Who Chooses the President?

A quiet constitutional revolution has been taking place in the EU over the last few months, centred around one simple issue: how should the next President of the European Commission be chosen?
Much has been made about the European Parliament’s candidates to be José Manuel Barroso’s successor; however, this process is not foreseen by the Lisbon Treaty and it is unclear how this will play out in practice.

What the Lisbon Treaty says is this: that the European Council – composed of the 28 Heads of State and Government – will propose a candidate for Commission President to the European Parliament, “taking into account” the results of the European elections. The European Parliament will then vote to elect the candidate; if the candidate does not achieve a majority, then the European Council will, within a month, propose a new candidate and the process begins again.

In 2012, the European Parliament adopted a Resolution asking the European Political Groups to nominate candidates for the Commission Presidency. This would, according to Parliament, reinforce “the political legitimacy of both Parliament and the Commission by connecting their respective elections more directly to the choice of the voters”. The idea was supported by the Commission in a non-binding Recommendation adopted in March 2013, which said that this would encourage a Europe-wide debate and improve voter turnout. 

The main aim of the new approach is to respond to increasing criticism about the “democratic deficit” of the EU and notably that of the Commission. Despite increasing influence from Parliament, the selection of Commission President has always ultimately been conducted by Member States “behind closed doors”.

In practice, this has meant that past Commissioners have been appointed by the Council for a four year term, later extended to five years. The Maastricht Treaty in 1992 gave Parliament the right to be consulted on the nomination of Commission President. After the entry into force of the Amsterdam Treaty, this nomination – as well as the whole College of Commissioners – was submitted for approval to Parliament.

In effect, this gave Parliament a de facto veto on the Commission, enabling it to reject the entire College of Commissioners if the nomination of one or several candidates was not to the Parliament’s liking. This lead to individuals being replaced by new candidates, as was the case with the Italian nominee Rocco Buttiglione in 2004, for example.

Although the 2013 Commission Recommendation was not followed by any constitutional changes, five of the seven European Political Groups decided to nominate candidates for the Commission Presidency. This decision to nominate Candidates constitutes a historical precedent for the EU and for the European democracy, and raises questions about the evolution of the EU’s constitutional order.

The European Council vs the European Parliament

Parliament-backed candidates for Commission President represent a significant change to the status quo, and a direct challenge to the European Council. This is because if the European Parliament’s interpretation of the Treaty were to be accepted, the Council would lose discretion over the choice of Commission President.

Firstly, the choice of candidate would be restricted to only those candidates put forward by the European Parliament and would, (depending to how “taking into account the results of the elections” is interpreted), be further limited to the candidate put forward by the Political Group with the most seats.

A further impact would be that the European Council would have no control over the nationality of the candidate, which would in turn impact on Member State discretion with regards to the selection of other members of the Commission (who are selected on a strictly equal basis). For example, if the Parliament’s candidate was German and therefore had to be selected, then Germany would get no other Commission post.

This represents a significant shift of power away from Member States to the European Parliament and raises the immediate question of whether or not Member States would be willing to accept this, especially as a candidate system is not explicitly foreseen by the Treaty.

While the European Parliament’s actions have not been well received by some Member States, they might however be grudgingly accepted. The European Council may cede control over the selection of Commission President, content in the knowledge that the other members of the Commission will still be nominated by the Council of Ministers on the basis of the suggestions made by Member States.

Aside from making European Parliament elections far more significant, the new system is also interesting as it represents a step towards a parliamentary system, with the head of the EU executive being selected by Parliament. This in turn raises the question of whether the new system is a step towards federalisation.

There is also the issue of whether the new system will politicise the European Commission. According to Article 17(3) of the Lisbon Treaty, the Commission must be completely independent in carrying out its work and “should not seek to take instructions from any Government or other institution, body, office or entity”.

Nonetheless a power struggle between the Parliament and European Council is certainly not unthinkable. Both institutions can make similar claims to democratic legitimacy; so how far could a potential conflict go? Is a constitutional crisis on the horizon?

Addressing the European Democratic Deficit

The other major question is whether this system makes any difference from a democratic perspective.

Arguably the candidate would have slightly more democratic legitimacy under the new system. Instead of the candidate being selected by the Heads of State/Governments of Europe, (whose members derive their legitimacy from being democratically elected at national level), the candidate would be selected through a more transparent process within their respective European Political Group, approved by directly elected members and chosen on the result of the European Parliamentary elections – meaning that citizens’ votes will influence the result.

However, the election of the Commission President will still be indirect under this new system. Voters are not able to vote directly for a candidate in the same way as the US President for example. Furthermore, a very low turnout could discredit the whole process, as well as the legitimacy of the European Parliament.

Therefore the most significant change would appear to be the selection of the candidate through a far more transparent process. Certainly citizens would be able to identify the candidates at an earlier stage. Yet how did European parties appoint their candidates?

Only five of the seven European Groups decided to appoint a candidate for the next European elections. The selection methods used by these Groups were all different. The European Conservative and Reformist Group (ECR) and the Europe of Freedom and Democracy group (EFD) refused to participate and therefore did not appoint any candidate. The ECR Group felt that participation in the process would legitimise a federalist vision of a European super-state, which they oppose.

Within the Socialists and Democrats Group (S&D), the nomination of the current European Parliament President Martin Schulz (SPD) went uncontested (although this was not supported by the UK Labour party).The nomination of Greek Alexis Tsipras for the European United Left - Nordic Green Left Group (GUE/NGL) was also uncontested.

After the last minute support of the German CDU, the former Luxembourg Prime Minister Jean Claude Juncker was chosen as official candidate for the European People's Party Group (EPP), defeating current Commissioner and Vice President of the EPP Group Michel Barnier after a vote.

The Greens on the other hand held an open Europe-wide online primary and decided to appoint two candidates – the German Ska Keller and the French José Bové (Keller would take the candidacy if the Greens won). With the exception of Tsipras and Juncker, all the candidates are current MEPs. The ALDE Group appointed Guy Verhofstadt (former Belgium Prime Minister) after the main challenger, Commission Vice-President Olli Rehn, decided to withdraw before a vote could be taken.

Although the battle is being played out between Juncker, Schulz, Verhofstadt, Keller, Bové and Tsipras, it is clear that only Juncker and Schulz have any realistic chance of becoming the next Commission President if the process is accepted.

Finally, how will “taking into account the results of the elections” be interpreted by the European Council and Parliament? Will the overall composition of Parliament be used as a criterion to designate a winner? Could differing interpretations lead to disagreement between the European Council and Parliament or even within Parliament itself? As the candidate would need to have the backing of a majority within the Parliament, this in turn could complicate matters.

Possible Outcomes

The outcome of the process will depend heavily on the results of the elections in May and on the following negotiations.  Several scenarios have to be considered.

1. The  European Council appoints a Candidate from “victorious” European Political Group

The European election results clearly demonstrate victory for one European Political Group, recognised by all sides.

The European Council proceeds to nominate the candidate put forward by that Group, setting an historic political precedent for the future nomination of the Commission President via the candidates chosen by Parliament.

All the Political Groups vote in favour of the nominated candidate except the ECR and EFD Groups, which maintain their opposition but do not have enough seats to prevent the nomination.

2. European Council Refuses to appoint European Political Group Candidate

The European Council, internally divided over a particular candidate, proposes an alternative candidate not put forward by the European Political Group with the most seats.

Political impasse and crisis
The European Parliament Groups unite in favour of the candidate system and reject the candidate put forward by the European Council, demanding instead that the “rightful” candidate is selected. An impasse between the institutions provokes a political and constitutional crisis in the EU.
Parliament acquiesces
The European Parliament, internally divided over the European Council’s candidate and/or unwilling to risk provoking a political crisis, is able to find a majority to back the European Council’s choice. The recognition of the system for nomination of the Commission President via the candidates chosen by the Parliament must wait for the next elections.

3. Compromise Candidate is Agreed between Council and Parliament

The narrowness of the election result impacts upon the overall composition of Parliament making a majority difficult to achieve, possibly due to the unprecedented success of extremist and Eurosceptic parties across Europe.

There is disagreement over how the candidate should be selected either between the European Council and Parliament or within the Parliament itself. A majority can only be reached in Parliament through a grand coalition of the EPP, S&D and ALDE Political Groups.

The European Council and/or Parliamentary Groups agree on a compromise candidate acceptable to most sides, out of necessity. Smaller Political Groups react angrily and the Parliament is split by division. The candidate system is deemed to be a partial failure.