Why the European Council is NOT under a legal duty to appoint Jean-Claude Juncker

von Kenneth Armstrong

Speculation over the nominee for the next President of the European Commission has been rife in newspapers, media and the blogosphere. In the face of such uncertainty, it might be reassuring to believe that, as Mattias Kumm asserts, there is an actual legal duty to appoint a particular candidate. No such luck. If there was to be legal certainty, then the authors of the treaty could quite easily have provided that clarity, including by institutionalising the Spitzenkandidat concept in the treaties. They did no such thing. Instead what they did was mandate institutional deliberation over the nominee under a penalty default of a European Parliament veto. Far from the legal architecture creating a duty to appoint a particular candidate, it creates the conditions for deliberation over (a) what the recent elections to the EP mean (itself a matter for political debate and contestation) and (b) how to translate complex and sometimes contradictory political messages into the programme of the next European Commission and its President. This interpretation requires some elaboration.

Kumm’s argument appropriately seeks to marry together the text of the treaties with where the EU is now in political and democratic terms. Let’s start with what the treaties do – and importantly – do not say. Article 17(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 the candidate so nominated does not command a majority then within one month the European Council shall propose another nominee ...

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