The coming of spring promises many changes, including a newly elected European Parliament and a new college of Commissioners leading the European Commission. The re-opening of the Spitzenkandidaten system has also stirred the debate on the democratic legitimacy of the EU institutions. Focusing on the European Commission, one question that needs answering is about its members: are the European Commissioners creatures of the world of politics or instead independent experts of a technocratic ‘government’?
Looking at it from a constitutional perspective, the Commission is a unicum, with no one-to-one equivalent in nation states. The only substantive provision in the Treaties regarding the work of Commissioners is included in Article 17(3) TEU, which specifies that Commissioners shall be appointed ‘on the ground of their general competence and European commitment from persons whose independence is beyond doubt.’ However, that does not mean that Commissioners must be completely apolitical: indeed, the Guidelines of the Commission provide for the possibility of Commissioners taking part in the campaigns and elections of the European Parliament (see Article 10). While political standing helps to set the wheels in motion, there should also be a sense of democracy and direct responsibility to the electorate of Commissioners, if the Commission is to resemble a ‘European Government’. If priority is to be given to Commission duties over party commitment (Article 10(1) Commission Guidelines), then Commissioner candidates are hardly going to act in their neutral and professional capacity, if that would simultaneously mean kicking away the ladder that puts them in their current position. In other words, if Commissioners belong to political parties, this inherently puts them into a precarious conflict between party affiliation and their work as independent public officials (Gehring and Schneider p. 1).
The legal framework to appoint Commissioners
Since the transformation from the High Authority and the merger in 1967, the Commission has seen a gradual increase in the number of Commissioners (from the original nine to the current 27). The Delors administration is still cited today as the ‘golden standard’ for Commission administrations. The direction and dynamism of this administration helped to solidify the position of the European Commission as the principal advocate for further integration. Among its greater achievements are the completion of the Single Market and the introduction of a single currency. The main reason for setting the Delors administration as the measuring stick is a specific attribute the administration possessed – an ability to identify the political objective, weigh up competing interests, and set out a road map to achieve it. In a sense, one could say the Delors administration was political on the EU level.
Since then, the power of the Commission has steadily increased, with Romano Prodi being dubbed ‘virtually the prime minister of the European Union’, mainly because the President of the Commission could co-decide with Heads of Government/State of the Member States on who should sit in the new administration – a change introduced with the Treaty of Amsterdam (Article 4(4)). At the time, both the German Chancellor Schröder and Mr. Prodi expressed the desire to form the new Commission as a body of independent experts and not of retired or retiring politicians. How does this reflect on the appointment of the Commission as the ‘European Government’?
Article 17(7) TEU stipulates that the candidate for President of the Commission is to be proposed by the European Council, taking into account the results of the European Elections, and then to be elected by a simple majority in the European Parliament.
For the rest of the Commissioners, neither the Treaties nor any inter-governmental agreement specifies how candidates for the Commission are to be chosen in individual Member States. In other words, no source of EU law regulates national procedures of selecting a candidate for the European Commission. The singular provision on this is Article 17(3) TEU that states that ‘the members of the Commission shall be chosen on the ground of their general competence’ and not based on their electability as politicians. This paucity of procedural guidelines itself leaves Member States free to implement their own procedures. For example, Austria regulated it partially in Article 23c of its Federal Constitutional Law, while Slovenia included it into its Cooperation in EU Affairs Act. Similarly, both examples give discretionary power to the national government to propose a candidate, who has to be approved by the national legislature – either the pertinent committee or the plenum.
The Commissioner’s role – is it political or technocratic?
The technocratic side
While it is customary for national governments to use the political apparatus to get elected, some scenarios require an appointed technocratic government of experts to lead the country, in the capacity of interim or caretaker governments (Lachmayer and Konrad). Such technocratic governments are considered to be above party politics, which enables them to bridge the political gaps between political parties.
Since the job of Commissioner requires a certain amount of independence and impartiality towards individual Member States, a technocratic candidate, with no political background, yet with expert knowledge in the department’s work, would seem to meet this ideal. If Article 17(3) TEU is to be analysed word by word, then candidates are to be ‘chosen on the ground of their general competence and European commitment from persons whose independence is beyond doubt’. While the administrations before the Juncker administration have not been viewed as ‘political’, they always included experienced public officials, who have been well acquainted with the functioning of the European Union (Peterson p. 9-21). In fact, if the principal role of the Commission is to combine all 27 different national perspectives and unite them into one voice, while reaching the optimal consensus, that ‘speaks for Europe’, technocratic – and not political – qualities seem a better choice.
While the role of Commission President has certain functions resembling a Head of Government (Craig and de Búrca, p. 32), which require a more political profile, the role of an individual Commissioner itself does not necessarily require large political capital. This makes the Commission wear ‘two hats’ (as the 19th-century expression goes) – being involved in politics, on the one side, and remaining above the political ground, on the other. The potential problem that could emerge from a politically-disengaged administration may be the political implementation of the Commission’s work: if the Commission’s work is detached from the political reality, both sides of the spectrum – the political and the administrative – are doing Sisyphean tasks.
In the past, it would seem that almost every administration had a mixture of both. This might be attributed to the selection procedure, where Member States should (ideally) propose three candidates for the (future) President of the Commission to choose from. The last two European elections have shown us that this formal requirement is mostly ignored, even when the Member States were asked to adhere to a female-male balance of the Commission. As mentioned previously, every administration had a combination of both the administrative and the political component, but there has never been a formal requirement to balance both sides in the entire College of Commissioners. A possible reform of this is discussed below.
The political side
Some authors consider the Commission to be an inherently political institution, which sometimes tries to tone down its own political importance, to give itself a sense of impartiality. The practice of appointing party members as the candidates to become Commissioners is evidently more widespread, with 24 Commissioners being national party members or affiliated to a party. As far as political appointments are concerned, the past has also shown us that playing party politics in the Commission does not end well: as seen by the example of Sylvie Goulard in 2019 as the French candidate being replaced by Mr. Breton.
The administration under Jean-Claude Juncker was judged as one of the more politically motivated Commissions in the history of the EU. With Mr. Juncker being elected following the Spitzenkandidaten procedure, the very birth of this administration was political. When forming his Commission, he ‘promised to put together a political Commission’ (Juncker, 2014). While this might have been desired to ‘revamp’ European integration, it has proven to be a significantly damaging factor for the impartiality of the Commission on rule of law issues (noticeably in Poland and Hungary). A ‘deliberate governmental strategy of systematically undermining all checks and balances in Poland’ (Pech) and ‘saying goodbye […] to liberal democracy’ (Hungarian Prime Minister Orbán in 2018) were not developments that took place over a short period of time. The Commission certainly tired to remedy the situation (Michelot, 2019), yet showed internal splits and hesitancy in launching Article 7 TEU proceedings. Perhaps the most important setback is that a political Commission cannot ‘pretend that all of the EU’s policy goals are reconcilable and mutually supportive’ (Dawson, 2018): in the crucial politically disputed areas, a political Commission pursues the prevailing political majority and not ‘the wider EU interest’.
Taking these findings into account and applying them to the current electoral campaign, having Member of the European Parliament (MEP) candidates who already had a post in the Commission could improve a party’s credibility in European affairs as well as signal that the candidate is prepared to face public scrutiny, at least at the level of his/her local constituency. So far, at least five of the current Commissioners are also running for a seat in the European Parliament including Ursula von der Leyen and Nicolas Schmit as Spitzenkandidaten. This, of course, does not translate to immediate electoral success for their party but could be an important factor in the final vote. Standing for the European Elections could increase a candidate’s democratic legitimacy as an individually chosen representative to hold the post of Commissioner and contribute to further democratise the Commission as an institution.
Since elections are difficult to predict, national governments rarely announce their choice for the future Commissioner, nor take a stance on the Spitzenkandidaten before the results. If a governing party does announce a candidate, it is usually either someone from their own ranks or someone with close ties to them. In doing so, the party brands them with their political colours. By avoiding naming a candidate in the campaign stage of the European elections, they partly avoid the possible embarrassment if their party were to lose the election and at the same time keep their options open, in case a broader consensus would be required.
In this regard, the current campaign in Slovenia is quite intriguing. The biggest government party announced their candidate for the future Commissioner, without even having a full list of Slovenian candidates for the European Parliament. It is confirmed that their candidate Tomaž Vesel will not lead the party into the election, nor will he even stand as a candidate. Nationally, this decision has caused a governmental crisis, allowing the Government to ignore the results of the European elections already before they have even come out as well as the opinion of other coalition parties due to the opaque rules on naming a candidate for the Commission. It is difficult to comprehend how a nominee for the Commission, who neither participates in the campaign, nor even stands as a candidate for the European Parliament can help solve the democrat deficit problem in the EU.
Possible reforms – fostering more democracy in the selection procedure
As is often the case, a blend of both systems i.e. the technocratic and the political system would be the optimal solution. As the apex of the European bureaucratic machine, the Commission requires a political charge to create wider policy. However, the bigger picture requires of the Commissioners’ expert knowledge of their own department and a large amount of independence, if they intend to do a successful job. If we accept that the Commission is simultaneously a political and a technocratic institution, might it not be sensible also to try and strike a balance between Commissioners being both political actors and impartial experts, to maximise the Commission’s efficiency?
So far, no additional requirements for Commissioner candidates have been voiced, yet it would seem that several of the incumbent Commissioners have decided to actively participate in the coming European elections, standing for election as MEPs. In this light, it would perhaps be prudent to consider the long-standing British constitutional practice that ministers – the executive – are simultaneously members of the legislature. This makes the British Cabinet effectively ‘a committee of the legislative body selected to be the executive body’ (p. 48 Bagehot 1867).
This holds significant advantages in terms of democratic accountability, since all members of the executive have been directly chosen by the people to represent them in the highest democratic institution – the parliament. In other words, this enables the public to narrow the pool of possible candidates that can hold public office. It also significantly prevents the occurrence of nepotistic appointments in the executive and legislative institutions. At the same time, ministers enjoy a certain degree of independence and a high political profile, regardless of their position in government, which contributes to their independence in cases of executive autocracy. An example of this is the unprecedented revolt in the final days of Mrs. Thatcher’s government.
Many of the above-mentioned strengths would improve the current constitutional predicament of the Commission: if fostering more democracy is the goal, then requiring future Commissioners to be a part of the biggest international democratic legislative body would give the peoples of Europe far more power in choosing their own representatives as well as the country’s representative in the Commission (although the Commissioners are expressly forbidden from following instructions of national governments or other entities). Giving the electorate the power to decide who enters Parliament and consequently the Commission would also impede the search for the ‘ideal candidate’ to lead a department. Additionally, if only members of the legislature could also occupy positions on the MEP’s staff, then the unfortunate spat on President von der Leyen’s staff and the accusations of nepotismmight have been completely avoided.
The incorporation of these potential changes would, however, likely only be possible by re-opening and amending the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU).
The epilogue after June
It should be noted that there is an important difference between participating in the European elections and being appointed as Commissioner. How one is elected (or appointed) has consequences on one’s job performance. Does participating in the elections hinder a candidate’s ability to act independently and apolitically in the future? Though the question is meant to be rhetorical, no politician would like to return to the electorate without having fulfilled at least a part of the promises and policies on which he or she was elected.
After the 9th of June, the future administration of the Commission will start taking shape. Since the biggest political groupings have returned to the election campaign with their own candidate to lead the Commission, we can justifiably claim that the Spitzenkandidaten are back. This would effectively solidify the claim of the biggest ‘winners’ in June to demand their own candidate is nominated as the President of the Commission. Given the lukewarm reception of Mr. Juncker and the rejection of Manfred Weber in 2019, the selection of the candidate for Commission President or election of the Commission President could go either way. The selection of the President of the Commission could just as well affect the proposals of Commissioners from the Member States. It would be important however, to consider the political and the technocratic arguments and ultimately usher in more democracy to the European Commission, by creating a balance of both interests – either in terms of quality or quantity.
