Mattias Kumm on the Constitutional Conflict between the European Parliament and the European Council after the European election: Why the Council is under a legal duty to propose Juncker as Commission President

Network member Mattias Kumm (NYU, WZB) has forwarded the post below, an English translation of a post that is currently available in German on the Verfassungsblog.

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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.

Jan-Werner Müller in The Guardian: 'How Europe could face its own shutdown'

Network member Jan-Werner Müller (Princeton) has published this new piece in The Guardian of obvious relevance to transatlantic conversations.  The first two paragraphs are below and the remainder can be read here.

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Europeans have been stunned and dismayed by the shutdown and near-default of the United States. Perhaps they even felt some schadenfreude. After all, European leaders have been held to ridicule and contempt for their global brinkmanship over the dysfunctional eurozone in recent years – time and again taking their economies to the cliff, only to pull back just before the markets opened.

Yet Europe might be in for its own version of a shutdown – less dramatic than the US government one, to be sure, but with similar causes. Just as the Tea Party has turned Congress into a paralysed, self-hating institution, an alliance of anti-European Union parties could give Europe its own version of "gridlock" if they win enough of the popular vote in next year's European elections. European elites – and any citizen who cares about the fate of the EU – better start thinking about that scenario. [continue reading here]