Why the Debate between Kumm and Armstrong is about the Wrong Question

In a recent series of exchanges, Mattias Kumm argued for the existence of a legal duty of the European Council to nominate the Spitzenkandidat for the presidency of the Commission, whereas Kenneth Armstrong denied the existence of such a duty under EU law. In the following text I am going to argue that the existence of a legal duty is the wrong question to address. Instead, we should answer two other questions: (1) whether we should wish the nomination of the Spitzenkandidat, (2) whether there are procedural possibilities to enforce such a wish. Both of my answers to these two questions will be in the affirmative, thus turning the Kumm–Armstrong debate into an ontological exercise.

The two main reasons why democracy won the contest for the leading legitimacy claim in the modern world are its capacity to generate loyalty and its self-correction potential. Citizens must have the feeling that they have a decisive say in order to build up their loyalty towards the political community and they should also be able decide about who is leading their government so they can correct policies by new personal choices. Thus, if we want the EU to use democracy’s virtues of generating loyalty and self-correction, then the European Commission (conceptualised as the government of the EU) should be elected solely by the European Parliament. If this is not the case, then – as Kumm rightly put it – it is quite difficult to explain voters what the purpose of them going to the ballot was (and will be in the future) at all. Any choice which would be different from the original Spitzenkandidat would be a slap in the face for the European electorate and would make Eurosceptic voices more plausible than ever ...

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