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The controversial election of Donald Tusk

When electing Donald Tusk as its president, the European Council recognized that a member state cannot block a candidate who is a political opponent of the incumbent government of his or her country. The explanation given by Donald Tusk, that he is a guardian of EU values, is unconvincing. In May 2015, when the Civic Platform was still in power, Tusk supported Bronisław Komorowski in Poland’s presidential elections. Hence, the question arises: what values was Tusk defending then? Ryszard Legutko, MEP, filed a complaint to the European Ombudsman. Regrettably, it has never been reviewed, which shows that impinging on the principle of impartiality and political neutrality by the President of the European Council is not a new issue.

Let us recall that the European Council is an intergovernmental body composed of heads of states or governments. If a government changes as a result of elections, the representative of that country changes as well. In the European Commission, a different rule applies whereby a commissioner appointed by a member state is allowed to complete his or her term in office. Member states attempt to back their candidates for chairmanship as it builds prestige and increases opportunities to pursue national interests.

The principle of voting with a qualified majority, which the Treaty of Lisbon introduced, was actually intended to prevent the election of the President of the European Council being blocked by a third country, not to prevent the election of a candidate who is in opposition to his or her own government. It turns out, however, that the European Union is more federalist than many are willing to admit. It appears that a decision by the European People’s Party, a supranational body, wields more clout than that of a member state. Apparently, an essential systemic change has been introduced through the back door.

Article 4 of the EU Treaty stipulates that “… the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties”.

The decision made on March 10, 2017 undermines the principle of loyal cooperation, destroys trust among partners, and may have a negative impact on the functioning and perception of the European Union in the future.

Renewable mandate

To support the procedure of appointing Donald Tusk, the following article of the Treaty is often invoked: “The European Council shall elect its President, by a qualified majority, for a term of two and a half years, renewable once”. This means that the person holding the office may run for a second term only and not for a third. By the same token, the mandate of the President of the United States is renewable once, which means that the election of Barack Obama for a third term would not be permitted.

The notion of mandate renewal is also well known in European law. The three-year term in office of the President of the European Court of Justice is renewable. Jerzy Markarczyk, a Polish judge, ran for this seat in 2006 in spite of the announcement of the incumbent president Vasilios Skuris to run for re-election. Furthermore, the mandate of the President of the European Parliament is also renewable, and when Martin Schulz ran for the seat he had to pit himself against three other candidates. A vote by acclamation is possible only if the number of candidates does not exceed the number of seats.

In the Preamble of the Treaty of Lisbon, the member states expressed a desire to strengthen the democratic nature of the institutions of the EU. So far, there has always been one candidate in the elections of the President of the European Council. This time, Poland put forward Jacek Saryusz-Wolski, both in a diplomatic note addressed to the presidency and in a letter from the prime minister to the heads of states and governments. Saryusz-Wolski confirmed his candidacy and was promptly expelled from his party and forced to resign the vice-chairmanship and membership of the EPP group in the European Parliament.
Could his candidacy possibly have no legal grounds? The fact that Donald Tusk won by 27 votes to 1 suggests that such was the distribution of votes between the candidates. The meeting participants said, however, that what happened was the chairman only asked if anybody objected to the extension of Donald Tusk’s term. Now it follows that the candidacy proposed by Poland had not been put to a vote at all. 

Infringing on democratic principles

There are opinions that the applied method of election is the result of a lack of criteria and procedures for appointing high officials, which need to be instituted in the future. In fact, however, the treaties are quite precise in that respect: they clearly specify the meaning of the terms ‘elections’, ‘qualified majority’, and ‘renewable mandate’. The definition of elections itself implies that more candidates are allowed to participate, as is clearly the case in the elections for the President of the ECJ and for the President of the European Parliament. The European Council may not deny a person who has been legally proposed by an eligible body the right to run for that office. The right to be elected is the essence of democracy and no other criteria or rules should attempt to change that.

Hence, the question arises: why was a shortcut chosen this time? Democracy requires that the voting for a candidate be clear and unambiguous rather than implied. Another option at the meeting was to postpone the vote until the rules of procedure were established. There was no need to rush, as the term in office of the president ends no earlier than on May 31. Was there a concern that a voting based on democratic principles could have produced a different result?

The process of electing the President of the European Council may imply that no country really wanted to take upon itself the responsibility for putting forward Donald Tusk’s candidacy against the position of Poland. They realised that it would violate the established rules of the game. On the other hand, countries do not necessarily wish to object to the candidacy of the incumbent president, either, with whom they will have to cooperate in the future, especially as the German chancellor had already announced the result several hours ahead of the election. But in this case, no other hand was raised except that of Beata Szydlo. What we know now is only that there was one vote against Donald Tusk and none against Jacek Saryusz-Wolski, as his candidacy had never been put to the vote. Hence, was the election of the President of the European Council democratic after all?

Serious consequences

An election is deemed democratic only if it is the number of votes cast in favour of the individual candidates that decides its outcome. If a legitimately proposed candidate is not put to the vote, the election cannot be deemed democratic. In the presidential elections in Russia, it will not only matter how many votes Vladimir Putin eventually receives but also if Alexei Navalny is allowed to run as a candidate. By violating democratic principles, the European Union has forfeited the right to admonish others. The European Council members have elected Donald Tusk against the position of the Polish government and in violation of the principles of democracy.

Democracy must be practised lest it deforms. Therefore, the use of its legitimate rights by a member state of the European Union should not raise eyebrows, irritate, nor spark enmity. And when fundamental principles are violated, we should not pretend that it is business as usual. Only by condemning bad practices can the European Union save itself from being transformed into a body that violates its own rules and fails to respect the will of its members. The founding fathers who signed the Treaties of Rome sixty years ago would not forgive us this.

Author: Jacek Czaputowicz

Source: “Do Rzeczy”

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The author is a professor of Political Science and Head of the Methodology of European Research Unit at the Faculty of Political Science & International Studies of the University of Warsaw.

27.03.2017