Learning from Spain: What the current Spanish government formation crisis has to do with the EU lead candidate process

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By Manuel Müller

Even a hereditary monarch can teach the European Council a thing or two about parliamentary democracy.

The Spanish government currently holds the presidency of the EU Council, but in recent weeks it has been in the headlines across Europe for a very different reason: Since the national parliamentary elections on 23 July, neither the incumbent governing coalition between the socialist PSOE (PES) and the left-green alliance Sumar (EGP, EL) nor the right-wing conservative opposition of PP (EPP) and Vox (ECR) have a majority in the Spanish parliament. Given the strong polarisation between the two largest parties, PP and PSOE, a grand coalition has virtually no chance either. Instead, both sides are vying for the support of small regionalist parties – with the Catalan separatist party Junts tipping the scales.

On 22 August, the Spanish head of state, King Felipe VI, entrusted the leader of the PP, Alberto Feijóo, with the task of forming a government. Feijóo will now face a vote in the Spanish parliament on 27 September. If he fails, the king can propose another candidate – most likely PSOE leader and current Prime Minister Pedro Sánchez. If no new prime minister is elected within two months of the first vote, the parliament will be dissolved and new elections held.

Parallels to the EU lead candidates dispute in 2019

For those who follow Spanish politics, this situation will not be entirely unfamiliar: There was already a similar stalemate after the April 2019 elections, which was only resolved after new elections in November 2019. But there was also a similar case at the EU level not so long ago – and there are many lessons to be learned for European democracy from that comparison.

I am referring, of course, to the situation after the European elections in 2019. At that time, the European Parliament also experienced a strong polarisation between its two largest groups, the EPP and the S&D, which blocked the search for a new Commission President. With Manfred Weber (CSU/EPP), the EPP had nominated a lead candidate who was unacceptable to both the Socialists and the Liberals. Conversely, the EPP, as the strongest parliamentary group, was not prepared to elect a candidate of any other party as Commission President.

The Parliament was blocked – and just like the Spanish king, the European Council, as “collective head of state”, had to make a proposal for the Commission Presidency.

Similar constitutional procedures

Interestingly, the constitutional starting point in both cases was very similar. According to Art. 17 (7) TEU,

[t]aking 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 for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members. If he 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.

Similarly, Art. 99 of the Spanish Constitution states:

(1) After renewal of the Congress of Deputies […], the King, after consultation with the representatives appointed by the political groups with Parliamentary representation, and through the Speaker of Congress, shall nominate a candidate for President of the Government. […]
(3) If the Congress of Deputies, by vote of the absolute majority of its members, invests said candidate with its confidence, the King shall appoint him President. […]
(4) If, after this vote, confidence for the investiture has not been obtained, successive proposals shall be voted upon in the manner provided in the foregoing paragraphs. […]

The Spanish king, like the European Council, has thus an inescapable right of nomination. He must take account of the election result and consult with the parties – but only those nominated by him can then be elected head of government by the Parliament. The only difference is that, in the event of a total blockade, new elections will be held in Spain, whereas the European Parliament cannot be dissolved (so that, in an extreme case, the old Commission president would remain in office as acting President until the next European elections).

While the European Council put pressure on the Parliament …

But although the Spanish king and the European Council have the same constitutional role in appointing their respective executives, they have handled it in very different ways.

After the 2019 European elections, the four main pro-European groups (EPP, S&D, Liberals and Greens) initially tried to come together through policy-oriented negotiations on a “coalition agreement”. However, they were under great time pressure from the very outset, as the European Council didn’t wait for the conclusion of the talks between the parties, but went on the offensive in search of its own candidate. On 2 July 2019, the heads of state and government proposed Ursula von der Leyen (CDU/EPP) as the new Commission president – a surprise candidate who had previously been virtually absent from the debate on the EU top jobs.

The parliamentary parties, still divided and concerned about a prolonged institutional crisis, narrowly approved von der Leyen and, along the way, abandoned their efforts to reach a coalition agreement. What remained was a lot of frustration about the failed lead candidate process, anger and mistrust both between the institutions and between the parties, and a bitter aftertaste in terms of the functioning of European democracy.

… the Spanish king remains politically neutral

And in Spain? Here too, many talks are underway: between the PP and the PSOE about a possible but unlikely grand coalition, and between each of PP and PSOE and the small parties that could give them a majority. Here too, the aim is to achieve some convergence through policy concessions, to make sure that in the end one of the candidates wins a majority in parliament. Here too, it’s unclear if and how exactly these negotiations will be successful.

In this ambiguous situation, the Spanish king faced a dilemma. On the one hand, it is clear that, as a hereditary monarch, he has no democratic legitimacy and should therefore exert as little influence as possible on politics. On the other hand, he is obliged by the constitution to propose a candidate for the presidency, so he cannot stay out of it altogether. In Spain, too, there has therefore been some public speculation as to which candidate he would choose. Feijóo, whose PP won the most seats in the elections? Or Sánchez, whose PSOE is on better terms with the regional parties and therefore has a somewhat better chance of ultimately forming a majority in parliament?

An objectivizable practice

In the end, Felipe VI found a remarkable solution: In a communiqué justifying his decision in favour of Feijóo, he explicitly referred to the unclear situation in the parliament and stressed that in such cases it was “customary” to nominate the candidate of the largest group first and, if necessary, to make further proposals after his possible failure.

As constitutional lawyer Ángel Rodríguez points out in his blog, this “custom” is to some extent an invention of the king, as in most previous elections in Spain there has been a clear winner anyway. However, with his reference to a constitutional custom the king binds himself for similar decisions in the future. The purpose of this manoeuvre is clear: Supposed to be a neutral authority, the king is trying to take himself out of the political equation by basing his decision on a practice that can be objectivized. Whatever the outcome of the current Spanish government formation crisis, at least the country will not suffer a partisan politicisation of the monarchy or a conflict between King and Parliament.

Looking at other European countries, one can even find some where the “custom” of the Spanish king is actually enshrined in the constitution. For example, both the Bulgarian president (Article 99 of the Bulgarian Constitution) and the Greek president (Article 37 of the Greek Constitution) are obliged, after an election, to propose first the candidate of the strongest parliamentary group as head of government, then the second, the third and so on.

It’s normal for coalition negotiations to be difficult

What can we learn from this for Europe? First, that what is known in the EU as the Spitzenkandidaten procedure is common in many countries – and it’s not always harmonious at the national level either. Like the EPP in the European Parliament, also the Spanish PP insists that the strongest group should automatically lead the government (though it doesn’t always adhere to this principle itself).

But in multi-party parliamentary systems, it is quite common that parties have to form coalitions after an election in order to get a majority in parliament. And if the candidate of the largest party doesn’t have the support of enough coalition partners, someone else can obviously become head of government, too. In the end, it’s all about negotiation and compromise – even if that is difficult for the parties and sometimes takes time, both in Spain and in the European Parliament.

Exercising self-restraint

And second, the European Council, as the EU’s “collective head of state”, can learn from the Spanish king how to exercise a constitutional right of nomination with self-restraint to avoid damaging the parliamentary process. For an unelected head of state, it would be unacceptable to take advantage of the unclear majority situation in the parliament in order to intervene actively in politics. And while the European Council is comparatively better legitimised than a hereditary monarch, as an intergovernmental, non-directly elected body it too has a democratic deficit.

Out of respect for Europe’s citizens, the European Council should therefore not engage in an institutional showdown with the Parliament every five years when it comes to appointing the President of the Commission. Instead, it must find ways to reconcile its treaty-based right of nomination with the democratic lead-candidates process, even if the parliamentary majorities are unclear.

Less tension over the Commission election

The “custom” of the Spanish king offers a solution for this: If no obvious majority emerges quickly in the European Parliament, the European Council should first propose the lead candidate of the strongest parliamentary group, and if this person fails to be elected, the lead candidate of the second strongest group, and so on. This would give the parties time to negotiate and try to form a successful coalition.

And if, at the end of the day, there really is no one among the lead candidates who can win a majority in Parliament, and an alternative candidate is needed, the procedure would at least make this situation obvious. No one could then accuse the European Council of blindsiding of the Parliament – and the EU would be spared the inter-institutional tensions that it had to experience in 2019.

Picture: Charles Michel and Felipe VI: EU2023ES [CC BY-NC-ND 2.0], via Flickr.