The appointment of Ursula von der Leyen as the new President of the European Commission comes as a setback regarding all attempts to strengthen the European Parliament through the lead candidate, or Spitzenkandidaten, principle. In recent weeks, the proposal of the European Council has not only generated disenchantment and indignation, but has also raised many questions about the future of democracy in the EU. Yet on the evening of 26 May, there was much talk of change and a broad alliance of progressive political forces. The record election turnout was – quite rightly – seen as an indication of greater democratic legitimacy for the European Parliament and a sign that more and more people understand the need to deal with the most important issues at the European level, rather than nationally.
Despite hefty losses for the two largest political families – the European People’s Party (EPP) and the Progressive Alliance of Socialists and Democrats (S&D) – the Spitzenkandidaten of the EPP and the PES (Party of European Socialists), Manfred Weber and Frans Timmermans respectively, were confident. Both talked of the responsibility to bring a positive vision to life. After the results of the elections, however, it was also clear that the two largest parties were no longer in a position to divide up the top EU posts between them as, for the first time since 1979, they no longer enjoyed a majority in the Parliament.
The Liberals and the Greens came out of these elections stronger. Margrethe Vestager, hitherto Danish EU Commissioner for Competition and a member of the Liberals’ Spitzenteam, sent out a clear message on election night: new coalitions can be formed and the most important thing is to prepare for change. At the same time, the Greens’ leadership team, Ska Keller and Bas Eickhout, stressed their willingness to forge alliances to usher in change in the fields of climate protection, social justice and the rule of law.
The European Parliament was more or less in agreement as to how the top job at the Commission should be filled. A few days after the election, the chairs of the four largest groups, which together represent a clear pro-European majority, stated jointly that they would only support a Spitzenkandidat who had been put forward before the elections. This was a clear statement in favour of the procedure used five years ago to place Jean-Claude Juncker at the helm of the Commission. The principle of Spitzenkandidaten would not only give the European Commission increased democratic legitimacy, but would also give the Parliament greater influence over the decision-making process.
But as we know all too well, this was not how things turned out. Confidence and optimism are now thin on the ground. By proposing Ursula von der Leyen, the European Council decided against the lead candidate principle favoured by the European Parliament. For many voters, the nomination of von der Leyen was a massive disappointment. Particularly after such a high turnout rate, many people saw the European Council’s decision as a kick in the teeth for European democracy and a betrayal of the electorate.
Despite the justifiable disappointment, however, it must be borne in mind that it was a very difficult job the European Council had to do – and that the Parliament had its own share in. As the von der Leyen case illustrates perfectly, the appointment of the Commission President by the European Parliament is by no means a foregone conclusion.
The fateful absence of transnational lists
The appointment of the Commission President is based on article 17, paragraph 7 of the Treaty on European Union (TEU).  The Spitzenkandidaten procedure is not explicitly laid down in this. The European Council and Parliament are both involved in making the decision, with a right of proposal for the European Council – taking the election result into consideration. At the end of the process, the candidate is elected (or not) by the Parliament.
The Spitzenkandidaten process, therefore, is a specific interpretation of the treaty, which was not put into practice until the European elections in 2014 when, for the first time, most of the European parties entered their own champion in the race. The European Council’s nomination of Jean-Claude Juncker, the EPP lead candidate, is thus a historical one-off. In 2019, however, constellations and decisions made in the Parliament and European Council alike led to the collapse of this principle.
The Parliament itself laid a major foundation stone for this in February of last year, when MEPs voted against the introduction of transnational election lists. Certainly, almost all political groups continued to make the case for the Spitzenkandidaten process, but the vote against transnational lists actually played into the hands of the Heads of State or Government who were opposed to lead candidates. This was because without transnational lists, the lead candidates nominated by the European parties were returned only in their own countries, rather than EU-wide.
The EPP put another question mark by the selection of its own Spitzenkandidat. Compared with Jean-Claude Juncker – a long-serving former Prime Minister of Luxembourg and President of the Eurogroup – Manfred Weber lacked the profile of every Commission President up to that point. As Weber had no government experience on his CV, doubts were expressed immediately after his nomination by various Heads of State or Government. These doubts were voiced particularly loudly by the new Liberal driving force, the French President Emmanuel Macron, who had already said that he did not consider the Spitzenkandidaten principle mandatory and did not see Weber as future Commission President.
What clinched the matter was the fact that the two largest political groups no longer possessed an absolute majority and were no longer able to share out the top jobs among themselves. Instead, they are now reliant on the votes of the Liberals and, where there are dissenters in their own ranks, on those of the Greens – assuming they hope to draw upon the support of a dedicated pro-European majority. For weeks after the elections, no agreement could be reached on one joint candidate out of the pool of declared Spitzenkandidaten, because the three largest fractions – EPP, S&D and Liberals – all cherished hopes of leaping into the fray of the tough work at the European Council to seek a compromise. But the European Council would not have found a unanimous position of the European Parliament so easy to ignore.
One major reason behind the tough negotiations at the European Council was the unanimity between Germany and France that had initially been missing. Angela Merkel supported the lead candidate principle and initially made the case for Weber, against the French position. To demonstrate that his rejection of the German EPP candidate was not an anti-German move, Macron later spoke in favour of the German Defence Minister as a future Commission President. Macron and Merkel were thus able to make their peace over Ursula von der Leyen.
The French Head of State has long rated the German Defence Minister. She was one of very few CDU members who – unlike Angela Merkel or the new party chair, Annegret Kramp-Karrenbauer – gave an explicitly positive response to his speech at the Sorbonne on the future of the EU. Von der Leyen is also known to be a staunch proponent of a European Defence Union, which coincides with French efforts.
In spite of everything, the European Council cannot really be blamed for blocking the Spitzenkandidaten principle per se. Once it was clear that Manfred Weber would be unable to rally a majority behind him, there were some attempts to put Frans Timmermans forward, also with the backing of Angela Merkel and Emmanuel Macron. However, the move failed, partly because the EPP indicated that it would not be willing to confirm the S&D candidate and not, as was widely reported in the media, simply due to resistance from the Visegrád countries.
It is incorrect to state that efforts to seek compromise in the European Council were in themselves undemocratic. Unless and until the nation states merge into a European federal state, the European Council – comprised of the democratically elected Heads of State and Government of the member states of the EU – will continue to be one of the two central pillars of the democratically legitimate process of decision-making in the European Union, alongside the European Parliament, which is elected by direct universal suffrage of the EU citizens.
But what does come in for legitimate criticism is how the decision was reached by the European Council. It gave the impression that there was no programmatic thinking or visions for the future of the EU behind the rounds of personnel poker, but that under enormous time pressure, the 28 Heads of State or Government were capable only of agreeing on the lowest common denominator. Furthermore, the decision set the European Council on a clear collision course with the Parliament, putting the latter under massive pressure. The fact that right-wing nationalistic heads of government like Viktor Orbán came out so strongly in support of Ursula von der Leyen puts yet more strain on the democratic, pro-European alliance in the Parliament.
The result raises the question as to whether the time pressure to appoint a Commission President is really necessary, or whether a bit more time would lead to longer-lasting agreements in both the European Parliament and the European Council. It also remains to be seen how politically sustainable the overall staffing situation of the European Council is. The extent to which this proposal will allow major themes – climate crisis, rule of law, social justice and the asylum, refugee and migration policy of the EU – to be dealt with is questionable, to say the very least.
Given the global geopolitical situation, it would obviously be very useful if the EU institutions got back into work mode fairly quickly. The suggestion that the European Parliament was not allowed to vote against von der Leyen for reasons of state, however, is quite misplaced. The Parliament was entitled to respond to the European Council’s proposal and reject its candidate. 
On 16 July, von der Leyen was elected to the senior role of the Commission with 383 votes. She won nine votes more than she needed for an absolute majority, hence by no means all the votes of the pro-European camp. This fragile majority indicates that the new Commission President will have challenges to face in the coming months. If, in the future, she hopes to have a stable, democratic, pro-European majority behind her, she will need to win back the trust that was shattered in the breakdown of the Spitzenkandidaten procedure. To do this, she must respond to the demands of the pro-European fractions in her working programme, to bind the Commission’s right of legislation closely to the political majorities of the Parliament and thus leave behind the failed Spitzenkandidaten principle and reunite with the democratic mandate of the European elections. The speech made by von der Leyen before she was elected was a first step.
The European Parliament must now try to push forward the process of its own legal strengthening. It is now even more important to have transnational lists in place for the election of the next European Parliament, along with uniform voting rights in all EU member states. This is the only way that the Spitzenkandidaten principle stands any chance of truly living up to the promise of its name. If, at the next European elections, the voters know the people and programmes represented by the transnational lists, this would constitute a cornerstone for the Europeanisation of the national election campaigns. This would mean that the Spitzenkandidaten principle would not be dead and buried, but would be rebuilt on an even stronger foundation. Then the disappointment of recent weeks would not be in vain.
This article was firstly published by 'Blätter für deutsche und internationale Politik'.
 Art. 17 (7) TEU reads: "Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members."
 Art. 17 (7) TEU also makes provision for the event that the candidate for Commission President is rejected: "If he [this candidate] does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose a new candidate who shall be elected by the European Parliament following the same procedure."