This article originally published on Monday has been updated.
The UK could find itself at odds with the EU over the conditions attached to the latest Brexit extension, if Boris Johnson tries to hold firm on a pledge “under no circumstances” to nominate a new European commissioner.
European Council President Donald Tusk has confirmed that EU27 countries had accepted the UK’s request for a “flextension” until January 31, 2020.
An obligation to nominate a commission member appears in the text of the Council's decision. It states that the UK remains a full EU member until the new exit date, "with full rights and obligations... including the obligation to suggest a candidate for appointment as a member of the Commission".
The document confirms comments last week by the Commission’s President-elect. Ursula von der Leyen said that if the UK’s EU membership was extended beyond the October 31, then she would request a British candidate.
“If after 1st November… the UK is still in the European Union, then, of course, I would ask the UK to send a commissioner,” the incoming leader told a news conference in Helsinki on Thursday.
EU ambassadors agreed in principle the new Brexit extension last Friday (October 25), before quickly signing off on the details on Monday morning. The decision was formally adopted by the European Council on Tuesday.
A letter written by the British prime minister to Donald Tusk in the wake of the extension agreement makes no mention of a new EU commissioner.
Upon becoming prime minister, Boris Johnson told parliament he wanted to make clear his “commitment to the 31 October date for our exit”.
He said he wanted to “start unshackling” UK officials “trapped in meeting after meeting in Brussels and Luxembourg”, to deploy them on a new mission seeking new trade deals and promoting “Global Britain”.
“So we will not nominate a UK Commissioner for the new Commission taking office on 1st December – under no circumstances – though clearly this is not intended to stop the EU appointing a new Commission”, Johnson told the House of Commons on July 24, in his first speech to parliament as prime minister.
In his letter to Donald Tusk following the decision on the latest Brexit delay, the prime minister does not address the issue. "While we will of course not seek to deliberately disrupt the EU's business, I must underline that I continue to have a responsibility as Prime Minister to protect the UK's national interests during this period, including in EU decision-making," Johnson writes.
The new Commission’s start date has been delayed from November 1 to December 1 following the European Parliament’s rejection of some of von der Leyen’s nominees.
Can the UK get round it?
In September, the Institute for Government suggested that should Brexit be extended again, the UK and the EU could seek a way around the obligation to nominate a commissioner by agreeing a derogation under Article 17(5) of the Lisbon Treaty.
It says any new Commission must consist of members representing at least two-thirds of member states. However, EU countries have since reverted to the former process under which every state nominates one Commissioner.
Boris Johnson has not proposed any names to replace the UK’s outgoing Commission member, Sir Julian King – who was sent to Brussels in the wake of the 2016 referendum.
Euronews' Brussels correspondent Meabh McMahon reports that one possibility is that he is asked to stay on as Commissioner for the time being. He hinted at such in a recent tweet.
Otherwise, if the UK leaves the EU on January 31 or earlier, and the UK nominates a new candidate – the tenure of Sir Julian's replacement might end up being one of the most short-lived for a top EU job.
Watch Meabh McMahon's report in the video player above.