The Composition of the 2019-24 EU Parliament – Challenges in Light of Brexit
Rebecca Schmidt (Dublin City University)
The decision by the European Council to grant a further extension under Article 50 (3) TEU to the UK’s withdrawal from the EU will impact the EU Parliament in unprecedented ways. One crucial factor for this impact is that the Council granted an extension beyond 1 June 2019 only under the condition that the UK will participate in the EU Parliamentary elections (https://www.consilium.europa.eu/media/39042/10-euco-art50-conclusions-en.pdf). Participation was recently confirmed by the UK government (https://www.bbc.com/news/uk-politics-48188951). As a result of these decisions the composition of the Parliament will adapt to accommodate a prolonged UK membership, creating some novel challenges:
The Composition of the EU Parliament and Post-Brexit Adaptations
The general rules regarding the composition of the European Parliament can be found in Article 14 TEU. Article 14 (2) TEU stipulates that the Parliament of the European Union shall consist of a maximum of 750 representatives plus the President. Article 14 (2) TEU also requires that “representation of citizens shall be degressively proportional, with a minimum threshold of six members per Member State”, whereby no “Member State shall be allocated more than ninety-six seats”. The allocation of seats among the Member States is furthermore supposed to reflect demographic developments. The details of the final composition are decided by the European Council on a proposal of the European Parliament, and with the latter’s approval. In the parliamentary term 2014-2019 seats in the European Parliament are allocated as follows:
Parliament consists of a total of 751 MPs originating from 28 Member States. The highest number of MPs – 96 – were elected in Germany, which is also the most populous country in the Union. France, Italy and the UK are sending the second highest number of MPs (74, 73 and 73). Estonia, Cyprus, Luxembourg, and Malta are currently sending the minimum number of 6 MPs; other countries are in between, for instance, Ireland sends 11 MPs, Greece 21, and Poland 51 (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32013D0312).
On 28 June 2018 the European Council took stock of the decision of the UK to leave the EU and decided to lower the number of representatives from 751 to 705 for the new 2019-2024 parliamentary term (https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32018D0937). Lowering the number of representatives by 46 is supposed to reflect the lower total population of the Union after Brexit and will make room for potential new Member States. However, as the UK is currently sending 73 representatives, this decision also means that 27 seats will need to be reallocated in line with the rules outlined by Article 14 (2). For this reason, Council Decision 2018/937 stipulates that 14 Member States will be assigned a higher number of representatives. Thus, for instance, the number of MPs from Ireland will rise from 11 to 13; the number from France will increase from 74 to 79; the number of German MPs, on the other hand, will stay the same, as Germany is already sending the maximum number (https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32018D0937).
Current Arrangements in light of the Extended Withdrawal Period
As the latest Brexit extension will likely take effect after 1 June 2019 the UK will have to participate in the EU parliamentary elections. As a result, we will witness significant consequences for the incoming 2019-2024 EU Parliament. First and foremost, UK participation will require a return to the old allocations of seats applied in the 2014-2019 term. In fact, the Council in its 2018 Decision establishing the new composition of the European Parliament envisaged this scenario by stating in Article 3 (2): (https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32018D0937).
However, in the event that the United Kingdom is still a Member State of the Union at the beginning of the 2019-2024 parliamentary term, the number of representatives in the European Parliament per Member State taking up office shall be the one provided for in Article 3 of the European Council Decision 2013/312/EU until the withdrawal of the United Kingdom from the Union becomes legally effective.
Thus, Parliament will continue to be composed of 751 MPs (instead of 705), 73 of which will be elected in the UK. As a result, the 14 Member States which would have received additional seats, will not be able to send the new higher number of representatives (e.g. the number of MPs from Ireland will remain 11 instead of 13).
However, according to Article 3 (2) of Council Decision 2018/937 this composition will be reversed again once Brexit takes effect. In this scenario the MPs elected in the UK are to leave the EU Parliament. The total number of MPs will be lowered to 705 and the 14 EU Member States which would have received extra seats had the UK exited before May will fill up the additional 27 spots according to the rules outlined above.
Consequently, Member States which are supposed to send one or several of the additional 27 MPs do need to accommodate for this in their electoral laws. In fact, a number of Member States have already done so. Ireland’s European Parliament Elections (Amendment) Act 2019, for instance, envisages the scenario of a prolonged Brexit transition period. It includes a clause that allows to postpone the accession of the two additionally elected MPs to the EU Parliament until the Brexit issue is resolved (https://data.oireachtas.ie/ie/oireachtas/act/2019/7/eng/enacted/a0719.pdf). Similar provisions were made in other Member States affected by European Council Decision (EU) 2018/937, such as France, Spain or Poland.
Legal and Political Challenges of the Current Arrangement
As can be seen above, the current arrangements for the 2019 EU Parliamentary Elections have two central effects: A suspensive effect for those incoming MPs, who will only be able take up their mandates once those are freed by the UK MPs after Brexit; and a resolutive effect for UK MPs who will be elected into the new Parliament but are supposed to vacate their seats after Brexit has taken effect. Both effects come with unique legal and political challenges:
Brexit’s Suspensive Effect:
In total 27 MPs will be elected but will not be able to take up their mandate at the start of the new parliamentary term in June 2019. They will be retained from entering the parliament until the UK leaves the EU. Rights and obligations as representatives are not applicable to them. This causes logistical as well as potential constitutional challenges. Apart from logistical issues, which were addressed above, two concerns emerge in particular:
- Is it possible from a constitutional law perspective to elect MPs based on a suspensive condition?
Here it is important to reiterate that MP status for these 27 representatives is conditional. They will receive their mandates if the suspensive condition – Brexit – occurs. It is important to note that most parliaments foresee the possibility of MPs joining at a later stage in cases where the originally elected MP is no longer able to fulfil his/her mandate. Regarding the EU Parliament, national legislation regulates such successions. In Ireland, for instance, parties or independent candidates provide a so-called replacement candidates list, from which a substitute is taken. There is, however, a qualitative difference between such procedures and the case at hand. The 27 candidates under discussion are elected, even though for a later stage of the parliamentary period. Given the nature of a suspensive condition, and the uncertainty around the Brexit negotiations, this later stage might never materialize. Nonetheless, it appears that because these MPs will not take up their mandate until after Brexit has taken effect, no rights and obligations will be allocated to them. Thus, the Brexit condition will therefore not interfere with any rights linked to their mandate.
- Is the conditional election in line with the constitutional requirements of the electoral process?
The 2019 parliamentary election provided the novelty of a partially conditional election. The materialization of people’s vote will depend on an outside factor – Brexit. This is a highly unprecedented approach and it is unclear whether this procedure has any impact on the credibility and the trust in the electoral process, and ultimately the functioning of the EU Parliament. Yet, as the EU and its Member States have taken legislative measures to regulate the problem, this albeit novel procedure will be based on legal grounds. Furthermore, even though the current regulations are unprecedented they stand in clear analogy to the more common procedure of naming substitute candidates. Taken together, it appears that this unique conditional election does not violate general requirements of the electoral process.
Brexit’s Resolutive Effect:
What is most problematic about the current arrangement is the situation of the 73 UK MPs of the EU Parliament. As outlined above, they are supposed to leave Parliament after Brexit materialized. EU institutions, so far, seem to consider this a technicality, as Council Decision 2018/937 indicates. Thus, in essence, the Council as well as Member States envisage an automatic transition to the new parliamentary composition including an automatic termination of UK mandates. The question arises if and under what conditions the UK MPs can be required to give up their mandate and leave parliament before the regular termination of their mandates; since unlike the MPs on the waiting lists, their mandates will take effect immediately after the elections. Here a number of constitutional problems arise: Article 14 (3) states that the “members of the European Parliament shall be elected for a term of five years”. Should Brexit happen within the currently envisaged timeframe the UK representatives would not be able to fulfil this five-year mandate. Even more problematic is the fact that Article 14(2) TEU stipulates that the “European Parliament shall be composed of representatives of the Union’s citizens”. It does not stipulate that MPs represent citizens of their respective states but all Union citizens. Thus, the mandate of the UK MPs encompasses more than a representation of UK interests, which after Brexit would become obsolete. This broader mandate is further demonstrated by the fact that UK representatives are also elected by non-UK EU citizen as envisaged by Article 22 (2) TFEU, Article 39 EU Charter of Fundamental Rights, and Directive 93/109/EC (http://www.europarl.europa.eu/RegData/etudes/IDAN/2018/604961/IPOL_IDA(2018)604961_EN.pdf). It does therefore appear that an early termination of the 73 UK mandates is at odds with EU constitutional provisions.
Apart from these constitutional problems there is also a political one. Brexit and the envisaged changes in the Parliament’s composition will also affect the equilibrium between political parties. Thus, it is likely that once UK MPs leave, the political configurations of the EU Parliament will fundamentally shift. This is particularly challenging, since the incoming Parliament will, upon proposal by the Council, elect the new Commission (Article 17(7) TEU). If the political equilibrium alters after the Commission is elected, it is not guaranteed that these two organs can maintain a relation of confidence and trust.
As shown, the extension provided through the Council decision of 10 April 2019, might allow for some breathing space in the difficult exploration for the most viable Brexit route; at the same time, it is creating significant problems elsewhere.
Dr. Rebecca Schmidt is Assistant Professor at Dublin City University. She focuses on the emergence of transnational regulatory cooperation between public and private actors, and in particular the interplay between expertise-driven private regulation and more traditional political authority in multi-level transnational regulatory networks.