Professor Eleanor Spaventa, Bocconi University

The UK’s political climate surrounding Brexit is highly unstable. Prime Minister May’s strategy of delaying a decision may or may not work, but it seems to have created a situation where extending Article 50 of the Treaty on European Union is unavoidable. If Parliament approves the Withdrawal Agreement this week, the UK will need more time to implement the necessary legislation before leaving the EU.

If Parliament rejects the agreement, the UK will require an extension to either plan for a no-deal exit or reassess its future. However, the EU’s constitutional framework restricts the available choices and adds to the political uncertainty. The key question is whether the UK must participate in European Parliament elections if it remains in the EU past May 23rd. While holding elections poses symbolic and political challenges for the government, even a short extension might require more time for the UK to pass all the necessary laws.

The European Commission appears to believe that the UK can only secure an extension beyond May 23rd if it participates in the EP elections. This stance is based on a straightforward but strong premise: EU citizens have a Treaty-protected right to vote in European Parliament elections, and as long as the UK remains a member, this right extends to its citizens and EU citizens residing there.

However, some respected EU law experts argue that an extension until the end of June could be possible without affecting the newly elected European Parliament’s legitimacy. This perspective was also presented in a legal opinion to the European Parliament. However, focusing solely on the Parliament’s legitimacy misses a crucial point: democracy is more than just institutional balance. If that were the case, there would be nothing stopping any Member State or the EU from extending their Parliaments’ terms beyond the mandated period. If one Member State could bypass EP elections due to internal political issues, why not others? Therefore, the idea of the UK remaining an EU member while denying its citizens and resident EU citizens the right to vote in EP elections seems fundamentally incompatible with a rules-based system. This legal impossibility is supported by the Treaties, the Charter, and the European Convention on Human Rights, which bind the UK and all other Member States.

Current Legislation on EP Elections

Article 14(3) of the Treaty on European Union (TEU) states that members of the European Parliament are elected for five years by direct universal suffrage. Article 20(2)(b) of the Treaty on the Functioning of the European Union (TFEU) grants every EU citizen the right to vote and stand for election in their resident state under the same conditions as nationals. In the Delvigne case, the Court of Justice clarified that EU law governs EP election voting rights, even for a country’s citizens. Consequently, the Charter of Fundamental Rights applies. The Court determined that depriving citizens of their right to vote is a restriction on the right granted by Article 39(2) of the Charter and must be justified under the conditions outlined in Article 52. Therefore, any limitation on voting rights must be legally established (requiring a new Act in the UK, as no provisions exist for EP elections currently), justified by a recognized EU public interest, necessary for achieving that interest, and proportionate. Disenfranchising an entire nation would not meet these criteria: identifying a public interest served by such action would be challenging (unless preventing the Conservative Party’s collapse qualifies). Additionally, disenfranchisement would be neither proportionate nor necessary to ensure withdrawal.

Moreover, rights guaranteed by the Charter cannot be weaker than those provided by the ECHR. In the Matthews case, the European Court of Human Rights stated that Article 3 of Protocol 1 of the ECHR, the right to free elections, applies to the European Parliament. Therefore, Member States are obligated under the Convention to ensure voting rights and uphold fundamental democratic principles. This is why the UK violated its ECHR obligations by denying voting rights to citizens in Gibraltar, who were not eligible to vote in EP elections at that time.

If the UK pursues an extension, it will remain an EU Member State, bound by the Treaties, the Charter, and the ECHR, both as an EU and Council of Europe member. Therefore, it seems that under both EU and ECHR law, the UK cannot disenfranchise its citizens.

Barnard and Weatherill, along with Advocate General Sharpston, propose extending the mandate of current British MEPs to address the democratic concern. However, this suggestion contradicts the Treaty and undermines the core principles of democracy – extending terms is a tactic often employed by dictatorships. Their argument that these MEPs, democratically elected in 2014, can continue representing British citizens beyond the current Parliament’s term without seeking a new mandate is unconvincing. Not only is this possibility absent from the Treaties, but the electorate has changed over the past five years. Extending MEPs’ terms would disenfranchise those who have reached voting age during that time. Even if EU law permitted such a temporary arrangement through a Treaty derogation, as Advocate General Sharpston proposes, it would still violate Article 3 of Protocol 1 of the ECHR.

While avoiding Brexit-related chaos is desirable, the ends do not justify the means in this situation. Disenfranchisement is unlawful and undermines the fundamental principles of democracy, rule of law, and fundamental rights protection upon which the EU is built. Furthermore, according to the Wightman ruling, the UK can revoke its Article 50 notice at any point until the Withdrawal Agreement takes effect or the UK exits due to the passage of time. As the Court clearly stated, the UK remains a full EU member until then – even during an extension – and its citizens remain subject to all EU rules and retain all rights granted by the Treaties.

Allowing the UK to remain an EU member without participating in EP elections would be unlawful and dangerous, particularly in the current political climate. Brexit is already detrimental enough without being allowed to erode the very values the EU struggles to uphold.

Barnard & Peers: chapter 3, chapter 27

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