Committee of Independent Experts
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1.1. The mandate
1.2. Independence and status of the Committee
1.3. Scope of inquiries
1.4. Nature of reprehensible acts
1.5. Standards of proper behaviour
1.6. The issue of responsibility
1.1.1. At its plenary sitting of 14 January 1999, the European Parliament adopted a resolution on improving the financial management of the European Commission.
Paragraph 1 of this resolution reads:
'Calls for a committee of independent experts to be convened under the auspices of the Parliament and the Commission with a mandate to examine the way in which the Commission detects and deals with fraud, mismanagement and nepotism including a fundamental review of Commission practices in the awarding of all financial contracts, to report by 15 March (1999) on their assessment in the first instance on the College of Commissioners;'.
1.1.2. The request in the European Parliament resolution that the Committee 'examine the way in which the Commission detects and deals with fraud, mismanagement and nepotism, including a fundamental review of Commission practices in the awarding of all financial contracts' refers obviously to an examination of Commission procedures and practices in relation to specific cases rather than to an in-depth investigation of the merits of each case. Such an investigation would indeed imply a repetition of the examination of many of the Commission's activities already undertaken by the competent bodies such as Parliament's Committee on Budgetary Control, the Commission's Financial Control departments (DG XX) and UCLAF.
1.1.3. Moreover, such an approach would have run the risk of interfering in ongoing investigations carried out by the competent authorities within the framework of disciplinary or penal proceedings against Community officials or third parties. This Committee is not entitled, nor does it intend, to intervene in such proceedings. With this in mind, it refrained from hearing private parties, even on a voluntary basis, since that could jeopardise pending or future proceedings before the courts and would have obliged the Committee to follow procedural rules which are beyond its remit.
1.1.4. The European Parliament's Conference of Presidents at its meeting of 27 January 1999 adopted a note on the Committee of Independent Experts which stipulates under point 6 (Terms of reference), paras.1 and 2:
'There is only very limited time available for the drawing up of a first report (March 15 deadline, according to the resolution).
The first report could seek to establish to what extent the Commission, as a body, or Commissioners individually, bear specific responsibility for the recent examples of fraud, mismanagement or nepotism raised in Parliamentary discussions, or in the allegations which have arisen in those discussions.'
1.1.5. The Conference of Presidents' stated aim for the first report - 'to establish to what extent the Commission, as a body, or Commissioners individually, bear specific responsibility' - focuses attention on the Commission as a body and on individual Commissioners rather than on the Commission's administrative services. That said, the close interrelationship between the Administration and the Commissioners themselves was taken into account by the Committee where necessary. However, since it falls within the Committee's mandate to examine the way in which the Commission detects and deals with fraud, mismanagement and nepotism which, clearly, also includes reprehensible acts committed by the Commission's administrative services, the Committee will have to take account of the conduct of the Administration and its officials in the cases under review.
1.1.6. In accordance with the resolution and detailed mandate outlined above, the Committee's first report will limit itself to giving its considered view on the question of the 'specific responsibility' of the Commission as a body and of Commissioners individually in a range of specific cases. It will do so on the basis of the criteria and methodology set out below.
1.1.7. For its second report, the Committee envisages a more wide-ranging review of the Commission's culture, practices and procedures within the context of the issues arising in its first.report.
1.2.1. According to point 6 of the Conference of Presidents' note, para. 3, referred to above, the Committee shall 'be free to decide on the organisation of their work and the internal distribution of their tasks'. This freedom is understood not only to denote independence in organisational matters but also to give a free hand in the definition of approach to be taken, the questions to raise and the nature of the conclusions to be drawn.
1.2.2. The Committee is not constituted under the Treaties or any other regulation governing the European institutions and is thus neither a Community institution nor a Community agency. It is certainly not a Community court and has no formal investigative power. Further, its authority is vested in it by virtue solely of an agreement between the Commission and Parliament that (i) all relevant documentation the Committee wished to look at would be made available and (ii) that the staff of the institutions would be exempted from all secrecy obligations imposed on them by Staff Regulations.
1.2.3. The Committee therefore regards itself as a temporary advisory committee operating by consent and drawing its authority from the resolution of Parliament and the commitment of both Parliament and the Commission to support its work and to recognise its findings(1).
1.2.4. The Committee therefore seeks neither to 'judge' in the judicial sense of the word nor to give 'instructions', but rather to offer a (legally or politically) non-binding evaluation of the Commission's, and Commissioners', conduct in the cases under consideration.
1.2.5. Throughout its mandate the Committee has been completely independent. Though established 'under the auspices' of the European Parliament and the Commission, it was guided by the principle of impartiality vis-à-vis these two institutions and sees itself as answerable only for the exercise of its mandate and accountable to no party other than the general public.
1.2.6. In practical terms, the Committee applied conditions of confidentiality to its work in order to avoid any interference from outside.
1.3.1. Given the extremely limited time available for its first report, the Committee restricted its task to the consideration and evaluation of a limited number of cases.
1.3.2. Though such selectivity arguably bears the risk of leading to partial (i.e. incomplete) conclusions, the Committee took the view that each case selected at this stage for close consideration was in itself sufficient to produce meaningful conclusions in the context of the mandate assigned to the Committee, which is to comment on the Commission's procedures and practices for the detection of and for dealing with fraud, mismanagement and nepotism. The cases have been selected on the basis of recent parliamentary discussions, as was suggested in the Conference of Presidents' note concerning the mandate of the Committee. The fact that other areas of activity have not been examined should not, however, be taken to mean that they are necessarily clear of justified allegations.
1.3.3. As regards the cases it selected for scrutiny, the Committee did its utmost to obtain information which was as sound and as substantiated as possible. It emphasises, however, that it did not seek 'proof' in the judicial sense of the word. On the basis of available reports and documentation as provided by the relevant authorities and confirmed through interviews and other sources, it based its judgment on credible information, which was either not contested or could be verified by the Committee itself within its limited powers.
1.4.1. The European Parliament's resolution refers to 'fraud, mismanagement and nepotism' as the reprehensible acts in respect of which the Committee is asked to examine how the Commission detects and deals with them.
1.4.2. Fraud refers to intentional acts or omissions tending to harm the financial interests of the Communities. It encompasses irregularities in establishing documents committed ntentionally, non-communication of information,and misappropriation of funds which are designed to obtain illegal financial or other benefits at the expense of the Community's financial interests(2).
1.4.3. Mismanagement is a broader concept. In the view of the Committee, it refers in general to serious or persistent infringements of the principles of sound administration and, in particular, to acts or omissions allowing or encouraging fraud or irregularities to occur or persist. Such infringements may be committed intentionally but will consist, more frequently, in negligent behaviour, or lack of care, in the exercise of public management functions(3).
1.4.4. Nepotism is a different (and non-legal) concept. In common usage it refers to favouritism shown to relatives or friends, especially in appointments to desirable positions which are not based on merit or justice(4).
1.4.5. In the Committee's view, it follows from the above that, taken together, the notions of fraud, mismanagement and nepotism point to various categories of reprehensible conduct, namely:
(i) irregularities, i.e. infringements of Community or applicable national rules if committed intentionally, in which case they will often involve fraud or result from serious negligence;
(ii) fraudulent, i.e. intentional behaviour by act or omission (including corruption) intended to obtain an illegal benefit at the expense of the Community's financial interests;
(iii) ethically reprehensible behaviour, such as making public appointments, awarding contracts, or recommending individuals for rewards and benefits (even where no fraud or irregularity is committed) on the basis not of merit but of favouritism shown to family, friends or other relations;
(iv) serious or persistent infringements of the principles of sound administration.
1.5.1. It is obvious that the categories mentioned above overlap, and that it is not easy (nor necessary for the Committee) to distinguish between them in any given case. The distinction is made here only to serve as an indication of the standards which the Committee wishes to apply. These standards are based on the Committee's understanding of the requirements of proper behaviour in the exercise of public office and the need for compliance with the highest standards of conduct in European public administration. These standards apply above all to the Commissioners and the members of their private offices. As custodians of the respect in which the European institutions as a whole must be held by the public at large, such high standards imply that no opportunities for, or appearances of, possible conflicts of interest must be created which would jeopardise the public image of the Commission or the Community as a whole.
1.5.2. The Committee is conscious of the fact that - in the absence of specific rules or codes of conduct - the very concept of standards of proper behaviour entails grey areas of assessment. The Committee believes nonetheless that there exists a common core of 'minimum standards', in addition to rules laid down in black and white, which binds holders of high public office, such as the Commissioners and the members of their private offices. The higher the office, the more demanding those standards are in requiring the holders to conduct themselves properly in appearance and behaviour.
1.5.3. Article 157 of the EC Treaty states, in paragraph 2, that 'the Members of the Commission shall, in the general interest of the Community, be completely independent in the performance of their duties... In the performance of their duties, they shall neither seek nor take instructions from any government or from any other body. They shall refrain from any action incompatible with their duties... [T]hey will respect... their duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain appointments or benefits.' This latter duty of integrity and discretion is one which undoubtedly also applies, even more so, while Commissioners are in office.
1.5.4. The rules of conduct which are part of the common core of 'minimum standards' referred to above may be defined as follows:
- acting in the general interest of the Community and in complete independence, which requires that decisions are taken solely in terms of the public interest, on the basis of objective criteria and not under the influence of their own or of others' private interests;
- behaving with integrity and discretion and - the Committee would like to add - in accordance with the principles of accountability and openness to the public, which implies that, when decisions are taken, the reasons for them are made known, the processes by which they were taken are transparent and any personal conflicting interests are honestly and publicly acknowledged.
Only by respecting those standards will it be possible for holders of high office to have the authority and the credibility enabling them to offer the leadership which they are required to give(5).
1.6.1. The stipulation in the European Parliament's resolution that it is for the Committee 'to examine the way in which the Commission detects and deals with fraud, mismanagement and nepotism' is to be seen in connection with the stipulation in the Conference of Presidents' note that the Committee shall 'seek to establish to what extent the Commission, as a body, or Commissioners individually, bear specific responsibility'. The reference in the resolution to the way in which the Commission detects and deals with fraud, mismanagement and nepotism indicates that the emphasis of the Committee's examination is to be placed on mismanagement on the part of the Commission, as a body, or of the Commissioners individually, as stated in the note of the Conference of Presidents. It is therefore the essence of this Committee's task to look into the practices of the Commission aimed at detecting and dealing with fraud, mismanagement and nepotism committed (possibly) by Members of the Commission itself as well as (more often) by officials working in the Commission, or by third parties working on behalf of, or under contract to, the Commission. And indeed, as the individual cases examined below demonstrate, poor or failed administration by the Commission, as a body, or by individual Commissioners and members of their private offices in detecting and dealing with fraud, mismanagement or nepotism, covers the bulk of the allegations made and examined by the Committee. That does not mean that the Committee did not also have to deal with a few allegations of nepotism by Members of the Commission itself, although there were no allegations of fraud or corruption.
1.6.2. Reprehensible conduct of the Commission as a body, or of Commissioners individually, and more particularly (as we have seen) mismanagement in detecting or dealing with fraud, mismanagement or nepotism perpetrated by the administrative services of the Commission and by third parties working for the Commission, obviously involves the responsibility of the Commission as a whole, or of individual Commissioners. The responsibility that this Committee is dealing with concerns ethical responsibility, that is responsibility for not behaving in accordance with proper standards in public life, as discussed above (para.1.5.1.). Such responsibility must be distinguished from the political responsibility of the Commission dealt with in Article 144 of the EC Treaty, which is to be determined by the European Parliament, and from the disciplinary responsibility of individual Commissioners dealt with in Article 160 of the EC Treaty, which is to be determined by the Court of Justice, on application of the Council or the Commission(6). That does not, however, prevent the institution concerned, when determioning political or disciplinary responsibility, from basing its assessment in part on the findings of the Committee concerning the collective or individual behaviour of the Commission or of Commissioners.
1. See letter from the President of the Commission to the President of the European Parliament dated 1 February 1999.
2. Compare Article 1 of the Convention based on Article K.3 of the TEU relating to the protection of the financial interests of the European Communities, adopted by the Council Act of 26 July 1995 (OJ C 316, 27.11.95 p. 48).
3. For the purpose of comparison, the European Ombudsman defines 'maladministration' (the term used in Article 138e of the EC Treaty, establishing the office of Ombudsman) as follows:
(source: http://www.euro-ombudsman.eu.int)
'Maladministration means poor or failed administration. This occurs if an institution fails to do something it should have done, if it does it in the wrong way or if it does something that ought not to be done. Some examples are:
4. Compare Oxford English Dictionary and Petit Robert
5. Compare with the 'Seven principles of public life' as set out in the first report on Standards in Public Life of the UK Nolan (now Neill) Committee, 1995, p.14.
6. It must be distinguished from the non-contractual liability provided for in Article 215, second paragraph, of the EC Treaty, which the Community may incur as a result of damage caused by its institutions or its servants in the performance of their duties.