Keywords

The European Commission is the direct descendant of the High Authority that ran the Coal and Steel Community under Jean Monnet. The Commission has to share its powers in three directions: executive power with the Council of ministers and the European Council of heads of state or government; legislative power with the European Parliament; and judicial power with the European Court of Justice. There is no classic separation of powers in the European Union. This makes leadership and democratic accountability difficult to locate, and there is plenty of potential for disruption between the institutions.

The central task of the European Council is to “provide the Union with the necessary impetus for its development” by defining the “general political directions and priorities thereof”.Footnote 1 By contrast, the European Commission “shall promote the general interest of the Union and take appropriate initiatives to that end”.Footnote 2 Executive power is spread in a fairly complicated, bifurcated way between the Commission and the Council. The Council clings to its executive powers like a limpet, even over decisions, like the imposition of sanctions and the fixing of farm prices and fish quotas, which are pre-eminently of a supranational type and which logically reside with the Commission. While the Commission is responsible for setting the annual and multi-annual work programmes of the Union and for the formal initiation of draft laws, it is much beholden to guidelines set by the European Council. In an anomaly, the European Council (and not the Commission) is tasked routinely with setting the legislative agenda in justice and home affairs.Footnote 3

The European Council is empowered to take legally binding decisions of an executive type—and increasingly does so on big issues, like setting targets for carbon emissions. Although it is expressly forbidden from exercising “legislative functions”, the European Council is often tempted to interfere in the law-making process.Footnote 4 Indeed, in several circumstances, the treaty prescribes positive recourse to the European Council when a stalemate has been reached at the level of the Council of ministers—the official second chamber of the Union legislature.Footnote 5 The heads of government may act as arbiters in disputes when one or more member state objects to the use of qualified majority voting (QMV), for example, in social security or family law matters. The European Council also has a distinct role to play in the budgetary affairs of the Union, in macroeconomic policy, in making senior appointments to the EU institutions, in dealing with breaches of the rule of law, and in all constitutional matters, including enlargement, secession and treaty revision.

Nobody can complain that the heads of the national governments of the member states pay close attention to EU affairs or that they have become an institutionalised part of the EU governing system. But the European Council is often tempted to accrue powers to itself in an ad hoc and unaccountable manner. Enjoined by the treaty to meet only four times a year, the European Council now meets in formal and informal sessions more than three times as often, sometimes for two days running.Footnote 6 Crisis management is always a convenient pretext for a meeting, but unless heads of government are well prepared in advance, scrupulous in respecting the EU’s interinstitutional balance and rigorous in following through their decisions, the super-arrogation of the European Council can do more harm than good.

In theory, the Commission has executive responsibility for enforcing EU law, earning it the sobriquet of “guardian of the treaties”. It can arraign a non-compliant member state in front of the Court of Justice.Footnote 7 If the Court upholds the Commission’s complaint that a state has failed to fulfil its obligations under the treaties, the offender can be penalised.Footnote 8 Recent research indicates that since Jose Manuel Barroso became President in 2004, the number of enforcement actions taken by the Commission fell steeply.Footnote 9 The Commission showed forbearance for the new members which had to settle into the EU regime, but it also curried favour with older member states which had complained at what they saw as the increasing bossiness of the previous Commission under President Romano Prodi.

Keleman and Pavone suggest there has been a trade-off within the Commission between its technocratic legal service which seeks to apply the rules and the college’s political arm which is more focussed on extracting policy concessions from the European Council. Their thesis is certainly upheld by the evidence of former Competition Commissioner Mario Monti who wrote a scathing report for Barroso in 2010 about the problems confronted in implementing the internal market provisions.Footnote 10 The trend towards a more ‘political Commission’ was accentuated after 2014 by President Juncker and his powerful secretary-general Martin Selmayr—a trend encouraged by MEPs. In truth, however, if a Commission president becomes too complicit in every decision of the European Council, he or she will surrender the autonomy the Commission needs to act effectively in its executive capacity to uphold EU law, especially in applying single market legislation uniformly across the Union.

The Two Leader Problem

One of the major innovations of Lisbon, crafted in the Convention of 2002–2003, was the creation of the permanent presidency of the European Council. This was a special favourite of Valéry Giscard d’Estaing who had been primarily responsible for the invention of the summit-level European Council in the first place, back in 1974. Giscard distrusted the system of rotating the presidency of the European Council every six months, especially in the light of the imminent enlargement of the Union to include untried states and untrusted leaders from central Europe. The British government of Tony Blair, disliking the federalist ambitions of small states like Belgium and ever anxious to downplay the importance of the Commission, supported him.

However, as was the case with other reforms proposed by the Convention, the reconfiguration of the European Council presidency was not carried through to its logical conclusion. The General Affairs Council, which is supposed to prepare the meetings of the European Council and follow up on its decisions, is still chaired by each member state in turn for a period of six months.Footnote 11 Partly because of the disjointed, rotating and, in terms of quality, variable presidencies, the General Affairs Council has never fulfilled the roles expected of it in servicing the European Council or in coordinating the different sectoral formations of the Council of ministers to fulfil coherently the agreed multi-annual work programme. It would make more sense for the General Affairs Council to be chaired by either the president of the European Council or the president of the Commission (or their deputies).

The president of the European Council is charged with representing the Union externally in foreign and security policy “at his level and in that capacity”.Footnote 12 He does that in collaboration with the High Representative responsible for the conduct of common foreign and security policy who chairs the Council of ministers of foreign affairs, heads the European External Action Service (EEAS) and is also a vice-president of the Commission.Footnote 13 The role of the Commission president in foreign affairs is less assured, and it has proven difficult to ensure consistency of action and strategic coherence across the whole range of the Commission’s international responsibilities. Running the foreign show day by day has been left up to the double-hatted High Representatives, none of whom so far has exactly excelled in that office (it is a difficult job). Foreign governments may be forgiven if they are confused about who speaks for the European Union, when and where. One recalls the excruciating scene in Ankara in 2021 when President Recep Tayyip Erdogan, in his kitschy new palace, enthroned Charles Michel, President of the European Council, next to him and relegated Commission President von der Leyen to sit on a lowly sofa.Footnote 14

The Lisbon experiment in bicephalous governance has not worked out well. If the two presidents say exactly the same thing, there is duplication. If they differ, there is division. The EU was lucky in that Herman Van Rompuy, the first ‘permanent’ president of the European Council from 2009 to 2014, was by training an applied economist and could concentrate his efforts naturally and skilfully on managing the financial crisis. Van Rompuy’s successor, Donald Tusk (2014–2019), had less feeling for the interinstitutional niceties of European integration. His distinctive opinions about the foreign policy stance of the Union sometimes rubbed up against the external policies of the Juncker Commission. And there was tension between the two over dealing with Brexit. Charles Michel, who succeeded Tusk, seems to have less authority than either of his predecessors. Even close admirers of the European Council are hard pushed nowadays to identify with its attempts to define the “strategic interests and objectives of the Union”.Footnote 15

The Commission president is an ex-officio member of the European Council and shares with the president of the European Council the job of preparing its meetings. Neither president has a vote in the European Council.Footnote 16 The job of the president of the European Council—officially fairly limited—is to chair the body and “drive forward its work”, to “ensure the preparation and continuity of the work of the European Council in cooperation with the President of the Commission … on the basis of the work of the General Affairs Council”. He shall “endeavour to facilitate cohesion and consensus” and make reports to the European Parliament.Footnote 17 The Commission president—who is, in effect, responsible jointly to the European Council and Parliament—chairs the college and runs the administration of the Union’s executive. She must manage as best she can her relations with the European Council and Parliament.

At the Convention, a number of us proposed that the two presidencies should be combined into one (and that the single president, or a vice-president acting as deputy, should also chair the General Affairs Council). This proposal was not carried in the Convention for the fairly obvious reason that both the Commission and Council feared a takeover by the other. Some saw the system evolving along the lines of the Gaullist Fifth Republic of France, with an executive head of state served by a prime minister who is eminently sackable when things go wrong. But the idea that the Commission should become the mere secretariat of the European Council was, and is, anathema to federalists. The future government of a federal union can only be built around the stable authority of the supranational Commission and not the intergovernmental European Council on day trips to Brussels with its shifting membership and national preoccupations. The Lisbon treaty attempted to accommodate gradual steps in the federal direction while respecting the current prerogatives of the heads of government. It was indeed a classic European compromise which had to be stress-tested empirically, in real time. His discomfiture in trying to manage the Lisbon system led Juncker gradually to the view that it would be best to unite the two presidencies.Footnote 18

Electing the Commission President

One of the first big tests of the Lisbon compromise came with the search for a new Commission president in 2014. Initially, because of the care taken by Van Rompuy and Barroso, the formula had worked, but a key moment came when both men had to be replaced. The political groups in the European Parliament chose to exploit their Lisbon powers to elect the Commission president on receipt of a candidate nominated by the European Council.Footnote 19 In an effort to pre-empt the European Council’s choice of candidate, the EU political parties each promoted champions in their election campaigns, one of whom, it was presumed, would have to be acceptable for the heads of government to adopt as their own nomination for the top job. The Spitzenkandidat of the largest group of MEPs, the European People’s Party (EPP), was the ex-prime minister of Luxembourg Jean-Claude Juncker, a popular federalist of social Christian tendencies. He was duly nominated by the European Council and elected consensually by the European Parliament—which then elected Martin Schulz, the socialist Spitzenkandidat, as its own president.

Five years on, however, in 2019 the European Parliament had failed to consolidate its little coup by introducing the anticipated measure of electoral reform—namely the election of a portion of MEPs for a pan-EU constituency from transnational party lists. Without the installation of a truly federal element in the European elections, the Parliament’s over-promotion of its Spitzenkandidaten looked rather thin. Contrary to the provisions of the Lisbon treaty, no common accord was reached between the Parliament and Council on how to manage the process of the post-election consultations.Footnote 20 Tusk had no candidate up his sleeve.

The EPP’s Spitzenkandidat was Manfred Weber MEP, who perversely had led the opposition to the introduction of transnational lists. But Weber proved unacceptable to the European Council and could not even attract a majority among MEPs. The eventual appointment of the two presidents, Charles Michel for the European Council and Ursula von der Leyen at the Commission, was a messy compromise following an ugly and very public row between the institutions and among the member states. Von der Leyen was only narrowly elected by MEPs.Footnote 21 Her relationship with neither the Parliament nor the European Council has been easy. During her term, two member states have tilted dramatically towards illiberal democracy, and another has left the Union altogether. Von der Leyen has been unlucky with her timing. She made an uncertain start to the coronavirus health crisis. The internal cohesion of her college of Commissioners has been under visible stress. And Russia has started a war on the frontiers of the Union.

Quarrelling over the Conference on the Future of Europe has added to the friction. As things stand, there is no way that the electoral reform of the Parliament can be put in place in time for the next elections in 2024. The most we can hope for is that the current Parliament will produce a coherent proposal for transnational lists and that this will prove to be more or less acceptable to the Council in readiness for 2029. We return to this matter in Chap. 4. In the meantime, no serious preparations are underway to smooth the operation of the Lisbon system for the nomination of the next Commission president in 2024. Unless something is done, another constitutional crisis beckons.

A Streamlined Executive

The pragmatic solution to the problem of succession would be simply to allow the new Commission president to chair the European Council and the General Affairs Council. The European Council will continue to play a central function in the governance of the Union, committing as it does all national leaders to the European project. But it needs to become more fully integrated into the institutional architecture, and systematically better led. Jacques Delors, Commission President 1985–1994, provided clear leadership to the European Council in his day—which included the big beasts of Kohl, Mitterrand and Thatcher—and the next Commission president should seek to emulate him. The switch of chairmanship could be implemented in the first instance in 2024 without treaty revision, although it would be necessary to codify the practice in treaty form, once proven, at a later stage. The European Council elects its president by QMV for a term of two and a half years, renewable once.Footnote 22 He or she may not hold a national office (which the Commission president, indeed, does not).Footnote 23

A second useful decision in 2024 would be to apply at last the Lisbon Treaty’s provision to reduce the size of the Commission to eighteen members from twenty-seven—that is, two-thirds the number of states.Footnote 24 A smaller college would be more efficient in asserting supranational authority on behalf of the Union as a whole. The representation of member states in Brussels is best left to the national ambassadors in COREPER and other manifestations of the Council, such as the Political and Security Committee, and the myriad of Council working groups. The incoming president of the Commission should be empowered to choose a college of talent from candidates nominated by the member states. Those Commissioners-elect will then be subject to auditions by the Parliament followed by a vote of approval for the college as a whole. The practice of hearings for Commissioners-elect has been developed successfully over the years by Parliament and should soon be codified in the revised treaty. Several designated Commission hopefuls have been rejected by MEPs, and others have had their portfolios adjusted after performing poorly at the audition.

A third important innovation in 2024 would be to reinforce the Commission’s role as an enforcer of EU law by reconstituting the Commission’s quasi-judicial competition directorate-general as an EU Competition Authority at arm’s length from the political college. This would protect the supranational authority of the Commission in an area most sensitive to the interests of member states, reduce the risk of overt political interference and bring confidence to stakeholders in the integrity of the internal market process.

Likewise, the college of Commissioners needs its own senior Law Officer whose job it will be to enforce EU law—not least to tighten control of member state spending from the EU budget. National state governments have an Attorney General to head the administration of justice, give objective legal advice and lead the prosecution in important cases (Garde des Sceaux). A Commission restructured in this way would be in a better position to protect its legal services from political interference at the hands of the president’s chef de cabinet or the secretary-general.

Another innovation aimed at the better integration of external and internal sectors would be the appointment of a member of the Commission in charge of defence policy. This portfolio would include oversight of the European Defence Agency, now solely subject to the authority of the Council.Footnote 25 The holder would also be a key figure in the evolution of the European Security Council whose establishment we discuss in Chap. 8.

A united presidency would ensure consistency and continuity across the shared executive of the Union as well as bring more direction and coordination to the affairs of the Council when acting in its legislative capacity. The dual-hatted president would be responsible before the European Parliament for the performance of both executive arms, including that of the European External Action Service which already straddles the Commission and Council. A stronger Commission presidency would also be able to take a firmer grip on the forty or so EU decentralised agencies that have spun out of the Commission services in recent years with a variety of regulatory, supervisory, executive or scientific functions.

As power is concentrated in a single president, MEPs would be bound to respond accordingly. In a federal democracy, a more centralised government will inevitably bring forth a stronger federal parliament. The reform would rectify the present situation in which the Commission president is complicit in the decisions of the European Council—even when they may conflict with the positions of her college—but she cannot be held directly accountable for them by the Parliament. It would also prick the conceit that members of the European Council are only responsible to their own national parliaments on an individual basis but not accountable to the European Parliament for their collective performance. The ingrained habit of passing the buck—that is, blaming Brussels when things go wrong and claiming the credit when they don’t—should be gradually surpassed by submitting the heads of government to closer EU scrutiny.

The emergence of an effective, unified executive of the Union would clarify for the EU citizen who is responsible for what at the federal level. EU governance would also become less incomprehensible to its international rivals and partners (and their protocol officers). The appointment of a smaller Commission under a stronger president able to command a stable majority in both Council and Parliament would be simplified. A college of Commissioners that included a Treasury Secretary (whom we discuss further in Chap. 6) and somebody responsible for security and defence as well as an autonomous Law Officer would look and feel more like a government. That would be better for democracy.

Reforming the Council

While the Union’s critics continue to lay much blame on its supposed ‘democratic deficit’, the particular cause of trouble is the uneven performance and opacity of the Council as a legislator. The transfer of much of its residual executive power to the Commission would allow the Council of ministers to concentrate on its role as law maker, emerging more obviously as the second chamber of the bicameral legislature. Were the European Council able, through the offices of its new-style dual-hatted presidency, to take a grip on the ten sectoral configurations of the Council of ministers, law making would be not only quicker than it is now but also more consistent with the overall strategic guidelines of the Union established from time to time by the European Council.

The Council would do well to pay special attention to improving the quality and consistency of its chairmanship. The continuity of the Council’s work is hampered in any case by the rapid turnover of personnel as ministers rise and fall from the national office. The present system of six-monthly, rotating presidencies of the different Council formations throws up at random variable, uncoordinated and sometimes incompetent chairs. Too often, as with Slovenia in the second half of 2021, the national agenda of the term presidency is at odds with the agreed work programme of the institutions.

If we scrap the rotating presidency, what should replace it?Footnote 26 The Council of foreign affairs ministers is already chaired by the High Representative/Vice-President of the Commission—whom we should rename, as the Convention did (now the British have fled) the EU’s Foreign Minister. We have suggested above that the General Affairs Council should be directly linked to the European Council and therefore chaired by the president of the Commission (or his or her representative). Following that logic, the Council of economic and financial affairs (ECOFIN) should be chaired by the EU Treasury Secretary, who would also be a vice-president of the Commission. Other formations of the legislative Council should be free to select their own chair, hopefully on merit, for a period of two and a half years, just as committees of the European Parliament elect their chairs. Clearly, it would be desirable to achieve some informal balance of party affiliation and nationality in the choice of Council chairs—again as the Parliament manages to do.

Defenders of the system of the rotating presidency ignore the fact that the administrations of smaller member states are evidently hard pushed to service the Council presidency once every fourteen years. If there were a technocratic value in obliging each national government to take the helm of the Council, one would expect the conduct of the term presidencies to be systematically higher than they are. Some also claim to be able to manufacture a domestic political advantage when the EU circus comes to town with razzmatazz: for myself, I doubt the lasting value of folk dancing displays.

A Commission more able and willing to take the political lead and determined to protect its own legislative prerogatives—to initiate and promote draft laws, and then implement them—would help proceedings in the Council. The operation of co-decision between the Council and the European Parliament, which is at the heart of the ordinary legislative procedure, would be much facilitated by the engagement of a more professional Council presidency and a more political Commission.Footnote 27 The law-making process would be better paced and more transparent. The current trend of enacting laws at their first reading after ‘black box’ trilogues among the three institutions does a disservice to good law making. In theory, the result of each informal trilogue should be reported back to the relevant Parliamentary committee, COREPER and the Commission before further steps are taken in the tripartite forum. In practice, such reportage can be less than rigorous. The formal conciliation procedure of the ordinary legislative procedure which has to be convened, if necessary, at the second reading is more open and democratic.

In future, all working documents, agendas and minutes of all legislative meetings should be published. The default switch of the television cameras in the Council chamber should be set to ‘on’ not ‘off’—as they are in any state legislative chamber. Stakeholders in the legislation should be better informed at every stage of the law-making process. Greater transparency will help national parliaments follow the legislative footprints in Brussels and scrutinise draft EU law, as they should, on the grounds of efficacy, subsidiarity and proportionality.Footnote 28

To boost transparency further, many MEPs are proposing that the Council composes itself into a single legislative format when it enacts law, in a formal plenary session, leaving the sectoral formations to conduct trilogues and prepare amendments. Indeed, the idea of a Law Council got some traction in the discussions at the Convention—before being dismissed by the heads of government as being too obviously parliamentary.

Any adjustments of this type to the balance of power and the management of business between the institutions will need to be reflected in revised Interinstitutional Agreements (IIAs).Footnote 29 The treaty already presumes that the Commission, Parliament and Council will find common ground on their respective working methods and be able to manage potential disputes between them. IIAs reflect in as practical terms as possible the interaction between the three institutions’ own internal rules of procedure. To protect the interinstitutional equilibrium implicit in the treaty structure, however, it is important that these cooperation agreements, especially where they have a binding nature, are conceived and maintained as genuinely tripartite. Side deals between Parliament and the Commission which let the Council off the hook—for example, in the matter of international agreements—have proved to be more trouble than they are worth. After the Commission and Parliament had developed the concept of a transparency register for some years, the Council only reluctantly agreed to join an official IIA on the mandatory register of lobbyists as late as 2021.