Politicising EU Lawmaking? The Spitzenkandidaten Experiment as a Cautionary Tale

Date01 May 2016
Published date01 May 2016
Politicising EU Lawmaking? The
Spitzenkandidaten Experiment as a
Cautionary Tale
Marco Goldoni*
Abstract: The Spitzenkandidaten experiment has elicited much interest in academic and
political circles as a mov e towards further politi cisation of important as pects of EU
lawmaking. This articl e puts forward a sobering acc ount of the normative and
instrumental reasons t hat explain why these expe ctations were grounde d on shaky
premises and the experimen t could not have delivered its promises. In particul ar, the
article stresses (1) the failu re in creating a channel for politi cal opposition through the
indirect election of the Pre sident of the Commission ; (2) the adoption of a formal
understanding ofthe institutions involved in the process, that is, a conception detached from
their social basisand (3) the choice of the wrong institution for the purposeof politicisation.
The article concludes wit h a modest proposal for the con solidation of the channel s for
political action already available at the level of the Member States.
I Introduction
The attempt of indirectl y electing the President of t he Commission through the
Spitzenkandidaten process was driven by the hope of breathing democratic strength into
the process of EU lawmaking. In a nutshell, the indirect election of one of the candidates
to the presidency of the Commission would have qualitatively increased the
representativeness of EU lawmaking by making it more political. Because of a transitive
property, the politicisation of the election of the President Commission would have then
politicised EU law-(and policy) making. In particular, the undergirding idea was to put
at stake in the election the general political trajectory of the economic governance of the
EU; its politicisation would have then trickled down in various cases of lawmaking. This
article claims that the experiment actually reveals the limited space for politicisation in
many instances of EU law making for structural re asons. This is not to say t hat EU
lawmaking is not political lato sensu or that the project of European integration has no
political underpinnings. To the contrary, there is a clear political trajectory behind much
of EU lawmaking, and it is one that involves the essential contribution of the Member
States as well. Moreover, the curr ent composition of the Commi ssion and the way it
* Lecturerin Legal Theory at the law school of the Universityof Glasgow and part-timeresearcher at the Centre
for Law and PublicAffairs (CeLAPA) of theCzech Academy of Sciences.The research for this articlehas been
generouslysupportedby subsidies for long-termconceptualdevelopment of theInstitute of Stateand Law of the
Academy of Sciences of the Cze ch Republic, v.v.i. (RVO: 68378122). A rst draft of this art icle has been
presentedat the EUI Max Weber workshop on Parliamentsand ParliamentaryElections in Europein March
2015 and at theGolem seminar of the LSE law schoolin February 2016. Thanksto all the participants in those
events for theircomments. All hyperlinks havebeen last visited on 22 February2016.
European LawJournal, Vol. 22, No. 3, May2016, pp. 279295.
© 2016 John Wiley& Sons Ltd. 9600 Garsington Road,Oxford, OX4 2DQ, UK
and 350 Main Street,Malden, MA 02148, USA
understandsits role are lato sensu political.However, politicisation as anopening up to re-
dene the current regime of w hat is visible (or sayab le)
at the EU level is severel y
hampered by the current co nstitutional arrangem ent. The reasons why this is t he case
belong to different orders: the co nstitutional order of the EU
does not allow a strong
politicisation of certain issues because it is partially built on their exclusion and, at the
institutional level, cert ain EU institutions (Com mission, Council, Parl iament and
European Central Bank) are not prone to open up ei ther to previously unheard voices
or to the redenitionof the meaning of establishedpolitical practices.The articlespurpose
is to show that to concoct th e politicisation of EU l awmaking by targeting th e
appointment of the head of the Commission is both an ineffective and at the same time
potentially dangerous move. Limiting itself to institutional analysis, the article
individuates in the Spitzenkandidaten experiment two lessons: The Commission ought to
be constrainedwhen it operates in its competenceson the internal market in order to avoid
the depletion of national constitutions; on many new areas of competence of the EU, the
target for politicisation ought to be the European Council rather than the Commission.
Overall, certain modesty is necessary because of the entrenched reluctance of European
institutions to open up a space for politicisation.
The articles conclusions are that
national political channels are still relevant to politicise EU lawmaking, and it suggests
that it might be worth trying to make National Parliaments (NPs) more autonomous in
their relationship with their own executives.
II The Spitzenkandidaten Experiment: A Constitutional Transformation?
The constitutional expectations developed around the European elections of May 2014 were
effectively quite high. The agreement struck among the main political parties for supporting a
candidate to be appointed as President of the EU Commission to be then approved, with the
rest of the Commission, by the European Parliament, had been presented as a chance for
enhancing the representative quality of European politics and, as a consequence, of EU
lawmaking. Among other things, this proposal was presented as an opportunity to put into
question the current Euro-predicament based on the politics of austerity. This agreement
mobilised some of the European political parties and entailed some form of electoral
campaigning across Europe for the candidates to the Presidency.
The intuition animating
this proposal was to inject into the institution endowed with the monopoly of legislative
initiative with a democratic impulse through a contest for the appointment of its head.
Delegating the selection of the President of the Commission to a contest was, rst, a huge step
forward towards a parliamentarisation of the relation between the European Parliament and
the Commission and, second, a way to infuse some degree of representativity in EU
In brief, a space for the inception of an informal constitutional change seemed to be
opening up once again in the history of European integration. As known, the candidate
See, for this denition of politicisation, J. Rancière, Dissensus(Continuum, 2003), at 2744; compared with
particular attention to the reex ivity of political action, E. Christodoulidis, Against Substit ution,inM.
Loughlin andN. Walker (eds.), The Paradox of Constitutionalism(Oxford University Press,2007), 189208.
For a reconstruction of the EU constitution in terms of a legal order see K. Culver and M. Giudice, Not a
System,but an Order: An Inter-institutionalView of European Union Law,in J. Dickson and P. Eleftheriadis
(eds.), Philosophical Found ations of EU Law (Oxford University Press, 2012),5476.
This leavesout of the picture the role of non-institutionalactors like social movements.
For an accuratereconstructionof the whole effortsee the encompassingwork N. Peñalver García,The Making
of a EuropeanPresident (Palgrave, 2015).
Politicising EU Lawmaking?May 2016
© 2016 John Wiley& Sons Ltd.280

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