If the EU Treaty of Lisbon enters into force, the heads of state or government of the member states have promised Ireland (and their own countries) that each member retains a Commissioner.
The European Council on 18 to 19 June 2009 issued the following (re)statement about the size of the Commission (Presidency Conclusions, point 2; Council document 11225/2/09 REV 2):
“Having carefully noted the concerns of the Irish people as set out by the Taoiseach, the European Council, at its meeting of 11-12 December 2008, agreed that, provided the Treaty of Lisbon enters into force, a decision would be taken, in accordance with the necessary legal procedures, to the effect that the Commission shall continue to include one national of each Member State.”
Lisbon II referendum
In principle, this means that there will continue to be an Irish member of the Commission 2009 and 2014, instead of a smaller Commission under the Treaty of Nice from 2009.
If the Treaty of Lisbon enters into force, there will be a national from each member state in 2009, but the appointment procedure will change. (In 2014 there would be a smaller Commission, without the promise to Ireland. Cf. amended Article 17(4) and (5) TEU.)
The European Council made the promise to Ireland in good faith in June: The parliaments of all the other member states had approved the Lisbon Treaty. Normally, the completion of formal ratification of international treaties causes no problems in constitutionally sound democracies.
After the 30 June ruling by the Federal Constitutional Court, the Bundestag and the Bundesrat have passed new enabling legislation, and on 22 September the Court has dismissed an appeal against the new legislation. Federal President Horst Köhler has signed the new enabling legislation, which will enter into force today. Tomorrow Köhler will sign the ratification instrument.
Polish President Lech Kaczynski has been politicking by refusing to sign the ratification instrument, but he has given the European leaders assurances that he will, if Germany ratifies and the Irish vote Yes in the Lisbon II referendum. Even Poland will not necessarily delay the entry into force of the Lisbon Treaty beyond the date for Irish ratification, if Kaczynski acts promptly.
If all the formal ratifications take place within October, the Treaty of Lisbon would enter into force on 1 November 2009.
The new Commission should start its work the same day, but even in the best case a short delay is foreseeable.
Although the next President of the Commission, José Manuel Barroso, has been approved by the European Parliament, shifting to the Lisbon Treaty, the list of members has to be adopted by the Council by common accord with the President-elect. The European Parliament will hear the proposed Commissioners, before it gives its vote of consent to the Commission as a body, including the “double-hatted” High Representative.
In practice this means that the European Council would have to appoint both the new High Representative/Vice-President and the new President of the European Council before the proposal to the European Parliament.
If the European leaders remember their and the Lisbon Treaty’s words about “an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen”, their nominations, proposals and decisions must leave ample time for the European Parliament and EU citizens, ahead of the final decisions.
After consent by the European Parliament, the Commission is then appointed by the European Council acting by a qualified majority (amended Article 17(7) TEU).
Naturally, the EU institutions and the member states want the new Commission in place as soon as possible, but time is running short.
The European Union needs working institutions. A short “extra time” for the caretaker Commission, which has been hobbling on its last legs for quite a while, may be unavoidable. But a prolonged period of uncertainty is hardly acceptable.
The Czech Government, the Czech Parliament, the EU institutions and the member states are now held hostage by President Vaclav Klaus, who has refused to sign the ratification instrument and seems to thrive on damaging the reputation of his country, with the implicit support of David Cameron and William Hague.
If the Czech constitutional system (Government, Parliament, Constitutional Court) is unwilling or unable to sort out the deliberate sabotage of one state organ – the President – in short order, the Swedish Presidency of the EU Council seems to be heading for an unenviable task.
Are the Czech institutions unable to give any intelligent answers? Are they devoid of constructive solutions? Are Czech citizens content to see their President making a fool of their parliamentary democracy? Are the European leaders paralysed?
It is still possible that the Lisbon Treaty enters into force at a later date, which guarantees an Irish Commissioner, but there is a clear risk that the EU member states have to appoint a smaller Commission under the (amended) Treaty of Nice.
This gives rise to legal, political and practical problems. Are we going to have two Commissions before 31 October 2014, because of Vaclav Klaus?
The Swedish Council Presidency and the EU institutions have an obligation to keep the EU’s citizens informed about the options and their consequences, every step of the way.