There is a real possibility that the European Council might not propose Claude Juncker, the Spitzenkandidat who enjoys significant majority support in the European Parliament following the success of his party in the European elections. Suppose that as part of a comprehensive personnel package the Council proposed an external candidate as Commission President – whether Christine Lagarde or someone else. Juncker lacks support with some Member States, they might argue, the British premier after having suffered at the hands of UKIP needs a victory, as does the French President after having been pummeled by the right wing nationalist Front National.

Suppose that the European Parliament responds by respectfully rejecting the candidate. Voters were given a promise during the elections, parliamentarians might say, that they would only elect a successful Spitzenkandidat as a Commission President. It is imperative that they do everything in their power to ensure that voters understand that they have a reason to go and vote and take seriously the nominated Spitzenkandidaten in the European elections four years from now. That, however, requires them to stand by their promise, irrespective of the policy views and respectable qualities that any alternative candidate proposed by the Council might have.

This kind of stand-off amounts to a power struggle between the European Parliament and the European Council. It is a power struggle with considerable constitutional policy implications. Does anyone doubt, that the power of the European Parliament would be significantly augmented in its relationship to the Council, if Parliament was effectively in the driving seat, when it comes to determining the Commission President? Does anyone doubt that under such a scenario in the next elections the choice of Spitzenkandidaten would be a high profile affair, that the political campaign would further change its character and that interest in European elections would go up? In the campaign this year the Spitzenkandidaten individually and collectively said to anyone who was willing to listen that it would all be different this time. But if this struggle will be won by Parliament, it would have been made clear and communicated effectively that everything is in fact different. On the other hand if the Council was able to effectively push through their favored candidate against the originally clearly expressed will of Parliament it would confirm all those who look at European elections with a combination of either jaded cynicism, disinterest or Eurosceptic fervor.

But irrespective of the policy-implications, how is such a power struggle to be assessed in legal terms? Does the law have anything to say about it or is it best understood as a purely political conflict, to be decided by the tactics and strategy of the relevant political actors, responsive to their own constituents and the relevant publics? In the following I will argue that Art. 17 Sect VII does in fact impose obligations on the parties and that under present circumstances the European Council is under a legal obligation to propose Juncker as Commission President.

When the German Chancellor expressed herself in a highly ambivalent way about the prospects of Claude Juncker becoming Commission President two days after the elections, just after a large majority in the European Parliamant had declared to support him, she justified her position with reference to the European Treaties: There is no automatism, she insisted. All sides should abide by the Treaty. We should remember what happened when the relevant actors start to ignore the Treaties (here she was clearly invoking the Stability and Growth Pact, violated by a number of countries, including of course Germany, which under Schröder´s government worked successfully to soften up and render unenforceable its obligations).

But the implicit claim that Parliament is violating EU Law by trying to impose its favored candidate on the Council is a nonstarter. Art. 17 Sect. 7 §1 TEU states that Parliament “shall” elect the candidate proposed by the Council. “Shall” is a term that is different from “is obligated” or “is required” or “will”. In the context of this provision it is clear that Parliament has the right to either elect or reject the candidate put forward by the Council. It provides that if the Parliament rejects the candidate, the Council has one month to propose a new candidate. Within the limits of a duty of a duty of “mutual sincere cooperation” (Art. 10 Sect. 2 TEU- more about that later), the European Parliament is making a discretionary choice when it elects or rejects a candidate for which it can only be held politically responsible.

The question is whether on the other side the European Council is free to ignore a candidate whom, following the outcome of the elections, Parliament has unambiguously declared its commitment to. According to Art. 17 Sect. 7 §1 TEU the Council is under the obligation to “take into account the elections to the European Parliament” when making its proposal. When is that obligation violated?

Here are some clear cases: If the Council were to declare before the elections that it would, no matter what the outcome, propose candidate X, it would clearly not have made a proposal that took into account the elections of the European Parliament. On the other hand the Council is clearly not obligated to propose as Commission President the Spitzenkandidat of the party that won a relative majority of seats. If a coalition of parties came together and organized a majority around a different candidate, the Council could clearly be responsive to that fact and propose that candidate, rather than the candidate of the strongest party. Furthermore the result of the elections might well lead to a situation where no candidate had a majority behind him. In that situation the proposal of the Council after consultations with Parliamentary leaders might well help forge a coalition around a candidate. So in this sense the German Chancellor was right: There is no automatism and there is space for an independent role of the European Council under Art. 17 Sect. VII.

But what if the Parliament after the election throws its support behind a candidate that has campaigned as a Spitzenkandidat in the elections? What does it mean under these circumstances to “take into account the elections”? To take into account the elections in such a case means taking into account that the elections have produced a situation in which that specific candidate has the majority in the Parliament behind him. In this constellation the duty to take into account the election translates into a duty to appoint the candidate that has the majority support in Parliament. Applied to the present context that means: The European Council is under an obligation to propose Claude Juncker as Commission President.

This is not only a semantically plausible interpretation of Art. 17 Sect.VII. It is further supported by a systemic interpretation of the TEU. In title II of the TEU relating to the democratic principles of the Union it is stated that the workings of the EU are based on the principle of representative democracy. The principle of representative democracy as it applies to the EU is then specified by pointing first to the role of the European Parliament. The role of the Council is mentioned only in second place. That prioritization of the European Parliament over the second institution, made up of state representatives, is a perfectly conventional understanding of representative democracy and also a plausible interpretation of the foundational principle of democracy under Art. 2 TEU as it applies to the European Union.

This prioritization does not undercut the often repeated and essentially correct claim that democratic legitimacy in the European Union is provided both by the European Parliament and the Euopean Council as representative institutions. The European Council does have a role to play in the determination who becomes European Commission President. But in the constellations when a clear majority in Parliament has rallied around one of the candidates that has campaigned for the office of Commission President, the role of the Council is merely formal: To propose the candidate that has the support of the parliamentary majority.

It is also true that both the Parliament and the Council as EU institutions are under a duty of “mutual sincere cooperation” (Art. 10 Sect. 2). But the concrete requirements of mutual and sincere cooperation are defined by the concrete rules governing each institution, appropriately interpreted in light of the context and purpose of the Treaty. That duty does not give the European Council powers that it would not have without it. At most it imposes a duty on the European Parliament to explain to the Council, how and why the principles governing the Treaty support its claim to appoint the Spitzenkandidat who enjoys the majority support in Parliament and no-one else. On the other hand it would be a violation of the principle of mutual sincere cooperation, if pressure was put on Claude Juncker by Members of the Council step down and to declare that he would not be available as a candidate for Commission President.

The history of democratic constitutionalism is to a large extent the struggle of parliaments against a powerful executive and its bureaucracy. This struggle takes place today on the level of the European Union. European integration has empowered Member States executive branches. Some Member States have worked hard in recent years to secure some level of meaningful parliamentary control over their executive branch acting in the Council. But for structural reasons that control is often ineffective and inevitably limited. It should not be surprising that powerful Member States, whose executives have a controlling influence, resist the kind of parliamentary democratization on the European level that the TEU, appropriately interpreted, embraces. But as citizens we should not be lulled into believing that there is much democratic virtue in their reluctance to relinquish power. And we should understand the connection between the dominant role of the executive branch of Member Statesin Europe and the rise of Eurosceptic and nationalist parties.

The German Chancellor revised her position on May 30 and stated that she would “conduct all negotiations with a view to ensuring that Claude Juncker becomes President”. But the qualifications she continues to make suggest that she very much remains willing to hide behind Cameron and a minority of other leaders to aim for “a compromise” that will leave democratic aspirations in Europe severely harmed. Citizens have good reasons to be concerned.