by Tiago Cabral, member of CEDU

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Homeopathic Democracy: The European Power Struggle over the Spitzenkandidaten

1. According to article 17(7), TEU “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”. There are several issues in this article, some of them we even had the opportunity to discuss before.

2. In fact, when talking about the President of the European Commission (EC) it is quite a stretch to state that there is an “election” by the European Parliament (EP). Politically inspired wording notwithstanding, the truth is that the European Council (ECON) holds most of the cards in the selection of EC’s President and the balance of power tends to favour this institution. There are also some notorious similarities between the position of the EP in relation to the ECON in the selection of the President of the EC and the position of the EP in relation to the Council in the consent legislative procedure. While it is possible to argue that there is an “indirectly-indirect election”[i], we believe that it would be more accurate to state that the Parliament approves and has veto power over the ECON’s choice.

3. However, the 2014 elections to the EP brought with them a rather interesting innovation: the Spitzenkandidaten (leading candidate). This procedure aims to give “direct” or at least “quasi-direct” democratic legitimacy to the President of the EC by tying the nomination to the EP’s elections. First the political parties choose their leading candidate, then the people vote, then the ECON and EP obey their will by confirming candidate chosen by the citizens[ii]. There is some debate on who should be nominated by the ECON and approved by the EP, the candidate from the party who won the most seats in the elections or the candidate from the coalition best placed to guarantee a passing majority. Under the current Spitzenkandidaten rules the second choice seems to make the most sense. Nevertheless, it seems likely that in the current European political climate the candidate from the biggest party will also be the best positioned to achieve a solid majority.

4. In 2014 the leading candidates were Jean-Claude Juncker (European People’s Party), Martin Schulz (Party of European Socialists), Alexis Tsipras (Party of the European Left), Ska Keller and José Bové (jointly for the European Green Party), and Guy Verhofstadt (Alliance of Liberals and Democrats for Europe) with the first eventually becoming the President of the European Commission. The initial attempt was not without its shortcomings, as a matter of fact, it had plenty of those. The election suffered from lack of voter engagement, the European campaign was dominated by national issues, the parties opted for less than ideal procedures to choose their candidates, the European People’s Party one of the initial proponents of the Spitzenkandidaten in light of having a comfortable majority in the ECON almost got cold feet etc[iii].

5. Yet, with all its limitations, the Spitzenkandidaten was a step in the right direction. Eventually direct election is the ideal solution! The citizens may prefer a certain person for President of the EC without sympathizing with said person’s political party. It is obvious that tying elections is never a perfect solution. But such a bold (but necessary) move entails amending the Treaties which is an enormous undertaking. Furthermore, the political parties could easily solve most of the issues that negatively affected the first experiment with the Spitzenkandidaten. The solution is implementing American-style primaries. As much as we like to criticise the American System, even before they were officially in the running for President of the United States more than 13.5 million Americans had already cast votes for Donald Trump and more than 17 million for Hillary Clinton in their respective party primaries. In total about 30 million people voted in both Republican and Democratic primaries. Implementing proper primaries could contribute to legitimize the candidates in the eyes of the voter, to energize the citizens increasing participation in the main election and would help in fostering a stronger European political culture. Obviously, if there were no amendments to the Treaties, the candidate even after winning the nomination from its party and after said party achieved victory in the EP’s elections would still need to be proposed by the ECON and approved by the EP. But rejecting a candidate elected in primaries with a high voter engagement is akin to political suicide and would not happen. The parties themselves have good reasons to want to implement this system, after all a strong and well-known candidate brings votes.

6. Still, one thing seems clear, having a better or worst Spitzenkandidaten is superior to having no Spitzenkandidaten at all. Both the EC and the EP seem committed to the procedure with President Juncker highlighting it as a democratic victory in the State of the Union 2017 and the MEPs point blank stating that any non-Spitzenkandidaten would face rejection in the Parliament. Unfortunately, it seems that the spirit of unity did not reach the ECON. After a recent meeting this institution was clear on the fact that it did not feel bound by the Spitzenkandidaten procedure. Donald Tusk remarked after the meeting that “when it comes to the Spitzenkandidat process: the idea that the Spitzenkandidaten process is somehow more democratic is wrong. The Treaty says that the President of the European Commission should be proposed by the democratically elected leaders of the Member States and that he or she should be elected by the democratically elected members of the European Parliament. This is the double democratic legitimacy of the Commission President. Cutting away any of the two sources of legitimacy, would make it less democratic, not more. Of course, being a Spitzenkandidat doesn’t exclude you from becoming the future President of the European Commission. I am absolutely sure it might even increase the chances, it’s obvious, but there is not and cannot be no automaticity”.

7. Legitimacy can be divided into two categories: input legitimacy and output legitimacy[iv]. Output legitimacy can be considered result-oriented legitimacy relating to the results of the policies adopted, input legitimacy relates to who makes the policies and how those people were chosen. According to Abraham Lincoln government should be “of the people” and “by the people”, meaning composed by the people’s peers elected as representatives by the people. When Tusk talks about legitimacy his focus is on input legitimacy and thus so shall ours be. Regarding input legitimacy his critics are baseless at best and pure nonsense at worst. Depending on the electoral procedures of the Member-States some of the members of the European Council are directly elected by their citizens (direct democratic legitimacy) and some are indirectly elected, for example, by the national parliament. These representatives nominate a candidate for President of the EC giving him some degree of indirect legitimacy. At this stage, concerning the States where the European Council members are indirectly elected we already have indirectly elected representatives choosing other indirectly elected representatives giving the EC’s President a diluted input legitimacy. Then the EP must approve the candidate. While the MEPs are directly elected they are not exactly free to choose who they see fit. Thus, we have directly elected representatives approving (not freely choosing like an election implies) an indirectly elected representative chosen by a combination of directly and indirectly elected representatives. By the time the procedure finally reaches its end the connection between the voter and the EC’s President is extremely thin. And we should not forget that the root of the input legitimacy of the European Council members and the MEPs is exactly the same: the European people. So, when President Tusk tries to divide State legitimacy and European legitimacy such a separation proves artificial.

8. With the Spitzenkandidaten it is fairly (or at least more) straightforward. The European people choose their favourite parties and candidates, the ECON and the EP obey, and thus the EC’s President has “quasi-direct” democratic legitimacy. This legitimacy could be stronger if the parties organized proper American-style primaries achieving a level that could be compared to true direct democratic legitimacy. Nevertheless, the status quo is better than the alternative of input legitimacy diluted to homeopathic levels that the ECON seems to prefer.

9. The problem at its core is no more than a power struggle between the institutions. Who wins might depend on the reaction of the European citizens to it. If there is no reaction the ECON will emerge victorious, if there is some backlash this institution might decide that it is not a battle worth fighting and back down. With that in mind the heads of State and heads of government represented in the ECON might still be haunted by their current position regarding this issue when facing populist parties at home who accuse the EU of having a democratic deficit. It is probably hard defending the state of the EU’s democracy if you had an active role on its deterioration…

[i] See, Paul Craig, The Lisbon Treaty: Law, Politics, and Treaty Reform (Oxford: Oxford University Press, 2013), 90.

[ii] See, Tiago Sérgio Cabral, “Democracia, Legitimidade e Competência Legislativa na União Europeia”, in UNIO/CONPEDI E-book 2017 – Interconstitucionalidade: Democracia e Cidadania de Direitos na Sociedade Mundial – Atualização e Perspetivas Vol. II, coord. Alessandra Silveira (Braga: CEDU, 2018), in Press

[iii] See, Sara B. Hobol, “A vote for the President? The role of Spitzenkandidaten in the 2014 European Parliament elections”, Journal of European Public Policy 21, 10 (2014): 1528-1540; Thomas Christiansen, “After the Spitzenkandidaten: fundamental change in the EU’s political system?” West European Politics 39 (2016): 992-1010.

[iv] There also some alternative suggestions for this the division like the tripartite input, output and throughput legitimacy but since only input is relevant for our argument we shall not address this debate. See, Vivien A. Schmidt, “Democracy and Legitimacy in the European Union Revisited: Input, Output and ‘Throughput’ Political Studies 61,1 (2012): 2-22.

Picture credits: Election.