Thursday, November 15, 2012

Resistance is Futile

Parts of the Socialist Group in the European Parliament, as well as their civil society supporters, seem to have taken a rather unusual approach to the question of whether the Conservative Maltese Tonio Borg should be permitted to serve as the new Commissioner for Health and Consumer Affairs. In general, their objection seems to be that he's, well, Maltese and Conservative, but beyond that it is not clear what to read into this move. So I'll quickly explore the implications of both possibilities:

One possibility is that, whether they know it or not, these Socialist MEPs (not all of them) are trying to take the next step towards the democratisation of the European Commission. It has been argued, most famously by Simon Hix and since then by pretty much everyone else, that the election of  a new European Parliament should have consequences for the make-up of the Commission, and particularly for the election of its President. The idea is that an ALDE win should be translated into a greater ALDE representation in the Commission, even if most pundits wouldn't go so far as to propose true coalition politics where at least one of the big three (EPP, S&D and ALDE) would be sidelined. This is why all three major political groups have promised that they will propose a candidate for Commission President prior to the next EP election. (Although I'm not sure how they expect to bind the Council to their choice, given that it is the Council who ultimately nominate the Commission President.) While the EPP and the S&D groups have not yet discussed who they will nominate for the 2014 election, ALDE has most recently declined to nominate their logical choice - Guy Verhofstadt - at this point, although they might nominate him later.

More generally, this approach suggests that European Commissioners should be submitted to an ideological as well as a technocratic examination. Not only do they have to have the necessary skills for the job, preferably combined with an absence of skeletons in closets, but they would also have to have values that correspond to those supported in the Parliament. Taking this idea to the next step, it would no longer be self-evident that S&D would support an EPP candidate without something in the way of a quid pro quo. In the normal Commission appointments process, the quid pro quo is the support of EPP for S&D candidates, but what if there is only one candidate under consideration? Why would S&D and ALDE support Tonio Borg instead of pushing for a more centrist candidate? Why not reduce the EP hearings for a single new Commissioner to the EU equivalent of an American Supreme Court Justice nomination process? In the US, in the last few decades, no one who is not able to pretend to be a moderate has any chance of receiving the consent of the Senate. The only question is whether the Justice is a moderate nominated by a Democratic President or a moderate nominated by a Republican. The party affiliation of the White House still matters, but not as much as it used to.

Now is this approach legitimate? This is a question where, unfortunately, I have to part ways with my one-time God (i.e. Supreme Leader) Jean-Claude Piris. Both in his writing and in his lectures he has - by his standards - sharply condemned the way the European Parliament has, in recent years, leveraged its existing powers in order to blackmail the Council and the Commission into giving it more power still. (The best example I could find on short notice is this one from May, where the Parliament blocked budget approval for several EU agencies in order to force the Council to give it information it may or may not have been entitled to.) Perhaps it is because he is from France, a place where democratisation has only ever happened in the wake of violent revolution, but Dutchies like me, or Brits, or commentators from many other countries will recognise this dynamic from the history of their own parliaments. This is how parliaments have gained power since time immemorial: by leveraging the power of the purse. (Even the French tried to do it in 1789, that is how the Estates General came to be summoned in the first place, but we all know how that ended.) In this way, I would not consider it illegitimate for the Parliament to try to force more democracy on the choice of Commissioners. But then I'd rather they actually do it on purpose, and with malice & aforethought. That does not seem to be the case here. But if Swoboda, the ring-leader of this rebellion, were to get together with Schultz, Verhofstadt and Cohn-Bendit and decide together that they will reject Borg for ideological reasons, I would be all for it.

But it is not obvious that this is in fact what Swoboda and the others are doing. Judging, for example, from the headline of this opinion article on Public Service Europe, Mr. Borg's critics seem to consider their objections to concern his "suitability" for the Health and Consumer Affairs portfolio in particular. They are not worried about the ideological balance of power in the College of Commissioners, and they are not even necessarily worried about ideology in general, but rather they seem to argue that his ideology will get in the way of his job performance in concrete ways. The author of this opinion article,Monika Kosiñska from the the European Public Health Alliance, for example, lists the candidate's views on abortion, homosexuality and immigration as being particularly problematic. This is particularly curious because I'm not entirely sure how the Health and Consumer Affairs portfolio touches on these fields.

In her article, Ms. Kosiñska lists a lot of soft power things that are happening at the EU level, none of which actually materially affect what happens in the Member States regarding health care policy, and quite a few of which the EU shouldn't be involved in in the first place. Then she moves on to things that are happening that might actually matter but that have no clear connection to Mr. Borg's views on abortion or homosexuality or immigration. Instead, at that point in her article she seems to have moved the goal posts towards a general rejection of conservatism, which is great but not very helpful unless the Parliament wants to reject the idea that this seat belongs to a Maltese EPP member (see above).

Likewise, Mr. Swoboda and Mr. Cashman, the other key S&D dissident, emphasise the candidate's stance on "sexual and reproductive health rights", which again is an entirely unimportant part of the Health and Consumer Affairs portfolio, and one that should perhaps be a smaller part still. No power to make binding legislation whatsoever. Moreover, neither they nor Ms. Kosiñska offer any explanation of how Mr. Borg's views on these matters are any different than those of his predecessor, Mr. Dalli. It is difficult to see how they can object to Borg without showing concrete harm done by Mr. Dalli.

This difficulty in distinguishing between technocratic concerns and ideological concerns has cropped up in recent years in a variety of contexts all over Europe. It has resulted in the new Dutch government proposing a law that would phase out "Weigerambtenaren", who are municipal officials charged with officiating wedding ceremonies who object on religious grounds to same sex marriages and refuse to perform them. As the Council of State emphasised again in its advice on the bill recently, there is no reason not to distinguish between cases where a same sex couple would have difficulty finding an official willing to perform their wedding and a situation where there are plenty of non-objecting officials available. Phasing out Weigerambtenaren across the country unreasonably interferes with these individuals' freedom of religion and conscience. More generally, when considering the appointment of an official to a non-political post, a careful balance has to be struck between making sure that the person appointed will actually do the job in the manner required by law and making sure that unpopular religions or opinions are not unreasonably discriminated against. In the words of art. 3 of the Dutch Constitution: "All Dutch nationals shall be equally eligible for appointment to public service." And that is how it should be.

This, of course, begs the question of how technocratic or political the job of a European Commissioner really is. But that goes back to the first approach I discussed above. If the idea is that Commissioners are politicians, then say so. Then a game of political bargaining can be played over this appointment to the Commission, and democracy can prevail. But please don't pretend your ideological objections go to job performance. Such (self-)deceit does a disfavour to the European electorate and the European Parliament alike.

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