This time it’s different? : constitutional complexities of the Spitzenkandidaten arrangement

Abstract

The paper analyzes the shift from a politically neutral European Commission to a Commission whose President is nominated by the political party that wins most seats in the elections to the European Parliament. In the course of 2014 EP elections, the main European political parties nominated their candidates for president of the European Commission (the so-called Spitzenkandidaten) with the promise and the expectation that this linking of Presidency of the Commission with the outcome of EP elections would increase democratic legitimacy of the European Union. Consequently, the first part of the paper outlines the problem of legitimacy in the EU: the many meanings associated with the phrase and the institutional and constitutional setting that gives rise to the problem. It is argued that the actual problem of legitimacy is situated at the national rather than EU level, making the Spitzenkandidaten arrangement not only useless for enhancing legitimacy but directly harmful in this regard. The second part of the paper focuses on the factors that could undermine EU legitimacy as a direct result of politicization of the Commission. First, constitutionality of this innovation is scrutinized. Second, the institutional balance of Union institutions is considered. Third, the effects of the new arrangement on representation of Union citizens in the European political process are analyzed. Finally, an alternative solution for enhancing democratic legitimacy in the Union is presented. This solution lies with the European Parliament. Only real policy-setting powers of the European Parliament could shift the policy-setting power from national level to the EU. Accountability without power only obscures democratic legitimacy further.