What to expect from the Vella ‘grilling’ | Peter Agius

Since accession in 2004, the European Parliament has earned a permanent place in the collective subconscious of the Maltese nation. One regular appointment concerns the five-yearly ‘grilling’ given to prospective Commissioners by MEPs.

These hearings have to date always been keenly followed and heatedly discussed in Malta (much more so, in fact, than in other EU member states), ever since former foreign minister Joe Borg was given a tougher time than expected in 2004.

Already there are indications of unrest associated with Commission president Jean-Claude Junker’s choice of commissioner to handle the Environment, Fisheries and Maritime Affairs portfolio. NGOs have expressed concern at an apparent ‘downgrade’ of the environment (previously a standalone portfolio) as a key area of European policy. Questions have also been raised – among others, by BirdLife Europe – regarding the suitability of Karmenu Vella himself for the post, given his government’s track record in the area of wildlife protection.

I meet Peter Agius, who heads the European Parliament Office in Malta, to get a better understanding of what to actually expect when Vella faces the European parliament at the end of this month. How severely will Malta’s nominee be ‘grilled’... and how (if at all) will the abovementioned concerns be reflected in MEPs’ questions?

More specifically: what procedures are in place to ensure that the new Commissioners, once approved, meet the expectations raised in these hearings?

“There is a political and a procedural dimension to this question,” he begins. “Let’s start with the procedural. The European Parliament is the only directly democratically elected institution in the Union. So in a Union which is founded on democracy, and where all the components have to be accountable, we cannot afford to have European commissioners who have significant powers of initiation and implementation of legislation who do not respond to this democratic mandate.”

This concern, he adds, goes beyond the simple approval by the EP. “The hearings allow Commissioners-designate to be scrutinised and approved by the representatives of the people. Karmenu Vella will face a hearing to be approved; but then, he will also have to appear before the EP very regularly to defend dossiers, to respond to criticism in the execution of his mandate, and also to propose new ideas, and to get the partnership of the EP...”

To get
away with something like that there would have to be
a feeling among the rest of the Commission, a significant and consistent collective interest to promote that kind of approach... and I don’t think this feeling is present

Parliamentary approval is therefore an ongoing requirement that lasts throughout a Commissioner’s term. But does the European Parliament have the power to dismiss a Commissioner after he has been approved at the hearings stage?

“The EP has the power to summon Commissioners and ask them to give an account of themselves, certainly. But to dismiss a Commissioner is another context. The EP can, in certain situations, take a political stance in the sense that an action or a positiontaken by a Commissioner is not acceptable to the parliament. But this is a very remote possibility, as the Commission acts through collegiality. There cannot be a single commissioner who is responsible for something. The responsibility rests with the whole Commission...”

This brings Agius to the first of a number of procedural safeguards to ensure that commissioners are kept in check. “In this hearing, the parliament has the power to accept or reject the Commission as a whole. That’s what the treaty says. But there

is an interesting element here. The rules of procedure of the EP also go into details of how specific committees have to give their endorsements to different Commissioners. These endorsements will then go to the conference of presidents, and be fed to the plenary. So procedurally, from a legal point of view there is only the power to endorse the Commission in its entirety. But politically, there might be interventions or pressure on individual Commissioners, that may in turn condition the approval or otherwise of the whole Commission...”

This also has specific implications for Vella’s appointment. “His hearing has to take place in the specific committees associated with his portfolio. Environment, fisheries and maritime policy are dealt with in two separate committees: environment by the ENVI commission; fisheries and maritime affairs by PECH. So the two committees will have to be brought together for a joint sitting.”

Once Vella has duly answered the committees’ questions, the MEPs will remain in the chamber and discuss their assessment of the hearing: particularly, the group co-ordinators in those two committees. “Normally, within 24 hours there has to be a letter by the committee chairs, addressed to the conference of committee chairs.”

Meanwhile, Juncker’s choices of both commissioner and portfolio have already been subject to a lot of international speculation and media criticism. Obviously the criticism that concerns Malta most is the decision to entrust the environment portfolio to a Maltese commissioner, at a time when the government he was until recently part of has had various problems with the Commission specifically on environmental issues. Not just hunting: there have also been problems with air quality and climate change targets, among others.

Similar concerns have been raised in connection with other Commissioners, too. For example, Juncker chose a Hungarian nominee to administer the civil rights portfolio, when the government of Hungary has been widely criticised over civil rights issues. Is there any chance that the EP might reject the Commission on these grounds?

Agius expresses his doubts. “Some portfolios have been assigned to commissioners-designate who allegedly do not have the most limpid track record in those areas. This will surely be on the minds of the MEPs. It will be part of the scrutinising process. But the European Parliament will take an overall assessment. And there are a number of safeguards in place to minimise the risks involved.”

Some European
laws have been changed 60 times in the past 20 years. The Birds Directive has not been changed since its adoption in 1979

As it happens, Agius has already touched on the first of these safeguards: collegiality, or the principle that decisions are not taken by individual commissioners but by the Commission as a whole.

However, it doesn’t sound very convincing to my ears. The instructions Juncker has already given Vella, for instance, include a revision of the European Wild Birds Directive. This

looks more like a single Commissioner taking a decision which will steer the EU in a certain direction...

Agius disagrees. “No: the decision is assigned to be led by a single Commissioner, but effectively when the Commission decides, it is always by collegiality. The whole college of Commissioners has to approve. And this is an important safeguard: any decision taken by a single Commissioner has to pass the scrutiny of all the other commissioners...”

But how does that make any difference in practice? The fact that a decision was taken unanimously by the entire Commission doesn’t automatically make that decision correct...

“Perhaps not. But to put it bluntly: if the fear is that a single Commissioner may place the interests of his own country ahead of other concerns, he or she will not be able to do so without getting approval of all the other Commissioners. This makes it difficult for Commissioners to reflect their own countries’ agendas, especially in areas where other Commissioners may disagree.”

A second safeguard, he adds, is that Commissioners also have to take an oath to “act in the European interest”.

Again, however, it doesn’t sound very impressive. One frequent criticism levelled at the Commission is that individual commissioners tend to favour their own home country... and Malta has already been specifically singled out in this respect. When Joe Borg was Fisheries Commissioner, he set the European quotas for Bluefin tuna at three times the maximum level recommended by scientists to ensure the survival of the species. Malta has a thriving Bluefin tuna industry. So couldn’t it be argued that Borg’s decision favoured an industry interest in which his home country was a key player?

“Do you really think he did that under pressure from Malta? There are other much bigger countries involved in the Mediterranean tuna trade...”

Precisely: and they all have a common interest. My point is that Commissioners do not always take decisions for the right reasons. Let’s take a hypothetical scenario, in which Karmenu Vella is approved by the EP, and goes on to ‘revise’ the European Wild Birds Directive in a way that justifies his government’s policy to permit trapping and spring hunting (both technically illegal and currently subject to derogations). How does such a vague commitment to ‘defend European interests’ ward against that kind of (hypothetical) abuse?

“Because to get away with something like that there would have to be a feeling among the rest of the Commission, a significant and consistent collective interest to promote that kind of approach... and I don’t think this feeling is present...”

Here Agius warns against the dangers of stereotyping commissioners on the basis of nationality.

“We have to be careful here. Your question implies that because Karmenu Vella is Maltese, he may not have a clear environmental commitment. That could be a bit unfair...”

Perhaps, but there is also a track record to support that view. Vella is a veteran of a political party that has pledged support to the hunters’ lobby, and which made it an electoral priority to allow spring hunting. This is where he is coming from... and it also explains why environmental NGOs are so concerned with the fact that he has already been asked to revise the Birds Directive. The principle of collegiality itself should argue against this: European directives are established by treaties, not by individual commissioners. If Juncker is talking about changing the treaties that we signed up to when we joined... can a decision of such magnitude be left in the hands of a single Commissioner?

“Let’s clarify certain procedural aspects. The treaty says that in all the actions of the Union, it shall ‘take as a principle the highest level of environmental protection’. The Birds Directive, like any other piece of subsidiary legislation, is based on that principle; but it is also subject to change. Some European laws have been changed 60 times in the past 20 years. The Birds Directive has not been changed since its adoption in 1979. This is an exceptional situation; I think it’s the only European directive that has never been amended in the last 35 years. What Juncker is asking of Karmenu Vella is an in-depth evaluation of the birds and habitats directives, with a view to merging them into a single piece of legislation. So it’s more a case of bringing them up to date... it’s not really a revision of the very delicate balance established in the Birds Directive.”

Juncker, he adds, is also responding to a very real legal problem.

“The Birds Directive has not been amended in 35 years, but it has been supplemented by case law. For instance: the directive states that a balance has to be achieved between conservation and traditions such as hunting. It says that in the opening paragraph. But it doesn’t go into detail about how this balance is to be achieved. The European court of justice, however, did go into the details, and did develop a number of notions, including the notion of ‘reasonable alternative’.

“Let’s not forget that the Commission is the executive arm of the EU: Vella’s first task is technocratic in nature. If there is a piece of legislation that is not reflecting its actual implementation, because it has been supplemented by more than 40 instances of case law... let’s try to review that, and put it in a text of law as it should be. If there is complementarity between the birds and habitats directive – as is evidently the case – let’s consider integrating them and reinforcing both laws. So it’s not necessarily about affording the opportunities to either environmentalists or hunters to tip the balance.”

Yet if Vella is going to be politically consistent, he should also be expected to try and tip the balance in favour of hunters. That is after all what his government has done, and there is ‘collegiality’ at Cabinet level as well. It’s called ‘collective responsibility’ in the local context. In theory, Vella is in part responsible for all the actions of his government... that is part of the baggage he brings with him to the Commission.

“That would go against his oath of office as Commissioner. In fact, your assumption bypasses all the safeguards...”

Speaking of which, Agius reminds me that there are other safeguards we haven’t considered yet. “The most important are Juncker’s own political guidelines. He has made it clear to the EP, and also to the individual Commissioners, that this Commission is responding to a political contract, laid down in a document called

‘A New Start For Europe’. After detailed discussions with the political groups of the EP, and the input of the MEPs themselves, Juncker laid down an agenda for Europe. This is reflected in Vella’s portfolio, and the portfolios assigned to all the other CDs. On immigration, for instance, it is written black on white what is expected of the Commission in the next five years...”

At the same time, however, the agenda itself is open to question. There doesn’t seem to be anything about the environment anywhere in Juncker’s 10 proposals. How, then, can this document be considered a safeguard when it comes to a portfolio that relegates the environment to a secondary position alongside fisheries and maritime affairs?

“No, it doesn’t go into detail on the environment. I think it’s much more a case that, as recognised by Juncker in his letter to Karmenu Vella, the EU has already achieved a high level of protection for the environment, and hence there are a lot of areas that are already being tacked in a very systematic way. In fact, it’s worth pointing out that on the environment alone, Vella would be in charge

of monitoring the implementation of 200 sectoral laws: covering air quality, water quality, toxic substances, Natura 2000, you name it...”

Meanwhile there is also a fourth safeguard: the role of the Commission’s vice-presidents, which has been greatly revised in recent years. But how will this have any bearing on the Vella hearing?

“It will have an effect because Vella is part of the Alenka Bratušek team” – Bratušek is the former prime minister of Slovenia, now earmarked as Commission vice-president for Energy Union – “which is explicitly tasked with co-ordinating the work of all the commissioners touching on those areas with relevance to energy union, including the environment. We will have to wait and see: the conference of presidents has not yet established the timeline or order of the hearings – but Bratusek’s hearing will have to include the ENVI committee. This makes these hearings a bit more complex than usual, but it also adds to the element of safeguards I mentioned earlier.”

One last question concerns the portfolio Vella will actually get if approved. He has been nominated for environment, fisheries and maritime affairs, yes... but experience (not least Joe Borg, who was originally nominated for the development portfolio) suggests that he might get something quite different in the end. Some observers have even suggested that Vella is being set up to take a fall... that he will be approved by the parliament, but for a more modest portfolio. How realistic is that scenario in Agius’s opinion?

“I cannot comment on whether this will happen or not. What I can tell you is how the procedure works. Certainly one of the prerogatives of MEPs is to say: ‘we approve this commissioner, we think he or she is suited to be part of the college, but we recommend changes in the portfolio’. Linking this to earlier speculation is, I think, inappropriate. But this is a prerogative of MEPs which has been exercised in the past. It is part of their options in the rules of procedure, and I would not be surprised if they do exercise that power with some of these portfolios. But I wouldn’t stretch it as far as to suggest that there is some kind of ‘plan’ or ‘conspiracy theory’ with regard to Karmenu Vella’s portfolio, no...”