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The latest problems in filling the Obama cabinet illustrate the peculiar difficulty that US governments have during the transition period following the election of a new president. In 2009, however, the same volatile transition blend of "fin de regime" and uncertainty about the future will—possibly with a vengeance—grip the governmental machinery in the European capitol of Brussels, as it prepares for the 5-year change of personnel in the European Commission.
As is not uncommon in European affairs, the problems result from a combination of the breathtaking complexity of Europe's institutional setup, the unintended consequences of late-night political deals, and the fickle mood of Irish voters.
The principal sticking point in Brussels, however, is not, as with US confirmation hearings, who should get a particular job as European commissioner, but is much more fundamental, namely: How many Commissioners there should be in Brussels in the first place?
The currently valid Nice Treaty1 (which the Lisbon Treaty is scheduled to replace) stipulates that when the EU reaches 27 members states, as it did with the entry of Romania and Bulgaria in 2007, the EU council must reduce the number of commissioners to "a number below 27" at the first subsequent change-over of the commission, i.e., now in 2009. This will mean the end of the one country, one commissioner rule.2 However, as it was never expected to be in force by 2009, the Nice Treaty does not actually specify how many commissioners must be cut, only that the total number must be cut to below 27 in 2009.
The replacement Lisbon Treaty, on the other hand, specifies that by 2014 (i.e., at the time of the next 5-year commission taking office), a rotational system will be implemented, under which each member state has no commissioner for five years of every 15-year cycle. It is therefore ironic and indeed a testimony to the level of ignorance usually permeating referenda debates about European institutional affairs that the prospect of losing the permanent Irish commissioner included in the Lisbon Treaty featured prominently in the Irish campaign against the treaty, despite the fact that the Lisbon Treaty actually postpones by five years the prospective loss of an Irish commissioner. Evidently, Irish voters who voted against the Lisbon Treaty partly due to their opposition to potentially losing an Irish representative at the commission in Brussels essentially shot themselves in the foot.
Well, maybe not. Following the Irish rejection of the Lisbon Treaty, European leaders agreed to keep the one country, one commissioner rule in place, to entice the Irish to vote "yes" at a new referendum scheduled for September or October 2009. If they embrace the Lisbon Treaty at this second referendum, Irish voters (and everyone else in Europe) will therefore be able to keep their representative in Brussels.
However, even the scenario of an Irish "yes" vote later this year, followed by the entry into force of the (now amended) Lisbon Treaty, raises huge transition problems for the European Commission. Which Treaty governs the change-over scheduled to occur on October 31, 2009?
The first, legally-minded option is simply to accept that the Treaty of Lisbon has not yet been ratified by all member states and thus remains invalid, and therefore to follow the currently valid European law as laid down in the Treaty of Nice. However, this is an almost Kafkaesque option for several reasons: It will require that the EU council expeditiously decide on the thorny question of how to cut the size of the European Commission below 27 members before October 31. And crucially, the EU council would have to decide on cuts, knowing that these cuts would be voided when the Lisbon Treaty, with its one country, one commissioner rule, comes into force. Sowing confusion still further, deliberations over how to scale back the European Commission would have to take place during the second Irish referendum campaign, almost certainly inflaming the opposition.
The second, politically forward-looking option is to constitute the next European Commission according to the agreement to maintain the one country, one commissioner rule, as laid down in the amended Lisbon Treaty. However, in doing so, Europe's leaders would, in the most blatant fashion, be taking the Irish voters for granted by simply going ahead with a treaty that they had not yet voted on a second time. It is difficult to conceive of a worse argument to present Irish voters in a second referendum. Were the Irish to choose this option for the commission change-over, EU leaders would run the risk of planning to implement an invalid Lisbon Treaty rejected by Irish voters a second time.
The stage seems set for a classic "Brussels fudge." Rather than explicitly choose between unappealing Treaty frameworks at an inopportune time, EU leaders are likely to simply postpone the end-of-October 2009 change-over and ask the current EU Commission to stay on. This status-quo option, however, raises its own set of problems. First, the European Union would be seen as sticking its head in the sand by assuming that the Irish will "do the right thing" in September/October 2009, so that the Lisbon Treaty can come into force quickly, probably on January 1, 2010. No one even wants to raise the option of what happens in the event of another Irish "no" vote.
Then there is the issue of running the European Commission's day-to-day business, including trade policy, development aid, and climate change and energy policy. Several commissioners have already announced that they wish to retire from public life at the end of their current term and would presumably be unenthusiastic about staying on. A further complication is that several current commissioners plan to retire from the Commission shortly in order to stand in the June 2009 EU parliamentary elections, meaning that temporary, de facto caretaker replacements would have to fill in until the next, full European Commission takes office. A prolonged executive vacuum in key policy areas at a time of acute, international economic crisis therefore seems likely in Brussels until at least the end of the year.
Henry Kissinger once said that if asked to telephone a newly unified European government, he wouldn't know whom to call. Now there might not be anyone to pick up the phone in Europe through much of 2009.
Notes
1. The Nice Treaty itself is a testament to "European politics as the art of the possible." However, it is a temporary stop-gap document designed to enable EU expansion in 2004, yet filled with legal compromises unsustainable in the long term. It was agreed upon by European leaders in 2001 under the expectation that a new and consolidated European treaty would replace it in a few years. This anticipated treaty-writing process led to the launching of the ultimately failed European Constitutional Treaty and has now, with much delay, produced the Lisbon Treaty.
2. The earlier system, under which the five, large EU members (Germany, France, Italy, the United Kingdom, and Spain) had two commissioners each, was ended in the name of efficiency to make room for commissioners from the 10 new member states to join the current European Commission on a one country, one commissioner basis in 2004–05.
