament blankly refused, and the General Court validated this refusal in toto. In theory, the EU Treaties have established access to documents as a principle. In practice, the Court of Justice’s jurisprudence has multiplied the reasons to block it. Consequently, the weight of evidence and costs required deters most enquirers.

A judgement that hasn’t been published

The systemic nature of this case (the most massive fraud committed by a member of the EU institutions since 1952) makes it very difficult to understand why the Court of Justice, though generally very present on the social networks, has remained extremely discreet in delivering its Pinxten judgment. It has most curiously not translated the judgment in all EU languages, in clear violation of its own rules. As a matter of principle, “judgments of the full Court and of the Grand Chamber” are published, and thus automatically translated. Moreover, it has limited itself to two press releases, one in French, the other in Dutch (perhaps an implicit tribute to the “belgitude” of the episode). There has not been one shred of information about this in more than 90 % of the EU languages. This leads to the surreal result that the grandiose protocol ceremony of the oath of a new Judge of the General Court is the subject of a press release in 23 languages but that a judgment absolutely essential for all EU institutions, delivered on a quite exceptional basis in full court, remains inaccessible, even in synthesis, to the huge majority of the European population and media.

The Pinxten affair is unfortunately not the only disastrous European example of mismanagement in recent years. The European Commission’s legal manipulations to appoint Jean-Claude Juncker’s Chief of Staff as Secretary-General, for example, have revealed the total passivity of European Commissioners in such contexts. The complete opacity of MEPs‘ allowances was confirmed by a vote – also secret – of the same MEPs. The regime of cumulation of activities and conflicts of interest of MEPs also remains a joke. The Pinxten affair reveals, once again, that the European institutions are just as incapable to control blatant legal violations in their own ranks as they are in Hungary or Poland.

Too often, a climate of moral resignation prevails in these institutions, and the internal controls suffer from too many deficiencies. Their leaders keep flooding the internet with press releases, tweets, Facebook ads and video messages about Europe’s greatness, but all of this remains remarkably ineffective as they keep on neglecting a fundamental reality. As long as they do not put an end to such practices, their communication will appear to the public as a deception, and the rift between citizens and institutions will continue to widen.

References

References
1 The author was at the time special representative of the Dehaene government for European affairs, and regularly had to explain this amazing context to the European Commission.

SUGGESTED CITATION  Dehousse, Franklin: The Multiple EU Rule of Law Crises: The European Court of Justice and the Pinxten Case, VerfBlog, 2021/11/10, https://verfassungsblog.de/the-multiple-eu-rule-of-law-crises/, DOI: 10.17176/20211110-182439-0.

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