No Extension without Election
European Parliament Elections as an Obstacle to Article 50 Extension
After the 12-13 March 2019 parliamentary votes on Brexit, it would seem that the UK will ask the EU for an extension under Article 50 TEU, to prepare for a “no deal” scenario or to approve the Withdrawal Agreement. The extension may last several months and would have to be approved by the European Council, i.e. by the representatives of EU Member States, by unanimity.
Such an extension might raise considerable legal issues. The main problem lies with European Parliament elections, which will take place on 23-26 May 2019. If the withdrawal date were delayed beyond 26 May 2019, the UK should in principle take part in European elections. The status of the UK as an EU Member State is indeed “not suspended or altered”, until it has withdrawn from the Union (Wightman, para 59). Yet, holding EU elections shortly before withdrawal from the EU may seem pointless.
May the UK obtain an extension and avoid participating in European elections?
Extension Equals Election
Advocate General Sharpston has tweeted that EU elections do not constitute an obstacle for an extension. Allegedly, “if the Member States have the necessary shared political will to do X”, lawyers “can find the necessary technical legal means”. Spaventa has supported the opposite view, by arguing that an extension-without-election scenario would bring about a violation of the fundamental rights protected by EU law and the European Convention of Human Rights.
This second approach seems more convincing, though some qualifications are in my view necessary.
According to Article 14(2) TEU, the European Parliament is “composed of representatives of the Union’s citizens”. This means that in the UK, – as in all other Member states – members of the European Parliament (MEPs) “shall be elected as representatives of the citizens of the Union” (Council Decision 2018/994; see also Juncker). In fact, every citizen of the Union has the right to vote to the European Parliament in the Member State in which he or she resides (Article 39 of the EU Charter of Fundamental Rights).
Should the UK fail to participate in European elections in May 2019, it would violate EU primary law. Leaving “empty chairs” at the European Parliament would be unacceptable, as UK citizens and residents would have no representative. Sending “nominated MPs from the UK, rather than directly elected MEPs” (Sharpston) would breach Art. 14(3) TEU, whereby the European Parliament is elected “by direct universal suffrage”. It is also impossible “to extend the mandates of the UK MEPs who have already been democratically elected and who have been sitting in the current EP” (Sharpston). It is true that current members of the Parliament have been elected “ by direct universal suffrage in a free and secret ballot” in 2014 (Barnard and Weatherill). However, the members of the EU Parliament are elected “for a term of five years” (Art. 14(3) TEU): it is unclear how one may extend this term without violating the Treaties.
It has been suggested that Article 50 TEU may offer a way out. According to Sharpston, Article 50 TEU is the “mirror provision” of Article 49 TEU (dealing with accession to the EU). Article 49 TEU permits the introduction of “adjustments” to EU Treaties via accession agreements, including adjustments relating to European elections. It would stand to reason that its “mirror provision” – Article 50 TEU – should enable similar “adjustments”. However, Article 49 TEU does not mirror Article 50 TEU. The former expressly allows for the introduction of “adjustments” via accession agreements, while the latter does not. And this for a good reason: accession agreements (Article 49 TEU) are ratified by the Member States – the same Member States that ratified EU Treaties and can consequently modify them. Withdrawal agreements (Article 50) are concluded by the European Union, which cannot modify its own Treaties.
This obstacle might perhaps be bypassed if Article 50 TEU allowed introducing modifications of EU Treaties via the Withdrawal Agreement. According to Barnard, “extending existing MEPs […] qualifies as a transitional arrangement” under Article 50 TEU; therefore, the Withdrawal agreement may enable extending the mandate of current Members of the European Parliament. I do not find this argument convincing. Article 50 TEU enables negotiating “arrangements for [a Member State’s] withdrawal” but extending the mandate of British MEPs can hardly be qualified as an arrangement for withdrawal. It is perfectly possible to ensure an orderly withdrawal of the UK without extending the mandate of British MEPs, either by completing withdrawal before 26 May 2019 or by holding European elections in the UK. It would take a considerable stretch of Article 50 to qualify a non-indispensable contra legem extension of the mandate of British MEPs as an arrangement for the withdrawal of the UK.
It would seem that, if negotiations were extended beyond 26 May 2019, the UK would have to participate in European elections. Nonetheless, there might be a partial exception to this general rule.
An Extension until 1 July 2019?
The first sitting of the newly-elected Parliament will be on 2 July 2019. It might therefore be hypothesised that the UK might withdraw from the EU after the elections (23-26 May 2019), but before the new Parliament starts operating. The European Commission reportedly contemplates the possibility of an extension until 1 July 2019. Such an extension might indeed be preferable to an extension to 22 May 2019, as it would ensure an extra month for “no deal” preparations or for approving the Withdrawal Agreement.
An extension until 1 July 2019 seems legally feasible, at least in principle. The UK’s failure to participate in European elections would be relatively harmless, as the UK would no longer be an EU Member State by the time the European Parliament starts operating. Moreover, UK nationals would no longer be EU citizens, and would therefore not require any representation in the Parliament. Though the UK’s failure to participate in European elections might be described as an interference with the fundamental rights of UK residents, the argument might be made that this interference pursues a legitimate objective: preventing British citizens from electing representatives in a Parliament that would never represent them (cf. Spaventa).
Although theoretically possible, an extension until 1 July 2019 would have significant shortcomings. In the first place, the 73 parliamentary seats of the UK may not be re-allocated to the other Member States. According to Art. 14(2) TEU, all Member States should be represented in the European Parliament. The EU can hardly deprive the UK of its seats as long as it is an EU Member State. From a legal perspective, it would be safer to pretend that the UK will participate in European elections and then tolerate its failure to elect any representative. The consequence, however, would be disheartening: 73 “empty chairs” in the European Parliament until 2024.
Secondly, the extension probably would be final. After 1 July, without UK MEPs the European Parliament might be “improperly constituted” (UK government). All acts of the Union that would be adopted with the participation of such an irregularly composed Parliament would possibly “be open to legal challenge on this ground” (European Commission). To be sure, the argument might be made that even an irregularly composed Parliament may be capable of functioning, as reportedly argued by the Parliament legal service; otherwise, any Eurosceptic government may paralyse the Parliament (and the EU), simply by refusing to participate in European elections. The fact remains that an irregularly composed Parliament would create legal uncertainty. As the EU Member States presumably intend to avoid such uncertainty, they are unlikely to accept any extension beyond 1 July 2019 – unless the UK participates in EU elections.
Thirdly, an extension to 1 July 2019 might make it difficult to stop Brexit. As acknowledged in Wightman, the UK has a right unilaterally to revoke the notification of its intention to withdraw. Faced with a Brexit cliff edge on 1 July 2019 – and the prospect of no further extension – the UK might decide to revoke its notification and remain an EU Member State. If the UK had not participated in European elections, however, this revocation would generate a conundrum: British citizens would have no representative in the European Parliament, but this Parliament would approve acts applicable in the United Kingdom. Again, the argument might be made that without UK MEPs the EP would be improperly constituted and Union acts might be open to legal challenge on this ground. Stopping Brexit before 1 July 2019 might thus increase, rather than decrease, legal uncertainty.
If the UK decides not to participate in European elections, any Article 50 TEU extension beyond 1 July 2019 would be impossible. An extension to 1 July 2019 may be legally possible but would create legal uncertainty and would, therefore, be inadvisable.
It is possible that EU Member States – which must unanimously approve any extension under Article 50 TEU – might condition such extension on the UK’s participation in European elections on 23-26 May. It would indeed be fitting if the Brexit process, which began with the mantra “no negotiation without notification” ended with another mantra: “no extension without election”.
Mauro Gatti has been a postdoc at the University of Luxembourg and the University of Bologna and will soon be a lecturer at The Hague University of Applied Sciences. He is also visiting lecturer at the University of Verona and the European Law and Governance School.