14 Nov 2019

A press release issued by Brussels confirms that the European Commission launches infringement proceedings against the UK following its failure to name a candidate for EU Commissioner. 

The press release states that the EU Commission has sent a letter of formal notice to the UK for breaching its EU Treaty obligations by not suggesting a candidate for the post of EU Commissioner. It states that the UK authorities are invited to submit its observations on the letter of formal notice at the latest by Friday 22 November. 

The UK Government have maintained that they are not in a position to suggest a candidate for the post in view of the upcoming election on 12 December 2019. The UK Cabinet Office issued the 'General Election Guidance 2019' on 5 November 2019. Revisions made to the 2019 Guidance (from the 2017 version) occur in Section M which was in 2017 titled "European Union and International Business" and is now revised to refer only to "International Business". Paragraph 10. Section M is titled 'International Appointments', and states as follows:

"10. The UK should not normally make nominations or put forward candidates for senior international appointments (including appointments to European institutions) until after the election. It remains possible to make nominations or put forward candidates for other positions. Departments should consult their Permanent Secretary and the Propriety and Ethics Team in Cabinet Office on appointments that risk being controversial between the UK political parties."

The first step of Infringement Procedure is a letter of formal notice. This takes the form of a letter from the Commission to the country concerned requesting further information. The country would usually have a period of two months to send a detailed reply. In this instance the Commission has requested a reply by latest 22 November 2019, reasoning that this short time period is justified by the fact that the next Commission must enter into office as soon as possible.

If the Commission concludes that the country is failing to fulfil its obligations under EU law, it may follow the letter of formal notice with a reasoned opinion which is a formal request to comply with EU law. The reasoned opinion will set out and explain why the Commission considers that the country is breaching EU law. A Reasoned Opinion also requests that the country inform the Commission of the measures taken, within a specified period, usually two months, though in this instance it may be anticipated that the period granted would be considerably less. If the country still doesn't comply then the Commission may decide to refer the matter to the Court of Justice.

We will have to wait to see if the UK will reply by the 22 November 2019.

A spokesperson from our strategic alliance firm, Redeker Sellner Dahs, commented:

"Over here in Brussels, one main concern has been the UK authorities’ reasoning that they are not in a position to suggest a candidate for the post of EU Commissioner in view of the upcoming general election. The question which has been the cause of some concern is: Will the new EU Commission – which is about to take office on 1 December 2019 – be able to operate effectively without a Commissioner from the UK? Any doubt about that would be quite disastrous for everyone inside the Common Market. The infringement proceedings against the UK that have been launched now must be seen in this light – they might be helpful for any potential legal solution to the conundrum."