Saturday 14 November 2009

Will the High Representative come into office against the Lisbon Treaty rules?

Next week, the European Council will meet informally over a lunch, and the heads of state and government will decide over the two remaining top EU post, the European Council President and the High Representative for Foreign Affairs and Security Policy - but it looks as if the latter will be coming into office against the rules.

Grahnlaw quotes a press release of the the Finnish government
The Swedish Presidency has announced that the High Representative will become a member of the Commission immediately after his/her appointment and the current Commissioner of his/her nationality will step down from the office.
This looks like the European Council wants to act against the Lisbon Treaty where it is clearly written in Article 17 para 7 (on the election of the Commission):
The President, the High Representative of the Union for Foreign Affairs and Security Policy and the other members of the Commission shall be subject as a body to a vote of consent by the European Parliament. On the basis of this consent the Commission shall be appointed by the European Council, acting by a qualified majority.
Since the Parliament's vote shall happen before the European Council formally nominates the Commission, I don't see how it is possible that the High Representative can enter into office right after her/his nomination next Thursday.

This is especially not possible since it would be the old Commission that was formed under the Nice Treaty into which the person would be "nominated". The Nice Treaty doesn't even foresee the High Representative in the future format, so how can s/he enter into the old Commission while already being nominated according to Lisbon rules?

Legally s/he will probably "just" be part of the old Commission. Practically this means that s/he can shape her/his office before the new college will start its work, s/he will be the de facto Foreign Minister in a weak caretaker Commission and s/he won't be confirmed by the EP as all other Commissioners before. The person will thus lack the legitimacy foreseen in the old Treaty for Commissioners as well as the legality of the Lisbon Treaty.

This sounds to me like the Heads of State and Governments are trying to create a fait accompli:

By illegitimately (almost illegally) putting the person into her/his office before a Parliament vote, the governments put pressure on the EP so that it can't vote against the Commission later this year when the de facto Foreign Minister has already shaped her/his office and when the governments could argue that it would be "damaging" to remove the person from office after several months.


David Schoibl said...

I wonder if they have asked the Council's Legal Service for advice on this before announcing it?

Julien Frisch said...

They probably have.

Maybe the legal service even advised them to proceed like this. Who knows... (beside those behind the closed doors).

Ralf Grahn said...


You are right to ask these questions. I have been thinking about this and a few other matters concerning the shift from the Nice Treaty to the Treaty of Lisbon, and there seems to be a need for clarification with regard to both legal and political aspects, as I wrote in a blog post this morning.

french derek said...

Interesting that Margot Wallström, in her call for comments on the new "EU Citizen's Initiative", notes especially that the "old Commission" (in her words) will not be dissolved until the end of January (after the EP review of proposed Commissioners.

Maybe the Finns (and/or the Council) have taken the view that, as the Commission President's appointment is in the Council's remit, so too is that of his Deputy - ie the High Representative.

As Ralf says, a "need for clarification".

Slartibartfas said...

I put my hope into the idea that the European Parliament will prevent that from happening and if the Council will dare to ignore the Parliament also use its full range of powers to make itself heard. May that be not "electing" the new Commission until the Council moves, or calling the European Court of Justice because of violation of primary EU law.

Am I naive?

Julien Frisch said...

I hope for the Parliament to act if the Finnish PM turns out to be correct.

Anonymous said...

Article 5 of the Protocol on transitional provisions means that the High Rep will be able to take office legally from the moment the Lisbon Treaty enters into force: "The members of the Commission in office on the date of entry into force of the Treaty of Lisbon shall remain in office until the end of their term of office. However, on the day of the appointment of the High Representative of the Union for Foreign Affairs and Security Policy, the term of office of the member having the same nationality as the High Representative shall end." So I can't see there being any legal problems with appointing a High Rep to be a member of the Barroso I Commission from 1 December. It's not clear if such an individual will have to undergo a specific hearing in the European Parliament. My guess is (s)he will, probably twice: once in December and then again in January during appointment for Barroso II, presuming the same individual is to be retained as High Rep.

Ralf Grahn said...


However, the Barroso I Commission has already been in office beyond its term, so we are actually talking about the inverted situation.

I still think that the (Swedish) Council (Presidency) should clarify all matters pertaining to Lisbon Treaty implementation to the public in a systematic manner.

Brodie Houlette said...

Start an Access to Information request on the Council Legal Services, if you want to know if its legal or not. Or even the Commission or Parliament legal services.

(Re: ECJ, Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v. Council [2008] ECR I-4723), information dealing with transparency and political accountability cannot be shielded from public access.

Wonderful piece of case law by the ECJ in my opinion.