Saturday

23rd Oct 2021

Opinion

Independence of EU commission at risk over Spitzenkandidat process

  • What goes for the Commission as a whole, applies a fortiori to its president (Photo: ec.europa.eu)

It has rightly been said that law is the cement that binds the Union together. Our purpose in writing is not to support or to oppose the nomination of any particular person as European Commission President, but rather to draw attention to what EU law requires and why.

The role assigned to the Commission by the Treaty on European Union (Article 17(1)) is to "promote the general interest of the Union". In order to fulfil that role, the Treaty requires (Article 17(3)) that "the members of the Commission shall neither seek nor take instructions from any Government or other institution, body office or entity".

Read and decide

Join EUobserver today

Become an expert on Europe

Get instant access to all articles — and 20 years of archives. 14-day free trial.

... or subscribe as a group

They must be wholly independent of the government of the member state from which they come and from all other governments, as well as from the other institutions of the Union, including the European Parliament.

The Commission's duty of complete independence is fundamental to its raison d'etre. That is why the Commission has been given the exclusive right to propose legislation. In a Union that is now so large and heterogeneous, the Commission must enjoy the independence that is necessary to strike a fair balance between conflicting interests and, not least, to protect minority interests against those of majorities.

That is why Commission proposals, although they may be adopted by qualified majority, may be amended only by unanimous agreement. The independence of the Commission is what makes majority voting acceptable.

The Commission was designed to be independent, so that minorities could not be consistently outvoted and their interests overridden. If the Commission were to come under the influence or control of a majority of the Parliament, it could not protect the interests of any state that happened to be in a minority.

So the independence of the Commission is an essential protection for any member state, including the UK, which may find itself in a minority on any given issue. Once understood, that argument should carry weight with every member state. It is fundamental to the institutional set-up of the EU.

What goes for the Commission as a whole, applies a fortiori to its president. The role of the president of the Commission is (Article 17(6)) to "lay down guidelines within which the Commission is to work" and to "decide on the internal organisation of the Commission, ensuring that it acts consistently, efficiently and as a collegiate body".

Thus, the president must be someone who can command the loyalty and support, and ensure the efficiency, of a college of commissioners, and a permanent staff of officials drawn from 28 countries with many languages, cultures and traditions, and many different political affiliations.

That would already be an heroic task.

But the president must also command the confidence and respect of the governments of the 28 member states and of their citizens, including the many businesses and individuals whose interests may be affected by decisions in the areas, such as competition policy and the authorisation of state aid, where the Commission enjoys real executive powers.

The procedure laid down by Article 17 (7) of the Treaty on European Union is perfectly clear. The heads of state or government of the member states identify the person they consider best qualified from every point of view to fill this exceptionally demanding role over the next five years.

The Parliament then decides whether they are willing to elect that person; and, if not, then the European Council must come forward with another proposal.

The European Council exercises its power of initiative under Article 17 (7) "[t]aking into account the elections to the European Parliament", which implies an obligation to take into account all aspects of the elections. This will certainly include the numerical state of the parties elected.

But there are other aspects to be taken into account too - at this time not least (and perhaps above all) the serious disaffection of a significant body of the electorate manifested by the very strong showing of anti-EU parties.

The European Council must also "hold appropriate consultations" before any proposal for a Commission president is made. The purpose of doing so is to ascertain, all things considered, who is best qualified (and is willing) to undertake the task assigned to the President.

The procedure laid down by Article 17 (7) is clearly designed to separate the right of initiative (which belongs to the European Council) from the right of final decision (which lies with the Parliament).

The interaction envisaged by the Treaty between the two institutions is based on the notion of "dual democratic legitimation" - through the responsibility of the democratically elected Heads of State or Government to their parliaments and/or electorates, and the responsibility of the European Parliament to its electorate - which similarly underlies the Union's ordinary legislative procedure.

In sum, the heads of state and government are under a duty to seek out, in conformity with the role entrusted to them by the Treaty, the candidate best qualified to meet the challenges facing the Union.

That duty could not be more important, at a time when it is imperative for the Commission to maintain its credibility as an independent actor.

It would be inconsistent with the structure and safeguards envisaged by the Treaty if the president of the Commission were to be committed to implementing the policies favoured by any group of members of the European Parliament, even if they happen to be in the majority at any time.

The writers are professor Sir Alan Dashwood QC, City University London and Sidney Sussex College, Cambridge; professor Sir David Edward, University of Edinburgh; Sir Jeremy Lever QC, All Souls College, Oxford; and John Temple Lang, Cleary Gottlieb Steen & Hamilton LLP

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

Europe can't ignore Chinese encroachment in Ukraine

China's growing economic footprint in Ukraine may already be producing geopolitical consequences that put the country at odds with core European priorities. Volodymyr Zelensky decided earlier this year to withdraw Ukraine's condemnation of Chinese government crimes against the Uighurs.

MEPs poised to vote blank cheque for Europol using AI tools

Fair Trials, EDRi and other civil society organisations are calling on MEPs to hold true to protect our fundamental rights. We urge MEPs to vote against the revision of Europol's mandate, which distinctly lacks meaningful accountability and safeguards.

Column

Nothing as destructive as radical change

With Poland throwing the legal order of Europe in disarray, Russia rationing Europe's gas supply and the UK reneging on its Brexit commitments, perhaps the moment has come again to read a few essays by French philosopher Michel de Montaigne.

News in Brief

  1. Russia's anti-vax campaign backfired, EU says
  2. China angered as MEPs call for Taiwan talks
  3. Emissions from La Palma volcano reach Brussels
  4. Body of eighth victim of Belarus border-crisis found in river
  5. Report: Syrian bank fiddling currency to evade EU sanctions
  6. Nato adopts plan to counter new Russian threats
  7. Alleged killer of British MP 'felt affiliated' to IS
  8. Coronavirus: Belgium returns to 'red' zone

Time for EU to grow up as a democracy

Conference on the Future of Europe must address shortcomings in the EU model of 'dual democracy' and prevent backsliding in member states.

Stakeholders' Highlights

  1. Nordic Council of MinistersNew report reveals bad environmental habits
  2. Nordic Council of MinistersImproving the integration of young refugees
  3. Nordic Council of MinistersNATO Secretary General guest at the Session of the Nordic Council
  4. Nordic Council of MinistersCan you love whoever you want in care homes?
  5. Nordic Council of MinistersNineteen demands by Nordic young people to save biodiversity
  6. Nordic Council of MinistersSustainable public procurement is an effective way to achieve global goals

Latest News

  1. EU states want more Belarus sanctions
  2. Gas price spike exposes rift at EU summit
  3. Poland vows not to give into EU 'blackmail' at summit
  4. EU vows to uphold Paris climate ambition amid scientists' fears
  5. Commissions's new migration pact still seeking 'landing zone'
  6. Europe can't ignore Chinese encroachment in Ukraine
  7. Lithuania - where 'biodiversity funding' is cutting down trees
  8. Dutch lawyers take Frontex to EU court over pushbacks

Join EUobserver

Support quality EU news

Join us