European elections and a longer extension to Article 50

Stefano Fella

The European Parliament (EP) elections are scheduled for 23-26 May 2019. The EU says the UK will have to take part if it is still an EU Member State when they take place, although others disagree. The Government has accepted the EU position and the Prime Minister is now proposing a further Article 50 extension that will enable the UK to leave the EU by 22 May.

What does the EU say?

On 21 March, the European Council agreed to delay Brexit until 12 April if the Withdrawal Agreement was not approved by the House of Commons but said it expected the UK to indicate “a way forward” by then. EU agreement on a further extension of Article 50 beyond 12 April would be possible, but only if the UK participates in the EP elections on 23-26 May.

A European Council meeting will be held on 10 April to consider any new UK Article 50 request. The EU has indicated that a longer Article 50 extension would require a positive majority for a credible alternative plan from the UK, as well as participation in the EP elections.

Some lawyers and MPs have continued to raise the possibility that a compromise could be found. They argue that an extension of the Article 50 period beyond 23-26 May without the UK taking part in the EP elections remains possible. But EU decision-making has reflected unease about the political and legal risks of enabling such a situation.

The EU wants legal certainty

The European Commission and the Council of the EU have warned of the risk of legal uncertainty arising if the UK is still a Member State but has not elected new MEPs when the newly elected EP sits for the first time on 2 July.

A Council document (obtained by the Financial Times) on 15 March warned that EU institutions would “cease being able to operate in a secure legal context,” in this scenario. It said that EU acts “adopted with the participation of an irregularly composed parliament would be open to legal challenge.” This would “put the security of legal relations in the Union seriously at risk, on a very large scale”.

European Commission advice (obtained by the Times) on 20 March warned that the failure to organise EP elections in the UK:

“could make the formal constitution of the new European Parliament illegal and this illegality would infect all its subsequent decisions, including the appointment of the new European Commission or our future EU budget. Every decision would be open to legal challenge.”

The opinion of the European Parliament’s legal service is however, that that the EP would be validly constituted even if the UK did not elect MEPs while still a Member State. As the leader of Labour’s MEPs Richard Corbett has pointed out, if this were not the case, a Member State could hold the EU to ransom by not taking part in the EP elections.

Although it is less than clear that EU acts would be illegal if a Member State had not elected MEPs, both the Commission and Council appear unwilling to risk any uncertainty on this point. The European Council appeared to follow their advice on 21 March.

A failure to hold elections in the UK would also mean that the UK would be in breach of EU treaty articles. The EU treaties give EU citizens the right to be represented in the EP and to vote and stand in its elections. There could, therefore, be a legal challenge from citizens deprived of these rights.

Member States need to know whether they are getting additional MEPs

The Council’s advice on 15 March indicated that an extension until 1 July would not be a problem given that the new EP does not sit for the first time until 2 July, but the Commission’s advice on 20 March warned of a possible scenario in which the UK decides to revoke Article 50 between 23 May and 1 July (or asks for another longer extension). By that point a previously agreed reallocation of the UK’s European Parliament seats would have been implemented.

EU legislation to take effect when the UK leaves the EU reallocates 27 of the UK’s 73 European Parliament seats to 14 other Member States. The Commission has advised that these Member States will need to know by mid-April whether they will be electing MEPs on the basis of the new allocation or not, in order to finalise election preparations. Returning officers in the UK will also need to publish notice of the EP elections by then if the UK is taking part.

If the UK changed its mind about Brexit beyond this point, the other Member States would need to change their election planning. If the elections had already taken place they might be faced with losing their additional seats. The number of European Parliamentary seats is capped at 751 by the Treaty on European Union (TEU). Unless the reallocation was reversed there would be only 46 seats left to give back to the UK.

Lawyers say a UK exemption from holding elections could be negotiated

A group of lawyers has suggested that some kind of derogation could be negotiated, possibly under Article 50 of the TEU. They argue this could be used as a legal basis to exempt the UK from participating in the EP elections. The basis of that exemption would be the UK’s status as a departing Member State.

The UK Advocate General at the CJEU, Eleanor Sharpston, has mooted a number of alternative plans. She suggested the possibility of extending the mandate of existing UK MEPs. Or allowing the UK to send nominated, rather than elected, MEPs. This was the practice prior to the first direct EP elections in 1979. The Advocate General referred to Croatia’s Treaty of Accession when it joined the EU. This included a provision that Croatia’s national parliament could send representatives to sit as MEPs until the next EP election, if it joined the EU within six months of the election. This provision was not used as Croatia joined a year ahead of the 2014 election and held a special EP election in 2013.

The former head of the legal service of the Council of the EU, Jean-Claude Piris disagrees. In his opinion, Article 50 does not have the same legal basis to do this as Article 49 TEU relating to accession to the EU. Under Article 49 TEU, Croatia’s Treaty of Accession needed to be ratified by all 27 Member States (and the Belgian regional parliaments).

On the question of allowing the UK not to participate in the EP elections, the Council document on 15 March referred to “speculations” about the possibility of allowing the UK to extend Article 50 without holding EP elections. It said that the “only way to do so would be a Treaty change” and that past experience showed that ratification by all Member States required at least two years. This meant that “this possibility is not feasible in practice”.

What does the EU say?

The EU wants legal certainty

Member States need to know whether they are getting additional MEPs

Lawyers say a UK exemption from holding elections could be negotiated

Further reading