The European Commission’s mandate ends on 31 October, after which a new executive will come into office. According to rules established by the Nice Treaty, it will include fewer members than member states. Even if the Lisbon Treaty is ratified next autumn by Ireland, it cannot enter into force before the new Commission’s term begins. So the aim might therefore be to ensure the uninterrupted continuation of the EU executive.

The EU Treaty does not include provisions for extending the European Commission’s mandate, even in the case of absence of agreement by the heads of state or government. This is not an oversight. The lack of provisions pushes Europe’s leaders (heads of state or government and EP officials) to work out an agreement. On the contrary, allowing a temporary solution might encourage “a lasting provisional arrangement”.

Although this possibility is not expressly provided in the treaty, the extension of the Commission’s mandate and even the appointment of a temporary Commission have already been tried in the past.

TREATY PROVISIONS

The treaty is clear: “The members of the Commission shall be appointed [...] for a period of five years” (Article 214-1 TEU). The only exception is the adoption of a motion of censure (Article 201), which interrupts the mandate of the entire Commission, but the term of office of five years must be respected. The mandate of the new commissioners “shall expire on the date on which the term of office of the members of the Commission obliged to resign as a body would have expired”. Here, too, there is no extension beyond the five years.

It is of course provided that “members of the Commission remain in office until they have been replaced or until the Council decides that such a vacancy need not be filled”. However, this provision - Article 215(4) - has to be read in its context. It is the fourth paragraph of an article meant to govern cases of vacancy in the course of a mandate.

RISKS

The danger of an extension beyond the five-year term of office exists not at political level, if the 27 heads of state are in agreement, but at legal level. There is nothing to prevent a company or an official against whom the Commission has issued a decision (fine, contract, appointment) from challenging before the Court of First Instance or Court of Justice the legality of the decision for lack of jurisdiction. The court’s verdict would of course not be known for several months, but it would represent a sword of Damocles hanging over all the Commission’s decisions. The executive would be forced into immobility. For this reason, moreover, most of the Commissions whose mandates have been extended have limited their activities to “strict execution of current affairs,” which does not include the presentation of a new directive or legislative proposal, for example.

HISTORIC PRECEDENTS

• In 1991, the term of office of the Delors Commission was not extended. A new Commission was appointed for a limited term of two years. This was necessary to bring the Commission’s new five-year term of office (up from four years previously) into line with the European elections.

• In 1993, the Delors III Commission was extended by two weeks, from 6 to 22 January, the time needed for the new Commission to be put in place. The governments had fallen behind schedule appointing the Commission. At the Corfu summit, the British rejected Jean-Luc Dehaene (Belgian prime minister) and it was not until July that the member states agreed on Luxembourg’s Jacques Santer. The European Parliament then decided to vent its bad temper. It was unhappy with the distribution of portfolios and trounced several commissioners. The equality portfolio was taken away from Irish Commissioner Padraig Flynn, whose declarations on the role of women were considered unacceptable. In the end, the four new member states (Austria, Sweden, Finland and Norway) had not yet ratified the Accession Treaty and Parliament demanded that the new MEPs participate in the vote (initially set for December, but postponed to January). The presentation of new directives was postponed, as Jacques Delors explained personally to several national officials, including Nicolas Sarkozy, then communication minister (with reference to the Television Without Frontiers Directive).

• In 2004, the Prodi Commission, whose term of office ended on 31 October, remained in office until 22 November to fill the void resulting from the failure to appoint the new Commission in time. The Commission President-designate, José Manuel Barroso, did not want to take away the justice and home affairs portfolio from Italian Conservative Rocco Buttiglione, following his controversial statements on homosexuals. Under the threat of a negative vote, or a positive vote gained with the support of the far right, Barroso complied in the end, but the last-minute recomposition of the new Commission, with new Italian and Latvian commissioners, and the negotiations with the respective governments took longer than expected.

Article 215

Apart from normal replacement or death, the duties of a member of the Commission end when he resigns or is compulsorily retired.

The member who has resigned or died is replaced for the remainder of the term by a new member appointed by the Council, acting by a qualified majority. The Council, acting unanimously, may decide that such a vacancy need not be filled.

In the event of resignation, compulsory retirement or death, the president is replaced for the remainder of his term of office. The procedure laid down in Article 214(2) is applicable for replacement of the president.

Save in the case of compulsory retirement under Article 216, members of the Commission remain in office until they have been replaced or until the Council has decided that the vacancy need not be filled, as provided for in the second paragraph of this article.