Written by Silvia Kotanidis.
The hearings of the Commissioners-designate before the European Parliament’s committees are scheduled to take place between 4 and 12 November 2024. Depending on the results of the hearings, the plenary vote on the entire Commission is likely to take place during the November plenary session (25-28 November) or the December session in Strasbourg. Before such a vote, President-elect Ursula von der Leyen will present the full college and its programme. Considering that the incumbent Commission was appointed until 31 October 2024, it is already certain that the new Commission will not be able to enter into office by the time the mandate of the current one ends. The outgoing Commission will thus remain in office until the formal appointment of its replacement, although questions arise as to its powers in that period.
Background
Following the election by Parliament of Ursula von der Leyen as President-elect of the Commission, her next step was to announce, after a decision taken in common accord with the Council under Article 17(7) TEU, the names and portfolios of the Commissioners-designate. They have to undergo public hearings before the committees responsible for their portfolios, prior to Parliament’s vote of consent (a majority of the votes cast) on the President-elect and the Commissioners-designate (including the Vice-President appointed by the Council as High Representative of the Union for Foreign Affairs and Security Policy) as a body. Ultimately, following that consent, the Commission is appointed by the European Council, acting by qualified majority (Article 17(7) TEU).
The confirmation hearings to which Commissioners-designate are subject are not required by the Treaties, but have long existed in a practice which has been codified in Parliament’s Rules of Procedure (Rule 129 and Annex VII). For the tenth legislative term, the Conference of Presidents decided that the hearings would be held between 4 and 12 November 2024, which means that the vote on the Commission as a body could take place during Parliament’s plenary session of 25-29 November.
This scrutiny of the candidates implies that the steps and timetable may need to be adjusted. Before the confirmation hearings start, the Committee on Legal Affairs scrutinised the candidates’ declarations of interests (Article 3 of Annex VII). The confirmation hearings are organised by the Conference of Presidents and aim to establish whether the candidate is suitable to be a member of the Commission and is fit for the assigned portfolio. The confirmation hearings, which are regulated in detail by Article 4 and 5 of Annex VII, conclude with an evaluation of the Commissioner-designate by the Chair and the coordinators of the committee(s) concerned, leading to the approval or rejection of the candidate.
Once the hearing process is completed, the President-elect and the Commissioners-designate appear before Parliament to present the Commission programme and for a vote on the entire College of Commissioners. The new Commission requires approval by Parliament by a majority of the votes cast, by roll-call vote (Article 6 of Annex VII). A decision of the European Council appoints the new Commission and the mandate of the new Commission starts from the date indicated in that decision.
The notion of a ‘caretaker’ Commission
Considering that the mandate of the current Commission ends on 31 October 2024, according to the European Council decision of 27 November 2019, it is now certain that, with the schedule of confirmation hearings starting only on 4 November 2024, the new Commission will not be able to take up its functions by the time the current one ends its mandate. This gives rise to the following questions: What are the consequences if the Commission is delayed in taking office? What limits are there, if any, on the exercise of the Commission President’s functions, and those of the College, and under what rules?
The Treaties do not explicitly take into account a possible delay in the Commission taking office. Neither Article 17 TEU, setting out the term of office and the details of the procedure leading to the Commission’s election, nor any other provisions in the Treaties provide for this situation, although similar events have occurred more than once in the past (see below).
Article 246(6) TFEU, however, deals with a comparable situation, according to which, when all members of the Commission submit their resignation collectively, they are to remain in office and continue to deal with current business until they are replaced, for the remainder of their term of office. This provision embodies the principle, quite widespread in the life of both EU and national institutions, of institutional continuity. The Treaties do not define the powers of the ‘prolonged’ Commission, but some experts argue that the Commission must act as a ‘caretaker administration’ not only when it resigns collectively as a College but also when, as in this case, the new Commission does not take office immediately after the previous College’s term of office expires.
In this context, ‘current business’ would include all daily, routine business as well as all acts that cannot be postponed to the next College. Against this background, the adoption of new legislative proposals would seem to be excluded, except for emergency reasons. Some limited case law has helped to frame the scope of the Commission’s room for manoeuvre when the notion of ‘current business’ comes into play.
In 2003, the question arose in the case of Westdeutsche Landesbank Girozentrale v Commission (Joined Cases T-228/99 and T-233/99) as to whether a State aid decision issued by a resigning Commission was lawful. On that occasion, the Court affirmed that the adoption of a State aid decision by the Commission after its collective resignation did fall within the scope of a caretaker administration, insofar as it did not constitute a new political initiative and the supervisory function of the Commission constituted part of the fulfilment ofan ‘essential task of the Community’. In this sense, the Court considered that the Commission had not exceeded the powers entrusted to a ‘caretaker administrator’ but had ‘confined itself to applying to that case a legal scheme of long-established rules and principles’.
In another case, from 2012, European Parliament v Council (C‑130/10), the Court argued that the same reasoning could be applicable ‘a fortiori in circumstances in which a pre-existing proposal remained pending’. In fact, in that specific case, the Barroso I Commission formally amended one of its own proposals – which was then adopted as Regulation 1286/2009 – in respect of its legal basis, to take account of the entry into force of the Lisbon Treaty. This decision was taken at a time when the Barroso I Commission’s term of office had ended, but the new Commission had not yet formally entered into office. The Court also ruled in this case that such a ‘step was essential if the Union legislature was to continue with the pending procedure after the Treaty of Lisbon entered into force’. However, the Court did not provide additional clarifications on what should be considered as ‘essential’.
A look back
The current situation is not an extraordinary one. The first von der Leyen Commission started its mandate on 1 December 2019, according to the specific European Council decision, while the Juncker Commission’s mandate ended on 31 October 2019, one month before the start of the next mandate.
The Prodi Commission was appointed for a term running until 22 January 2005, although, in accordance with Article 45 of the Act concerning the 2004 enlargement, it ended earlier (on 31 October 2004). The Barroso I Commission should, therefore, have started on 1 November 2004. However, due to uncertainties as to whether Parliament would support three of the Commissioners-designate initially put forward by Barroso, Parliament’s vote was postponed from 27 October to 18 November 2004. After its election by Parliament, the Barroso I Commission (with two of those three candidates replaced, and the third taking a different portfolio to that originally proposed) took office on 22 November 2004, three weeks after the statutory date.
Likewise, the Barroso II Commission took office a few months later than the statutory date, starting work on 10 February 2010 instead of 1 November 2009, due to the delayed ratification of the Lisbon Treaty, which was completed only in November 2009; the election of the Barroso II Commission fell under the rules of the new Treaty. On that occasion, the Commission spokesperson, Johannes Laitenberger, declared that the Commission’s mandate was extended ‘based on the principle of institutional continuity’ so that the Commission could work in a ‘caretaker capacity’.
This is an update of an ‘At a glance’ note written in 2019, by Micaela del Monte and Silvia Kotanidis.
Read this ‘At a glance’ note on ‘The Commission as ‘caretaker administration’‘ in the Think Tank pages of the European Parliament.