Tuesday

10th Dec 2019

Opinion

Are commissioner grillings going too far?

  • Laszlo Trocsanyi (c) and Romania's Rovana Plumb were rejected by a parliament committee (Photo: Europa Pont)

The European Parliament prides itself on its commitment to the rule of law. It presents itself as the most of rule of law committed body on the planet. It says much the same about its adherence to transparency and accountability.

Put it all together and you will get the most virtuous parliament imaginable.

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Every five years, parliament has a chance to demonstrate this by questioning the suitability of those designated by the EU member states as the new EU commissioners.

These are the commissioner hearings, when candidates have to show their suitability and knowledge of the portfolios they've been assigned.

Some fail, some perform poorly. Technically, parliament can't actually veto anyone, but it can make recommendations that are hard to override for political reasons.

At this point, matters become technical, so – a trigger warning – complexity follows.

The key here is that in these commissioner hearings politics and the law are very close to one another. The temptation to use legal rules and procedures for political ends is real and present.

In sum, parliament's legal affairs committee (JURI in the jargon), is required to look into the financial affairs of the commissioner candidates and confirm that all is above board.

JURI must ensure that the candidate's financial declarations are "accurate and complete" and, the killer phrase, "whether it is possible to infer a conflict of interests".

"Infer" is so vague as to be an invitation, if not actually a temptation, to abandon legal criteria and go for political power instead.

'Hearsay'?

Parliament is a political body, true, but in a democracy political power is meant to be exercised with restraint and there should be clear blue water between politics and the law.

A body that constantly alleges breaches of the rule of law in certain targeted member states can't afford to ignore the rules, even if that means giving up on a political advantage.

Crucially, when a political body, JURI in this case, is acting a bit like a court of law, in a "quasi-judicial capacity", then it must absolutely stay with the limits of both the letter and the spirit of legality. That's the heart of the rule of law.

This means above all that the evidence looked at must conform fully to what a court of law would accept.

So, no hearsay, no reliance on reports by NGOs, no basing assessments on intuition.

Further, there must be time to scrutinise the files put forward by the candidates. And, even if this may mean superhuman self-discipline, European values and the exercise of the rule of law demand that matters be scrutinised fairly.

This is where things begin to look unacceptable.

The JURI committee scrutinised the suitability of the Hungarian and Romanian commissioner candidates (László Trócsányi and Rovana Plumb) and concluded that they had not complied with the rules on financial interests.

Flimsy on facts

The case against Trócsányi was flimsy on the facts.

His law firm, partly bearing his name, was receiving contracts from the Hungarian government. The fact that he had divested himself of his interests in the firm counted for nothing. A bit of legal contortion by JURI saw to that.

The other ground, that as minister of justice, he had accepted that two Russian suspects could return to Russia had self-evidently nothing to do with financial interests.

Was JURI acting beyond its legal competence here, acting ultra vires?

Quite a few people believe this to be the case. To add to these, where was the much vaunted transparency? The JURI committee met behind closed doors and the papers are not available.

A deeper problem is that of the "inference" already mentioned.

There are no rules laid down as to the criteria of what can be inferred from the data presented by the candidate or any other information.

The committee can drive a coach and horses through this gap.

Above all, it can covertly introduce political criteria into a legal procedure – a quasi-judicial one. Where law is used for political ends one can say farewell to the rule of law.

The political evidence that political criteria came into play in the blackballing of Trócsányi is clear enough.

The media and NGOs have been loud in shouting that he has been an "enabler" of Hungary's so-called anti-rule-of-law regime.

This alleged malfeasance is so deeply embedded in the minds of the left that evidence to the contrary is simply ignored.

The EU's – yes, the EU's – justice scoreboard is ignored. Hungary comes out of it not badly, in the top third for the most part.

This is a non-fact as far as the left is concerned.

The work of Hungary's Constitutional Court and its standing in the network of the European constitutional courts are ignored.

And none of the critics ever looks at the actual work of the court, like its striking down government legislation, despite its website being available in English.

There are media in Hungary strongly critical of the government, but somehow these don't count when the left's charge sheet is compiled.

The dense institutional network of checks and balances in Hungary is dismissed as non-existent. And so on. The left's dystopic fantasy of a dictatorial Hungary is never matched with reality.

Seemingly, the members of the JURI committee voted down Trócsányi by relying on these fantasy criteria. This political decision against the Hungarian commission candidate does not say much for the JURI committee's adherence to the rule of law.

And then, there's more politics.

Although JURI only made "recommendations", these are like the proverbial offer that you can't refuse.

The majority for the president of commission, Ursula von der Leyen, was very slim, a mere nine votes.

On this basis, the chance that parliament could vote down the entire commission, which it can do legally, is real enough.

Hence the decision to accept the JURI vetoes – risk avoidance.

The meaning of all this is that parliament has de facto acquired the political, though not the legal, power to interdict commissioner candidates. There are those who would call this a power grab.

Author bio

György Schöpflin was an MEP for 15 years from Hungary's Fidesz party until this year, and served as European People's Party coordinator in the Constitutional Affairs Committee.

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

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