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Strengthening Transparency and Integrity Via the New ‘Independent Ethics Body’ (IEB)

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Strengthening Transparency and Integrity Via the New ‘Independent Ethics Body’ (IEB) STUDY Requested by the AFCO committee Strengthening transparency and integrity via the new ‘Independent Ethics Body’ (IEB) Policy Department for Citizens’ Rights and Constitutional Affairs Directorate-General for Internal Policies EN PE 661.110 - October 2020 Strengthening transparency and integrity via the new ‘Independent Ethics Body’ (IEB) Abstract This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the AFCO Committee, provides an overview of transparency and integrity-related elements in the current EU setting, covering both substantive elements (including, in particular, conflict of interest and revolving-doors) as well as the body in charge of ethical control and guidance. Based on a comparison covering France, Ireland and Canada, this study proposes an ‘Independent Ethics Body’ (IEB) via a new interinstitutional agreement. This document was requested by the European Parliament's Committee on Citizens' Rights and Constitutional Affairs. AUTHOR Dr. Markus FRISCHHUT, LL.M., Professor, Jean Monnet Chair “EU Values & DIGitalization for our CommuNITY (DIGNITY)” (jeanmonnet.mci.edu), MCI | THE ENTREPRENEURIAL SCHOOL®, Innsbruck, Austria ADMINISTRATOR RESPONSIBLE Eeva PAVY EDITORIAL ASSISTANT Fabienne VAN DER ELST LINGUISTIC VERSIONS Original: EN ABOUT THE EDITOR Policy departments provide in-house and external expertise to support EP committees and other parliamentary bodies in shaping legislation and exercising democratic scrutiny over EU internal policies. To contact the Policy Department or to subscribe for updates, please write to: Policy Department for Citizens’ Rights and Constitutional Affairs European Parliament B-1047 Brussels Email: [email protected] Manuscript completed in October 2020 © European Union, 2020 This document is available on the internet at: http://www.europarl.europa.eu/supporting-analyses DISCLAIMER AND COPYRIGHT The opinions expressed in this document are the sole responsibility of the authors and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the European Parliament is given prior notice and sent a copy. © Cover image used under licence from Adobe Stock.com Strengthening transparency and integrity via the new ‘Independent Ethics Body’ (IEB) CONTENTS LIST OF ABBREVIATIONS 6 LIST OF FIGURES 10 EXECUTIVE SUMMARY 11 1. INTRODUCTION 19 2. STATUS QUO OF THE CURRENT INSTITUTIONAL SET-UP 23 2.1. Key substantive elements 23 2.1.1. Transparency 23 2.1.2. Integrity: ethics, values and principles 24 2.2. Institutional elements 28 2.2.1. European Parliament 29 2.2.2. European Commission 30 2.2.3. Council of the European Union and European Council 32 2.2.4. Court of Justice of the European Union 34 2.2.5. European Central Bank 35 2.2.6. European Court of Auditors 39 2.2.7. Economic and Social Committee 41 2.2.8. Committee of the Regions 42 2.2.9. European Ombudsman 43 2.2.10. European Data Protection Supervisor 45 2.2.11. Euro Group and Euro-Summit 46 2.2.12. Staff regulations 48 3. COMPARATIVE ANALYSIS 50 3.1. Introduction 50 3.2. The French ‘Haute Autorité pour la transparence de la vie publique’ 51 3.2.1. Relevant legal documents 51 3.2.2. An independent body 53 3.2.3. Competences 55 3.2.4. Scope rationae personae 59 3.2.5. Scope rationae materiae 60 3.2.6. Principles 62 3.2.7. Analysis 62 3.3. The Irish Bill for a Public Sector Standards Commissioner 64 3.3.1. Relevant legal document(s) 64 3.3.2. The Public Sector Standards Commissioner (including Office and Deputy) 66 PE 661.110 3 IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs 3.3.3. Competences 67 3.3.4. Scope rationae personae 69 3.3.5. Scope rationae materiae 69 3.3.6. Principles 72 3.3.7. Analysis 72 3.4. Canada 73 3.4.1. Relevant legal documents 73 3.4.2. The (Office of the) Conflict of Interest and Ethics Commissioner 74 3.4.3. Competences 76 3.4.4. Scope rationae personae 79 3.4.5. Scope rationae materiae 80 3.4.6. Principles 82 3.4.7. Analysis 83 4. THE ‘INDEPENDENT ETHICS BODY’ (IEB) – POLICY RECOMMENDATIONS 86 4.1. Introduction 86 4.2. Independence (members and chairperson, working methods and decisions) 88 4.3. Competences (advisory, monitoring, investigatory, enforcement) 92 4.4. Scope 97 4.4.1. Scope ratione personae 97 4.4.2. Scope ratione materiae 97 4.5. Resources (staff, budget) 101 5. POLICY RECOMMENDTIONS TO SET UP THE INDEPENDENT ETHICS BODY 102 5.1. Meroni-doctrine 102 5.2. Legal basis 107 5.3. Changes of EU secondary law 111 5.4. Changes of EU primary law 115 6. CONCLUSION 117 REFERENCES 120 REFERENCES: LEGAL DOCUMENTS 120 1. EU primary law and related documents 120 2.1. EU regulations 120 2.2 . EU directives 121 2.3. Commission documents (COM) 121 2.4. Decisions (N.B. For decisions adopting rules of procedure and codes of conduct, see below at 2.5, respectively, 2.6) 122 4 PE 661.110 Strengthening transparency and integrity via the new ‘Independent Ethics Body’ (IEB) 2.5. Rules of Procedure 123 2.6. Codes of conduct (N.B. the EP CoC is Annex I of EP RoP) 124 2.7. Other EU secondary law 124 3. CJEU case-law (in chronological order) 124 4.1. France: relevant legal documents 126 4.2. Ireland: relevant legal documents 126 4.3. Canada: relevant legal documents 127 4.4. Other national legislation 127 5. National case-law 127 REFERENCES: LITERATURE AND OTHER RESEARCH 128 PE 661.110 5 IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs LIST OF ABBREVIATIONS ACCM Advisory Committee on the Conduct of Members (of Parliament, respectively, of the ECOSOC) AFCO Parliament Committee on Constitutional Affairs AG Advocate General BGBl Austrian Official Journal (Bundesgesetzblatt) BVerfG German Constitutional Court (Bundesverfassungsgericht) CAN Canada (country code) CAN$ Canadian Dollar CC Consultative Committee (of the Court of Justice) cf. confer CFR Charter of Fundamental Rights of the EU CIE Committee of Independent Experts CIEC Conflict of Interest and Ethics Commissioner (Canada) CJEU Court of Justice of the EU CoC Code of conduct COI Conflict of interest COM European Commission documents CoR Committee of the Regions COREPER Committee of Permanent Representatives of the Governments of the Member States (Comité des représentants permanents des gouvernements des États membres) Dec Decision DOI Declaration of interest EAEC European Atomic Energy Community 6 PE 661.110 Strengthening transparency and integrity via the new ‘Independent Ethics Body’ (IEB) EAG Ethics Advisory Group (established by the EDPS) EC European Commission ECA European Court of Auditors ECB European Central Bank ECJ European Court of Justice ECOSOC Economic and Social Committee ECSC European Coal and Steel Community EDPS European Data Protection Supervisor EEC European Economic Community EF Ethics Framework (of the ECB; N.B. for all staff) EGE European Group on Ethics in Science and New Technologies EIB European Investment Bank EM Explanatory Memorandum (to the Irish ‘Public Sector Standards Bill 2015’) ENA École National d’Administration EO European Ombudsman EO CoC Code of Conduct for the European Ombudsman EO Good European Ombudsman Internal Charter of Good Practice Practice EO Guide Guide on Ethics and Good Conduct for the Ombudsman’s Staff EP European Parliament EPOA Ethics in Public Office Act, 1995 (Ireland; updated to 21 November 2018) EPPO European Public Prosecutor's Office EPSO European Personnel Selection Office ESCB European System of Central Banks PE 661.110 7 IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs ESMA European Securities and Markets Authority et al. et alii (= and others) EthCo Ethics Committee (of the ECB) EthF Ethics Framework (of the EDPS) EthG Ethical Guidelines (of the ECA) EU European Union EUCO European Council FR France (country code) GAB Code of good administrative behaviour for staff of the Commission in their relations with the public (= Annex I to EC RoP) GAEIB Group of Advisers to the Commission on the Ethical Implications of Biotechnology (now: EGE) GC General Court HATVP Haute Autorité pour la transparence de la vie publique i.c.w. in conjunction with IE Ireland (country code) IEB Independent Ethics Body (as proposed by this study) IEC Independent Ethical Committee (of the Commission) IIA Interinstitutional Agreement ImpRoP Rules for implementing the rules of procedure (Decision No 38-2016 laying down the rules for implementing the rules of procedure [cf. ECA RoP] of the Court of Auditors) INTOSAI International Organization of Supreme Audit Institutions ISSAI International Standards of Supreme Audit Institutions JURI Parliament Committee on Legal Affairs 8 PE 661.110 Strengthening transparency and integrity via the new ‘Independent Ethics Body’ (IEB) leg. cit. legis citatae (= the quoted law passage) MEP Member of the European Parliament MFF Multiannual Financial Framework MoU Memorandum of Understanding MS Member State(s) NGO Non-governmental organization N.B. Nota bene (= note well) OAB Outside Appointments Board (Ireland) OECD Organization for Economic Cooperation And Development OJ Official Journal (of the EU) OLAF European Anti-fraud Office (Office européen de lutte antifraude) PACS Pacte civil de solidarité (civil solidarity pact) PSS Bill Public Sector Standards Bill 2015 (Ireland) PSSC Public Sector Standards Commissioner (Ireland) RLA Regulation of Lobbying Act 2015 (Ireland, updated to 1 May 2019) RoP Rules of
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