Fog in Channel – The Continent is Confused

Pietro Manzini (University of Bologna)

Perhaps the famous headline ‘Fog in Channel – the Continent is cut off’ is a fake, but certainly in these days of Brexit the Channel is full of fog and the Continent – from where I write – is very confused.

With only nine days left before UK crashes out from the EU, here in the Continent, what has been understood of the state of Brexit is the following: a) UK does not want to stay in the EU but does not want to leave the EU without an agreement; b) the agreement that the UK wants must allow UK to have an autonomous trade policy and this means that the UK and the EU must be different customs areas; however, the EU and the UK do not want a customs and regulatory boundary to correspond to the border between the Republic of Ireland and Northern Ireland; to avoid this, the UK and the EU have negotiated the (in)famous ‘backstop’. The House of Commons has nonetheless roundly rejected this solution twice because it does not have the legal certainty that it is only temporary.

Last week, Ms May, after her defeat on the second meaningful vote, dauntlessly decided to resubmit the ‘ UK/EUdeal’ to the House of Commons on 20 March with the following conditions: if the House accepts the deal, a short extension of the terms of Article 50 TEU will be asked to the European Council of 21-22 March in order to ensure that the UK leaves orderly the EU on 30 June 2019; if the House does not accept the ‘UK/EU deal’, the extension of Article 50 will be asked for a longer period.  Two days ago, however, the speaker of the House of Commons, Mr. Bercow, affirmed that the parliamentary conventions do not allow a further vote on an unmodified deal in respect to the version already rejected twice.  Hence, since the deal has not been modified, there should be no vote on it at the House on 20 March. Ms. May is therefore preparing to ask the European Council for an extension of the withdrawal period which under Article 50 can only be granted if there is unanimity among the remaining 27 Member States.

In theory, the UK and the other 27 Member States could choose an extension of any duration, because Article 50 does not provide for anything in that respect. However, Brexit’s crossing with the European elections – to be held on 23-26 May – reduces the options to two: 1) short extension, until 30 June; 2) long extension, of around (or more?) 1 year.

The short extension option is technically the easiest and politically the less troublesome. This date has been identified as the last possible day before the first session of the new European Parliament (2 July) with no English representatives. Following the UK notification of withdrawal, the EU changed the composition of the EP from 751 to 705 members. The English contingent of 73 MEPs was partly (46 seats) cancelled and partly (27 seats) redistributed to certain other Member States to better reflect the relationship between the number of MEPs and the number of their citizens. If the extension of UK membership is granted only until 30 June, it will be possible to hold European elections without the participation of English voters and the new EP will start its activities on 2 July – when the UK will be outside such ‘undemocratic organization’.

The long extension would be much more complex, both politically and technically.

From a political point of view, the request for a long extension should be accompanied by a solid motivation regarding its usefulness. Brexit could be postponed, but for doing what? Only if the UK expresses its intention to strategically reconsider its position on Brexit – for example through general elections or a second referendum – would the 27 EU Member States have no difficulty in granting a long extension. But if this is not the case, further delaying Brexit would mean prolonging economic and political uncertainty with negative effects for both the EU and UK.

From a technical point of view, an extension of the UK stay in the EU beyond 30 June would pose the problem of the representation of English citizens in the EP. Many solutions have been envisaged, but none convincing. The first would be to quickly restore the old rules and elect the EP with 751 members, including the English contingent of 73 representatives. However, after one year, at the time of the actual withdrawal, the EP would be deprived of the English representation and its institutional and political activity would proceed biased and limping for the other 4 years. Alternatively, it could be decided to hold the elections with the new rules (705 representatives) and to provide for an English contingent made up of the present English Euro-parliamentarians, or a group of English MP chosen in the House of Commons. But with all evidence, even in this case, the activity of the EP would be distorted. One could wonder, for example, whether the legislative acts adopted by the EP with the vote of English representatives would be politically acceptable and legally valid, taking in consideration that those representatives are set to leave after a few months and UK would not be a recipient of those acts.

In short, the long extension appears to be very problematic. Perhaps, in the absence of a perspective of an effective reconsideration of Brexit, it would be better to leave quickly the foggy Channel and hope that the navigation ‘en solitaire’ in the Atlantic is not too hard.

 

Pietro Manzini is barrister and Professor of European Union Law and European Antitrust Law at the University of Bologna – Department of Legal Science. He has served as Legal Secretary at the EU General Court and as been appointed as National Legal Expert at the Legal service of the European Commission.