Georgina Wright says that the UK’s failure to appoint a British commissioner could delay the start of the new European Commission until 1 February – a decision which would be made with the EU’s interests in mind.
Many in the EU are hopeful that the UK’s general election will, as Boris Johnson has promised, break the Brexit deadlock. Regardless of the result, however, the UK won’t be excused from meeting its ongoing EU obligations.
Ursula von der Leyen, the new EU commission president, gave the UK until 11 November to propose a commissioner to join her team. EU leaders are not making this demand because they want a British commissioner sitting at the top table in Brussels or because they are giving much thought to the UK's latest twists and turns. Their focus is on the long-term stability of the EU. All member states are required to appoint a commissioner, and there are concerns that a commission which functions without a UK commissioner would set a risky precedent – one that fundamentally changes the process of appointing EU top jobs long after the UK has left.
EU law requires every member state to nominate a commissioner. Every five years, EU leaders collectively designate two candidates for the European Commission: the president and the EU foreign policy chief. This time, they opted for von der Leyen, the former German defence minister, and Josep Borrell, a former Spanish foreign minister, respectively. The remaining 25 member states then put forward a candidate to join von der Leyen’s team. But for the first time in the history of EU appointments, one EU country refused to do so; this member state was the UK.
At first it looked like the EU27 would turn a blind eye. From the UK’s perspective, there was no point in nominating a British commissioner. The UK would be out of the EU on 31 October – which would have been before the start of the new commission. This arrangement also worked for the EU: the last thing it wanted was for the European Parliament to approve a British commissioner who would then quit the post before his or her work had begun. The institutional reshuffle was seen as more trouble than it was worth.
The EU27 changed their minds once it became clear that the UK would be remaining in the EU beyond 31 October. von der Leyen set the 11 November as the ultimate deadline for a British nominee. Now that that deadline has been missed, it is not clear whether the European Commission will launch an infringement procedure against the UK.
One reason is that there is no guarantee that the general election will settle the Brexit question, and the possibility of yet another extension at the end of January makes the continued absence of a British commissioner untenable.
But there is another, perhaps greater, reason why the EU27 are pushing for a British nominee this side of 2020. There are some in the EU27 who are worried that a UK derogation could have far-reaching consequences for the way member states appoint commissioners in the future. For example, what happens in future if a member state were to put forward a candidate who the other EU26 do not like?
The EU26 could argue that not all member states need to be represented in the commission for it to begin its work – if the EU found an exception for the UK, then surely it could do so again? Nominees would face two hurdles: a public hearing in the European Parliament and, before that, vetting by other member states. The choice of candidate would no longer be the sole prerogative of individual EU governments and would instead become a bargaining chip in EU internal negotiations.
The UK’s failure to appoint a commissioner leaves the EU with two options. The first is to go ahead with the new commission this year and launch an infringement procedure against the UK in line with EU law.
The other, more likely, option is that the EU will delay the new commission, and any infringement procedure, until at least 1 February – giving the EU and the UK more time to agree on an appointment if Brexit is delayed again. This also means Jean-Claude Juncker will continue to be commission president for a little while longer.
The appointment of the von der Leyen commission is just another example of Brexit interacting, and interfering, directly with the EU’s timetable. But any decision to postpone the commission’s start date won’t be made to help the UK. It will be taken to ensure that Brexit does not alter EU processes for the future.