The European Parliament adopted modifications (Parliament 2024 report) to its Rules of Procedure on the 10th of April, 2024. In previous posts, a more general analysis was made regarding its content on Constitutional Discourse (here, here, and here).  This post will focus on an interesting novum in the Rules of Procedure introduced by the referenced report, one that could have influenced the selection process of the members of the College of Commissioners of the European Commission. So far, however, this does not seem to be the case.

After the European Parliament elections, the procedure of selecting the new College of Commissioners of the European Commission begins. The procedure is regulated by Article 17 of the Treaty on the European Union. First, the European Council nominates a candidate for the office of the president of the European Commission, who then is confirmed by the European Parliament. Next, the commissioner-designates are proposed by the Member States to the president-elect (the candidate for the office of the president of the European Commission, who has already been confirmed by the European Parliament) and the Council adopts the decision listing the names of the proposed commissioner-designates, then (after the assessment of their declarations of financial interests) the European Parliament committees hold hearing with the commissioner-designates with portfolios connected to their responsibilities. After this step is done, the last step is the confirmation of the new college as a whole by the European Parliament.

The previous version of the Rules of Procedure (Rule 125 (1)) foresaw that the President of the European Parliament invites the President-elect to inform them about the allocation of responsibilities of each commissioner-designate. This part of the procedure is more or less the same in the new version, with some changes irrelevant to this topic. However, there is a significant change to the procedure in the European Parliament. The Parliament 2024 report introduced a new step, before any other one in the European Parliament. Amendment 97 introduced the obligation of the president of the European Parliament to invite the president-elect to inform the Conference of Presidents (CoP, the main political decision-making body of the house, a meeting of the president and the leaders of political groups) regarding the planned structure of the new Commission, the proposed titles of the portfolios and the allocation of responsibilities to the individual commissioners. The Treaties do not include any reference to such pre-screening procedures by the European Parliament.

This new paragraph in the Rules of Procedure is a game-changer in different respects. If the Conference of Presidents is informed first, even before the public regarding the planned structure of the commission and the names of the commissioner-designates, the European Parliament is the first one to receive valuable information regarding the next Commission and can exert pressure on the president-elect to change portfolios or request new names, for example under the goal of achieving more gender-balance or to assign portfolios to better-suited candidates. The European Parliament will conduct the hearings, adopt acceptance letters of the candidates, and give its blessing on the new Commission before they can step into office, making it quite influential in the process. Moreover, discussions within the CoP are often leaked to the public, as its members have different political goals, and they often use the information to gain leverage.

An interesting legal question regarding this modification is can the European Parliament do this? Can it adopt an intern norm, a modification of the Rules of Procedure with a legal effect principally on the members of the European Parliament and the officials, administration, and others working at the house? Is it binding towards addressees outside of Parliament? Does the president-elect have an obligation to appear before the CoP and to declare the individual names and portfolios and their allocation first to the European Parliament in a closed meeting, even before informing the public? The question arises because, as usual, the Rules of Procedure of any parliament is an intern norm, only establishing legal obligations to its own members, bodies, and employees.

This September was the first time this legal norm was put to the test and von der Leyen seemed to interpret the intern norm of the House as non-binding, but she did appear out of good faith and loyal cooperation between the two institutions. Leyen accepted the invitation of the president of the European Parliament, but she did not disclose any of the names of the portfolios to the heads of political groups and the president, she only stated general remarks answering their questions. Shortly after the meeting, she released all the names and the allocations of responsibility. This conduct certainly frustrated some of the MEPs and they might see it as a disrespect from the European Commission towards the European Parliament, which might have a direct effect on the strictness of the hearings of commissioner-designates as well. However, other than the political ones, there seems to be no legal consequence of the refusal of Leyen to disclose the planned structure of the next Commission to the political leader MEPs during the meeting.

This means that a pattern began to emerge, with more future instances to establish a practice regarding the implementation of the new norm regarding the pre-scrutiny step of the structure of the next European Commission. It seems that the interpretation that the new norm is only an internal norm obliging the president of the Parliament and the members of the CoP, but not outside individuals or organizations seems to be precise. This means that the president-elect has no obligation to inform the CoP in this procedure but can show good faith by showing up to the meeting and answering some questions.

In my opinion, the establishment of the pre-scrutiny procedure was not in line with the procedure written in the Treaties. The Member States agreed on the procedure written in the Treaties for a reason. The European Parliament—as many other institutions would—looks often for possibilities to extend its own competence. This was probably the goal of the Parliament 2024 report as well. However, such aspirations could alter the dynamics between the institutions, rendering the European Commission to be even more lenient towards the European Parliament, and thus distorting the interinstitutional balance between the European institutions, which is essentially safeguarding the separation of powers on an EU level. Therefore, this practice of the president-elect refusing to disclose the names of the commissioner-designates and their planned portfolios is legally sound and is protecting the broader interest of the European Union and European citizens. The interest of the European public is to receive the names and allocations openly, to be informed first and not after the influence of politicians behind closed doors.

While the European Parliament’s modifications of its Rules of Procedure initially seemed to undermine public trust, transparency triumphed in practice.

Árpád Lapu is an adviser at the Minister’s Cabinet of the Ministry of European Affairs of Hungary and an assistant research fellow at the Károli Gáspár University of the Reformed Church in Hungary. He was a policy adviser on constitutional issues at the European Parliament between 2019-2024. Between 2017 and 2019, he worked as an adviser at the Cabinet of the Minister of Justice of Hungary, conducting comparative constitutional analyses. He has earned his JD at the Pázmány Péter Catholic University in Hungary, has a BA in international relations from the University of Szeged, and an MA in European and international administration from Andrássy Gyula German Speaking University in Budapest. He has completed an LLM in international law at the Catholic University of Louvain (UCLouvain). His field of research is neutrality and non-participation in armed conflicts in international law and constitutional norms regarding permanent neutrality. He has written publications regarding the future of the EU ETS system of the European Union, institutional reform proposals and policies of the EU, and research in the field of social sciences.