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.

Interdependence, Political Will, and Morality: Banking Union Version

This post originally appeared on EUtopialaw and is cross-posted here with permission.

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In reflecting on the muddled and (to many observers) disappointing outcome of last week’s European Council summit on banking union—‘yes’ to a not-insignificant Single Supervisory Mechanism (SSM) within the European CEntral Bank (ECB) but ‘no’ to any significant fiscal shock absorber in the form of resolution fund or common deposit-guaranty scheme—I couldn’t help but think of the late, great Alan Milward, perhaps the most influential of all historians of European integration.

As many readers will know, Milward was the author of the classic history of the origins of the integration process, The European Rescue of the Nation-State (1992; 2d. 2000).  And it was Milward, perhaps more than any other observer of European integration, who consistently reminded us that integration has always been a political choice rather than an inexorable consequence of growing ‘interdependence’ or some of other functional factor.  Because integration has been a political choice, its direction has also never been beyond political negotiation or even outright resistance or rejection. This insight is important to keep in mind as we reflect on the outcome of last week’s summit on banking union.

Guest Post: Pringle Has His Chips (Kenneth Armstrong)

This guest post, by Kenneth Armstrong, Professor of European Union Law at Queen Mary, University of London, originally appeared on EUtopialaw and is cross-posted here with permission.  Of interest to network members, Prof. Armstrong will serve as the Senior Emile Noël Fellow at NYU Law School in the spring 2013 term.  Not reproduced here but also perhaps of interest is an exchange of comments between Prof. Armstrong and network member Peter Lindseth in response to his original post on EUtopialaw.

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The Court of Justice has delivered its much anticipated ruling in the challenge brought by Thomas Pringle to the legal provisions establishing the European Stability Mechanism (ESM). In dismissing the challenge, the European Court of Justice – convened as a Full Court of all twenty-seven judges – became the latest court to deal with the legal fall-out from the Eurozone crisis. Constitutional challenges in national courts, including Germany and Estonia, have, this far failed to create significant legal obstacles to the structures put in place by EU states in their attempt to manage the crisis and to provide financial support to Eurozone states.

Although the challenge before the CJEU failed, the Court reiterated that while Member States are free to establish mechanisms like the ESM outside of the structures of the EU treaties, the exercise of their powers through such structures must be consistent with and not incompatible with their continuing obligations under EU law.