The EU institutions are locked in a vicious Brexit circle over the UK’s failure to nominate a new commissioner. The move could even delay the future Commission’s start date.
European Commission president-elect Ursula von der Leyen is determined to take office on 1 December, but this week’s decision to launch an infringement procedure against the UK places her in a tricky position (see EUROPE 12369/4). She may be forced to rely entirely on the European Council to make it happen.
EU leaders agreed in 2009 that every member state should have a commissioner. It was intended as a sweetener to Irish voters to ensure a ‘yes’ in the second Lisbon Treaty referendum, and was formally adopted (as a non-legislative “decision”) in May 2013. The decision says that the number of EU commissioners should be “equal to the number of Member States”. But the Lisbon Treaty itself says the number of commissioners can be altered by the European Council “acting unanimously” (Art 17.5 of the Treaty on European Union).
The Commission insists that its move this week was a purely legal one, and that it is “in close contact with other EU institutions to be prepared for all eventualities”. But infringement procedures usually take at least four months to complete – and much, much longer if the case goes to court. This time, though, the procedure is being fast-tracked, with the UK given a week (instead of the usual two months) to reply to the letter of formal notice it received on Thursday. If the UK fails to comply, the Commission can issue a “reasoned opinion”, a formal request to comply (within two months, usually).
When prime minister Boris Johnson took over in July, he swore he would not nominate an EU commissioner. In August he said UK officials would withdraw from “most” EU meetings. He will now have to row back on that promise or face EU legal action. The Guardian newspaper quoted a spokesman for the British prime minister saying that “the UK meets its legal obligations”. A UK government spokesperson said on Thursday that it “does not intend or wish to stop the EU proceeding with the formation of a new Commission at the earliest possible moment” but that “pre-election guidance states the UK should not normally make nominations for international appointments during this period”.
The European Parliament also has a key role to play in fast-tracking any potential UK nominees through the hearing process, and has scheduled a vote on the new Commission for the 25-28 November Strasbourg session. The Council of Ministers has to rubber-stamp the UK nominee, though this is a mere formality and done in “common accord” with the Commission president-elect. The Council adopted the Commission’s initial list of candidates without debate on 9 September.
In good Brexit news, the financial sector will be thrown a temporary lifeline after Commission Vice-president Valdis Dombrovskis promised to table an extension to last year's equivalence decision on central clearing. “Preserving financial stability remains a top priority,” he said in London on Friday. The decision would have expired in March 2020. Incoming trade commissioner Phil Hogan gave EU-UK trade a boost by saying talks could get underway by next spring “with a bit of good will on both sides”. “We can do an agreement more quickly than we would do with any other negotiations around the world,” he told RTE this week, saying that he could have a Council mandate to start negotiations by 17 March.
And, ever the optimist, European Council President Donald Tusk even hinted that Brexit may yet be reversed. Speaking at the College of Europe on Wednesday, he said “Brexit may happen at the beginning of next year” and questioned whether things “can still be turned around”. “Don’t give up,” he said. "In this match, we had added time, we are already in extra time, perhaps it will even go to penalties?”
The withdrawal agreement was published in the EU’s official journal on Tuesday (12 November) with its “date of entry into force unknown” (see http://bit.ly/2rPlWWj ). (Sarah Collins)