The Pitfalls of Parliamentarisation: Why the Procedure of Appointing the European Commission should be Changed

Introduction

The European Parliament can be considered the true winner of this year's European elections. Thanks to the nomination of Spitzenkandidaten (leading candidates) in advance, the Strasbourg assembly obtained the de facto right to select the president of the Commission. In previous election cycles, the European heads of state and government had always been able to designate the president without outside interference. Despite this momentous shift in the EU's institutional balance of power, the thorough parliamentarisation and democratisation of the European system of government has nonetheless yet to be achieved. As illustrated by the continued low turnout, European citizens once again perceived the election as a rather inconsequential contest–-a sentiment only marginally changed by the personalisation of the campaign. To begin with, substantial policy differences between the two favourites for the top post in Brussels–-Social Democrat Martin Schulz and his centre-right counterpart Jean-Claude Juncker–-were few and not easily identified by European voters. In addition, it quickly became clear that a parliamentary majority for the election of the Commission president would require the consent of both parties (Decker 2014).

The establishment of a quasi-grand coalition by force is not only due to the electoral outcome but also to the manner in which Commission posts are filled after the election of the institution's president. In a normal parliamentary democracy, the head of government has the capability to appoint individuals to fill the administration's ministerial posts. Of course, certain limitations exist in practice here too: in a coalition government, its leader only has the capacity to assign ministers to portfolios that have been allocated to his party and, even then, certain proportional factors need to be taken into consideration. However, aside from these restraints, he enjoys a substantial degree of independence regarding personnel decisions. In contrast, within the EU the Commission president's hands are tied in two ways when it comes to appointing his team of commissioners. First of all, European treaties dictate the strict equality of all member states within the College, as each one sends a single commissioner to Brussels. Moreover, commissioners are exclusively nominated by the member states’ governments. According to Article 17, Paragraph 6 of the Treaty on European Union (TEU), the president of the Commission only has the capacity to allocate portfolios to the team he has been provided with and to appoint vice-presidents.

The obstacles: the parity principle and the nomination of commissioners by member states

The impracticality of such statutes and their inherent role as an obstacle to a further democratisation were once again demonstrated during the formation of the Juncker Commission. Let us first examine the provision of member state parity. This arrangement takes neither the supranational character of the College nor the different political weights of the member states adequately into account. Larger EU members seek to compensate for the latter by laying claim–-on behalf of their designated commissioners–-to portfolios deemed to be of particular importance. In the process, the president's leeway is even further curtailed. Moreover, through these actions larger member states contribute to the perpetual relegation of commissioners from smaller countries to less significant posts–-even if they are highly qualified and respected. France, for example, managed to obtain the economic and financial affairs portfolio for Pierre Moscovici, while Italy received the equally prestigious post of high representative for foreign affairs for Federica Mogherini. Both candidates had previously elicited strong concerns within the Council and the Parliament.

The most recent European elections have illustrated that continuing to provide member states with the exclusive right to nominate commissioners no longer makes any sense. If the president of the Commission is now chosen by Parliament instead of the Council, his position rests on a substantially higher degree of democratic legitimacy, which increases his standing vis-à-vis the Council. Such a rise in stature requires the allocation of means into the hands of the president or the parliamentary majority backing him to enable the implementation of the agenda championed by both during the election and for which they now possess a mandate. This requires the appointment of commissioners who are pursuing similar goals and have the structural capacity to develop corresponding initiatives. The nomination of commissioners by member states tends to yield a partisan composition of the College that primarily reflects the partisan majorities of the Council rather than those of the Parliament. In the case of a grand coalition–-the European Parliament's traditional modus operandi–-this difference is usually negligible. However, if the president of the Commission were to be backed by just one of the two large party families the difference would become critical. In such a circumstance, the current method of nominating commissioners would result in the parliamentary opposition being nonetheless represented in the Commission, thus effectively invalidating the democratic mandate of the parliamentary election.

If party politics and their inherent constraints regarding proportionality are turning the functional workings of parliamentary democracy on their head, the nomination process also stands in the way of sensible proportionality proposals. Jean-Claude Juncker's stated target of raising the share of female commissioners to 40 % (amounting to 11 commission posts) made little headway, as most member states refused to nominate suitable female candidates in the first place, despite repeated requests. Parliamentary pressure also did not do much to help soften this non-compliant stance. The fact that the Commission is subject to parliamentary approval remains a blunt sword, as any threats to reject the team as a whole will carry limited credibility after the president and member state governments have completed the arduous process of putting together the executive body. ¹ The Council's loss of power pertaining to the selection of the president of the Commission has therefore not (yet) been extended to the formation and investiture of the entire College.

How to achieve the best composition of commissioners?

How can this important second step towards the parliamentarisation of the EU system be brought about? With regards to member state parity, changes to the structure of the Commission are central to any meaningful reform attempts. The institution's excessive size and the frequently impractical division of portfolios are acknowledged, even by those who remain in favour of the equal representation of member states. Substantial structural reforms are required to address these features though, otherwise the unsatisfactory allocation of important and less important portfolios between the bigger and smaller states will remain. The parity principle's status as a sacred cow among member states is illustrated by the outright rejection of Article 17, paragraph 5 of the TEU and Article 244 of the Treaty on the Functioning of the EU, which called for the Commission to be downsized by a third (to 19 members) from 1 November 2014 and a system of rotation to be introduced to ensure the continued equal treatment of all member states. A unanimous decision by the European Council revoked these provisions. Thus, any revision or modification of the parity principle would require the consent of all member states.

What would a solution to this enduring problem look like? Organisational research has shown that a functioning institutional body should be limited to a size of no more than 20 members. ² Jean-Claude Juncker has attempted to streamline parts of the institution that he chairs by placing portfolios with shared areas of responsibility in clusters. It is hoped that the commissioners within these clusters will now be able to better coordinate cooperation between the portfolios in question. A more sensible step would undoubtedly be to directly merge their areas of responsibility into larger units. If one considers that the EU possesses fewer legislative powers than a normal nation-state, 15 commissioners would seem to be sufficient. This would of course entail the representation of around only half of all member states within the Commission. Such a potential impasse could be resolved by assigning a deputy to each commissioner. This would have the added advantage of having an automatic successor in place should a commissioner leave the College. The country whose commissioner has just retired from their post would then get to designate the new deputy.

This still leaves the question of how a 15-member Commission would be assembled. A certain quota that grants preferential treatment to the larger member states appears unavoidable. One proposition would be to provide the 6 member states with a population of more than 30 million people each (Germany, France, the United Kingdom, Italy, Spain and Poland) with permanent seats, while the remaining ones would be assigned according to a rotation system that guarantees equal treatment. Such a model would emulate the setup of today's UN Security Council. A different suggestion has been proposed by German political scientists Buchstein and Hein (2009). Instead of undergoing inevitably onerous negotiations for the distribution of Commission seats, their plan proposes the use of a ‘weighted lottery’ instead. The weighting would be based on the principle of degressive proportionality, which is already used to apportion seats in the European Parliament and causes a slight underrepresen-tation of the bigger and a significant overrepresentation of the smaller member states. Applying it to a lottery would make the representation of larger countries within the Commission highly probable. At the same time, their smaller counterparts would receive a fair chance of procuring a seat within the College as well. Success in the lottery would then–-contrary to the current system–-guarantee a major portfolio. And, even if the luck of the draw was not on their side, a deputy post would still be theirs.

The nomination of commissioners presents a less complicated challenge, precisely because the treaties allow for a greater scope of interpretation. For example, they do not prescribe that each member state has to provide the president of the Commission with just a single candidate for a post in his administration. Nor is the right to nominate a candidate necessarily a prerogative of the representatives of national governments; Article 17, paragraph 7 of the TEU only makes mention of ‘suggestions made by Member States’. The overarching objective of any reform pertaining to the personal composition of the Commission has to be to allow for greater influence and say by the president of the Commission and the parliamentary majority that sustains him at the expense of the member states’ clout on this matter.

A variety of different solutions offer themselves for consideration in this case as well. The president of the Commission could, for example, be given the right to fill a number of portfolios with his ‘own’ candidates. Member state suggestions would then only be binding for the remaining posts. Or, governments could be required to nominate several candidates for each portfolio, presenting the president with a pool from which to pick a preferred team. The reluctance of member states to implement such a change voluntarily was once again illustrated by the recent selection process of the Juncker Commission, as the designated president's requests on this matter fell on deaf ears among most national governments. Included in the constitutional convention's initial draft, the proposition to nominate a number (three for each portfolio) of candidates was eventually rejected by the heads of state and government. In reality this proposal also carries several disadvantages: first, internal disputes within national governments over nominees would multiply. Second, only a select few candidates would eventually join the Commission, leaving the rest empty handed. Third, governments could still be tempted to exert pressure in order to push through a particular candidate. Finally, the possibility of the president of the Commission having to select a candidate from the opposing political camp could not be ruled out, even if he was presented with a collection of potential commissioners.

The selection process for Commission candidates

Against this backdrop, the question of a more drastic measure is raised; namely if it is not more sensible to remove the selection process from the jurisdiction of national governments and place it into the hands of the electorate. If voters play a central role in appointing the president of the Commission through their parliamentary preferences, their participation in the selection process of (national) commissioners seems only logical (Decker 2012). A concrete outline for this procedure could be as follows: in every member state–-depending on its size–-between two and five individuals would be elected to join the group of potential commissioners from which the president of the Commission eventually chooses. The nomination of individual candidates would be conducted by the national parties in conjunction with their pan-European sister parties. Elections would be held on the same day as those for the European Parliament and the candidates with the most votes would join the group of possible commissioners. After the countries to get a post in the Commission have been determined, its president would then select the members of his administration and their deputies from the group of elected candidates. As is the case today, the allocation of portfolios and appointment of vice-presidents would be in the president's hands as well.

The proposal implies that only around a third of all elected candidates would proceed to Brussels as members of the Commission or deputies. This is, on the one hand, necessary because the president of the Commission would otherwise be left without the appropriate leeway and independence to assemble his team. On the other hand though, the potential failure of candidates with the best results (particularly if they hail from a large, populous member state) to obtain a post would be rather difficult to sell as a legitimate democratic outcome. This drawback could be resolved through pairing it with the simultaneously held European parliamentary elections. In such a scenario, Commission candidates would generally also stand for a seat in the European Parliament and sit atop their respective parties’ candidate lists. In the case of their election, a seat in parliament would be guaranteed. If the existing incompatibility of a Commission post and membership of the European Parliament is retained, the seat of the Member of the European Parliament promoted to the Commission could be filled by another national candidate.

That members of the government are recruited from parliament is commonplace in parliamentary systems, even though a seat in the legislature is in most cases not a formal prerequisite for joining the executive branch. Parties usually acknowledge this practice in parliamentary elections by installing potential ministers as their leading candidates. These norms are disregarded at the European level. For example, the German Christian Democratic Union contested last May's elections with David McAllister as its top candidate, even though it was clear from the very outset that the former state premier of Lower Saxony was not going to join the Commission. Instead the government subsequently nominated the sitting Energy Commissioner and fellow Christian Democratic Union member, Günther Oettinger. For his part, the incumbent commissioner did not seek a parliamentary mandate in the elections, a trait shared with almost all of his colleagues, including President-designate Juncker, something which British Prime Minister David Cameron took great pleasure in pointing out during the heated discussions surrounding the nomination of his former prime ministerial counterpart from Luxembourg. A mere six members of the Juncker Commission, which was given the seal of approval by the Council in October 2014, had been elected as a Member of the European Parliament before. ³

The election of Commission candidates by European citizens would first and foremost increase the democratic credentials of the Commission. In addition, it would serve to further Europeanise European elections. Not only would this empowerment of the EU's citizenry increase the incentive to take part in the EU's elections, but the introduction of prominent domestic candidates could also persuade national parties to campaign more actively on behalf of a foreign Spitzenkandidat. The national orientation of voters, an inherent feature that in no small part exists due to the variety of language barriers alone, would thus be ‘harnessed’ for a European purpose. For their part, nominees for the office of Commission president would gain the advantage of being able to lobby for the nomination of well-suited individuals within their respective party families–-candidates who would subsequently form part of their Commission team. This would also assist the establishment of truly European parties in place of the hitherto rather loose association of national parties.

Conclusion

The remaining question now is whether these proposals stand a chance of coming to fruition. Critics rightfully point out that in an environment of increasing calls for the renationalisation of powers from Brussels, the last thing the EU needs is another protracted constitutional debate–-particularly in light of the fact that the arduous task of ratifying the Lisbon Treaty has only been concluded relatively recently. The prospects for reforms that require the unanimous consent of the EU's member states–-such as eliminating member state parity within the Commission or the introduction of a common electoral law for European elections–-therefore appear rather dim, regardless of how desirable these proposals may be.

A different picture presents itself concerning suggestions that pertain to areas below this level. Countries open to steps that intend to facilitate a further democratisation and which are willing to strengthen and expand integrationist ties between each other can push ahead with certain additional reforms that will pave the way for others to follow later on. A key reason behind the EU's democratic deficit can be found in the unwillingness to apply the idea of a multi-speed Europe to the EU's institutional structure. On the one hand, the significant majority of EU member states who also share the euro have decided to advance substantial reforms in the economic and fiscal policy spheres. On the other hand, these revisions are still being enacted within the framework provided to member states by the existing treaties, whose unanimity rules are slowing down the decision-making process. As an alternative, states could take part in a broader reform effort to introduce new procedures confined to the intergovernmental domain outside of this structure, a development even more questionable from a democratic point of view. Believing that Europe's heads of state and government are going to be the primary force for institutional change appears to be a rather misguided conclusion against this backdrop. Instead, the most important impetus for change will, in all likelihood, emanate from the European Parliament and the continent's public. Thanks to the uncompromising stance exhibited by Members of the European Parliament during this year's deliberations surrounding the appointment of the Commission president, Europe has moved significantly closer to becoming a parliamentary democracy. Moving further towards this goal, however, will require a good many additional steps and fundamental changes. To be sure, a stronger influence in selecting the president of the Commission is a step towards strengthening the position of the European Parliament. But a parliamentary system of government is still a long way off.