The fact that the United Kingdom has not nominated a candidate for the post of Commissioner while it is still a member of the European Union “cannot weaken the normal functioning of the European institutions” and, therefore, “cannot become an obstacle to the appointment of the next European Commission”, said the EU Council on Monday 25 November, upon adopting the list of 26 people who will sit on Ursula von der Leyen's team.
The adoption of this list authorises the European Parliament to vote on Wednesday 27 November in Strasbourg to thereby approve the entire college of Commissioners who, in the event of a favourable vote, will take office on 1st December (see EUROPE 12374/1).
Citing an ongoing election campaign, the British authorities have indicated that they will not appoint a candidate for the post of Commissioner until such time as a government is formed as the result of the outcome of the election on 12 December.
The Commission is of the opinion that this position infringes the principle of loyal cooperation between Member States in terms of the functioning of the institutional framework of the European Union. To demonstrate that they are acting in favour of a rapid and Treaty-compliant constitution for the future college, it has opened infringement proceedings against the United Kingdom. However, the latter refuses to agree with this, meanwhile providing assurances that they do not wish to prevent the European Union from functioning (see EUROPE 12367/2).
“A Member State cannot become an obstacle of the normal functioning of the European institutions. Otherwise, it gives to that Member State a power not foreseen by the Treaty”, commented the senior European official.
At present, the Treaties provide that the Commission shall be composed of one Commissioner per Member State. The option of proceeding—as provided for in the Treaty—with a unanimous decision made by the 28 Member States to reduce the number of European Commissioners to 27 was considered, but quickly withdrawn. According to this source, this amounted to “circumventing” the rules where the Twenty-Eight would make this first decision to deal with the current situation and, in the event of an effective Brexit, would make another decision to return to a situation where the College is composed of 27 Commissioners to equal the number of Member States.
On the basis of the legal weighting of an identical position expressed by the EU Council, the Commission has therefore opted for litigation. It is aware of the risk that such an approach could itself be challenged by private operators who would be directly affected by a decision that the 27-member 'von der Leyen' Commission might take while the United Kingdom is a Member State of the EU.
It comes down to potentially “individual measures” in the areas of “competition” and “trade defence”, acknowledged this senior European official, according to whom the risk taken has been a calculated risk.
The choice to favour a Commission with 28 Commissioners also has an impact on the majority required to make a decision that would not be collegial. This is already the case with the outgoing Juncker Commission, which has 26 Commissioners; Ms Crețu and Mr Ansip not ultimately having been replaced.
See the EU Council's decision: http://bit.ly/2DiyYxK (Original version in French by Mathieu Bion)