Natassa Athanasiadou (Maastricht University)
When the European Council, on 29 October 2019, decided to extend the withdrawal negotiation period until the 31st of January 2020, it became clear that this extension would bear implications also for the composition of the new Commission. Indeed, in recital 11 of the European Council’s decision, it is explicitly mentioned that the UK has to propose a candidate for appointment as a member of the Commission. According to the same recital, the extension is granted on the premise that it will not undermine the regular functioning of the Union and its institutions and that the UK will act throughout the extension period in accordance with the duty of sincere cooperation.
The extension decision was taken in agreement with the UK. However, subsequently, the UK Prime Minister refused to nominate a Commissioner before the UK general election on December 12. The UK argues that pre-election guidance states that the U.K. should not normally make nominations for international appointments, including EU institutions, during this period (see General Election Guidance 2019, p. 36. However, when the UK Prime Minister gave his agreement to the terms of the extension decision, including his obligation to nominate a Commissioner, he was aware that he would (probably) be in a pre-election period when he would have to make this nomination. Therefore, his subsequent refusal constitutes not only a violation of a Treaty obligation (Art. 17(7) TEU) but also a breach of the principle of sincere cooperation, since the extension was awarded upon condition that it would not undermine the regular functioning of the EU institutions.
Since during the extension period, all ongoing mandates of members of institutions, bodies, offices and agencies of the Union nominated, appointed or elected by the UK continue until the date of the withdrawal, the UK Premier could have adopted a similar approach by reappointing Julian King, the current UK Commissioner in charge of the security portfolio, which would in practice amount to an “extension” of his mandate for the remaining period of the UK membership. The UK government, during the pre-election period, has taken also other decisions of major political importance, such as giving agreement on the 2020 EU budget, in which it will participate and which it is expected to be formally endorsed by the Council on 25 November and by the European Parliament on 27 November (see press release).
In any event, even if it is to be accepted that a new nomination would be at odds with the pre-election guidance in the UK, according to established EU case-law, a Member State may not invoke provisions prevailing in its domestic legal system to justify failure to observe obligations arising under Union law.
Accommodating such national arguments, in the process of institutional nominations, would indeed cause significant delays or disruptions in the functioning of the EU institutions. The new College of Commissioners was due to take office on 1 November, but because of the rejection by the European Parliament of the candidates put forward by France, Romania and Hungary, these Member States had to propose new candidates, who had to appear anew for a hearing before the European Parliament. Given this delay, a further delay due to the UK general election would cause a significant disruption in the functioning of the EU executive.
For this reason, following the official refusal of the UK to nominate a Commissioner on 13 November 2019, despite two formal requests by the President-elect, the Commission decided on 14 November 2019 to launch an infringement procedure against the UK sending a letter of formal notice (see press release). The UK has until 22 November to submit its observations to this letter. The short period given was justified by the fact that the next Commission must enter into office as soon as possible. After the lapse of this deadline, the Council, by common accord with the President-elect, must approve the list of Commissioners to appear before the European Parliament for a vote of consent in accordance with art. 17(7) TEU. This is for the time being scheduled for the plenary session in Strasbourg of 25-28 November, so that the Commission can take office on the 1st of December 2019.
The question which arises is whether the Commission can be legally constituted without the UK Commissioner. According to the European Council Decision of 22.5.2013, adopted on the basis of art. 17(5) TEU, the Commission is composed by one Commissioner per Member State. This decision does not have to be amended to reflect the probable absence of a UK Commissioner, since the European Council does not wish to alter the composition system of the Commission. Therefore, it can be expected that an eventual absence of a UK Commissioner will be justified by the Council, when adopting the final list of proposed candidates by common accord with the President-elect.
This was indeed the case in the Council decision of 10 September 2019, which contained the initial list of candidates and which mentioned the UK’s refusal to nominate a Commission candidate before the extension period, given the then imminent withdrawal date of 31 October 2019. A new Council decision will be issued in order to reflect the change of the French, Romanian and Hungarian nominees. It is to be expected that the refusal of the UK to nominate a Commissioner as well as the measures taken by the Commission to address this refusal, notably the infringement procedure, will be outlined in the recitals of this Council decision. The initiation of the infringement procedure serves as a proof that the Commission used all political and legal means to ensure that the new College composition respects the Treaties. Since all available means have been exhausted, the procedure has to continue even without the UK candidate. It may also be inferred from the general principle of continuity of the Union’s policy and actions, as enshrined in art. 13(1) TEU, that the effective and continuous functioning of the Commission should not be disrupted by the refusal of a MS to abide by its obligations.
To conclude, from an EU law point of view, the UK, by not nominating a Commission candidate, is violating its obligations under the Treaties and its commitment to act in accordance with the principle of sincere cooperation during the extension period. Even from a political point of view, it is difficult to comprehend how the UK government argues that during the pre-election period it has no political legitimacy to nominate a Commission candidate, while at the same time it negotiated and agreed on the new 2020 budget. In any event, the recent launch of the infringement procedure clearly demonstrates that the new College will take office with or without a UK Commissioner.
The views expressed in this article reflect the position of the author and not necessarily the one of the Brexit Institute Blog
Natassa Athanasiadou is an Assistant Professor of EU law at Maastricht University
 Court of Justice of the EU, judgment of 5 February 2015, case C-317/14, Commission v Belgium, paragraph 33.