Making Commissioners Accountable
Gavin Barrett, University College Dublin
The ongoing controversy over EU Trade Commissioner Phil Hogan’s involvement in the ‘Golfgate’ scandal may yet cost the Commissioner his position. The controversy has centred on Commissioner Hogan’s participation in a dinner organised in contravention of Irish anti-coronavirus rules concerning social gatherings and has since also come to involve alleged breaches by him both of travel rules and social isolation advice. Hogan’s behaviour has led to calls by both the Irish Taoiseach Micheál Marting and the Tánaiste (and Hogan’s party colleague in Fine Gael) Leo Varadkar that the Commissioner consider his position. This in turn has led to the question of how Commissioners are appointed and how they are dismissed.
The controversy - which has engulfed Ireland - has already cost Ireland’s Agriculture Minister Dara Calleary his position as well as Jerry Buttimer the position of the Leas Cathaoireach (Deputy Chair) of the Seanad, and raised questions over the continuance in office of recently appointed Supreme Court judge Séamus Woulfe, all attendees at the dinner.
The position of EU Commissioner differs from all others which have been in issue however, in that the position is not an Irish one. European Commissioners are however put under a specific Treaty duty to refrain from any action incompatible with their duties. Suggestions that there is no accountability on the part of Commissioners are thus wide of the mark: there is accountability. Accountability in respect of the actions of a Commissioner however is exercised at European level rather than at national level.
The respective roles of Member States and European institutions are worth considering briefly. Formally, and contrary to a widespread misunderstanding, since the Lisbon Treaty entered into force in 2009, Member States do not actually even get to nominate Commissioners. Rather, during the appointment process of each new Commission, the Council of the EU (which is composed of one ministerial-level representative per Member State) adopts by common accord with the Commission President-elect (which in Hogan’s case was Ursula Von der Leyen) the list of persons whom it proposes as Commission members. These are, however, selected on the basis of Member State 'suggestions'. That last point operates to give Member States a veto role over the Commissioner-designate from its country in political practice (if not in law). (It should be noted that as part of the deal to guarantee the ratification by Ireland of the Lisbon Treaty, the Member States retained the practice of having one Commissioner from each and every Member State.) Before being appointed, the Commissioners-designate are then subjected as a body to a vote of consent by the European Parliament. (In practice, this is after a rigorous hearing process in which the Parliament will refuse to vote its consent to them as a body if even one Commissioner-designate does not meet its approval) They are then appointed by the European Council (composed the heads of State or Government of each Member State) by a qualified majority. Legally, therefore the position of Commissioner is a European, not a national one. In practice, however, this is counterbalanced during the appointment process by the practice that Member State ‘suggestions’ are indispensable and carry veto weight. Furthermore, if a ‘suggested’ candidate is not accepted by the Parliament, the initial suggestion by the Member State can be replaced with other further 'suggestion' or suggestions by that same state. Furthermore, it should be noted that both the bodies nominating the Commissioners and appointing them (respectively the Council and the European Council) are composed of Member State representatives.
What is the position as regards the removal of Commissioners? The answer is that this is also done at European, not national level. It is made deliberately difficult to prevent Member States or anyone else interfering with (vital) Commission independence. Apart from normal replacement or death, Commissioners can be 'compulsorily retired' by the ECJ - tho' that requires 'serious misconduct' and can only be done on application of Council/Commission. The Commission president can also effectively fire a Commissioner by requesting his or her resignation. It is exactly this power (introduced in the wake of the scandals that wracked the Santer Commission partially because Commission President Jacques Santer found himself legally unable to rid himself of turbulent French Commissioner Edith Cresson) that Phil Hogan has most to fear from at present. President von der Leyen is also entitled to reshuffle any Commissioner's portfolio, a power which has been used to avoid trouble by Commissions in the past, and could conceivably be used against Hogan. Finally, it should also be noted that the European Parliament can also (by a two thirds majority on a given day which also however represents a majority of its elected members) remove the entire Commission with a vote of censure. Interestingly that power has (without being formally exercised) been deployed to force the resignation of a Commission over misbehaviour by one or two Commissioners (the Santer Commission having fallen on its own sword in 1999 rather than faced the ignominy of formal censure). There is however no suggestion up to this point that it might be deployed in the present controversy.
The greatest danger to Phil Hogan’s position at present is that Commission President Ursula von der Leyen will simply opt to request his resignation. Hogan has been requested to give a detailed account of his actions. von der Leyen will doubtlessly read this very carefully in considering whether Hogan has violated the duty imposed on every Commissioner to refrain from any action incompatible with their duties.
 Member states are committed not to seek to influence Commissioners in the performance of their tasks. (See Article 245 of the Treaty on the Functioning of the European Union (TFEU)).While one understands both the politics and the optics of the present situation, quaere whether a Taoiseach and his Deputy calling on a Commissioner to resign complies with this.
 Article 245 TFEU.
 See Article 17(7) of the Treaty on European Union (TEU).
 Article 246 TFEU.
 Article 17(6) TEU.  Article 248 TFEU.  Article 234 TFEU. Gavin Barrett is a Professor in the Sutherland School of Law, University College Dublin