International and EU background

Transparency and ethics in public life are essential to democracy, and they are among the values and rights enshrined in the Treaties and in the European Union Charter of Fundamental Rights (the 'Charter'). As such, the EU must respect the values enumerated in Article 2 of the Treaty on European Union (TEU), namely human dignity, freedom, democracy, equality, the rule of law and respect for human rights. The Charter also recognises equality before the law (Article 20) and the right to good administration (Article 41) as fundamental rights. To fulfil these objectives, EU primary and secondary law sets principles and obligations for the EU institutions.

In EU primary law, these include: the right for citizens to participate in the democratic life of the EU (Article 10(3) TEU); open, transparent and regular exchanges with citizens, representatives and civil society (Article 11(1) and (2) TEU); and open and transparent working methods and meetings, including access to public documents (Article 15 of the Treaty on the Functioning of the European Union (TFEU)) and Article 42 of the Charter). Moreover, EU citizens have the specific rights to petition the European Parliament and apply to the EU Ombudsman (Article 20(2)(d) TFEU) for complaints on maladministration of the EU institutions and bodies, which allows for public scrutiny and accountability. Finally, a limited set of rules directly concern members, officials and other servants of the EU, such as the general prohibition to disclose information covered by the obligation of professional secrecy, even after the end of their duties (Article 339 TFEU). Despite these principles of constitutional value and the existence of a comprehensive secondary law framework, public perception of transparency and independence of EU institutions vis-à-vis private interests is not as positive as might be expected. In a Eurobarometer survey of 6 June 2023, 60 % of the EU citizens interviewed were not satisfied with the EU's effort to fight corruption, and 53 %, on average, thought that governments were being controlled by private interests, as reported by Transparency International's 2021 EU Global Corruption Barometer.

Public scandals such as 'Qatargate' in late 2023 led to calls for both more transparency and integrity in the EU and strengthened public ethics. In the European Commission, cases involving, among other protagonists, former Commissioners and a former European Commission President being recruited by private companies, brought the issue of conflicts of interests to the fore. Furthermore, the issue of perceived lack of transparency when meeting with interest representatives, or lobbyists, was raised by the European Ombudsman in several inquiries, including on Commission meetings with tobacco lobbyists. Public ethics encompasses various topics, such as lobbying regulation, rules on transparency including the access to documents and publicity of meetings, rules to deal with possible conflicts of interests, and 'revolving doors', i.e. the practice of staff who have worked in the public sector being hired by the private sector.

According to an Organisation for Economic Co-operation and Development (OECD) definition, public integrity is 'the consistent alignment of, and adherence to, shared ethical values, principles and norms for upholding and prioritising the public interest over private interests in the public sector'. Further related ethical standards the public sector is expected to uphold include transparency, accountability, efficiency and competence. The goal of ethical rules and standards is therefore to minimise the risk of 'regulatory capture', or 'policy capture'. This concept aims to describe the 'capture' of public policies by private interests, at the expense of the general interest.

European Parliament proposal

On 16 September 2021, Parliament adopted a resolution on strengthening transparency and integrity in the EU institutions by setting up an independent EU ethics body. The resolution was initiated following a report (rapporteur: Daniel Freund, Greens/EFA) adopted by the Committee on Constitutional Affairs (AFCO) in July 2021.

Parliament proposed to set up an independent ethics body through the conclusion of an interinstitutional agreement based on Article 295 TFEU.¹ The ethics body would be competent for cases involving MEPs, Commissioners and the respective Parliament and Commission staff. It would, however, be open to all other EU institutions, bodies, offices and agencies to participate. The co‑legislators could even decide to bind agencies through their founding regulations.

According to Parliament's proposal, the interinstitutional ethics body should have a three-pronged function: (i) preventive; (ii) advisory; and (iii) enforcement.

The ethics body would exercise a preventive function through awareness-raising activities, while the advisory function would consist in the ethic body's power to issue recommendations on ethics and conflicts of interest, including checking the veracity of the declaration of financial interests. The ethics body's advice should be binding on the body, in that it should become a binding precedent. Parliament's proposal makes it clear that the competences of the European Anti-Fraud Office (OLAF), the European Public Prosecutor Office (EPPO) and national jurisdictions should be fully respected. A particular aspect of the advisory role is that the proposed ethics body should check the veracity of Commissioners-designates' declaration of financial interests of in addition and prior to the assessment done by Parliament's Committee on Legal Affairs (JURI). The JURI committee's check takes place before the Commissioners-designates' confirmation hearings, and the ethics body should be able to give a reasoned recommendation, which should be public. The advisory role is further expressed in the ethics body's power to issue recommendations for sanctions in relation to members and staff of Parliament and the Commission. Such recommendations should serve as precedent in similar situations, enhancing predictability of consequences connected to future violation of ethical standards. Furthermore, the advisory role should concern matters prior to, during and – in certain cases – after their term of office or service.

As far as enforcement is concerned, Parliament proposed that the ethics body should have the power to start investigations on its own initiative, to conduct on-the-spot and record-based investigations based on information received from third parties, media and whistle-blowers, and to request access to administrative documents. The start of own-initiative investigations should however be mindful of the right of defence, which means that the person concerned should be notified. The power to start own-initiative investigations also on reports from whistle-blowers raises the need to have in place legislation that protects these effectively. Parliament therefore proposed that the ethics body should supervise the internal and confidential complaint systems in the EU institutions, bodies and agencies under the Staff Regulations of Officials of the European Union and Conditions of Employment of Other Servants, to strengthen the protections associated with it.

The ethics body would be composed of nine independent members: three selected by the Commission, three by Parliament, and three assigned de jure from among judges of the ECJ, ECA and former Ombudsmen. However, the presence of staff representatives should be ensured when staff matters are concerned. The members of the ethics body should be chosen based on competence and professional qualities, and should act independently. Its composition should be gender balanced. Members should have a 6-year mandate, and one third of the ethics body's component members should be renewed every 2 years.

Parliament specified that there should be no duplication with the work of other institution or bodies such as OLAF, EPPO, the European Ombudsman, the ECA and the ECJ. Parliament proposed the following procedure to be applied by the ethics body.

Commission assessment of Parliament's proposal

The von der Leyen Commission made transparency a priority in its political programme. The creation of an EU ethics body was mentioned in Ursula von der Leyen's political guidelines in 2019, with Vice-President Věra Jourová named Commissioner responsible for values and transparency.

On 18 February 2022, the European Commission issued an assessment of Parliament's proposal for an ethics body, supporting the setting up of an independent ethics body based on the idea that it would be an additional component in the existing EU's ethical framework helping to consolidate trust in the EU institutions. However, the Commission made several observations on the proposal. While welcoming a set of common principles instead of operational rules applicable to the institutions' members given their different roles, and agreeing to entrust this body with advisory functions, the Commission did not agree with entrusting it with decision-making functions, as this lacked a legal basis in the EU Treaties. The Commission also disagreed with the body being competent for ethics-related areas covered by the EU Staff Regulations, as this would mean too broad a material scope of its competence, entailing heavy workload for the body with the risk of delays, duplication of structures, and not bringing real added value. In the Commission's opinion, an external body would be less able to evaluate individual cases correctly, as it would be distant from the daily work of those concerned and lack the appropriate means to evaluate actual risks of conflicts of interests.

The Commission doubted whether the ethics body should make proposals to develop a common ethical framework for the EU institutions including common rules, while it did not exclude common principles for all institutions. It proposed a composition of five instead of nine members, also including former Commissioners, a possibility absent from Parliament's proposal. The Commission's assessment suggested specifying the body's powers and competences more effectively, to avoid unintended overlap with other bodies (e.g. OLAF, EPPO) and respect the institutional balance. It also disagreed with the use of an interinstitutional agreement having Article 295 TFEU as a legal basis, because that article could concern only the Commission, Parliament and Council, to the exclusion of other institutions and bodies. The Commission supported a sui generis interinstitutional instrument instead.²

It suggested that the body should be competent to examine the declaration of interests of all institutions' members after they have taken up their functions, not before. For post-term activities, the ethics body could be entrusted with a consultative power, to be exercised on participating institutions' presidents' request. For the Commission, the ethics body should not have the power to investigate on matters concerning the transparency register, as this would overlap with the register's secretariat's existing competences. The Commission expressed concern over a potential overlap between the planned investigative powers proposed by Parliament and the investigative powers already attributed to other existing bodies. Requesting information from national authorities would also require a proper legal basis, and might possibly interfere with members' right to privacy, a risk also mentioned with regard to making cases public. On the possibility for the body to recommend sanctions, the Commission considered that the existing legal framework was sufficient and should not be altered (Articles 245 TFEU and 13(3) Code of Conduct for Members of the Commission). Finally, as to the procedure, the 20 working-day deadline for a decision of the competent authority on the breach of ethics rules would create a heavy workload for these authorities.

Parliament, in its resolution of 16 February 2023, reiterated its support for an independent ethics body, and urged the Commission to submit a proposal in that sense. Moreover, it reiterated the need for such a body to have an advisory function for activities before, during and also after the term of office. Parliament also stood by the proposal that the body should have investigative powers on its own initiative, and by the need to revise the EU Staff Regulation, to protect whistle-blowers more effectively. Moreover, Parliament called for a solid cooperation to be established with other bodies, and a harmonised and adequate cooling-off period to be provided by all EU institutions.

The Commission followed up on the resolution in September 2023, explaining that foreign interference by third countries has now been dealt with, as legal entities, offices or networks without diplomatic status or intermediaries representing third-country public authorities must register in the transparency register. Strict rules on transparency also apply to members of the Commission.

Proposed agreement on an interinstitutional body for ethical standards

Adopted agreement in detail

All EU institutions and bodies gathered on several occasions in the course of 2023 to discuss the content of the proposed agreement. Six political meetings were held to unlock the Commission proposal's critical aspects, including: the degree of participation of ECJ members; the power of the body to start and carry out investigations on its own initiative; the application of the agreement to Member State representatives at ministerial level in the Council or of the Heads of State or Government in the European Council; the sharing of costs; and the procedure for selecting independent experts. The negotiations led to the adoption of the agreement establishing an interinstitutional body for ethical standards, which was formally signed on 15 May 2024. Parliament adopted the agreement with a resolution on 25 April 2024.

The agreement largely reproduces the initial Commission proposal in its main parts with few but relevant changes.

The agreement seeks to establish a framework for cooperation between six institutions and two bodies: European Parliament, Council, Commission, ECJ, ECB, ECA, EESC and CoR. The European Investment Bank may join the agreement voluntarily (Article 1), while the European Council is not part of the agreement. The ECJ, signatory of the agreement, will participate only as an observer in order to preserve its impartiality, since the Court might be called on to decide on the validity of common rules agreed within the IBES, which might put the Court in a position of conflict of interest.³

The personal scope of the standards to be developed by the IBES consists of members of Parliament, the Commission, the ECA, the EESC, the CoR, and the ECB's Executive Board, Governing Council and Supervisory Board. Concerning the Council, the common standards will apply only to the HR/VP, including when acting as president of the Foreign Affairs Council (Article 2(1)(b)).

The staff of the EU institutions are not covered by the agreement, with the Staff Regulations and Conditions of Employment still being applicable. The institutions will nonetheless share best practice and draw on common minimal standards when reviewing their internal rules for the application of their staff rules. The IBES will offer a new common approach to ethics standards issues while preserving differences inherent in each institution's specificities by setting the basis for a general framework of common standards. Each institution will be responsible for implementing these standards in their own internal rules. The application of these standards in individual cases remains the primary responsibility of the participating institutions, in full respect of their administrative autonomy and institutional balance.

The IBES has the following responsibilities (Article 6):

The body's material scope (Article 8) is quite broad, encompassing, among other things, financial and non-financial interests; the exercise of external activities during and after the term of office, to the acceptance of gifts, hospitality and travel offered by third parties; the acceptance of awards, decorations and prizes during their term of office; and conditionality and transparency measures relating to the transparency register when liaising with interest representatives. The IBES will also be able to develop common standards with respect to general procedures aimed at monitoring compliance with internal rules, awareness-raising actions, and reporting mechanisms where there is suspicion of a breach of rules. The body will agree on minimum standards by consensus (Article 3(4)) within 6 months from the decision to develop those minimum standards (Article 8(5)).

Article 10 sets a detailed procedure for the parties to align their internal rules to the common minimum standards. Specifically, each party will perform a self-assessment of its own internal rules within 4 months of the communication of those common minimum standards. This self-assessment will be presented and discussed in a meeting of the body and subject to a written opinion of the independent experts, who must deliver an opinion within 2 months of this meeting. At that stage, the independent experts' opinion will still be confidential. Within 2 months of the delivery of the expert opinion, the body will discuss the opinion and the self-assessment. The IBES secretariat will draft a report mentioning the various views and concluding remarks. The report will be endorsed by the body, and within 4 months of this endorsement, each participating institution should update their internal rules, taking the report into account. At the end of this procedure, the report will be made public on the IBES website. An express provision of the agreement (Article 23) provides that the parties agree to reflect the common minimum standards in their internal rules according to their own organisational administrative autonomy, and to ensure implementation of the agreement. Contrary to the original Commission proposal, the final agreement does not include a clause stipulating that the report and the discussion within the body have a non-binding effect.

The IBES is composed of one member for each participating institution (i.e. five institutions, two bodies and the ECJ as observer) at the level of vice-president or a similar position, and their mandate ends when they cease office in the institution they represent (Article 3)⁴. The IBES will be chaired in rotation by each institution for 1 year.

The ethics body's work will be assisted by five independent experts, who will act as observers and advise on ethical questions. They will be appointed on a proposal of one of the participating institutions and bodies following an agreement by consensus⁵ in consideration of their competence, experience in high-level functions in the EU or international organisations, independence, and professional qualities. Their term of office is 3 years, renewable once. The independent experts' mandate can be revoked by the parties by consensus. A separate provision regulates these experts' potential conflicts of interests.

A relevant addition with respect to the original proposal of the Commission is the possibility for the participating parties to consult the independent experts (Article 7) on cases concerning the compliance of declarations of interests or any other standardised declaration with the common minimum standards developed by the body. In this case, the independent experts' opinion is confidential and, as in other cases, non-binding.

EU bodies, offices and agencies may decide to apply the common minimum standards agreed within the IBES voluntarily (Article 20), in which case these entities should notify their will to the body and carry out a self-assessment in a procedure similar to that applicable to participating parties. They should also appoint a representative to take part in IBES meetings for exchanges of views. The IBES will have a joint operational secretariat (Article 16), hosted by the Commission under the coordination of the chairing party. The secretariat's costs will be shared between the parties to the agreement proportional to the size of their administrative budgets (Article 17). A memorandum of understanding will regulate the necessary human, administrative, technical and financial resources needed. The agreement, which according to Article 23 is binding, is due to be reviewed every 3 years (Article 21).

Relations with other EU bodies and institutions

The new interinstitutional body for ethical standards will have to coexist with other bodies whose competences may touch on the application of ethics rules. In this respect, recital 13 of the agreement expressly states that the IBES may not impinge on the powers of other bodies, such as OLAF and the European Ombudsman.

EU bodies with powers extending to all EU institutions may indeed have areas of action overlapping with or adjacent to the IBES's. This holds for OLAF, which is competent for serious misconduct, fraud, corruption and any other illegal activity involving staff and members of the EU institutions, bodies, offices and agencies. OLAF is also involved in developing anti-fraud policies and legislation, and has an awareness-raising function making OLAF's role close to that of the IBES, a reason why OLAF is expressly mentioned in the agreement's recitals. Other entities with which the IBES will need to cohabitate are:

The IBES's competences as deriving from the final agreement are limited to a standard-setting role, which none of the other entities has; this makes the risk of an overlap of the IBES's actions with other bodies less likely – except for with OLAF. Nevertheless, this does not exclude the need for cooperation with other bodies in ways that are, however, not specified in the agreement.

European Parliament position

The adoption of the agreement on the interinstitutional body for ethical standards by Parliament did not come without criticism. It was adopted by a narrow majority in plenary (with 301 votes in favour, 216 votes against, and 23 abstentions), and some MEPs criticised the agreement's legal basis, and the location of the secretariat in the Commission's premises, arguing this would cast doubts on its perceived independence. Some criticisms highlighted that the body would take its decisions based on moral ideas rather than rules. Other MEPs declared themselves in favour, particularly the rapporteur. They considered the agreement to be a good start but regretted that the body no longer involved all the institutions, and in particular the European Council, while underlining that the outcome fell short of Parliament's original ambitions.

On 25 April 2024, Parliament adopted a decision alongside the agreement, calling for a truly independent ethics body, capable of carrying out investigations on its own initiative and issuing recommendations for sanctions to the responsible authorities of the participating institutions or bodies. The declaration also asked for the agreement to cover members and staff of EU institutions and bodies before, during and after their term of office or service, as envisaged in its previous resolutions. Finally, it regretted the lack of participation of the European Council and the limited involvement of the Council of the EU, and called for enough resources for the body to function properly.

Ombudsman and stakeholder positions

The IBES has been criticised by some for being too weak, and by others for exceeding the mandate it should have on a topic deemed sensitive. In terms of public ethics, no body is seen as a 'one size fits all' model. Several stakeholders were disappointed with the agreement reached, particularly when compared with Parliament's ambitious 2021 proposal.

Transparency International strongly criticised the final agreement, claiming that it does not address the failures of self-monitoring, which is the current system of ethics enforcement in the EU institutions, and that it 'will not contain any of the essential elements desperately needed to clean up the EU integrity system: the powers to investigate and sanction the EU institutions independently'. However, it welcomed the fact that independent experts may be involved in checking declaration of interests compliance and in the scrutiny of participating institutions' self-assessments. CEPS also criticised the Commission's proposal as being toothless, and called for an 'ethical oversight authority' with 'real bite', which would be independent and put in place a uniform mechanism for coordination, monitoring and sanctioning. In an article, Professor Alberto Alemanno of The Good Lobby organisation compared the new body with a 2000 Commission proposal for an advisory group on standards in public life, which was not adopted. He argued that the new body could play an important role, using its standard-setting power in the development and enforcement of rules in many areas of ethics, its consultative role through the independent experts and its role as a discussion forum, to lead to a reshaping of the EU's ethics system. However, he warned of the risks of leaving the body to the good will of the parties, without accountability that can be triggered by third parties, citing the EU transparency register as an example.

Ombudswoman Emily O'Reilly exchanged frequently with Parliament's President Roberta Metsola on her 14-point plan on integrity and transparency reforms in the wake of 'Qatargate', and followed closely the creation of the EU ethics body. Across her interventions on the subject just before the publication of the Commission's proposal, she insisted on the need to have a strong ethics culture, and praised the body's essential characters of independence, the right to investigate, and the right to impose sanctions. Citing the French High Authority (see below), she mentioned its reputation, and how people perceived it as a strong and authoritative body. She also stressed the importance of a reform of the EU institutions' own ethics bodies in parallel with the creation of the EU Ethics body. Finally, she welcomed the idea of establishing a standards-setting body, recommending not to forget the importance of the Council.

National ethics bodies

Several EU Member States, as well as non-EU countries, have set up bodies to deal with public ethics, but these often differ as to their scope, prerogatives and status.

In France, the High Authority for Transparency in Public Life (HATVP) is often regarded among Member States and beyond as an example of a powerful ethics body. Established in 2013 and subsequently strengthened in 2017 and 2019, the HATVP's main missions are to control declarations of assets and interests, prevent conflicts of interests, regulate revolving doors, and monitor lobbying. An independent authority charged with examining over 18 000 officials bound by ethical rules, including members of central and local government, members of parliament and senior civil servants, the HATVP focuses on administrative control. It directly manages and monitors an online register of interest representatives, advises officials on ethical matters and controls revolving doors. The HATVP has investigative powers and can gain access to information of other administrations. It can refer matters to the courts for penal prosecution. However, it has limited enforcement powers outside of controlling revolving doors, which it compensates for by making public most of its decisions, and being able to refer complaints to a public prosecutor. To perform its duties, in 2023, it had a 9.6 million euro budget and 71 employees.

In Canada, the Office of the Conflict of Interest and Ethics Commissioner (OCIEC) was created in 2007 and placed under the Parliament's authority. It is led by an independent Commissioner responsible for administering the Conflict of Interest Act for public office holders and the Conflict of Interest Code for Members of the House of Commons. OCIEC's main responsibilities are providing confidential advice to elected and appointed public officials, reviewing their declarations of assets and interests, investigating possible contraventions of the above-mentioned acts while managing a public registry containing, among other documents, financial declarations, declarations of gifts, travel and outside activities of current public office holders, ministers and parliamentary secretaries. In some cases, the Commissioner has the power to impose administrative penalties and issue compliance orders for contravention of the Conflict of Interest Act.