According to the Article 214(1) of the Treaty establishing the European Community (TEC), the members of the Commission are appointed for a period of five years. (The term in office is renewable).
If the Treaty of Nice remains in force, the Commission which should take office from 1 November 2009 would normally be appointed for five years, until 31 October 2014.
However, if the Irish vote Yes in the Lisbon II referendum on 2 October 2009, the Treaty of Lisbon should enter into force, but we do not know if or for how long Czech President Vaclav Klaus might persist in his refusal to sign the ratification instrument.
Following an Irish Yes vote, the leaders of the EU member states may still have to initiate the appointment procedures for the next Commission under the Nice Treaty, without knowing when the Lisbon Treaty enters into force.
Article 17(4) of the amended Treaty on European Union (in the consolidated version of the Lisbon Treaty) states that “(t)he Commission appointed between the date of entry into force of the Treaty of Lisbon and 31 October 2014, shall consist of one national of each Member State, including its President and the High Representative of the Union for Foreign Affairs and Security Policy who shall be one of its Vice-Presidents”.
The Lisbon Treaty seems to indicate that a new Commission is appointed from the day the treaty enters into force, and the new treaty replaces the old one.
After a Yes vote in Ireland, there would be no doubt about the democratic legitimacy of the Lisbon Treaty, despite eventual rearguard actions by President Vaclav Klaus and his fringe of supporters.
The "double-hatted" High Representative/Vice-President would have to be incorporated in his/her new capacity, despite a prior "26 + 1" solution under Nice.
This leads to the conclusion that the EU institutions should appoint the possible Nice Treaty Commission 2009 only until a new Commission can be appointed under the Treaty of Lisbon.
We look forward to reasoned information from the Swedish Council Presidency.