Not urgent yet, but… According to non-official sources, the Finnish Presidency of the Council intends to raise the issue of the composition of the European Commission following the accession of Romania and Bulgaria. This will be a matter of assessing and possibly preparing the application of the Treaty of Nice, according to which when the Union has 27 members, “the number of members of the Commission shall be less than the number of Member States” (article 4 of the protocol on enlargement). The matter is destined to be politically explosive, but it is not as urgent as it is sometimes made out to be. The text is clear: the reduction in the number of Commissioners relative to the number of Member States does not apply to the current Commission, but rather to the following one. When Bulgaria and Romania become members, the Barroso Commission will remain in office and two extra Commissioners will be added, one of Bulgarian and one of Romanian nationality. There will therefore be 27 Commissioners until a new Commission is nominated. That is due to take place in November 2009.
The Council Presidency is nonetheless right to get ahead of the game, for at least two reasons: a) it is theoretically possible that the Barroso Commission will not see out its mandate, either because of a Parliament censure motion or because it resigns. Although it may be unlikely, the possibility must be considered because the EU needs to be in a position to nominate immediately a new Commission, which would have to fulfil the terms of the aforementioned protocol; b) negotiations between the 25 governments to draw up the rules applicable to the new Commission will necessarily be long and complicated. This needs to be considered in advance. The earlier the subject is tackled, the better.
The obsession with equality. There will be much to negotiate, as the aforementioned protocol limits itself to specifying that the number of Commissioners will be less than the number of Member States and laying down principles, albeit rigorous ones. The number of Commissioners and the arrangements for fair rotation must be decided by the Council acting unanimously. This will be no simple matter. The equality of the Member States is stated pointedly. The Member States, the protocol says, “shall be treated on a strictly equal footing as regards determination of the sequence of, and the time spent by, their nationals as Members of the Commission”. A large country shall not be present in the Commission more frequently than a small one, and it is also forbidden for the Commission at a given moment to be basically composed of small and medium-sized countries, with the small countries left out: each successive college shall be so composed “as to reflect satisfactorily the demographic and geographical range of all the Member States of the Union”.
This obsession with equality, on re-reading the protocol, seems almost excessive. In the view of Professor Jean-Victor Louis from the Université libre de Bruxelles, himself a citizen of a small country, the very principle of “equality-based rotation” is absurd and grievous. We sometimes hear that the rigorous equality of the Member States corresponds to the original spirit of the Community. This is true in terms of principles, but false from the point of view of institutional functions. In the ECSC High Authority, France and Germany both had two members, with the other four countries only having one member each, including Italy, because its influence in the coal and steel sectors was very limited; this means that the first Community treaty took into account not only the demographic size of the Member States, but also their economic size. Subsequently, in the EEC, the larger countries had two Commissioners each while the smaller ones had just one, up until the time when, because of an incomprehensible strategy on the part of France, they foolishly renounced their right to a second Commissioner.
VGE did not agree. Valéry Giscard d'Estaing, the President of the Convention which drew up the Constitutional Treaty, was not satisfied with the solutions included for the Commission, to the point of maintaining that a Commission composed according to the principle of “equality-based rotation” would not have the necessary democratic legitimacy to vote, or take decisions by majority. In a simple majority vote, the Commission could in fact adopt decisions supported by Commissioners from countries which represent only a very limited percentage of the population and economic power of the Union. According to VGE, the Commission should be composed with no regard for nationality, based solely on the quality and prestige of the persons nominated. This vision had no chance of prevailing. Even the fallback-formula envisaged in the Convention, which aimed to give the President broad autonomy to appoint his or her own Commission, did not receive sufficient support.
A balance to be struck. Defenders of rigid equality justify it using a valid reason: they maintain that the difference between the Member States is already reflected in the composition of the European Parliament and in the voting arrangements of the Council. The Commission, a supranational body, should be egalitarian, as its job is to represent European interests, not national interests. This logic is impeccable, but it introduces a link between the composition and the functioning of the three institutions; equality-based rotation in the composition of the Commission is justifiable if, at the time when it is applicable, there are also new provisions concerning the composition of the Parliament and the functioning of the Council. But these provisions are contained in the Constitutional Treaty, which is blocked! And at least one Member States, Poland, had expressed the intention of casting doubt on the principle of “double majority” (number of Member States and population) for majority voting in the Council. We should not forget that the principles of the Treaty of Nice concerning the Commission are reiterated as they stand in the Constitutional Treaty, although the latter introduced the artificial distinction between “European Commissioner” and “Commissioners without voting rights”. In fact, the provisions relating to the Parliament, Council and Commission form a single entity which responds to attempts at equality. If only one part of this is applied, the balance is destroyed.
I do not hereby intend to open a debate which is not yet current, but rather to indicate the extent to which the decision inscribed in the texts already in force - i.e. a number of Commissioners lower than that of the number of Member States and the “equality-based rotation” of its composition - is delicate and complicated, and that the debate also necessarily involves the Constitutional Treaty. It would be very difficult in practice for the Member States to negotiate the essential provisions for applying the protocol on the reduced Commission without at the same time discussing the institutional balance established in the negotiations on the Constitutional Treaty, first in the Convention and subsequently in the final Intergovernmental Conference (IGC). But at the moment nobody knows if and how the draft Constitutional Treaty will be discussed and possibly renegotiated. This is why the application of the protocol of the Treaty of Nice will be caught up in the discussions and procedures connected to the constitutional “crisis exit-strategy” which the Finnish Presidency is currently engaged in.
A “simple solution”… difficult to apply. In reality, at first glance, there could be a “simple solution”. This would consist in making a tiny change to the Treaty of Nice: replace the date of 2009 (the first Commission following the accession date of the twenty-seventh Member State) with the date 2014 (the subsequent Commission). When it comes to modifying a Treaty, there would have to be a new mini-treaty, containing just one article, which would have to be ratified by all the Member States. But no national Parliament should oppose it, and public opinion would not even notice it.
In reality, things are not quite that simple. The issue of institutional balance would probably be raised even for a simple change of date; certain Member States would not accept isolating the case of the Commission. The decision to reduce the size of the Commission aims to avoid transforming a body which should be able to take rapid decisions into a kind of assembly, since its management responsibilities are just as important as its role in inspiring and promoting developments in the Community. Fears of paralysis or poor functioning of a Commission in perpetual expansion are very real, since by 2014 the number of Member States could increase further with the addition of Croatia and other Western Balkan countries, and each would have the right to its own Commissioner. The last paragraph of the protocol to the Treaty of Nice is clear: “Any State which accedes to the Union shall be entitled, at the time of its accession, to have one of its nationals as a Member of the Commission until paragraph 2 applies”. Paragraph 2 is the paragraph concerning the reduction of the number of Commissioners; if its application is delayed, the rule in force will remain “one Commissioner per country”. With all that that implies.
Nor should we forget that by 2009 the Commission is due to provide the results of its reflections on the review of the “multi-annual financial perspectives”, including agricultural spending, and therefore the survival of the CAP. This will need a strong Commission in full possession of its means and which enjoys the confidence of the other institutions and the Member States.
Wisdom. My conclusion of this initial tour of the institutional prospects for the accession of Romania and Bulgaria is simple. The Finnish Presidency is right to raise the problem of the size of the Commission, because the EU must be legally capable of facing any eventuality. But I think that in concrete terms it will limit itself to presenting the problem, along with the result of its “confidential consultations” on the future of the Constitutional Treaty, underlining the links between these two dossiers, and without raising any operational suggestions. And that will be a wise move. (F.R.)