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Appointment of the High Representative: legal complexity and political risk involved

(BRUSSELS2) The renewal of José-Manuel Barroso at the head of the European Commission for a new 5-year term must be ratified by the European Parliament at 13 p.m., following a vote by totally secret ballot, manual (not electronic voting). Should then begin the constitution of the Commission and the waltz of the contenders for the posts of Commissioners and High Representative for Foreign Policy. A waltz complicated by the legal situation.

Legal complexity...

The Lisbon Treaty - subject to referendum in Ireland and ratification in Poland (a formality) and the Czech Republic (not a formality!) - will not enter into force before December or even 2010 (NB: assuming that the Irish vote Yes. If they vote no, the debate on the future of the institutions takes another turn...). It is therefore under the current Treaty, that of Nice, that the appointment of the future Commission and the future High Representative for Foreign Policy must be endorsed. The appointment process will therefore begin under the Treaty of Nice and end under the Treaty of Lisbon. There is no other way, as can be seen by reading the confidential note, drafted by the Parliament's lawyers whom I have been able to consult. However, the two Treaties do not provide for the same appointment procedure, nor the same number of Commissioners, nor the same role of the Commissioners. So problems... Which adds political and legal risks to the appointment of the new Commission as High Representative.

The exclusion of a commissioner.

The Treaty of Nice prescribes, in fact, a Commission made up of fewer Commissioners than Member States from the accession of the 27th Member State. The provision which technically and politically seems to satisfy everyone is that the country which "has" the High Representative does not have a commissioner, just for a few months. Before that, from a formal point of view, the 27 must formalize a decision which on the one hand excludes the right for (at least) one Member State to appoint a commissioner, and to put in place a system of "equal rotation" between all states. Even if this device is not supposed to apply beyond a few weeks and a few months. A provision provided for in the Treaty of Nice, article 4 of the protocol on enlargement. If the oral agreement seems easy to make, putting it in writing and perfecting it legally, in the form of "egalitarian rotation" is not easy. Then the appointment of the other commissioners will take place.

A waltz in three beats (two beats, a pause, a beat)

The appointment of commissioners obeys a now fairly well-honed system, in two stages. First stage: proposal by each Member State and negotiation of the portfolio with the President of the Commission, parliamentary hearing; second stage: vote of the Parliament. The High Representative escapes this process, being appointed under the Treaty of Nice. At least theoretically. His appointment is in fact only the result, legally, of a choice by the Member States. And he does not pass the hearings in front of the Parliament. In practice, the most likely solution is for the personality of the High Representative to be included in the first round of political negotiation (between the governments and the President of the Commission) and for a political agreement to be reached on the appointment of the successor. by Solana. But let it not be formalized until a few weeks or months later, when the Lisbon Treaty will be in force and the new commission appointed. The democratic crash test will then take place before the European Parliament for the future High Representative. And a new vote by Parliament either on the High Representative alone or on the whole Commission, as I believe.

First stage, the negotiation between the executives

It all starts with a proposal from each Member State indicating who it intends to appoint. Each State proposes the candidate it wishes, according to procedures specific to each State. In some - as in Belgium or Germany in the event of a coalition - the post of commissioner is negotiated when the government is formed; in others - as in France - it depends only on the will of the Head of State. But this appointment must be made "in agreement" with the President of the Commission, who can, in practice, ask a State to present him with another choice and above all has the right to distribute the portfolios as he sees fit. Faced with the number of contenders for the emblematic posts of External Affairs (future High Representative), and the "economic" portfolios (Competition, Internal Market, Services, Economy, Taxation), a choice will have to be made. The States which will present a woman will have a priority (we lack women). But the power of negotiation of the President of the Commission is relative to the weight of the State (difficult to counter a British or German will, easier compared to a Romanian or Slovak proposal, it is the geopolitical reality of Europe which speaking, not all States are quite equal to each other...). Even if formally the High Representative - under the rule of the Treaty of Nice - is only appointed by a single agreement of the governments, politically it is certain that his personality will be the subject of a number of discussions, undoubtedly among the fiercest. And that it will be an element of the overall balance.

Second stage, the democratic crash test

The second round is played before Parliament: each commissioner must come and appear before the competent parliamentary committee or committees depending on the case. A great oral which is not without risk for even an experienced candidate. It's a real crash test. Some may fail the exam: in 2004, three commissioners had failed their exam: two had had to leave the post (the Italian Buttiglione, the Latvian Rute), one had been fished out but changed post (the Hungarian Kovacs). The European Parliament then decides by a formal vote on the whole of the Commission. But an unfavorable opinion in a parliamentary committee is unacceptable. The future High Representative In the hearings, the demands of the three major groups in the European Parliament will set the tone for each personality: Christian Democrats from the EPP, Socialists & Democrats (read: The Socialist and Democratic Group wants a High Representative, Socialist), Liberal and Democrat (for a policy of supervision of the financial sector and towards posts with an economic aim). Even if the High Representative will not undergo this ordeal (at least not immediately), it is to bet that his personality does not satisfy one or more of the groups, these take as "hostage" one or more commissioners of the same side politics to show their bad temper. Even if the mood is very bad, take the whole Commission hostage. Hypothesis difficult to envisage. But you should never bet on the "moods" of the European Parliament, which can always turn out to be less easily tamed than you might think.

Third stage, New vote necessary for the entry into force of the Treaty of Lisbon

The incorporation of the High Representative into the European Commission presupposes compliance with the entire procedure, according to my analysis. A new commissioner is appointed: with a decision by the Council, the Commission, a hearing of the new commissioner and a vote by the European Parliament. It seems clear. But that doesn't seem like enough to me. Indeed, it is not a simple succession from one commissioner to another, or a change of portfolio. There is a real change in the structure of the Commission: not only an increase in the number of commissioners, but also in its powers, its organization and its internal balance (the High Representative is not a simple commissioner or even a simple Vice-President, he is a personality and a quasi-institution in his own right), politically, and even legally, a new vote on the whole of the Commission is therefore necessary, with an absolute majority (abstentions, and other absences counted on the votes "against", the blocking of the Commission will be mathematically easier)... We can see that the course of the future High Representative is strewn with pitfalls. And the man - or woman - will have to be politically savvy and experienced in European negotiations... Another criterion to those that I had already outlined (read: we must start the debate on the High Representative).

Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).

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