Extension of Article 50 and the European parliament elections: a guide for the perplexed

If the House of Commons refuses to approve Theresa May’s draft Withdrawal Agreement next week, the prime minister has promised that the House will have the chance to pass a motion calling on the government to seek a “short, limited extension” to the Article 50 period, and that the government will comply with such a motion. However, the prime minister went on to warn that “an extension beyond the end of June would mean the UK taking part in the European parliament elections” and that “a short extension—not beyond the end of June—would almost certainly have to be a one-off. If we had not taken part in the European parliament elections, it would be extremely difficult to extend again, so it would create a much sharper cliff edge in a few months’ time.”

What is the legal position lying behind those claims?

As to the mechanics of an Article 50 extension, the legal position is clear. An extension can be proposed by either the EU or the UK government: but it has to be agreed by the United Kingdom and by all the EU27. The requirement for unanimity opens up the possibility of a particular member state refusing to agree unless its particular concerns are addressed: the example of Spain and Gibraltar is sometimes given. There is no limit on the extension that can be agreed, and no block on repeated extensions. An extension could be agreed on the basis that it would come to an end with a particular event (say, the conclusion of a withdrawal agreement) rather than on a particular date. The Court of Justice of the EU has made it clear that, during an extension, the departing member state retains its right unilaterally to revoke its Article 50 notice.

Rather more complex is the interplay between extension and the holding of elections to the European parliament (EP).

First, we need to take a quick look at the law that governs EP elections. The right of all citizens of the Union to vote and stand in EP elections is set out in clear and unqualified terms in Article 39 of the Charter of Fundamental Rights: and Article 22(2) of the Treaty on the Functioning of the EU (TFEU) sets out the right of every EU citizen living in another member state to vote and stand in the EP elections in that state. EU law also requires elections to be held within a particular window—in 2019, 23rd-26th May—and for one of two types of proportional voting system to be adopted (either party list or single transferable vote). Subject to those constraints, member states can operate their own national law on issues such as voting age, voter registration, nomination requirements, arrangements for validation of the results, possibility of postal voting, what happens when seats fall vacant mid-term, whether voting is compulsory, and so on.

The other issue we need to look at is the numbers of MEPs per member state. Article 14(2) of the Treaty on European Union (TEU) lays down a total limit of 751 MEPs, that no member state can have fewer than six MEPs and that none can have more than 96. (That limit was briefly exceeded, by virtue of a specific provision in Croatia’s Accession Treaty, when Croatia joined in the middle of the 2009-2014 term.) The current allocation is set out in a 2018 Council decision. That decision makes its “Plan A” allocation on the assumption that by the time of the 2019 EP elections the UK will no longer be a member state. But it makes an express “Plan B” provision that “in the event that the United Kingdom is still a member state of the Union at the beginning of the 2019-2024 parliamentary term, the number of representatives in the European parliament per member state taking up office shall be the [previous 2014-2019 allocation] until the withdrawal of the United Kingdom from the Union becomes legally effective.”

Against that background, we can check the legal accuracy of the prime minister’s claims.

The first, implicit, claim is that an extension to 30th June would not require the United Kingdom to participate in EP elections. The basis of that claim is that the EP does not meet until 1st July 2019. It is then argued that, since the UK would cease to be a member before then, it must be possible to read into the apparently clear and unqualified provisions of Article 39 of the Charter and Article 22(2) TFEU an implicit qualification that EU citizens do not have the right to vote and stand in EP elections, in a state which will cease to be a member before the EP actually meets.

That claim is perfectly arguable: it is a commonplace of the law (including English as much as EU law) that apparently unqualified legal rules can be found to have qualifications where they would otherwise produce bizarre or morally outrageous results—and it would be argued that holding EP elections when none of those elected would ever take their seats would be a bizarre waste of public money. But it is not a copper-bottomed claim: it might be pointed out in response, for example, that a further extension is entirely possible, so that it cannot just be assumed that the elected MEPs would never sit. So the claim that an extension to 30th June would not require the United Kingdom to participate in EP elections is plausible, but not certain. And anyone seeking to test the point would be able to take the UK government to court in the UK, pointing to their rights under EU law, and seeking a declaration that elections had to be held.

The next claim is that an extension granted now and lasting beyond 30th June would require EP elections to be held in the UK. That is, so far as certainty is possible, certainly right. While the UK is a member state and while there is a sitting EP, Article 39 and other requirements of EU law give the UK no choice but to hold EP elections: and if it does not do so, the UK courts would be required, given the supremacy of EU law, to order them to be held. And if that longer extension were granted, the Plan B provision in the Council decision kicks in and each member state (including the UK) sends the current number of MEPs—with member states left to decide how to fill their extra seats once the UK leaves (either by bye-elections or by filling up the seats with the next few candidates on the original results list).

The final claim is that an extension to 30th June would be “extremely difficult to extend again.” Let us assume that an extension to 30th June is then extended to, say, December 2019. The UK would then, on any view, be under an immediate obligation to fill its 73 seats, and to organise elections to do so. It has been suggested that the EP would not be validly constituted until that was done: but that seems to me to be unlikely. After all, any member state could find, a month after the results, that its elections were invalidated by its own courts as a result of, say, a fundamental flaw in their organisation. It would be odd if that eventuality—always possible in democracies subject to the rule of law—meant that the EP could not meet at all. And failure to have held elections at all is, really, just an extreme failure of organisation.

It would then also be clear that the correct allocation of MEPs per state was the Plan B allocation.  But that leads onto to the real problem which is, however, an essentially political one: that most other member states would, at that point, find that they had elected “too many” MEPs (the Plan A allocation). It would be for national law to determine which MEPs had to stand down until the UK finally left: but the legal position in some states might be messy and the political difficulties in telling candidates that that thought they had been elected that they had to return home can easily be seen. The possibility of a quick fudge (leaving the 751 Plan A MEPs in place while adding 73 UK MEPs) is ruled out by Article 14(2) TEU.

To sum up: the PM is probably, but not certainly, right to assume that an extension to 30th June would not require the UK to hold EP elections; almost certainly right that an extension granted now for a longer period would require the UK to hold EP elections; and right about the difficulty of a second extension only if that is understood as a political, rather than a legal, claim. Whether you think that holding EP elections in the current state of UK politics is a good idea probably depends on your political views. But it is worth noting that the fact it would be a PR election to a parliament that has never mattered much to the average UK voter, inevitably opens up the possibility that the major two parties, neither of which would find it easy to produce a manifesto uniting their ranks, would be pushed aside as the elections turned into a battle between Leave and Remain options (which would doubtless appear, one way or another, on the ballot paper).