(Un)settling the precedent: Contrasting institutionalisation dynamics in the spitzenkandidaten procedure of 2014 and 2019

Abstract

The article analyses the application of the spitzenkandidaten procedure as instances of a larger institution building process in which the European Parliament and the European Council try to enact competing rules. The Treaty of Lisbon introduced a new clause on how to appoint the Commission President. While in 2014 the European Parliament successfully realised its interpretation according to which the winning spitzenkandidat became Commission President, in 2019 the Council succeeded in deciding not only who would take the Commission presidency but also other key positions. We consider both appointments as cases of decision-making in a natural arena that lack stable institutions about how to appoint the Commission president. Accordingly, the single decisions pended on the case-specific strategic use of resources. While the analysis of the two single cases does not allow us to predict what the institutional rules for future appointments will be, we can identify key resources and strategies that will determine how the institutional rules will be shaped in the elections to come and thus further the understanding of the institutionalisation in the making.

Introduction: the struggle over the spitzenkandidaten

The Lisbon Treaty introduced a new, ambiguous clause laying down the rule that the European Council (Council) had to consider the outcome of the European Parliament (EP) elections when nominating the Commission President (Hobolt, 2014: 1532–1533). On this basis, the 2014 election marked ‘a sort of change in the EU constitutional balance without treaty amendment’ (Goldoni, 2016: 284) implying ‘a constitutional innovation’ (Laffan, 2019: 409) in the EU’s inter-institutional balance of power. This is due to the fact that the Commission President nomination in 2014 was ultimately based on the so-called spitzenkandidaten procedure through which the EP secured a direct right for nomination. This innovation was, however, never fully accepted by the Council and the member states. The 2019 European electoral campaign thus occurred under starkly divergent assumptions about how the next Commission President was to be appointed.

Taking an institutionalist perspective, we analyse the two applications of the spitzenkandidaten procedure as distinct cases in an ongoing process of building institutional rules. This larger process is shaped by inter-institutional competition on how to bindingly interpret the treaty. While our analysis cannot provide a definite answer about the future behavioural rules, it offers insights into decision-making and institution building dynamics. First, in contrast to interactions in the established EU decision-making procedures – including wider issues of Commission investment and censure – the last two appointments lacked structuring institutions that could effectively bind the actors. The cases thus enhance our knowledge about inter-institutional co-ordination short of fully institutionalised procedures. Second, the cases are crucial moments in the re-interpretation of rules and thus inform us about institutionalisation dynamics. The next section offers a definition of institution building in a natural, that is not yet institutionalised setting and pinpoints the relevant dimensions of such institutionalisation which are then used to scrutinise the two cases at hand. The remainder of this article applies this framework to the spitzenkandidaten procedures in 2014 and 2019.

Institution building in a natural environment

The EP went into the 2014 elections challenging the institutionalised practice based on a unilateral new reading of the treaty, namely that the partisan spitzenkandidaten procedure would determine the nominee for the Commission presidency. The Council, however, insisted that the treaty did not imply legal changes to the pre-existing institutional rules and upheld the right of nomination as its genuine prerogative. Even though in 2014 the EP’s interpretation prevailed, it remained contested in 2019. This contestation is also likely to reoccur in the future. We interpret this fight over the meaning of the Lisbon Treaty clause as an iterative process of institution building. The 2014/2019 Commission President appointments took place in a context of challenged and unstable institutional rules. Claiming that the Lisbon Treaty created a new setting, the EP managed to annul the pre-existing and previously mutually accepted practice in 2014, while in 2019 the Council challenged the EP’s position on having established new institutional rules in 2014. Together, we consider both instances as cases in a wider process of institution building in which two proposed interpretations compete for stable institutionalisation. To structure the analysis, we first define the specific context of decision-making and, second, the dynamics of institution building.

First, in 2014, due to the EP’s proactive and disputed reading of the Lisbon Treaty, the previously established appointment procedures were evaded. While they still existed on paper, the decisive features of an institutionalised procedure (see below) did not hold. Notably, the appointment process lacked mutually accepted behavioural rules, which means that the EP managed to move the decision into a ‘natural arena’. Following Bartolini, ‘in a natural political arena the guaranteed power attributed to each actor depends exclusively on its resources (economic, symbolic, violence) and their strategic use through a continuous process of conflict and negotiation’, while ‘a governmental arena (any governmental arena, from the state to the professional order) is endowed with an actor and an institution specialised in the production of behavioural conformity’ (Bartolini, 2005: 28). As the pre-existing rules were negated by the EP, the ultimate decision was pending on deploying institutional resources. Further, moving from a ‘natural’ to a ‘governmental arena’ favours actors who can lock in their interests, which in our cases was the objective of the EP and Council.

Second, institutionalists have identified a set of defining features creating a ‘governmental arena’ through institution building – or in turn, features that need to be present to identify rules as being institutionalised. Olsen summarises institutionalisation processes in three points: (a) the clarification and agreement ‘about behavioural rules, including the allocation of formal authority’; (b) ‘[i]ncreasing consensus concerning how behavioural rules are to be described, explained, and justified, with a common vocabulary, expectations, and success criteria’; and (c) ‘[i]ncreasing shared conceptions of what are legitimate resources in different settings and who should have access to, or control, common resources’ (Olsen, 2010: 127). Notably, regarding the application of the relevant Lisbon Treaty clause, none of these criteria has yet been met in practice. Even though the Lisbon Treaty spells out ‘in letter’ what the formal rules and institutions are, in practice the interpretations differed so that neither behavioural rules, a consensus over these, nor the legitimacy of the use and control of resources had been settled. This underpins the fact that in 2014 and 2019 the decision was brought about in a natural arena: the EP and Council disagree about rules, their legitimacy and resources, that is about how to institutionalise the new treaty clause. Besides unveiling how Council and EP interact outside an enabling/constraining institutional context (North, 1990) they are cases of a larger still unfinished and more long-term institutionalisation process (Olsen, 2010: 144).

From these definitions we derive our analytical dimensions: the identification of key actors, their resources and strategies used to realise their interests. Scrutinising decision-making in the natural arena further informs us about crucial dynamics in a larger process of institution building. The key actors for the analysis are those who appoint the Commission President, that is, the Council composed of the heads of state and government and the EP and its constituent party groups and members of parliament. It is safe to assume that actors in a natural arena aim to both shape the decision at stake and, at the same time, lock in procedures that ensure delivery on their interests in the future. For our analysis, we assume that both the Council and the EP pursue a strategy that ensures their preferred candidate gets appointed and an institutionalisation of their interpretation of the Lisbon Treaty. Following an institutionalist research agenda, we concentrate our ‘attention on how intra- and inter-institutional attributes may affect the processes through which institutions emerge and change rather than addressing the huge literature on deliberate reform and broad societal processes, including revolutions and wars’ (Olsen, 2010: 147).

The variable geometry of institutionalisation strategies

The key actors in both cases are the EP and the Council and their respective constituent units and individuals. Notably, the EP has constantly sought to increase its relevance in the EU’s political system through the creation of informal rules, including on the investiture of the Commission (Héritier et al., 2019: 61–79). These have, over time, altered the investiture as the EP deployed strategies such as acting as a first mover on matters like the spitzenkandidaten (Héritier et al., 2019: 14–15). The collective EP preference on changes to the appointment procedure was first vocalised in a 2012 EP resolution (European Parliament, 2012) that confronted the strict ‘letter’ of the treaty, that is the Council’s legal prerogative, with its reading of the treaty ‘spirit’, that is that the EP elections would bind the Council’s hand. This assertion was also reflected in the EP’s official 2014 electoral slogan, which argued that ‘This time it’s different’ (Laffan, 2019: 408). The EP translated its treaty reading into a new resource, namely the spitzenkandidaten procedure. Arguing normatively that more political competition would increase EU legitimacy – echoing academics such as Føllesdal and Hix (2006) – the EP thereby augmented the role of party-political conflict in the election. This allowed for it to claim that only a candidate who won the partisan electoral battle could legitimately become Commission President. The underpinning reasoning corresponds to the logic of government formations based on parliamentary majorities which, as will be discussed below, led to different proceedings in 2014 and 2019.

This reframing was against the basic interests of the Council (Laffan, 2019: 410). Strategically, the Council was reluctant to accept the reframing of the appointment procedure in normative terms and kept challenging the very legitimacy of the spitzenkandidaten procedure. Even though the Council bowed to the EP’s proposal in 2014, it explicitly did not accept the procedure’s legitimacy. Unlike the EP’s normative line of argument, the Council legalistically referred to the letter of the treaty which still granted the national leaders the prerogative to nominate a Commission President (Christiansen, 2016: 1000–1001). In other words, the Council challenged the EP’s claim that the spirit of the revised treaty established the need for new institutional rules.

That said, while the EP and the Council are treated as collective actors, the positions of their constituent entities need to be considered as well. For the EP these are the transnational party groups, ‘Europarties’, which unite EU member state parties in pan-European party federations, which then sit as political groups in the EP. When the spitzenkandidaten procedure was first suggested in the EP in 2012, key Europarties united behind the idea. This meant support from the large Conservative and mainstream Socialist party groups (and de facto governmental coalition parties), as well as the Greens and the Liberals. In line with this, five of the seven key political families presented pan-European lead candidates (Hobolt, 2014: 1533) in 2014 and thereby implicitly embraced the EP’s claim on nominating the Commission President. Crucially, the Socialist spitzenkandidat at the time, Martin Schulz, was himself one of the key architects of the EP’s position (Héritier et al., 2019: 74).

This party-political support was further emphasised ahead of the 2019 election, with most parties again presenting spitzenkandidaten. Support for the procedure was even stronger, with two additional parties nominating a candidate. Only the Liberal ALDE group (later renamed Renew Europe) selected a team of seven candidates. This illustrated their new-found opposition to the spitzenkandidaten system in absence of pan-European electoral lists at the EP elections, which was due to the new French liberal movement led by Emmanuel Macron joining ALDE. Given the dismissal of pan-European electoral lists in EP elections, President Macron had become one of the most vocal opponents of the spitzenkandidaten procedure in its current form. With the Liberal’s exception, all key Europarties fall in line with the EP’s collective strategy. This entails an inevitable paradox. As will be illustrated below, by competing in a natural arena, the two opposed interpretations (normative v. legalistic) between the EP and Council meant that in order to succeed in the single case, the Europarties represented in the EP had to give up their party-political position – and with it its longer-term objective in the underpinning institution-building process. This paradox is directly linked to the weakness of Europarties more generally. According to the partisan logic of the EP, decision-making in the Council should also follow a party-political logic. In fact, in the initial Council internal negotiation phase in 2019, cross-institutional party alliances were observable but eventually disappeared in favour of inter-institutional power considerations. The general weakness of the Europarties was accordingly a decisive element of the EP’s failure to further institutionalise its treaty reading.

Similar to the constituent units in the EP, the position of individual governments in the Council ultimately depends on a desire to retain the collective influence that these can wield in EU politics. At the same time, the individuals have affiliations to the very same Europarties represented in the EP. However, the Council’s legalistic interpretation and power-based interests of the national governments meant that these ultimately abandoned the party-political logic of supporting their nominal party colleagues in the EP. This conflict of interest could be seen in the positions of individual governments such as that of Germany, as it ultimately supported the spitzenkandidaten process in 2014 for domestic reasons (Laffan, 2019: 410). While the Council’s nominee in 2019 was a German national, a domestically-driven coalition dispute then forced the government to abstain in the Council. In any case, the result of the spitzenkandidaten procedure in 2014 did not change the Council’s basic line ahead of the election, which was clearly expressed by a group of member states ahead of the 2019 election (Herszenhorn and De la Baume, 2018).

The differing dynamics of spitzenkandidaten in 2014 and 2019

How did the concrete actor strategies deliver on, first, successfully bringing a particular candidate into office, and, second, shaping institutional rules for the future? The EP used the spitzenkandidaten procedure extensively to promote the normative objective of increasing party politics at the EU level in both elections.

In 2014, for the first time, the spitzenkandidaten participated in the electoral campaign with distinct political visions of the EU. However, immediately after the election we observe a shift in the EP’s strategy as collective actor: concerns over distinct political agendas vanished, as the EP instantly presented the Conservative candidate as the institution’s appointee for the Commission presidency. More so, Socialist candidate Martin Schulz, who announced Juncker as winner, admitted defeat and offered full support to his key rival (Christiansen, 2016: 1005). This move was decisive for two reasons. First, within the natural arena, the EP resorted to resources other than the mere claim that electoral outcomes should determine the nominee. Instead, the EP strategically used timing and intra-institutional unity, at the expense of previous partisan claims. Ignoring the competing campaign positions, the institution gained leverage vis-à-vis the Council in the inter-institutional process, arguing that the candidate who won the partisan battle had to be nominated. This claim was reinforced by the EP’s first-mover advantage. Second, breaching party-political competition within the EP confirmed parliament’s self-ascribed role of de facto forming a government. In 2014, agreement within the EP was facilitated by the fact that Conservatives and Socialists acted as a de facto grand coalition. For the inter-institutional dimension in the natural arena, this strategy guaranteed success in 2014. For the broader institution building objective, the EP read this success as a precedent in favour of the spitzenkandidaten procedure and its institutionalisation.

Relying on this reading, in 2019 the Europarties polarised the EP election even stronger along party-political lines. This continued strategy was consistent with the conviction that 2014 had already established an institution, that is the 2019 elections no longer took place in a natural arena. Therefore, its strategy would also be successful in 2019 as the long-term goal of institution building had at least partially been achieved. Accordingly, we observe a decisively stronger polarisation of political positions during the 2019 campaign. This was particularly demonstrated in a number of public TV debates between the competing candidates ¹ and is exemplarily illustrated by the last debate in the plenary chamber of the EP in Brussels (European Parliament, 2019a). In the debate, the Greens and the European Left positioned themselves as a political alternative to the European political mainstream. This contrasted starkly with the positions of the other candidates, with the Conservative candidate Manfred Weber (German) trying to represent himself as guarantor of the success of the EU. The Socialist Frans Timmermans (Dutch), instead, was somewhat critical and signalled agreement with the Greens and the Liberals on diverse policy issues, thereby foreshadowing possible alliances that could win political majorities after the election. The Liberals’ de facto spitzenkandidat Margrethe Vestager (Danish) then positioned herself as compatible with the two most likely contenders for the Commission presidency, namely Weber and Timmermans, thus also indirectly offering herself as a potential compromise candidate.

Whereas the 2019 campaign reinforced the EP’s prior strategy, the EP acted decisively differently after the election. Strengthened in its normative claim by higher electoral turnout, it acted as if it was no longer in a natural arena but an institutionalised setting in which the Council was to respect the rules set in 2014. However, as the Socialists and Conservatives no longer commanded a majority on their own, the successful Conservative spitzenkandiat could not resort to a grand coalition backing him. As a consequence, the EP continued its party-political internal competition to decide on a compromise candidate, akin to government formations. The EP did not move first but insisted that it would determine a majoritarian political programme for the Commission and only accept someone who ‘has made her/his program and personality known prior to the elections, and engaged in a European-wide campaign’ (European Parliament, 2019b).

Like the EP, the Council did not change its main strategy and stressed its legalistic interpretation of the Lisbon Treaty. In 2014, it argued along these lines but still had to reluctantly submit to the normative claims by the EP, as the latter had made use of the strategic resource of timing. This made it impossible for the Council to deploy its legalistic arguments amidst increasing pressure to elect Juncker as Commission President (Goldoni, 2016: 287).

In 2019, in contrast to the EP, the Council did not act as if the arena had already been institutionalised. It instead activated resources and strategies that pushed the decision back into the natural arena in order to exploit timing and formulating a package deal between competing interests as strategic resources. However, this Council strategy was not clear from the outset. In fact, most national parties and leaders had – at least formally – supported ‘their’ spitzenkandidat during the campaign. In consequence, a strengthened emphasis on party-political competition could also be observed inside the Council. First debates between its members focused both on possible party-political majorities for a (compromise) candidate who had run as spitzenkandidat in the elections. In addition to party-political cleavages and arguments about Weber’s lack of governmental experience and charisma, geographical considerations showed when some Central European states rejected Timmermans as a compromise candidate due to his strong critique of their governments’ rule of law performance as a Commissioner.

French President Macron acted as an entrepreneur in turning his opposition against the spitzenkandidaten process into a success: he highlighted Weber’s unsuitability for the position (Euractiv, 2019) and opened a path for a joint Council compromise. His goal was to re-establish the Council’s pre-2014 position in the inter-institutional competition by overcoming the party-political polarisation within the Council, which put the EP under time pressure. Intra-institutional consensus was achieved by selecting the (non-spitzenkandidat) Ursula von der Leyen as Commission President, as she satisfied the conservative majority and addressed Central European concerns against Timmermans. This proved enough for the latter to accept that they would not attain any of the top EU positions (Barigazzi et al., 2019). In addition, presenting a personnel package for a range of key EU positions, other party-political claims could be served while the use of the first-mover advantage promised to undo the 2014 precedent and to re-emphasise the Council’s institutional superiority.

Pushing the boundaries of the natural arena, the proposal effectively intervened both in the EP’s right to elect its president and the Commission President’s right to assign positions in the Commission independently. It thus not only re-established the natural arena but even expanded it into previously institutionalised spheres of (relatively) independent organisational decision-making in the EP and the Commission. To harden the pressure on the EP, the Council elected the permanent Council President and the High Representative – for which it is solely responsible – without further co-ordination. This move reduced the EP’s room for manoeuvre in light of the required delicate geographical, party-political and gender balance for the personnel package of key EU posts. Faced with this partly-already-elected package, the EP could hardly continue its partisan internal process aiming at identifying and programmatically binding a compromise candidate.

Therefore, in 2019 the EP did not only lose the immediate competition but, by re-establishing the natural arena in 2019, the Council also put a question mark on the stability of the rules the EP had considered as already institutionalised. Interestingly, the Council did not succeed in doing so by arguing for its legalistic interpretation on the same, namely normative, level as the EP. Instead, the Council strategically re-set the scene and used its resources, thereby undermining the EP’s normative claims. Not succeeding meant that the EP failed to deliver its self-made promise to the voters, namely that the vote decided on the future Commission President. Obviously, this failure casts a shadow on future normative promises of this kind. The claim that party-political contestation and negotiation would bring out the best-suited candidates was diluted by the Council’s counterargument that the he or she best qualified professionally could precisely not be identified through party-political compromise in 2019.

Conclusions

Analysing the 2014 and 2019 application of the spitzenkandidaten procedure as two crucial instances in an on-going institution building process, the analysis has shown how decisions are taken in a context of contested behavioural rules. Taking the Lisbon Treaty by the letter, the Council keeps the right of nomination. Reinterpreting the treaty’s spirit, the EP managed to challenge the procedure’s prior institutionalisation. The conflict in 2014 therefore occurred in a natural arena in which the EP could strategically deploy its power resources in the self-invented spitzenkandidaten procedure. As our analysis shows, the major weakness of the EP in 2019 was its miscalculation that this precedent had already sufficiently institutionalised the process – meaning that the previous case had allocated formal authority, that there was consensus concerning behavioural rules and that conceptions about legitimate resources were shared by the EP and the Council (Olsen, 2010: 127). In addition, the EP’s actual power resources were weakened compared to 2014 given the ambiguous election result.

The 2019 election unveiled that none of the criteria that mark a successful institutionalisation were actually met. This opened the opportunity for the Council to challenge the 2014 rules and utilize its power resources in the, again, institutionally contested arena. While our analysis demonstrates that strategies of timing and inner-institutional co-ordination were decisive in winning the inter-institutional dispute in a natural arena, a more long-term view will be necessary to determine what ultimately drives the institutionalisation of the nomination and appointment rules for the Commission presidency.