The Spitzenkandidaten process: establishing an ambiguous constitutional convention

This chapter analyses the Spitzenkandidaten (also, SK) practice from a constitutional law perspective to determine its alignment with the necessary conditions defining a “constitutional convention” or, at least, as an attempt to establish one. It starts by pinpointing the ambiguities of the Treaty provisions that the SK practice sought to steer and, then, reconstructs the practice to examine its fluctuations, depending especially on European parties’ choices and behaviours. Then, it assesses the practice to verify whether it might be qualified as a “constitutional convention”. This assessment is developed in two steps: first, using the conditions laid out by the well-known Jennings’ test, normally used by the British doctrine of the “conventions of the Constitutions”, which refers to unwritten practices considered binding and essenstial for the functioning of the uncodified UK Constitution; second, since the practice does not pass the Jennings’ test, the continental European doctrine of “constitutional conventions”, in the sense of political agreements between institutional actors, will be used, this time showing that the Spitzenkandidaten practice can qualify, in legal terms, at least as an attempt to establish such an agreement.