Conflict of Interest violations and tolerance – why people do not mind?

Today, levels of corruption seem to increase although the anti-corruption movement is as powerful as never before. All countries and all politicians share the view that corruption is destructive. The same applies to the field of CoI.

How can this be explained?

One explanation is that “the underperformance of the global anticorruption movement is not unrelated to the democratic backsliding in recent years”.²²⁰ Strangely enough, the anti-corruption agenda has helped populists into power who protest the seemingly corrupt (democratic) elites.

“Anticorruption helps populism to flourish as an alternative to representative democracy”.²²¹

In reality, our empirical analysis shows that systems that have lower democratic standards and perform less well as regards the rule of law accept corruption and CoI more easily than systems with high standards.

Also, systems that have highly effective Governance systems do not tolerate corruption and CoI.

Contrary to this, toleration of corruption and CoI correlates with poor Governance performance.

At the same time, it is striking that sometimes many voters are rarely interested in the corruptibility of these leaders and their conflicts of interests. Many people are surprisingly tolerant as regards unethical behaviour and conflicts of interests of their leaders (and despite rising moral expectations, trends towards the personalisation of ethical failures and the increase of scandal reporting).

How can this be explained?

As it seems, people often think in the context of two opposite conflicting intuitions:

• One is the thought that there are actions that are right or wrong universally. Thus, we share the intuition that there are right and clear answers to moral questions such as judging CoI.

• The other intuition is captured by the question: Who are we to judge other opinions, acts or even other cultures? Who are we to apply our moral standards to other moral actions, or systems? Who are we to know whether somebody really has a CoI? After all, a CoI is a psychological state of mind, and, in most cases, we do not know whether and how people act.

The one thought leads us to make moral judgments, the other to abstain from doing so. Moral judgment is moralism and an attitude that we have an answer to complicated issues. The other is moral relativism and rather abstention of moral judgment which is not the same as tolerance.²²²

Both intuitions may be wrong, or at least not right as regards the judgment of many CoI. The reason for this is that conflicts are not binary; that is, they are not simply either good or bad, present or absent or severe or not severe. However, monitoring and enforcing Conflicts of Interest requires in both ways the need for judgement. In certain cases, it is relatively easy to judge that certain conflicts of interests are

220 Mungiu-Pippidi, (2020), 100.

221 Ibid.

222 Lukes, S., (2008), Moral Relativism, Picador, New York.

wrong and should be avoided or prevented. However, in most cases, it is difficult to come up with a clear judgement. People also shy away from judging others' behaviour if they find themselves in similar conflicting situations (and even if these are of very minor importance).

Also, the EU and the EU Member States introduce ever stricter policies and rules in the field of CoI.

However, in many cases they are also tolerant if top-politicians face conflicts of interest. This tolerance for CoI reflects current trends towards moral relativism in the field of moral politics. Moral relativism is the idea that the authority of moral norms is relative to time and place.²²³ It is the observation of diversity and the acceptance that moral judgment is not constraint by place, time and context. It is the acceptance of relativism and diversity as a universal principle. Consequently, personal violations of norms are “human” behaviour and therefore, tolerated, also as a protest against norms that have been adopted by “political elites”.

In our survey, more than 30% of national responses concluded that one of the biggest challenges in fighting conflicts of interest is “political reluctance to sanction”. One country mentioned a “too high tolerance for CoI of ministers” and one country “trends towards politicization”. Table 12 depicts the number of countries that indicated a specific challenge as one of the biggest ones in the field of CoI.

Table 12: Biggest challenges fighting CoI according to Member States

Source: Own calculations by the authors based on the information/data received from the Member States of the EU

Obviously, these answers reveal a lack of political will and/or too high levels of tolerance against flagrant CoI. How can this be explained in times where countries invest in the fight against CoI as many efforts as never before?

One answer to this question can be found in a related policy-field: The fight against corruption.

According to Eurobarometer²²⁴, one structural deficit in the fight against corruption (and also in the field of CoI) is the reluctance (and tolerance) to fight high level cases.

223 Ibid.

224 Eurobarometer 2020, Special report 502.

Figure 37: Attitudes regarding pursuing high-level corruption in Member States

During the most recent period, this could be seen as regards the toleration of CoI by top-politicians, prime-ministers and Presidents which did not have any significant impact on (dis-) approval ratings.

As Lascoumes²²⁵ shows the perceptions of breaches of integrity constitute a “foggy assortment. The judgments that citizens bring to bear upon integrity violations are often ambivalent. The boundaries that separate the condemned from the acceptable not only shift from person to person, but also shift according to the facts of the case under evaluation and the context in which they take place.

225 Lascoumes, P. Condemning corruption and tolerating conflicts of interest: French arrangements regarding breaches of integrity, in: Auby/Breen/Perroud, op cit, 83/84

Figure 38: Varying objectivity of public servants in various situations

The confusion of public and private interests, and the resultant conflicts, generally escape disapproval.

Often, conflicts of interest are not perceived as such.”²²⁶ Although citizens are highly critical, distrustful and disapprove of breaches of integrity, this may not prevent them from tolerating many different forms of unethical behaviour. This suggests, that even if rules exist and breaches of integrity emerge, they will have little effect as people tolerate these breaches.

As Lascoumes shows, there are three zones of individual judgment of CoI: the black zone of consensual disapproval for corruption, misappropriation of public funds, lying, the pursuit of private economic interest), the white zone of consensual tolerance (friendly relations with elected officials and the defense of common good in cases of CoI) and the grey zone of discord (instrumentalization of the political process, political practices in which private and public interests are confounded).

Moreover, the judgment of people differs from issue to issue. According to Lascoumes: “Broadly, French citizens do not disapprove of most of the situations regarding conflicts of interest, and, when they identify such a situation, they often find justification for it”.²²⁷ The judgment that citizens bring to bear

226 Ibid.

227 Ibid.

upon this subject is often ambivalent. “The boundaries that separate the condemned from the acceptable not only shift from person to person, but also shift from according to the facts of the case under evaluation and the context in which they take place. The confusion of public and private interests, and the resulting conflicts, generally escape disapproval. Often, conflicts of interest are not perceived of as such”.²²⁸

Even more, “while a strong sentiment of disapproval regarding breaches of integrity resides within citizens, it coexists with a de facto tolerance of certain abuses of power in elected office officials, and even with considerable tolerance towards the near absence of political consequences”.²²⁹ How can this be explained? According to Lascoumes, one explanation may be that scandals, even when they are recurrent, “are often without any lasting effects either on the individual image of the political actor, or even on their electoral scores”.²³⁰ “Numerous observations thus demonstrate that, contrary to the sort of discourse we might expect, the respect for laws and moral principles are not the only criteria employed to judge political conduct.”²³¹

However, it is also important to note that attitudes with regard to public integrity differ a lot amongst the Member States of the European Union and towards public institutions and sectors. It is also a fact that tolerance for corruption is more widespread in countries that have higher levels of corruption.

Thus, one could expect that this is also the case as regards conflicts of interest. “For example, increased corruption in a society lowers the trust and expectations of honesty in public institutions, which in turn might increase the belief that corruption is the only solution to get what citizens need. It might also enhance the belief that corruption is the only way to get the individual’s needs satisfied and ensure quality service delivery. In addition, social norms and pressures, for example, to reciprocate favours also explain corrupt behaviour in some contexts. In the same way, social norms might tolerate corrupt decisions, they can be a powerful anti-corruption tool due to their great influence to shape behaviour in certain societies.”²³²

In our study, a number of countries also reported that, frequently, Governments tolerate CoI of Ministers. Moreover, Governments are reluctant to address and enforce CoI of their political leaders.

Therefore, it is also not surprising that countries designate potential candidates with individual CoI to become a European Commissioner

In their replies to our survey, a number of countries mentioned that important challenges exist in tackling CoI because CoI of Ministers and top-officials are tolerated and Governments are reluctant to address political CoI. Of course, if leaders commit CoI and these are tolerated, this will most likely result in a further decline in trust in political leadership, ethical leadership and role-modelling. But why then do countries tolerate CoI of political leaders (and other than because of political influence and power)?

This can be considered somewhat surprising, given the importance of the topic of “politicisation” as such, and the transcendence of ‘scandals’ in terms of citizens’ trust in the institutions and in democracy in general. Indeed, existing research has focused on the power of top-officials, but less on how this power is acquired and how ethical conflicts such as conflicts of interests are managed in the first place²³³.

232 Zúñiga, N., (2018), Behavioural changes against corruption, Anti-Corruption Resource Center, Transparency International.

233Peterson, J. (2016). Juncker’s political European Commission and an EU in crisis. Journal of Common Market Studies, 13, July.

As such, political conflicts of interests can be tolerated (at least to a certain extent) as long as these concern minor conflicting political interests. This is also reflected in the Code of Conduct for the European Commissioners, which allows for the participation “in national politics as members of national political parties or an organisation of the social partners” (Art. 9 para 1) and also the participation “in European politics as members of European political parties or organisations of the social partners” (Art. 10 para. 1). Both activities may also generate conflicts of interest that are in conflict with the duties of an EU Commissioner.

However, these activities are to be accepted. Normally, politicians should be expected to be able to balance conflicting values and conflicting loyalties (such as in the case of loyalty conflicts in the case of dual-nationalities).

3.8. Managing specific CoI in the appointment of EU Commissioners and