Spyros PAPPAS: A conditio sine qua non for the Commission to effectively manage the challenges of the Draghi Report

Finally, after long negotiations, on Tuesday, 17 September 2024, white smoke billowed over the Berlaymont, when the composition of the designated College of Commissioners was announced. One step before the Habemus Commission, immediately after the vote of consent by the European Parliament (EP) and their formal nomination by the European Council. The former was paved on 20 November 2024 and is expected to be voted by the EP plenary shortly. It took two months. Hopefully, the latter is a pure formality. So, after a rather too lengthy process starting with the launch of the campaign for the position of President of the Commission in February 2024, the European Union (EU) is almost ready to take off again with the view to restoring its competitiveness and responding to the geopolitical challenges of our time. However, this expectation presupposes that certain obvious conditions and a conditio sine qua non have been met and are in place.

More specifically:

-that the designated Commissioners have been chosen "on the basis of their general competence and their commitment to the European idea" (Article 17(3b) TEU). This means that they have experience of administration and successful management, meaning that they hold the necessary technocratic knowledge to cope with the complex EU policies, while in principle sharing the ideals of the Schuman Declaration of 9 May 1959. In other words, that their designation is not the product of political or other compromises; and that they are among the best in Europe, in keeping with the fact that the Commission is essentially at the top of the European pyramid;

-that the designated Commissioners, chosen "from persons whose independence is beyond doubt”, shall in carrying out their responsibilities "be completely independent” and "shall neither seek nor take instructions from any Government or other institution, body, office or entity” (Article 17(3)(b) TEU). The definiteness of the wording is reconfirmed by art. 245 TFEU which stipulates that "Member States shall respect their independence and shall not seek to influence them in the performance of their tasks (Article 245 TFEU). Meaningfully, the generality of these provisions covers all and each of the Commissioners, the President of the Commission included in particular when laying down guidelines within which the Commission is to work (Article 17(6) TEU);

-that the Commissioners-elect undertake to complete their five-year term of office (Article 17(3a) TEU) and not to use their institutional position as a springboard for other positions during their term of office, or even to return to it when their efforts are unsuccessful, as if their "Commissionship” were the second best. This obligation is not explicitly laid down in the Treaties, but it follows from the spirit of the Treaties, since the European idea is the ultimate objective that the Commissioners are called upon to fulfil, in total incompatibility with anything else during their five-year term of office (Article 245b TFEU). In other words, the Commissioners are required to devote themselves wholeheartedly to their mission, without any opportunistic interest in their political or other advancement. Isn’t it a sacrifice that goes hand in hand with the European idea?

-that the distribution of portfolios follows a certain ratione materiae to better coordinate services and is not the product of various political or personal agendas making each the time the organigramme à la carte in the detriment of transparency and effectiveness.

These are the minimum conditions for the "chosen” to safely reach the 13th floor of the Berlaymont, as an example of excellence and as a reward of a career that has reached the point of serving the common supranational interest. Provided that these conditions are met, the omens are good; yet, there is one conditio sine qua non: that the support mechanism of the College of Commissioners, the Commission services, is up to the demands of its mission. Is this the case? A macroscopic view of the European project clearly shows an upward curve up to the Santer Commission, which, following the formula hitherto followed, completed the vision of the single market of its predecessors, particularly the Delors’ Commission, undertook a historic enlargement and launched monetary union. What was this formula? On the one hand, the systemic approach for the formulation of each new policy proposal and, on the other, the principle of consensus.

The former was the achievement of the departments, under the guidance of their first Secretary-General, Emile Noël, followed up by David Williamson. Each Directorate-General's proposal had to go through scrutiny of all other Directorate-Generals in a process of cooperation, the inter-service consultation (ISC), that would be more accurately described as "fair competition" among equals. In this way, each policy proposal could take account of its impact on the others and vice versa. To make this possible, it was necessary to have a high quality, responsible staff with a strong sense of affiliation with the European project. A good bureaucracy capable of proposing equally legitimate alternatives to the political level.

The latter, the principle of consensus, was the recipe for power within the College: proposals of the services on which reservations had been raised during the ISC had to be discussed by Commissioners until a consensus was reached. Agreement by all members of the College, all on an equal footing, was mandatory. In this way, the unity was ensured, hence the power of the Commission and of its President. The very few exceptions to the rule are to confirm the value of this principle.

Above all, this method -systemic formulation of policy proposals and approval by consensus- preserved the cohesion of the Commission, the responsibility, and the uncompromising commitment of its members to their mission. It also safeguarded the motivation of the services directly involved in the project. It seems that this formula has now been weakened. The ISC might still exist as a formality. Nevertheless, as orders come from above, strictly top down, the services feel obliged to carry them out without further true examination. Besides, they are not always all involved. Likewise, the Commissioners fulfil a role that is subordinated to the President’s cabinet. In this way, their independence and responsibility have been largely replaced by "loyalty” and thus lack of direct accountability for the policy proposals they must support. The result? A poor and slow bureaucracy in its infancy. Presumably, before the end of this Commission's mandate, this culture will be irreversibly entrenched. Absence of a strong Commission will inevitably lead to divisive tendencies within the EU and to its falling behind on the international stage. Either the Commission is immediately restored to its well-deserved role of being the driving force of the Union, or a complete overhaul of the Institutions and their adaptation to the new requirements of the times is imminent. In the first, safer as proven scenario, the Commission President, primus inter pares among the other Commissioners and no more, should represent the Union erga omnes, unaccompanied by the Presidents of the EP and the European Council, with the legitimacy conferred by the independent services of the Commission and its responsible Members, of course under the control of the Council, in particular the democratic control of the EP, and the ultimum one by the Court of Justice. Hopefully, the Commission still retains the vitality to embark upon a renewed European project, wiser by its achievements so far, yet there is great time for a come back to the good old recipes should the Draghi Report be given the chance to produce some of its juicy fruits.

Spyros A. Pappas

Member of the Brussels and Athens Bars

Former Director General at the European Commission; DG of the European Institute of Public Administration and Professor of European Law (Maastricht); Secretary General of NCPA; Judge in the Council of State