The Spitzenkandidaten Procedure in Light of the Election of the European Commission Presidency : Das Spitzenkandidaten-Verfahren im Hinblick auf die Wahl der Präsidentschaft der Europäischen Kommission

The Spitzenkandidaten arrangement was introduced as a reform of the election of the Commission Presidency with greater involvement of the European Parliament and hereby taking the electorate’s preferences into account. This innovation was concluded by the initiating Parliament as the necessary consequence of its long-standing institutional development, possibly placing it on an equal footing with the European Council. The ongoing strengthening of the European Parliament can be seen, on the one hand, in the treaty amendments and, on the other, in the de-facto practice of institutional behaviour in the EU framework. The aim was to bring the European Commission, which increasingly acts in an executive capacity and represents the EU externally, in a position comparable to a government, closer to the electorate. For those who believe in the EU as a supranational organisation, the aim of the Spitzenkandidaten arrangement is to give the European Parliament greater importance and thus independent decision-making power vis-à-vis the heads of state or government of the EU Member States, who together form the European Council. The supranational European Commission, and its President play a key role in initiating and implementing European law with its actions directly impacting the lives of European citizens. Therefore, concerning the competencies of the European Commission, Article 234 TFEU stipulates its accountability to the European Parliament. However, according to Article 17 TEU, the European Parliament has only limited influence on the personnel composition of the European Commission, namely in its election. This state of affairs calls into question the comparability of competencies between the European Parliament and the national parliaments regarding the election of a quasi-governmental institution. For this reason and regarding the continuously low voter turnouts in the European elections, the European Commission and the European Parliament, as well as the European party families, had set themselves the goal for the 2014 European elections of arousing greater interest among EU citizens and preventing non-transparent appointments to top positions, as was common in the past, and initiated the Spitzenkandidaten procedure. This innovation was ultimately intended to contribute to greater democratisation of the EU, analogous to the national models in national elections. After the 2014 European elections, the European Parliament imposed Jean-Claude Juncker as the Spitzenkandidat of the leading EPP as the only eligible candidate for the office of Commission President based on the Spitzenkandidaten procedure. The Spitzenkandidaten arrangement was enforced at the inherent risk of triggering an inter-institutional conflict, risking a constitutional crisis that would permanently damage the EU if the European Council did not implement this model. The European Parliament and the European Commission succeeded. In 2019, the European Parliament called the election of the new Commission Presidency under the Spitzenkandidaten process. As a result, almost all European parties put forward lead candidates and focused their election campaigns on these personalities. However, the European Council turned against this procedure after the 2019 elections and sought a brought consensus candidate for Commission President in the European Council, although a qualified majority would have been sufficient for this under Article 17 (7) TEU. Following the same provision, the European Council proposed Ursula von der Leyen as the nominated President of the European Commission to the European Parliament after days and weeks of internal discussions. Von der Leyen did not appear as a Spitzenkandidatin in the run-up to the elections, nor was she active in the corresponding European party family EPP, which she now represents as head of the European Commission. Yet she was unanimously elected by the members of the European Council, with only one abstention from Germany. The resulting institutional conflict raises doubts about the efficient and sustainable cooperation of the European institutions. Such a practice carries the risk of regression through this procedure to non-transparent personnel decisions of the European Council, which might lead to higher scepticism of EU citizens regarding the guarantee and observance of democratic principles in the EU. This dissertation aims to examine the necessity and the legally binding nature of the Spitzenkandidaten arrangement in the EU. Such examination shall be done by looking at the intentions at the founding of the EU and its predecessors, its development and the resulting inter-institutional cooperation of the European Council and European Parliament, surrounding the European Commission. Such an assessment is carried out through methods of legal interpretation, in particular through the analysis of European primary law and inter-institutional agreements, while bearing in mind the unique character of the EU. Furthermore, this thesis aims to show to what extent the intentions and goals pursued with the Spitzenkandidaten arrangement are finally incorporated by the Treaty of Lisbon in current European law and whether such a model could contribute to greater democratisation of the EU under the premise of a democratic deficit. Concerning the consequences of the 2019 European elections, the question arises as to whether such models, under the specification of the Spitzenkandidaten arrangement, carry a legal obligation vis-à-vis the European electorate, particularly about the subsequent personnel decisions. It must become clear what exactly was or should have been the subject of the 2019 European elections and whether the deviation from the Spitzenkandidaten model calls the validity of the election itself into question. It is also debatable if EU institutions can represent such measures unilaterally but non-bindingly to their citizens. Ultimately, it is necessary to discuss how such a Spitzenkandidaten model should be designed and what consequences it must have on the European elections to remain more effectively next time and not become a possible threat to the existence of the EU by dividing its institutions from each other. This is done by an analysis of the democratisation of the EU with regard to the necessary instruments to that end. It becomes clear that neither the success or failure of the Spitzenkandidaten procedure has not been sustainably impactful to the democratic standing of the EU. This observation makes it necessary to come to terms with the democratic deficits in the EU institutional framework. To this end, it is first necessary to work out, taking into account the intergovernmental and supranational approaches, which requirements are to be fulfilled by the EU with regard to democratic standards. For the compatibility of the EU with the principle of democracy to date, it must be taken into account that a system of dual legitimacy already exists in the composition of the European Council on the one hand and the European Parliament on the other, which could already meet these demands. In particular, however, the European Parliament, which is entrusted with the election of the European Commission and its President, needs a thorough examination of whether its election and composition are in line with democratic principles. A central finding of this dissertation is that these do not meet the requirements of a supranational institution, as it is de facto too strongly shaped by the nation state. Even the introduction of the Spitzenkandidaten procedure cannot fill this democratic gap. The Spitzenkandidaten procedure was a measure with media impact, but its foundations were too loose and its influence was not sufficiently significant for the functionality of the European Commission in the European institutional network. Although Commission President von der Leyen promised a continuation of the top candidate principle for the election of the Commission Presidency when she was elected, this procedure has not been an issue since. The European elections 2024 will show if the Spitzenkandiaten arrangement is worth a revival.