The EU Should Insist on a Long Extension of Article 50
Nicolai von Ondarza (SWP)
After the renewed rejection of Theresa May’s withdrawal agreement and the symbolic rejection of a No-Deal-Brexit, the question of the extension of the exit process is now the main focus of the Brexit drama. On Wednesday, 20 March, Theresa May has formally requested a short, three-month extension. Despite this and other attendant risks, the EU-27 should only accept a long extension of at least 9 months.
Theresa May has deliberately led Britain to the brink of the Brexit cliff. After two rejections of her withdrawal agreement, the House of Commons has now called for an extension of the process. A recent warning from the House’s Speaker, John Bercow, has thrown into doubt whether a third meaningful vote could be held before the deadline. This also puts the EU-27 in a new dilemma: Legally it is possible without restrictions to extend the exit negotiations with the UK. This requires a unanimous decision by the Heads of State and Government of the EU-27 and the approval of the British government. Politically, however, there are two major concerns from the EU-27’s point of view: on the one hand, at this stage it is completely unclear what purpose an extension would have and whether the UK can commit to a process to resolve the Brexit deadlock. The many votes in the Commons have shown that the problem is not a lack of time, but a lack of majority support for one of the Brexit options.
On the other hand, the European elections on 23-26 May represent a political hurdle. If Britain is still a member of the EU at that time – with all its rights and obligations – the EP elections would have to be held there. An extension of the Brexit process until 30 June 2019 without European elections in the UK is discussed in London with reference to the fact that the new European Parliament will not meet until 2 July. But this would not only deprive the British of their right to vote, but also citizens of other EU states living in the United Kingdom. Complaints before the European Court of Justice would be inevitable. This conflict gives rise to three options for a Brexit extension.
A short extension only under one condition
The first option would be a short extension with no clear long-term perspective, to allow better preparation for a no deal Brexit. This would be particularly necessary for the United Kingdom. According to the UK government, one third of critical systems are not yet ready for a No-Deal-Brexit. Also, important laws for the management of a no deal Brexit, for example to govern independent trade or agricultural policy, have not yet passed parliament. The situation is different in the EU. Since the negative votes in Westminster, preparations for the no deal scenario have been intensified and all necessary legislation has been introduced at EU and national level. A No-Deal-Brexit would hit the UK particularly hard, but also the EU including of course Ireland. But the EU regards itself to be as ready as it can be, while only a minimally longer preparation period would not mean any relief. On the contrary: for European companies that have prepared as far as possible for a potential no deal exit on 29 March 2019, a postponement would cause additional costs. The EU should therefore not accept a short but blind extension.
The second option is a short technical extension to allow for the current deal to be implemented: Should Theresa May, contrary to expectations, get a majority for the present withdrawal agreement in the next week, the EU-27 could agree to a short technical extension until mid-May – but only until then. An orderly Brexit by the target date, 29 March 2019, is no longer possible. Even if the British MEPs have given their assent, formal approval of the agreement by the European Parliament and the Council of the EU is still required. In addition, further implementation and accompanying legislation must be put in place in the UK. If, and only if the House of Commons has accepted the withdrawal agreement should the EU-27 accept a short extension of four to six weeks without hesitation.
An opportunity for a fresh start
But what should the heads of state and government of the EU-27 do if, as now seems most likely, Theresa May comes to Brussels without the withdrawal agreement being accepted, but with a request for extension? Rejecting the request would do serious harm to the EU, as it would have to take large parts of the responsibility for having pushed the UK over the no deal Brexit cliff. The better answer would be to agree to an extension only if it lasts at least until the end of the year. Such an accommodation should be subject to the condition that the European elections are held in the UK and that there is no renegotiation of the withdrawal agreement.
This third option would be a major risk, but it would also have important advantages: The risk is that the UK will remain a member of the EU with all its rights and obligations during this extension. It would not only have to take part in the European elections; the new 73 British MEPs would also have a say in the future Commission, as would the British Prime Minister in the European Council.
This risk must be weighed against the EU’s great interest in achieving an orderly Brexit. Only a long extension of at least nine months provides the necessary time to resolve the political deadlock in London other than through a no deal Brexit. The experiences of recent weeks have shown that neither Theresa May nor the British Parliament in its current composition are in a position to achieve an orderly Brexit with the EU. The British political elite has also proved incapable of reaching a cross-party compromise. Only the people can resolve this deadlock through new elections and/or a second referendum.
With the conditional offer of a long extension, the EU-27 would show both a willingness to compromise and the necessary harshness. Willingness to compromise, because they clearly signal that the EU is open for an extension, so that it would be British politicians that condemn Britain to a No-Deal-Brexit. But the EU-27 would also confront the UK with a harsh choice, in that accepting EP elections in the UK would require a strong commitment by the UK government and the Commons to reject no deal and work towards a different outcome.
Rewarding risk
In the confused Brexit process, there are no easy options for the EU-27 either. The temptation to slam the door in the face of the British, who are always negotiating with themselves and demanding new special arrangements, or to grant them only an extension by a few weeks, is great. The better solution is an extension until at least the end of the year. While this would not avert the risk of a later no deal Brexit completely, it offers at this stage the only opportunity for a different course than a no deal Brexit.
This is the translated and updated version of the article “Wie die EU Bewegung in den Brexit Prozess bringen kann” first published at SWP on 15 March 2019.
Dr. Nicolai von Ondarza is Deputy Head of the EU/Europe Division at the German Institute for International and Security Affairs (SWP), where he consults the German government and Bundestag on EU institutional issues as well as British and Irish EU politics. Recent publication include “Dancing on the Brexit Cliff Edge” and “Europe’s Take on Brexit”. He tweets at https://twitter.com/NvOndarza.