The contest to land a prized portfolio in the Commission

Lisbon or Nice?

Doubts about the Lisbon treaty – including when it could come into force – may lead EU governments to approve the second Barroso Commission under the Nice treaty rules.

There is cautious optimism about a ‘Yes' in the Irish referendum on 2 October, and Poland's President Lech Kaczyński has promised to sign the treaty if the result is positive. Germany will also rapidly complete ratification as soon as its parliament approves a new law on implementation of the Lisbon treaty. But concern is growing that Czech President Václav Klaus will delay signing the treaty for weeks or months, despite a view that the president cannot go against the will of a parliament that has ratified the treaty.

Some EU leaders, including France's President Nicolas Sarkozy, have already warned of “consequences” if the Czech Republic delays Lisbon, but Klaus may not  yield to international pressure. In addition, 17 Czech senators are about to file a new request for a constitutional court ruling on the treaty's compatibility with the Czech constitution, and although the court has previously ruled on a limited number of compatibility issues, this new challenge could take months to resolve.

If the delay looks set to continue, and the decision is made to install the new Commission under the Nice treaty, its membership would have to be cut, in line with the Nice requirement for the number of commissioners to be fewer than the number of member states. The Czech Republic is already being mentioned as a candidate to lose a commissioner, though it might provoke a Czech backlash that could generate still more delay in ratifying Lisbon.

Another option being examined is for one member state to surrender its commissioner in return for providing the high representative for foreign affairs – an option Sweden is understood to favour, not least because Carl Bildt, Sweden's foreign minister, covets that post. Finland is said to oppose this approach, as it is keen for Olli Rehn, the European commissioner for enlargement, to be the next high representative. Such a deal would assume a new decision, after the ratification of Lisbon, to restore the  Commission to 27 members, by making the high representative a vice-president of the Commission, as Lisbon envisages.   

The European Parliament is already planning its hearings for candidate commissioners in November. Under the Nice option, MEPs would vote once for a Nice-sized Commission, and then again for a Lisbon-sized Commission when the new treaty came into force.

Appointing the Barroso II Commission under Nice rules would shorten the period that the current Commission would have to continue in office in a caretaker capacity. Its mandate expires on 31 October. As has happened before, a Commission can stay in office, but with restricted decision-making power lest its authority were subject to legal challenge.

Barroso has highlighted the risks of a Commission lacking full authority in international meetings such as the climate change summit in Copenhagen in December.

“I fear the Commission will not be there with its full competence politically and even legally,” he said earlier this month.