Saturday 9 August 2008

Elected EU President 2009?

With the Lisbon Treaty in the doldrums, the next five years for the European Union look set to begin under the auspices of the unreformed Nice Treaty. The European elections in June 2009 will take place without the timid Lisbon Treaty reforms, although few have spoken out against a ‘more democratic’ EU.

Can anything be done to enhance the democratic legitimacy of the European Union, even marginally?

Since the Maastricht Treaty every person holding the nationality of a member state is an EU citizen, according to Article 17(1) of the Treaty Establishing the European Community (TEC).

The European Parliament is elected by direct universal suffrage, as provided for in Article 190(1) TEC.

These provisions offer an objective base for some citizens’ influence in EU governance, although the European Union falls far short of a functioning democracy.


The limited powers of the European Parliament and the slow emergence of a ‘European consciousness’ have resulted in the low intensity of European election campaigns and low participation. The electoral campaigns have been fought primarily on national issues, not pan-European ones.

Article 191 TEC offers a germ ‘to forming a European awareness and to expressing the political will of the citizens of the Union’ in the form of political parties at European level.

In practice, the European level parties are still in their infancy. Funding for European parties (and foundations) has recently been provided, but they still resemble loose coalitions of national parties more than effective shapers of pan-European programmes.

There are, however, some promising signs. In the 2004 elections the European Green Party campaigned on a common programme, and the Party of European Socialists has conducted a long public web based consultation for its 2009 election manifesto.

The European elections 2009 offer the European parties an opportunity to inform the public about the political choices facing the European Union, but their success is still dependent on the contributions of the national parties, which – in general – have done little to enhance the knowledge of the public or the participation of their activists at the European level.


In addition to programmes, politics is about personalities, and democracy is about the citizens’ power to elect the office holders and to set the course for government.

The real President, since the Rome Treaties, is the President of the (EEC/EC) Commission, and the Commission still forms the executive in its areas of competence, as far as the European Union can be said to have an operative government (although the superimposed European Council has increasingly morphed into a ‘transitional government’ with a distinctly intergovernmental flavour).

Neither is democratically accountable in a satisfactory way.


The President of the Commission and the Commission are appointed by the Council by a qualified majority, but the preceding nomination of Commission President and the list of the Commission as a block are subject to votes of approval by the European Parliament, pursuant to Article 214 TEC.

Even without the Lisbon Treaty, the European Parliament has the possibility to make the European election results count, when it approves or rejects the person nominated by the heads of state or government.

Gianni Bonvicini, in his article ‘Elezione “diretta” del Presidente della Commissione europea?’, notes that the conservative European People’s Party has nominated Manuel Barroso for a second term. Bonvicini suggests that the Socialists field Pascal Lamy or Giuliano Amato, and that the European liberals put forward their own candidate.

In Bonvicini’s view this would lead to two positive outcomes. It would give weight to the Commission President and it would give a minimum of power and credibility to the European level parties.



In my view, it would enhance the credibility of the European election campaign if the European Council states well in advance that it intends to be bound by the election result, by nominating the candidate of the largest group as President of the European Commission.

This could be one small but important result of the French Council Presidency, at the December 2008 European Council.

Ralf Grahn


  1. Isn't it already a gentlemen' and gentlewomen's agreement to nominate the (or at least: a) candidate of the biggest political group in the European Parliament for Commission president?

  2. Julien Frisch,

    The idea has been expressed by a number of EU politicians, but as far as I know, the member states have indicated their will only in the context of the Lisbon Treaty, Article 17(7) of the amended Treaty on European Union to take 'into account the elections to the European Parliament'.

    Especially when the Lisbon Treaty has stalled, but anyway in the name of transparency, any intention to improve the democratic legitimacy of the Commission President would need public confirmation, not only behind the scenes talk or gentleman's agreements.

  3. Dear Readers,

    If you are not acquained with the blog of Julien Frisch, please take a look (and add it to your feeds).

    Julien offers original content, both expert analysis and personal opinions, on European matters, with the upcoming European elections highlighted in a number of posts.

    Go to:

  4. Ralf,

    Reading this article did make me smile (albeit wryly).
    Ask yourself a question: If this article had been discussing the governing structures of a country which had applied for membership of the EU, would YOU support it's application to join???
    Or would you be loftily demanding that before it even got a whiff of all that luvverly EU lolly, it puts its house in order and gets a bit of democracy?

  5. Jo,

    It is easy to answer, because I have written ages ago that the EU would not qualify for membership because of lack of democracy, and that the EU is less than credible in its propagation of democracy worldwide because of its own lack of democracy.

    Marginal improvements, like the one discussed in the post above, do not alter this situation fundamentally.

    But even incremental improvements are interesting to follow and to write about.

    I think that my own views on the need for EU level democracy are clear enough, starting with the objectives of this blog, right at the top.

  6. I agree with Mr.Bonvicini that the Eu parties should make the bold move to link the eu elections to the appointment of the Commission. It's the only thing that the Eu parties can do now, lawfully surpassing with the current rules even the letter of the Lisbon treaty.

  7. Put back the magic wand. Enough sorcerer's apprentices have been let loose on Europe over the past 10 years.

    Cannot the entire constellation of the EU "commentariat" grasp the simple point that the role of the European Commission in the institutional triangle is to be above the idelogical debate and to "promote the general interest of the Union" (Article 17 new TEU)?

    Pull away this leg of the edifice of the Community method and you will write finis to the entire European project.

  8. Black magic - necromancy to be precise - is only involved when we pretend that the present status quo is up to the challenges our continent face today and so any institutional development must be freezed.

    Can the shining sun of Anglo-Celtic pragmatism realize the despicable fact that the Commission is not just a referee, an anti-trust authority, a watchdog? That past successful commissions have held a political role? And that to "promote the general interest" is among the duties of a responsible government?

    Keep tiptoeing in the crumbling edifice and the whole union will enjoy its self-imposed irrelevance.

  9. Seachtu,

    Harry Potteresque or not, you seem to want the EU to continue according to functionalist ideas, whereas I see its future as a political union based on democratic governance.

  10. When the architect of the Constitutional Treaty, Giscard d'Estaing, was commenting upon its successor, the Lisbon Treaty, among the important points that he listed as having been safeguarded was the Comunity method. Not alone does the Lisbon Treaty safeguard the Community method, it corrects a fatal error in his own construction i.e. it remedies the extraordinary legal contradiction of allowing only the use of European laws and framework laws even in areas of complementary competence. If you do not believe me, compare the texts of Article I-34 CT with Article 289 TFEU (consolidated text).

    Take the example of public health, where there is general agreement that this is mainly a Member State competence. Article III-278.4 CT "European laws or framework laws shall contribute to the achievement of the objectives referred to in this Article by establishing measures etc." Compare this with Article 168.4 of the TFEU which refers to the adoption of measures in accordance with the ordinary legilsative procedure now defined in Article 289 to include decisions as well as directives (European framework laws) and regulations (European laws). Moreover, the definition of a decision is adapted in Article 288 to allow the Union to stop using the sui generis type of a decision required because the existing treaty states that they are binding only on the parties to which they are addressed.

    In other words, the flexibility about the choice of the appropraite legal instrument is re-established. Indeed, there is a new Article 296 (replacing Article 253) requiring that the institutions choose the appropriate legal instrument.

  11. Contd.

    There are many other examples that I could advance to show that the Lisbon Treaty, legally and institutionally, is a much stronger instrument than the CT and this is because of the fact that the Member States had the wit to realise that they were about to throw the baby - i.e the Community method - out with the bathwater.

    Put back that magic wand.

  12. contd.

    I missed Igor's point with regard to the political nature of the Commission. I accept entirely its political role but this has to be set within the institutional context permitted by the treaties. He proposes going outside the treaties, which is not appropriate in any context but especially in the context of a blog nominally devoted to independent legal analysis.

    Those who advocate an elected President of the European Commission simply do not understand how the Community system works.

    Would we have a President from the right for five years followed by a President from the left who would be seen as advocating the undoing of what his predecessor had pushed for? The idea has, unfortunately, like a lot of extremely bad ideas, gained a life of its own and remains potentially fatal to the future of the European project.

  13. The Albertine Statute, the fundamental law of the kingdom of Italy, provided for the government to be appointed and dismissed at the total discretion of the king, parliamentary majority not withstanding. Eventually, kings realized that governments without majority were powerless, so they grudgingly appointed ministers enjoying the confidence of the house. The statute remained the same, but the institutional settlement evolved.

    The treaties do not forbid an indirect election of the Commission. A new settlement, where the President is formally appointed by the council, but need de facto the confidence of the Parliament would be perfectly lawful. So, I don't see the point that I would be proposing something contrary to the treaties. Simply, an evolution of the "constitutional" (in a broader sense) settlement of the Eu.

    Yes, it's an effort to push a federal evolution of the Eu. I understand and I accept that it may be not desirable for (or considered feasible by) someone who enjoy the present settlement.

  14. Igor. You are missing the point. Neither national constitutional experience or comparison with classic federal systems explains the success of the European Union; the Community method does. Pull out one leg of the system and you will cause it to collapse.

    The language of both the current treaty and the Lisbon Treaty is a fairy-tale in the matter of the election of the President of the European Commission. The larger Member States will decide and their inbuilt majorities in the EP will ensure that they are not contradicted. The make-up of the rest of the Commission is, of course, another matter (as Mr. Barroso learned to his cost on taking up office in the matter of the first Italian nominee).

    As regards fairy-tales, that of Jack and the Beanstalk is the most appropriate. He did eventually kill the goose that laid the golden eggs. The EU goose is still fine, and will do even better under the Lisbon Treaty. Leave it alone.

  15. I recognise the importance that functionalism has held in the development of integration. But a true political union seem never to materialize, the depth of integration already achieved not withstanding.

    The Community method, which by the way is not necessarily bound to be everlasting, has evolved: we all know that provisions in the treaty calling for direct election of the Parliament and majority voting in the Council had been considered fairy-tales for a very long time...and now are reality.
    They same can happen for an evolution which doesn't contradict the treaties.

    As the Parliament sent home candidate commissioner Mr. Buttiglione, it could do in the future with candidate presidents.

    I believe that the Commission -or the body that will replace it- must become as partisan as governments are.
    I accept, without subscribing to, your opinion that such evolution would bring the eventual demise of the Eu.

  16. Just a closing comment in this interesting exchange. The developments in relation to the European Parliament can, in retrospect, be seen as an error, as they have resulted in the problem of associating national parliaments with the work of the Union which was not a major difficulty before the EP was directly elected.

    The other development was co-decision. Again, things are not always as they seem. When Member States discovered that it was taking years to get proposals through, they went back to negotiating deals through informal channels, this being aided by the fact that the procedure allows for early decision at various points. These are now being described informally as "fast-track procedures"!

    The major disadvantage of the new procedures, apart from them being very slow, is that they tend to undermine the role of the Commission. Even worse, every proposal has to be taken separately scuppering the chances of putting together "le package deal". (There was a recent success, however, when two files were taken together: in relation to working hours).

  17. No European demos; No EU democracy.

  18. Freeborn John,

    According to your logic there could be no United States, as you would have seen the 1777 Articles of Confederation as the upper limit or opted for secession. Neither could the democratic state of India exist, given the diversity of peoples and languages.

    No, citizenship with full political rights is key: a federal Constitution.


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