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

(BRUSSELS2) The reappointment of José-Manuel Barroso as head of the European Commission for a new 5-year mandate must be ratified by the European Parliament at 13 p.m., following a completely secret, manual ballot (not electronic voting). The constitution of the Commission and the waltz of contenders for the positions of commissioners and the High Representative for Foreign Policy should then begin. 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 come 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 approved. The nomination process will therefore begin under the Treaty of Nice and end under the Treaty of Lisbon. There is no other way, as we can see by reading the confidential note, written by Parliament's lawyers, which I was 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 well as the High Representative.

The exclusion of a commissioner.

The Treaty of Nice prescribes, in fact, a Commission composed of fewer commissioners than Member States from the accession of the 27th Member State. The provision which seems to satisfy everyone technically and politically 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 an “egalitarian rotation” system. between all states. Even if this device is not supposed to be applied beyond a few weeks and a few months. A provision provided for in the Treaty of Nice, article 4 of the enlargement protocol. 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. The other commissioners will then be appointed.

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

The appointment of commissioners follows a system that is now quite well established, 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: Parliament vote. The High Representative escapes this process, being designated under the Treaty of Nice. At least theoretically. His appointment only results, legally, from a choice of the Member States. And he does not pass the hearings before Parliament. In practice, the most likely solution is that the personality of the High Representative is included in the first round of political negotiation (between governments and the President of the Commission) and that a political agreement is reached on the appointment of the successor from Solana. But let it only be formalized a few weeks or months later, when the Lisbon Treaty is in force and the new commission appointed. The democratic crash test will then take place in front of the European Parliament for the future High Representative. And a new vote by Parliament either on the High Representative alone, or on the entire 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 desires, according to procedures specific to each State. In some – such as Belgium or Germany in the event of a coalition – the position of commissioner is negotiated when the government is formed; in others – like 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 positions 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 priority (we lack women). But the negotiating power 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 speaks, all States are not completely 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 most heated. And that it will be an element of the overall balance.

Second stage, the democratic crash test

The second round takes place in front of Parliament: each commissioner must come and appear before the competent parliamentary committee(s) depending on the file. A major oral exam 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 failed their exam: two had to abandon the post (the Italian Buttiglione, the Latvian Rute), one had been drafted but changed position (the Hungarian Kovacs). The European Parliament then decides by a formal vote on the entire 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 give the “the” to the passage of each personality: Christian Democrats of the EPP, Socialists & Democrats (read: The Socialist and Democratic Group wants a High Representative, Socialist), Liberal and Democratic (for a policy of supervision of the financial sector and towards positions with an economic aim). Even if the High Representative will not undergo this test (at least not right away), it is certain that his personality does not satisfy one or more of the groups, they take one or more commissioners of the same side “hostage” politics to express their bad mood. Even if the mood is very bad, take the entire Commission hostage. Hypothesis difficult to envisage. But we should never bet on the “moods” of the European Parliament which can always prove less easily tame than we think.

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

The incorporation of the High Representative into the European Commission requires compliance with the entire procedure, according to my analysis. There is appointment of a new commissioner: with a decision of the Council, of the Commission, hearing of the new commissioner and vote of the European Parliament. This seems clear. But that doesn't seem 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), we therefore need at least politically, and even legally, a new vote on the entire Commission, with an absolute majority (abstentions, and other absences being counted on the votes “against”, the blocking of the Commission will be mathematically easier)... As we can see, the path of the future High Representative is strewn with pitfalls. And the man – or woman – must be politically astute 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).