The appointment of the president of the EU Commission: some legal and political aspects
Konstantinos Margaritis 
Citation: Margaritis K., "The appointment of the president of the EU Commission: some legal and political aspects", (2014) 20(2) Web JCLI.
The 2014 European Parliament elections introduced a brand new process within the institutional framework of the European Union with reference to the appointment of the President of the Commission. After the Lisbon amendment, article 17, par. 7 TEU replaced article 214, par. 2 TEU with the major change being related to the impact of the elections results in the whole process. In particular, article 17, par. 7 states that those results shall be taken into account by the European Council when proposing to the European Parliament the candidate for the Commission's Presidency.
At the same time, the process of nomination of the Commission's President is historically pervaded by the parliamentary system, common to the very majority of the member states. This study aims to understand how this new procedure was interpreted by relevant actors with respect to the binding effect of the elections results, by analyzing the latest (and only) case, the appointment of Jean-Claude Juncker. In addition, on the ground of this outcome, to enlighten certain legal and political aspects about the impact of article 17, par. 7 on the enhancement of democratic principles in EU by examining the principles of the parliamentary system, as well as its effect to the European identity as a significant feature of the integration process.
Between 22nd and 25th of May, the citizens of the European Union had the opportunity to vote for their 751 representatives in the European Parliament. One of the major competences of the Parliament is the election of the President of the Commission with the process being amended under the Treaty of Lisbon. Under the new institutional framework, the European Council, which proposes the candidates for presidency to the Parliament, shall formulate its opinion after taking into account the results of the electoral process.
More specifically, after the amendment, article 17, par. 7 TEU states:
"... 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. If he does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose a new candidate who shall be elected by the European Parliament following the same procedure".
For further clarification of the process, two declarations were annexed to the final act of the Intergovernmental Conference that adopted the Treaty of Lisbon with respect to the President of the Commission. Declaration no. 6 highlights the necessity to respect the geographical and demographic diversity of the Union and its member states when choosing the persons called upon to hold the offices of President of the European Council, President of the Commission and High Representative of the Union for Foreign Affairs and Security Policy;  declaration no. 11 addresses the responsibility of the European Council and Parliament for the smooth running of the process leading to the election of the President of the European Commission. The two institutions shall conduct the necessary consultations by focusing on the backgrounds of the candidates for President of the Commission, taking account of the elections to the European Parliament, in accordance with the first subparagraph of article 17, par. 7.
The issue arising from the above-mentioned change is related to the interpretation of the term "taking into account". The main question lies on whether the result of the electoral process has or should have binding effect on the decision of the European Council regarding the candidate for Commission presidency or it simply has a consultative status. The aim of this paper is twofold: firstly, to understand the extent of obligation on behalf of the European Council to abide by the elections results as illustrated in the procedure at the recent appointment of the Commission's President and secondly, on the ground of this paradigm, to draw conclusions about the impact that the reforms to article 17, par. 7 have had towards enhancement of democratic principles in EU institutional structure.
2. The latest elections' paradigm and article 17
Most of the European political parties seem to have embraced the idea of direct interconnection between the election results and the proposal of a candidate to the European Parliament for the Commission's Presidency. Following their respective internal procedures, the parties announced their candidates for the position of the President of the Commission a few months before the voting process. In this context, the European People's Party (EPP) nominated Jean-Claude Juncker, the Party of European Socialists (PES) nominated Martin Schulz, the Alliance of Liberals and Democrats for Europe Party (ALDE) nominated Guy Verhofstadt, the European Green Party (EGP) nominated Ska Keller and Jose Bove and the Party of the European Left (EL) nominated Alexis Tsipras.
This approach was in line with the position expressed by formal EU institutions on enhancing democratic legitimacy in the Union. More specifically, the European Parliament urged the European political parties to nominate candidates for the Presidency of the Commission,  enunciating the view of a deeper connection between the elections and the choices of the voters by making the alternatives more visible. Thus, political legitimacy will be reinforced since the electorate would be acquainted with the candidates, understand their political programs and ultimately be well informed in order to participate in a European electoral process. Likewise, the European Commission had repeatedly addressed the issue as an important element in the European integration process from a political standpoint. The nomination of candidates by the European political parties would deepen the debate in "european" terms by developing an agenda on the basis of the challenges the Commission has to deal with in its coming five-year term. In that sense, the electorate will take an additional parameter into account when deciding for their representatives in the Parliament related to the orientation of another formal EU institution, the Commission in a way that strengthens European identity. 
On the contrary, what could be easily observed is that the parties that strongly oppose European integration and promote a eurosceptic strategy denied proposing candidates for the Commission's Presidency. More specifically, the Alliance of European Conservatives and Reformists (ECR) strongly contradicted to the idea of a directly elected President of the Commission.  In the same line, the now defunct, openly eurosceptic Europe of Freedom and Democracy (EFD) did not initiate any procedure for choosing a candidate; unsurprisingly, its political descendant, the Europe of Freedom and Direct Democracy (EFDD) totally opposes the process of article 17, par. 7 TEU and in principle abstains from any relevant procedure.
The rationale lies upon the general perception of those political organizations on the future of the Union. The empowerment of democratic legitimacy of an EU institution especially when confirmed by the people of Europe voting as a body deepens integration in qualitative terms in conflict with the traditional ethnocentric ideology. Even indirectly elected, the President of the Commission would obtain political power derived from the people, striking the balance between EU and member states in favor of the former.
Besides eurosceptics, the position towards direct nomination for Commission's President on the basis of the elections results was not solid among the members of the rest of the European parties. Chancellor Angela Merkel (EPP) appeared reluctant to accept such a broad interpretation of article 17, par. 7 having stated that there is "no automaticity between top candidates and the filling of posts" and that after the elections there will be "many considerations" and "many discussions".  Nevertheless, this opinion mostly reflects a fear of indirect power transferring rather than opposition to the political reinforcement of the Commission. In fact, the binding effect of the results on the decision of the European Council regarding the candidacy before the Parliament substantially restricts the competences of the former in this matter since it only essentially confirms the popular verdict. Under this perspective, the leader of one of the politically most influential member states is deprived of the privilege to provide an opinion on the person taking an EU post of highest importance. 
The results of the electoral process led to a relative majority of the EPP in the European Parliament with 221 members, taking a 29,43% of the votes, whilst the PES came second with 25,43% of the votes and 191 members in the European Parliament.  In accordance with article 17, par. 7 as interpreted by both the European Parliament and the Commission, the candidate of the first political party shall be given the mandate to be voted for or against in the European Parliament expressing the verdict of the electorate; therefore Jean-Claude Juncker shall be the first seeking confidence from the Parliament, followed by the candidate of the second political party, Martin Schulz, in case of negative result.
However, the European Council did not seem ready to in globo embrace the idea of direct interrelation between the electoral result and the mandate before the Parliament. Although right after the announcement of the results, most of the European political parties agreed on giving Juncker the first mandate,  the European Council lacked the political consensus needed for such an important political decision.  After longstanding discussions, an agreement in political terms was finally reached and on June 27, Jean-Claude Juncker was proposed by the European Council for President of the Commission supported by 26 out of 28 member states.  As expected, Juncker's endorsement was widely supported in the European Parliament, being elected by 422 votes in favor and 250 against in a secret ballot taking place on July 15;  eventually the European Commission acquired its first President with democratic legitimacy derived directly from the legislature as well as indirectly from the citizens of Europe.
3. The parliamentary system
The framework of article 17, par. 7 reflects the parliamentary system in terms of the relationship between the legislative and the executive; in this context, the executive shall enjoy the confidence of the legislative. For better understanding of the purpose of the European provision, certain aspects of the parliamentary system as a common tradition in EU member states will follow, that enlighten the widely demanded enhancement of democratic principles. 
3.1 The Commission as EU executive
Since its main competences are the exercising of coordinating, executive and management functions  as well as the Union's legislative initiative,  the Commission has been widely considered to be the executive branch of the European Union.  In organizational level, the independence criterion from any member state institution set for the members of the Commission  strengthens the idea of a separate executive within the EU legal order.
Although, the evolving character of the Commission is beyond dispute, horizontally covering more and more policy areas, subsequent to the Union's growing competences throughout the years, neither the institutional power, nor its political impact could be fully compared to the functioning of a national executive. As clearly indicated in the Treaties,  the definition of the general political directions and priorities belongs to the European Council. In other words, at Union level, the basic strategic plan regarding the priorities within a governmental period (which constitutes a fundamental competence of the executive in national level) is completely out of the scope of the Commission's tasks. The main reason for this distinction lies upon the current status of the Union itself. Despite major changes forwarded in the Treaty of Lisbon,  EU still remains in a transitional condition where the institutions representing the member states (European Council, Council) are highly involved in both legislative and executive functions. This transitional character of the Union inevitably binds its functions into a game of "political balance" among the member states' officials in a way that ultimately undermines the autonomy of the Union.  Therefore, under the current institutional architecture, the Commission is hardly possible to exercise executive power comparable to that being exercised in national level. 
Coming back to the initial topic, despite the aforementioned differences in competences, the Commission does resemble, to a certain extent, to national government in terms of democratic legitimacy. As clarified in article 17, par. 7 TEU, the candidate for the Commission Presidency shall be elected by the European Parliament by a majority of its component members. In addition, the Commission is responsible to the European Parliament which may vote on a motion of censure of the Commission in a similar way that national governments are responsible to the respective Parliaments;  in case of a positive result under the process described in article 234 TFEU, the Commission resigns as a body.
3.2 A reading on the member states
The aforementioned provisions affirm the confidence of the European Parliament to the Commission under the principles of the parliamentary model. Since the constitutional traditions in the very majority of the member states embrace the parliamentary system (either in the form of Republic or Kingdom), this concept could hardly be superseded within the institutional framework of the Union. However the very idea behind the parliamentary system lies upon the verdict of the electorate. In that sense, the interrelation between the results of elections and the candidacy for the head of the executive as an aspect of the parliamentary system is apparent in a variety of forms, either as customary or explicitly written in the respective Constitutions.
From a comparative perspective, this outcome can be withdrawn by examining the relevant cases in the national legal orders of certain member states. For example, in the United Kingdom, Prime Minister becomes the leader of the majority party in the House of Commons subject to the approval of the latter,  whilst in Germany the Federal President proposes as Federal Chancellor to the Bundestag the candidate of the party who has achieved the broadest parliamentary support; for that reason since the enactment of the new Constitution in 1949, each parliamentary election has been described as "Chancellor election".  In Spain, the King nominates the President of the Government, after consultations with the candidates of the parties, who subsequently seek the confidence of the Congress.  Without being constitutionally obliged, the King traditionally gives the mandate to the candidate whose party holds most seats in the Congress, after the restoration of democracy in 1977. This tradition is included in the Constitution of Greece, where the leader of the party with absolute majority in the Parliament shall be appointed Prime Minister; if no such majority is guaranteed, the President of the Republic shall give the leader of the party with a relative majority an exploratory mandate in order to ascertain the possibility of forming a Government enjoying the confidence of the Parliament. 
The rationale behind the implementation of this doctrine lies upon two major issues. First of all, it satisfies the unbiased political demand of governability. The ultimate purpose of the elections is to guarantee institutional stability and effectiveness among institutions of representation as a prerequisite for a successful parliamentary period. Hence, in a parliamentary system the aim of governability may be achieved with much less effort under the endorsement of the majority leader for the position of Head of the executive. The second reason is mostly related to the concept of democratic legitimacy, rather than the interconnection of institutions. Under the principle of popular sovereignty, the people are the source of political power which, through the electoral process is transferred to their representatives in the legislative; eventually, on the basis of this power the legislative provides confidence to the executive. The appointment of the leader of the majority party as Prime Minister (subject to the confidence of the Parliament) illustrates an indirect form of confidence to the executive provided by the ultimate source of political power, the people, complementary to the direct confidence of the legislative. In that way, the democratic legitimacy of the institutions of representation is strengthened.
The historical development of the procedure for the appointment of the Commission President shall be seen in conjunction to the abovementioned second reason. According to the pre-Lisbon institutional framework, the Council shall nominate the person it intends to appoint as President of the Commission; the nomination shall be later approved by the European Parliament.  As the process of European integration has been advanced, the demand for dealing with issues of democratic deficit has been equally increased. The purpose of the terminology used in article 17, par. 7 focuses exactly on that issue: regarding the competence of the European Parliament, the term "approved" has been replaced by the term "elected" for the Commission President. An attempt of teleological interpretation reveals that the "taking into account" clause for the elections serves the same purpose; with the establishment of the interrelation among the people's verdict and the endorsement before the European Parliament, the President of the Commission obtains further democratic legitimacy in line with the principles of the parliamentary system.
4. Impact on European identity
An additional issue with reference to the interpretation of article 17, par. 7 is its potential impact on the development of European identity via advancing the role of the European political parties and citizens in the electoral process. As indicated in the Treaties, political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union.  Nevertheless, as it has been aptly argued,  European political parties have not yet developed a true "European" political identity but remain weak coalitions of the national parties and therefore dependent on them. Issues related to the Union are approached under national standards whereas European political parties are generally absent.
With reference to European elections, the situation does not differ much. The candidates for the European Parliament are chosen under national political criteria and most significantly, the political debate usually proceeds from the standpoint of the respective member state, hardly associated to EU problems or forasmuch as they reflect national needs. Consequently, the lack of a party system offering alternatives can be easily observed in European level, a fact that negatively affects the process of integration. This being acknowledged, the European Commission proposed the nomination of candidates for the office of Commission President by political parties as a significant step in deepening the European political dialogue.  Under those circumstances, the European parties have to prepare a European agenda with reference to their respective candidates for the Commission in advance and on that basis participate in the election battle. Inevitably, this approach contains a challenge to the coherence of positions of the parties and at a second level to their reliability, upgrading their role in the European political system. Furthermore, from another perspective, the citizens of Europe have the opportunity to identify a priori the candidates for a formal EU institution of highest importance and vote accordingly. This would constitute a unique chance for the citizenry to choose, as a single body, their preferred one for the position and not simply accept the one proposed by the European Council. Thus, the President of the Commission would emerge as a symbol of a common political will being expressed in the most democratic decision-making process, encapsulating common political principles and priorities within the citizens of all member states.
5. Concluding remarks
The latest European elections' paradigm revealed a strong disagreement in the interpretation of the Treaty provision. Although both the European Parliament and the Commission and (most of) the European political parties proclaimed the binding effect of the elections results to the decision of the European Council on the candidate for the Commission, this approach was not commonly accepted, divulging that despite the institutional amendments, there is a lack of political consensus preventing further steps towards deeper European integration. At the end, the interpretation of article 17, par. 7 turned into an issue of political balance between diverging actors with reference to the future of the Union.
As amended, article 17, par. 7 TEU constitutes a unique process in the institutional history of the Union. On one hand, the citizens of Europe have the opportunity to get drastically involved in a "closed EU procedure"; on the other hand, the role of the European political parties would be upgraded, expressing European awareness in a better sense. At the end, the President of the Commission would enjoy a higher level of democratic legitimacy and taking into account the democratic deficit that the Union is very much criticized of the enhancement of democratic procedures is a major step in order to restore EU's damaged credibility.
This conception also corresponds to the principles of the parliamentary system that constitute the guiding lines of the provision in general terms. Democratic legitimacy of the Commission primarily derives from the confidence of the European Parliament which makes the former responsible to the latter. Even not explicitly stated, the implementation of the parliamentary system in the member states denotes an additional indirect form of democratic legitimacy to the executive derived from the people. For that reason, the results of the elections for the European Parliament as the political expression of the European citizens are essential for the democratic functioning of the Union. That missing piece has therefore to be added in order to effectively and openly combat Union's democratic deficit.
Summarizing the above, the interpretation prevailed paved the way for a new era in the institutional framework of the Union. The citizens of Europe decided, even indirectly, for the first time as one electoral body for a formal EU institution. A different perception -endorsing a candidate apart from the ones nominated by the European political parties or overriding the candidate of the first party unilaterally on behalf of the European Council- would constitute a peculiar situation, essentially contra legem, as it signifies a sense of disregard to the European political parties and the will of the people.
In an attempt to further strengthen European identity, the next step in a possible amendment could be the gradual abolishment of the role of the European Council at that stage, so that the process would end up being totally "European" without involvement of an institution representing the member states in an institution principally designed to exercise European policy.
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 PhD candidate, National and Kapodistrian University of Athens, Faculty of Law, Attorney at Law
 It must be observed that the requirements of declaration no. 6 were absolutely fulfilled with the appointment of the Polish Prime Minister Donald Tusk as President of the European Council and the Italian Minister of Foreign Affairs Federica Mogherini as the Union's High Representative for Foreign Affairs and Security Policy respectively.
 European Parliament resolution on the elections of the European Parliament in 2014 (22 November 2012) < http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2012-462 > accessed 2 September 2014.
 Characteristically, the outgoing President of the Commission Jose Manuel Barroso called the European political parties to nominate candidates in order to "further Europeanise these European elections", see the relevant citations in European Commission - MEMO/13/2002 (12 March 2013) < http://europa.eu/rapid/press-release_MEMO-13-202_en.htm> accessed 2 September 2014.
 The Secretary General of the party, Dan Hannan, stated that participating in the process would be to legitimize a federalist vision of a European super-state, see Dave Keating, "ECR: "Nobody for President"" (European Voice, 20 February 2014) < http://www.europeanvoice.com/article/ecr-nobody-for-president/> accessed 7 September 2014.
 Chancellor Merkel was reportedly in favor of the IMF's Managing Director Christine Lagarde for the position of the President of the Commission, see on the issue "Merkel Eyes IMF's Lagarde for EU Commission President" (EurActiv, 3 June 2014) < http://www.euractiv.com/sections/eu-elections-2014/merkel-eyes-imfs-lagarde-eu-commission-president-302578 > accessed 4 September 2014.
 For a complete picture, see Benjamin D. Henning, Dimitris Ballas, Danny Dorling, "European Parliament Elections 2014"  PI 20. See also European Parliament, "Results of the 2014 European Elections" (24 June 2014) < http://www.results-elections2014.eu/en/election-results-2014.html > accessed 7 September 2014.
 The UK and Hungary voted against Juncker's candidacy, see Nicholas Watt and Ian Taylor "David Cameron Loses Jean-Claude Juncker Vote" ( The Guardian, 27 June 2014) < http://www.theguardian.com/world/2014/jun/27/david-cameron-loses-jean-claude-juncker-vote-eu > accessed 7 September 2014.
 European Parliament, "Parliament Elects Jean-Claude Juncker as Commission President" (15 July 2014) < http://www.europarl.europa.eu/news/en/news-room/content/20140714IPR52341/html/Parliament-elects-Jean-Claude-Juncker-as-Commission-President > accessed 4 September 2014.
 The enhancement of democratic functioning of EU institutions is an aim as indicated at the Preamble of the consolidated version of the Treaty on the European Union, for that reason a specific title II on democratic principles has been added therein.
 Article 17, par. 1 TEU.
 Article 17, par. 2 TEU.
 Simon Hix, What's Wrong with the EU and How to Fix it (Polity Press 2008) 155, Morten Egeberg, "The European Commission - The Evolving EU Executive" (2002) ARENA Working Papers WP 02/30 < http://www.sv.uio.no/arena/english/research/publications/arena-publications/workingpapers/working-papers2002/wp02_30.htm > accessed 7 September 2014.
 Article 17, par. 3 TEU.
 Article 15, par. 1 TEU.
 For a critical approach to the Lisbon amendment see, among others, Paul Craig, The Lisbon Treaty: Law, Politics and Treaty Reform (OUP 2010).
 This political balance is confirmed in article 15, par. 4 TEU which demands that the decisions of the European Council shall be taken by consensus.
 Professor Curtin uses the term "composite" to describe the nature of the executive power in EU, see Deirdre Curtin, Executive Power of the European Union: Law, Practices and the Living Constitution (OUP 2009) 65.
 Article 17, par. 8 TEU.
 Ellen Grigsby, Analysing Politics: An Introduction to Political Science (5th edn, Cengage 2011) 235.
 David Southern, "The Chancellor and the Constitution" in Stephen Padgett (ed), The Development of German Chancellorship: Adenauer to Kohl (Hurst 1994) 27.
 Article 99, par. 1 and 2 Constitution of Spain.
 Article 37, par. 2 Constitution of Greece.
 Former article 214, par. 2 TEU.
 Article 10, par. 4 TEU.
 Jacques Thomassen, "Parties and Voters: The Feasibility of a European System of Political Representation" in Bernard Steunenberg and Jacques Thomassen (eds.), The European Parliament: Moving towards Democracy in the EU (Rowman and Littlefield 2002) 15-16.
 European Commission, A Blueprint for a Deep and Genuine Economic and Monetary Union: Launching a European Debate (30 November 2012) < http://ec.europa.eu/commission_2010-2014/president/news/archives/2012/11/pdf/blueprint_en.pdf > accessed 8 September 2014.