Enrico Bravo, 89 London and LLM in European law at London School of Economics
The European elections are over. Now one of the most important events for the future of the European Union is about to begin. The appointment of the President of the European Commission is often overlooked as it is decided by the European Council (i.e. The Council of the heads of State and Government of every EU Member State) and the European Parliament (EP) without direct consultation to the citizens. As explained in a previous post, this is not a flaw but a democratic choice involving the design and functioning of the European Union (EU).
The process to appoint the President of the European Commission is regulated in the Treaty of the European Union (TEU). Unsurprisingly the process is opaque. It leaves many questions unanswered regarding its functioning. The appointment involves two different stages. First, the European Council nominates a candidate for President by: (i) ‘Taking into account the results of the European elections’, and (ii) ‘after having held the appropriate consultations.’ The last stage involves a confirmatory vote by the EP. A rejection would entail the nomination of a new candidate by the European Council.
It is unclear to what extent the European Council is bound by the European elections results. There is no explicit obligation in the TEU to nominate a particular candidate. This may lead to a dead-end as the European Council cannot force its own choice on the EP. On the other hand, the EP can only confirm or reject the candidate proposed by the European Council. Both institutions have their own limitations. They must engage in dialogue or face deadlock.
In 2009 the Lisbon Treaty introduced the current appointment process. To add democratic legitimacy to the President of the European Commission it gave a confirmatory vote to the EP, a directly elected institution. This idea is constructive as it is problematic. Giving new powers to the EP is something that should be praised as an attempt to consolidate institutional balance in the EU. This means reducing the scope of powers of the European Council and increasing the prominence of the EP. The shortcoming is the risk of politicising the European Commission. Firstly, because the Commission is essentially a technocratic institution and as such it is better to shield it from the turbulence of an electoral process. The EP has understood the election results as a mandate to appoint the leading candidate of the European party that wins the election (the so called spitzenkandidat). This process looks good on paper but it may fail to deliver positive results.
According to the Eurobarometer Survey (February-March 2019), 70% of EU citizens do not remember ads in the media encouraging people to vote in the European elections (2019). Similarly, a post European elections survey (2014) from the Directorate General for Communication showed surprising results. 42% of the EU citizens considered that they did not have sufficient information to vote. Giving citizens the chance to have a say on the European Commission without providing information on the importance of such vote is dangerous and unfair. As the statistics show, this remains a critical issue that has not been properly addressed by the EU and its Member States after the treaty reform in 2009.
The goal pursued by the drafters of the EU treaties seems to be the creation of a framework in which both EU institutions are able to reach consensus between their preferred candidates. Reality has proved to be different. The EP has interpreted the process as a one side choice. For the EP the leading candidate of the European party with the largest number of MEPs should be nominated as President of the European Commission. This is not surprising considering that the EP seems to have the upper hand. It has the final say to confirm the nominated candidate. In case of rejection it will force the European Council to restart the nomination process with a new candidate. The question is if this prerogative could be used and reused to force its own choice on the European Council.
A key factor: The European elections results
The European elections results could play a decisive role to increase or reduce the scope of influence of the EP. If the EP is fragmented then the European Council will have more leverage in the appointment process. Fragmentation in Parliament will be the consequence of an unclear mandate from EU citizens. This should also be interpreted as a choice to give the European Council a more prominent role in the appointment process. The opposite consequence will take place in case the EP is less fragmented. The results of the European elections in 2019 show a hung Parliament. The share of vote is dispersed across different parties. The percentage of seats is distributed as follows: The European People’s Party (23.83%), the Alliance of Socialists and Democrats (20.37%), the Alliance for Liberals and Democrats (14.11%), Greens (9.99%), other parties (31.69%). The election results give more leverage to the European Council. It could extract more concessions from a divided Parliament. Unless there is a coalition between the parties. The upcoming appointment of the President of the European Commission is a great opportunity to test institutional balance in the EU. A nice opportunity to watch the institutions wrestling in the EU arena. At this point it is uncertain who will be appointed as President. However, before the race has begun there may be a clear winner: the EU’s democratic credentials.