(Excerpt from the forthcoming Editorial of EJIL 25:2)
Far beyond the question of whether or not Council should feel obligated, or should even if not obligated, to select as President of the Commission the Lead Candidate of the largest party in the European Parliament, is a far more profound issue: should the President of the Commission be ‘Political but not Partisan’ (the Barroso thesis) or should voter preference in choosing not only this or that President but this or that party (with an ideological line) be translated into the policies espoused by the President of the Commission and indeed the Commission itself.
Strange as it may seem, it appears that this issue was not addressed with real seriousness even within Parliament itself and has not been a central part of the debate about the selection of the next President even on the eve of the Summit. David Cameron has (for the most part) based his objection on the specific political convictions (as he sees them) of Juncker as regards the future of the Union and not to the potential sea change which the Lead Candidate exercise potentially ushers.
But first, is Council really obligated to follow the election results in this manner?
I think the argument based on Article 17 TEU that the European Council is obligated to follow the Parliamentary choice is overstated both as a matter of law and as a matter of politics.
Article 17 allows the Parliament to block all proposals by the Council but not to impose its candidate. It allows, likewise, the Council to propose but not to impose. In effect it recognizes that the European Council and the European Parliament represent, as is common in many federal states, two different forms of democratic legitimation and creates a design which requires the consent of both Institutions in the choice of the President. Either Institution has the legal power to block the process, but not to impose its choice. It is not a flawless formulation. One could imagine a composition of Parliament in which no candidate proposed by the Council receives the necessary majority. There is no express ‘fall back position’. But on the whole one can see a certain political wisdom in the procedure of Article 17: the President of the Commission needs to enjoy legitimation and authority deriving from both ‘houses of democracy’ which make up the Union.
In exercising its role of submitting a name to the Parliament, the European Council must take into account the results of the elections. ‘[M]ust take into account’ cannot plausibly be interpreted as ‘must follow.’ It is clear that by speaking of consultations, and providing for majority voting, the Council is meant to be a deliberative body and not a mere rubber stamp. Taking into account is a soft term. It could, for example, be credibly claimed that simply by nominating someone from the winning party due account has been taken of the elections.
There is, thus, certainly, no legal duty on the European Council to follow the choice of Parliament – indeed, to suggest such would be to run against, what is in my view, the letter and spirit of the law. Neither Institution is meant to be a rubber stamp to the other.
If there is, thus, an imperative of the Council to accept the choice of Parliament it must be a political imperative rather than a legal one. But here, too, the issue is not straightforward.
I think the argument that in the current circumstance of European politics, the Heads of State and Government speak with no less democratic legitimacy than the European Parliament is not specious. Given that the Leading Candidate had an outright victory in only 12 of the Member States and in two others shared the podium with his rival adds poignancy to this point.
I think, equally, that it is a stretch to claim that other than in a highly formal sense, the European peoples have really chosen any one of the five lead candidates as their choice for the Presidency of the Commission. The polls we have at the time these observations are being written are sketchy, but I think the common observation that in most jurisdictions the elections remained ‘national’ and that few electors were casting their vote with a view to who will emerge as President of the Commission must hold a lot of truth. This compromises the ability in a political sense for this or that candidate to say with authority ‘I was elected by the Peoples of Europe.’
Finally, I think that there will be many who might think that right now Europe needs a different profile of person for the job.
I do not necessarily endorse any of the above arguments, but they are not irrational or unprincipled or specious.
There is, thus, in my view not only no legal imperative but the reality of the electoral results – a clear victory in less than half the Member States, a low turnout in all but the ones where voting is obligatory and a sense that the electors had not really turned their mind to the Presidential issue all suggest that no compelling political imperative is dictated by these results.
So what is the European Council to do? I think that the principled and correct approach is as follows. The European Council has the constitutional right and the duty to consult, take into account the results of the elections and propose a candidate that enjoys the support of at least a majority of Council Members. The selection of the President of the Commission should be the result of the voice of the peoples speaking through their two channels as provided by the Treaty. It is a wise choice.
Having said that, I think that in exercising its political discretion, it would be the wisest and most prudential choice (understanding prudence in its deepest meaning) for the Council to follow the outcome of the elections and propose the winning candidate as agreed by Parliament. Not as is argued stridently these days because to do otherwise would be to thwart the will of the people. That is a weak case. But because on the one hand to do otherwise would inflict huge damage on the European Parliament – something clearly not in the interest of Europe, particularly not at this moment. Parliament is a body with important powers but weak political authority. This is not good for democracy.
But even more importantly, to follow the Spitzkandidaten exercise logic would be a most important investment in the f u t u r e of European democracy. Establishing this precedent, will have the potential of transforming the next elections. It will help galvanize moves towards truer pan European parties; it will create a new dynamic for the choice of future candidates, it will above all help Parliament match its formidable legislative powers with appropriate political authority since the lesson of this outcome will most likely have an important impact on voter behaviour in five years from now. It is wise to invest in the economic future and promise of Europe. It is likewise wise to invest in its democratic future and promise. And of course no one can deny the vast experience which Juncker will bring to the tasks ahead of Europe.
As regards the deeper question with which I opened, the choice is delicate and will not be sharp. As Barroso maintains, ‘political’ is good in the sense of the Commission not allowing itself further to descend into the role of super-secretariat of the other political Institutions. But ‘Partisan’? The whole exercise, in my view, would be nullified if there is no movement, even if subtle, even if cautious in that direction. At the heart of democracy there must be choice – not only as to whom should govern us, but as to how we should be governed. The lead candidate exercise if it is to succeed can not be perceived as a mere beauty contest. Part of the investment in the future thesis is that in moving to the next elections, the voters must be put in a position whereby their vote not only decides the ‘who’, but the programmatic political and ideological ‘how’ Europe is to be governed. And for that to happen, it must be seen even if cautiously and prudently that it makes a difference that the President is from, say, EPP rather than the Socialist family.
For a Commission and Europe habituated to a result based legitimacy the adjustment will not be easy and not without costs. But such it is with all fundamental change. Veritable democracy requires courage.