United Kingdom and Gibraltar European Union membership referendum
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Does Ursula von der Leyen have to wait any longer? The new Commission President's appointment has already been postponed for one month to 1 December, after the European Parliament rejected three of its commissioner candidates.
And now another prolongation of the hanging game threatens: The British government has informed the Leyen in writing, to propose before the domestic election on December 12, no EU Commissioner.
Although spokeswoman Von der Leyens on Thursday promptly said that they continue to plan to take office on 1 December. However, this could be difficult as the new Commission has 28 members under EU law - including one from the UK, as the country's exit from the EU has since been postponed to 31 January.
Otherwise, von Leyens commission might unlawfully come into office - and all their decisions would be actionable in court.
The British justify their refusal with the London practice of not proposing candidates for senior positions in international organizations shortly before an election. At the same time, British Ambassador Tim Barrow's letter to Von Dery's transition team stresses that the British government does not want to delay the formation of the new EU Commission.
Legal situation is tricky
In Von der Leyen's environment this is considered to be a positive signal: It shows that Great Britain would definitely nominate a commissioner, but because of the special situation could not. "It is important that Britain recognizes its obligations as a member state and does not want to obstruct the formation of the new Commission," said a spokeswoman.
How exactly the appointment is to be held on 1 December, however, did not reveal. The situation is "complex", "extraordinary" and "unprecedented".
This points to the possible legal reasoning of the Commission: Firstly, it is in an exceptional situation and, secondly, it would not start against the will of the British with only 27 Commissioners. This could help to dispel concerns from lawyers who warned against a precedent. Von der Leyen's team has repeatedly written requests from the Leyens team to appoint a Commissioner, which could prove helpful.
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Experts believe it is quite possible that the Commission will also be able to start with 27 instead of 28 Commissioners - "provided that this is only a temporary measure," said Jean-Claude Piris, former head of the legal service of the European Council MIRROR.
- Even the Göttingen European lawyer Alexander Thiele thinks that is possible. "It could be argued that individual Member States should not be able to block the new Commission's meeting for domestic political reasons." For a "foreseeable period of time" a first confirmation with a missing commissioner would therefore probably be possible.
- Daniel Thym from the University of Konstanz also believes that with "legal pull-ups" it would be possible to start with 27 commissioners. However, that is not absolutely necessary. Von der Leyen could also single-handedly nominate a candidate or - to better fulfill the women's quota - nominate a candidate of her choice. Because EU law prescribes only the number of commissioners. "It does not say that every member state has to make a proposal," says Thym.
- However, Christian Callies of the Free University of Berlin warns against such maneuvers. "It can not be ruled out that all decisions of a commission that has come into office in this way can be challenged in retrospect before the European Court of Justice," says the law professor. "I would warn against that in any case."
This is exactly what you are afraid of in the EU Commission. "Any Brexiteer," says one official, "will certainly come up with the idea of sueing a commission that has come into office with 27 commissioners." Then, in the end, the European Court of Justice would have to decide - with an uncertain outcome.
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After all, it would not be unusual for the EU Commission to be incomplete. In 2016, for example, she was without a British member for a short time when former incumbent Jonathan Hill resigned after the Brexit referendum.
It took until mid-September before his successor was established with Julian King. At the end of 2016, Budget Commissioner Kristalina Georgieva resigned and joined the World Bank. Only five months later, Bulgaria nominated a successor.
At the European elections in June 2018, five commissioners were elected to the European Parliament. Outgoing Commission President Jean-Claude Juncker informed member countries concerned that he did not want a short-term replacement: every new Commissioner would cost the taxpayer about one million euros for relocation, staff and life-long pensions, no matter how long he was in office.