Policy Recommendations

1. The EU Parliament would be well advised to resuscitate and reform the EU`s Spitzenkandidaten procedure, which it vehemently claimed and defended until shortly after the European elections 2019.
2. The EU Parliament should convince the Council of the EU to jointly enforce an electoral reform agenda well before the next European elections in 2024.
3. Transnational electoral lists could be a key element of this electoral reform. The European Spitzenkandidaten would be directly elected, thus further raise public interest in the European elections and increase the democratic legitimation of the President of the European Commission.

Abstract

The EU`s Spitzenkandidaten procedure was successfully introduced at the European elections in 2014. The European parties reached an agreement that only persons, who had run as Spitzenkandidaten in the European elections, would be approved as candidates for President of the European Commission. However, after the European elections in 2019, neither a fragmented European Parliament nor the EU`s heads of state and government were able to agree on one of the candidates. Yet, the Spitzenkandidaten procedure should not be abandoned.  It should be embedded in a reform of the EU`s electoral law well before the next European elections in 2024. With the introduction of transnational electoral lists, European top representatives would be directly elected and European parties would be enabled to lead a more active election campaign at European level. The link between the European elections and the Presidency of the European Commission ultimately strengthens the democratic legitimation of the EU.

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The future of the EU`s Spitzenkandidaten procedure

Introduction

Within the framework of the Conference on the Future of Europe, the EU`s institutions as well as the EU`s member states are encouraged to organise public debates to discuss the further development of European integration. The decision to hold the Conference was taken in July 2019, in the context of the last elections to the European Parliament and the constitution of the then new European Commission. Due to the outbreak of the Corona pandemic, the start of the conference was postponed to 2021. Diverging views between EU institutions and EU member states regarding the relation between the European elections and the constitution of the new European Commission as well as its political agenda ultimately led to renewed questions about democracy, legitimation and efficiency of the European decision-making processes.

The Conference on the Future of Europe is another chance to find answers to these questions and to improve the functioning of the European Union. This time, civil society shall be involved in these reflections on equal footing. In her inaugural speech in the European Parliament on 16 July 2019, the then newly elected EU Commission President Ursula von der Leyen underlined that “[…] European citizens [should] play a leading and active part in building the future of our Union. I want them to have their say at a Conference on the Future of Europe […]”.[1] An essential part of the next steps of European integration would be a new attempt to reform the EU`s electoral law. The Spitzenkandidaten procedure reached its preliminary limits after the European elections 2019 due to dissent between the parliamentary groups and a lack of political support by the EU`s heads of state and government. Nevertheless, it should not be abandoned.

The legal basis

The debate on how to appoint the President of the European Commission is not new. Traditionally, the appointment procedure was determined mainly by national governments and the European Parliament was merely consulted. In the course of time, the EU Parliament gradually gained influence. With the Treaty of Lisbon (2009), the European Parliament became the pivotal place of legitimating the President of the European Commission.[2] According to Article 17 (7) Treaty on European Union (TEU), the European Council – after having held the appropriate consultations – shall propose a candidate for President of the European Commission to the European Parliament. In doing so, the Council shall consider the result of the elections to the European Parliament. The candidate shall then be elected by the European Parliament by a majority of its component members.[3] By linking the elections to the European Parliament with the appointment of the President of the European Commission – as defined in the TEU – the political system of the EU and its functionality should be adapted to appointment processes in parliamentary democracies.[4] With regard to the balance of power between the involved EU Institutions, the introduction of the Spitzenkandidaten procedure limited the room of manoeuvre of the European Council, while simultaneously strengthening the European Parliament`s role in the process of appointing the President of the European Commission.[5]

With the Treaty of Lisbon (2009), the European Parliament became the pivotal place of legitimating the President of the European Commission.

European elections 2014 and 2019

Equipped with this legal basis, the Spitzenkandidaten procedure was first applied during the elections to the European Parliament in 2014. The European parties agreed that only persons, who had run as Spitzenkandidaten in the European elections for their respective political party, would be nominees for President of the European Commission. Accordingly, the Spitzenkandidat of the party with the most votes – Jean-Claude Juncker (EPP, European People`s Party) – was nominated by the European Council as candidate for President of the Commission and subsequently elected by the European Parliament. He managed to prevail over his main challenger, Martin Schulz (S&D, Progressive Alliance of Socialists and Democrats) in the European elections of 2014 and gathered the support of a majority of Members of the European Parliament (MEPs).

This first success of the Spitzenkandidaten procedure motivated most European parties to nominate their candidates also for the elections to the European Parliament in 2019. In contrast to the European elections in 2014, the now more fragmented and mainly renewed parliamentary groups in the European Parliament were not able to agree on one of them after the elections. Although the EPP with Manfred Weber as Spitzenkandidat came in first place in 2019, there was not enough support for him in the European Parliament. The Spitzenkandidaten of the other parties were equally not able to unite the necessary majority of MEPs behind them. Since none enjoyed the necessary support of the EU`s heads of state and government, the European Council took the liberty to unanimously nominate the former German defense minister, Ursula von der Leyen, as “compromise candidate” for President of the European Commission. Despite bypassing the Spitzenkandidaten procedure, the majority of MEPs voted Ursula von der Leyen as first female President of the European Commission into office on 16 July 2019 – albeit by a narrow majority compared to her predecessor, Jean-Claude Juncker.[6]

The election campaign of the EU Spitzenkandidaten in 2014 also differed substantially from the one of 2019. Between the Christian democratic Jean-Claude Juncker and the Social democratic Martin Schulz, there was no disagreement on the central questions of European integration. In 2019, the election debates of the two main contestants – the Christian Democrat Manfred Weber and the Social Democrat Frans Timmermans – were much more controversial. The emerging loss of the parliamentary majority of the informal “grand coalition” between EPP and S&D had broken the consensus between the two still largest parties in the European Parliament. While the polarisation in the course of the European elections 2019 enhanced public attention for the Spitzenkandidaten procedure, it also limited the possibilities for a post electoral compromise and thus the chances of the European Parliament to prevail over the European Council. To overcome these contrasts, more time and more political will as well as new majorities would have been needed.[7]

Reforming the EU`s electoral law

Still, the Spitzenkandidaten procedure should be seen as part of a broader reform of the EU`s electoral law. This reform has been demanded by the European Parliament for some time and first steps of implementation have already been taken in the past. Although the EU`s electoral law sets some basic principles for the elections to the European Parliament, they are still regulated mainly by the different national election laws. Against this background, the European Parliament repeatedly tried to harmonise the EU-wide regulatory differences. The legal basis for the reform of the EU`s electoral law can be found in Article 223 of the Treaty on the functioning of the European Union (TFEU). According to Article 223 TFEU, the European Parliament is entitled to initiate a reform of its own electoral process.[8] The reform of the EU`s electoral law is a simplified treaty revision procedure. According to Article 223 paragraph 1 TFEU, the European Parliament draws up a proposal to lay down the provisions necessary for the elections of its members and submits this proposal to the Council of the EU. The Council takes its decision unanimously and after obtaining the consent of the European Parliament. The approval of the European Parliament shall be given by a majority of its component members. In a second phase, the member states have to approve the election regulations in accordance with their respective constitutional requirements (Article 223 paragraph 2 TFEU).[9]

Still, the Spitzenkandidaten procedure should be seen as part of a broader reform of the EU`s electoral law.

Already in 2013, the European Parliament adopted an initiative report (“Duff-report”)[10] on a reform of the organisation of the European elections in 2014 and the foundation of the Spitzenkandidaten procedure was layed.

In 2015, the European Parliament proposed common rules to harmonise the European elections and make them more European[11] (Hübner-Leinen report)[12]. In order to anchor the Spitzenkandidaten procedure introduced in 2014, the MEPs demanded an official nomination of EU Spitzenkandidaten running for the European Commission Presidency in the upcoming European elections 2019. In addition, they lobbied for an EU-wide standardised time period to complete the national electoral lists[13]; the possibility, to cast one`s vote for a candidate of the respective country of origin also from abroad[14]; an equally high proportion of men and women on the electoral lists of the parties; a mandatory barring clause between 3% and 5% for bigger EU member states; a joint closing of the polling stations in all EU member states; a harmonised minimum voting age (preferably 16 years, like in Austria) as well as a better visibility of the European parties.[15]

In February 2018, the EU Parliament attempted to get its reform ideas of the EU´s electoral law off the ground again. MEPs voiced their support to maintain and firmly establish the Spitzenkandidaten procedure in the context of the European elections 2019.[16] No parliamentary majority could be found for the introduction of transnational electoral lists – an idea which had been disputed already for some time. They were declined by 54% of the MEPs.[17]

The reform of the EU`s electoral law adopted in 2018 only brought minimal improvements.

With regard to the EU Parliament`s proposal of 2015, an agreement was reached in the Council of the EU in June 2018[18], though accepting only parts of the original proposal.[19] No support could be found e.g. for the EU Parliament`s proposal to introduce an EU-wide harmonised minimum voting age of 16 years.[20] In July 2018, the European Parliament approved the now diluted measures to modernise the EU`s electoral law. Therefore, the reform of the EU`s electoral law adopted in 2018 only brought minimal improvements. Still today, not all of the EU`s member states have ratified it.[21]

Another recent attempt of the EU Parliament to advance democracy at European level ahead of the next elections to the European Parliament in 2024 was undertaken in November 2020. In a new report[22], the majority of the MEPs demanded reforms supposed to strengthen the European dimension of the European elections – inter alia another attempt to introduce an EU-wide harmonised minimum voting age of 16 years. They also expressed their support for the Spitzenkandidaten procedure by underlining that in the upcoming elections to the European Parliament, voters should be able to determine who in the end would become President of the European Commission.[23]

Another recent attempt of the EU Parliament to advance democracy at European level ahead of the next elections to the European Parliament in 2024 was undertaken in November 2020.

Pros and cons

The Spitzenkandidaten procedure enhances the democratic legitimacy of the EU as well as the visibility of the European parties. At the same time, it strengthens voters across the EU. Furthermore, it correlates with an upgrading and a Europeanisation of the elections to the European Parliament. The candidates canvass for voters transnationally – this means they eventually can help creating a European public as well as a European electorate. Finally, the Spitzenkandidaten procedure enhances the transparency of the nomination and appointment procedure of the President of the European Commission. It is no longer perceived as a trading of political offices behind closed doors, mainly determined by the EU´s heads of state and government.[24] The advocates of the Spitzenkandidaten procedure regard it as one of several steps to correct the often-cited democratic deficit of the EU and to transform the EU in a fully-fledged parliamentary democracy. Against this background, the EU`s Spitzenkandidaten procedure is seen as short-term measure in order to parliamentarise the European Commission.[25] Like in other parliamentary systems, there should be a direct connection between the head of the EU`s “government” (European Commission) and the majority in the European Parliament. The Spitzenkandidaten procedure should not only strengthen the correlation between the European elections and the Presidency of the European Commission – it should also boost the role of the European parties during the election campaign.[26]

The advocates of the Spitzenkandidaten procedure regard it as one of several steps to correct the often-cited democratic deficit of the EU and to transform the EU in a fully-fledged parliamentary democracy.

On the other hand, the opponents of the Spitzenkandidaten procedure point to its failure in the context of the European elections in 2019. The hope that with the introduction of the Spitzenkandidaten procedure the EU would become more democratic and EU citizens would be brought closer to the EU institutions did not materialise. One reason for this was the ”erroneous” orientation alongside the rules of parliamentary governmental systems because parliamentarism in the EU can hardly be compared with national parliamentary systems. At EU level, the relationship between government majority and opposition – as we know it from the national level – is non-existent. Changing majorities are no exception but rather a general rule in the European Parliament. Depending on the subject, varying voting coalitions are formed when legislative decisions are adopted. Moreover, the EU`s “government” (European Commission) does not depend on the permanent support of a parliamentary majority once it has been approved. It can be removed from office by a two-thirds majority but cannot be dissolved ahead of schedule. In a national parliamentary system, this option typically guarantees that in case of loss of the parliamentary majority of the respective government, either a new majority is found or new elections are proclaimed. Therefore, the Spitzenkandidaten procedure and its aim to tie the European Commission more strongly to the majority in the European Parliament is regarded as a step into the wrong direction, since the political system of the EU does not correspond to a parliamentary system of governance.[27]

On the other hand, the opponents of the Spitzenkandidaten procedure point to its failure in the context of the European elections in 2019.

Advocates and opponents

The power struggle between the European Council and the European Parliament can hardly be overlooked. From the very beginning, a majority of EU`s heads of state and government was generally sceptical regarding the Spitzenkandidaten procedure and rather rejected its institutionalisation.[28] There was no interest to lose the pole position when appointing the President of the European Commission and other important European ranks, equaling a loss of power and influence also vis-à-vis the EU Parliament. At the same time, a number of EU heads of state and government was directly involved in the intraparty selection processes of “their” respective Spitzenkandidat.

The power struggle between the European Council and the European Parliament can hardly be overlooked.

Naturally, the majority of MEPs in the EU Parliament advocated for the introduction of the Spitzenkandidaten procedure in line with the European elections of 2014 as well as its retention in the context of the elections in 2019. It was assumed that the Spitzenkandidaten procedure would lead to a strengthening of the institutional role of the EU Parliament.[29] Obviously, some political parties as well as individual MEPs in the EU Parliament tended to be more in favour of the Spitzenkandidaten procedure and a reform of the EU`s electoral law than others. In particular, the Social Democrats, the Greens and the Liberals committed themselves quite early to nominate EU Spitzenkandidaten ahead of the European elections in 2014. In contrast, initially there were distinctive doubts among the Christian Democrats. The lost majority of EPP and S&D after the European elections of 2019 as well as the fact that a substantial renewal of the MEPs (approximately 60%) had taken place, played a significant role in the dynamics of the nomination of the President of the European Commission thereafter.[30]

At the level of the EU`s heads of state and government, various approaches towards the Spitzenkandidaten procedure can be found. These different views crystallise in the debate about the introduction of transnational electoral lists, which are seen by many as a necessary complement of the Spitzenkandidaten procedure. So far, the candidates nominated by their European party families could only be elected in their country of origin, if they happened to be included in the respective electoral lists, but not EU-wide. With the introduction of transnational electoral lists, each European party family would have automatically one Spitzenkandidat eligible for selection by all Europeans.[31] Therefore, voters would be able to cast two votes: One for a candidate nominated by a national party in the respective EU member state and one for a candidate nominated by a European party.[32]

In 2017, the French President Emmanuel Macron clearly advocated for the introduction of transnational electoral lists. With Brexit in mind, he demanded their introduction in his European speech at Sorbonne University in September. The idea was to make use of a part of the altogether 73 seats – vacant in the European Parliament due to Brexit – to fill these new transnational electoral lists.[33] After the EPP prevented this step in February 2018[34], relations between Conservatives and Liberals further hardened. Although the Conservatives were in favor of the Spitzenkandidaten procedure, they rejected transnational electoral lists. Without transnational lists though – and with a view to merge with Macron`s movement “La République en Marche” in the European Parliament – the Liberals no longer felt obliged to continue supporting the Spitzenkandidaten procedure.[35]

Macron thus clearly expressed his opposition to a half-baked Spitzenkandidaten procedure: “It is not the right way and only makes sense, if transnational electoral lists for the European elections are introduced.”[36] The four “Visegrád states“– Poland, Hungary, Czech Republic and Slovakia – counted among the most prominent opponents of the Spitzenkandidaten. Whereas Macron seemed to be mainly concerned with increasing his own level of influence as well as with tactical political considerations[37], the Visegrád Four quite generally rejected further steps towards democratisation and a stronger communitisation of the EU.[38]

The German chancellor Angela Merkel always underlined, that the European Council needs to retain the power of decision in the election process of the President of the European Commission.[39] Nevertheless, it seemed that Merkel did not want to commit herself. Although challenging the idea of the Spitzenkandidaten procedure, Merkel at the same time emphasised her loyalty towards Manfred Weber, the Spitzenkandidat of the EPP for the elections in 2019. If the EPP should become the strongest political force in the EU Parliament, she assured him of her backing.[40]

The Austrian chancellor, Sebastian Kurz, was clearly one of the advocates of the Spitzenkandidaten procedure. Ahead of the European elections 2019, he supported it publicly and assured Manfred Weber of his backing: “I deem it right that this model exists” […] “We need a European level which is closer to the population.” Therefore, EU citizens should “as much have a say as possible”. The EU citizens should not only be able to elect the EU Parliament, but also the President of the European Commission at the European elections 2019 – “at least indirectly.”[41]

Finally, also the President of the EU Commission, Ursula von der Leyen, demanded “a new impetus for democracy in Europe” in her first speech in the European Parliament`s plenary. After the institutional discord, von der Leyen sought to reconnect with the EU Parliament by explicitly arguing for a retention and improvement of the Spitzenkandidaten procedure as well as the introduction of transnational electoral lists: “… I want us to work together to improve the Spitzenkandidaten system. We need to make it more visible to the wider electorate and we need to address the issue of transnational lists at the European elections as a complementary tool of European democracy.”[42]

No amendment of the EU`s treaties would be needed to reform the Spitzenkandidaten procedure. Neither would it be viable in the current political situation and before the upcoming European elections in 2024. With a sufficient amount of political will in the EU capitals, the existing treaties would offer enough options for fundamental changes including the introduction of transnational lists.[43] In order to legally anchor a new appointment procedure of the President of the European Commission, an inter-institutional agreement would be sufficient.[44]

With a sufficient amount of political will in the EU capitals, the existing treaties would offer enough options for fundamental changes including the introduction of transnational lists.

Conclusion

Albeit its failure to lead the way to the nomination of the President of the European Commission after the European elections in 2019, the Spitzenkandidaten procedure must not be abandoned. The main idea behind it – linking the European elections to the Presidency of the European Commission and its political agenda, therefore enhancing the democratic legitimation of the EU as a whole – should be regarded as one of many urgently needed and forward-looking reforms at EU level. In particular the EU Parliament, if not the EU as a whole, would suffer a considerable loss of confidence, if the Spitzenkandidaten procedure would simply be left aside after the fiasco at the last European elections. To put it on firm footing, the resuscitation of the procedure should go hand in hand with a broader reform of the EU`s electoral law. Although still lacking the necessary majorities, the introduction of transnational electoral lists would be an important piece to complete the puzzle. Therefore, further efforts are needed to discuss and promote this reform idea and find majorities capable of compromise. They would grant the European parties more visibility, enhance the loyalty of the MEPs towards their respective European parties and detach the European elections from overstretched national framing. Ultimately, a combination with transnational electoral lists would complete the Spitzenkandidaten procedure and help making it a success.[45]