The Spitzenkandidaten system is broken beyond repair

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV.COM Ltd.

Dick Roche, Irish Minister for European Affairs (L), and Former Irish Prime Minister Garrett Fitzgerald celebrate the final result of the Lisbon Treaty Referendum in Dublin, Ireland, on 3 October 2009. [Aidan Crawley/EPA]

It would be wise to accept that the Spitzenkandidaten system is broken and to look for a democratic replacement, writes Dick Roche, bringing up as arguments nuggets of vintage EU politics.

Dick Roche is a former Fianna Fáil politician. He was the minister of state for European affairs when Ireland conducted the two referendums on the Treaty of Lisbon of the European Union, in 2008 and 2009.

The preamble to the draft Treaty Establishing a Constitution for Europe opens with a stirring and eloquent quotation from the Thucydides “our Constitution…is called a democracy because power is in the hands not of a minority but of the greatest number”.

One concern that animated the Convention that produced the draft treaty was the challenge of making the institutions of the Union more democratic.

In the case of the Commission particular importance was attached to the method of selection and appointment of the Commission President.

The democratic legitimacy and authority of the President of the Commission could, it was felt, be significantly enhanced if the holder of that office were elected in a manner that was open involved both the European Parliament and the member states and was based on an open and transparent nomination process.

Over the opening months of 2003 the Convention considered a range of approaches.

The idea that the citizens of the EU member states should directly elect the Commission President was ‘floated’ but dismissed.

A direct election was seen as a step too far. It could be misconstrued as a move towards turning the Union into a ‘super-state’. Others felt that the lack of public understanding of the office could result in negligible voter turnout undermining rather than enhancing the office.

A paper circulated by the ‘Friends of the Community Method’ [FOCM] group, an informal grouping of the small and medium EU member states put forward an open nomination process and two alternatives election approaches.

The nomination process proposed was straightforward candidates would be nominated by a given number of member states, a given number of MEPs or some combination of the two.

Following nomination the candidate for Commission President would either be directly elected by the European Parliament or by an electoral college.

Election by European Parliament would involve endorsement by a “reinforced majority” with confirmation by a qualified majority vote of the Council at the level of Heads of State or Government.

The “Electoral College” option, the one favoured by this writer, would see votes taken in the member state Parliaments and the European Parliament on a set date.  The votes in the member state Parliament would be ‘weighted’ in the same manner as the member state votes were then weighted in the Council of Ministers. The National Parliament votes would be added to the votes cast for each candidate in the European Parliament to determine the candidate with the overall majority. The selected candidate would, again, be confirmed by a qualified majority vote of the European Council.

While more complex the “electoral College’ approach was promoted as bringing with it the advantage of a community wide campaign with candidates making their ‘pitch’ to national parliaments as well as the European Parliament, as opening the process of electing the Commission leadership to public scrutiny, taking the process outside the Brussels bubble, creating wider public awareness and dispelling the notion that business within the EU is always done behind ‘closed doors’.

Although the FOCM proposals were countersigned by 16 of the member state delegations in the Convention, neither option won the support of either the Convention leadership or of the larger member states.

The Convention eventually settled for a formula of words that in time found their way into Article 17.7 of the Treaty on European Union.

The Article, has a disturbingly ‘North Korean’ flavour. It gives the Parliament the right to vote on a single candidate, nominated by the European Council, to lead the Commission.  The candidate must receive the majority of the Parliament’s ‘component members’.

The Treaty provision does not contain a formal nomination process it simply requires the Council to “take into account the elections to the EU Parliament” and hold “appropriate consultations”.

Where the candidate put forward does not receive the required parliamentary majority the process is repeated.

In the run up to the 2014 appointment of Jean-Claude Juncker to head up the Commission the ‘Spitzenkandidaten’ process was incorporated into the nomination as an ’aid’ to interpreting an imprecise treaty provision.

Besides missing the opportunities offered by the more open alternatives that were available the Article 17.7 arrangements and the ‘Spitzenkandidaten’ process that has evolved around it fall short on a number of fronts.

It is a simple majoritarian idea with no truly democratic basis. The Commission presidency is treated as a prize awarded to the political group that is first over the line in the ‘election race’.  It is a political numbers game.

The implication that the group of parties who emerges from the election with the largest number of MEPs has a ‘mandate’ from the voters of Europe to the top Commission post is pushing it. Very few of the two hundred million voters who went to the polls across Europe between 23 -26 May cast their ballot with the identity of the next President of the Commission in mind.

President Macron’s La République en Marche party has labeled the process ‘a ‘democratic anomaly’ questioning the automatic right of any group to put forward the sole candidate for ‘election’ to the Commission presidency.

There is another practical reality, the composition of the political groups as they go into the EU Parliament elections is not necessarily the same as the composition of the political groups when a newly elected Parliament convenes.

In the case of the 9th Parliament parties and members elected on May have until 24 June to indicate the political group that they will be joining. There could be significant changes in the composition of the political groups up to that date. While it is highly unlikely that changes will topple the EPP group from its ‘pole’ position the fact that it could happen, if only in theory, puts a hole in a key argument for the Spitzenkandidaten process.

The 9th Parliament will be significantly different to its predecessors. The assumptions about the political structure of EU Parliament that applied when the current treaty provisions were drafted and the Spitzenkandidaten process was ‘grafted’ on to those provisions no longer apply: the old order has faded.

It would be wise to accept that the system is broken and to look for a democratic replacement. A system involving the European Parliament and the member state Parliaments based on an open and transparent nomination process – the option that the Convention on the Future of Europe considered but failed to deliver – would be a good starting point.

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