Before the end of the month, heads of state and government will need to make "a very difficult decision," with major consequences for the next five years or more, various sources told this website.
On the one hand, EU leaders can assume that the Lisbon Treaty will soon be ratified and invite member states to submit candidacies for commissioners and other top jobs. Alternatively, they can choose to avoid taking any risks and launch a procedure for nominating a smaller-size Commission under the current Nice Treaty, analysts told EurActiv.
The decisions are made more difficult by the current uncertainty over the Lisbon Treaty. Full ratification of the text is still pending in Poland and the Czech Republic, where the constitutional court is to examine a motion by a group of Senators challenging the compatibility of the Lisbon Treaty with the country's basic law. "Both with Lisbon and with Nice, we don't have a clear picture," said Piotr Maciej Kaczyński of the Centre for European Policy Studies (CEPS).
"With Lisbon, we don't know when the treaty will enter into force. It can drag well into 2010. And with Nice, we need clarification of how many commissioners the new Commission would have," Kaczyński told this website.
Indeed, under Nice, the number of commissioners would have to be less than the number of member states, and Germany has already indicated that if the Lisbon Treaty cannot be applied, it will push for a small European executive of 15-18 commissioners.
Ireland was promised that it would keep its commissioner as part of guarantees EU leaders gave the Irish government in return for holding a second referendum (EurActiv 19/06/09). It can thus be assumed that under the present circumstances, it would be the only country assured of having a commissioner in a 'Nice' scenario.
At their June summit, EU leaders decided that "the process of nomination of the other persons who will be appointed as members of the Commission can only be initiated when the legal basis for the nomination procedure has become clear".
Speaking to EurActiv, Guy Verhofstadt, leader of the liberal ALDE group in the European Parliament, said the June decision was taken "an eternity" ago, suggesting it could be revisited (EurActiv 03/10/09).
MEP Jean-Luc Dehaene, another former Belgian prime minister, told this website that in his view, European Commission President José Manuel Barroso could already proceed with consultations for forming the next college of commissioners, provided that he worked discretely.
But CEPS analyst Kaczyński sees the picture differently, saying it would be difficult, if not impossible, for Barroso to try to put together a team under such conditions of legal uncertainty.
"We need to know for example, very concretely, if there is a new high representative for common foreign and security policy, and [if] the president of the European Commission [should] be consulted, or not. Under the Lisbon Treaty, he should be consulted. Under the current treaty, he doesn't have to be consulted," said Kaczyński.
'Santa Klaus'
Stanley Crossick, founding chairman of European Policy Centre think-tank, played with words in indicating that Europe needed legal certainty by Christmas.
"Let's hope that the real Santa Klaus delivers the right Christmas present," said Crossick, adding that it was "outrageous" that Czech President Václav Klaus, a man from a country making up 2% of the EU population, can thwart the will of the 26 other EU member states.
The 29-30 October summit will also decide whether to prolong the term of the present Commission, which in fact expires on 31 October.
It remain unclear as to how long the present Commission's term will be prolonged.
"There is no legal basis for how long it can drag on. It's a political decision – how long are countries willing to wait?," Kaczyński said.
Asked how long Klaus could play with procedure, Kaczyński recalled a case in which the Czech president had refused to appoint judges, saying they were "too young".
In the end, it took two years to settle the case via administrative court action, Kaczyński pointed out, suggesting that a similar procedure could be launched against Klaus this time around. But it remains to be seen how long this would take, he said.
