11 Juni 2014

Why the European Council is NOT under a legal duty to appoint Jean-Claude Juncker

Speculation over the nominee for the next President of the European Commission has been rife in newspapers, media and the blogosphere. In the face of such uncertainty, it might be reassuring to believe that, as Mattias Kumm asserts, there is an actual legal duty to appoint a particular candidate. No such luck. If there was to be legal certainty, then the authors of the treaty could quite easily have provided that clarity, including by institutionalising the Spitzenkandidat concept in the treaties. They did no such thing. Instead what they did was mandate institutional deliberation over the nominee under a penalty default of a European Parliament veto. Far from the legal architecture creating a duty to appoint a particular candidate, it creates the conditions for deliberation over (a) what the recent elections to the EP mean (itself a matter for political debate and contestation) and (b) how to translate complex and sometimes contradictory political messages into the programme of the next European Commission and its President. This interpretation requires some elaboration.

Kumm’s argument appropriately seeks to marry together the text of the treaties with where the EU is now in political and democratic terms. Let’s start with what the treaties do – and importantly – do not say. Article 17(7) TEU states:

Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission.This candidate shall be elected by the European Parliament by a majority of its component members.

If the candidate so nominated does not command a majority then within one month the European Council shall propose another nominee.

What is obvious is that there is no mention of Spitzenkandidat or any other means by which the EP might first nominate a candidate for consideration by the European Council. You can take a view on whether this most indirect means of selecting the EP’s ‘candidate’ is a good or a bad way of representing the voice and vision of a majority of Europeans – or indeed whether it might in the future become a mobilising force – but on one thing the treaties are crystal clear: the EP has no competence to propose a nominee for the European Commission presidency. Inside the EP bubble it might have felt as though it had such an institutional power and the rival ‘candidates’ might have indulged in the charade that the EP could exercise such a power, but wishful thinking does not a treaty make.

So the important point is that the power to nominate the President of the European Commission rests where it has always rested, namely with the Heads of State and Government of the Member States meeting in the European Council. Indeed, for the European Council to be under a duty to appoint a candidate nominated by another EU institution would itself amount to an unlawful delegation of its responsibilities contrary to the precise wording and intent of the treaties. The changes which have been made to the treaties to require that the European Council take into account the EP elections, to conduct consultations and to give the EP a veto cannot detract from the fundamental legal responsibility of the European Council to select a nominee.

As between the power of the European Council to nominate and the power of the EP to veto there is a need for institutional dialogue. Kumm is right that depending on the circumstances and outcome of the EP election, the candidacy of some candidates rather than others may be more compelling in political terms. Leaving aside the tendency for the Spitzenkandidat concept to create a sense of legal entitlement, it is one – albeit only one – plausible way of thinking about who would make a good nominee. But again, the choice of language of the treaty is what is interesting. The substantive requirement that is to guide the process is the open-ended ‘taking into account the elections’. The last round of elections can be read in a range of ways. On the one hand fringe and extremist parties have had some electoral success. One view may be to respond to this Euroscepticism and another may be to seek to reject it. On the other hand, the middle-ground has held up. One view may be that this consensus should be preserved while another may argue that it is this consensus which also fuels Euroscepticism. The point is simply that the conflicting messages of the European polity need to be decoded and deliberated. The idea that we ought to eschew a deliberative process designed to work out where the EU should be going, in favour of a legal duty to appoint a particular EP nominee is not just to be wrong on the law, it’s to get the politics that underpins the law entirely wrong.

Of course, the EP does have the institutional power to veto. But in the long run that is to no one’s advantage and ultimately could be argued to be a violation of the legal duty of sincere cooperation insofar as a repeated exercise of the veto sought to compel the European Council effectively to delegate its power of nomination to the EP. The better way to view the veto is as a penalty default. The role of penalty defaults is to encourage participants to reach an agreed outcome that is superior than either the certainty of an outcome that no participants in the deliberation would wish or the uncertainty of the failure to agree on an outcome and the paralysis it would create. In this way, penalty defaults can be deliberation-inducing.

Kumm’s analysis of what the treaty says about the democratic principle in the EU is as irresponsibly over-optimistic about the capacity of the EP to generate a genuine representative European democracy as it is neglectful of the powerful capacity of the European Council – through its representation of individuals democratically accountable to their own national electorates – to seek also to promote a vision of a common European good. What Europe needs is deliberation within the European Council and between the European Council and the EP. It’s also what the treaties mandate.


SUGGESTED CITATION  Armstrong, Kenneth: Why the European Council is NOT under a legal duty to appoint Jean-Claude Juncker, VerfBlog, 2014/6/11, https://verfassungsblog.de/european-council-legal-duty-appoint-jean-claude-juncker/.

One Comment

  1. Martin Holterman Do 12 Jun 2014 at 01:21 - Reply

    I agree that the drafters of the Treaties intended for interinstitutional dialogue. But I’m not so sure that it is legally required. De jure, all the Parliament is doing is giving the Council a political signal about who will or will not be vetoed. It is giving guidance about how it is planning to use its discretion.

    Whether this is harmful for the EU and/or for EU democracy is, certainly at this stage, besides the point. The text of the Treaty is clear, no need for teleological interpretation. Teleological interpretation only comes in when you try to understand what the duty of sincere cooperation means in a given circumstance, and there would have to be much more gridlock than this for me to consider that duty to be implicated.

    For now, I’d say that the Council is doing what it is entitled to do: it is having an internal conversation. At some point it will nominate someone. Maybe Juncker, maybe not. And then we will see.

    If the Council nominates Juncker, the EP will presumably appoint him, and in 2018-19 everyone and their uncle will want the EPP nomination.

    If the Council nominates someone else, there will be intense pressure from Merkel c.s. on their fellow party members to appoint. It is likely that the Parliament would reject the first alternative nominee on general principle, but they would likely appoint the second one even if it isn’t Juncker. In the end, they fear their party leaders more than they fear irrelevance. The CDU/CSU and Renzi’s PD alone combine to 65 seats and one heck of a big voice in their respective political groups.

    So as far as I’m concerned, both the Council and the Parliament can legally do whatever they like until the Parliament has vetoed two nominees. Let them politick to their heart’s content. But they’d better sort it out by the time regular Parliamentary business is scheduled to start again in September. If not, we can talk about things like sincere cooperation.

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11 Juni 2014

Why the European Council is NOT under a legal duty to appoint Jean-Claude Juncker

Speculation over the nominee for the next President of the European Commission has been rife in newspapers, media and the blogosphere. In the face of such uncertainty, it might be reassuring to believe that, as Mattias Kumm asserts, there is an actual legal duty to appoint a particular candidate. No such luck. If there was to be legal certainty, then the authors of the treaty could quite easily have provided that clarity, including by institutionalising the Spitzenkandidat concept in the treaties. They did no such thing. Instead what they did was mandate institutional deliberation over the nominee under a penalty default of a European Parliament veto. Far from the legal architecture creating a duty to appoint a particular candidate, it creates the conditions for deliberation over (a) what the recent elections to the EP mean (itself a matter for political debate and contestation) and (b) how to translate complex and sometimes contradictory political messages into the programme of the next European Commission and its President. This interpretation requires some elaboration.

Kumm’s argument appropriately seeks to marry together the text of the treaties with where the EU is now in political and democratic terms. Let’s start with what the treaties do – and importantly – do not say. Article 17(7) TEU states:

Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission.This candidate shall be elected by the European Parliament by a majority of its component members.

If the candidate so nominated does not command a majority then within one month the European Council shall propose another nominee.

What is obvious is that there is no mention of Spitzenkandidat or any other means by which the EP might first nominate a candidate for consideration by the European Council. You can take a view on whether this most indirect means of selecting the EP’s ‘candidate’ is a good or a bad way of representing the voice and vision of a majority of Europeans – or indeed whether it might in the future become a mobilising force – but on one thing the treaties are crystal clear: the EP has no competence to propose a nominee for the European Commission presidency. Inside the EP bubble it might have felt as though it had such an institutional power and the rival ‘candidates’ might have indulged in the charade that the EP could exercise such a power, but wishful thinking does not a treaty make.

So the important point is that the power to nominate the President of the European Commission rests where it has always rested, namely with the Heads of State and Government of the Member States meeting in the European Council. Indeed, for the European Council to be under a duty to appoint a candidate nominated by another EU institution would itself amount to an unlawful delegation of its responsibilities contrary to the precise wording and intent of the treaties. The changes which have been made to the treaties to require that the European Council take into account the EP elections, to conduct consultations and to give the EP a veto cannot detract from the fundamental legal responsibility of the European Council to select a nominee.

As between the power of the European Council to nominate and the power of the EP to veto there is a need for institutional dialogue. Kumm is right that depending on the circumstances and outcome of the EP election, the candidacy of some candidates rather than others may be more compelling in political terms. Leaving aside the tendency for the Spitzenkandidat concept to create a sense of legal entitlement, it is one – albeit only one – plausible way of thinking about who would make a good nominee. But again, the choice of language of the treaty is what is interesting. The substantive requirement that is to guide the process is the open-ended ‘taking into account the elections’. The last round of elections can be read in a range of ways. On the one hand fringe and extremist parties have had some electoral success. One view may be to respond to this Euroscepticism and another may be to seek to reject it. On the other hand, the middle-ground has held up. One view may be that this consensus should be preserved while another may argue that it is this consensus which also fuels Euroscepticism. The point is simply that the conflicting messages of the European polity need to be decoded and deliberated. The idea that we ought to eschew a deliberative process designed to work out where the EU should be going, in favour of a legal duty to appoint a particular EP nominee is not just to be wrong on the law, it’s to get the politics that underpins the law entirely wrong.

Of course, the EP does have the institutional power to veto. But in the long run that is to no one’s advantage and ultimately could be argued to be a violation of the legal duty of sincere cooperation insofar as a repeated exercise of the veto sought to compel the European Council effectively to delegate its power of nomination to the EP. The better way to view the veto is as a penalty default. The role of penalty defaults is to encourage participants to reach an agreed outcome that is superior than either the certainty of an outcome that no participants in the deliberation would wish or the uncertainty of the failure to agree on an outcome and the paralysis it would create. In this way, penalty defaults can be deliberation-inducing.

Kumm’s analysis of what the treaty says about the democratic principle in the EU is as irresponsibly over-optimistic about the capacity of the EP to generate a genuine representative European democracy as it is neglectful of the powerful capacity of the European Council – through its representation of individuals democratically accountable to their own national electorates – to seek also to promote a vision of a common European good. What Europe needs is deliberation within the European Council and between the European Council and the EP. It’s also what the treaties mandate.


SUGGESTED CITATION  Armstrong, Kenneth: Why the European Council is NOT under a legal duty to appoint Jean-Claude Juncker, VerfBlog, 2014/6/11, https://verfassungsblog.de/european-council-legal-duty-appoint-jean-claude-juncker/, DOI: 10.17176/20170301-135214.

6 Comments

  1. Chris Do 12 Jun 2014 at 09:02 - Reply

    Ich finde es ja schon spannend, diese sehr textualistische Argumentation gerade von einem Briten zu hören, wo doch das Vereinigte Königreich eine Meisterschaft im Handeln nach ungeschriebenen Verfassungskonventionen – auch und um besonderen im Bezug auf alles, was den Premierminister angeht – entwickelt hat. Mit der hier vorgetragenen Argumentation käme man noch nicht mal dazu, irgendwann durch Verfahrenspraxis solche Regelungen konkreter durch Handeln auszugestalten.
    Auch wenn ich natürlich ebenfalls nicht behaupten möchte, dass aus dem konkreten Wortlaut des Vertrages eine Pflicht gelesen werden kann, einen der Spitzenkandidaten als Kommissionspräsident zu nominieren, so halte ich das doch für einen etwas arg realitätsfernen und scheuklappenbehafteten Auslegungsansatz rein am Vertragstext…

  2. […] disagreement that exists between my learned colleague Kenneth Armstrong and myself concerns the question whether the Council is legally obligated to propose a candidate […]

  3. […] Juncker Kommissionspräsident wird, auch wenn der Europäische Rat laut Kenneth Armstrong auf dem Verfassungsblog nicht rechtlich verpflichtet ist, ihn zu ernennen – was Mattias Kumm  anders sieht. Simon Hix […]

  4. Christian Schmidt Fr 13 Jun 2014 at 14:32 - Reply

    „EP has no competence to propose a nominee for the European Commission presidency“
    I note that in Britain parliament has no competence to propose a nominee for the position of Prime Minister.

    „The power to nominate the President of the European Commission rests where it has always rested, namely with the Heads of State and Government of the Member States meeting in the European Council“
    I note that in Britain the power to appoint a Prime Minister rests where it has always rested, namely with the Queen.

    „Of course, the EP does have the institutional power to veto. But in the long run that is to no one’s advantage and ultimately could be argued to be a violation of the legal duty of sincere cooperation insofar as a repeated exercise of the veto sought to compel the European Council effectively to delegate its power of nomination to the EP.“
    I note that in Britain parliament has the power to reject an appointed Prime Minister through a no-confidence motion. Do you really believe that in the long run that is to no one’s advantage and ultimately could be argued to be a violation of the royal prorogative to appoint a Prime Minister and tha a repeated exercise of the veto sought to compel the Queen effectively to delegate its power of appointing a Prime Minister to parliament?

    The joke is of course that this is absolutely exactly how parliamentariy democracy was established in the first place – by parliament using its rights uncooperatively and repeatedly until the monarch effectively agreed not to use royal proragative against the wishes of parliament…

  5. […] Kumm sagt, es gibt eine Rechtspflicht für den Rat, Jean-Claude Juncker zu nominieren. Kenneth Armstrong sagt, die gibt es keineswegs. Kumm sagt, Armstrong irrt sich. Armstrong sagt, Kumm irrt sich. Sind […]

  6. […] the European Council to nominate the Spitzenkandidat for the presidency of the Commission, whereas Kenneth Armstrong denied the existence of such a duty under EU law. In the following text I am going to argue that […]

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