LEGAL ISSUES

The Commissioners' resignations at 1am, early Tuesday morning, should in all probability be interpreted as individual resignations, as some have described them, especially as the EU Treaties make no clear provision for a voluntary collective resignation but do provide for individual resignation, in which case the follow-up procedure should be defined under Article 159 of the European Community Treaty, which deals with replacement of individual Commissioners.

It is less likely that they can be seen as a form of 'resignation as a body', referred to in Article 144 subparagraph ii, since that article deals with the Motion of Censure and non-voluntary resignation, and this is not what technically happened in this case (though it did politically). Therefore, it is difficult to argue that the procedure now should be defined under Article 158, which deals with replacing the whole Commission, either every 5 years or after a Motion of Censure. If however a Motion of Censure were voted now, it could possibly be argued that Article 158 should then be applied, though the Commission has already resigned, which may mean that the Motion would be void, as it would, in a rather futile manner, seek to force them to 'resign as a body' (see Art 144). On the other hand, it could be argued that the resolution adopted in January by the Parliament, calling for the Independent Expert Group was in fact a Motion of Censure 'in suspension', so that such a Motion now would be the logical follow up to that resolution, thus validating the use of Article 158.

Whatever happens, the current Commissioners remain until they are replaced (Art 159iv), but obviously not beyond the end of 1999, that is unless a decision not to replace certain individuals is taken (Art 159ii).

If the resignations are taken as individual (under Art 159), then:
- replacement is on an individual basis, and is up to the end of 1999 only (Art 159ii), subject of course to re-appointment;
- concerning the President, Article 159iii creates an obligation by stating that 'the President shall be replaced' and refers us to Art 158/2 for the procedure, defined under the Maastricht Treaty, in which case the European Parliament is entitled to be consulted on the nomination (Art 158/2i); Article 158/2ii is irrelevant at this point as it deals with the nomination of the other Commissioners; and Parliament may be entitled to, or in fact may be obliged to, vote on the appointment, but this is unclear, as Article 158/2iii deals with the approval of the whole Commission, which Parliament has no actual right to under the replacement rules in Article 159; the framers of the current Maastricht text, and even the Amsterdam revision (which leaves this subparagraph untouched), seem not to have anticipated the current situation;
- other replacement Commissioners are individually 'appointed by common accord of the governments of the Member States', a sort of consensus, without any need for consultation with the Parliament or even the Presidential nominee, and the Member States may also agree, but only unanimously, not to replace certain Commissioners (Art 159ii);
- once in effect, the Amsterdam Treaty will change the procedure in the first two subparagraphs of Article 158/2 (which will become Article 214/2 under the new Treaty numbering system), which would only apply, in this case, to appointment of the President under sub-para I, but not the other Commissioners, even after June 1st, and until then, only voluntarily based on the previous use of this procedure.

By agreement with Council however, Maastricht could apply to all Commissioners, or Amsterdam could be applied to either the President, or the whole procedure.

If it is agreed with Council, or if the resignation can be taken 'as a body', either by interpretation of Article 144, or by valid use of a motion of censure under Article 144 (a situation which would have applied had Parliament approved it in January!), then we would use Article 158/2 directly for the whole procedure:
- the whole Commission would be replaced on a collective basis, but still only up to the end of 1999 (144ii), subject to re-appointment;
- the Maastricht procedure would automatically apply to the appointment of the President and the rest of the Commission, ie Article 158/2 (144ii);
- the Amsterdam procedure (new Art 214/2 - approval of President, and then final approval of whole Commission) is voluntary until it comes into effect (either May or June 1st), based on previous practice, but mandatory thereafter.

In summary there are maybe five possible procedures:
1. The replacement procedure foreseen in Art 159, where Parliament has consultation but does not have a right to approve the President (ie: Art 158/2iii is not relevant), and no right to approve the other Commissioners;
2. The replacement procedure foreseen in Art 159, where Parliament does approve the President (ie: Art 158/2iii is relevant, or Amsterdam is applied in this respect, which is however definite after it comes into effect), but has no say on the other Commissioners;
3. The replacement procedure foreseen in Art 159, where Parliament does approve the President (ie: Art 158/2iii is relevant or Amsterdam is applied in this respect), and is also given the separate right to approve other replacement Commissioners, or non-replacements, possibly under an interpretation of Article 158/2iii;
4. The Maastricht Procedure for the whole Commission, Art 158/2 old;
5. The Amsterdam Procedure for the whole Commission, revised Art 158/2 (Art 214/2 new).

One other point which has emerged, to substantial effect, is that the Commission might place itself, or its actions, in a legal vacuum between the points of resignation and replacement, if it were to undertake any substantial action other than normal implementation. That is why the Commission is being very cautious and seemingly inactive at the moment, a situation which will continue until the Commission is replaced.


POLITICAL ISSUES

As ever, there is a gap between the actual legal situation, and what can be made of it politically. It has been said that "law is only congealed politics", and the Anglo-Saxon system of legal construction reflects that, by allowing the law, in effect, to follow and formalize political developments.

The European Parliament, having in effect forced the Commission to unceremoniously back down, albeit politically rather than absolutely legally, the situation now presents it in particular with an opportunity to effectively extend its powers further, by forcing concessions this time from the European Council. It is now inconceivable that the Council would move ahead under a strict application of the above legal considerations, taking advantage of the fact that Parliament has in effect tackled the central problem totally on its own (albeit under pressure from the evidence of 'whistleblower' Paul van Buitenen, as revealed by the Greens), and move on to appoint the seemingly inevitable replacement 'Interim Commission' without deferring in a major way to Parliament's wishes on behalf of the people of Europe.

It is mooted that there are in fact much wider political forces at work, relating to the ongoing EU financing negotiations and associated reform with a view to further enlargement, and that Parliament and Commission may even have been 'used' to some extent in that game. The gain in terms of finance, or whatever, can hardly have been worth the fallout caused by the resignations, so that while this may be a factor, it is clearly not the only one, also given the real and hard evidence of massive corruption.

Ignoring those wider considerations for now, the Parliament could be said to have the following aims at this stage:
- 'persuade' Council to accept, possibly via the Amsterdam procedures, a maximum role for Parliament in choosing both replacement President and Commissioners, so as to try to legitimize and control the Interim Commission, and so as to improve the very bad current situation in the Commission, and the EU in general;
- a rapid solution, to improve the situation as soon as possible, definitely before the June election, while giving a strong political endorsement from a Parliament not right at the end of its mandate, but which nevertheless gives enough time to facilitate Parliament's role - suggests final approval in mid-May, about the time Amsterdam comes into effect;
- the possibility of, but no assumption of, automatic continuation into next full term from the Interim Commission, leaving fully open the appointment procedure which will be used after the elections, under Amsterdam, to appoint the new Commission for 5 years, from Jan 1st 2000;

The Greens, or at least some of them, could add the following to that:-
only in exceptional circumstances should any of the current Commissioners continue in the next full term, since they in any case bear collective responsibility, which they have clearly already accepted, by virtue of their 'collective' resignation;
- preference for the immediate removal of all Commissioners, and the replacement of some, if not all, which would admittedly be very difficult, so as a minimum the removal of Cresson and certain other disgraced Commissioners, and as many replacements as possible in the short term.

The strategy of the Parliament will probably include:
- use of the basic democratic argument,-
the need to underpin the Interim Commission,-
the fact that Amsterdam has been ratified by all Member States,-
the newly reinforced position of Parliament,-
the disquiet amongst the public, economic interests, effect on the 'Euro',-
and ultimately the continued threat, or the actual use, of a motion of censure to ensure the desired result.

Regardless of which of the various possible procedures actually applies, since at least the Treaties cannot be contradicted, there will be some sort of Interim Commission now. Parliament will surely make it clear to Council that it ultimately wants a completely new Commission in the next term, and is willing to refuse to approve, or even to remove by motion of censure an Interim Commission which contains certain previous Commissioners, especially Mme Cresson, but also Jacques Santer.

For the appointment of the Interim Commission, the options seem to be:

1. Parliament passes a resolution next week seeking a modification to the replacement procedure foreseen in Art 159, such that Parliament does approve, separately, both the President and, with the agreement of the President, any replacement Commissioners, under an interpretation of Art 158/2iii (outlined as procedure no. 3 above), and possibly also stating that Parliament and the appointed President must agree to decisions not to fill certain vacancies caused by the retirements, all under an implied threat to use motion of censure if Parliament's wish is not granted;

2. Parliament votes an actual motion of censure as soon as possible (would require a change of Parliament's Rules to get a quicker application of Art 144 of the Treaty, and/or extension next week's Plenary in Bruxelles) to give maximum possibility to get the right to an Article 158/2 procedure for the whole Commission (since they have already resigned, it is not clear as to whether this would be effective, but it would have been effective if it had been done in January!); this also cannot ensure the Amsterdam procedure, so that, for all sorts of reasons, this is not much of an option.


CONSEQUENCES

If replacement procedure no. 3 is not accepted by Council, Parliament could have already stated, in a carefully worded resolution next week, that it will opt for procedure no. 1 above, so as not to approve the President alone, as this right/duty is unclear under Art 158/2iii, and instead reserve the right to approve the overall result politically, if it is acceptable (ie: includes Parliament's nominee for President, does not include any disgraced or compromised Commissioners, is also agreeable to the Presidential nominee, and any deliberate vacancies are reasonable);
or 'not to accept it' (which implies voting against, in the expectation that this would be enough for Council not to proceed, and if Council were foolish enough to try to proceed, to use a motion of censure against the overall result (preferably with the agreement of the Presidential nominee), so as to get a better result, under better procedures; that way Parliament would avoid voting a motion of censure against a President it had previously approved (though maybe the one it had originally proposed, unfortunately).

If the desired procedure is accepted by Council, Parliament can expect that the Presidential candidate will be agreed and approved, and that then certain Commissioners will either be replaced by agreement of the Member States with the President and Parliament, or that they will agree not to fill certain vacancies caused by the collective retirement, if it proves difficult to find a replacement; there should then be no major problem, other than the lack of an overall endorsement for the Interim Commission which leaves it somewhat weak, and also time, since clearly the later it gets the weaker the political approval of the Interim Commission, which is in no-ones interest (other those who are worried about the unraveling of the current compromises in the Agenda 2000 negotiations, primarily Spain and other poorer countries).




The Independent Experts’ Report can be downloaded, along with a lot of other useful information, such as relevant Treaty extracts, the January resolution of Parliament which led to the Independent Experts' Report, the vote on the Motion of Censure etc, from:
http://www.europarl.eu.int/dg3/experts/en/default.htm

Grattan Healy is currently employed as an adviser on energy and research by the Green Group in the European Parliament, who have actually led the struggle against fraud in the Commission to date. While he has presented an earlier draft of this paper to the Group, it expresses his own views.
He wishes to thank his colleagues Kjell Sevon and Sabine Meyer for vital input.
He can be contacted personally at: grattan_healy@compuserve.com
As is evident, this site is in ongoing development
created May '98, last modified 22.3.99