Towards the EP parlamentarisation: unified electoral system, transnational lists and Spitzenkandidaten

On May 3, the European Parliament voted in favor of revising the 1976 European Electoral Act, according to the proposal submitted by Spanish Social Democrat rapporteur Domènec Ruiz Devesa and approved in late March by the EP’s Committee on Constitutional Affairs (AFCO). This proposal, which the European Parliament is working on in the run-up to the European elections, is part of a project long pursued and implored by the body itself: namely, that of strengthening the European dimension of EU elections, emphasizing the link between those elections and the European project, and increasing public interest in European affairs. For too long, in fact, it has been criticized for focusing excessively on national politics and domestic candidates, to the detriment of promoting real political debate at the EU level. The EP’s current electoral reform proposal, approved by 323 votes to 262, seeks to repeal the current Act and adopt a new Regulation governing European elections. The reform under review therefore aims to be part of a global reflection on the nature of the EU’s political system – rather than a simple set of independent technical and legal adaptations – that could finally establish a uniform electoral system that can be applied throughout the European Union. This, however, only if it is also approved unanimously by the member states in the Council.

Article 223 TFEU stipulates that, concerning the election process, “the European Parliament shall draw up a proposal to lay down the provisions necessary for the election of its Members […] in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States. The Council, acting unanimously […] shall lay down the necessary provisions, [that] shall enter into force following their approval by the Member States in accordance with their respective constitutional requirements”. The adoption of a uniform electoral procedure in all member states is thus conditioned by a rather complex procedure, which requires unanimous deliberation by the Council – that is, unanimity of the member states represented in it – and subsequent approval by the member states following their respective constitutional provisions. For this reason, so far it has not been possible to adopt a uniform electoral procedure, but the current European Electoral Act – as amended in 2002 – only set certain common principles that should be respected by the different national laws applicable to European elections, otherwise leaving the member states free to regulate the election of the European Parliament as they see fit. The Council Decision 2002/772/EC stipulated that elections should be held by the proportional method, allowing member states to adopt the preferential list or uninominal ballot, on the understanding that the electoral procedure is governed in each member state by its own provisions, which may also take into account the particularities of individual member states, but must not overall undermine the proportional character of the vote. However, democratic representativeness is undermined by the diversity of national electoral rules, which continues to emphasize the predominantly national dimension of European electoral campaigns.

Among the main novelties that the proposal in the works would bring, the following may be highlighted: a common minimum age of 18 to stand for European elections and a common minimum voting age of 16; the obligation for all parties to ensure gender parity in their candidacies; a fixed day for holding European elections throughout the EU – May 9, every five years. Thus, the Ruiz Devesa draft report is grounded on a truly federal vision of the European political system. It openly aims at “shaping in a concrete way a European public sphere”. Overall, its objectives are fully in line with the historic demands for the European Parliament: to reinforce the “European” dimension of the elections, to give a more central role to European parties, to harmonize further electoral rules, and to promote gender equality, in order to call on European and national political parties and movements to adopt “democratic, informed and transparent procedures” for these purposes, so as to ensure the involvement of citizens in the process.

There are two other main reforms regarding the democratization of the Union. The first involves the creation of a “Union-wide constituency”, encompassing the territory of all member states, in which 28 members of the European Parliament would be elected through transnational electoral lists at the next European elections, with a uniform electoral system and procedure – as stated in section 2 and 18 of the proposal. What this means concretely is that each voter will have two votes in the voting booth: one will be used to elect Members of the European Parliament in national constituencies, while the other will allow them to choose the 28 additional new MEPs from the EU constituency. European electoral entities, i.e., coalitions of national political parties and European political parties, will be thus entitled to submit lists of candidates at the EU level. The latter novelty is perhaps the most revolutionary. The creation of a pan-European constituency, comprising the whole territory of the European Union, in which several MEPs would be elected from transnational electoral lists, is frequently depicted by its proponents as a way to enhance the European dimension of European elections – and an optimal manner of implementing Article 14 (2) TEU, as amended in the Lisbon Treaty, which states that the EP “shall be composed of representatives of the Union’s citizens”, not of representatives of member states citizens. The availability of transnational lists could help to focus the electoral campaign on European affairs and strengthen European political parties, which would acquire a central role in EP’s elections by proposing truly European candidates. Thus, transnational list advocates argue that they would improve the quality of democratic representation in the EU and help to create a European demos, no longer blinded by particularism and interested only in their national candidates. In addition, it would prevent the election of MEP from being a second-order election because of a lack of a truly trans-European party system.

This eye for genuine democracy in key EU institutions can also be seen in the feature proposing the rehabilitation of the Spitzenkandidaten process. According to section 16 of the proposal, “[…] the leaders of the European political parties and parliamentary groups [should] agree on a common indication to the European Council on the basis of the outcome of the European elections as well as on a majority in the newly elected Parliament as regards the nomination of a candidate for President of the European Commission; expects the President of the European Council to consult the said leaders of the European political entities and parliamentary groups in order to inform the nomination process; considers that this lead candidate process could be formalised by a political agreement between the European political entities and by an Inter-Institutional Agreement between Parliament and European Council”. Article 17(7) of the TEU stipulates that the European Council, acting by a qualified majority, proposes to the European Parliament a candidate for the office of President of the Commission, “taking into account the elections to the European Parliament”. The system of Spitzenkandidaten instead provides that to become the president of the Commission is automatically the leader of the European party that gets a majority in the European elections, and not the figure proposed by the European Council: in this way, the executive would be an expression of the legislative, like a parliamentary democracy.

The primary intent of the Spitzenkandidaten system is to reinvigorate and strengthen the democratic legitimacy of the Commission – especially its President – by exponentially increasing its political accountability and responsiveness to the electorate while trying to rebuild a relationship of trust between citizens and the EU institutions and attempting to curb the democratic deficit of the entire Union. The rationale underlying such a vision is simple: called upon to participate in European elections in order to indirectly elect the new Commission president, European citizens might view the institution favorably again and perhaps legitimize its decisions and policy choices more. Further, this would transpose, in the supranational sphere, the mechanisms that characterize the national democracies of the member states. Indeed, there is no relationship of confidence between the Commission and the European Parliament that binds the Parliament and the Council of Ministers in a parliamentary democracy, since in the case of the Union the executive is not formed within the legislative. Thus, the EP does not have a party link with the Commission in the sense that the composition of the latter does not reflect the partisan majority of the EP. One could almost say that, given the lack of a decisive role in the formation of the Commission, the EP is not a true parliament. Thus, the parliamentary election of the President of the European Commission is the required condition for reducing the EU’s democratic deficit, while strengthening a political leadership to ensure the legitimacy and accountability of its actions and decisions. The third intent is to transform the second-order nature of elections by revitalizing the increasingly distrustful, absent, apathetic and disconnected European electorate. In fact, the experiment seeks to promote the participation and involvement of European citizens through the Europeanization of debates, issues, and political, socio-economic and institutional questions that cut across all European peoples. The intent is thus to create a personalized election campaign – through the presence of candidates throughout Europe – in order to make the elections truly and definitively European and to make citizens actively participate in the life of the EU. All this coupled with a massive downsizing of the role of the intergovernmental body par excellence – the European Council – which no longer has an unbalanced initiative on the choice of the future Commission President, thereby rendering it a mere collective head-of-state institution ratifying the choice made by the EP.

The mechanism was used for the first – and only– time in the 2014 EP elections. With the harsh austerity measures imposed on southern European countries hardest hit by the 2009 Eurozone crisis, public support for EU institutions had significantly declined: overall, only four of the 28 member countries rate EU leadership positively. With the harsh austerity measures imposed on southern European countries hardest hit by the 2009 Eurozone crisis, public support for EU institutions had significantly declined: overall, only four of the 28 member countries rate EU leadership positively. The Euroskeptic tendency caused by the economic crisis and fueled by that of governance, due to the lack of EU citizens’ involvement in policies, therefore required a fuller democratic legitimacy of the integration process that only European-style policies could achieve – whose input was to be found in the Parliament-Commission understanding. To give citizens political awareness of their choices and who would manage them, the Commission made a public communication recommending political parties to nominate a candidate for European Commission President in the next elections. The Spitzenkandidaten were Jean-Claude Juncker for the EPP, Ska Keller for PVE, Martin Schulz for S&D, Alexīs Tsipras for the GUE/NGL United Left, and Guy Verhofstadt for ALDE-PDE. Nominations were to be submitted well in advance of the election so as to organize a significant campaign on the national election model, giving each party leader a chance to express his or her electoral program on a European platform. The goal was achieved: the 2014 elections reached a high level of personalization, political parties positioned themselves as central players in the European scenario, and the media resonance of the electoral contest reached unprecedented rates. However, the average participation was 43.09%, a very slight increase relative to the 43% in 2009. The EPP got the majority, and then top candidate Juncker became President of the Commission with 422 votes in favor by the EP and 26 out of 28 votes in the European Council.

Also, in the run-up to the 2019 European elections, the EP published its list of candidates, reiterating its determination to reject any candidate nominated through a formula that was alternative to Spitzenkandidaten. During these elections, however, the EPP did not win a majority of seats, although it again configured itself as the largest European party. Indeed, the new – Brexit – and existing crises reignited the debate on European integration and created new ideological cleavages that were then reflected in the EP: smaller parties, including Euroskeptic ones, gained several more seats in 2019 than in 2014, reflecting the increased support gained by at the national level, while larger parties such as the EPP lost as many. The Parliament thus appeared fractionalized. The only party that emerged victoriously was ALDE – which changed its name to Renew Europe: it was the only group that did not present a top candidate, but a list of liberal and pro-European leaders – the so-called Team Europe. The group received support offered by Macron’s national party La République en Marche during the election campaign, which led the group to gain 40 more seats than in 2014. Macron’s party has thus allowed the Alde to make room for itself in Parliament and extend its own original to aspire to a majority in the 2024 European elections, but on one condition: oppose the Spitzenkandidaten. To the EP’s request to the European Council to appoint Weber – EP’s Spitzenkandidat – as the new President of the Commission, Renew Europe expressed its refusal in supporting his candidacy. Macron officially opposed the Spitzenkandidaten, calling it “a true democratic anomaly”. To halt the process, Macron created a coalition of ministers at the Brussels Summit prior to the EP elections: among the reasons expressed by detractors is skepticism about the transparency in Juncker’s selection process 5 years earlier and concern about a politicized Commission that proved to be politically aligned and unobjective. Eventually, they pointed out that the possible growth of Euroskeptic parties could result, because of Spitzenkandidaten procedure, in a Euroskeptic Commission and therefore detrimental to EU integration. Having wrecked the candidate who was an expression of the largest European party, it was necessary to find a new face who could be welcomed by the EP. Therefore, to secure her election, EPP’s Ursula Von der Leyen – the name in contention for the presidency – promised the Parliament a concession beyond the schemes – as well as the treaties – that would further consolidate its decision-making power: the right to initiate legislation. The concession had the desired effect: two months before the European elections, Ursula Von Der Leyen was elected by the European Parliament as the new President of the Commission by 383 votes to 327.

The Spitzenkandidaten has the potential to establish a direct link between the outcome of the European Parliament elections and the proposal of the president of the European Commission, which can insert a very necessary additional dose of democratic legitimacy into the European decision-making process, in the line with the rules and practices of parliamentary democracy. Indeed, this experiment could steer the European Union toward a parliamentary-style system of government, with a legislative body in charge of appointing the executive and the latter accountable to Parliament and the citizenry. This, however, will only be possible since it is combined this time with Union-wide constituency and transnational electoral lists. In the 2014 elections, in fact, most of the national political parties decided not to highlight the linkage with their anchor Spitzenkandidat because it would have been of little use for the outcome of the vote, continuing to campaign for purely domestic and national purposes and ends. However, in order to be a true parliamentary union, the EP should have the power to withdraw confidence from the Commission, as currently it is not responsible to the EP. Although the EP has the power to censure and dismiss the Commission, according to Article 17(8) TEU, practice suggests that it may do so for reasons anything but political, as instead the prerogative of parliamentarianism is. The relationship of political confidence between the EP and the Commission is obstructed by further institutional factors: the EP has a five-year fixed mandate and cannot be dissolved, thus impeding the recourse to the flexibility that is typical of a parliamentary system; as the EP cannot vote down the Commission politically, no institution can dissolve the EP either, contrasting with a crucial tenet of the parliamentary model, that is the possibility to dissolve the parliament when there is no longer a political majority supporting the government.

Yet the rebirth of the scuttled mechanism could receive obstacles. First, Macron, who was re-elected President of the French Republic in April, could block in the European Council the approval of the EP’s electoral reform, reintroducing his antipathy toward the Spitzenkandidaten procedure – which he had already expressed in 2019, conditioning its sinking. Inevitably, moreover, the Commission’s political identity is ill-matched with the principle of neutrality according to Article 17(3) TEU: the Spitzenkandidaten model envisions a Commission that is an expression of a parliamentary majority, and, faced with the trade-off between exercising responsibilities in “full independence”, impartial safeguarding of the treaties and preserving the interest of the Union as a whole, a politically oriented Commission is more prone than a technical apparatus to lean toward ordinary, partisan political forces. In this way, it has darkened the perception of its technical neutrality and impartiality that, according to the treaties, should characterize its activities, but in favor of a degree of democratic legitimacy that election “behind closed doors” by the members of the European Council would not have granted it.

Although the reforms are likely to be unconvincing and thus may be thwarted by the Council – long opposed to the idea of transnational lists and already demolishing the Spitzenkandidaten procedure – it is honorable that Rapporteur Ruiz Devesa’s attempt to solve the two historical problems of EP’s democratic deficiency: namely, participation and accountability. Thus, the reforms will surely have the merit of fostering a public debate on these key topics, to revamp the effort to one day have a truly democratic European Parliament.