La Commission, c’est moi?

Contrary to cartoonish portrayals of Ursula von der Leyen as a latter-day Caesar, who may be illegitimately presidentialising the Commission, the current Commission President is merely furthering a more centralised vision of the institution that is implicit in the extent of her organisational powers under Article 17(6) TEU. While there are strong legal and constitutionally moral arguments for an alternative, more plural executive understanding of the Commission, the Treaties leave room for a contest between presidentialist and pluralist visions to take place across time in the political arena. Moreover, a more presidential conception of the Commission, while it may raise some questions regarding the mode of election of the Commission President and the role of the Commission, may also possess some positives.

On Thursday last, Politico published an eye-catching article entitled “From queen to empress: Inside Ursula von der Leyen’s power grab”, accompanied by a photo illustration portraying the Commission President as a Roman emperor. On the same day, tackling the same theme in less bombastic fashion, Prof. Alberto Alemanno authored a thought-provoking LinkedIn post, in which he posed the question, “[a]re we witnessing a ‘presidentialisation’ of the EU Commission?” Alemanno proffered the argument that President von der Leyen, “[t]hrough her restructuring and centralization of the College … is further advancing, possibly completing, the presidentialisation process that began with Barroso, and was pursued by Juncker.” Such a presidentialist conception of the Commission, Alemanno continued, entails the individual Commissioners acting as advisers to the President, rather than in their Treaty-required roles as independent decision-makers. Alemanno pointed, in particular, to von der Leyen’s new structure at the Commission as evidence of this trend, since it serves to “blur[] the portfolios among members and downgrad[e] the VP status into executive positions”.

To the extent that Alemanno’s observations suggest that the Commission under President von der Leyen is drifting towards a more presidentialist tendency, in which more power is being concentrated around the office of the President, and away from a purely plural executive, in which each member is independent of one another and is of de facto equal status, he is undoubtedly right. However, Alemanno’s argument, as I understand it, sails into choppier waters when he implies that this more presidentialist tendency runs counter to the Treaties’ understanding of the Commission’s nature. In my view, Treaty reforms to the Commission and the office of Commission President have created some contradictions. These contradictions, in turn, have left room for contestation between more presidentialist and plural conceptions of the Commission, and that contestation is ripe for settlement in the political arena over time. There are, of course, limits to how far a process of presidentialism can go: formally, for decision-making purposes, the Commission remains a plural, collegial institution; however, the organisational powers granted to the Commission President by the Treaties may allow an assertive President to expand their power and influence within the College of Commissioners.

There are certainly numerous arguments in favour of the Commission as a purely collegial pluralistic institution, in which all Commissioners are of de facto equal rank and are to exercise their own independent judgment. Beyond the necessary qualifications to hold office at the Commission, one may point to the fact that the Commission “shall act by a majority of its Members” (Article 250 TFEU) and that it is collectively responsible to the European Parliament, in that the Parliament may only vote on a motion of censure against the Commission as a body (Article 17(8) TEU and Article 234 TFEU).

Conversely, there are several points deriving from the Treaties that may be made in favour of a more presidentialist conception of the Commission. First, the Commission President (as President-elect) exists independently of and prior to the appointment of the rest of the College. Moreover, the President-elect has, to the extent they wish to wield the power, considerable control over the subsequent composition of the College, since the Council adopts the list of potential Commissioners “by common accord with the President-elect” (Article 17(7) TEU). The President retains full control of the Commission’s composition once it is confirmed: since the entry into force of the Treaty of Lisbon, Article 17(6) TEU allows the Commission President unilaterally to compel the resignation of an individual Commissioner, with the exception of the High Representative for Foreign Affairs and Security Policy, for whom a special procedure is provided (Article 18(1) TEU). Second, Article 17(6) TEU grants wide-ranging organisational powers to the Commission President which may allow them to exert significant control and influence over individual Commissioners, whether through re-shuffling of portfolios (Article 248 TFEU) or division of portfolios, etc.

In circumstances in which there are two plausible rival conceptions of the Commission (though they may more accurately exist on a spectrum), the reality is that when there is a contest between them, the conception that is to prevail will depend on the approach of an individual Commission President, as well as the power and influence they can wield over other institutional actors and within the Commission. When this power and influence is significant, cries for the independence and equality of individual Commissioners will be reduced to mere exhortations of constitutional morality. The Treaties establish a loose framework within which organisational politics inside the Commission must operate and it is politics that will determine who comes out on top. President von der Leyen appears to have grasped this dynamic.

The increasing power that Commission Presidents may wield in determining the composition of the Commission and in directing its organisation have certainly helped assertive Presidents to drive a more centralised conception of the institution. The most significant of these powers, and the one which may serve as the invisible hand that allows Commission Presidents to act forcefully within the institution is the existence and growth of the extent of the dismissal power. Introduced initially in the Treaty of Nice, reforms made at Lisbon allowed the President to use this power unilaterally, i.e., without the consent of a majority of the College, for the first time. Though the power has never been used formally, it existed in the background to the resignations of former Commissioners John Dalli and Phil Hogan in 2012 and 2020 respectively. The existence of this power – as well as its almost absolute scope – may alter the dynamic of the relationship between an assertive President and an individual Commissioner to one of de facto subordination. The power of the President to re-shuffle portfolios, etc. also allows the President to (effectively) demote individual Commissioners or to unsettle individuals, break up alliances, etc. While the President ought to exercise their internal organisational powers in a manner that ensures the Commission acts “consistently, efficiently, and as a collegiate body” (Article 17(6)(b) TEU), enforcement of this standard may be difficult. That the changes brought by Lisbon were intended to increase the President’s influence over the Commission would also seem supported by the fact that the initial intention was to reduce the size of the College of Commissioners, weakening its link to the Member States and making it more manageable for a Commission President.

While a Commission President with significant personal and political influence may be able to leverage dismissal and organisational powers within the institution to pursue a more centralised conception of the Commission, once must be careful not the exaggerate the possibilities these powers provide. There are also significant counterbalances. For more extreme uses or abuses of these powers, a Commission President might run the risk of inviting a European Parliament Motion of Censure or even impeachment proceedings (Article 247 TFEU). Any Commission President also faces political forces with which they must contend, whether they be within the Commission (which, at the very least, will remain formally a plural executive) or without (the need to work with Member State governments, other EU institutions, etc).

Whether or not one sees a more presidentialist trend at the Commission as a positive or negative development, it is a valid and viable conception of the Commission. The nature of a presidential role and its outer boundaries are rarely, if ever, defined precisely in constitutional texts, but worked out by successive officeholders: in the United States, it was Andrew Jackson who famously jettisoned previous presidential reticence about using the chief executive’s veto power, much to the (understandable) consternation of the National Republicans and later Whigs. As aforementioned, President von der Leyen appears to understand the extent of her organisational powers and seems willing to leverage them to the advantage of the presidency.

There are certainly some reasons to be concerned about a more presidentialist trend at the Commission. As Alemanno appears to suggest, centralisation appears to go hand in hand with greater politicisation, which in turn raises the question as to how the Commission should reconcile its political and more technocratic roles. Increased power being concentrated in the Commission President may also give rise to questions about the democratic legitimacy of the manner in which the President is appointed, and whether a more direct electoral procedure is warranted. Member States and their publics, who often have a misconceived notion that a Commissioner is their Commissioner, may also resent a real or perceived loss of influence within the institution. Furthermore, some uses of organisational powers to divide portfolios, etc. may also have negatives consequences for the efficiency of the Commission’s bureaucracy and the quality of its output.

However, there may also be some positives in the presidentialist trend. First, given that the intended Lisbon reform to the size of the Commission has never come to pass and the College remains almost comically bloated at 27 Commissioners, von der Leyen’s more hierarchical and centralised approach may allow for a more efficient management of the institution. Second, a more centralised approach may also reduce another risk of over diffusion of power: a lack of accountability. Individual Commissioners can be held to account by the President; the President, in turn, may become a more visible entity and one with whom the buck may stop for other institutional actors and the public. As previously mentioned, however, such a development would lead to discussions about the appointment and need for greater accountability of the President, discussions I will leave for another day.