The UK Government and the EU have agreed a third extension of the Article 50 period. The latest extension was confirmed on 29 October, two days before the scheduled Brexit deadline of 31 October.

This Insight discusses how the decision was reached, what was agreed, and implications for the UK’s ongoing EU membership.

How was the extension agreed?

The Prime Minister sent a letter to the European Council President on 19 October requesting an Article 50 extension until 31 January 2020. This was in accordance with the provisions of the European Union (Withdrawal) (No. 2) Act 2019 – also known as the ‘Benn Act’.

On 28 October the European Council President Donald Tusk announced that the European Council had agreed to the UK request to extend the Brexit deadline until 31 January. The Prime Minister wrote to President Tusk on 28 October to confirm the UK’s agreement to the extension. Again, he was obliged to accept an extension to 31 January under the ‘Benn Act’.  

Read: The Benn-Burt Bill: Another Article 50 extension?

The previous decisions to extend Article 50 (on 21 March and 10 April) were approved at meetings of the European Council. This decision was formalised by a ‘written procedure’ in the European Council. The official ‘European Council Decision’ was confirmed on 29 October.

New Brexit deadline agreed, but the UK can leave earlier

The European Council Decision extended the Article 50 period until 31 January. But it also provides for the UK to leave the EU earlier than this date if the Withdrawal Agreement (WA) is ratified by both the UK and EU. It specifies three dates on which the WA could come into force (the day after UK withdrawal) provided that the respective ratification procedures have been completed in the preceding month. These are:

  • 1 December 2019
  • 1 January 2020, or
  • 1 February 2020.

The previous decision to extend Article 50 on 10 April also provided for the possibility of the UK leaving the EU earlier, if the Withdrawal Agreement (WA) was ratified. This possibility is in any case clearly indicated in Article 50 (3) TEU which states that the EU treaties will cease to apply to the withdrawing Member State, “from the date of entry into force of the withdrawal agreement” or “failing that” the end of the Article 50 period.

A revision to Article 185 in the revised WA on 17 October also provides that it can enter into force either at the end of the Article 50 period or the first day of the month following ratification. Both possibilities are dependent on both the UK and EU completing their respective ratification procedures and notifying the Secretary-General of the Council.

The UK’s continuing rights and obligations as a Member State

The preamble to the European Council Decision and the accompanying Declaration are similar to the April 2019 European Council Conclusions and Decision on the previous extension. They stress that the extension cannot be used to undermine the regular functioning of the EU. The UK has a commitment to “act in a constructive and responsible manner” within the EU in accordance with the duty of “sincere co-operation.” The UK will also “refrain from any measure which could jeopardise” the attainment of the EU’s objectives.  The Decision also reaffirms the UK’s right to revoke its Article 50 notification “at any time”.

As with the previous Decision, it also states that the extension “excludes any re-opening of the Withdrawal Agreement.” This exclusion of course did not hold in practice last time.

The UK is obliged to suggest a European Commission candidate

The Decision also refers to the UK’s obligation to suggest a candidate for appointment to the European Commission. The Government previously stated that it would not nominate a UK Commissioner on the basis that the UK was scheduled to leave the EU on 31 October and the new European Commission was due to take office on 1 November.

The European Council does have the power, under the TEU, to take a decision on the number of European Commissioners, but it has not chosen to depart from the principle that there should be one Commissioner per Member State.  

Nominees for the European Commission need to be agreed by Commission President-elect Ursula von der Leyen and the Council of the EU. Individual nominees are questioned by relevant European Parliament Committees. Finally, the whole Commission is put to an approval vote by the European Parliament. This process was supposed to be completed by the end of October. However, it has been delayed after European Parliament Committees rejected three of the nominees.

The delay means that the appointment and scrutiny process for a UK Commissioner could be undertaken in time to catch up with the other pending nominations and for a European Parliament vote on the full Commission later in the year. If a UK nomination is made too late to catch up with this process, then the nominee will still need to be agreed by the Commission President and Council and will be subject to the relevant European Parliament Committee hearing.

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.

Image: British and European flags in front of the Berlaymont building by Lieven Creemers. Copyright: European Union, 2016 / image cropped. Source: EC – Audiovisual Service.