On 25 July, in his first statement to Parliament as UK Prime Minister, Boris Johnson said the Government would not nominate a UK candidate for EU Commissioner.

The new EU Commission is due to take office on 1 November. The PM’s position reinforced his 24 July Downing Street statement that the UK would leave the EU on 31 October, “no ifs, no buts”.

The obligation to nominate a Commissioner

EU Member States are obliged to nominate a candidate for the European Commission under Article 17 of the Treaty of European Union (TEU). Collectively the appointed Commissioners form the College of Commissioners. The procedure in the UK is that the Prime Minister, in consultation with and on the advice of the Foreign Secretary, nominates the UK candidate.

National nominations for the new EU Commission are currently being considered and discussed in other EU Members States. Final nominations and European Parliament (EP) hearings are set for September-October.

The last Commission was approved in 2014. At that time, proposed Commissioners were put forward by Member States and agreed by the Council over the Summer of 2014. The EP Committee hearings were held at the end of September and in October. The Commission as a whole was approved on 22 October in time to take office on 1 November 2014. A similar process will be followed this year.

‘Sincere cooperation’

The UK is an EU Member State until it leaves the EU. It is bound by the principle of ‘sincere cooperation’ under Article (3) TEU up to that point. The EU could therefore expect the UK Government to make a nomination. But the serving UK Commissioner, Sir Julian King, remains in place until 31 October. So, should the UK nominate a new Commissioner if it intends to leave the EU the very next day?

Could the European Commission or the other 27 EU Member States insist on a UK nomination, even in the current circumstances? Professor Steve Peers commented on this in April:

“As regards the Commission […] the implications aren’t fully fleshed out: the UK and UK MEPs will still presumably have a vote for the new Commission, since those votes would normally take place before November 1, but it would follow that also the UK should nominate a Commissioner who might not even take office?”

Potential interim arrangements

The College of Commissioners is not always at full complement (one Commissioner per Member State).

In 2016, the Commission operated at a reduced complement for some months. The UK Commissioner, Lord Jonathan Hill resigned after the UK’s EU referendum in June 2016. His replacement was nominated a month later and took office in September.

The Bulgarian Commission Vice-President Kristalina Georgieva resigned in October 2016. Bulgaria nominated a replacement four months later. In both these cases, subject portfolios were covered by other Commissioners in the interim.

Filling Commission vacancies

In May 2019 Estonia’s and Romania’s Commissioners resigned in order to sit as MEPs after being elected in the European Parliamentary elections. Commission President jean-Claude Juncker said there was no need to replace them because a new Commission was due to be nominated and approved by 1 November. However, the European Council (heads of state or government) decided the Commission had to have 28 Commissioners for the five months until the end of the current term. The Council therefore insisted on two temporary replacement Commissioners.

Under Article 246 of the Treaty on the Functioning of the European Union (TFEU), the Council of the EU may decide by unanimity on a proposal from the Commission that a vacancy caused by resignation, compulsory retirement or death “need not be filled, in particular when the remainder of the Member’s term of office is short.” ‘Short’ is not defined, but it would appear from the May 2019 precedent that five months is too long.

What happens if a Member State exits the EU?

There is no EU Treaty provision for a Commission vacancy brought about by an ‘exiting’ Member State. Strictly speaking Article 246 would not apply in this scenario. If the UK leaves the EU on 31 October there will be no Commission vacancy – because having exited the EU, the UK will no longer have a Commissioner. If, on the other hand, the UK, for whatever reason, does not exit the EU on 31 October, the failure to nominate a Commissioner would result in a vacancy in the incoming Commission.

A situation of uncertainty

The European Council could take a decision under Article 17(5) TEU to alter the number of Commissioners, so that the UK does not need to nominate one. Or, given the UK is legally scheduled to leave the EU before the new Commission takes office on 1 November, the Commission and Council could agree that the UK does not need to nominate a Commissioner without a formal European Council decision on the number of Commissioners under Article 17(5) TEU.

About the author: Vaughne Miller is head of the International Affairs and Defence research section at the House of Commons Library.

Image: UK Parliament/Jessica Taylor