Apart from the presidency of the European Parliament, under the Nice Treaty, two positions are to be filled (Commission president and high representative) while three are to be filled under Lisbon (Commission president, high representative and European Council president).

COMMISSION PRESIDENT

The president of the European Commission is a position that remains basically in the hands of the member states, although Parliament’s role is stronger under the Lisbon Treaty. The main difference between the Nice Treaty and the Lisbon Treaty on the appointment of the Commission concerns the way the democratic dimension (Parliament’s opinion) is taken into account (see box).

Under the Nice Treaty, Parliament acts on an ‘ex post’ basis, at the final stage of the procedure. It merely approves (or rejects) the choice made by the heads of state. The vote takes place according to the rules set by Parliament (at present, the majority of votes cast, or simple majority). A change in the EP’s rules of procedure would therefore suffice to change the rules.

Under the Lisbon Treaty, Parliament’s participation is an active part of the process with express consideration given to the outcome of the elections. It involves consultations followed by a proposal and a vote by a majority of members (absolute majority).

From a theoretical point of view, the two procedures are more or less identical and both represent a democratic endorsement. In real political practice, however, it is obviously harder to reverse a choice that has already been made than to participate from the start in the decision making process. It is easier to obtain a simple majority than an absolute majority.

OTHER POSITIONS

Other positions can be used as bargaining chips to work out a compromise giving more weight to the member states that do not obtain one of the key jobs. Basically, these bargaining chips are commissioners’ seats.

Some are symbolic: competition, which has particularly important decision making power; internal market; and justice and home affairs. The individuals assigned to these positions have to resign from national or other offices they may hold. The members of the Commission are bound by certain strict rules. They are obliged to be “completely independent in the performance of their duties in the general interest of the Community”. They “shall neither seek nor take instructions from any government or from any other body. They shall refrain from any action incompatible with their duties.” The members of the Commission “may not, during their term of office, engage in any other occupation, whether gainful or not” (Article 213 TEC Nice - Article 17 TEU Lisbon).

Other ‘administrative’ positions, which may seem less political, nevertheless carry considerable power. These include the European Commission’s secretary-general (currently held by Irish national Catherine Day) or the head of its legal service (French national Claire-Françoise Durand). The Council’s secretary-general (currently Spain’s Javier Solana), which is separated from the high representative position under the Lisbon Treaty, and deputy secretary-general (currently French national Pierre De Boissieu), are also key positions. The Commission’s secretaries-general and directors-general are appointed by the president of the executive. The Council’s secretary-general and deputy secretary-general are appointed by the Council acting by a qualified majority (Article 207 TEC Nice). Only the secretary-general is mentioned in the Lisbon Treaty; this official is appointed by a simple majority (Article 240 TFUE Lisbon).

EUROPEAN COUNCIL PRESIDENT

This position does not exist under the current treaty, since the European Council presidency is held on a rotating basis by the head of state or government whose country holds the EU Presidency. It was created with the Lisbon Treaty. Although this position has been referred to as that of the ‘president of Europe,’ it remains poorly defined in terms of powers and means. In fact, it remains to be created and everything will depend on the personality of the individual appointed.

The president of the European Council is elected by the European Council, acting by a qualified majority. This individual may not hold any national office. The term of office runs for two and a half years and is renewable once.

This person’s role is fairly limited according to the Lisbon Treaty (Article 15 TEU): 1. chairs and drives forward the work of the European Council; 2. ensures the preparation and continuity of the work of the European Council on the basis of the work of the General Affairs Council (chaired by rotation among the 27 member states); 3. endeavours to facilitate cohesion and consensus within the European Council; 4. presents a report to the European Parliament after each of the meetings of the European Council; and 5. ensures “at his level and in that capacity” the external representation of the Union, without prejudice to the powers of the high representative.

Specific means are not spelled out, but the president has the Council’s means at his disposal.

HIGH REPRESENTATIVE FOR FOREIGN AFFAIRS

Under the Lisbon Treaty, the high representative “for foreign affairs and security policy” wears two or even three hats. Straddling the European Commission and the Council of the European Union, he is bound partly by the Commission’s rules and partly by intergovernmental rules (Article 18 TEU Lisbon).

The high representative is appointed by the European Council, acting by a qualified majority, “with the agreement” of the president of the Commission, implying that the Commission president has already been appointed. His term of office may be terminated by the same procedure.

In the Lisbon version, he is therefore the key man in the new European Commission. First, he is the Union’s ‘chief diplomat’. He conducts the Union’s Common Foreign and Security Policy and defence policy, proposes the development of these policies and carries them out as mandated by the Council. He expresses the Union’s position in international organisations and at international conferences. Second, he has a highly political role since he chairs the Foreign Affairs Council (but not the General Affairs Council, which remains under the rotating Presidency). Third and most importantly, he is the Commission vice-president in charge of external relations. In this capacity, he must be independent of the member states and has, like his fellow commissioners, full voting rights on all subjects as well as legislative and budgetary power. Lastly, he participates in the work of the European Council (without formally being a member, ie without voting rights).

In terms of means, the high representative has the new European External Action Service at his disposal, which will work in collaboration with the member states’ diplomatic services. It will be composed of officials from relevant departments of the Council General Secretariat and of the Commission as well as staff seconded from national diplomatic services. The high representative will also have other means from both the Commission and the Council (in particular departments in charge of defence policy: EU military and civilian staff, Joint Situation Centre - Sitcen).

Under the Nice Treaty, the high representative “for the Common Foreign and Security Policy” wears another hat, that of secretary-general of the EU Council and consequently head of the administration, a very discrete role that is nonetheless extremely important (preparation of Councils, working groups, legal service).

He is appointed by “the Council, acting by a qualified majority”. His mandate ends on 31 October 2009 or automatically (like that of the Council’s deputy secretary-general) upon the entry into force of the Lisbon Treaty (Article 6 of Lisbon, Protocol 36).

Role: the high representative assists the Council for matters relating to the CFSP and “contributes to formulation, preparation and implementation of policy decisions”. Where appropriate, he acts “on behalf of the Council and at the request of the Presidency, conducting political dialogue with third parties” (Article 27 TEU Nice).

Nomination of European Commission president

Nice Treaty (Article 214-2 TEC)

The Council, meeting at the level of heads of state or government and acting by a qualified majority, nominates the person it intends to appoint as president of the Commission; the nomination shall be approved by the European Parliament.

The Council, acting by a qualified majority and by common accord with the nominee for president, adopts the list of the other persons whom it intends to appoint as members of the Commission, drawn up in accordance with the proposals made by each member state.

The president and the other members of the Commission thus nominated shall be subject as a body to a vote of approval by the European Parliament. After approval by the Parliament, the president and the other members of the Commission are appointed by the Council, acting by a qualified majority.

Lisbon Treaty (Article 17-7 TFEU)

Taking into account the European Parliament elections, and after having held the appropriate consultations, the European Council, acting by a qualified majority, proposes to the European Parliament a candidate for president of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members. If he does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose a new candidate who shall be elected by the European Parliament following the same procedure.

The Council, by common accord with the president-elect, shall adopt the list of the other persons whom it proposes for appointment as members of the Commission. They shall be selected, on the basis of the suggestions made by member states, in accordance with the criteria set out in paragraph three, second subparagraph, and paragraph five, second subparagraph.

The president, the high representative of the Union for foreign affairs and security policy and the other members of the Commission shall be subject as a body to a vote of consent by the European Parliament. On the basis of this consent the Commission shall be appointed by the European Council, acting by a qualified majority.

Ratification: rule in force

An EU treaty, eg Lisbon, enters into force once all the member state ratifications have been completed. Ratification by the member state is completed not when the national parliament (or the voters if a referendum is used) has voted in favour, but when the act of ratification, duly signed by the state’s competent executive authority, is registered in Rome, since Italy keeps the EU treaties. The text enters into force on the first day of the month following the last ratification. For example: if a parliament or the voters ratify the treaty in October, but the ratification instrument is not deposited until November, the treaty enters into force on 1 December 2009.

Once the instrument of ratification has been deposited, the state is assumed to be bound by the ratification and must denounce the treaty to release itself of its obligations. Since no withdrawal or denunciation procedure is set out in the Rome Treaty, the rules of the Vienna Convention apply. On 1 June, 23 of the 27 member states had deposited their act of ratification. Germany, Ireland, Poland and the Czech Republic have yet to conclude the ratification process.