EU rules put Phil Hogan’s fate in Ursula von der Leyen’s hands

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The outrage over the “golfgate” scandal is in Ireland, but the decision on whether it claims a European Commission scalp rests with Brussels.

In Ireland, pressure mounted over the weekend for Phil Hogan to resign from his role as EU trade commissioner after he attended a packed golfing soirée along with other members of Ireland’s political elite in breach of strict rules on social events.

The parliamentary golf society dinner brought together over 80 people at a time when indoor gatherings were restricted under new coronavirus rules to a maximum of six. That has caused an uproar in Ireland, with two senior Irish politicians, including the agriculture minister, forced to resign.

Both Micheál Martin, the prime minister, and Leo Varadkar, the deputy prime minister, spoke to Hogan and asked him to “consider his position” on Saturday, according to a government spokesperson. That prompted a Twitter apology from Hogan, who acknowledged that his actions had “touched a nerve with the people of Ireland.”

But despite the toxic fallout at home and a political shove from Dublin, the trade commissioner is not budging. That’s because the levers to remove a sitting commissioner are not in Ireland — or any other EU member country — but in Brussels.

As an EU official, Hogan is required to “behave with integrity and discretion” during and after his mandate, observe “the highest standards of ethical conduct,” and “respect the dignity of their office,” according to provisions included in the code of conduct of EU commissioners. But while the code is relatively explicit on matters of financial conflicts of interest and outside jobs, there is little guidance on the kind of national political firestorm that Hogan has landed himself in.

Under the heading “Political Role,” the code states that “Commissioners play an important political role. They have political responsibility and are accountable to the European Parliament.”

Kathleen Van Brempt, a Belgian MEP and member of the international trade committee, said the European Parliament had not yet discussed “golfgate” and MEPs like her would need to understand if Hogan “overstepped the rules” or “acted out of recklessness.”

“But in any case, anyone including myself must restrain to go to public events,” Van Brempt said. “If you want to meet, just go online. As a politician, you have to set the example.”

But even if a head of steam builds in the Parliament for Hogan to go, MEPs do not possess a mechanism to actually prize the trade commissioner out of a job. They can put pressure on his boss, Commission President Ursula von der Leyen, to cut him loose or they can censure and dismiss the Commission as a whole.

Another theoretical option is compulsory retirement. EU legislation states that “if [the commissioner] 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.” But while the anger in Ireland over Hogan’s actions is real, “serious misconduct” is a high bar to meet.

The only mechanism for Hogan’s potential removal then is the judgment of von der Leyen herself. As the legislation states: “A member of the Commission shall resign if the President so requests. “

On Monday, Dana Spinant, the Commission’s deputy chief spokeswoman, said von der Leyen had received a “full report” from Hogan on the circumstances of the dinner. She said the president has asked for “further clarifications” because “details are important.”

“It is important of course for the president that rules are respected,” Spinant said. “It is also important for the president to be fair, so this is why it is essential that all facts are being provided … This is a matter of not just respecting the rules but this is also a matter of public health, there are legal aspects involved and there are moral aspects involved as well.”

In truth, von der Leyen has broad latitude to interpret the rules as she sees fit and precedent suggests that much worse behavior would have to emerge for Hogan to be forced out.

Only one commissioner has previously stepped down in such circumstances. That was Malta’s John Dalli in 2012, following allegations that the tobacco industry sought to bribe him. (He later claimed he was forced to resign but the General Court of the EU ruled he had gone of his own accord.) Few would put Hogan’s conduct in the same category.

Another example hints at the scale of wrongdoing necessary to lose a seat at the College of Commissioners’ table. A POLITICO investigation in 2015 revealed that nearly half of then EU Regional Policy Commissioner Corina Creţu’s closest staff resigned in 12 months over concerns about her light work schedule as well as her tendency to combine official trips with leisure travel and to ask staff to perform personal tasks. She kept her job in Jean-Claude Juncker’s Commission.

“Being so open-ended and left to the interpretation of the sole president of the Commission, this provision lends itself to be applied through a political lens,” said Alberto Alemanno, an EU law professor at Paris management school HEC.

“[This shows] the outer limits of an EU ethics system that shields — as opposed to sanctions — morally questionable behavior when those take place in a commissioner’s country of origin,” Alemanno said. He added that an overhaul of the Commission’s ethics rules was overdue — including the creation of an independent ethics body to preside over such cases.

In the absence of such independent pressure, though, von der Leyen will likely make her call based on the political temperature in Brussels. Hogan may have touched a nerve in Ireland, but he will hope that the political impulses from “golfgate” leave most of Brussels unmoved.

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