Professor Steve Peers, University of Essex*

*This blog post was updated after the official decision extending EU membership was approved.

With the Brexit deadline of March 29th approaching and no approval for the proposed withdrawal agreement, the European Council convened and agreed to extend the UK’s EU membership on March 21st. The UK formally accepted the extension on March 22nd. This raises several legal questions regarding extending EU membership.

EU Law Considerations

The extension decision states:

If the House of Commons approves the Withdrawal Agreement by March 29, 2019, the period provided for in Article 50(3) TEU is extended until May 22, 2019.

If the House of Commons does not approve the Withdrawal Agreement by March 29, 2019, the period provided for in Article 50(3) TEU is extended until April 12, 2019. The United Kingdom will indicate a way forward before April 12, 2019, for consideration by the European Council.

If the House of Commons approves the withdrawal agreement next week, there’s an extension until May 22nd to finalize the details. If not, a shorter extension until April 12th applies, with the UK outlining its next steps beforehand.

The legal basis for this is Article 50(3) TEU, which states that a withdrawing Member State:

“The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”

Unanimity still applies even with abstentions (Article 235 TFEU), and the European Council can act through written procedure if needed (see its Rules of Procedure). It logically follows that the Member State concerned must agree to the extension decision’s text, especially the extension’s length – which is what occurred. The European Parliament and national parliaments have no formal role, but their opinions might have influenced the decision. Article 50(3) doesn’t specify whether multiple extensions are possible.

During this extension, the UK retains the same rights and responsibilities as a Member State, including the right to revoke its intention to leave unilaterally (see the CJEU’s Wightman judgment; preamble clause 10 confirms this). This is consistent with two previous CJEU rulings, where the Court affirmed the UK’s full Member State status throughout the two years after notifying its intent to leave. In essence, membership is membership. However, the EU can attach political conditions to its extension decision, like those in the current decision. Claims that the EU would demand large sums or the abolition of opt-outs for an extension were inaccurate. 

This raises a specific question: would the UK have to participate in the European Parliament elections scheduled for May 23-26? This wouldn’t apply if the extension ends before May 22nd. Arguably, it might also not apply if the extension lasts until June 30th, as the new European Parliament would only assume office after that. However, this is debated (see the recent EU room document on extension, Wednesday’s Commission paper, and the contrasting views of Professors Barnard and Weatherill, Professor Spaventa, and UK’s CJEU Advocate-General Eleanor Sharpston). The European Council concluded that membership after May 22nd requires holding EP elections, and set April 12th as the last decision date for the UK, as reflected in the decision’s preamble (clause 10).

An extension beyond June 30th would put the UK in breach of its obligation to hold EP elections unless a special exception is granted. This is because the Treaties mandate five-year electoral terms, with a Council decision setting the election dates. Amending both the Treaties and the basic law on EP elections requires unanimous national ratification. Article 50 doesn’t mention granting exceptions from EU law, except for the departing Member State’s absence from discussions concerning its departure. While new Member States have temporary exceptions from electing MEPs, they fall under Article 49 TEU, which deals with accession and explicitly allows treaty “adjustments.” The conclusions didn’t specifically address the elections issue, despite appearing in an earlier draft.

Would the EP (and the new Commission it appoints) be acting illegally if the UK hadn’t elected MEPs on time? The EU courts addressed a similar question regarding the Santer Commission, which resigned irregularly and wasn’t immediately replaced. The British Airways judgment determined that the Commission’s actions during that period weren’t illegal. A similar situation occurred briefly when the Lisbon Treaty came into force a month before appointing a new Commission with fewer Commissioners in 2009. The new Commission was appointed after a short delay, with the previous Commissioners staying on briefly.

If the UK holds EP elections later, say in September, appointing a new Commission or enacting new EU legislation might be delayed. (A new EP takes time to impact legislation significantly, as much proposed legislation is finalized before the outgoing EP dissolves). However, the number of MEPs per Member State might complicate matters (see the relevant European Council decision).

UK Law Considerations

To change the ‘exit day’ in Westminster legislation, secondary legislation – a statutory instrument approved by Parliament – is required under s 20 of the EU Withdrawal Act. A Statutory Instrument could be tabled next week. (The UK doesn’t need new laws for EP elections, as the repeal of relevant legislation hasn’t begun). If an extension is adopted without changing the ’exit day’ definition in the UK, it’s argued that this doesn’t mean a no-deal Brexit, but rather the UK remaining in the EU without a domestic legal framework for EU law. However, this could be quickly rectified. (Updated March 24th: see also Professor Mark Elliott’s post on this, and Brexit minister Lord Callanan’s reply).

Beyond the direct legal issues of extension, next week will likely see crucial votes on the UK’s immediate and future relationship with the EU. Only time will tell how these votes indirectly affect the length and circumstances of the UK’s extended EU membership – especially whether the UK government and parliament can agree on a path forward if the withdrawal agreement isn’t approved.

Barnard & Peers: chapter 27

Photo credit: archdaily.com