Year LXIII, 2021, Single Issue, Page 113
THE CENTRALITY OF
EUROPEAN COMMISSION REFORM
IN THE INSTITUTIONAL FRAMEWORK OF THE
EUROPEAN UNION*
1. Introductory Remarks.
With the aim of identifying what reforms might be considered useful for the purpose of moving closer towards a federal, sovereign and democratic Europe, I endeavour, in this brief article, to set out some considerations on the EU’s form of government,[1] in other words, considerations based on an analysis of the distribution of powers among its main institutions. I shall not, therefore, be analysing the requisites that will need to be met by the future European federation, only the possible reforms consistent with progress towards that desirable end.
Similarly, I shall not be considering the distribution of competences, in different fields, between the EU and its member states,[2] nor the necessary reforms of the European Parliament,[3] crucial though they are for the aforementioned evolution; rather, I shall be attempting to provide an overview of the interventions necessary to change the balance of powers within the so-called institutional triangle.
Since my focus is the political and institutional system, I shall be examining not only legal aspects, but also questions of applicability.
2. The Overall Picture.
While not forgetting the Court of Justice of the European Union (CJEU), now clearly destined to play an increasingly important role in the balance of powers both within the EU and in the context of EU-member state relations, the present analysis focuses on the three institutions directly involved in EU decision-making processes: the European Parliament, the Council (which has close ties with the European Council, both being linked to the same centre of power) and the Commission.
While there can be no denying the importance of the role of the European Parliament from a federalist point of view, it is, in my opinion, the Commission, as the embryo of a potential government,[4] that should be seen as the fundamental focal point for understanding (and modifying) the balance between the powers that act within the institutional framework of the EU.
This assertion holds true despite the fact that, since the introduction of the Lisbon Treaty, the longstanding conflict between the Community method (and federalist perspective) and the intergovernmental method has ceased to be played out in debate between the Commission and the Council, being reflected, rather, in that between the European Council and the European Parliament.[5] Recent years have indeed seen the emergence of an “imbalance of power” in favour of the European Council, which has gradually acquired a politically central role in the European system, becoming the EU’s true governing body.
In addition to its not inconsiderable power, under the Treaty, to “define the general political directions and priorities” of the EU, the European Council has, over time, acquired growing influence vis-à-vis the Union’s executive and legislative powers, that is to say with respect to the work of the Commission and the European Parliament.[6]
Furthermore, the economic crisis has increased the political weight of the various Councils,[7] driving a growing “intergovernmental transformation” of Europe’s institutional order — a trend that, if not arrested, could even result in its collapse.[8]
The Commission is, moreover, the body that most embodies the hybrid nature of the EU; in fact, it cannot be classified as a governing body based on the categories of constitutional law applied by states, nor as a purely executive body in line with the formulas used by international organisations.[9] It therefore represents the litmus test of the evolution of the European system of government: reduction of the role of the Commission in favour of the Council would indicate the prevalence of an intergovernmental structure of the EU; conversely, consolidation of its relationship of confidence with the EP and a consequent acquisition of political capacity, which shall be discussed later, would see the European institutional system moving closer towards a federal form of government.
In recent years, after the new low reached during Barroso’s presidency of the European Commission, the European Council and European Parliament’s fight (probably still ongoing) for control of this institution has led to a strengthening of both of them. Rather in the manner of struggles between constitutional sovereigns and parliaments for control of governments, the eventual outcome of their struggle will be decisive in clarifying the direction taken by the EU.[10]
3. The Necessary Reforms.
3.1. Progressive strengthening of the role of the EP in the legislative process, through more widespread application of the ordinary legislative procedure (“codecision”), is undoubtedly a crucial development on which to focus.
Equally important, however, is the power to define general political directions, i.e., to identify and pursue political objectives, a power that in liberal democracies springs from the relationship between the government and the parliament.[11] In the EU, on the other hand, under the terms of Article 15 TEU,[12] it is very much concentrated in the hands of the European Council, which clearly shows the defect that typically characterises intergovernmental bodies: in these settings, the single members are accountable only to their own electorate and act accordingly. This situation risks allowing the stronger countries to prevail — it should be noted that countries can be stronger for various reasons, not necessarily or only demographic or economic —, or at best can lead only to stalemate situations or poor compromises.
3.2. What the European institutional order lacks is a supranational governing body, accountable, to some extent, to the European citizens as a whole.
The Commission cannot, at present, be considered the genuine holder of executive power, since it shares key aspects of this power with other institutions;[13] above all, it is not sufficiently involved in determining the EU’s political directions. Furthermore, it cannot be considered bound to the EU by a relationship of confidence in the strict sense of the term.[14] As things stand, the European Parliament’s voting in of a new Commission, being part of its supervisory activities, is still a step that falls far short of that of passing a true motion of confidence; in other words, rather than a mechanism through which powers of government are conferred by a parliamentary majority, this procedure amounts to giving a simple seal of approval.[15] What is more, even though the President of the Commission has to be chosen taking into account the elections to the European Parliament, the members of the Commission (contrary to what tends to happen in the case of actual governments) do not need to form a politically homogeneous group. The candidate commissioners are put forward by the member states,[16] and the President of the Commission, being required merely to reach an agreement with the Council on the final composition, has little impact on this line up; incidentally, this whole system is made rather rigid by the need to select one commissioner for each member state, a rule that remains in place despite the provisions of the Lisbon Treaty.[17] Similar observations can be made with regard to the mechanism envisaged for removal of the Commission, namely the “motion of censure”, which, also considering the high quorum required, is more reminiscent of a form of impeachment request than a political no-confidence motion; conversely, the relationship of confidence between a government and a parliament always entails political accountability of the former before the latter (which can enforce this by approving a no-confidence motion that forces the government to resign),[18] so much so that in some parliamentary systems, the government is automatically assumed to have the confidence of the parliament, unless there is a vote to the contrary. Let us remember, finally, that that the European system does not envisage procedures for early dissolution of the EP, and does not allow constructive votes of no confidence.[19]
3.3. It is, therefore, a priority to take steps to increase the supranational democratic legitimacy of the European institutions.[20] Among the various options on the table, strengthening the Commission is the most practicable, as well as the one offering the least resistance; it is also the most versatile, since it allows us to envisage interventions that can be achieved either without touching the Treaties, or through only very limited and specific changes to them, or, better still of course, through the adoption of a constitutional treaty. It goes without saying that this will mean downsizing, if not moving beyond, the Community method. In this regard, it should be noted that overcoming absolute sovereignty is not just an aim of the functionalist (as well as the federalist) theory of supranational integration;[21] indeed, it is also an intrinsic part of the functionalist thought at the very root of the Community method, whose difficulties and possible evolution have, in turn, been the focus of an already ten-year debate between those who think it should remain, fundamentally, the basis of the European decision-making process, and those who instead see its adaptation, to allow the creation of a democratically legitimised European political power, as the only chance of overcoming its difficulties and preventing a regression in an intergovernmental direction.[22]
3.4. In my view, the immediate objective must be to achieve some form of co-determination of political directions by the European Council and a Commission (necessarily “stripped” of its current role as guarantor in favour of an independent administrative authority or judicial body)[23] bound by a genuine relationship of confidence with the EP;[24] in this scenario, the EP, together with a Council deprived of its residual executive functions, would be the full holder of legislative power. Incidentally, as part of such a transformation it would be necessary to review the system of Council “configurations” and presidencies, bringing to an end the six-month rotating presidency system that, to date, has generated considerable confusion of roles.
I say European Council and Commission because, in a system like the European one, the idea of abruptly excluding the intergovernmental component from the system for determining political directions, by turning the most important intergovernmental body (the European Council) into a mere collegial presidential organ of the Union with the characteristics of a neutral guarantor, is simply untenable.[25]
Initially at least, the system would therefore effectively be a “two-headed” (albeit not semi-presidential)[26] one that would see political power shared between intergovernmental institutions, namely the European Parliament and the Commission (whereas in the current system this power is unevenly distributed in favour of the national governments). The Commission would thus have “dual legitimacy” conferred both by the EP and by the intergovernmental component.[27] But the synthesis should occur in the executive, not the legislative sphere. The problem with the model could arise, in the future, were the political orientation of the EP to differ from that of the European Council, a hypothesis already raised in the doctrine, in a comment to the draft Constitution for Europe that refers to the French system of “cohabitation”.[28]
However, as is typically the case with non-authoritarian “two-headed” models, the dialectic between the European Council and the EP should lead to a common political orientation, even though the will of the EP would likely increasingly prevail on account of its privileged relationship with Commission; that said, this prevalence must not be at the expense of constant efforts to arrive at the aforementioned shared political orientation.
3.5. In such a framework, the body required to provide a link and point of synthesis between the two legitimising subjects would take on considerable importance; it is a role that could only fall to the Commission in the person of its president, the embodiment of the highest point of mediation between the two powers. With this in mind, it seems appropriate to give serious consideration to the possibility, already envisaged by the Treaties,[29] of combining the position of chair of the European Council with that of Commission president, by giving positions both to the latter.
This would mean working to strengthen the Spitzenkandidat system,[30] possibly through some form of institutionalisation of the same (albeit without excluding, a priori, stronger and more incisive interventions on the EU’s form of government, such as the introduction of direct election of a single president). However, there can be no avoiding the fact that, in the absence of a formal direct election, the EP, in order to reach the necessary absolute majority, might find itself having to opt for the Spitzenkandidat proposed by a party/alliance other than the one that achieved the relative majority, or even for another person altogether, as in the case of the “Ursula majority”.
In the procedure for appointing the President of the Commission, the balance of power between the European Council and the EP is not the only key factor: the European parties, too, play a fundamental role.[31] In order to strengthen the legitimacy of the EP and, through it, that of the Commission, as well as the role of the (still very weak) European parties themselves, it is worth considering the proposal to establish a system of transnational lists within single European electoral districts. Under this proposal, the leader of each list — it is important to underline that lists could enter the elections as coalitions; in fact, the parties would may be encouraged to join forces if this mechanism proved able to influence the appointment — would be its in pectore candidate for the office of President of the Commission.
This mechanism would serve to emphasise the European nature of the elections to the EP, which to date have been excessively influenced by purely national visions; it would thus give a greater role and greater visibility to the European parties and would raise the profile of their candidates for the office of President of the Commission, who would, as a result, enjoy even stronger democratic legitimacy.
A mechanism of this kind is, of course, unusual, even in federal states. But to appreciate the reasons for it and enhance its positive aspects, we must bear in mind the absolute originality of the process of European integration, a context in which institutional stimuli designed to promote the affirmation of a common democratic, and not merely intergovernmental, decision-making framework, have become more necessary than ever.[32]
This system cannot be considered an alternative to national electoral districts (typical of all federations), but should be seen, rather, as a form of supranational electoral contest that would endorse the Commission presidential candidate politically (not in a legal sense, as this would generate the risk of direct election of the president by stealth, which, while plausible, would be a considerably questionable mechanism). Hopefully, it would entail some sort of electoral bonus that might, in the future, encourage the creation of transnational coalition lists.
3.6. In this setting, there should also be a new attempt to overcome the rule requiring the presence, at all times, of at least one commissioner from each member state, also to avoid the Commission being conceived as yet another assembly of representatives of the states.[33] In this regard, the formula proposed in the Lisbon Treaty would need to be updated, eliminating the envisaged equal rotation mechanism, which would be difficult to implement and of little real value. This step would strengthen the Commission’s role as the sole bearer of the interest of the EU as a whole, and therefore also its political role. In other words, the Commission would become the bearer of a commonly shared vision of the European interest, resulting from reconciliation of the various interests (national, local, transversal, etc.) present across the Continent and expressed as a common ideal concept. But even were the criterion of one commissioner per member state to be retained (as a legal obligation or simply as common practice),[34] the really decisive factor would be the conferral, on the president-elect, of the right to choose, or have a say in choosing, the members of the Commission. There are different ways of achieving this objective, according to how much discretion would be granted to the president-elect, who might, for example, be required to choose from lists of names (more or less numerous) proposed by the states, submit a proposal to the European Council (whose veto power, while retained, would be difficult to exercise), or even appoint commissioners directly.
3.7. Finally, it is worth mentioning, briefly, the role of the Court of Justice. The judiciary of the EU has always been central to the integration process and the line of decisions of the CJEU has often filled gaps left by the weak European institutions and anticipated, through the CJEU’s interpretations, choices later embraced in the Treaties. In the wake of a period (from the 1990s onwards) that saw its role reduced, the CJEU has now returned to the fore and is playing an important role in defining the scope of the European legal system and its relations with the national ones, and in this regard dialogue between European and national judges has proved fundamental. From this perspective, the time is clearly ripe for a rethink of the composition of the CJEU, in order to emphasise its link with national courts rather than with national executives.
4. For a Distinction of EU “Government” by Area.
Initially at least, the form of “government” would need to be structurally different in the economic-financial area as compared with the foreign and defence policy sector, which, it is hoped, might see a real and rapid strengthening. This is not to say that reinforcement of the European executive is not essential in this sector as well: in fact, in all systems of government, “foreign power” is always based on a clear prevalence of the role of the government over that of parliamentary assemblies.
However, the process of European unification has advanced far less in the field of foreign policy and defence than in that of the single market and economic-monetary union. In the former, there will therefore inevitably continue to be, at least to begin with, greater use of the intergovernmental approach (elsewhere largely outdated and surmountable), albeit increasingly tempered by some features of the Community method. Economic-monetary integration is different from integration in the field of foreign policy and defence, and nowhere is this more marked than in the relative implementation time frames: the process leading towards EMU may be more gradual, but it has been under way for longer and is therefore now ripe for completion in the federal sense; instead, while Europe has only just started to move towards integration of foreign policy and defence, the very nature of the process, in this case, is such that it can less easily be fragmented over time. In short, the options are either to stop or to press ahead rapidly. In the field of foreign and defence policy, where the gap between intergovernmental cooperation and political union is clearer and more decisive, slow and gradual advancement is far less feasible.
This notwithstanding, to give the foreign and defence policy integration project a good chance of progressing, and to ensure its political credibility, it would already be appropriate to draw up a long-term programme for the integration of the relative powers — how long term is hard to say; the time frame could even be quite limited, considering that the whole EDC-EPC story unfolded in less than four years, i.e. from the time of the Pleven Plan to the French National Assembly’s rejection of the EDC —,[35] setting out the precise stages and their chronological order, in a manner reminiscent of the process that led to the single currency.
Finally, it would be necessary to envisage a different role for the institutions responsible for governing those areas (the Single Market primarily) that could continue to include member states that have no wish to participate in Treaty reform while, at the same time, not wanting (or not being in a position) either to prevent it from going ahead, or to leave the EU. To achieve this dichotomy, it would be necessary, as it becomes clear that no unanimous agreement can be reached, to provide for a pact between the “innovators” and the “immobilists” that will guarantee the rights of both groups of states while also making the separation between the two levels of integration both plausible and workable.[36]
5. Final Remarks.
Proposals for institutional reform can vary greatly, especially in the detail, and their formulation is a necessary exercise for those wishing to make a serious contribution to political debate and help focus it on the issues crucial to the outcome one wishes to pursue, which in my case is the federal one. However, it is important to retain the flexibility that politics demands, avoiding excessive attachment to one’s own “models”, while nevertheless keeping clearly in mind the crucial aspects of the proposals on which there can be no compromises.
Providing, then, that they are formulated and managed with this in mind, they can be useful. As pointed out by Calamandrei, even the careful planning and advance calculations of jurists can have practical value in history, since reasoning hypothetically about a reality that is still in the making can help to direct it and shape it according to what is forecast; as the author also remarked, it should further be considered that one of the ways to infuse men with will is to convince them that, if they so wish, the practical obstacles in the way of their goal need not be considered insurmountable. Although the saying usually goes “to want to is to be able to”, the opposite is closer to the truth: “to be able to is to want to.”[37]
Salvatore Aloisio
* This report was delivered as part of the Commission 1 section (Reforms for a Federal, Sovereign and Democratic Europe) of the 30th MFE National Congress, Vicenza, 22-24 October, 2021.
[1] On the possibility of cautiously applying, to the EU, the general notions form of government and political orientation, cf., for all, the recent study by E. Gianfrancesco, Un approccio costituzionalistico alla Commissione europea. Alcuni profili rilevanti, Diritto e Società, n. 1 (2021), pp. 10 ff..
[2] On this aspect, cf. P. Ponzano, The Federalists’ Strategy for Reform of the European Union, The Federalist, 63 (2022) current issue, p. 103.
[3] In this regard, cf. G. Rossolillo, Towards True European Democracy, The Federalist, 63 (2022) current issue, p. 107.
[4] The centrality of the role and powers of the government in the evolution towards a federal state is highlighted (albeit with a particularly broad use of the term government), by A. Hamilton, in The Federalist Papers (No. 23 and No. 70). M. Albertini, too, focused on this issue on several occasions: by underlining the crucial importance of the transfer of military, monetary and fiscal powers to a European government (cf. La strategia della lotta per l’Europa, Giornale del Censimento, 2 n. 1 (1966) and n. 2 (1966), now in M. Albertini, Tutti gli scritti, V, 1965-1970, edited by N. Mosconi, Bologna, Il Mulino, 2008, pp. 130 ff., and in The Federalist, 38 n. 1 (1966), p. 53, The Struggle for Europe, https://www.thefederalist.eu/site/index.php/en/thirty-years-ago/2234-the-strategy-of-the-struggle-for-europe), as well as Un governo per l’Europa, in Giornale del Censimento, 1 n. 1 (1965), now in Id., Tutti gli scritti, V, 1965-1970, op. cit., p. 31 ff.); by highlighting the importance of a common government for the creation of the single currency (cf. M. Albertini, L’aspetto di potere della programmazione europea, Il Politico, 35, n. 1 (1970), now in Id., Tutti gli scritti, V 1965-1970, op. cit., p. 491 ff., esp. 499 ff., and in The Federalist, 41 n. 2 (1999), p. 125, The Power Aspect of European Planning, https://www.thefederalist.eu/site/index.php/en/thirty-years-ago/2237-the-power-aspects-of-european-planning); and by identifying, as the goal of “constitutional gradualism”, the creation of a European state with all the competences necessary to act as a normal federal government (cf. Elezione europea, governo europeo e Stato europeo, Il Federalista, 18 n. 4 (1976), now in M. Albertini, Tutti gli scritti, VII, 1976-1978, edited by N. Mosconi, Bologna, Il Mulino, 2009, pp. 159 ff., esp. p. 164, and The Federalist, 48 n. 1 (2006), p. 64, The European Election, European Government and a European State, https://www.thefederalist.eu/site/index.php/en/thirty-years-ago/2241-european-election-european-government-and-a-european-state); moreover, in his criticism of the absence of a European government, but appreciation of the “Spinelli project”, since it envisages “parliamentary control of the Commission, which would begin to take on the form of a European government”, he also draws attention to the fundamental role of the EP (cf. L’Europa sulla soglia dell’unione, Il Politico, 50 n. 4 (1985), now in M. Albertini, Tutti gli scritti, IX, 1985-1995, edited by N. Mosconi, Bologna, Il Mulino, 2010, p. 67 and in The Federalist, 28 n.1 (1986), p. 24, Europe on the Threshold of Union, https://www.thefederalist.eu/site/index.php/en/essays/1960-europe-on-the-threshold-of-union).
Spinelli’s attention to this aspect was, in fact, constant: within the framework of the parliament-centred constituent method, the relationship between the parliamentary assembly and the Commission is crucial for transforming the latter into a European government. Without returning to his reflections on the EDC, the design emerges clearly in Spinelli’s evaluations during his time as a commissioner, when he includes, among the political aims of institutional reform, that of “constituting a true European government whose members would be leading politicians, chosen through an appropriate procedure by the Council and Parliament” and that would absorb “the more specifically governmental type decision-making functions of the Council” (cf. Le istituzioni europee. Progetti di riforma, Critica Sociale, 1972, now in A. Spinelli, Una strategia per gli Stati uniti d’Europa, edited by S. Pistone, Bologna, Il Mulino,1989, p. 192), but also in the draft Treaty that was adopted in 1984 by the EP and bears his name in spite of his disappointment with the Commission (in this regard, cf. U. Morelli, A. Spinelli e l’azione federalista. Il sistema comunitario, in Altiero Spinelli: il pensiero e l’azione per la federazione europea, edited by U. Morelli, Milan, Giuffrè, 2010, pp. 72 ff.). The institutional design outlined in the Draft Treaty clearly illustrates the will to strengthen the political role of the Commission, with the intention of turning it into “a genuine political executive”, by giving its president the power to appoint its members and binding the body to the EP, to which it would be required to submit its programme (art.25) for approval (cf. Spinelli’s famous speech to the European Parliament on 14 February 1984 in A. Spinelli, Discorsi al Parlamento europeo 1976-1986, edited by P.V. Dastoli, Bologna, Il Mulino, 1987, p. 336).
[5] In this sense, cf. L.S., Rossi, Equilibri istituzionali e metodi di integrazione dell’Unione, in A. Tizzano (editor), Verso i 60 anni dai Trattati di Roma. Stato e prospettive dell’Unione europea, Turin, Giappichelli, 2016, p. 72.
[6] In this sense, cf. L. Frosina, La crisi “esistenziale” dell’Unione europea tra deriva intergovernativa e spinte centrifughe, Nomos, 2 (2018), p. 5. This point is exemplified by what has occurred in the field of immigration policies; in this area, despite the provisions of Articles 78 and 79 TFEU, “the Union tends to reproduce dynamics similar to when immigration and asylum were still policies of international cooperation between European states, with the result that it often appears to act as an instrument for the implementation of national objectives, rather than as a supranational organisation that pursues its own aims and objectives in the interest of the European peoples”; in fact, despite widespread provisions for use of the ordinary legislative procedure, “the intergovernmental method has continued to shape the modalities and priorities of the development of this policy and still seems to dominate”, to the extent that “most of the measures are discussed and adopted in the Justice and Home Affairs Council, often under the European Council’s close ‘direction’ ”, cf. C. Favilli, Le politiche di immigrazione e asilo: passato, presente e futuro di una sovranità europea incompiuta, Annali AISDUE, Sezione “Atti convegni AISDUE”, n. 12, 14 January 2022, https://www.aisdue.eu/chiara-favilli-le-politiche-di-immigrazione-e-asilo-passato-presente-e-futuro-di-una-sovranita-europea-incompiuta/.
[7] On this point, cf. L. Frosina, La crisi “esistenziale” dell’Unione europea, op. cit., p. 1, as well as, extensively, S. Cafaro, L’Unione Economica e Monetaria dopo la crisi, Naples, Edizioni Scientifiche Italiane, 2017, passim.
[8] In this sense, S. Fabbrini, Sdoppiamento: una prospettiva nuova per l'Europa, Bari, Laterza, 2017, p. 18 ff..
[9] Cf. F. Capotorti, entry Commissione delle Comunità europee, in Enc. giur. Treccani, VII, Rome, 1994, p. 2. An accurate reconstruction of the organ’s genesis, and its role in the initial and in subsequent phases of development, can be found in M. Patrono, Il governo della prima Europa, Padua, CEDAM, 2003, p. 28 ff., p. 85 ff. and pp. 127-132, respectively. On this point, also S. Gozi, Il governo dell’Europa, II ed., Bologna, Il Mulino, 2001, pp. 32-33, and T. Christiansen, La Commissione europea, in S. Fabbrini (editor), L’Unione europea. Le istituzioni e gli attori di un sistema sovranazionale, Rome-Bari, Laterza, 2002, pp. 127-128.
[10] For a reconstruction of the steps leading to an evolution in the parliamentary direction, cf., among many, M. Volpi, Libertà e autorità. La classificazione delle forme di stato e delle forme di governo, Turin, Giappichelli, 2000, p. 79 ff., esp. pp. 85-91 and, more briefly, A. Barbera and C. Fusaro, Il governo delle democrazie, Bologna, Il Mulino, 1997, p. 28 ff.. To better understand Europe’s difficulties from a constitutional perspective, G. Amato, in In Europa, finalmente, Montesquieu e Cammeo, in Studi in onore di Gianni Ferrara, vol. I, Turin, Giappichelli, 2006, p. 121, refers to an even earlier transition, namely that from absolute monarchies (or from the police state) to the constitutional state.
[11] In this sense, cf. M. Volpi, Libertà e autorità. …, op. cit., p. 79; and T. Martines, entry Indirizzo politico, in Enciclopedia del diritto, XXI, Milan, Giuffrè, 1971, p. 134 ff.. A brief overview of different concepts of political directions or orientation is provided by E. Cheli, La sovranità, la funzione di governo, l’indirizzo politico, in G. Amato-A. Barbera (editors), Manuale di diritto pubblico, II. L’organizzazione costituzionale, V ed., Bologna, Il Mulino, 1997, p. 13.
[12] Which, at paragraph 1 states: “The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof.”
[13] The fragmented nature of the European executive power is highlighted by E. Gianfrancesco, Un approccio costituzionalistico alla Commissione europea, op. cit., p. 14. In this sense, cf., previously, S. Fabbrini, Oltre Lisbona: l’enigma costituzionale dell’integrazione europea, Rivista italiana di scienza politica, 39 (2009), p. 358; here he underlines the absence in the EU of a “government understood as a single institution authorised to exercise ultimate decision-making powers”; and also, with particular reference to the European Council, V. Edjaharian, Art. 15, in H.J. Blanke, S. Mangiameli (editors), The Treaty on European Union (TEU). A Commentary, Heidelberg-New York-Dordrecht-London, Springer, 2013, p. 624; meanwhile, the fact that the EU does not have one governing body, but three, is underlined by M. Luciani, Complessità della struttura istituzionale, in E. Paciotti (editor), La Costituzione europea. Luci ed ombre, Milan, Booklet, 2003, p. 62.
[14] In this sense, cf. B. Guastaferro, La prima volta del Presidente della Commissione “eletto” dal Parlamento europeo. Riflessioni sui limiti del mimetismo istituzionale, Studi sull’integrazione europea, 9 (2014), p. 531 ff., where the author stresses (p. 533-534) that, contrary to what occurs in parliamentary systems of government, the Commission and its president do not enjoy “a majority in parliament (…) that is aggregated around a certain political orientation”.
[15] In this regard, with reference to the pre-Lisbon regulatory framework, which has remained in many respects unchanged, cf. L. Ronchetti, Sovranazionalità senza sovranità: la Commissione e il Parlamento dell’UE, Politica del diritto, 32 (2001), p. 215. More recently, doubts about the relevance of these elements for the determination of a parliamentary form of government within the EU have been raised by E. Gianfrancesco, Un approccio costituzionalistico alla Commissione europea, op. cit., p. 39 ff.
[16] B. Guastaferro, La prima volta del Presidente della Commissione, op. cit., p. 532.
[17] Notoriously, the TEU (Art. 17.5) envisaged that, as from 1 November 2014, the Commission would be composed of a number of members corresponding to two thirds of the number of member states, unless the European Council, acting unanimously, were to decide to change this number. This is precisely what happened; with its decision 2013/272, the Council decreed that the number of commissioners was to remain equal to the number of member states, thereby nullifying the previous provision.
[18] Cf. M. Volpi, Libertà e autorità, op. cit., p. 83. For critical considerations on the motion of censure, E. Gianfrancesco, Un approccio costituzionalistico alla Commissione europea, op. cit., p. 42.
[19] According to S. Fabbrini, The European Union and the Puzzle of Parliamentary Government, Journal of European Integration, 37 (2015), p. 8, the fact that no provision is made for early dissolution of the European Parliament has to be considered to exclude the presence, at EU level, of a parliamentary form of government.
[20] As long as a decade or so ago, E. Gianfrancesco, La Commissione nel quadro istituzionale dell’Unione: una ricognizione, Rassegna 9/2012 (04.10.2012), p. 36, https://www.forumcostituzionale.it/wordpress/images/stories/pdf/documenti_forum/paper/0347_gianfrancesco.pdf, noted that the Commission’s “vital game” would see it fighting for political legitimacy and for a leading role in defining the EU’s political directions.
[21] Cf. S. Pistone, entry Europeismo, in Enciclopedia delle scienze sociali (1993), now at https://www.treccani.it/enciclopedia/europeismo_%28Enciclopedia-delle-scienze-sociali%29/ ; on the three main lines of thought that influence the process of European integration, cf. also Id., L’integrazione europea. Uno schizzo storico, Turin, UTET, 1999, p. 9 ff..
[22] From the first perspective, cf. R. Dehousse, Conclusion: Obstinate or Obsolete?, in R. Dehousse (Editor). The “Community Method”. Obstinate or Obsolete?, London, Palgrave-McMillan, 2011, p. 199 ff.. Instead, for a revision of the Community method that adapts it to a democratisation of the EU in such a way as increase its legitimacy and political authority, albeit from different perspectives, see, among many, and as part of an interesting discussion on the topic hosted, a decade or so ago, by Notre Europe, F. Chaltiel Terral, De la méthode fonctionnaliste à la méthode démocratique, in https://institutdelors.eu/wp-content/uploads/2020/08/methodefonctionalisteoudemocratiquechaltielneoct12-2.pdf; M. Maduro, Politiser l’UE pour renforcer la méthode communautaire, in https://institutdelors.eu/wp-content/uploads/2020/08/politisationue_maduro_ne_oct12-1.pdf; P. Ponzano, Méthode intergouvernementale ou méthode communautaire: une querelle sans intérêt?, in https://institutdelors.eu/wp-content/uploads/2020/08/bref23-pponzano_01-1.pdf.
[23] This is not the place for a detailed analysis (albeit warranted) of this problem and its possible solutions. Suffice it here to point out that a more political role for the Commission, and the relative electoral legitimacy that this implies, would clash with the functions connected to its role as “guardian of the Treaties” which are linked to its traditional status as a “neutral” or guarantee body. In this regard, and in particular with regard to the issue of competition, see the reports delivered at the conference on Il ruolo della Commissione tra derivazione partitica e funzioni neutrali nel progetto di Costituzione europea, part 2, Le funzioni della Commissione dopo il tramonto della “neutralità”: il caso della tutela della concorrenza, Rivista italiana di diritto pubblico comunitario, 15 (2005), 1113 ff.; as well as R. Manfrellotti, Sistema delle fonti e indirizzo politico nelle dinamiche dell’integrazione europea, Turin, Giappichelli, 2004, p. 38 and p. 49 ff., and G. Amato, In Europa, finalmente, op. cit., p. 125.
[24] A slightly different position is adopted by P. Ponzano, La Commissione europea: composizione e ruolo nel sistema istituzionale dell’Unione, Il Diritto dell’Unione Europea, 3/2004, p. 515, who proposes collegial political accountability of the Commission both before the European Council and before the EP, whereas here the solution preferred is joint power of orientation between the Commission and the European Council, in the presence of a relationship of confidence between the Commission and the European Parliament alone.
[25] The progressive strengthening of the European Council seems to confirm the now established affirmation of C. Pinelli, Ipotesi sulla forma di governo dell’Unione europea, Rivista trimestrale di diritto pubblico, 1989, p. 333, who pointed out that “The European Council (…) cannot be compared, in its functions, and even less so in its structure, to the heads of state of parliamentary regimes, since it is the most conspicuous intergovernmental body in the system”. Similarly, A. Pizzorusso, Il patrimonio costituzionale europeo, Bologna, Il Mulino, 2002, p.165, also excludes that the European Council can be configured as a collegial head of state, on account of the way in which the will of this body is formed.
[26] In fact, in semi-presidential systems the legitimacy of the president and the parliament comes from the same source, whereas the European Council does not represent the EU as a whole as it is (indirectly) accountable before the member states; what is more, as an institution, essentially it is not accountable. In this sense, it would seem possible to draw an even stronger analogy with the sovereign who bases his legitimacy on a source other than that of parliament. In this regard, E. Gianfrancesco, Un approccio costituzionalistico alla Commissione europea, op. cit., in notes 38 and 92, argues that the semi-presidential form of government cannot be used to frame the form of government of the EU.
[27] A. Manzella, Nell’emergenza, la forma di governo dell’Unione, Astrid Rassegna, 316 n. 5 (2020), in reference to the formation of the Von der Leyen Commission, speaks of a relationship of “dual confidence” with the Commission, on the part of both the European Parliament and the European Council.
[28] Cf., G.G. Floridia, Il cantiere della nuova Europa. Tecnica e politica nei lavori della Convenzione europea, Bologna, Il Mulino, 2003, p. 413.
[29] In this sense, see, among many, R. Adam and A. Tizzano, Manuale di diritto dell’Unione europea, II ed., Turin, Giappichelli, 2017, p. 75.
[30] For a reconstruction of the genesis of the practice that gave rise to the Spitzenkandidaten, and the difficulties it encountered, cf. N. Lupo, La forma di governo dell’Unione, dopo le elezioni europee del maggio 2019, in https://www.giurcost.org/LIBERAMICORUM/lupo_scrittiCostanzo.pdf, and O. Suárez, ¿Réquiem por el Spitzenkandidat?, Política y Sociedad, 58 n. 1 (2021), https://doi.org/10.5209/poso.74302.
[31] Cf., among many, R. Perrone, Rafforzamento identitario dei partiti politici europei e democrazia nell’Unione: quali strumenti?, Giurisprudenza costituzionale, 62 n. 2 (2017), p. 929.
[32] For some further considerations in this sense, allow me to cite S. Aloisio, Circoscrizione unica europea e liste transnazionali: un’occasione perduta per realizzare uno strumento eccezionale di rappresentanza parlamentare davvero sovranazionale, in D. Preda and F. Velo (editors), A settant’anni dal Congresso d’Europa a L’Aja. Unità ideale e unità politica, Bari, Cacucci, 2020, pp. 261 ff., esp. pp. 267 ff..
[33] Cf. G.G. Floridia, La forma di governo nel progetto della Convenzione, Democrazia e Diritto, 2/2003, p. 154.
[34] E. Gianfrancesco, Un approccio costituzionalistico alla Commissione europea, op. cit., p. 14, believes that the presence of one commissioner per state can positively influence relations between the Commission and the member states, and that abandoning the presence, in the Commission, of every single member state does not seem to be essential in order to characterise the Commission as a body capable of expressing its own, original orientation in relation to the interpretation and implementation of the Union’s general interest.
[35] On the events surrounding the EDC and EPC, cf. at least, D. Preda, Storia di una speranza: la battaglia per la CED e la Federazione europea nelle carte della delegazione italiana (1950-1952), Milan, Jaca Book, 1990, and Id. Sulla soglia dell’unione: la vicenda della Comunità Politica Europea (1952-1954), Milan, Jaca Book, 1994.
[36] This issue already features in the reflections developed ahead of the creation of the EU. Of particular interest, in this regard, A. Padoa Schioppa, European Union and European Community: Two Incompatible Institutional Systems?, The Federalist, 30 n. 3 (1988), p. 201 ff., https://www.thefederalist.eu/site/index.php/en/notes/2143-european-union-and-european-community-two-incompatible.
[37] P. Calamandrei, Disegno preliminare di federazione mondiale - Presentazione (1949), now in Id., Scritti e discorsi politici, edited by N. Bobbio, I, 2, Florence, La Nuova Italia, 1966, p. 466.
