Late in the evening of August 22, the leaders of the Irish government called on the EU Trade Commissioner, Phil Hogan to "consider his position." Those words mean resign.
They piled on the pressure thereafter with a further statement, on August 23, containing a political determination that he had broken their COVID-19 rules.
Phil Hogan did resign a day or so later. That was his decision and one he was entitled to make.
But there are lessons to be learned by President von der Leyen, and by the European Commission as a whole, as to how, and to whom, Commissioners should be held accountable, to understand what this precedent means for the political independence of Commissioners from their home governments.
There are also questions about the internal management and collegiality of the Commission.
President von der Leyen clearly withdrew any active support from Commissioner Hogan, and unquestioningly accepted the line of the Irish government. This influenced him to resign.
In this, I contend that she did not fulfil all her responsibilities under the Treaties.
I know she faced genuine political difficulty. But the Treaties were framed do deal with fraught political situations while preserving the independence of the Commission and due process.
The Commission is the guardian of the Treaties and should be seen to defend the rules laid down in the Treaties in all circumstances, even when it is politically difficult. Article 245 of the Treaty requires member states to respect the independence of Commissioners. Ireland is bound by that article, having ratified it in a referendum.
One should note that Article 245 refers to respecting the independence of Commissioners individually, not just to the Commission as a whole.
It is for the Irish government to say whether publicly demanding a Commissioner’s resignation, for an alleged breach of purely Irish rules, is compatible with the Irish government’s Treaty obligation under Article 245 to respect his independence. It had other options.
If any Commissioner is visiting a member state for any reason, he or she is subject to the laws of that state on the same basis as any other citizen. A visiting Commissioner would not be above the law, nor would they be below it either.
If they breached the law, due process in the courts ought to be applied as to any citizen.
This what would have happened if the visiting Commissioner was from any country other than Ireland and had had the difficulties which Phil Hogan had; due process would have been followed.
The statements of the Irish government, and the unsatisfactory explanations by Phil Hogan, did create political problems for the President of the Commission. She had to do something.
But there were options available to her which, inexplicably, she failed to use.
Commissioners are subject to a Code of Conduct, which was last updated in 2018. Under that code, there is an ethics committee to determine if the code has been breached. If the matter was urgent, there is provision for a time limit to be set for a report by the committee.
A reference to the Ethics Committee would have allowed for due process, and a calm and fair hearing. More importantly, using this process would also have asserted the independence of the Commission as an institution.
The code says that it is to be applied "in good faith and with due consideration of the proportionality principle," and it allows for a reprimand where the failing does not warrant asking the Commissioner to resign.
Now, because of the course followed, we will never know if there was any breach at all of the code at all by Phil Hogan.
President von der Leyen's failure to use these mechanisms seems to be a serious failure to defend due process and proportionality, and to protect the independence of individual Commissioners as she was required to do by the Treaty.
The Commission and the European Parliament should enquire into why she did not do so. There are consequences now for the viability of the Code of Conduct, if it is not to be used in a case like this.
Was what Phil Hogan did a resigning matter anyway?
Article 247 allows for only two grounds for asking a Commissioner to resign. These are that he or she is "no longer being able to fulfil the conditions for the performance of his duties" or "has been guilty of serious misconduct." I do not think either condition was met in this case.
Phil Hogan would have been fully capable of carrying out his duties while the Ethics Committee did its work. Instead, his position is now effectively vacant. Most people I have spoken to do not think the breaches committed by Phil Hogan, while foolish, amounted to “serious misconduct” within the meaning of Article 247.
Failure to recollect all the details of a private visit over two weeks, or to issue a sufficient apology quickly enough, may be political failings, but they hardly rise to the level of “serious misconduct.” Any deliberate and knowing breach of quarantine should have been dealt with in the Irish courts without fuss.
In any event, President von der Leyen would have been far wiser to have got an objective view on all these things from the Ethics Committee before allowing Phil Hogan’s resignation.
Another issue is the president’s failure to call a Commission meeting if she was considering that a Commissioner should resign.
Under Article 247, it is the Commission, not the President alone, who may compulsorily retire a Commissioner, and even then, they must have the approval of the European Court of Justice. These safeguards were put in the Treaty to protect the independence of the Commission. They were ignored in this case.
The resultant weakening of the institutional independence of the Commission is very damaging to European integration and to the interests of smaller EU states. This should be of concern to the European Parliament.
- John Bruton is a former Taoiseach (prime minister) of Ireland, a former EU Ambassador to the United States and a former member of the EU Convention on the European Treaties
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