Why Armstrong is wrong and there IS in fact a legal duty to appoint Juncker

von Mattias Kumm

The disagreement that exists between my learned colleague Kenneth Armstrong and myself concerns the question whether the Council is legally obligated to propose a candidate that, following the election, the Parliament has committed to support. The argument supporting that claim is, at its core, simple. The elections have produced a Parliament that is committed to elect a particular candidate as Commission President (here: Juncker). If that is the result the election has produced, the Council would not be taking into account the elections, as it is obligated to do, if it made a proposal that did not reflect that fact. To challenge this argument Armstrong makes three points.

The first is conceptual. The Treaty uncontroversially has given the power to nominate the candidate for the Commission Presidency to the Council and not to the Parliament. Parliament can’t presume to nominate someone by making them Spitzenkandidaten. But of course nobody is claiming that the Parliament has the power to nominate the candidate for Commission President. By naming Spitzenkandidaten Parliament never claimed to be nominating a Commission President. European party groupings merely articulated their political commitment to elect their Spitzenkandidat, should he be able to gain the majorities support in Parliament after the elections. It is the power of the Parliament to elect the Commission President. Of course parliamentary party grouping need no explicit constitutional authorization to make such political commitments. (Not surprisingly, the Spitzenkandidaten do not have constitutional status in Germany either).

So there is no dispute about the powers of the relevant actors. The question is what legal principles, if any, govern the exercise of these powers ...

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