November 2, 2009
Regarding ‘The new European Commisssion‘:
The long-standing plan to reduce the size of the European Commission has just succeeded beyond all expectations, but not quite as intended.
Legally there is now only one commissioner, José Manuel Barroso, who was recently re-appointed as president according the procedure laid down in the treaties.
The five-year terms of the other 26 persons who were previously commissioners expired at midnight on Saturday 31 October, and legally those posts must now be vacant.
The claim that their terms have been extended for a few months has no legal basis, as the treaties do not provide for the discretionary prolongation of the term of any commissioner under any circumstances, whether in a full or a so-called ‘caretaker’ capacity.
Obviously there could be potentially serious consequences if those 26 individuals continue to draw salaries to which they are not entitled, while unlawfully purporting to carry out the functions of a European commissioner without possessing that status.
Most importantly, all their actions and decisions would be open to challenge in the courts and could be declared null and void.
Dr D R Cooper
The relevant articles in the treaties are those in the Treaty establishing the European Community, starting on pdf page 139 here:
There is no article which would authorise anyone within the EU to arbitrarily extend the term of a commissioner.
1. The Members of the Commission shall be appointed, in accordance with the procedure referred to in paragraph 2, for a period of five years, subject, if need be, to Article 201.
Their term of office shall be renewable.
2. The Council, meeting in the composition of Heads of State or Government and acting by a qualified majority, shall nominate the person it intends to appoint as President of the Commission; the nomination shall be approved by the European Parliament.
The Council, acting by a qualified majority and by common accord with the nominee for President, shall adopt the list of the other persons whom it intends to appoint as Members of the Commission, drawn up in accordance with the proposals made by each Member State.
The President and the other Members of the Commission thus nominated shall be subject as a body to a vote of approval by the European Parliament. After approval by the European Parliament, the President and the other Members of the Commission shall be appointed by the Council, acting by a qualified majority.
Apart from normal replacement, or death, the duties of a Member of the Commission shall end when he resigns or is compulsorily retired.
A vacancy caused by resignation, compulsory retirement or death shall be filled for the remainder of the Member’s term of office by a new Member appointed by the Council, acting by a qualified majority. The Council may, acting unanimously, decide that such a vacancy need not be filled.
In the event of resignation, compulsory retirement or death, the President shall be replaced for the remainder of his term of office. The procedure laid down in Article 214(2) shall be applicable for the replacement of the President.
Save in the case of compulsory retirement under Article 216, Members of the Commission shall remain in office until they have been replaced or until the Council has decided that the vacancy need not be filled, as provided for in the second paragraph of this Article.
If any Member of the Commission no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct, the Court of Justice may, on application by the Council or the Commission, compulsorily retire him.
The Article 201 referred to above is on pdf page 135:
If a motion of censure on the activities of the Commission is tabled before it, the European Parliament shall not vote thereon until at least three days after the motion has been tabled and only by open vote.
If the motion of censure is carried by a two-thirds majority of the votes cast, representing a majority of the Members of the European Parliament, the Members of the Commission shall resign as a body. They shall continue to deal with current business until they are replaced in accordance with Article 214. In this case, the term of office of the Members of the Commission appointed to replace them shall expire on the date on which the term of office of the Members of the Commission obliged to resign as a body would have expired.Author : Letters to the EurActiv editor