Dr Marios Costa, Lecturer in Law, City University

The forced resignation of the Santer Commission in 1999 due to accusations of fraud, maladministration, and mismanagement remains a relevant topic even after nearly two decades. The European Commission has faced ongoing criticism for its administrative shortcomings and the structural flaws within the Union’s accountability system. Numerous reports have portrayed the Commission as an institution grappling with systemic and political irregularities.

On May 11, 2015, the General Court issued a notable judgment regarding a legal challenge from former EU Health Commissioner John Dalli against the Commission. Dalli claimed he was pressured to resign by then-Commission President Jose Manuel Barroso without sufficient opportunity to consider his legal options. Paradoxically, the General Court determined that Dalli resigned voluntarily and dismissed the case as inadmissible.

This ruling carries broader constitutional ramifications. With due respect, the decision is unexpected and fails to address concerns about the President of the Commission’s lawful authority when they lose confidence in a Commissioner. This commentary analyzes the recent ruling’s merit, concluding that the General Court missed a rare chance to address crucial aspects of the Treaty’s provisions granting the Commission President the power to dismiss individual Commissioners. Consequently, it fails to address the Commission’s accountability gaps.

Facts of the Case

Dalli, the former Maltese Commissioner, faced allegations of soliciting a €60 million bribe in exchange for influencing future legislative proposals to benefit Swedish Match, a tobacco company. Following a complaint filed with the Commission by Swedish Match, the EU Anti-Fraud Office (OLAF) launched an investigation into the bribery allegations. On October 15, 2012, OLAF submitted its final report to the Commission, indicating no conclusive evidence of the Commissioner’s involvement in soliciting money from the tobacco company. However, there was some evidence suggesting Dalli was aware that a Maltese entrepreneur was using his name to seek financial gains from the tobacco manufacturer.

On October 16, 2012, Dalli met with the Commission President, where he was presented with two pre-drafted press releases. One stated Dalli’s “voluntary” resignation, while the other indicated Barroso requested his resignation using his prerogative powers under Article 17(6) TEU. During the meeting, the President showed Dalli the cover letter of the OLAF report but denied him access to the full report, citing confidentiality. As the meeting concluded, the President indicated he would force Dalli’s resignation if he refused to step down voluntarily. Dalli requested at least 24 hours to consult with legal counsel and understand his legal standing, but Barroso granted him only 30 minutes. Subsequently, Dalli resigned.

Dalli contested the legality of Barroso’s oral decision to terminate his term as EU Health Commissioner. The Court deemed the action inadmissible due to a lack of clarity regarding the act requiring annulment. The Court couldn’t determine if Dalli sought to annul the President’s decision to remove him from office based on Articles 245 and 247 TFEU or the alleged oral decision by Barroso requesting his resignation under Article 17(6) TEU. Consequently, the action was dismissed.

Legal Framework on the Commissioners’ Accountability

The Treaty addresses Commission accountability. Article 245(1) TFEU states that “[t]he Members of the Commission shall refrain from any action incompatible with their duties.” Additionally, Article 245(2) TFEU addresses the compulsory retirement of a Commissioner:

“The Members of the Commission may not, during their term of office, engage in any other occupation, whether gainful or not. […] they shall give a solemn undertaking that, both during and after their term of office, they will respect the[ir] obligations […] in particular their duty to behave with integrity and discretion as regards the acceptance […] of certain appointments or benefits. In the event of any breach of these obligations, the Court of Justice may, […], rule that the Member concerned be, according to the circumstances, either compulsory retired in accordance with Article 247 or deprived of his right to a pension or other benefits in its stead.”

Furthermore, Article 247 TFEU, the sole reference to the personal liability of Commissioners, states:

“If any Member of the Commission no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct, the Court of Justice may, on application by the Council acting by a simple majority or the Commission, compulsorily retire him.”

Moreover, Article 234 TFEU outlines another form of responsibility the Commission holds towards the European Parliament (EP) – the ‘censure’ motion:

“If a motion of censure on the activities of the Commission is tabled before it, the EP [and] … is carried by a two-thirds majority of votes cast, representing a majority of the component Members of the EP, the Members of the Commission shall resign as a body.”

Lastly, according to Article 17(6) TEU, “[a] member of the Commission shall resign if the President so requests”.

Comment and Analysis

The Dalli judgment represents a missed opportunity for the Court to provide clarity on the aforementioned provisions concerning the accountability of EU Commissioners. Undoubtedly, any instance where a Commissioner fails to uphold the standards outlined in Article 245 TFEU can severely damage the Commission’s public image. This is evident when considering the events leading to the collective resignation of the Santer Commission and the related Cresson judgment (Case C-432/04, Commission v Cresson, ECLI identifier: EU:C:2006:455). Therefore, President Barroso’s concern to prevent a repeat of the discredited 1999 Santer Commission is understandable. Barroso’s dedication to high administrative standards is entirely legitimate. However, the process leading to Dalli’s resignation is not. The Commission can only maintain its integrity if individual Commissioners operate impartially and independently, free from external influence, whether from national governments, private individuals, or stakeholders seeking personal financial gain. This is crucial for the Commission to retain the trust of other institutions, Member States, and citizens.

Commissioners must adhere to the highest standards, not only externally but also within the Commission. Given their senior positions and political experience, they should execute their duties without external influence or internal divisions. As previously highlighted, Article 245(1) TFEU mandates that Commissioners remain free from external influence, a critical point for the Commission’s independence from Member States and individuals. However, let’s assume for a moment that there was sufficient evidence of Dalli receiving financial benefits from the Swedish tobacco company. Let’s also assume that the OLAF report concluded that the Commissioner should be held accountable for violating his duty of integrity under Article 245 TFEU. Would the process that led to his resignation be acceptable and in line with the rule of law? Or does it exemplify an abuse of power by the President? Forcing a Commissioner’s resignation without affording them legal counsel or the opportunity to review the OLAF report is a clear violation of their fundamental right to respond to allegations. Any employment lawyer would recognize this as a classic case of constructive dismissal. This behavior is inexcusable, especially coming from the President of the Commission, an institution entrusted with upholding and safeguarding the rule of law.

Conclusion

Regrettably, the General Court failed to clarify the accountability system for Commissioners’ actions, opting instead to dismiss the action as inadmissible. Considering the OLAF report and the circumstances of the Cresson case, it becomes apparent that irregularities can occur within the Commission, and there is a lack of effective accountability. The General Court erred in not defining the mandatory obligations of EU Commissioners as outlined in the Treaty. Moreover, and crucially, the judgment fails to establish boundaries for the Commission President’s prerogative powers to dismiss cabinet members. The Dalli judgment entirely disregards the question of whether Commissioners can be held responsible for their decisions.

Barnard & Peers: chapter 3