The European Commission has given Prime Minister Boris Johnson one more week to propose a new British EU Commissioner, but it is now also threatening legal action against London. This procedure is the first step that could lead to a lawsuit at the European Court of Justice.
In a letter to the UK government, Commission President Ursula von der Leyen formally requests clarification regarding the ‘breach of the EU treaty’. London has until Friday, 22 November, to respond. If no response is given or if the answer is unsatisfactory, the Commission will take further steps, possibly including a summary procedure before the Court in Luxembourg.
The initiation of the infringement procedure follows after Prime Minister Boris Johnson announced that he would be unable to approve international appointments ahead of the UK elections on 12 December. EU legal experts say this reasoning contradicts the EU treaty; that an EU country cannot invoke national rules to circumvent European rules.
As long as the United Kingdom remains an EU member, it is required under EU treaties to appoint a commissioner. The EU heads of government also highlighted this in their decision to grant the UK an extension for Brexit until 31 January. Ultimately, the European Commission is the legal ‘guardian’ of the compliance with the EU treaties.
Observers in Brussels fear that the threat of legal measures during the UK election campaign will be used by Brexiteers as an argument that Brussels is trying by all means to keep the United Kingdom in the EU. Others say that the ‘announcement’ of possible legal steps is merely a matter of ‘procedural diligence’, enabling the European Commission to take legally valid decisions later on.
The European Commission plans to start work on 1 December regardless of the UK government's refusal to nominate a commissioner. In that case, von der Leyen has at least two options: to begin with 27 commissioners instead of 28, or to keep the current British commissioner, Julian King, in office temporarily. Some legal experts even say that in the event of continued UK refusal, the EU itself could appoint a British candidate, even without London’s consent.