This year’s shambles around appointing Ursula von der Leyen as European Commission President and her college of 28 commissioners has shown just how absurd the system has become. It’s time to change the treaties.
On Monday, at long last, the European Parliament agreed to confirm all of the people nominated for Ursula von der Leyen’s college of commissioners. This followed a month of high drama after MEPs rejected an unprecedented three nominees. This included, to everyone’s shock, the French nominee Sylvie Goulard. Three replacement nominees—the other two from Romania and Hungary—have now been confirmed.
Von der Leyen says she’s now ready to start work on December 1—but she is still not out of the woods. The extension to the Brexit deadline agreed last month means that the United Kingdom is still a member until at least January 31, 2020. Under EU rules, every EU country should have a commissioner. For domestic political reasons, Prime Minister Boris Johnson is refusing to nominate anyone until after the December 12 UK election. A ding-dong match with the commission during the campaign would help buttress Johnson’s image as the man who sticks it to Brussels.
Because of logistics, waiting for the UK nomination would mean von der Leyen cannot take office until 2020. But her lawyers say they have found a loophole and can get away with starting on December 1 with a team of only 27 commissioners. Doing so, however, would expose the new commission to legal challenges against any decisions it takes in those first weeks: complainants could argue that it has been illegally constituted. So just to be safe, the new commission will probably not make any decisions or proposals until 2020. In the meantime, von der Leyen is taking Johnson to court over his refusal to nominate.
The simpler solution would have been to change the rules. Technically, the rules were already changed by the 2009 Lisbon Treaty, which would have shrunk the commission to 18 by letting the larger member states always have a commissioner, while the small ones would rotate having one. Smaller countries, predictably, didn’t like this. And after the Irish rejected the Lisbon Treaty in a first referendum, a provision was added that allows national governments to delay implementation of this change. This, in theory, is what got the treaty over the line in the second Irish referendum.
So for a legally sound way forward, the European Council of 28 national governments could just change the rules to shrink the proscribed size of the commission. But Ireland and other small countries are refusing to do this, fearful that it will set a precedent for permanently shrinking the European Commission in the future.
An Absurd Situation
All of this comes after the Spitzenkandidat debacle in July, when the European heads of governments refused to go along with the European Parliament’s unofficial system of choosing the president from candidates who campaigned during the EU election—first used in 2014 to select Jean-Claude Juncker. MEPs had said they would not confirm anyone who was not a candidate—which von der Leyen, pushed by French President Emmanuel Macron, wasn’t. But after an intense stand-off, the European Parliament lost its nerve and confirmed her by just nine votes. The MEPs’ lingering resentment, however, caused them to lash out at Macron three months later by rejecting Goulard, his commissioner nominee.
The entire formation of the EU’s executive following May’s European election has been an embarrassment. First, voters were told their vote for an MEP would determine who becomes the next EU President—only to be denied later by national governments, albeit with good legal reason: according to the European treaties, it is the right of the European Council to pick the President of the European Commission.
Then, von der Leyen was unable to fulfill a promise of gender parity in the next college because men were forced upon her by national governments. What’s more, her start date was delayed because of political and institutional power games that have nothing to do with the qualifications of the nominees. And in perhaps the most absurd final twist, one member state that is planning to leave doesn’t want to have a commissioner in the college and is thus causing more insecurity, and possibly delay.
Not a Federation (Yet)
The EU is not a country and, strictly speaking, not (yet) a federation. But it is pretty close, which means comparisons are sometimes clarifying. So it’s worth asking, what other federal government would operate this way—forcing a president to assemble a cabinet of ministers that has a proscribed number from each of the constituent states? What system would refuse to allow a president or prime minister to choose their own cabinet?
The rules governing commissioner appointments are all the more absurd when you take into account that commissioners are explicitly not supposed to be representing their countries or their political parties while in the commission. The EU executive was not set up to be a representative body. Commissioners do not answer to voters or to their national governments, and that is by design. They are supposed to be free to take decisions in the European interest, and never show national favoritism—much as a cabinet minister should also not be only thinking about the interests of their own constituents. A national government cannot remove their commissioner once they are confirmed, which is why the politics of a commissioner don’t always match their national government, which may have changed parties in the meantime.
All this being said, everyone in Brussels knows this theoretical neutrality is not always the reality. Commissioners from the biggest member states tend to be leaned on heavily by national governments—the French and German commissioners in particular. This is why national governments fight so hard over which portfolio their nominee is assigned. However, the principle isn’t completely ignored. Commissioners from small member states tend to be the best at representing the European interest over their national interest. And most commissioners are from small member states.
Time for Treaty Change
This system of each country having a commissioner was invented in 1957, when there were only six EU countries. With 28, the situation has become unwieldy.
EU leaders know the system is broken; that’s why they tried to reform the college formation rules with the Lisbon Treaty. The most obvious problem is that there are far more commissioners than needed, resulting in some being given silly titles like “commissioner for multilingualism.” As a workaround, since 2014 the commission has been assigning multiple people to the same portfolios. There are two in charge of energy, digital, defense, and taxation—just to name a few.
The too-many-commissioners problem could be resolved with a simple vote by the European Council, if the objections of Ireland and others can be overcome. But that won’t be enough. For deeper reform, treaty change is needed.
Unfortunately, “treaty change” has become a term that makes European capitals shudder. They are still scarred from the traumatic European Constitution-Turned-Lisbon-Treaty experience that lasted from 2001 to 2009. The French and Dutch rejection of the constitution in 2005 nearly derailed the European project.
But treaty change is long overdue. Before Lisbon, the EU treaties had been changed roughly every eight years. The EU hasn’t adopted a new treaty in a decade—and the latest framework was first drafted in 2001. The Lisbon experience may make treaty change scary, but it doesn’t make it any less necessary.
The Right to Choose
Here is one potential solution to the Commission formation problems: What if the president could choose for themselves how many commissioners they want, like a national president or prime minister can choose the size of their cabinet? What if the president could choose those commissioners themselves with no nationality restrictions?
Given the sensitivities of a confederation like the EU, perhaps lifting all geographic restrictions isn’t realistic. But why should the restrictions be national? Why can’t they be regional, reflecting the North, South, East and West divisions that are still very pertinent in Europe today (perhaps more pertinent than national borders). The treaties could specify that there must be at least two commissioners each from Europe’s North, South, East, and West to ensure geographic balance. The remainder could be at the president’s discretion.
And if people wanted to be particularly democratically ambitious in this treaty change, they could finally establish the commission presidency as a directly elected post.
Could this be done before the next European election in 2024? There’s no reason to think it couldn’t. But it would take EU national leaders with real ambition and drive to get this done. Right now, the only leader who seems to have this is Macron. But he appears to be more interested in protecting French interests than in instituting real EU reform that might take power away from national capitals, as these reforms certainly would.
This has been the perpetual problem with the European project: ever-closer union requires national governments to surrender some powers. Only leaders who can think strategically and long-term have been able to do that in the past. And such leaders seem to be lacking today.