EU Commission President: Who and what did we actually vote for?

Christian Joerges and Florian Rödl

“How did we vote? Did we actually vote – or did the Volk simply roll the dice?”

Niklas Luhmann‘s sarcasm in the FAZ on October 22nd 1994 referred to the Bundestag elections of that same year. Back then, the black/yellow coalition narrowly won out over its red/green counterpart. Luhmann’s commentary is not only a pleasurable read – it also contains an analysis of surprising relevance for the electoral outcome of the 2014 European elections. Luhmann argued that the differences between the two coalition blocs were minimal. One reason for this was the fact that “politicians are no longer able to support political alternatives according to their preferences, due to constraints set by our economic system”. Fundamentally, this is not much different in contemporary Europe. Certainly the party landscape is larger, more diverse and more awkward than in Germany in 1994. However, even in this contested context, no party has a promising alternative when dealing for instance with the financial markets.

What was this most recent election about? One very prominent and popular manifesto from March 9th 2014 argued the election was about nothing less than the future of Europe itself. The novelty of “different candidates running for Commission President while also representing different models of Europe”, the election of so-called Spitzenkandidaten, is seen as a quantum leap for the Union.

Miguel Maduro, Bruno de Witte and Mattias Kumm, who have developed and publicly supported the idea of electing the Commission President by the European Parliament in their policy paper The Euro-Crisis and the Democratic Governance of the Euro: Legal and Political Issues of a Fiscal Crisis, put it somewhat differently. They did not speak of competing models. Instead, according to them the direct election of the Commission president would increase the political legitimacy of the Commission, thus strengthening the institution in its new role as European crisis manager. The control over national economic and fiscal policy would be democratically legitimated and thus more easily promoted and enforced. Accordingly, it would furnish functionalist technocrats with democratic legitimization.

This understanding of the Spitzenkandidaten would surely not have motivated the citizens of Europe, especially on the so-called European periphery, to participate in the election. In this respect the manifesto was both more attractive as well as more realistic. Nonetheless, the manifesto was not able to demonstrate that the leading candidates could be the personalization of its slogans. Socialist leading candidate Martin Schulz was supposed to represent the programme of an “’alternative Europe’, one in which the market is subjected to democratic rules”. When demonizing the political alternative of “’lesser Europe’, where the market subjugates democratic rules”, the manifesto had to refer to a politician not even on the ballot: David Cameron. For the manifesto, EPP candidate Jean-Claude Juncker, now Commission President-elect did not seem to stand for anything in particular.

Despite the discrepancies between the policy paper of the professors and the “celebrity” manifesto, the recommended change was the same: we cannot wait for the natural development of a European demos or of a European party system, for electoral reform or for a fundamental reconstruction of the Union’s institutional framework. Instead a mere procedural innovation, in which the intergovernmental election of the Commission President is supplanted by a democratic election informed through party-political alternatives, would suffice to bring about profound and far-reaching change. Despite the dull, essentially national campaigns that followed, despite the disappointing voter turnout and despite the electoral success of EU sceptics, many continued to cling to this belief. In an interview with the FAZ on May 20th, 2014, Jürgen Habermas asserted that Europe would be “deeply hurt” if the heads of government wereto disregard the binding force of the electoral outcome. This analysis is seldom shared outside of Germany.

II.

Within Germany the debate is clearly influenced by Germany’s Basic Law. Under that constitution the outcome of the parliamentary elections directly determines the election of the country’s executive. This fact alone is sufficient for German commentators to criticize European procedures. An example of a typically pointed question they would ask is “whether Hannelore Kraft (the President-Minister of North Rhine Westphalia) should then be allowed to choose the next German chancellor?” An air of democratic indignation usually accompanies such criticism, as many observers believe they are witnessing an institutional clash akin to the Prussian constitutional conflict: democratic parliament versus non-democratic executive. When framed in this way, it becomes quite easy to choose sides.

Let us free ourselves for a moment of this messianic zeal. Since the election it has been often repeated that the citizens of Europe have elected Jean-Claude Juncker to be Commission President and that the will of the people cannot be disregarded. However, even if we neglect the fact that the leading candidates were indiscernible in many countries, this is strictly speaking not accurate. The European parties decided to select Europe-wide leading candidates for the European parliamentary election. The citizens of Europe were not involved in this decision, which was a result of the conflict between Parliament and Council. Consider for a moment this dilemma: What should a voter, who wanted to use his vote in order to influence the composition of the EP but not the selection of the Commission Presidency, have done? Such questions cannot even be considered when the constitution of the Federal Republic of Germany, a system in which leading candidates have been proved, tested and are normatively much more appropriate, is used as a blueprint for the European Union.

The rhetorical exaggeration of the political gains made by the European Parliament vis-à-vis the European Council would be acceptable if this path were beyond reproach. However in our eyes this is simply not the case. Commentators must cease to make inappropriate comparisons with the German constitution whenever it takes their fancy. At the time of the initial proposal of the policy paper we made our concerns clear. A concentration on the procedure for selecting the personnel at the top of the Commission is problematic as long as the instruments of legislative control over the executive are as underdeveloped as they are in contemporary Europe. The selection of a Commission President by a Parliament, which then in turn cannot check or control him or her through the right of legislative initiative or the possibility of impeachment, would be a drastically superficial and stunted version of democratic constitutionality.

Furthermore, from a federal perspective the institutional power of the Council over legislative procedure, especially given Qualified Majority Voting, is considerable. On election eve, some German politicians apparently believed themselves to be in a German federal constitutional setting as they anticipated the beginning of coalition negotiations, ending in a coalition agreement. Of course this was quickly dismissed as a Grand Coalition; one where notably the only open position was that of Martin Schulz.

Regardless, suppose a parliamentary coalition had actually decided upon a Commission programme before the election of Juncker. And then suppose first, he would have been willing to comply with the programme over the entire legislative term, and second, he would have been able to enforce it despite both his inability to select the Commissioners and his inadequate policy-making powers. Even then the Juncker-Commission would have been severely restricted by the compromise culture within the European Council. Without a qualified majority in the Council, the Commission’s hands are tied. In contrast to the members of the German Bundesrat (which additionally uses not qualified majority, but simple majority voting), the leading members of the Council are representatives of independent, competing welfare states. They are responsible to their voters for the protection of a social equilibrium within a sustainable society. These representatives are not integrated by strong parties whose centers of power reside in Brussels. The German case shows that constant resistance against the politics of the higher order comes at high prices in the short run and is almost impossible in the long-term, unless said party integration has taken place. Europe is different. Council representatives can easily block Commission policies on the European level.

Following the EP elections the prominent institutional standing of the Council became all too clear. Even though the European Council was unable to revoke Jean-Claude Juncker’s claim to the Presidency, in large part because the German public and academics were unwilling to acknowledge the peculiarities of Union law and its socio-economic foundations, they were at least able to force a compromise that would allow them to determine a “strategic agenda.” As a result, the debate over the coming Commission policy programme took place not between those parties who would also later elect the Commission President, but instead in the European Council. During these negotiations, the countries with the strongest misgivings towards a Juncker Presidency presumably also had a higher influence than those who had supported him all along. Great Britain in particular used its sizable leverage to demand a ransom in exchange for their defeat. Irrespective of the substance of the negotiation outcome, the ironic result of this professed democratic quantum leap is that the European Council was able to publicly accentuate its constitutional policymaking prerogative.

None of this may be new to the supporters of the leading candidate idea. They may not even object to our analysis. Perhaps they are anticipating that the European Parliament’s democratic claim will be reflected in the medium term by the Union’s constitutional structure (supported by the democratic claim of a truly European society) in order to then lead the Union closer in the direction of a federal framework. Let us remind you of the necessary prerequisites: The Commission President must have the power to determine policy guidelines (Richtlinienkompetenz, Article 65 Basic Law); he must have the ability to appoint and dismiss individual members of the Commission; the Parliament must have the right of legislative initiative; EP elections must follow the principal of equal representation (“one man one vote”) — and the Council must use Simple Majority Voting (nota bene: we are using the German Basic Law as a blueprint only for illustrative purposes. Other functional equivalents that would allow for the democratic parliamentary control of the executive would suffice). Additionally, domestic political parties would have to be integrated into autonomous and self-governing European parties. This however is a structural prerequisite that cannot be precipitated by treaty changes. In contrast to what is commonly believed, necessary integration of party structure is not obstructed by insufficient Union law, but is rather a result of the real and existing political and economic asymmetries between member states. The parties themselves cannot voluntarily overstep these fault lines, especially as they have been intensified and solidified as a result of the Euro crisis. (In this light, it seems rather fitting that Martin Schulz’s slogan in the latter stages of the election was “so that a German can become EU Commission President”). Against this backdrop we dare ask: what will be the fate of European democracy and of the European Integration project if these prerequisites are not completely fulfilled?

At this point the parallel to the debate surrounding the constitution of the Monetary Union is striking. It is well known that the functional pressures of the EMU severely strain the democratic and social constitution of those member states suffering from fiscal deficits and feeble growth. It is equally well known that in order to alleviate these functional pressures one of two alternatives will be necessary: either deepened economic-, social- and labour-policy integration as well as a centralization of domestic budgets, or a break-up of the Eurozone. Of course the latter option is no real political alternative (“if the Euro fails Europe fails”) as it would be extraordinarily costly and would be seen as a clear step back. Thus there must be further and profound steps of integration. However, we accordingly ask ourselves: what will the social and democratic constitutional makeup of the member states become, if these steps fail to materialize? The parallels between both streams of thought are certainly not coincidental. The leading candidates were meant as a solution to the legitimacy deficit of the Union during the Euro crisis. However, the introduction of leading candidates does not address the structural problems of the monetary union (e.g. internal currency devaluation through fiscal imbalances) but that of the structure of European democracy. The underlying diagnosis is incorrect and as a result, it is not surprising that the solution, the election of the Commission President, is ineffective amidst the continuously faulty structures of the monetary union.

In contrast to the Monetary Union, there is much less at stake in the conflict over the Spitzenkandidaten. At most, the capacity of both Parliament and Commission to continue the arduous path of incremental compromise could be harmed by the half-hearted politicization of the Presidency selection. Furthermore, a resounding yet ultimately empty promise of the democratic and social potential of the Union could once again end in disappointment. This empty promise could result in real damage, however, if and when the Commission President cannot utilize his new-found legitimacy to accomplish what was promised to the European citizenry. It is his dilemma that on the one hand a “different Europe” – one in which the market is subject to democratic norms and rules – remains unattainable, while an effective enforcement of genuine or alleged factual “necessities” would be detrimental to the legitimacy of the president and of the European project itself. In any case, the regrettable possibility remains that the EU’s opponents will strategically exploit Europe’s new social question: fears accompanying both, the dramatic asymmetries between the North and the South and the increasing imbalance within European society, provide a fertile breeding ground for further Euroscepticism. This conflict potential will not be overcome by a façade of reform in which personnel decisions are substituted for real democratic and structural change. Realistically, these obstacles will only be overcome incrementally through continuous political disputes, as well as through processes of collective learning, which are then converted into institutional change. Simple formulas for “more Europe”, even when they are rooted in historical rationality and reason, will not be a sufficient substitute for such processes.


Translated by Dustin Michael Williams, Hertie School of Governance, Berlin. This post originally appeared on Verfassungsblog.de, and is reproduced here with permission and thanks.

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