With just over a week to go to the scheduled Brexit day, EU heads of government agreed an extension of the Article 50 period at the European Council meeting on 21 March, delaying Brexit until at least 12 April. This is, in effect, a ‘flextension’ with an extension to 22 May agreed if the House of Commons approves the UK-EU Withdrawal Agreement this week. A longer extension  is possible if there is a shift in the UK position and the UK participates in the European Parliament elections on 23-26 May.

What did the EU agree?

The European Council Conclusions, issued close to midnight on 21 March, explained that the EU27 leaders (meeting without the UK)  agreed to extend Article 50 until 22 May 2019, provided that the Withdrawal Agreement is approved by the House of Commons this week. However, in the event of the Withdrawal Agreement not being approved, the European Council agreed to an extension until 12 April, by which point it said it expects the UK, “to indicate a way forward before this date for consideration by the European Council.”

A letter from the UK Permanent Representative to the EU to the President of the European Council Donald Tusk on 22 March, confirmed that the UK had agreed to the European Council decision on extending Article 50.

What did the UK ask for?

The agreement on 21 March differed from what the Prime Minister asked for in her letter to the President of the European Council the previous day.

In her letter to Donald Tusk on 20 March, Theresa May requested an Article 50 extension until 30 June 2019. She said she intended to hold another Commons’ vote on the Withdrawal Agreement as soon as possible and that the extension would be required to pass legislation to implement it. On 14 March, the Government indicated in a House of Commons debate on extending Article 50 that if the Withdrawal Agreement had not been approved by 20 March, there would be the prospect of seeking a longer extension requiring UK participation in the European Parliament elections on 23-26 May.  

Mrs May’s letter to President Tusk however asserted that she did “not believe that it would be in either of our interests for the UK to hold European Parliament elections,” and it did not include a request for a longer extension if the Withdrawal Agreement was not approved.

Why were these dates chosen?

The UK request for an extension to 30 June was based on the view, which appeared to be supported in some EU documents, that UK participation in the European Parliament (EP) elections could be avoided as long as the UK had left the EU by 2 July, when the new parliament sits for the first time.

However, advice from the European Commission warned of the risk of a scenario whereby the UK sought a longer extension after 23 May or decided to revoke Article 50, without having representation in the EP and with some of the UK’s seats having been reallocated to other Member States.

EU legislation reallocating some of the UK’s seats in the European Parliament to other Member States is due to come into effect provided the UK has left the EU by 2 July. The European Commission advised that any Article 50 extension should be limited to the date of the elections if the UK was not taking part. The elections would then take place with the new allocation of seats applying. The Commission said that an Article 50 extension beyond 23 May would require the UK to participate in the elections with the current allocation of EP seats continuing to apply.

EU leaders had previously indicated that if the Withdrawal Agreement had not been approved and the UK had presented no other credible justification for an Article 50 extension, then an extension would not be granted, making an exit with no deal a likely scenario. Although not explicitly requested in the Prime Minister’s letter, the EU however agreed to a short unconditional extension to 12 April. This would give the UK additional breathing space to consider its options or postpone the cliff-edge to ‘no deal’ for another two weeks.  

The date of 12 April also reflects the need for some Member States to have certainty by mid-April as to whether the UK is remaining in the EU for a longer period (and therefore participating in EP elections) given that some of the UK’s EP seats will be reallocated to them and they will need to prepare accordingly. 12 April is also the date by which returning officers in the UK would need to publish notice of the EP elections.

What happens next?

In his remarks following the European Council on 21 March, President Tusk held out the possibility of a longer extension being agreed beyond 12 April if the Withdrawal Agreement had not been approved and the UK decided to participate in the EP elections.

He said the UK Government will then have, “a choice of a deal, no-deal, a long extension or revoking Article 50.” EU leaders have previously stated that a longer Article 50 extension would require a new event, new political process or deep political change in the UK.  

In her statement following the European Council meeting, Theresa May said that if the Withdrawal Agreement was not agreed, the UK “would either leave with no deal, or put forward an alternative plan.”

Further reading

About the author: Stefano Fella is a senior researcher in international affairs and defence at the House of Commons Library, specialising in Brexit.