Monday, 25 May 2015

The EU Referendum: Who should vote?



Jo Shaw, University of Edinburgh

Twitter: @joshaw


The question of who votes in what elections is usually thought to be a rather nerdy and obscure question, and it doesn’t often capture the public imagination. So it was quite something to see an announcement from Number 10 in advance of the publication of the EU Referendum Bill telling us what the franchise is going to be in the referendum trending as ‘most popular’ and as a ‘top story’ on the BBC News website early in the morning of the late May Bank Holiday 2015. The announcement seems to have been made to forestall further debate on the franchise, which had been gaining quite a lot of traction on the airwaves, in the newspapers and in social media.

According to the announcement, the Referendum Bill will use a modified Westminster franchise. So it will largely use the franchise for UK national elections – i.e. resident UK, Irish and Commonwealth citizens, plus UK citizens who have not been resident outside the UK for more than 15 years, but it will import two additional elements from the franchise for European Parliament elections: members of the House of Lords will be able to vote, plus those who are resident in Gibraltar. It would not include three groups of possible voters:


·         UK citizens resident abroad (or perhaps in the EU only), no matter how long they have been resident outside the UK;

·         EU citizens who are able to vote in the UK in European Parliament and local elections (and in the elections for the devolved assemblies and Parliaments) on the basis of residence; and

·         16-17 year olds (presumably in the above categories as well as those who are resident UK citizens)


The issue has become politicised in the UK, in part because the first group felt they had been the recipients of a firm pledge from the Conservative party that the current 15 year bar on expatriate voting would be removed (this was later repeated in the 2015 Conservative Party manifesto: see p 49), and the latter two groups both voted in the September 2015 referendum on Scottish independence, with the third group also set to vote in future Scottish elections (including the one to be held in 2016), pursuant to an anticipated Westminster devolution of power to the Scottish Parliament to set its own franchise.


All debates and decisions about the franchise are a mixture of principle and pragmatism – especially in the UK, where the starting point is a rather mixed bag of voting rights. So unlike the vast majority of states worldwide, the UK does not limit its voting rights in national elections to citizens alone. On the contrary, ever since the current boundaries of the UK as we know it were carved out as a result of the end of empire and the dissolution of the union with Ireland, those who had been ‘subjects’ of the Crown found themselves continuing to enjoy the franchise in the modern state, even if this sits uncomfortably with a notion of a national citizenship which draws sharp boundaries between those inside and outside the circle of inclusion.


That said, the inclusion of at least some external voters in the UK franchise since 1980 has seen the UK aligning itself with a more general international trend towards allowing non-resident citizens to vote in elections without going as far as most states now do. So in 2014 the European Commission suggested that the UK, along with four other EU Member States, should reconsider its current policies and enact a more generous enfranchisement of external voters, especially those resident elsewhere in the EU. This was to avoid the situation whereby this group of voters might find themselves unable to vote in any national elections (e.g. if they have been abroad more than fifteen years, but yet did not qualify for citizenship in their host state, or for various reasons did not want to acquire that citizenship, e.g. if that meant giving up UK citizenship).


The UK also has an unusual approach to the enfranchisement of non-UK EU citizens on the basis of residence, which is only required under EU law for local and European Parliament elections, but which is extended – as a matter of UK law – also to elections to the devolved assemblies. Not only did EU citizens vote in the Scottish independence referendum, but they have also voted in all of the referendums that preceded the enactment of devolution arrangements, with the exception of the referendum in Northern Ireland which was conducted on the basis of the Westminster franchise. No other EU Member State has enfranchised non-national EU citizens in this manner; other states continue to insist that longterm resident EU citizens who want to vote in most regional and national elections must themselves become citizens by naturalisation, with all the difficulties that this may entail (including in some cases the loss of their original citizenship). A wider enfranchisement of EU citizens on the basis of residence has long been debated, but a European Citizens’ Initiative did not achieve much political traction across the EU.


And while the initial proposal to enfranchise 16-17 year olds to vote in the Scottish independence referendum was viewed with a degree of scepticism in some quarters, perceptions have changed substantially on this issue in Scotland. The enfranchisement is generally thought not to have changed the result in any substantial way (16-17 year olds seem to have had higher turnout figures than their immediate seniors, the 18-24 year old age group, but probably a slightly greater propensity to vote no). But the principle of enfranchising young adults in this way, and of ensuring that they receive opportunities, within the framework of educational processes in particular, of understanding the significance of the choices they are being asked to make has been part of a ongoing politicisation process in Scotland which receives wide approval, whatever position people take on the question of an independent Scotland.


The predictable result of all of this is confusion, as there is no coherent ‘membership model’ to which the UK adheres in the matter of elections or referendums. The Scottish referendum franchise, which included a wide range of persons resident in Scotland but excluded persons born in Scotland but now resident elsewhere in the UK or outside the UK is a case in point. The latter group would have become Scottish citizens in the event of a Yes vote (as well as remaining, we can assume, UK citizens). The choice was widely defended as a reasonable compromise on which to conduct the vote. Despite rumblings from ‘expat Scots’, threatened litigation to challenge the franchise did not ensue – and for good reason. For that referendum, as for the EU referendum, the setting of the franchise is a matter for the legislation enacted to allow the referendum to take place. There are no formal constitutional provisions on referendums in the UK. And there are, in my view, no provisions of EU law or international human rights law that would preclude the legislature having a free choice across the range of existing electoral rolls, including those for local, devolved, Westminster and European Parliament elections. This means that the franchise can be the subject of political horse-trading.


Those proposing any particular franchise for any given electoral or referendum event will be aware of the fact that the roll chosen might be very likely to affect the outcome. In excluding EU citizens, Prime Minister David Cameron is said to be bowing to eurosceptics in his own party. Equally, those who are campaigning for the inclusion of EU citizens may be doing so not just because of the principle that they have been resident and paying taxes for a long time, and that they will be profoundly affected as regards issues of personal status by the effects of the decision, but also because they may have an inkling that this group would vote in favour of the UK staying in if given the chance. That said, it is worth pointing out that registration and participation levels amongst non-national EU citizens resident in the UK in the elections they can vote in is lower than amongst UK citizens, even though there are clearly some groups to whom these rights to vote – and the possibility of participating in the EU referendum – matter intensely, for obvious reasons. Even if they participated at the same rate as UK citizens, they would be likely to account for less than 5% of the overall voting roll. External voters also continue to prove a stubbornly hard to reach group, with much lower levels of participation during the years when they are enfranchised. It seems likely that they too, if resident in the EU at least, might be inclined to vote in favour of continued membership, in order to protect their own status, although no one can be sure about that point. In any event, as has been pointed out, they retain the option of acquiring UK citizenship (between now and the date of the referendum, indeed) if they want to vote. Resident 16-17 year olds are, by contrast, not so hard to reach, but some people continue to harbour doubts about whether it is appropriate that they should vote, even though there is a modest international trend to lower the age of franchise, as well as the positive experience of the Scotland experiment on which to draw. Moreover, the Scotland experience seemed to indicate that their overall voting choice might not differ so greatly from that of the ‘mainstream’ voting population.


There are no right or wrong answers on the question of the scope of the franchise. The uncertainties around this question are, however, accentuated by the uncertainties about exactly what we might be voting on, and when. At the time when the Scottish referendum franchise was set, the terms of the vote were pretty plain, although obviously there were certain clarifications (e.g. on currency matters most particularly) during the course of the campaign. The EU vote is quite different, because of the uncertainties (and secrecy) of the diplomacy effort that the UK government is now purporting to lead, in order to seek those adjustments to the terms of the UK’s membership that the government claims it has an electoral mandate to negotiate, given the terms of its General Election victory in May 2015. The possible ‘adjustments’ are profoundly unclear, especially as regards the legal form that they might take, and of course there are quite a few people in the UK who are sceptical about whether these negotiations matter at all. Plenty will vote “in”, regardless of the Cameron ‘deal’. Plenty will vote “out”. The ‘deal’, for many observers, is simply a process of political choreography to allow David Cameron and George Osborne to avoid the Conservative Party falling apart over its divisions on the European Union. It certainly isn’t about something which many EU citizens, right across the EU might want to participate in if given a chance, namely a thorough transnational reconsideration of whether the legal and political framework for economic integration across Europe is now fit for purpose as we approach the middle decades of the twenty first century. To that extent, non-UK EU citizens resident in the UK might end up feeling doubly excluded if they do not have the vote: namely not only can they not participate in whatever referendum there is, but also they may well feel that the referendum that is taking place does not itself really get to the nub of the issues as far as they are concerned.



See also Steve Peers’ comments on this issue


This blog previously appeared on the British Influence site


Image credit: Daily Telegraph


Barnard & Peers: chapter 2




Friday, 22 May 2015

Is it possible to reform the EU without amending the Treaties?


Steve Peers


The renegotiation of the UK’s membership of the European Union – or ‘EU reform’, if you prefer – is about to begin in earnest. But already several Member States have ruled out the prospect of amending the Treaties. Is it still possible to deliver a package of renegotiation or reform despite this?


It is, of course, possible to amend EU secondary legislation (or to credibly promise to do so) without a Treaty amendment. But there is always the risk that such legislation will not be amended after all as promised, or that the amendments will be overturned in future. So some have suggested the ‘Danish solution’: namely a decision of the EU Heads of State and Government, meeting within the European Council, which constitutes the EU’s response to the renegotiation request, probably in conjunction with amendments to EU secondary legislation.


Such Decisions have been adopted in the past, as regards Denmark and Ireland, in order to address the former Member State’s difficulties ratifying the Maastricht Treaty and the latter Member State’s difficulties ratifying the Treaty of Lisbon. In the latter case, the European Council (ie Member States’ Presidents and Prime Ministers) also agreed the broader legal and political context of this decision: the decision was ‘legally binding’, it did not constitute a Treaty amendment, and its content would be set out in a Protocol to be attached to the Treaties in future. Indeed, the latter protocol was subsequently signed and ratified as promised. The UK could be offered a similar commitment.


In order to indicate more clearly how the renegotiation would work, Annex I to this post suggest a possible wording for such a decision, based upon the 2009 Decision concerning Ireland, adapted to the Conservative party’s negotiating demands. (I’ve updated this from a previous post on this issue).


But I think it is possible to go further alongside this, and to make changes to EU secondary law which have a similar impact to a Treaty amendment. How would this work exactly? At the moment there is a separate Decision on voting rules in the Council. This provides that where a number of Member States falling short of the usual 'blocking minority' are outvoted, they can insist on a delay before the Council adopts its position. In fact this text was agreed as part of the Lisbon Treaty negotiations (it was a Polish ‘red line’) and set out originally as a Declaration to that Treaty. I believe that this text could be amended to deal with two UK concerns: (a) the position of the non-eurozone Member States as compared to the eurozone Member States; and (b) the very serious concerns of individual Member States about specific EU proposals on certain grounds, such as economic competitiveness or objections by national parliaments.


It wouldn’t be possible to amend the voting rules in the Council as such without a Treaty amendment. But amending this separate Decision could ensure a delay before a vote is taken. I believe it would also be possible to include rules on what happens if there is still no agreement after the delay – namely the use of ‘enhanced cooperation’ (some Member States going ahead without the others) if the disagreement still persists.  Again, only a Treaty amendment could require the Council to move to enhanced cooperation at this point. But it is possible for Member States to agree how they will vote in the Council, by means of a separate treaty. There is a precedent for this, in Article 7 of the ‘Fiscal Compact’ treaty between a group of Member States. (It’s understood that the Council legal service agreed that this was acceptable).


So in Annex II, I have suggested some amendments to this Council Decision, to address the UK’s two concerns. The issue of Member State voting is addressed in the parallel Decision of Heads of State and Government.


I believe that such an approach has a large number of advantages. First, it can be adopted by the Council, without needing the participation of the Commission or European Parliament, or approval by Member States. Second, Member States can secure the continued existence of this Decision by agreeing that it can only be amended following a unanimous vote. Third, it is possible to avoid the risk that, for these changes at least, the EU is offering a ‘post-dated cheque’. The Council could already adopt the Decision before the referendum vote, with the simple proviso that it will enter into force as soon as the UK notifies the Council that the UK public has voted to stay in the EU. Fourth, the changes will not be specific to the UK, so that other Member States also have a positive reason to approve these amendments. Fifth, the amendments could address both the concerns of business and other concerns as well. Sixth, any use of enhanced cooperation would still be subject to the rules in the Treaty, ie it could not discriminate between Member States or distort the internal market. So the interests of non-participating Member States would be respected.  


I have also suggested (in Annex III) an amendment to the Council’s rules of procedure dealing with the specific issue of reviewing CJEU judgments on EU secondary legislation, where a Member State has a particular concern about those judgments. Again, the issue of Member State voting is addressed in the parallel Decision of Heads of State and Government.


Finally, I’m not addressing in detail the key issue of ‘immigration’ within the EU, ie free movement of EU citizens, in this blog post. I will come back to that in the near future.



Annex I


The Heads of State or Government of the 28 Member States of the European Union, whose Governments are signatories of the Treaties,


Taking note of the concerns of the British people identified by the Prime Minister of the United Kingdom,


Desiring to address those concerns in conformity with the Treaties,


Having regard to the Conclusions of the European Council of [xx date 2016],


Have agreed on the following Decision:


Section A

Enlargement and the movement of persons


In every forthcoming enlargement of the European Union, the current Member States agree that the free movement of persons from a new Member State will be dependent on a unanimous decision of the Council, which will be taken at the latest once the income of the new Member State concerned is 75% of that of the other Member States of the European Union.


Section B

Free movement of persons and social benefits


The Heads of State and Government confirm that, in accordance with the jurisprudence of the Court of Justice of the European Union, Member States may deny benefits to nationals of other Member States who are not workers or self-employed persons.


[Further provisions addressing Cameron agenda]


Note: see the CJEU judgment in the Dano case, discussed here, as well as the Cameron proposals on EU free movement, discussed here.


Section C

Powers of national parliaments


The Heads of State and Government take note of the Commission’s firm commitment that, building upon the Protocols on national parliaments and on subsidiarity and proportionality attached to the Treaties, it will withdraw any proposal which is opposed by one-third of Member States’ parliaments.


Section D

Economic reform


The Heads of State and Government [make specific commitments as regards free trade agreements and amendments to EU legislation, or refer to such agreements and treaties which have already been agreed].  


Section E

Policing and criminal law


The Heads of State and Government reaffirm the United Kingdom’s sovereign power not to opt in to proposals for new legislation on criminal law or policing pursuant to the Protocols attached to the Treaties, and the provisions of the Treaties which require respect for the national identity and legal system of every Member State.


They confirm their strong support for the ongoing process of reform of the system established by the European Convention on Human Rights.


Note: if the process of ECHR reform is completed before the UK renegotiation of its EU membership, there could be a more specific commitment to give effect to the results of that process, for instance ratifying a new protocol to the ECHR.


Section F

Reduction of EU competences


The Heads of State and Government reaffirm that In accordance with Article 48 TEU, the competences conferred upon the Union can be reduced. In accordance with Articles 2 and 4 TFEU, the European Union can choose to exercise its competences less intensively in those areas where it shares competence with its Member States.


Note: this could be accompanied by specific commitments to repeal or reduce the scope of some existing EU legislation.


Section G

‘Ever Closer Union’


The Heads of State and Government confirm that the commitment in the Treaties to ‘ever closer union’ has no specific legal effect. It does not require that further competences be conferred upon the Union, or that the Union must exercise its existing competences. Nor, in accordance with Section D, does it constrain the Member States from adopting Treaty amendments which reduce the Union’s competences, or constrain the Union from choosing to exercise its competences less intensively.


The concept of ‘ever closer union’ allows for different paths of integration for different countries, allowing those who want to integrate to move ahead, while respecting the wish of those who do not want to deepen any further.


Note: the second paragraph is taken from the wording of the June 2014 European Council conclusions.


Section H

Economic and Monetary Union


The Heads of State and Government confirm that the reference to the euro as the single currency in the Treaties only means that the euro is the currency of some, not all, Member States. It does not in any way prejudice the Protocols which give the United Kingdom and Denmark the possibility of not adopting the euro, or alter the rules governing the extension of the euro to other Member States.


Section I

Member States’ voting in Council


In the event that Section 3 of the [decision on voting in Council] is applied, and agreement is not found within six months, the Heads of State and government undertake that they will not vote in favour of the proposed act. They may instead consider requesting the Commission to propose enhanced cooperation as regards the proposed act, in accordance with the Treaties. In that context, they agree that this constitutes a case of ‘last resort’ in accordance Article 20(2) TEU.


Member States undertake not to vote in favour of any amendment to the [decision on voting in Council] unless all Member States are in favour of that amendment.

Member States undertake to support a request by a Member State in accordance with [Article x] of the Council rules of procedure.




Annex II

Amendment to Council Decision on voting


(new) Section 3

Other provisions


Article 6a


If Members of the Council representing a qualified majority of Members not applying the euro as their currency, defined in accordance with Article 238(3)(b) TFEU, indicate their opposition to the Council adopting an act by qualified majority, on the grounds that it will discriminate against the financial services industry of those Member States, or create an obstacle to free movement of financial services from those Member States, the Council shall discuss the issue.


Article 6b


If any Member of the Council indicates its opposition to the Council adopting an act by qualified majority, on one or more of the following grounds:


(a)    the national parliament of that Member State has expressed serious concern that the proposed act would breach the principle of subsidiarity, in accordance with the Protocol on subsidiarity and proportionality;

(b)   the proposed act would not respect Member States’ national identity, in accordance with Article 4(2) TEU;

(c)    the proposed act would severely impact, in that Member State, upon the Union’s aims of creating a highly competitive social market economy, aiming at full employment and social progress, a high level of protection of the environment, or the promotion of scientific and technological advance, as set out in Article 3(2) TEU; or

(d)   the proposed act, in the field of social policy, would not take account, in that Member State, of the diversity of national practices, or the need to maintain economic competitiveness, set out in Article 151 TFEU, or would impose a constraint that would hold back the creation and development of small and medium-sized undertakings, or affect the fundamental principles or financial equilibrium of social security systems, as set out in Article 153 TFEU,


the Council shall discuss the issue.


Article 6c


Articles 5 and 6 shall apply to this section.


Note: Articles 5 and 6 provide for attempts to settle the dispute.


Annex III

Amendment to Council rules of procedure


Article x


If a Member State invokes concerns about a judgment of the Court of Justice of the European Union on EU secondary legislation, on the grounds set out in [Article 6b of the Decision on Council voting], then the Council will ask the Commission to report within six months on whether to propose a change to the legislation concerned.


Note: there could be a parallel change to the Commission’s rules of procedure, or an inter-institutional agreement on this point.



Barnard & Peers: chapter 2, chapter 5, chapter 13, chapter 25

Sunday, 17 May 2015

Accountability and Defenestration: The Dalli Saga


Dr Marios Costa, Lecturer in Law, City University

The en bloc resignation of the Santer Commission in 1999, against a background of allegations of fraud, maladministration and chronic mismanagement, is still topical, almost two decades afterwards. The European Commission has long been criticised for its administrative inadequacies and for the structural deficiencies in the Union’s system of accountability. There have been a number of reports depicting the Commission as an institution suffering from structural and political irregularities. 

On 11 May 2015 the General Court gave a significant judgment on a legal challenge brought by the former EU health Commissioner, Mr John Dalli, against the Commission. Dalli argued that he was forced to resign, by the then President of the Commission, Jose Manuel Barroso, without given enough time to consider his legal rights. Rather paradoxically, the General Court ruled that Mr Dalli resigned voluntarily and dismissed the action as inadmissible.  

This judgment raises broader constitutional implications. With all due respect, the ruling comes as a surprise and fails to clarify issues in relation to the powers that can be lawfully exercised by the President of the Commission when he loses confidence in any of the members of his Commission. This commentary examines the appropriateness of the recent ruling and concludes that the General Court lost a rather rare opportunity to rule on significant aspects of the Treaty powers granted upon the President of the Commission to sack the individual Commissioners and as a result also fails to remedy the accountability deficits of the Commission.

Facts of the Case

Dalli, the former Maltese Commissioner, was accused of soliciting bribery for the amount of 60 million euro in exchange of seeking to influence future legislative proposals in favour of the tobacco maker Swedish Match. Following a complaint to the Commission from the latter, the EU’s Anti-Fraud Office (OLAF) initiated investigations into the serious bribery allegations. On 15 October 2012, OLAF sent its final report to the Commission highlighting that there was no conclusive evidence that the Commissioner was involved in requesting money from the tobacco manufacturer. Yet, there was some evidence confirming that Mr Dalli was at least aware of the fact that a Maltese entrepreneur was using his name for the purposes of getting financial benefits from the tobacco maker.

On 16 October 2012, Mr Dalli had a meeting with the President of the Commission where he was presented with two already drafted press releases by the Commission: one stating that Mr Dalli decided to resign ‘voluntarily’, whilst the other stated that Barroso requested him to resign by exercising his prerogative powers under Article 17(6) TEU. During their meeting, the President showed the covering letter of the OLAF’s report to Mr Dalli. Nevertheless, access to the full report was refused on the grounds that it was confidential. Towards the end of their meeting, the President made it clear that he was going to force the applicant to resign if he was not going to do so voluntarily. The applicant asked for at least 24 hours to consult a lawyer and to find out what his legal rights were. Barroso said that he could give him no more than 30 minutes. Mr Dalli chose to resign.  

Mr Dalli challenged the legality of the oral decision taken by Barroso to terminate his term of office as the EU Health Commissioner. The Court declared the action as inadmissible since there was no clarity in relation to the act whose annulment was sought. The Court could not distinguish whether Mr Dalli was seeking the annulment of the decision of the President to remove him from office pursuant to Articles 245 and 247 TFEU or the allegedly oral decision taken by Barroso to request Mr Dalli’s resignation under Article 17(6) TEU. In consequence, the action was dismissed as inadmissible.

Legal Framework on the Commissioners’ Accountability

The Treaty is not silent on the issue of Commission accountability.. Article 245(1) TFEU provides that ‘[t]he Members of the Commission shall refrain from any action incompatible with their duties’. Additionally, Article 245(2) TFEU covers the case of compulsory retirement of an individual Commissioner. It reads as follows:

The Members of the Commission may not, during their term of office, engage in any other occupation, whether gainful or not. […] they shall give a solemn undertaking that, both during and after their term of office, they will respect the[ir] obligations […] in particular their duty to behave with integrity and discretion as regards the acceptance […] of certain appointments or benefits.  In the event of any breach of these obligations, the Court of Justice may, […], rule that the Member concerned be, according to the circumstances, either compulsory retired in accordance with Article 247 or deprived of his right to a pension or other benefits in its stead.

Moreover, Article 247 TFEU, which contains the only reference to the personal liability of Commissioners, reads as follows:

If any Member of the Commission no longer fulfils the conditions required for the performance of his duties or if he 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.

Furthermore, Article 234 TFEU provides for another kind of responsibility which the Commission owes to the European Parliament (EP), the ‘censure’ motion, as follows:

If a motion of censure on the activities of the Commission is tabled before it, the EP [and] … is carried by a two-thirds majority of votes cast, representing a majority of the component Members of the EP, the Members of the Commission shall resign as a body.

Finally, pursuant to Article 17(6) TEU, ‘[a] member of the Commission shall resign if the President so requests’.    

Comment and Analysis 

The Dalli judgment is a lost opportunity by the Court to clarify the abovementioned provisions as regards accountability of the EU Commissioners. Surely, any failure by an individual Commissioner to meet the standards described in in Article 245 TFEU, as set out above, can lead to a significant damage of the public image of the Commission.  This is not a hypothetical observation if one looks at the events leading to the collective resignation of the Santer Commission and to the closely related Cresson judgment (Case C-432/04, Commission v Cresson, ECLI identifier: EU:C:2006:455). Consequently, one can understand the concerns of President Barroso to avoid repetition of the discredited Santer Commission in 1999. Barroso’s commitment to high standards of administration is perfectly legitimate. What is not legitimate, however, is the process that led to the resignation of Mr Dalli. Notably, the Commission can only succeed if individual Commissioners operate impartially and independently, without influence from external sources, whether national governments or private individuals and without engaging privately with stakeholders to achieve financial benefits. This is the only way for the Commission to gain confidence from other institutions as well as Member States and citizens.

The Commissioners must meet the highest standards not just on external matters, but on their conduct inside the Commission.  They should perform their duties without division or external influence due to their high ranking and experience in the political arena.  In particular, as already explained above, Article 245(1) TFEU requires Commissioners to be free from any external influence. This point is vital if the Commission is to stay independent of Member States or individuals. But let’s assume for a while that there was enough evidence that Mr Dalli obtained pecuniary advantages from the Swedish tobacco maker. Assume further that the OLAF report concluded that the Commissioner needs to be held accountable for infringing his duty to behave with integrity pursuant to Article 245 TFEU. Is the procedure that forced him to resign acceptable and does it respect the rule of law? Or does it confirm an exercise of abusive behaviour by the President? Forcing an individual Commissioner to resign without allowing him to consult a lawyer and without given the opportunity to see the OLAF report constitutes a manifest violation of his basic right to respond to the evidence against him. Any employment lawyer will agree that this behaviour is a classic case of constructive dismissal. Surely this is not something that can be justified, particularly if this comes from the President of the Commission, an institution supposedly entrusted with the duty to guard and ensure that the rule of law is duly respected.  


Unfortunately, the General Court did not clarify the system of accountability for the Commissioners’ actions. The Court rather simply decided to dismiss the action as inadmissible. Taking into account the OLAF report and also the factual background of the previously decided Cresson case one can realise that a lot of irregularities can take place within the Commission and there is a deficit of any meaningful notion of accountability of the Commission. The General Court has made a wrong decision in refraining to clarify what obligations are mandatory for EU Commissioners as set within the Treaty framework. Additionally, and most importantly, the judgment fails to set the boundaries of the prerogative powers of the Commission’s President to sack the members of his cabinet. Whether or not Commissioners can be held accountable for their decisions has been completely ignored in Dalli.


Barnard & Peers: chapter 3