Now that Commissioner Dalli suddenly appears to have un-resigned, the question is what to do. As far as I can see, under the Treaties there are two ways to get rid of a Commssioner. On the one hand, there is the approach that President Barroso has taken so far, which is codified in art. 17(6) TEU:
A member of the Commission shall resign if the President so requests.
Contrary to what one might think, this does not seem to be optional. “Shall” usually indicates a positive obligation in European law, meaning that the resignation of a Commissioner is only a formality once the President of the Commission has asked for it pursuant to art. 17(6) TEU.
The second approach is a forced resignation under art. 247 TFEU:
If any Member of the Commission no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct, the Court of Justice may, on application by the Council acting by a simple majority or the Commission, compulsorily retire him.
This begs the question: if resignation is mandatory once requested under art. 17(6) TEU, what is the point of art. 247 TFEU? (Other than to allow the Council to bypass the President of the Commission and have a Commissioner sacked directly, which does not seem like a very likely scenario, given the usual balance of powers between the Council and the President of the Commission.)
I think the explanation for this seeming redundancy is in the history of the Treaties. On the one hand, we have art. 247 TFEU, which already appears in identical form as art. 12(2) of the Treaty of Paris, which established the European Coal and Steel Community. Clearly, this was traditionally the way to get rid of Commissioners like Mr. Dalli. On the other hand, as the number of Commissioners grew, a more Presidential system started to emerge, where in successive Treaty amendments the position of the President of the College was strengthened relative to his colleagues. Thus, as of the Treaty of Maastricht the President is selected first, and then consulted on the selection of his colleagues. The Treaty of Amsterdam introduces the proposition that “The Commission shall work under the political guidance of its President.” (art. 219 EC) And finally the current rule of art. 17(6) TEU was introduced in the Treaty of Nice, as art. 217(4) EC.
In this way, the old rule has become ever less important, and there is a decent chance that it was only maintained unamended because no one thought to get rid of it. However, the current crisis does show a potential use for the provision. As it happens, Mr. Dalli seems to accept that if President Barroso formally asks for his resignation, that he is required to give it, regardless of whether the President has a good reason for asking. In this case, for example, it is highly doubtful that it can be proven that Mr. Dalli is “guilty of serious misconduct”, although the Commission might be able to persuade the Court that Mr. Dalli “no longer fulfils the conditions required for the performance of his duties” on the grounds that his reputation is too tarnished for him to function. But what if Mr. Dalli refused to go? Of course, the President could bar him from the building, but it would be nice if there were a more formal way of resolving the dispute. In this cases where it is able, the Commission should want to have the opportunity of proving in open court that its black sheep really should go. Deleting art. 247 TFEU would remove the possibility of removing, once and for all, all doubt about whether the President of the Commission was right to ask a Commissioner to go. For this reason, I would certainly suggest that it should be maintained, although possibly in amended form.
In the case of Mr. Dalli, however, his letter to President Barroso suggests that all of this can be solved by having President Barroso send him a letter formally invoking art. 17(6) TEU. I am not sure why Mr. Dalli thinks that the President has to ask for his resignation in writing, or why he thinks he is entitled to “defend himself” or “to consult with [his] lawyer”, but he seems to be prepared to resign if and when he is formally asked. So let’s just ask him again and get it over with.
UPDATE OCT 24: Apparently President Barroso is also wondering what Mr. Dalli is talking about. In a letter published today, he writes: “Under the Treaty, no written form is required for a declaration of resignation, and it is irrevocable. As a consequence, no further question arises about the effectiveness of your resignation.”