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There is a real possibility that the European Council might
not propose Claude Juncker, the Spitzenkandidat who enjoys significant majority
support in the European Parliament following the success of his party in the
European elections. Suppose that as part of a comprehensive personnel package
the Council proposed an external candidate as Commission President – whether
Christine Lagarde or someone else.
Juncker lacks support with some Member States, they might argue, the
British premier after having suffered at the hands of UKIP needs a victory, as
does the French President after having been pummeled by the right wing
nationalist Front National.
Suppose that the European Parliament responds by
respectfully rejecting the candidate. Voters were given a promise during the
elections, parliamentarians might say, that they would only elect a successful
Spitzenkandidat as a Commission President. It is imperative that they do
everything in their power to ensure that voters understand that they have a
reason to go and vote and take seriously the nominated Spitzenkandidaten in the
European elections four years from now. That, however, requires them to stand
by their promise, irrespective of the policy views and respectable qualities
that any alternative candidate proposed by the Council might have.
This kind of stand-off amounts to a power struggle between
the European Parliament and the European Council. It is a power struggle with considerable
constitutional policy implications. Does anyone doubt, that the power of the
European Parliament would be significantly augmented in its relationship to the
Council, if Parliament was effectively in the driving seat, when it comes to
determining the Commission President? Does anyone doubt that under such a
scenario in the next elections the choice of Spitzenkandidaten would be a high
profile affair, that the political campaign would further change its character
and that interest in European elections would go up? In the campaign this year the
Spitzenkandidaten individually and collectively said to anyone who was willing
to listen that it would all be different this time. But if this struggle will
be won by Parliament, it would have been made clear and communicated
effectively that everything is in fact different. On the other hand if the
Council was able to effectively push through their favored candidate against
the originally clearly expressed will of Parliament it would confirm all those
who look at European elections with a combination of either jaded cynicism,
disinterest or Eurosceptic fervor.
But irrespective of the policy-implications, how is such a power
struggle to be assessed in legal terms?
Does the law have anything to say about it or is it best understood as a
purely political conflict, to be decided by the tactics and strategy of the
relevant political actors, responsive to their own constituents and the
relevant publics? In the following I will argue that Art. 17 Sect VII does in
fact impose obligations on the parties and that under present circumstances the
European Council is under a legal obligation to propose Juncker as Commission
President.
When the German Chancellor expressed herself in a highly
ambivalent way about the prospects of Claude Juncker becoming Commission
President two days after the
elections, just after a large majority
in the European Parliament had declared to support him, she justified her
position with reference to the European Treaties: There is no automatism, she
insisted. All sides should abide by the Treaty. We should remember what
happened when the relevant actors start to ignore the Treaties (here she was
clearly invoking the Stability and Growth Pact, violated by a number of
countries, including of course Germany, which under Schröder´s government
worked successfully to soften up and render unenforceable its obligations).
But the implicit claim that Parliament is violating EU Law by
trying to impose its favored candidate on the Council is a nonstarter. Art. 17 Sect. 7 §1 TEU states that Parliament “shall” elect the candidate proposed by the
Council. “Shall” is a term that is
different from “is obligated” or “is required” or “will”. In the context of this provision it is clear
that Parliament has the right to either elect or reject the candidate put
forward by the Council. It provides that
if the Parliament rejects the candidate, the Council has one month to propose a
new candidate. Within the limits of a
duty of a duty of “mutual sincere cooperation”
(Art. 10 Sect. 2 TEU- more about that later), the European Parliament is making a discretionary choice when it
elects or rejects a candidate for which it can only be held politically responsible.
The question is whether on the other side the European
Council is free to ignore a candidate whom, following the outcome of the
elections, Parliament has unambiguously declared its commitment to. According
to Art. 17 Sect. 7 §1 TEU the Council is under the obligation to “take into
account the elections to the European Parliament” when making its proposal.
When is that obligation violated?
Here are some clear cases: If the Council were to declare
before the elections that it would, no matter what the outcome, propose candidate
X, it would clearly not have made a proposal that took into account the
elections of the European Parliament. On the other hand the Council is clearly
not obligated to propose as Commission President the Spitzenkandidat of the
party that won a relative majority of seats. If a coalition of parties came
together and organized a majority around a different candidate, the Council
could clearly be responsive to that fact and propose that candidate, rather
than the candidate of the strongest party. Furthermore the result of the
elections might well lead to a situation where no candidate had a majority
behind him. In that situation the proposal of the Council after consultations
with Parliamentary leaders might well help forge a coalition around a
candidate. So in this sense the German Chancellor was right: There is no
automatism and there is space for an independent role of the European Council
under Art. 17 Sect. VII.
But what if the Parliament after the election throws its support
behind a candidate that has campaigned as a Spitzenkandidat in the elections?
What does it mean under these circumstances to “take into account the
elections”? To take into account the elections in such a case means taking into
account that the elections have produced a situation in which that specific
candidate has the majority in the Parliament behind him. In this constellation
the duty to take into account the election translates into a duty to appoint
the candidate that has the majority support in Parliament. Applied to the
present context that means: The European
Council is under an obligation to propose Claude Juncker as Commission
President.
This is not only a semantically plausible interpretation of
Art. 17 Sect.VII. It is further supported by a systemic interpretation of the
TEU. In title II of the TEU relating to the democratic principles of the Union
it is stated that the workings of the EU are based on the principle of
representative democracy. The principle
of representative democracy as it applies to the EU is then specified by
pointing first to the role of the European Parliament. The role of the Council
is mentioned only in second place. That prioritization of the European
Parliament over the second institution, made up of state representatives, is a
perfectly conventional understanding of representative democracy and also a plausible interpretation of the
foundational principle of democracy under Art. 2 TEU as it applies to the European
Union.
This prioritization does not undercut the often repeated and
essentially correct claim that democratic legitimacy in the European Union is provided
both by the European Parliament and the Euopean Council as representative
institutions. The European Council does
have a role to play in the determination who becomes European Commission
President. But in the constellations when a clear majority in Parliament has rallied around one of the
candidates that has campaigned for the office of Commission President, the role
of the Council is merely formal: To propose the candidate that has the
support of the parliamentary
majority.
It is also true that both the Parliament and the Council as
EU institutions are under a duty of “mutual sincere cooperation” (Art. 10 Sect. 2). But the concrete
requirements of mutual and sincere cooperation are defined by the concrete
rules governing each institution, appropriately interpreted in light of the
context and purpose of the Treaty. That duty does not give the European Council
powers that it would not have without it. At most it imposes a duty on the
European Parliament to explain to the Council, how and why the principles governing
the Treaty support its claim to appoint the Spitzenkandidat who enjoys the
majority support in Parliament and no-one else. On the other hand it would be a
violation of the principle of mutual sincere cooperation, if pressure was put
on Claude Juncker by Members of the Council step down and to declare that he
would not be available as a candidate for Commission President.
The history of democratic constitutionalism is to a large
extent the struggle of parliaments against a powerful executive and its
bureaucracy. This struggle takes place
today on the level of the European Union.
European integration has empowered Member States executive branches. Some
Member States have worked hard in recent years to secure some level of
meaningful parliamentary control over their executive branch acting in the
Council. But for structural reasons that control is often ineffective and
inevitably limited. It should not be
surprising that powerful Member States, whose executives have a controlling
influence, resist the kind of parliamentary democratization on the European
level that the TEU, appropriately interpreted, embraces. But as citizens we
should not be lulled into believing that there is much democratic virtue in
their reluctance to relinquish power. And we should understand the connection
between the dominant role of the executive branch of Member States in Europe and
the rise of Eurosceptic and nationalist parties.
The German Chancellor revised her position on May 30 and
stated that she would “conduct all negotiations with a view to ensuring that
Claude Juncker becomes President”. But the qualifications she continues to make
suggest that she very much remains willing to hide behind Cameron and a
minority of other leaders to aim for “a compromise” that will leave democratic
aspirations in Europe severely harmed. Citizens have good reasons to be
concerned.
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