by Pedro Froufe, Editor
 and Tiago Cabral, Master's student in EU Law at UMinho

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Democracy, negotiation, personal ambitions and backroom deals: the moment of truth for the spitzenkandidaten

1. Last year we had the opportunity to write about the spitzenkandidaten procedure for selecting the President of the European Commission (hereinafter, “EC”) and the power struggle that was brewing between the Institutions with the spitzenkandidaten (lead candidate) at its centre. Knowing what the spitzenkandidaten procedure is and how it works is indispensable for understanding the current essay, thus if the reader is not familiar with it, we would ask you take a few minutes to read our May 2018 editorial before continuing.

2. With the Juncker’s Commission term of office about to reach its end (31 October 2019) and with a new European Parliament (hereinafter, “EP”) with a quite different composition starting its work on 2 July second it is time to select a new President of the EC and, in fact, also the Presidents of the European Parliament and of the European Council (hereinafter “ECON”). Moreover, a new High Representative of the Union for Foreign Affairs and Security Policy and a new President of the European Central Bank will have to be selected shortly. As it is possible to recognize there are a plethora of senior and highly influential positions that will be selected by one or both the EP and the ECON in a very short timeframe. This, of course, will lead to difficult negotiations which creates an obstacle for the spitzenkandidaten procedure because it takes out what is, arguably, the most valuable prize from the table before it can even be in play. As we know the EC has a truly European and supranational character and, for many, due to its powers and competences the EC can be seen as the true “executive” power in the European Union. Furthermore, even if the EP and the Council (of the European Union) are the co-legislators and the ECON defines the broad political priorities, it is the EC who has the prerogative of, in most cases, proposing the laws. The European constitutional design means that the balance in power tilts heavily in favour of the Commission.

3. Obviously, the spitzenkandidaten would not be in danger if there was a clear majority in the EP (either by a coalition or a single party) that could impose its lead candidate to the ECON. As we have stated previously, we are not of the opinion that the candidate of the party that got the most seats automatically gets the right to be President of the EC. That is no more than an oversimplification of the procedure and would be only suited for a system with direct elections (which we actually find the ideal solution). The leading candidate of the party with the largest parliamentary representation will, in most cases, be in the premium position to achieve this objective. After all, there is an unwritten rule or, more accurately, a democratic practice that whoever wins the elections, even absent a majority, should get the position or at least get the first opportunity to try to form the necessary coalition. However, we should not forget that democracy, whether in, is national or supranational is first and foremost the pursuit of consensus. The “burden” to find said consensus and build a coalition in the EP that allows him/her to be selected as President of the EC rests on the candidate. If the candidate that got the most votes, but no majority is unable to do and someone else is, it means that someone else is able to command a broader democratically elected coalition and, therefore, having superior democratic legitimacy should be selected instead.

4. With regards to the ECON’s constitutionally assigned duties article 17(7), TEU states that “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”. This should be read as giving the ECON the position of gatekeeper, not negotiator. The ECON should evaluate which candidate is indeed able to build a suitable coalition in the European Parliament and, if no exceptional circumstances arise, select him/her. If the above-mentioned candidate fails, the ECON should keep this procedure until an agreement is reached.

5. It is known that the ECON never considered itself bound by the spitzenkandidaten because it reinforces the EP in terms of power distribution. Still, it is also true that the current distribution of the EP does not offer a clear solution within the spitzenkandidaten. Let us first examine the results of the last European Parliament elections: The European People’s Party (EPP) “won” but it was no more than a pyrrhic victory with a net loss of 37 seats.

The Progressive Alliance of Socialists and Democrats (S&D) did not capitalize on the EPP’s result and in fact, lost almost as many seats. On the other hand, the S&D’s results while bad, were not as disastrous as some would predict and the Iberian Peninsula is gaining influence in European negotiations. Renew Europe (previously ALDE) grew substantially but not enough to grasp first or even second place, the same could be said about the Greens/EFA. The Eurosceptic Parties had some gains but, in the end, the Eurosceptic wave was more a ripple and they will most likely remain isolated in the EP. It is a fragmented Parliament and no single Group or even an alliance between two forces (akin to the one generally worked out between the EPP and the S&D) is not enough to guarantee the necessary votes to approve a President of the EC[i]. The answer will undeniably rest on a Portuguese style “geringonça” or contraption: a solution where the integrationist forces find an equilibrium based on their shared pro-EU platforms. While there are many similarities between them (and consulting the voting registers in the EP is enough to conclude that they run quite deep), there are also more than a few differences and finding an equilibrium is no easy task. In the ECON meeting of 20-21 June and again in 1 July, European leaders failed to arrive at a consensus with France and Germany, the general forces behind European integration colliding on every detail, from the ideal candidate to the spitzenkandidaten procedure itself.

6. The choices of leading candidates are also not being helpful in breaking this deadlock. The person in the best position to succeed Jean-Claude Juncker should be the EPP’s spitzenkandidaten: Manfred Weber. However, there are more than a few obstacles to Weber’s candidacy: a) the EPP won but hardly in a convincing manner; b) his performance in the campaign trail left something to be desired; c) the balance of power between pro-European forces actually favours the centre and centre-left (S&D, Renew European and Greens/EFA) or at least a figure that is more moderate than Weber (akin to Juncker in 2014); d) he has no executive or leadership experience, with his top position having being leader of the EPP’s group in EP; e) the EPP no longer has a majority in the ECON. In fact, currently the Liberals have 9 seats in the ECON, the EPP 8 and the Socialists 6; f) the fact that he did not disavow Viktor Orbán earlier even in face of growing rule of law issues in Hungary makes him a difficult choice to justify to more moderate and liberal forces; g) there are arguably stronger and more qualified leading candidates as Frans Timmermans and Margrethe Vestager (both widely respected in European circles); h) there are arguably stronger and more qualified choices than Weber outside of the leading candidates that could (in theory) command a majority as Michel Barnier which possesses the advantages of coming from a successful negotiation on Brexit, being from the EPP and being French (to ensure France’s support) or eventually a national leader. One must note that Barnier specifically was almost running a parallel campaign to Weber’s.

7. As we write this essay European leaders are still discussing potential names for succeeding Juncker at the helm of the EC. It would be extremely risky to guess if the spitzenkandidaten will survive the deliberations in the ECON. It would be equally imprudent to state that whoever is nominated by the ECON will be confirmed by the EP. Let us not forget that this Institution previously promised to stand by the spitzenkandidaten and any third candidate might not be accepted due to democratic concerns. If there is an institutional conflict, either the ECON or the EP will probably be weakened and that should be avoided at all costs. French President Emmanuel Macron stated quite well that failure in negotiating diminishes the EU’s credibility[ii]. If European leaders are not able to compromise on certain national preferences, political rivalries and personal ambitions consequences will be dire. A united EU built on diplomacy, negotiation and consensus benefits every Member State more than any short-term political victory. On a positive note, if negotiations are successful and a person that enjoys wide support is found, it is possible that the chosen candidate enjoys a stronger position with the Institutions and (maybe) even the European citizens than he/she would absent the difficult negotiation. The one who emerges victorious from a difficult competition usually commands more respect. With this in mind, let us not forget that European citizens were expecting their voice to be heard not only for the European Parliament but also for President of the EC. In general, participation in the elections was higher and citizens (mostly) rejected populist alternatives, European leaders should respond in kind and not with backroom deals that can called upon to criticize the European project in the future.

[i] We should note that the distribution of MEPs will change somewhat when and if the UK leaves the European Union in October. Nevertheless, as of this writing it is not certain that the UK will indeed leave in October (the deadline was extended twice now, but it is also true that the UK can also leave earlier if it approves the deal currently agreed with the UE which seems extremely unlikely) or that it will leave at all. Still, with or without the UK in the European Union the balance does not shift enough to change the argument. In fact, Eurosceptics would probably be the ones losing the most with Nigel Farage’s Brexit Party being the largest Eurosceptic (or more accurately anti-EU) force in the European Parliament.

[ii] For all intents and purposes the French President is not a supporter of the spitzenkandidaten and, unfortunately, is actually guilty of some of the things he is accusing other leaders.

Pictures credits: Shaking hads… by Max Pixel.