How can the Commission president be replaced?

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Jean-Claude Juncker.

Jean-Claude Juncker [Reuters/Vincent Kessler]

Nicholas Whyte contends that in the event of a vacancy at the top of the European Commission, the EPP vice-presidents are well-placed to fill it.

Nicholas Whyte is a director at APCO Worldwide’s Brussels office, and a Visiting Professor at Ulster to the Faculty of Social Sciences University.

At the end of The Commissioner, a 1987 novel by former British Conservative MEP Stanley Johnson (yes, Boris Johnson’s father), the president of the European Commission is forced to resign and his successor is chosen by vote of the remaining Commissioners.  Almost three decades on, how would that situation be resolved today?

I hasten to add that as far as I know this is a purely theoretical question.  In response to press queries last week, both President Juncker’s spokesman and the Commission chief himself insisted that his health is fine and he intends to carry on.  But it’s worth recalling the precedents and the current legal situation, should this ever become an issue.

On two previous occasions, the head of the European Commission resigned before the end of his term. In both cases, the replacement was his senior vice-president.  In 1999, when Jacques Santer and the entire college resigned, Manuel Marin took over as acting president until the Prodi Commission was in place later that year.  He had been one of two vice-presidents under Santer, and had served three years longer in the Commission than the other, Sir Leon Brittan.

Those were unusual and dramatic circumstances.  Any vacancy now would probably bear more resemblance to what happened in 1972, when Franco Maria Malfatti resigned as president of the Commission to renew his political career in Italy.  He had two vice-presidents, who had both served since the executive was established in more or less its present form in 1967.  The older of the two, Sicco Mansholt, took over as president for the nine months until François-Xavier Ortoli began his term in 1973.

If the old rules (such as they were) still applied, the obvious successor in the case of a sudden vacancy at the top today would be First Vice-President Frans Timmermans.  Even though he is only in his first term as a Commissioner, his status clearly puts him ahead of the three vice-presidents who are on their second term – Kristalina Georgieva (Bulgaria), Maroš Šefčovič (Slovakia) and Jyrki Katainen (Finland – yes, he is technically on his second term, as he served out the last few months of Olli Rehn’s mandate in 2014.)

But the old rules no longer apply, and while Timmermans would certainly take over for the short term, Article 17.7 of the Treaty, which governs the election of the president, may create a problem for his staying in anything more than an interim capacity.  It states:

“Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission.  This candidate shall be elected by the European Parliament by a majority of its component members.  If he does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose a new candidate who shall be elected by the European Parliament following the same procedure.”

(Incidentally only the English, Irish and Maltese translations of the Treaty use a masculine pronoun in that last sentence.  The Czech, Greek and Polish texts have a gender-neutral formulation, and all others repeat “the candidate” from the previous sentence.  Of course, in a lot of languages “the candidate” is grammatically masculine as well.)

Article 246 of the Treaty makes it clear that Article 17.7 would also apply to a mid-term vacancy in the position of president “in the event of resignation, compulsory retirement or death” – in other words, a successor would still need to be proposed by the European Council, “taking into account the elections to the European Parliament” and then approved by the Parliament.  The European People’s Party won the most seats in the 2014 election but not the most votes and it is generally accepted that “taking the elections into account” means that a candidate for president must come from the EPP ranks of the European People’s Party, who won the most European Parliament seats in the 2014 election.  Frans Timmermans is a Socialist.

A mid-term replacement is further constrained by the fact that no member state can have more than one Commissioner at a time.  The proposed new president would need either to be a sitting Commissioner or from a country that did not have a sitting Commissioner.  At present, the British place on the European Commission is about to fall vacant due to the resignation of Lord Hill, but it’s difficult to see the UK providing a new president of the Commission under present circumstances.  (Not that it matters given everything else that is happening, but there is incidentally no EPP representation in the UK.)

We now run into the next problem.  The new president must be elected by a qualified majority of the Council, which on my reading of Articles 16 and 238 of the Treaty means at least 72% of the members of the Council – 21 counting the UK – representing Member States comprising at least 65% of the population of the Union.  (The threshold is usually 55% of member states, but that only applies to votes on proposals by the Commission or High Representative.) The EPP, which was dominant on the European Council for many years, now holds the position of head of government in only 7 of the 28 EU member states, the same number as the liberal ALDE and one fewer than the PES, who have eight.

(Since you asked: the EPP are still on top in Germany, Hungary, Cyprus, Ireland, Bulgaria, Spain and Romania, with a total of 33.4% of the EU population; the PES in Italy, Slovakia, Malta, Sweden, Austria, the Czech Republic, France and Portugal with 33.9% of the population; and the Liberals in Finland, Luxembourg, Slovenia, the Netherlands, Estonia, Belgium and Denmark, with a mighty 8.5%.  The ECR have Poland and, for now, the UK; the Croatian and Latvian prime ministers and the president of Lithuania are independents; and the Greek prime minister represents the far left.)

INFOGRAPHIC: EPP is third largest party at EU summits

As EU leaders gather today (17 March) for yet another summit, trying to fix the migrant crisis, successive elections in member countries have dwarfed the largest political force in the EU following the 2014 European elections.

The European Peoples’ Party, who is the largest in the European Parliament with 251 MEPs out of the total of 751, is now the third force, by the number of its heads of state and government sitting at the summits. The most influential leader of the EPP is without any doubt the German Chancellor Angela Merkel.

The Socialists and Democrats, who have 190 MEPs, are now the number one force at summits.

But perhaps more surprisingly, the liberals, who have only 70 MEPs in the European Parliament and are the fourth largest political group there, are now the second largest force at EU summits.

It therefore seems likely that in the event of a vacancy arising in the current term, the office of president would need to be filled by a sitting Commissioner, with an EPP background, but supported from the governments of other groups (the PES and ALDE would be enough) and also at least 376 members of the European Parliament.  On the face of it, this provides a wide choice: as well as current Vice-Presidents Georgieva, Katainen and Valdis Dombrovskis (Latvia), the EPP Commissioners include Günther Oettinger (Germany), Marianne Thyssen (Belgium), Johannes Hahn (Austria), Dimitris Avramopoulos (Greece), Elżbieta Bieńkowska (Poland), Miguel Arias Cañete (Spain), Tibor Navracsics (Hungary), Carlos Moedas (Portugal), Phil Hogan (Ireland) and Christos Stylianides (Cyprus).

In practice, the field will narrow down pretty rapidly to the three EPP Vice-Presidents, Katainen, Dombrovskis and Georgieva, two of whom are former prime ministers (Dombrovskis also a former MEP, which may help with the Parliament) and the third a second-term Commissioner.  Although every president since Jacques Santer in 1994 has been a former prime minister, this is not written into the Treaty.  Certainly there is, to put it politely, no obvious correlation between success in one’s term as president of the European Commission and seniority of one’s previous office.  If the situation ever arises, it will be interesting to see who is more able to persuade member state governments of differing political hues to support him or her.  And perhaps, in the context of the rise of Hillary Clinton and the increasing global focus on women as leaders, those masculine pronouns in the Treaty may start to look somewhat out of date.

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