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It is now less than a year to the start of European Parliament elections and the question of who will be the next president of the European Commission is beginning to be asked.

One thing is clear, after Juncker’s triumph, the process for selection of a sole candidate, devised by the European Parliament has not been accepted as a legitimate method by many of the leaders of the EU’s 28 member states. There is not even unanimity about the process within the European parliament either. 

The EU27 leaders are increasingly very reluctant to reinforce a precedent by continuing to accept the Parliament’s proposed method. The legal base for such a method appears to be very flimsy and is based on a tautological (a self-reinforcing pretence of significant truth) interpretation of the Lisbon treaty.

Only if you are a strong supporter of a ‘first past the post’ electoral method can the Spitzenkandidaten (frontrunners) be viewed as democratically legitimate. It should be noted that not one of the electoral contests across most member states were conducted on a ‘first past the post system’. Juncker’s previous plea to ‘respect my vote’ is based on a false premise.

The critics of the process are numerous and come at it from many different directions. The then president of the European Council, Herman Van Rompuy, tasked with finding a consensus over the issue, has also cast doubts on the process, arguing that the EU’s political leaders must play a crucial role.

One of the major flaw is that none of the candidates names will be on the ballot papers in the European Parliament elections as a candidate for Commission president. It is impossible to read across from a vote for an affiliate party of a party group is a valid vote for who should be commission president 

One other point of view rarely discussed during the next search for commission president is whether a president with a viable claim to having democratic legitimacy is a good thing. The power relationship between the democratic institutions of the council, parliament and member states is already complicated enough without a fourth power being stronger than ever.

Up until the ratification of the Lisbon treaty, the member states political leaders (as the European Council) acted like a papal conclave until a single consensus candidate emerged and this candidate then had to be approved by the parliament. Post-Lisbon the Council now has to take note of the European parliament results before nominating a candidate to the parliament for approval by absolute majority. N.B. ‘Take note’ not ‘accept’.

The constitutional structure of the European Union is still at heart a club of 28 (soon to be 27) members. The most senior of the institutions is the European Council, it is there that the final decision will be made.

Yet he party groups in the European parliament have interpreted the relevant clause of the Lisbon treaty as meaning that the Parliament has the right to decide who the next commission president is by virtue of which party group gained the most votes in the election, i.e the centre-right, European People’s party (EPP).

In other words the party group that attracted 29.4% of the vote, demanded the right to nominate Jean-Claude Juncker as the next president of the commission. Juncker  said not following the Spitzenkandidaten process would “make a mockery of the democratic process”. A highly contentious claim indeed.

Most of the parliament’s party group leaders had agreed to back the candidate of the group that attracted the most votes (in fact they meant most MEPs, not necessarily the same thing). Thereby creating a majority by way of caucusing. Of course the absolute majority needed in the parliament (376 MEPs or more), cannot be guaranteed as the vote will be by secret ballot.

Yet, this was the agreed process of the previous parliament – but, constitutionally, no parliament can tie the hands of a succeeding parliament. Over 30% of MEPs (i.e. newly-elected) will not be party to the decision to back the Spitzenkandaten process. That is more MEPs than the EPP have in the new parliament.

There is no legal case law to fall back on, yet a proviso that the Council should take note of the results of the election (i.e. not necessarily the make-up of the parliament) can be interpreted widely. It could be argued that the decline in support for the EPP compared with the 2009 election, undermines the EPP’s case. A drop in support from 36% to 29.4% in the current parliament is not a ringing endorsement. 

Charlemagne in The Economist commented last time “Several leaders, including Angela Merkel, the German chancellor, have more or less endorsed Spitzenkandidaten, and few have criticised the idea openly. The party that wins the largest number of seats in the European Parliament will therefore have a decent shot at levering its man into the Commission presidency (especially if that party has strong lead).”  It can be argued that 29.4% compared to 25.4% for the Socialist group is, arguably, not a strong lead and that the process is by Charlemagne’s standards fatally flawed.

In a rather German-centric claim that both Der Spiegel and Bild claimed that it would be an abuse of democracy if the winner of the Spitzencandidaten process was not nominated as commission president. The fundamental flaw in this reasoning is that whilst there will be widespread coverage of the contest between the Spitzenkandidaten in one member state e.g. Germany, there will be scant coverage of the candidates in many other countries.

Whatever the outcome, if a Spitzenkandidaten process is used to choose the next Commission president, e.g. Manfred Weber (EPP leader), the name recognition of such a candidate amongst the EP electorate will be in a single figure percentage and be almost completely unknown amongst a majority of member states.



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