by Jim Brunsden, Sam Fleming and Mehreen Khan
Brussels isn’t waiting.
The next European Commission is set to take office without a British member after Boris Johnson turned down repeated requests to provide a candidate.
The EU Council on Tuesday approved a membership list that does not include a UK nominee, and the European Parliament will hold its confirmation vote on Ursula von der Leyen’s team on Wednesday, paving the way for the new EU executive to take office on December 1.
But this succession of procedural steps come against the extraordinary backdrop of legal action launched on November 14 by the current commission against the British government over its refusal to put forward a name.
It is a move that, in theory, could lead to Britain being hauled before the European Court of Justice if it does not comply.
EU officials in recent weeks have warned darkly of the risk that the von der Leyen commission could find itself and its decisions open to legal challenge unless each member state is represented on its ruling college, as required by the bloc’s laws.The problem arises despite the UK being on course to leave the EU by January 31, whereupon it would lose its representation in the EU institutions anyway.
It was that drive for legal certainty that prompted Ms von der Leyen to write twice to Mr Johnson asking for a nominee.
But on Monday the commission decided not immediately to escalate its infringement action despite the UK missing a November 22 deadline to present a candidate. As a commission spokesperson said on Monday, the EU executive will analyse the situation and decide on possible next steps, “if any” when it deems appropriate.
So what is going on?
Mr Johnson’s government has argued it cannot possibly nominate a commissioner during the ongoing general election campaign, citing long-established traditions of institutional purdah.
Faced with this reality, the EU has chosen simply to get on with it, while trying to make sure that it has as much legal cover as possible.
Monday’s decision by the Council — the EU institution that represents national governments — contains a detailed set of recitals spelling out all the efforts Brussels has made to get the UK to provide a name.
It states that Britain’s stance cannot be allowed to “undermine the regular functioning of the Union and its institutions” and cannot “constitute an obstacle to the appointment of the next commission in order for it to start exercising the full range of its power under the Treaties as soon as possible.”
EU officials insist that the unorthodox situation will not prevent the von der Leyen commission from wielding its full array of powers. As Jean-Claude Piris, the former head of the council’s legal service says, the absence of a single commissioner does not bring the Brussels executive to a halt.
In the meantime, as Brussels has become apt to say during the Brexit process, the clock is ticking. Britain’s current European commissioner, Julian King, is set to check out at close of business on Friday.
*first published in: www.ft.com