Independence of EU commission at risk over Spitzenkandidat process
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".
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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