Reducing the size of the Commission, in 2009, in 2014, what a headache!

(B2) The reduced Commission in 2009, according to the Treaty of Nice (reminder)
The number of commissioners in the next European Commission is - until further notice (until all 27 member states ratify) - fixed by the Treaty of Nice. However, this provides that the new Commission will have to be reduced from the autumn of 2009 (and not in 2014 as provided for by the Treaty of Lisbon), the Council of the Member States setting the terms. It is the application of Article 4 of Protocol No. 10 on enlargement (“from the moment the Union has 27 members”) which modifies Article 213 § 1 of the EC Treaty.

A very structured device
To be more exact, the number of commissioners will have to be “lower than the number of member states”.
And the Council, unanimously, must determine:
(1) the number of members of the Commission;
2° the methods of equalitarian rotation containing all the criteria and rules necessary for the automatic fixing of the composition of the successive colleges, on the basis of two principles (fixed by the Treaty):
(a) "Member States are treated on a strictly equal footing as regards the determination of the order in which their nationals are present and the time in which they are present within the Commission; the difference between the total number of terms of office held by nationals of two given Member States can never be greater than one";
(b) subject (to the first principle), "each of the successive colleges shall be constituted in such a way as to reflect in a satisfactory manner the demographic and geographical range of all the Member States of the Union".
In other words, it is not obvious at all. And the debates are likely to be long in the Council to reach an agreement on the exclusion of certain nationals from the Commission. Except to postpone any decision until later.

Two solutions seem excluded:

1° Make a decision specifying that the number of commissioners is 27. The formulation of the Treaty could not be clearer: reduction in the number of Commissioners, unanimous fixing of the number (therefore reduced) by the Council, this formula therefore seems to me to be excluded (unless one has a purely formal reading of the Treaty ).

2° Exclude the Irish commissioner. It's silly. Apart from the fact that this decision would be politically unjust and unthinkable, it seems impossible legally: unanimity is needed for such a decision, and it is hard to see unanimity being achieved on this question (an Irish government that approved this measure would be suicidal); moreover, the combined criteria - egalitarian, demographic, geographical representation seem difficult to justify to me.

Two solutions seem more realistic, even if they can lead to dead ends:

3° Decide nothing and keep a Commission of 27 Member States. In this case, there is a de facto lack of the Council. Any European institution (Parliament for example or a Member State) can then refer to the Court of Justice to find it. If the appeal succeeds and the Court condemns, the situation is not clearer, there will be a political crisis. There may therefore be a temptation of a "pact of silence" = all the institutions agree not to take the Council to court (an individual cannot in fact sue an institution for failure to act).

4° Not agreeing on the terms (which is tantamount to deciding nothing). According to a Commission official close to José-Manuel Barroso, "we would have institutional continuity". In other words, the Commission would continue to operate with 27 members. This assumption seems valid. An action for failure to act before the Court can always be attempted, but there too, there can be a "pact of silence" (see above). And recourse more difficult to demonstrate (there is not actually a deficiency but the impossibility of deciding: many community texts take several years to be approved).

Two pragmatic solutions can also be mentioned:

5° Voluntarily seize the Court of Justice, by "spinning the baby" on him. The Court has this power - rarely used - to decide between different member states.

6° The 27 decide to reduce the Commission, but later, or gradually to arrive at the figure of 2/3 (provided for by the Lisbon Treaty on a very distant horizon). It remains to fix the process of egalitarian reduction.

7° We "invent" a solution not provided for by the texts. Either by giving "compensation" to the nationality not represented, for example by reserving for it the posts of Secretary-General of the Commission or Director of the Legal Service (two key posts within the European executive who attend meetings of the college or give their "imprimatur" on the texts discussed). Either by providing for a faster rotation system: over a half-term (two and a half years), difficult to justify with regard to other texts.

We can also "guess" precisely...

8° A legal action by an individual before the Court of Justice. For example, a company harmed by a decision (or a non-decision) in competition matters, invokes - in the course of its action for annulment of the decision - an exception of illegality, the lack of regularity of the composition of the Commission before the ECJ. This is a possibility that a European diplomat suggested to me (after my article in Europolitics on the Treaty of Nice)! And quite rarely used if I believe the Court's database (*). That's right, but the result doesn't seem obvious and above all this hypothesis comes into play in several cases...
a) Not obvious. On the one hand, an individual must attack before the Court, invoke this plea. It will then be necessary to wait some time, at least three years, before a decision (I do not see the Court deciding in summary proceedings on this subject). On the other hand, it is necessary that the Court accepts this argument on the form initially and especially that it accepts it on the bottom (which is not obvious). It would indeed be necessary to prove that the composition of the Commission is in default (see 4°), that this defect played a role in the decision. And there, I have a doubt: I do not see how a Commission of 27 - even "irregularly constituted" - would decide differently from a Commission of 18 or 22.
b) Double-edged. Let us note that the hypothesis of an appeal by an individual can play a role in other hypotheses: if the 27 decide to reduce the Commission. This hypothesis is moreover more plausible, a representative of a country which would not be represented on the Commission would wait for the first opportunity to attack and invoke that the criteria fixed by the Treaty are not met (egalitarian rotation, geographical balance, demographic etc...).
(*) In the Court's database, I noted two judgments: one concerns a Member State Germany v Commission
C-334 / 99 of January 28, 2003; the other a company: Kvaerner T-227 / 99 of February 28, 2002. Both concerned Commissioner Bangeman's "leaving" after his participation in the Telefonica company and resulted in a refusal to take into account the arguments of the stakeholders.

Reducing the commission a big mistake?
Personally, I think that reducing the Commission is one of the big "mistakes" of the Treaty of Lisbon (like the Constitution). Naively in my young years, when I dreamed of Europe in theory, I actually thought that it was the best system to ensure the effectiveness of the Community system. In practice, when you see how a Commission works, you can clearly see that what creates a dynamic is not the number of commissioners but the personality, the collegial will and the desire for Europe of each other. A Commission reduced to 20 members with a falot president (I will not give names -:) ) will give a Commission as low as 40 with a dynamic president. Moreover, when we see the feelings at the level of the Member States, it is in my opinion more important that the Commission has a guarantee of legitimacy, impartiality, understanding of what is happening in each country. It is therefore in the interest of the Commission and of Europe as well as of the citizens that each country is represented in the European executive.

What legitimacy would, in fact, have a Commission who - for example - would prohibit measures for Alitalia (where there would be no Italian commissioner), which would sanction Poland or Lithuania (if a commissioner from these countries is not represented)? It's not believable. This is not serious ! Such a European Commission would be inherently weak. Note that in all the European institutions (European Parliament, Council, Court of Justice), there is a national from each Member State. What seems to me to be reformed is therefore more the mode of designation, totally in the hands of the States and which leads to the lowest common denominator. A system (like that proposed by certain MEPs) which would allow each State to propose two or three personalities and the European Parliament to choose between them, seems to me to be a better guarantee of efficiency than the reduction of the Commission.

(NGV)

Photo credit: NGV ("Headquarters of the European Commission in Brussels)

(article originally published on the blog "europesocial")