Is it different this time? The Commission’s 2015 work programme

 

Steve Peers

Today the new European Commission announced its first annual work programme. Quite apart from the usual restructuring and renaming of policies, it promises to take a different approach to prior Commissions. In particular, this Commission apparently plans to propose fewer new EU measures and to withdraw many more pending proposals than usual.

But is the Juncker Commission’s approach actually different from the approach of previous Commissions? The best way to test that is to compare today’s work programme to the first work programme of previous Commissions.

The incoming Barroso Commission of 2005 suggested 32 pages of proposals, with no reference to withdrawal of pending measures. In 2010, the incoming ‘Barroso II’ Commission listed 25 pages of proposals, although only five pages concerned proposals that the Commission was definitely planning to make in 2010. The other 20 pages listed those proposals which were planned for the rest of the five-year mandate, although in the end some of those proposals – like two Directives on labour migration – were tabled in 2010 after all. And the 2010 work programme listed 58 proposed measures which were going to be withdrawn, although in all but one case the withdrawals were due to obsolescence.

How does that compare to the 2015 work programme? First of all, the list of planned proposals is similar to that in 2010: four pages, 23 proposals, compared to five pages and 34 proposals five years ago. Admittedly, the 2010 list comprised only the Commission’s biggest priorities, while the 2015 list is supposedly exhaustive, according to press reports. So is the Commission really planning to propose less than one new measure per Commissioner next year?

Of course not. A close look at the fine print reveals that some of the 23 items on the list will actually comprise more than one proposal. For instance, the review of immigration policy mentions both smuggling of migrants and the ‘Blue Card’ Directive on highly-skilled migrants. It would be technically possible to table one legislative proposal addressing both issues – indeed, that would be unremarkable compared to how immigration legislation is drafted in many countries. However, the EU’s tradition is to propose and adopt different legal acts in such cases. Similarly, the plans concerning labour mobility, the internal market, energy and the digital single market will necessarily entail proposing more than one item of legislation. This is particularly obvious as regards the digital single market, where the work programme refers to a ‘package’ of laws.

Secondly, the list of withdrawn proposals for 2015 – already nicknamed the ‘kill list’ – is somewhat longer, totalling 80 items. Two-thirds of these are obsolete, but around 25 of them are withdrawn for more political reasons: either there is no reasonable prospect of agreement, or the Commission wants to redraft them itself in light of changed priorities.

The first reason for withdrawal is hardly unheard of; in most years, the Commission withdraws a couple of proposals which have met with implacable opposition in the European Parliament or (more often) the Council. The second reason for removal is very rare indeed. The Commission justifies it in light of the principle of ‘discontinuity’ – the practice, quite common (perhaps even ubiquitous) in democratic systems, of retiring all legislative proposals when a new legislature is elected.

To be frank, the Commission has rather botched its application of this principle. It’s usually known simply as the principle of legislative discontinuity, and entails the automatic withdrawal of all legislative proposals on the table when a parliamentary chamber is dissolved before an election. The Commission is applying the rule only partially, withdrawing only certain proposals that it disagrees with. In any event, the principle is firmly rooted in the electoral process that leads to a change of (at least some) parliamentarians.

This distinction isn’t simply pedantic, since it goes to the heart of the Commission’s legal and political legitimacy to withdraw these proposals. Legally speaking, the Treaties refer to the Commission’s powers to make and amend proposals, but say nothing about any power to withdraw them. Should that power not rest instead with the EU’s two legislative chambers, which have been respectively directly (the Parliament) and indirectly (the Council) elected? For many years, this has been a theoretical point, since the Commission’s assumption that it has untrammelled powers to withdraw its proposals has gone unchallenged. But this Thursday, a CJEU Advocate-General is due to give his view on whether the Commission indeed has an unlimited power to withdraw its proposals, in a case brought by the Council. (Remember that like any such opinion, it won’t be binding; it will be up to the judges of the CJEU to give a final ruling, sometime next year).

Politically speaking, the Commission could try to claim some legitimacy to withdraw these proposals if they had mentioned during Jean-Claude Juncker’s campaign for the Commission Presidency, either during the European Parliament elections or when he was asking for a majority of the Parliament (and a qualified majority in the European Council) to approve him. Alternatively, these withdrawals might be legitimate if the other Commissioners had stated their intention to withdraw them in their hearings before the European Parliament. But it can hardly be claimed that withdrawal of proposals on waste or air pollution were a central feature of Juncker’s, or the Commission’s, campaign to be appointed.

Some of today’s withdrawals are supposedly not permanent, because the Commission has announced its intention to propose replacement measures next year. But it’s not absolutely certain that the Commission will keep this promise. Others are contingent, because the Commission has given the legislators a deadline to discuss a possible deal, failing which it will withdraw its proposal. It’s an interesting strategy, which will empower the half of the legislature that is reluctant to consider these proposals (usually the Council), at the cost of the other half (usually the European Parliament).

In the case of the maternity leave Directive, it raises the interesting question of how many feminists are also pragmatists. It’s politically impossible to obtain the lengthened maternity leave on full pay that a majority in the European Parliament desire: so should they settle for anything, as long as it’s an improvement on the status quo? Unlike an actual baby (cf the judgment of Solomon), it is possible to obtain only half of one’s legislative objectives – or probably significantly less than that in this case. This particular legislative proposal has been gestating now for six years; it might yet be born next year, but there’ll probably be a lot of shouting first.

 

Barnard & Peers: chapter 3

The new Commission: first thoughts on Justice and Home Affairs issues

Steve Peers

Today’s list of jobs for the next European Commission – and the accompanying major restructuring of the Commission – has major implications for every area of EU policy. But here are my initial thoughts about the impact upon Justice and Home Affairs (JHA) issues.

Of course, the next European Commission still has to be confirmed by the European Parliament (EP). The EP insisted on changes to the planned list of Commissioners in 2004 and 2009, so it might well do so again. But nevertheless, it’s an opportune moment to examine the new Commissioners who will have responsibility for JHA issues – as well as the revised structure of the Commission as it affects such issues.

Migration and Home Affairs

As before, the area of immigration and home affairs (ie policing and internal security) is assigned to a separate Commissioner. Therefore the suggestion in some quarters that there’s a new ‘Commissioner for immigration’ is just not true. There is also still a separate Directorate-General (DG) dealing with these issues. DG Home picks up responsibility for anti-drug policy and security research, and does not lose any policy responsibilities.

The new Commissioner is Dimitris Avramopolous. He has no background in this field, and his current job is Greek defence minister. But that’s misleading: he started out his career as a diplomat, became a popular mayor of Athens and was also an MP (for the conservative New Democracy party), holding ministerial posts for tourism, health and foreign affairs before becoming defence minister. So he has a broad diplomatic and political background.

The most striking thing about his appointment is his nationality. Greece is, of course, at the centre of the debate about the effectiveness of the EU’s ‘Dublin’ policy, which assigns responsibility for asylum applications to (in effect, in most cases) the first country which they enter. That is frequently Greece. So partly as a result of the Dublin rules, the Greek asylum system has broken down in recent years, and both the CJEU and the European Court of Human Rights have ruled that sending asylum-seekers to Greece would violate their fundamental rights.

Since Avramopolous never previously held a job relating to immigration policy, he can’t be blamed directly for these problems. Also, it must be recalled that because Commissioners are independent of the government which appointed them (although Commissioners have been known to forget this), it will not be his job to defend the Greek government, but rather to articulate and enforce EU policy in this area. Hopefully it will be an advantage, not a detriment, to have an immigration Commissioner from a Mediterranean state, given the crucial role which sea crossings play in EU immigration policy.

In light of the external impact of EU immigration policy, it also useful that the new Commissioner has diplomatic experience. In particular, it’s potentially significant that he is credited as one of the authors of the recent Greek-Turkish rapprochement. Migrants who come from Turkey and refugees who travel via Turkey are a significant part of those who come to the EU, and the EU/Turkey readmission agreement will come into force on 1 October. One of his chief tasks will be to ensure EU visa liberalisation for Turkey, as a quid pro quo for the readmission agreement and other changes in Turkish policy. On paper at least, he is the right man for this job.

Justice

Until the last moment, the next Justice Commissioner was going to be the outgoing Home Affairs Commissioner, Cecilia Malmstrom. Instead, Malmstrom has been thrown into the maelstrom (I couldn’t resist) of EU trade policy, being responsible in particular for negotiating the EU/USA free trade agreement (TTIP).

The new Justice Commissioner will instead be Vera Jourova, the Czech minister for regional development, who has a background in that field. Unlike Avramopolous or Malmstrom, there’s nothing in her history which suggests that Jourova is particularly well suited to this job. But there are plenty of historical examples of politicians who did a good job despite not having a background in a relevant field. Let's hope this proves to be another such case.  

In terms of structure, DG Justice first of all loses two roles: anti-drug policy (moved to DG Home, as noted already) and equality policy – apart from gender equality – moved to DG Employment and Inclusion.

The first of these changes makes some sense, since anti-drug policy is not exactly a Justice issue. But that policy is even less well-placed in DG Home, since that wrongly identifies anti-drug policy is primarily a law enforcement issue, rather than a health and social problem.

But the changes to the equality responsibilities make no sense at all. If those responsibilities have to be moved, it would be better to move them all, rather than all except gender equality. True, there’s a good argument for a woman to be in charge of gender quality – but the next Commissioner for employment will be a woman (Marianne Thyssen) as well.  

In any event, those responsibilities shouldn’t have been moved, since there is a better case for keeping equality issues either as part of the Justice DG or assigning them to the new Vice-President dealing with human rights (more on him in a moment). The problem is that the effect of the move might be to focus attention too much on discrimination in employment, whereas discrimination occurs in other fields too. Indeed, a proposal for a Directive to tackle discrimination in other fields has been under discussion for six years. Admittedly, DG Employment is now DG Employment and Inclusion; but that DG is always likely to retain a focus on employment issues.

DG Justice has also picked up some new responsibilities: most consumer affairs issues, as well as social responsibility (corporate governance). The first of these changes takes account of the de facto reality, as the outgoing Commissioner, Viviane Reding, already took a big role as regards consumer legislation.  The second change risks corporate social responsibility becoming detached from the rest of substantive company law. Again, it’s a role that could have been better suited to the Vice-President responsible for human rights.

Fundamental Rights

The new Vice President (VP) responsible for better regulation, inter-institutional relations, the rule of law and the Charter of Fundamental Rights is Frans Timmermans. He is the outgoing Dutch minister for foreign affairs. Like Avramopolous, he began his career as a diplomat, and then became a politician. He held ministerial posts in the Dutch government, including the minister for European affairs. Also, he was a member of the ‘Convention on the Future of Europe’ which drafted the ill-fated Constitutional Treaty, later approved in a decaffeinated form as the Treaty of Lisbon.

While Timmermans is meant to steer the work of the Commission generally on these issues, and particular the Commissioners for Justice and Home Affairs, he has no specific responsibilities, and no dedicated bureaucracy. So his post is one of President Juncker’s great innovations in the design of the Commission: creating five Vice-Presidents in charge of thematic issues, who don’t have specific tasks. (Two other Vice-Presidents – the High Representative for EU foreign policy and the VP in charge of budgets – do have specific tasks).

Time will tell whether this innovation is a brainwave or a foolish gimmick. The risk is that it replicates the problems of the US Vice-Presidency, which also comes with no specific tasks (besides waiting for the President to die). As one US Vice-President didn’t quite say, the job was ‘not worth a bucket of warm spit’. And now the Commission will have five such jobs.

Having said that, at least some of the new VPs might be able to make the job work. Much will depend on their personalities and the clout of the senior officials in their cabinet. Timmermans might be in a better position to make it work than others, being designated as the ‘First Vice President’ and the President’s ‘right-hand man’, and having fewer (and less high-profile) other Commissioners to supervise.

Certainly, it seems like a good idea to designate a Commissioner specifically responsible for human rights and the rule of law, given their overarching importance and application to all fields of EU law. The original plan (dropped at a late stage) was to give these responsibilities to the home affairs Commissioner, but this was a bad idea. It would have been awkward to mix up the responsibility for carrying out a specific policy with the role of ensuring that human rights are respected in all areas of EU law. Moreover, human rights are too important an issue to entrust to any of the (de facto) junior Commissioners.

Some wanted a Commissioner purely concerned with human rights, but we did not get that. What about Timmermans’ other two responsibilities? First of all, in principle the ‘better regulation’ task logically falls instead within the scope of the activities of the new VP for Jobs, Growth and Competitiveness. This task may well have been handed to Timmermans because of the Dutch government’s particular interest in this issue. Giving this task to him could have the positive result of reminding  everyone that some parts of Justice and Home Affairs law, just like EU economic law, is also a morass of overlapping and confusing legislation that ought to be cleaned up.

Finally, his most important task as the Commissioner for inter-institutional relations will be to try again to open up the EU, by amending its legislation on access to documents. Again, it might be helpful that he is Dutch, given that country’s strong tradition of transparency. But equally it might have been thought that a Swedish Commissioner would deal with that issue well – yet Mrs. Wallstrom produced a dreadful proposal back in 2008.

Her (presumed) intention to enlarge access to documents was frustrated by Commission officials who had exactly the opposite objective, resulting in a text which would have reduced access, not increased it (by redefining a ‘document’ narrowly, for instance). We will probably only have a good proposal on this issue if it’s drafted by someone who doesn’t work for the Commission. Just for the record, Mr. Vice President, I could draft that proposal for free.

Barnard & Peers: chapter 3, chapter 9, chapter 25, chapter 26

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