Why Kumm is Wrong and there is not in LAW a duty to appoint Juncker

von Kenneth Armstrong

In the debate that has followed Mattias Kumm’s bold and provocative assertion that the European Council is under a legal duty to nominate Jean-Claude Juncker for the presidency of the European Commission, there is probably a good measure of philosophical disagreement being played out. Like all such disagreements there can be reasonable grounds for taking opposing positions on what might be the best way to approach the selection of a Commission President in a way that both reflects and promotes democratic values. That would, indeed, make for an interesting debate. But that is not quite the disagreement between us which is instead based on how, legally, to read the EU treaties and what they do and do not say. In the following three points I seek to clarify, amplify and extend the argument I presented in my original response to Kumm.

Firstly, as I made clear in my earlier post, an obligation to take into account the elections to the EP is not synonymous with an obligation to nominate the candidate which the EP would wish to see elected to the Commission Presidency. The obligation is to consider the political lessons and messages of the elections which are complex and sometimes contradictory. It is worth repeating that it is the ‘elections’ that are to be taken into account, and not how the result of the elections has been translated by the EP into a process by which it nominates a candidate that it considers to be politically acceptable to it. Whatever may be the merits of the Spitzenkandidaten concept – and there may be some – the obvious limitation of the device is its reduction of the complexity of a multi-state electoral process and electoral politics down to one pre-selected candidate’s capacity to embody and personify the (fragmented) European polity. So not only is there a misunderstanding of what the treaty demands, it would be, in my view, to actually fail to take into account the elections as a whole ...

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