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The great legal headache of appointing the new Commission: any surprises to be expected?

The entry into force of the Lisbon Treaty disrupts the functioning of the European Union. It also complicates the establishment of new institutions,
start with the European Commission and the arrival of new European deputies (the Lisbon Treaty providing for 751 deputies instead of 736 as currently).

The importance of legality procedures for appointing the President of the European Commission and constituting the European Parliament should not
not be neglected. Although we can reasonably think that few member states (or even the European Parliament) will go to the Court of Justice to file a complaint. On the other hand, the slightest suspicion
of illegality will taint the illegality of any European decision for the next 5 years. A sword of Damocles could permanently weigh on these decisions, during a competition dispute
or public service. The European institutions cannot therefore afford the slightest doubt. Even if we can call this position “legalism”, as some MPs do.

An opinion from the legal department of the European Parliament which I had the pleasure of visiting shows this well. On
appointment of the President of the Commission: the big question is when the Treaty of Lisbon comes into force.
Until then, we must respect the
rules of the Treaty of Nice.

1° According to the lawyers of Parliament, as follows: “It is impossible to apply already in June 2009 the provisions of the Lisbon Treaty even before the latter has entered into force. (…) He
The very legality of the acts thus adopted, which are justiciable before the Court of Justice, is at stake.”

2° The “process of appointment of the Commission, in particular the designation of its President (must) be started without delay after the election of the European Parliament” on the basis of the Treaty
of Nice (article 214 § 2).

If the Lisbon Treaty does not enter into force before the end of the nomination process, there is no question. It is the Treaty of Nice, and it
alone, which applies (this is the solution advocated in particular by the EPP group and most Heads of State and government. And we understand why he wants to move quickly, very quickly). What
however has a consequence, which has political implications.
To appoint the other members of the Commission, the Council of the EU must “adopt the
planned decision
” (in the Treaty of Nice, article 4 of the protocol on enlargement). If all member states can agree orally, this agreement still needs to be formalized legally.
Which may not be obvious. It is, in fact, a matter of adopting a written act which excludes “at least one Member State” from the function of 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). All according to an “egalitarian rotation” system (2) between all States. Even if
this system is not supposed to be applied beyond a few weeks and a few months. The provision which seems to satisfy everyone technically and politically is that the country which has the
High representative loses his right to appoint a commissioner. Which makes it possible to have a number of commissioners
inferior au
number of Member States (condition set by the Treaty of Nice) and a High Representative, member of the Commission (condition set by the Treaty of Lisbon) without having to reshuffle the Commission
European. When the Lisbon Treaty enters into force, it is sufficient to appoint the High Representative as a member of the Commission. But it's not without its problems, in my opinion.

If the Lisbon Treaty enters into force before the end of the nomination process of the entire Commission (President AND Commissioners), it is necessary to apply the rules and to revote a
again (this is the solution advocated by the Greens and the Liberals/Democrats, and we also understand why). “Failure to apply (these) provisions would constitute a violation of the
” estimate the Parliament's lawyers, invoking the principles of public international law (article 24 of the Vienna Convention on the Law of Treaties. The new procedure
"must apply to the procedure for designating the Commission in its entirety, that is to say from the selection of the candidate for the presidency of the Commission, then the election of the latter
by the European Parliament, until the appointment of the Commission by the European Council”.
Which means starting everything from scratch: “the appointment procedure will again have to be
“. It is therefore necessary: ​​to propose a candidate for the position of President of the Commission “who could be the same candidate as the one proposed in June”, majority vote
absolute, appointment of commissioners, new hearings, appointment by the European Council of the new Commission… (according to Article 17 § 7 of the Lisbon Treaty). Even if the procedure
appears formal, it is not exempt from political risk, especially if the President of the Commission does not emerge from the vote of September 16 with a large majority.

Even if the Lisbon Treaty comes into force after the end of the nomination process, there is a problem, in my opinion (3). The incorporation of the High Representative into the Commission
European law is not without consequences in terms of procedure. There is appointment of a new commissioner: with 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), it is therefore necessary at least politically, and even
legally, a new vote on the entire Commission, by absolute majority (but not on the President). We would therefore have, whatever the solution, a new vote on arrival...

(1) The Treaty of Lisbon enters into force on the 1st of the month following the deposit of the last instrument of ratification of the Treaty. Even if the Prime Minister and the Irish President move quickly, he
will still require the Polish deposit (the signature of President Kaszinsky) and above all the Czech ratification (more complex because of the postponement of the elections, and the new opinion requested from the Court
constitutional). So not before December 1st at the very least, rather January 1st or even more If Czech complications.

(2) Equal rotation is defined according to two main principles: 

“(a) Member States are treated on a strict equal footing as regards the determination of the order of passage and the time of
presence of their nationals within the Commission; consequently, the difference between the total number of mandates held by nationals of two given Member States can never be
greater than one;

(b) subject to point (a), each of the successive colleges is constituted so as to reflect in a manner
satisfying the demographic and geographical range of all the Member States of the Union.”


(3) This point is not developed in the note that I was able to read because a good part of the reasoning is based on the entry into force of the Treaty of Lisbon before
or after October 31. But we can reason by deduction.

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).