Tonio Borg: still not sworn in as Commissioner seven months later

John Dalli's surprise resignation as European Commissioner for Health and Consumer Affairs last October has not only delayed the implementation of the controversial Tobacco Directive for at least a year; it has also left the European Commission without a formally-appointed replacement Commissioner.

Seven months after stepping into Dalli's shoes in December, it transpires Malta's former foreign minister Tonio Borg has yet to take his oath of office as a European Commissioner: which technically means Dr Borg is not a fully-fledged Commissioner at all; and as such he is not bound by the same rules and regulations that Dalli was accused of breaching last October.

As things stand today, the European Commissioner responsible for Public Health and (until next month) Consumer Affairs is not obliged by any formal commitment to be independent, or and keep at an arm's length from government and other institutions that might influence EU policy or legislation.

Paradoxically, Dalli had been forced to resign precisely over allegations of breaching the same conditions that are not applicable to Tonio Borg.

A Commission spokesman this week confirmed that Borg will be sworn in on 10 July together with Dr Neven Mimica from Croatia, who is expected to take up office as European Commissioner in charge of Consumer Protection (formerly Borg's portfolio) on 1 July.

"The setting of the date was based solely on the availability of the Court of Justice and the said Commissioners," a spokesman for Borg told this newspaper. "In the past, the period between taking up office and the taking of the solemn undertaking has ranged from three months to nine months."

The Commission declined to answer when asked whether the delay in formalising Borg's appointment may have in part been influenced by court proceedings initiated by Dalli over his forced resignation last October.

But observers who spoke to MaltaToday said that the fact that a former Commissioner was suing for unfair dismissal was unprecedented, and may have created legal and administrative stumbling blocks for the smooth transition between the two Commissioners.

Furthermore, the addition of a new Commissioner from Croatia - which will formally become the 28th member of the Union on 1 July - necessitated a reshuffle of Commission roles: as a result of which, Borg lost half his portfolio (consumer affairs) to Croatia's appointee to the Commission.

The upshot is that Tonio Borg is not technically a fully-fledged Commissioner, according to the Treaty on the Functioning of the European Union: Article 245 of which stipulates that all members of the European Commission are required to give "a solemn undertaking" when entering upon their duties to respect their obligations under the EU Treaties.

Traditionally, this solemn undertaking is made before the European Court of Justice in Luxemburg in the first months after the start of the mandate of a new European Commission.

With their solemn undertaking, Commissioners commit themselves to:

• to respect the Treaties and the Charter of Fundamental Rights of the European Union in the fulfillment of all my duties;
• to be completely independent in carrying out my responsibilities, in the general interest of the Union;
• in the performance of my tasks, neither to seek nor to take instructions from any government or from any other institution, body, office or entity;
• to refrain from any action incompatible with my duties or the performance of my tasks.

John Dalli was sworn in as Commissioner, along with the rest of the Commission, three months after taking up office in 2010.