Important Institutional Dimensions of the Commission Selection Process

Now we have Jose Manuel Barroso approved as the next President of the European Commission. However, the procedure does not end here; now the College of commissioners should be selected.

This, in turn, demands the exploration of two problems, relevant to the composition of the next Commission, as well as to its political orientation.

First, as I have already pointed out, for the first time the President of the Commission has presented his political program before being approved by the European Parliament. One can say that this was made on the spur of the moment. However, during the debate prior to the approval vote, Guy Verhofstadt, leader of the liberals and democrats in the EP, had this to say:

“Our support is very clear. It is conditional. That means that our support will last until we see that these elements [from the political guidelines] will be found in the whole program of the Commission (…)

Finally, our support also will depend, as you know it, on the new structure of the Commission.”

This statement by Mr. Verhofstadt means that the future Commission will be put under direct political scrutiny at least by the liberal democrats and more, that Mr. Barroso will have to accommodate particular demands on the structure and distribution of mandates in the Commission.

Second, and much, much more important – we have the issue of the Treaty of Lisbon. Even if the referendum in Ireland is successful, I very much doubt that all ratification documents will be deposited with the Italian government before October, 31st. That is very important, because art. 6 of the Treaty of Lisbon says that it will enter into force “on the first day of the month following the deposit of the instrument of ratification by the last signatory State to take this step.” There are many signals that the Czech Republic and/or Poland may delay the ratification.

Now, if the Treaty of Lisbon has not entered into force on November 1st, then we need to elect the European Commission by the rules provided by the Treaty of Nice. That follows from art. 4, para. 2 and the following of the Treaty of Nice. The rules of that treaty stipulate that the number of commissioners should be less than 27. More, these rules require the unanimous approval by the Council of a “rotation system based on the principle of equality” for the election of members of the Commission.

Some say that we can approve the college by the rules of the Treaty of Lisbon provided that we have certainty about the future date of entry into force of that treaty (say, in December). Unfortunately this is not the case. If the Treaty of Lisbon has not entered into force on November, 1st and if the Commission was appointed by the rules of that same treaty, then anyone can challenge the legality of that act of appointment on the basis of violation of primary Community law.