- By Jamie Shea
Andrew Duff argues that #Sofagate was more than a mishap but exposed a fundamental flaw in the Lisbon treaty’s formula of two executive presidents of the EU. He anticipates another institutional crisis in 2024 unless decisions are taken in advance to shrink the size of the Commission and to let the new Commission President chair the European Council.
The grisly spectacle of Ursula von der Leyen being relegated to a sofa while Charles Michel lauded it in a fauteuil next to the Turkish president has gone viral. The mishap in Ankara triggered a number of reactions. What was Michel thinking? Surely a gentleman would have offered up his seat to a lady. How on earth was diplomatic protocol allowed to collapse? Why had the EU’s ambassador in Ankara, Nikolaus Meyer-Landrut, failed to choreograph the event? Did Recep Tayyip Erdoğan deliberately intend to snub the Commission and sow division and embarrassment between the two European heads? In any case, what had two EU presidents intended to get out of the summit with Erdogan that one could not?
The controversy rumbles on. Both presidents addressed the European Parliament on the matter on 26 April. Von der Leyen focussed on the insult to her as a woman:
“I am the first woman to be President of the European Commission. I am the President of the European Commission. And this is how I expected to be treated when visiting Turkey two weeks ago, like a Commission President, but I was not. I cannot find any justification for the way I was treated in the European Treaties. So, I have to conclude, it happened because I am a woman.”
Michel apologised, sort of:
“Regarding the protocol incident which occurred, I have publicly expressed my regrets on several occasions. Regrets towards the President of the Commission and towards all those who were offended. In terms of the facts, the Council’s protocol team was not granted access to the meeting room before the meeting. And the Commission did not send its protocol team. The EU delegation in Turkey took part in the preparations. The teams were therefore unable to see in advance how the chairs were arranged. President von der Leyen and I are committed to ensuring that this does not happen again. We have instructed our protocol and diplomatic teams to work closely together on this.
“I know that, given the circumstances, many of you think I should have acted differently. I hear that criticism and I take note of it. In that moment, without the hindsight we all now have, I decided not to react further in order not to create an even more serious political incident, which would have destroyed months of diplomatic groundwork. But I am aware of the negative impression the images give, and of the feelings of many women who were offended by the incident.”
But the incident is more significant than being just the latest in a long line of EU diplomatic slip-ups. It exposes brutally the clumsiness of the two-headed executive of EU governance, especially with regard to foreign policy, and the inadequacy of the Treaty of Lisbon in this respect.
One of the great innovations of Lisbon, crafted in the Convention on the Future of Europe, was the creation of the permanent presidency of the European Council. This was a special favourite of the chair of the Convention, Valéry Giscard d’Estaing, who had been primarily responsible for the invention of the 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 and southern Europe. The British government, ever anxious to downplay the importance of the Commission in foreign affairs, supported him.
As was the case with other reforms proposed by the Convention, the refiguration of the presidency was not sufficiently carried through to its logical conclusion. The General Affairs Council (GAC), which is supposed to prepare the meetings of the European Council and to follow through its decisions, is still chaired by rotation and not by the permanent presidency. Partly because of the disjointed and, in terms of quality, variable presidencies, the GAC has never fulfilled the role expected of it in servicing the European Council.
If the two presidents say exactly the same thing there is duplication. If they differ, there is division
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”. He does that in collaboration with the High Representative responsible for the conduct of common foreign and security policy (CFSP) who chairs the Council of ministers of foreign affairs, heads up the External Action Service and is also a Vice-President of the Commission. To ensure consistency of action and strategic coherence, the Commission president could opt to chair a regular group of all the Commissioners responsible for any aspect of international policy. It may be regretted that neither von der Leyen nor her predecessors — José Manuel Barroso and Jean-Claude Juncker — have chosen to do that. Running the foreign show has been left up to the High Representatives, none of whom have excelled in their office. One may wonder, in fact, why it was von der Leyen and not Josep Borrell, the current High Representative, who accompanied Michel to Ankara. In these circumstances, the Turks can hardly be blamed if they are confused about who speaks for the European Union and says what, when and where.
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 resolving the financial crisis. Van Rompuy’s successor, Donald Tusk, had less feeling for the interinstitutional subtleties of European integration. His distinct opinions about the foreign policy stance of the Union sometimes rubbed up against the external policies of the Commission of Jean-Claude Juncker. And there was tension between the two over dealing with Brexit. Charles Michel has altogether less experience than either of his predecessors. Even close admirers of the European Council are hard-pushed to identify with its attempts to define the international strategic interests and objectives of the Union.
Duplication and complication
The potential for disruption between the two presidents goes wider than foreign affairs. 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”. By contrast, the European Commission “shall promote the general interest of the Union and take appropriate initiatives to that end”. Executive power is shared in a fairly complicated, bifurcated way between the Commission and the Council. While the Commission is responsible for setting the work programme of the Union and for the formal initiation of draft law, it is much beholden to guidelines set by the European Council.
Legal decisions of the European Council have binding effect and are subject to review by the European Court of Justice. Although it is expressly forbidden from exercising “legislative functions”, the European Council is often tempted to interfere in the law-making process. 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 heads of government may act as arbiters in disputes when one or more member states object to the use of qualified majority voting in, for example, social security or family law matters. The European Council, and not the Commission, is tasked with setting the legislative agenda in justice and home affairs. The European Council also has a distinct role to play in the budgetary affairs of the Union, in macro-economic 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.
The future government of a federal union will be the supranational Commission
The Commission president is an ex-officio member of the European Council. Neither president has a vote in the European Council. The job of the President of the European Council — in effect, 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. 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 GAC. 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, 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 Council was and is anathema to federalists. The future government of a federal union will be the supranational Commission and not the intergovernmental European Council. Lisbon was drafted to accommodate gradual steps in the federal direction while respecting the current prerogatives of the heads of governments of the member states. It was indeed a classic European compromise, which had to be stress-tested empirically, in real time.
At first, because of the care taken by Van Rompuy and Barroso, the formula worked. But a key moment came in 2014 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. 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 be acceptable for the heads of government to adopt as their own nomination for the top job. The Spitzenkandidat of 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 Parliament.
Five years on, however, the European Parliament had failed to consolidate its little victory 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, Parliament’s claim to enjoy enhanced democratic legitimacy looked rather thin. Contrary to the provisions of the Lisbon treaty, no common accord had been reached between the Parliament and Council on how to manage the process of the post-election consultations. Tusk had no candidate up his sleeve.
The EPP’s Spitzenkandidat in 2019 was Manfred Weber MEP, who perversely had led the opposition to the introduction of transnational lists. He proved unacceptable to the European Council and could not attract a majority among MEPs. The eventual appointment of the two presidents, Michel and von der Leyen, was a messy compromise after an ugly and very public row between the institutions and among the member states. Von der Leyen was only narrowly elected by MEPs. Her partnership with the European Council has not been easy, not least because of the tilt to illiberal democracy by at least two if its members, by the uncertain start to the campaign against COVID-19, and by a lack of solidarity in security matters. Muddle and disagreement over the organisation and purpose of the Conference on the Future of Europe threatens to accentuate the friction. No progress is being made towards the electoral reform of the Parliament in time for 2024, and no preparations are underway to smooth the operation of the Lisbon system for the nomination of the next Commission president.
Avoiding a crisis in 2024
As the prospect grows of another constitutional crisis in 2024, some serious reflection is in order — possibly within the remit of a small expert group that might be created to propose options for constitutional reform and treaty revision. One very useful decision would be to apply at last the Lisbon treaty’s provision to reduce the size of the Commission to 18 from 27 — that is, two-thirds the number of states. A smaller college would be more efficient in executing 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 official manifestations of the Council, such as the Political and Security Committee.
A second intelligent decision would be simply to allow the new Commission president to chair the European Council. This reform could be implemented in the first instance in 2024 without treaty revision, although it would be desirable to codify the practice, once proven, at a later stage. The European Council elects its president by qualified majority voting (QMV) for a term of two and a half years, renewable once. He or she may not hold a national office, which the Commission President, indeed, does not.
A united presidency would ensure consistency and continuity across the shared executive of the Union as well as bringing more direction and coordination to the affairs of the Council acting in its legislative capacity. The dual-hatted president would be solely 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. As power is concentrated in the single president, MEPs will be bound to respond accordingly: in a federal democracy, a more centralised government leads to a stronger federal parliament. The reform would rectify the present situation in which the Commission President is complicit in the activities and decisions of the European Council — even when they may conflict with positions of her college — but cannot be held accountable for them. It would also explode the current conceit that the 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.
The emergence of effective leadership of the Union would help to clarify for the EU citizen who is responsible for what at the federal level
As far as law making is concerned, the reform would hasten the evolution of the Council as the formal second chamber of the bicameral legislature. While much attention is paid by critics to the Union’s so-called ‘democratic deficit’, it is in fact the slow and uneven performance of the Council which is the main cause of trouble. Were the European Council able, through its new-style president, to take a grip on the other formations of the Council, including the suppression of the distracting and variable six monthly ‘programmes’ of the rotating national presidencies, law making would be not only quicker than it is now but also more coherent with the overall strategic guidelines of the Union established from time to time by the European Council. More systematic chairmanship committed to open government should also yield benefits in terms of increased transparency around the legislative proceedings of the Council.
The emergence of effective leadership of the Union would help to clarify for the EU citizen who is responsible for what at the federal level. EU governance would also be rendered more comprehensible to its international rivals and partners (and their protocol officers). And the search for suitable candidates with the right credentials, able to command a stable majority in both Council and Parliament, would be somewhat simplified.
The proposed package — involving a smaller Commission and a united executive presidency — should be well prepared by an expert group and then debated at the Conference on the Future of Europe.
Andrew Duff represented the European Parliament in the Convention on the Future of Europe and in the Lisbon intergovernmental conference. His new book, ‘Britain and the Puzzle of European Union’, is to be published by Routledge in September.
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