Nice and the European Commission: is this the reform that we need?

Nice and the Commission

The Treaty of Nice has left a general sensation of dissatisfaction. The institutional reform that came out from the Intergovernmental Conference 2000, although it can be said that it “opens the way for enlargement of the European Union”,(1) it is neither for sure that it has done so in the best possible manner, nor that the “institutional problem” of the UE has been finally solved with such reform.

Mr Romano Prodi, President of the European Commission, is perhaps, among the main actors of the process, the person that has better described what has happened in Nice. In its own words, “At Nice, fifteen Member States, each focusing on its national interests, were able to reach only an imperfect agreement which did not go far enough. What is more, most of the Heads of State or Government were more concerned with blocking the future action of the Union than with seizing the opportunity of advancing the common venture. Nice was a clear demonstration of what is meant by agreement on the lowest common denominator”.(2)

Paradoxically, however, in what refers specifically to the European Commission, Mr Prodi should not manifest great dissatisfaction, since this is an area in which the Commission has obtained all that it formally sought. In its Opinion of 26 January 2000 on the calling of the IGC, the European Commission proposed to the Conference, in short, the following:

• the composition of the Commission should be reviewed, [a] with the number of Commissioners set at 20, with a system of rotation institutionalised in the Treaty while respecting the strict equality between the Member States, or [b] at one Member per Member State combined with measures fundamentally reorganising the Commission;
• the undertaking given by the Members of the present Commission to resign if asked to do so by the President should be formally incorporated in the Treaty.(3)

In fact, the IGC not only granted to the Commission a reduction in its number of members – adopting a complex solution to be implemented in two phases – but it also agreed to invest the President with a notable increase of its powers as regards the direction and organisation of the Commission, including the right to request the resignation of its members.

Thus, the Treaty of Nice makes substantive reforms in three important aspects of the Commission: (a) the procedure of appointment of its members, (b) the powers of the President, and (c) the number of members of the College. But the question is, are these reforms sufficient? will they serve for the purpose of making the Commission a more functional, effective, and legitimate institution? Let us analyse these reforms.

The appointment of the Commission

As regards the procedure of appointment of the Commission, the Treaty of Nice amends the provisions of Articles 214 and 215 of the TEC in order to specify and to make clear who is the body invested with the power to carry out this function and the form in which this function must be carried out. Hence, the Treaty of Nice establishes now that the Council is the body competent to propose the candidates to be members of the Commission, as well as to formally appoint them at the end of the process – not “the governments of the Member States”, as it was established before in Art. 214 TEC. And it also establishes that the Council must decide by means of qualified majority, instead of by “common accord”, as it was formerly required by Art. 214 TEC.

A difference has been made, however, in the initial moment of the nomination process between the nomination of the candidate to the presidency of the Commission and that of the candidates to be members of the College. As regards the candidate to be President of the Commission, it is now required that the nomination must be made by the Council, meeting in the composition of Heads of State or Government , while the nomination of the candidates to be members of the Commission must be carried out by the Council. The new Art. 214(2) does not mention the kind of Council composition for this purpose, but it will understandably be the composition of Ministers of Foreign Affairs – the General Affairs Council. It is therefore evident that, by means of formalising the existing practice of nominating the candidate to the presidency of the Commission in meetings of Heads of State or Government, the Conference wanted to establish a clear difference, putting the President of the Commission on a superior footing in relation to the rest of the members of the College. Although, the whole of the College – the President included – is formally appointed by the Council, meeting as General Affairs Council, at the end of the procedure. Nevertheless, the most striking aspect of the new procedure of appointment of the Commission is that it is now required that the nomination of the other candidates to be members of the Commission must be carried out not only by “common accord with the nominee for President” – as it was formerly established by Art. 214 TEC – but also “in accordance with the proposals made by each Member State”.

This provision is somehow contradictory since, although it is framed in a large set of provisions aimed at enhancing the role of the President of the Commission, including his participation in the nomination of the other members of the College, it clearly cuts off or, at least, dramatically reduces the capacity of the nominee for President to make proposals and/or to negotiate with the Council who will be the future members of the Commission; a capacity that was not legally conditioned in the former text of Art. 214 TEC. It seems obvious, though, that this provision – although unclear in its text – does not necessarily require that only the candidates concretely proposed by the Member States may be nominated as such, since this would make the participation of the nominee for President in this procedure useless and the provision itself meaningless. What in fact this provision seems to suggest is that, whatever the result of the negotiation between the nominee for President and the Council might be, nobody who is not included among the names previously proposed by the Member States may be nominated as candidate to be member of the Commission.

Therefore, it can be said that, although the Member States are forced to make ample proposals – of, at least, more than one name – in order to make this provision workable, they have made it sure that nobody may be appointed member of the Commission unless he/she has been previously proposed by any of them. Therefore, the role of the nominee for President of the Commission in this process will be determined in every case by the will of the States and their more or less generous attitude in their proposing of candidates for nomination.

Increasing the powers of the President

The Treaty of Amsterdam opened the way towards a re-configuration of the Commission as a parliamentary cabinet, not only by means of increasing the role of the European Parliament in the appointment of its members – strengthening by this the fiduciary bond between both institutions -, but also by means of increasing the powers of the President as regards the College. The Treaty of Nice intends to go further in this line and, in fact, establishes a set of provisions that put the President in a superior position within the College, transforming him from a mere “primus inter pares” into a true President.

Hence, with the specified aim of ensuring the consistency, the effectiveness and the collegiality of the Commission’s performance, the Treaty of Nice provides the President with a reinforcement of his directing powers and with an organising power that was before invested in the Commission as a whole. To his role as political leader, which was already acknowledged and is now reaffirmed (“The Commission shall work under the political guidance of its President”: former par. 1 of Art. 219, new par. 1 of the Art. 217), the Treaty of Nice adds now the power to decide on the internal organisation of the Commission, including the power to structure and allocate responsibilities, to reshuffle this allocation during the Commission’s term of office, and to appoint Vice-Presidents. Furthermore, in order to reinforce the effectiveness of these provisions, the Treaty establishes also that the members of the Commission shall carry out their duties under the authority of the President and allows him to request the resignation of any member of the College when he deems it necessary (new Art. 217).

From this perspective, it is clear once again that the Intergovernmental Conference truly wanted to reinforce the President’s position within the College, giving him ample directing and organising powers. However, the legal formulation of this will is more limited than the initial intention. In fact, as regards the appointment of Vice-Presidents, it is now an obligation that constrains the President and requires the approval of the College – although it allows him to choose how many Vice-Presidents there will be. And, as regards the power to request the resignation of a member of the Commission, the formula used by the Treaty is so respectful and limited that not only puts the President in the position of asking, instead of commanding, but also requires the previous approval of the College. Nevertheless, the problem here is not the diplomatic language of the provision, but the provision itself.

From the legal point of view, the presidential power to request the resignation of a member of the Commission does not have an easy fitting within the Treaty’s institutional arrangement. This power, which was introduced de facto by the Prodi Commission at the moment of its appointment, clearly conflicts with the provisions of Arts. 215 and 216 of the TEC, which establish the only possible ways of termination of office of the members of the Commission. But, being now legally established in such a manner, this power conflicts also with the procedure established by the Treaty for the appointment of the Commission. In fact, this provision infringes the basic constitutional principle according to which – in circumstances of political normality – only who appoints may dismiss, that is to say, the Council in this case. In this line, rather than requesting the approval of the College, the President of the Commission should request the approval of the Council, which should decide then by qualified majority, in full coherence with the procedure established for the appointment of the Commission.

The provisions of the Treaty of Nice to this regard, besides being incoherent with the system of the TEC, contradict the new – superior – positioning of the President and affects the collegiality of the Institution. This is so, because it subjects to the approval of the College aspects so characteristic of the directing power of the President such as the above-mentioned ones, and because it involves the College in the adoption of decisions that should belong only to the President. What would then happen if the College rejects a request for the resignation of a member of the Commission submitted by the President, or if the vote proves that the College is divided into similarly large parties? It is evident that the President’s position would then be dramatically weakened and the College gravely divided.

Therefore, the conclusion is that, as seen in the appointment of Vice-Presidents and in the compulsory resignation of members of the Commission, the Member States can still effectively influence and control the process.

Reducing the number of members of the Commission

With regard to the reduction of the number of members of the Commission, the Intergovernmental Conference, opted for a staggered and complex solution that (a) first, reduces the number of member s of the Commission to one national of each of the Member States, from 1 January 2005 until the Union has 27 Member States; and (b) then, when the Union consists of 27 Member States, reduces the number of members of the Commission to a smaller number than that of the Member of States. The Council will then fix the number of members of the Commission and adopt the implementing arrangements for a rotation system among the Member States of the Union, based on the principle of equality.

The solution adopted by the Treaty of Nice is unsatisfactory and hardly functional. It is unsatisfactory because it does not really serve for the purpose of making the Commission a more coherent, effective and cohesive executive, since it does not link its structuring to its functions and real needs, but rather to the representation of the Member States within it. And it is hardly functional because, in an Union of 27 or 28 Member States and with a 5-year-mandate Commission, it is very difficult to guarantee that the modalities of the rotation system that might be established would really be fully satisfactory for the Member States and workable, mainly if they have to fulfil all the requirements established by the Protocol on the Enlargement of the EU – strict equality among the Member States as regards the sequence and the time spent by their nationals as members of the Commission, making sure that the difference between the total number of terms of office held by nationals of any given pair of Member States may never be more than one; and satisfactory reflection of the demographic and geographical range of the Member States.

Therefore, it is very difficult to assure that the rotation system will adequately satisfy the will of all the Member States to be represented at the Commission in a balanced manner unless, of course, the number of members of the Commission that will be finally established is so high that it would make this Treaty reform unjustified or unnecessary and all the effort made useless.

Conclusion: Towards a different Commission? 

As regards the reform of the European Commission, although the Treaty of Nice has granted the proposals formally made by the Commission itself, its provisions and their reach are clearly insufficient. The weight of the intergovernmental element of the constitutional structure of the UE has once again defeated the supranational element and has clipped its operative capacity. And the most dramatic aspect of this defeat is that it took place precisely in the field of the institution that represents par excellence the supranational dimension of the UE – the European Commission.

The Member States keep on being in control – directly or indirectly – of the formation and structuring processes of the Commission. The fact that it was finally decided to establish a number of members of the Commission smaller than the number of Member States – when the Union has 27 Member States – does not hide the fact that for the Member States it was more important to be represented within the College that the effectiveness or functionality of the Commission itself.

Trying to base the legitimacy of the Commission only on the representation of the Member States within it is a serious mistake that not only puts in danger its full autonomy – required by Art. 213(2) of the TEC – but also goes, ultimately, in detriment of its functionality and operativeness. The structuring of the Commission must be based on the functions and competences allocated to it. In this line, the number of Members of the College of Commissioners must neither be fixed in a permanent and abstract way, nor is there any reason for it to respond in an exact way to the number of Member States. It must simply be adapted to the objective needs arising from the functions and competences of the Institution, and by the programme or agenda with regard to which it should be formed in each case.

The legitimacy of the C ommission, therefore, must be found in its functionality and effectiveness, in its capacity to achieve the goals and objectives legally and politically assigned to it, not in the representation of the Member States within it. Only a smaller and more cohesive Commission, constituted with total independence from the number and representation of the Member States, based exclusively on the realisation of the common interests of the process of European integration, will be able to achieve its objectives efficiently and, as a consequence, will be able to increase the support of the citizens of Europe that is today so low.

On the other hand, the Commission is at present going through a process of administrative reform that affects its departments, services and working methods, with the ultimate goal of having a better governance for Europe. However, this reform will produce only limited results, since its goals go well beyond the narrow framework of the institutional reform that has taken place in Nice. The reform of the Commission, in order to be effective, must be coherent not only with the institutional reform taking place in the Treaty, but also with the model of European Union that is pursued. It is not for sure that the reform that has taken place in Nice will serve for the purpose of making more efficient a model of the EU that seems not to go further than the intergovernmental model. But it is evident that this reform is incoherent with a model of the EU that intends to make it better and more politically integrated.

The Treaty of Nice, therefore, could be considered as a further step in the process of European integration, but – as President Prodi, once again, has put it – “As a step, it was shorter one than we had hoped to make, or indeed could have made”.(4)

Antonio Bar Cendon is Professor of Constitutional Law (University of Valencia, Spain), currently member of the academic staff of the European Institute of Public Administration, Maastricht, NL

(1) Treaty of Nice, Declaration [23] on the Future of the Union.

(2) Romano Prodi, “The time has come for a properly structured debate on the future of Europe”. Speech at the European Parliament, Strasbourg, 17 January 2001.

(3) EUROPEAN COMMISSION, Adapting the Institutions to make a success of enlargement: Commission Opinion in accordance with Article 48 of the Treaty of the European Union on the calling of a Conference of Representatives of the Governments of the Member States to amend the Treaties (COM (2000) 34, Brussels, 26 January 2000), p. 14. In the same line, with more explanations, goes the document EUROPEAN COMMISSION, Communication from the Commission to the Intergovernmental Conference on the Reform of the Institutions (COM (2000) 771 final, Brussels, 22 November 2000).

(4) Romano Prodi, Speech at the European Parliament on the European Council of Nice. Strasbourg, 12 December 2000.

, Professor of Constitutional Law,

European Institute of Public Administration

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