Brussels is suing the United Kingdom over Boris Johnson’s refusal to appoint a member of the next European Commission, escalating a dispute with London over the obligations that arise from last month’s extension to Britain’s EU membership.
The European Commission announced on Thursday that it would open “infringement proceedings” against the UK for non-compliance with EU law, a process that could end with Britain being hauled before the European Court of Justice.
Brussels made the move after Britain rebuffed repeated requests from Ursula von der Leyen, the EU commission’s incoming president, to propose a British member of her team. The German insisted on the point because, under the EU’s treaties, the commission’s ruling college is supposed to have one member from each EU country.
The move will be seen as a provocation in London, given Mr Johnson has cited customary election “purdah” as his reason for being unable to nominate a British candidate. However, the commission is anxious to demonstrate that it has gone the extra mile to push the UK to put forward a name as it acts to minimise the risk that its decisions will be subject to legal challenge.
The commission handed Britain a November 22 deadline to respond to its letter, following which Brussels will decide whether to take a formal decision that the UK is in breach of the rules.
Britain has pledged not to disrupt the EU during its remaining time as a member in return for leaders’ decision last month to grant a Brexit delay from October 31 to January 31. The EU27 made clear at the time that nominating a commissioner was one of the requirements, saying that the country had “the obligation to suggest a candidate”.
Ms von der Leyen hopes that her commission will be able to take office on December 1, depending on ongoing approval procedures in the European Parliament. EU officials said that worries over the legal situation meant that the lack of a British candidate could threaten the start date of the next commission.
Infringement proceedings can take months or years before they end up in court, meaning Britain may well have left the EU or named a commissioner before the case reaches this point. Also, Brussels’ in-house lawyers are split over the precise implications of the UK not nominating a commissioner.
Britain has not ruled out naming a candidate once the country’s general election has taken place on December 12, and the UK reiterated in a letter this week that it does not want to stand in the way of the new commission taking office as soon as possible.
But Brussels is nonetheless wary that an incomplete commission college could find its decisions subject to legal challenge, on the grounds that its composition does not match with the requirements of the EU treaties.
The commission said in its statement on Thursday that existing EU case law made clear that Britain’s purdah period is no justification for not putting forward a commissioner.
“A member state may not invoke provisions prevailing in its domestic legal system to justify failure to observe obligations arising under Union law,” the commission said.