Accountability and Defenestration: The Dalli Saga

 

Dr Marios Costa, Lecturer in Law, City University

The en bloc resignation of the Santer Commission in 1999, against a background of allegations of fraud, maladministration and chronic mismanagement, is still topical, almost two decades afterwards. The European Commission has long been criticised for its administrative inadequacies and for the structural deficiencies in the Union’s system of accountability. There have been a number of reports depicting the Commission as an institution suffering from structural and political irregularities. 

On 11 May 2015 the General Court gave a significant judgment on a legal challenge brought by the former EU health Commissioner, Mr John Dalli, against the Commission. Dalli argued that he was forced to resign, by the then President of the Commission, Jose Manuel Barroso, without given enough time to consider his legal rights. Rather paradoxically, the General Court ruled that Mr Dalli resigned voluntarily and dismissed the action as inadmissible.  

This judgment raises broader constitutional implications. With all due respect, the ruling comes as a surprise and fails to clarify issues in relation to the powers that can be lawfully exercised by the President of the Commission when he loses confidence in any of the members of his Commission. This commentary examines the appropriateness of the recent ruling and concludes that the General Court lost a rather rare opportunity to rule on significant aspects of the Treaty powers granted upon the President of the Commission to sack the individual Commissioners and as a result also fails to remedy the accountability deficits of the Commission.

Facts of the Case

Dalli, the former Maltese Commissioner, was accused of soliciting bribery for the amount of 60 million euro in exchange of seeking to influence future legislative proposals in favour of the tobacco maker Swedish Match. Following a complaint to the Commission from the latter, the EU’s Anti-Fraud Office (OLAF) initiated investigations into the serious bribery allegations. On 15 October 2012, OLAF sent its final report to the Commission highlighting that there was no conclusive evidence that the Commissioner was involved in requesting money from the tobacco manufacturer. Yet, there was some evidence confirming that Mr Dalli was at least aware of the fact that a Maltese entrepreneur was using his name for the purposes of getting financial benefits from the tobacco maker.

On 16 October 2012, Mr Dalli had a meeting with the President of the Commission where he was presented with two already drafted press releases by the Commission: one stating that Mr Dalli decided to resign ‘voluntarily’, whilst the other stated that Barroso requested him to resign by exercising his prerogative powers under Article 17(6) TEU. During their meeting, the President showed the covering letter of the OLAF’s report to Mr Dalli. Nevertheless, access to the full report was refused on the grounds that it was confidential. Towards the end of their meeting, the President made it clear that he was going to force the applicant to resign if he was not going to do so voluntarily. The applicant asked for at least 24 hours to consult a lawyer and to find out what his legal rights were. Barroso said that he could give him no more than 30 minutes. Mr Dalli chose to resign.  

Mr Dalli challenged the legality of the oral decision taken by Barroso to terminate his term of office as the EU Health Commissioner. The Court declared the action as inadmissible since there was no clarity in relation to the act whose annulment was sought. The Court could not distinguish whether Mr Dalli was seeking the annulment of the decision of the President to remove him from office pursuant to Articles 245 and 247 TFEU or the allegedly oral decision taken by Barroso to request Mr Dalli’s resignation under Article 17(6) TEU. In consequence, the action was dismissed as inadmissible.

Legal Framework on the Commissioners’ Accountability

The Treaty is not silent on the issue of Commission accountability.. Article 245(1) TFEU provides that ‘[t]he Members of the Commission shall refrain from any action incompatible with their duties’. Additionally, Article 245(2) TFEU covers the case of compulsory retirement of an individual Commissioner. It reads as follows:

The Members of the Commission may not, during their term of office, engage in any other occupation, whether gainful or not. […] they shall give a solemn undertaking that, both during and after their term of office, they will respect the[ir] obligations […] in particular their duty to behave with integrity and discretion as regards the acceptance […] of certain appointments or benefits.  In the event of any breach of these obligations, the Court of Justice may, […], rule that the Member concerned be, according to the circumstances, either compulsory retired in accordance with Article 247 or deprived of his right to a pension or other benefits in its stead.

Moreover, Article 247 TFEU, which contains the only reference to the personal liability of Commissioners, reads as follows:

If any Member of the Commission no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct, the Court of Justice may, on application by the Council acting by a simple majority or the Commission, compulsorily retire him.

Furthermore, Article 234 TFEU provides for another kind of responsibility which the Commission owes to the European Parliament (EP), the ‘censure’ motion, as follows:

If a motion of censure on the activities of the Commission is tabled before it, the EP [and] … is carried by a two-thirds majority of votes cast, representing a majority of the component Members of the EP, the Members of the Commission shall resign as a body.

Finally, pursuant to Article 17(6) TEU, ‘[a] member of the Commission shall resign if the President so requests’.    

Comment and Analysis 

The Dalli judgment is a lost opportunity by the Court to clarify the abovementioned provisions as regards accountability of the EU Commissioners. Surely, any failure by an individual Commissioner to meet the standards described in in Article 245 TFEU, as set out above, can lead to a significant damage of the public image of the Commission.  This is not a hypothetical observation if one looks at the events leading to the collective resignation of the Santer Commission and to the closely related Cresson judgment (Case C-432/04, Commission v Cresson, ECLI identifier: EU:C:2006:455). Consequently, one can understand the concerns of President Barroso to avoid repetition of the discredited Santer Commission in 1999. Barroso’s commitment to high standards of administration is perfectly legitimate. What is not legitimate, however, is the process that led to the resignation of Mr Dalli. Notably, the Commission can only succeed if individual Commissioners operate impartially and independently, without influence from external sources, whether national governments or private individuals and without engaging privately with stakeholders to achieve financial benefits. This is the only way for the Commission to gain confidence from other institutions as well as Member States and citizens.

The Commissioners must meet the highest standards not just on external matters, but on their conduct inside the Commission.  They should perform their duties without division or external influence due to their high ranking and experience in the political arena.  In particular, as already explained above, Article 245(1) TFEU requires Commissioners to be free from any external influence. This point is vital if the Commission is to stay independent of Member States or individuals. But let’s assume for a while that there was enough evidence that Mr Dalli obtained pecuniary advantages from the Swedish tobacco maker. Assume further that the OLAF report concluded that the Commissioner needs to be held accountable for infringing his duty to behave with integrity pursuant to Article 245 TFEU. Is the procedure that forced him to resign acceptable and does it respect the rule of law? Or does it confirm an exercise of abusive behaviour by the President? Forcing an individual Commissioner to resign without allowing him to consult a lawyer and without given the opportunity to see the OLAF report constitutes a manifest violation of his basic right to respond to the evidence against him. Any employment lawyer will agree that this behaviour is a classic case of constructive dismissal. Surely this is not something that can be justified, particularly if this comes from the President of the Commission, an institution supposedly entrusted with the duty to guard and ensure that the rule of law is duly respected.  

Conclusion

Unfortunately, the General Court did not clarify the system of accountability for the Commissioners’ actions. The Court rather simply decided to dismiss the action as inadmissible. Taking into account the OLAF report and also the factual background of the previously decided Cresson case one can realise that a lot of irregularities can take place within the Commission and there is a deficit of any meaningful notion of accountability of the Commission. The General Court has made a wrong decision in refraining to clarify what obligations are mandatory for EU Commissioners as set within the Treaty framework. Additionally, and most importantly, the judgment fails to set the boundaries of the prerogative powers of the Commission’s President to sack the members of his cabinet. Whether or not Commissioners can be held accountable for their decisions has been completely ignored in Dalli.

 

Barnard & Peers: chapter 3

Only Nixon could go to China: Could Juncker be a reformist Commission President?

 

Steve Peers

Just as all observers of British politics know that ‘a week is a long time in politics’, their American counterparts know that ‘only Nixon could go to China’. The basic idea behind the latter catchphrase is that only a politician with a firmly established reputation could convince his or her supporters to back a significant change of course. In Nixon’s case, only a firm anti-Communist could convince American conservatives that a rapprochement with Communist China was a good idea.  

Could this principle be relevant to the European Union? The most recent elections for the European Parliament (EP) resulted in an increased vote for anti-EU parties in a number of Member States. As a result, it has been argued by David Cameron and others that Jean-Claude Juncker, who is the preferred candidate to be the next President of the European Commission of the political party which won the most seats in the EP (the ‘European People’s Party’ or EPP), should not be the next President, because he is not reformist enough as he is too much of an ‘old hand’ in EU politics. But it is arguable that in fact, a policy of EU reform could only be carried out by a candidate with a good understanding of how the existing system works, and how to use it.

Secondly, it has been argued in recent days that the very idea of selecting a Commission President based on the nomination of the party which wins the largest number of seats in the EP is wrong in principle – or conversely that it is undemocratic and unprincipled. But the better view is that neither of these views is correct. Rather, the Treaty drafters created a system of dual legitimacy for the selection of the President, albeit one which provides for a greater role for the European Parliament than before.

These two arguments are developed below (in reverse order). But first, a little background for those new to the issue (given that the press has ignored it until recently).

Background

Traditionally, the Commission President was chosen by the heads of State and government of EU Member States unanimously. Over time, the national veto was removed and so the European Council (which consists of those heads of state and government) votes by a qualified majority on his issue. Also over time, the European Parliament was given the power to approve the nominee for President, although it has never rejected a nominee in practice.

The Treaty of Lisbon kept this underlying procedure intact, but refers to it differently. Now Article 17 TEU states that the Parliament ‘elects’ the Commission President. But the person which the EP votes is still nominated by the European Council, although the Treaty now also states that the latter body shall ‘take into account’ the results of the EP elections.

Following the entry into force of the Treaty of Lisbon, the majority of EU political parties (the EPP, the Socialists, the Greens, the Left party and the Liberals) decided to nominate their preferred candidate for Commission President, on the assumption that the person nominated by the largest party ought to become the President of the Commission following the elections. The persons nominated by the parties have become known as ‘Spitzenkandidaten’. It was never clear, however, whether the European Council would accept this process.

The procedure for selecting the Commission President

In a previous post on this blog, written before the elections, I argued that despite some cogent arguments against the idea of the Spitzenkandidaten, in principle the idea should be supported as a move towards greater democratisation of the EU.

Let’s revisit the argument in light of the post-election furore, in which there are competing contentions (as mentioned above) that only a predominant role for the European Council, or for the European Parliament, would be democratic. Neither of these views is convincing.

First of all, the legal arguments. The Treaty clearly gives a role to the European Council, not only the European Parliament, as regards the process leading to the election of a Commission President. If the drafters of the Treaty of Lisbon had really wanted to remove the role of the European Council entirely, they could and would have done so. But they retained the role of that body in selecting the nominee for President.

On the other hand, the Treaty drafters not only retained the role of the European Parliament, but enhanced it, adding references to its role ‘electing’ the President and the requirement for the European Council to take the election results into account. If the Treaty drafters had not wanted to enhance the role of the EP, they would not have made these amendments. The best view is therefore that, as before, both institutions play a significant role in the appointment of the Commission President – but the EP, rather than the European Council, plays the lead role in that process.

Secondly, the broader political arguments. Asserting that either the EP or the European Council should be regarded as the sole or main source of democracy in the EU is risible. They both have democratic legitimacy – as expressly recognised by Article 10(2) TEU, which refers equally to the direct representation of citizens in the European Parliament and their indirect representation, via national parliaments and governments, in the European Council (and the Council, made up of national ministers).

This dual legitimacy is reflected throughout the EU legal order, in the form of the ordinary legislative procedure, the annual budget process, the European Parliament’s power of consent over a number of Council acts (for instance, most treaties to be concluded by the Council), and the power of either the EP or the Council to control delegated acts to be adopted by the Commission. In some cases (for instance, tax legislation), the Council has greater power than the EP, but sometimes the reverse is true (for instance, only the EP can force the resignation of the entire Commission; this is clearly consistent with an increasing role for the EP in appointing it). It logically follows that only a Commission President who commands broad support from both the European Parliament and the Member States can do the job effectively.

But what does all this mean in practice? It means that the increased role of the EP in the election of the Commission President ought to be respected. So the European Council ought to consider, first and foremost, the name of whichever of the Spitzenkandidaten could possibly command a majority of Members of the European Parliament (MEPs). The first such name is Juncker, given that his party got the biggest number of seats and a large majority of EP parties have already supported the idea that he try to obtain a majority in the EP first.

However, as the EU system currently stands, the European Council should not be expected to approve this name without further ado, but should retain the right to ask the candidate to make specific commitments in order to satisfy the broadest possible majority of Member States that he or she should be appointed.

In particular, in light of the increased vote for anti-European parties, it is more than reasonable to expect the next Commission President to commit himself or herself to significant reform of the EU. The question is therefore whether Juncker, described by some as a federalist supporting greater European integration, is the right person to carry out that reform.

Can Juncker be a reformist?

The starting place for assessing whether Juncker can be a ‘reformist’ Commission President is his own list of five priorities. These include a commitment to discuss a possible renegotiation of UK membership of the EU, referring expressly to David Cameron’s own list of demands (which were discussed in an earlier blog post). At the same time, another Juncker priority is a bigger role for the EU, in relation to monetary union – but as regards the Eurozone Member States only, specifically exempting the UK.

Another Juncker priority is the completion of negotiations (already underway) for a free trade deal between the EU and the United States. This prospect is increasingly controversial (at least in the EU), although it is hard to judge its merits at present without having any idea what the final deal will consist of. However, the idea of such a deal appears to have broad support across the UK’s political spectrum. If it is agreed, it will confound the argument of those who say that the UK needs to leave the EU in order to increase its trade with non-EU countries. But if it is not agreed, then those arguments will be confirmed, at least in part (the EU has negotiated, and is negotiating, free trade deals with many other countries).

Admittedly, Juncker’s list of priorities places qualifications on his support for an EU/US free trade deal, in particular as regards food safety and data protection laws. But reservations like these are shared in a number of national capitals and parliaments and among a number of MEPs. They must be addressed if any trade agreement is to have any chance of being ratified. A more evangelical and uncritical supporter of an EU/US trade agreement would perhaps not be able to persuade as many governments or parliamentarians to support the final deal. In particular, the European Parliament might now contain more MEPs who oppose a potential deal, but Juncker, as the first ever Spitzenkandidate to take office, might be best placed to convince them to support it.

Juncker’s other two priorities concern growth-related policies such as the digital single market, and an energy union for the EU. Both these ideas have broad support across the EU and are not specifically or necessarily federalist. Indeed, the development of the EU’s single market has always been at the forefront of the reasons for the Conservative party’s support of the EU.

So Juncker’s priorities are not as federalist as has been suggested, and already include some elements of reform. Certainly, more reform is needed: the next Commission should ensure that the EU is more transparent, devolves more power to Member States where there is a good case for this, and addresses other public concerns.

Therefore, the European Council should request specific commitments from Juncker on these sorts of issues. But it should not be forgotten that the Commission President will not be the only beast in the EU’s political jungle. Any proposed legislation will still have to be agreed in the EP and the Council. More broadly, Member States set the broad political direction of the EU when their leaders meet in the European Council, and have full power to appoint the President of that body (Herman van Rompuy cannot be reappointed to that job after 1 November 2014).

And political innovations are always possible. For instance, the European Council could set up a high-level body, including (for instance) Tony Blair and Nicolas Sarkozy, to report back in the near future with a list of specific recommendations on reform of the EU. Juncker could be asked to commit to a strong role for a (British?) Vice-President of the Commission in charge of the reform process. More specifically, it might be useful for the European Council and the EP to agree a set of common rules, in the form of a joint statement or inter-institutional agreement, as regards their respective roles in the process for selecting the Commission President.

For an EU reform policy to work, a Commission President with stronger links to the European Parliament might have a better chance of seeing policies supported in that institution, and an ‘old hand’ at EU politics will know more about how to get things done in practice than a newcomer. Juncker is the only candidate who has both strong links to the EP and intergovernmental experience. The current controversy over his potential appointment could be resolved if his critics could acknowledge that indeed, only Nixon could have gone to China.

 

Barnard & Peers: chapter 3

Candidates for Commission President: comparing and assessing their immigration policy proposals

Steve Peers

Football fans have long enjoyed playing the game of Fantasy Football, in which they imagine what might happen if a particular grouping of players actually formed a team. Equally, for the time being, aficionados of European Union politics can play Fantasy Commission President, in which they imagine what might happen if any of the particular candidates for Commission President nominated by the European political party groupings got the job.

Of course, as discussed earlier on this blog, it remains to be seen whether, after the elections finish on May 25^th, the European Council would be willing to nominate the candidate of the political party which gets the most seats for President, and what the European Parliament (which has the power to ‘elect’ the President, based on the European Council’s nomination) would do if it doesn’t. For the time being, though, this attempt at a new process for selecting the Commission President has resulted in the candidates announcing some of their policies, which allows us to compare those policies.

To that end, this post first summarises the candidates’ positions on immigration policy, and then compares and assesses those policies. It should be recalled that some European parties have not named a candidate for Commission President (the ECR group including the British Conservatives, and the EFD group including UKIP), so therefore for those parties there are no candidate’s policies to assess here.

Martin Schultz

Yesterday, Martin Schultz, the candidate of the Party of European Socialists, announced his immigration policy. The main points of the policy are: saving the lives of migrants; developing a common policy; positive migration management; applying the principle of loyalty and solidarity; developing a rule-based system; and setting out a long-term vision.

In particular, he believes that countries like Malta, as well as some third countries, bear a disproportionate share of the burden as regards migration towards the European Union, and so ‘a European response is needed’. This involves: coordinating national actions; communication with North African partners about surveillance; exempting ship-masters from prosecution; respect for fundamental rights and non-refoulement; and a strong Commission position as regards evaluation and weaknesses at external borders.

As regards asylum, recognition rates differ widely, and the Dublin system for allocation of asylum-seekers is confusing courts. To address this, he wants to increase resettlement (ie bringing refugees directly from states near their country of origin), take the ‘relocation’ of the persons involved within the EU ‘to the next level’, test the joint processing of applications, increase the integration of refugees and improve the capacity of the European Asylum Support Office, to ‘monitor the quality and consistency of asylum decisions’. He will also keep the idea of temporary protection, a special system to deal with a mass influx of persons fleeing persecution, on the table. The EU should develop relationships with third countries focussed upon encouraging reforms, so as to reduce the desire to migrate in the first place.

As for migration, he wants a well-organised system, mentioning in particular the importance of skills, migrant integration, and attracting university students and researchers.  He also wants to use visa policy to encourage tourism.

Jean-Claude Juncker

The candidate nominated by the European People’s Party has set out a five-pointplan on migration. First, he wants to implement the Common European Asylum System legislation without delay, in order to reduce the wide gap in recognition rates between Member States. Second, he wants to increase the powers of the European Asylum Support Office, as regards risk assessments and tailored training for national administrations. Third, he wants the EU to help address the root causes of migration, in the countries of origin. Fourth, to reduce irregular migration and address demographic problems, he wants to address legal migration, in particular by re-examining the ‘Blue Card’ rules on highly-skilled migration. Finally, he wants to secure the EU’s borders, by boosting Frontex (the EU’s border agency) and applying EU rules on punishing traffickers of persons.

Alexis Tsipras

The candidate of the European Left party set out some immigration policy positions in his declaration of acceptance of his candidacy. He also wants to support countries of origin, to rescue migrants on the open sea, to create reception centres, and to rethink the EU framework, in particular changing the Dublin rules on allocation of responsibility for asylum-seekers.

Ska Keller and Jose Bove

There is no immigration policy position paper as such for the Green Party candidates for Commission President (or at least, none that can easily be found on the Internet). However, an indication of their policy can be found in Ska Keller’s YouTube video. She also criticises the EU’s Dublin system because of its impact on human rights and burden-sharing for small countries, and calls for fairer asylum procedures, the issue of humanitarian visas to would-be refugees and legal access for economic migrants.

Guy Verhofstadt

Finally, the Liberal party candidate only briefly mentions migration policy in his Plan for Europe (note: this is a difficult document to download, and it mostly consists of diagrams). The single paragraph on this issue mentions the importance of burden-sharing and managing legal migration.

Comparing the policies

Interestingly, the Socialist and EPP positions have much in common. Both support cooperation with countries of origin, suggest a plan for legal migration, and wish to reduce the gaps in refugee recognition rates by strengthening the European Asylum Support Office. But there are nuances between them: Juncker wants the office to be more involved in risk assessments and tailored training, while Schultz wants it to monitor Member States’ implementation of EU law. However, Juncker does refer to the importance of implementation of EU asylum law generally. Schultz has further policies relating to sharing asylum burdens, as regards resettlement, relocation, temporary protection and joint processing. It might be deduced that neither candidate is calling for amending the Dublin rules on allocation of responsibility for asylum-seekers.

As for legal migration, Juncker is more specific, calling for review of the specific rules on admission of highly-skilled workers, while Schultz sets out a longer list of objectives but without offering as much detail.

Juncker lays greater stress on controlling external borders, in particular as regards strengthening Frontex and prosecuting traffickers, while Schultz stresses exempting ship captains from prosecution, Commission supervision and respect for fundamental rights.

The Green and European Left candidates’ positions have in common a demand for an overhaul of the EU’s Dublin system. For its part, the Green candidate specifically mentions the issue of humanitarian visas as a possible solution to the problem of safe access to the European Union, and (like Martin Schultz) suggests that there should be more avenues for legal migration, without setting out further details.

Unfortunately, the Verhofstadt policy on immigration is too brief to compare it meaningfully with the others, or to assess it.

Assessing the policies

There is a clear divide between the two bigger parties’ candidates’ implicit positions on the Dublin system of allocating asylum-seekers, and the explicit attack on that system by the Green and Left candidates. While there is certainly much to be said for scrapping the Dublin system entirely or profoundly reforming it, this solution is probably not politically realistic as there is a significant majority of Member States against it, and there would probably not be a majority in favour in the European Parliament either.

So if we are stuck with the Dublin system, what can be done to alleviate the problems arising from its operation? As between the two big parties’ candidates, Juncker’s specific suggestions for a bigger role for the European Asylum Support Office would not do much to alleviate those problems. However, his greater focus on ensuring timely and correct implementation of the second-phase Common European Asylum System might well have that effect – if, by that, he means a new Commission policy devoted to bringing infringement actions more aggressively against Member States.

Schultz’s policies would alleviate the problems with the system via the indirect route of greater relocation, joint processing and resettlement. However, he does not offer many details of such policies, and notably he is only promising to ‘test’ joint processing. As regards relocation of refugees between Member States, it is necessary to have a legal framework for transfer of protection, but he does not mention this expressly. But on the whole, if these policies are pursued vigorously, they might alleviate the effect of the system somewhat.

So would the suggestion to make greater use of the issue of humanitarian visas, as suggested by Ska Keller. She is right to say that this is an existing possibility; in fact, this possibility was discussed previously on this blog.  

Of course, the various suggestions to alleviate the effect of the Dublin system could be combined with each other. If so, the total impact would surely be greater than if only one of the candidates’ suggestions were adopted.

The bigger parties’ candidates’ willingness to engage with third countries is fine if it concerns solely issues such as improvements in their economy and levels of human rights protection. It would be more problematic if it involved third States as remote controllers of EU borders, as long as many of the States in question have questionable human rights records.

As for legal migration, there are already proposals under discussion to amend the EU rules on admission of students and researchers, and to amend EU visa policy to encourage more tourists. So in that respect Schultz is simply supporting legislation that has already been proposed. Juncker’s idea of reforming EU rules to admit more highly-skilled migrants makes sense, but that is likely to have only a modest impact in reducing the numbers who might be inclined to come to the EU by irregular (‘illegal’) means.

Finally, as regards irregular migration, it is striking that Juncker lays more stress on increasing control, Schultz lays more stress on Commission evaluation and the other two candidates lay more stress on saving lives. While Schultz also mentions the importance of human rights in this context, he does not link that with the Commission’s evaluation role. On this point, while there are many good examples of Member States saving hundreds of lives at sea, there are also some bad examples of push-backs or other appalling treatment of migrants at borders. The Commission’s failure to respond to the latter cases has likely given Member States the idea that they can act with impunity.

Conclusions

This is the first time that the policy platforms of individual candidates for Commission President could be compared and assessed before citizens cast a vote for the European Parliament. In 2009, Barroso only produced a policy platform after he was nominated for the job by the European Council – and even that was a development compared to previous practice. The possibility to produce such an analysis, and for the candidates to debate, campaign on and answer public questions regarding immigration (and other) policies, shows the capacity of this new system of advance nominations to improve the democratic functioning of the European Union.

It is, of course, doubtful whether much of this debate has resonated with the general public. And as noted at the outset, it remains to be seen whether the European Council will accept the result of the process at the end of the day. But even if it does not (and the European Parliament accedes to a ‘backroom deal’ on appointment of the Commission President), the process of developing and debating policy might still be relevant when it comes to the Parliament obtaining policy commitments from the next Commission and the next Home Affairs Commissioner on these important issues.

Barnard & Peers: chapter 3, chapter 26

Democracy and its discontents: Should the results of the European Parliament elections determine the next President of the European Commission?

Steve Peers

It is highly unlikely that the next President of the European Commission will be decided by the Court of Justice of the European Union (CJEU).  Law sets the framework in which elections take place, but usually does not directly impact upon the outcome - although there are important exceptional cases to the contrary, such as the American election of 2000.

The election of the Commission President in 2014 is also an exceptional case, at  least to the extent that the rules have changed and their interpretation is contested. Previously the President was appointed by the European Council, after approval of its preferred nominee by the European Parliament. The new rules, which were introduced by the Treaty of Lisbon and are now being applied for the first time, now specify that the President is 'elected' by the European Parliament, on the basis of a nomination by the European Council, 'taking account of' the results of the election to the European Parliament.

At first glance, the rules have not really changed, given that the European Council anyway has assumed since 1999 that the Commission President had to come from the same political background as the largest party in the European Parliament. However, the majority of European political parties take the view that the Treaty amendments mean that they should nominate their preferred candidate for the job of Commission President before the elections, and that the candidate preferred by the party winning the most seats should be the next Commission President.

They take this view not only because of the change in the rules, but also because of the more fundamental political consideration that enhancing the link between the election to the Parliament and the Commission President selection would enhance the democratic legitimacy of the EU. Voters would be selecting the EU executive in the same way that the votes in national parliamentary elections select the executive in Member States with parliamentary systems.

However, this interpretation is not uncontested. The ECR party (technically the AECR party, in the election), which includes the British Conservatives, will not name a candidate, since it objects in principle to the link between elections to the European Parliament and the selection of the Commission President, and is running wholly national campaigns instead. The EFD party, which includes the UK Independence Party, will not name a candidate either. Moreover, Angela Merkel, the German Chancellor, does not accept any automatic link between the. EP elections and the nomination of the Commission President. Finally, the UK Labour party doesn't support the candidate chosen by the Party of European Socialists as its nominee for Commission President, although it nevertheless agrees in principle to the idea of the parties nominating such candidates.

The ECR party objects to the idea of the European Parliament elections deciding the Commission President on grounds of democraticy legitimacy, because it believes that there is no public demand for the move and that the principal method of legitimacy of EU policies should be via the mans of national governments. A detailed critique of the idea, by Heather Grabbe and Stephan Lehne for the Centre for European Reform, also objects to the proposal on a number of grounds.

Post-election scenarios

It's always risky to guess the results of a political  process, but it's necessary in this case because the idea of a 'partisan' Commission President can't be judged without making certain assumptions about what will happen at the time of the next appointment. The Grabbe/Lehner paper suggests three scenarios: (a) the EP wins the argument and the largest party's candidate is proposed by the European Council without demur; (b) a deadlock between the European Parliament and European Council results over the appointment; and (c) a backroom deal is done. They were writing in October 2013, when (c) seemed more probable; in the meantime, the European People's Party looks less likely (as they had assumed) to win the largest number of seats, and is going ahead with its plan to nominate a candidate.

However, there could still be a messy deadlock. Whichever party wins the most seats in the European Parliament in the May elections will not hold a majority of the seats, due to the application of proportional representation voting as required by the EU Treaties. So for it to vote down the preferred nominee of the European Council, it will need the support of some other parties. Equally it will need the support of some other parties for its preferred candidate for President to be elected - assuming that the European Council puts that name forward in the first place. If the European Council fails to put that name forward, there could indeed be a deadlock.

Having said that, it should be recalled that the European Parliament has always sought to enhance its role in the appointment of the Commission. It began to hold hearings for nominees to the Commission even before it gained a decisive role in its appointment. And when the last two Commissions were appointed, it found a way to reject individual nominees, even though the Treaties don't provide for this. It might therefore be expected that if it comes to it, a majority of MEPs would veto any candidate for Commission President who is not the nominee of the largest party, and that the European Council will recognise reality accordingly. In effect, when it comes to appointment of the Commission President, the European Council would become the equivalent of a constitutional monarch like Queen Elizabeth II.

Is the 'election' of the Commission President via the European Parliament elections a good idea?

Just because it seems to be increasingly likely to happen, does not necessarily mean that it is a good idea. Let's look first of all at one set of arguments advanced by Grabbe/Lehne, concerning its potential effect on the effectiveness of the Commission. First of all, they argue that a 'partisan' Commission President could not do his or her job effectively, given the number of Commission tasks which require objective assessment, namely economic governance, state aids, competition, human rights and infringement actions. Secondly, they argue that a President elected via the EP elections might not be a leading political figure, and would be less able to work closely with national governments. Thirdly, he or she would be beholden to the EP, and therefore his or her initiatives would be blocked by the Council, resulting in the legislative gridlock familiar to Americans. Fourthly, given that the other Commissioners are chosen by the Member States, it is possible that the President comes from one party and the majority of Commissioners will come from the opposing political background.

The second set of arguments concern the legitimacy and democratic credentials of the notion. Here the Grabbe/Lehne argument overlaps with the ECR's explanation of its position. Both argue that the EP is remote from its constituents, and that enhancing the link with the selection of the Commission President will not change this, given that the candidates will not have wide recognition.

These are all valid arguments in principle, so let's examine them one by one. First of all, it should not be forgotten that many of the Commission's more technical tasks have been transferred to EU agencies, and that its main task remains the proposal of legislation. There are obviously political choices to be made about which legislation is proposed by the Commission, and about the content of Commission measures implementing it. State aid and competition decisions are anyway subject to objective rules and can be challenged in the courts, and the Commission's infringement actions have to be made out in court. It would be a good idea, if the Commission President were 'partisan', to establish mechanisms to ensure that the less political aspects of its decision-making are separate from its political choices. But this is not impossible: see, for instance, the separation of the European Central Bank's functions as regards (politically accountable) banking supervision from its role as an independent central bank. Anyway, the Grabbe/Lehner argument forgets that since 1999, the Commission President has already been chosen from the party which won the most seats in the EP - without any sign of contamination of the Commission's more technical tasks.

Secondly, while it seems likely that the next Commission President will not be a former Prime Minister (unlike the last three Presidents). However, this is not a guarantee of effectiveness: the most effective Presidents (Hallstein and Delors) had not been Prime Ministers, whle the least effective President (Santer) had been. This line of argument assumes that neither the Member States nor the Commission President will make any effort to work effectively with the other, but this seems unlikely. The history of the EU shows a continuing attempt to reach a broad consensus between institutions. Similarly, as regards the third argument, any Commission President is bound to know that his or her initiatives have to obtain the support of a least a qualified majority in the Council.

The fourth argument (the partisan mix of the Commission) is perhaps the strongest point. To draw an analogy, it is difficult enough for the British Conservative party to accept that it has to govern with a minority of Liberal Democrats in the cabinet. So how could a government work if David Cameron were Prime Minister, with a majority of cabinet members from the Labour party?

The answer is that the EU institutions also seek broad consensus within them. In fact, due to the different makeup of the different governments of the Member States, the Commissioners have always had a broad mix of political backgrounds. Also, the Grabbe/Lehner thesis overlooks the Treaty provisions which seek to reinforce the influence of the Commission President: the requirement of all Commissioners to work under his guidance and her ability to sack individual Commissioners. The added legitimacy of indirect election of the President would only reinforce this. Plus, as noted above, the Commission President will need the support of several political parties to be elected anyway. Finally, a more radical answer to this critique is that the EP should go further, expecting the political parties to nominate an entire team of Commissioners which would constitute the next Commission. So far, of course, this step has not been taken.

As for the argument about political legitimacy, the poll which the ECR commissioned to justify its decision not to run a candidate was very interesting. While large numbers of voters were critical of the EU's legitimacy, and were not familiar with the names of the candidates for Commission President, the bigger percentage of respondents agreed that they were 'happy' with the idea of the vote for the EP elections determining who would become Commission President, because this would make the EU more democratic. This was particularly pronounced in Poland, where the poll of Poles (I couldn't resist) indicated that 50% supported the idea, while only 19% were opposed. The idea was also supported in France, Italy and Spain, but opposed in Germany and the UK - which makes the British Conservative position (and perhaps also the UK Labour Party's contortions) understandable.  In any event, the poll suggests that many of those who think the EU lacks legitimacy would be 'happy' with the idea of enhancing that legitimacy by means of the indirect election of the Commission President. And how many people had heard of Barroso, in February 2004? Or Obama, in January 2008?

This is ultimately the decisive argument in favour of indirect election - the need to attempt to forge a greater democratic link between EU citizens and the Union. The idea certainly has its flaws, but for the reasons set out above, the existing EU institutional system can adjust to accommodate it. Those flaws are outweighed by the advantages of seizing the opportunity to take a significant step towards democratising the EU, and giving the voters an opportunity, however indirect, to (in Weiler's terms) 'throw the rascals out'. Nor does it mean that the EU necessarily becomes more centralised. In my view, the debate on the future of the EU could only have benefited from (for instance) John Major setting out the ECR's case across Europe for a less centralised, less regulated EU focussing on free trade.

Barnard & Peers: chapter 3