Tuesday, 5 July 2016

The EU can, and should, reject any new UK commissioner

The British government is trying to find the most palatable candidate to survive European Parliament confirmation. But it is unclear why the EU should accept any British commissioner.

Prime Minister David Cameron's resignation in the hours after the Brexit referendum result on 24 June was the abdication heard round the world. But later that day, there was a less-noticed but also significant resignation in Brussels.

Lord Jonathan Hill, the European Commissioner from the UK, who is in charge of EU financial services, also stepped down. "As we move to a new phase, I don't believe it is right that I should carry on as the British Commissioner as though nothing had happened," he said in a statement. "In line with what I discussed with the President of the Commission some weeks ago, I have therefore told him that I shall stand down."

For awhile, it was unclear whether any new British commissioner would be sent to take his place. But today the Financial Times reported that the UK is about to nominate Sir Julian King, the current British ambassador to France. The Times writes that King would be considered an "apolitical appointment to ensure Britain is not left unrepresented at the EU’s executive body". 

The paper said the European Parliament is likely to reject any nominee that backed Brexit. At the same time, an incoming pro-Brexit government in the UK might be unhappy about having the pro-remain King be their man in the Commission.

But it is unclear to me why any UK nominee should be acceptable to the European Parliament.

The Spy who didn't love me

Going forward, the Commission is going to be on one side of a mammoth negotiation process. On the other side is the UK. How does it make any sense to have a representative of the UK government inside the room while the Commission's negotiating position is being discussed? The EU certainly won't have someone in the room in London when the UK government is coming up with its attack plan.

Of course, any UK commissioner would promise to recuse themselves from such discussions. But how would that work in practice? Brexit will be such an all-consuming project over the next two years that it is likely to come up in every weekly meeting of the 28 commissioners. Does the UK commissioner step out of the room each time something related to Brexit comes up?

Even if such an avoidance of conflict of interest were possible, what is the purpose of having a UK commissioner anyway? The UK is leaving the EU. Why, over the next two years, should a UK commissioner be able to influence legislation which will affect the rest of the EU but not the UK?

One could see a situation where such a commissioner would cast votes meant to hurt the EU to the advantage of the UK. For instance, banks and financial services companies are expected to move from London to Frankfurt or Dublin after Brexit. What would a UK commissioner do in a vote designed to encourage that process?

Commissioners are not neutral

I hear the howls of objection already. "But European Commissioners are not national government representatives, they are independent bureaucrats!". Right. If you believe that, I've got a bridge in Brooklyn to sell you.

Yes that is theoretically supposed to be the case, and in their confirmation hearings all commissioners swear to act in the European interest instead of the interest of their country. In effect, they are supposed to renounce their national allegiances before they enter the Berlaymont.

Commissioners from small countries are often pretty good about this. But commissioners from large countries are notoriously not. Seven years covering EU politics in Brussels has taught me that commissioners from large countries often intervene on behalf of their governments. 

Witness the numerous interventions of German Commissioner Gunther Oettinger in areas outside his portfolio (such as a railway reform that Deutsche Bahn didn't like). Or witness the numerous times former British Commissioner Cartherine Ashton, who as high representative normally didn't attend college meetings, would whisk in to have her say on something the UK government was concerned about.

The whole reason we still have 28 commissioners, rather than the 19 that the Lisbon Treaty tried to whittle it down to, is because Ireland objected to losing its permanent spot on the Commission and made retaining the 28 seats a condition of holding a second referendum to approve the treaty. 

If commissioners are neutral arbiters then why are we having this discussion at all? There are 27 commissioners now following Hill's resignation, why can't we just leave it at that? Of course the entire argument for putting in a 'stop-gap' commissioner from the UK is so that London doesn't lose out on influence in the Commission. 

Cameron said so himself. When asked about the appointment of a successor to Lord Hill, he said last week: “I think we should appoint a new commissioner. We are a full member of this organisation. We pay our dues in full.”

The problem is that by this argument, the UK "deserves" to maintain a seat in the Commission during Brexit negotiations because it will still be paying into the EU budget. The implication is that they are paying for influence in the Commission. But if the UK commissioner will be in the college in order to influence Commission decision-making, then he or she really shouldn't be in there during this delicate time of negotiations.

Possibilities to keep the UK out of the Berlaymont

It isn't an academic argument. Commission President Jean-Claude Juncker could, if he wanted, leave the seat empty. The UK is not, strictly speaking, legally entitled to a seat under the Lisbon Treaty.

A rejection of the UK nominee by Juncker would not exactly get these Brexit negotiations off to a very friendly start. But let's get real - however they start, these negotiations aren't going to end in a friendly place.

Juncker may want diplomatic cover for refusing a new UK commissioner. This is where the European Parliament, or perhaps even the European Council, comes in.

EU Treaty Article 246(2) states: "A vacancy caused by resignation, compulsory retirement or death shall be filled for the remainder of the Member’s term of office by a new Member of the same nationality appointed by the Council, by common accord with the President of the Commission, after consulting the European Parliament".

So, the first roadblock is the 27 other member states. If any other government thinks it will be unfair to have a British commissioner inside EU headquarters during the two-year Brexit negotiations, they can move to block the appointment in the European Council.

Diplomacy might make national governments shy away from such a confrontational move. That is when both the Commission and the Council may turn to the Parliament, the most aggressive of the three institutions. MEPs do not, unlike the Council and Commission, need to conduct negotiations with the UK government. In fact, going forward, the Parliament doesn't need to have anything to do with the UK government if it doesn't want to.

So, what if the Parliament were to reject any UK nominee after confirmation hearings? 

Such a decision is not technically binding, and the Council and Commission could choose to ignore it. Or, they could choose to use the Parliament rejection as political cover, saying they could not assent to the appointment of a person rejected by the Parliament. Such is democracy.

Playing Article 50 games

Speaking with people who are at the European Parliament plenary in Strasbourg at the moment, it sounds like the preferred option right now is to use the appointment as leverage for making the UK invoke Article 50. In other words, no Parliament confirmation until the UK starts the process of leaving. And even then, MEPs would only give the nominee the thumbs up if he or she is made a 'commissioner without portfolio'. Giving the replacement commissioner the powerful financial services portfolio is completely out of the question.

Such maneuvering may be smart gamesmanship by the Parliament but it is rather nonsensical. The start of Article 50 is exactly the time the UK should not have a representative in the Berlaymont because of the conflict of interest involved.

We'll see how the process plays out. But it honestly makes no sense to me why the UK would be invited back into the Commission. If it is acceptable for the UK to remain in the Commission during the Brexit process, why did Hill resign in the first place? And why was he given a standing ovation in the European Parliament for doing so?

Hill said it would not be right for him to carry on as UK commissioner "as though nothing had happened". Surely that sentiment does not just apply to him. If it was just about the portfolio, he could have been moved to a different portfolio or to a 'without portfolio' role. He resigned because it is ludicrous that the UK would maintain a seat in the Commission during this process.

MEPs should keep that in mind when the UK government comes forward with its plan to parachute back into the Commission in the coming days - no matter what political games they want to play with Article 50.

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