(SCC0038)

Written evidence submitted by the European Parliament

1.              What powers do investigative committees in your Parliament have to summon witnesses and call for the production of documents? Are these powers set out in legislation or in standing orders?

The legal basis for the European Parliament’s (EP) investigative powers is Article 226 of the Treaty on the Functioning of the European Union (TFEU) according to which “[i]n the course of its duties, the European Parliament may, at the request of a quarter of its component Members, set up a temporary Committee of Inquiry to investigate, without prejudice to the powers conferred by the Treaties on other institutions or bodies, alleged contraventions or maladministration in the implementation of Union law, except where the alleged facts are being examined before a court and while the case is still subject to legal proceedings”.

Furthermore, Article 226 TFEU provides for a special legislative procedure, according to which the European Parliament may adopt, on its own legislative initiative and with the consent of Council and Commission, a regulation determining detailed provisions governing the exercise of its right of inquiry. Pending adoption of such a regulation, the right of inquiry is currently regulated by Decision 95/167/EC, Euratom, ECSC of the European Parliament, the Council and the Commission on the detailed provisions governing the exercise of the European Parliament’s right of inquiry (hereinafter: Decision 95/167/EC)[1] and by the EP’s Rules of Procedure, notably its Rule 208.

An EP committee of inquiry does not have the power to subpoena witnesses but it can only request the Member States and EU intuitions to designate an official or servant to appear before the committee, pursuant to Article 3(3) of Decision 95/167/EC: “On a reasoned request from the temporary committee of inquiry, the Member States concerned and the institutions or bodies of the European Communities shall designate the official or servant whom they authorize to appear before the temporary committee of inquiry, unless grounds of secrecy or public or national security dictate otherwise by virtue of national or Community legislation” It is to be noted that the “officials or servants in question shall speak on behalf of and as instructed by their Governments or institutions. They shall continue to be bound by the obligations arising from the rules to which they are subject”.

Similarly, the authorities of the Member States and the institutions or bodies of the European Communities shall provide a committee of inquiry with “where it so requests or on their own initiative, with the documents necessary for the performance of its duties, save where prevented from doing so by reasons of secrecy or public or national security arising out of national or [Union] legislation or rules” (Article 3(4) of Decision 95/167/EC). As for the appearance of any other person, the committee may request (but again cannot summon) an individual person only in so far as it is necessary for the performance of its duties. (Article 3(8) Decision 95/167/EC).

The above-mentioned paragraphs 3 and 4 of Article 3 shall be without prejudice to any other provisions of the Member States which prohibit officials from appearing or documents from being forwarded (Article 3(5) of Decision 95/167/EC). Moreover, institutions or bodies of the European Union shall not supply the temporary committee of inquiry with documents originating in a Member State without first informing the State concerned (Article 3(6) of Decision 95/167/EC).

By virtue of Article 3(7), paragraphs 3, 4 and 5 of the same article apply to “natural or legal persons empowered by [Union] law to implement that law”. Finally, Article 3(8) stipulates that “[i]n so far as is necessary for the performance of its duties, the temporary committee of inquiry may request any other person to give evidence before it. The temporary committee of inquiry shall inform any person named in the course of an inquiry to whom this might prove prejudicial; it shall hear such a person if that person so requests”.

It should also be mentioned, that pursuant to Rule 208(10) of the Rules of Procedure, where alleged contraventions or maladministration in the implementation of Union law suggest that a body or authority of a Member State could be responsible, the committee of inquiry may ask the parliament of the Member State concerned to cooperate in the investigation.

2.              Are there any recent examples from your Parliament of contempts relating to investigative committees, including non-compliance of witnesses summoned to appear before a Committee?

So far, only five committees of inquiry have been set up, two of them were established after the Lisbon Treaty entered into force (2009). One committee on car emissions was established in December 2015 (EMIS Committee) and the most recent one was set up in 2016 to focus on the application of Union law in relation to money laundering, tax avoidance and tax evasion (PANA Committee). Whereas Commissioners and Commission officials generally accepted to appear in front of the committee of inquiry, the PANA and EMIS committees faced difficulties in trying to hear Member State representatives.[2]

The PANA committee regretted that Hungary and Malta have failed to respond and pointed to the delay of six months with which it managed to come to an agreement with the Commission on access to documents. Furthermore, it complained that the respective documents were not all updated and often heavily redacted or blacked out.[3] The EMIS Committee too stated that “[i]n the absence of clear requirements and specific deadlines to accept an invitation or deliver the information requested, the preparation of public hearings was very time consuming.”[4]

3.              What sanctions are available to your Parliament in cases of non-compliance or other contempts on the part of witnesses?

The Decision 95/167/EC distinguishes a person who was designated by an EU institution or Member State to appear before the committee from any other person. However, decision 95/167/EC does not foresee any enforcement or sanction mechanism in either case. The Rules of Procedure of Parliament is applicable only internally within the institution, therefore it is not an appropriate instrument for any sanctioning mechanism outside of the EP.[5]

Nevertheless, certain consequences come into play depending on the category of witnesses:

A Member State is under the obligation to cooperate with an EP committee of inquiry, for example by designating an official to appear before the committee (Article 3(3) Decision 95/167/EC). If it fails to do so the Parliament may in principle, and if all conditions necessary to be fulfilled are met, request the Commission to initiate infringement proceedings against that Member State (Article 258 TFEU), claiming the breach of the above-mentioned provision and of the principle of sincere cooperation (Article 4(3) Treaty on European Union (TEU)). However, this theoretical possibility has never been used by the EP.

Regarding failures to act by other EU institutions, the EP may in principle, and if all conditions necessary to be fulfilled are met, initiate a procedure in front of the Court of Justice according to Article 265 TFEU. Again, this theoretical possibility has never been used by the EP. Due to the long duration of judicial proceedings, political pressure (for example by a motion of censure) may prove more efficient.

As for the category of potential witnesses referred to as “any other person” in Article 3(8) of Decision 95/167/EC a committee of inquiry or the EP has no constraining power whatsoever.[6]

4.              What rules and guidelines do you have to ensure witnesses and potential witnesses before select committees are treated with fairness and due respect?

All individuals invited to take part in the proceedings of an EP committee of inquiry enjoy all rights and guarantees provided by the Charter of Fundamental Rights, as interpreted by the Court of Justice of the EU, as well as those provided by the national law in their country of residence. In addition, Article 2(2) of Decision 95/167/EC states that witnesses and experts have the right to request to make a statement in camera. According to Article 4, the information obtained shall be used solely for the performance of the duties of the committee. “It may not be made public if it contains material of a secret or confidential nature or names of persons.”[7]

5.              What is your assessment of the effectiveness of your Parliament’s powers and sanctions to deal with contempts?

The overarching assessment is that a regulation based on Article 226 TFEU should replace the Decision 95/167/EC currently in force. The Decision 95/167/EC, as an interinstitutional agreement, binds only its signatories and was adopted on the basis of the Treaty establishing the European Community which is now outdated. A regulation, however, would potentially be an appropriate instrument for laying down binding provisions for any natural or legal person in the Union, within the limits allowed for by primary law and the case-law of the Court of Justice of the EU.

A regulation based on Article 226 TFEU could enhance the effectiveness of Parliament’s powers by enabling committees of inquiry to request (and not only invite) any person residing in the EU to take part in the committee’s proceedings. Groundless refusal by an individual to be heard or to provide documents should be subject to the same sanctions provided for in national law for analogous conducts as regards the work of committees of inquiry in the national parliaments.

Under a future regulation adopted on the basis of Article 226 TFEU, where a Member State or an EU institution or body fails to authorise an official to testify before the committee of inquiry, the official responsible for the refusal should be obliged to appear before the committee and explain the reasons. This so-called “comply or explain rule” would intensify political pressure to provide information to the committee. Furthermore, a specific deadline to provide the requested information or to accept an invitation to appear before the committee of inquiry should be defined and formal note, to be published in the Official Journal of the European Union, should be taken of a failure to comply with the obligations.

The AFCO Secretariat[8]

28 July 2020