Behind the Headlines

“UK can delay Brexit without holding Europe elections”, say lawyers

Written on 01/18/2019

What’s the story?

Elections for MEPs for the next five year mandate (2019-2024) are due to be held across Europe 23-26 May this year. However, as it looks increasingly likely that the two-year Article 50 period might be extended beyond March 29, there have been questions as to whether the UK would legally have to hold these elections if it is uncertain whether the UK will remain a member state. Read more in The FInancial Times here.

How reliable is it?

Reliable, but there are legal and political factors. There may be loopholes or special procedures that both EU & UK politicians could agree to avert the need for the UK to hold the elections in May, given the unprecedented political situation over Brexit. A key factor is whether any potential extension goes beyond 2nd July - the date at which the newly elected MEPs legally begin their new term of office.

What’s the background?

  • The EU treaties lay down that MEPs are elected to the European Parliament every five years. The next elections are scheduled for 23-26 May, with those elected taking their seats on 2 July 2019. Evidence  
  • Having notified the EU of its intention to leave the EU on 29 March 2017, the UK is scheduled, under Article 50 of the Treaty, to leave 2 years later: 29 March 2019 Evidence  
  • However, the two-year Article 50 period may be extended at the UK’s request if all the other 27 EU member states agree. Evidence (Paragraph 3)
  • The EU27 have indicated informally that they would be reluctant to extend the deadline in order to reopen negotiations, but would be willing to do so to give enough time for relevant legislation to be passed, or if time were needed for a UK general election or a second EU referendum. Evidence.
  • But there is much discussion about whether that means the UK must take part in the European Parliament elections if the extension goes beyond May. Evidence
  • If the Article 50 deadline is extended up to a date before the new EP first assembles on 2 July, then the legal situation would be that UK would (until possible further developments) be scheduled to leave before the new Parliament takes office, so would not need to participate in the May elections as it would at that point not be scheduled to have any MEPs.  Evidence
  • If Brexit were confirmed during that extended period, then the Withdrawal Agreement could be passed by the outgoing European Parliament, even after the elections, as, in law, current MEPs hold their mandate until 1 July 2019, so the outgoing Parliament could exceptionally be recalled in late June if required. Evidence (Article 5)
  • If the UK decided during that extension to remain in the EU, it would need to have catch-up elections as soon as practical as there is a Treaty obligation for UK citizens to be represented in the European Parliament. Evidence (Article 20)
  • If, instead, the Art 50 deadline were extended beyond 1 July, then the UK would be legally required to participate in the elections. Evidence
  • The EU legislation reallocating the UK seats has a clause postponing that reallocation (and enabling the UK to keep its seats) if Brexit hasn’t happened by the time the new EP assembles. Evidence (Article 3 Paragraph 2)
  • If the UK simply didn't organise elections in circumstances where it is legally obliged to do so, then  there could be a legal challenge from voters arguing that they have a right to elect their representatives (or indeed from aspiring candidates). Evidence (Article 20)
  • If it (still) did not organise elections, this would not render the newly elected European Parliament invalid - it would simply not have any UK MEPs. (If failure by any country to elect its MEPs were to invalidate the Parliament, then any country could choose to paralyse the Parliament, and therefore the EU, simply by not organising its elections.) That in turn means that the new EP, even if it does not have any UK members, can legally act, including to give its consent to any Withdrawal Agreement. Evidence
  • In short, there are no insurmountable legal difficulties to extending the Art 50 deadline beyond the date of the European elections. The problem is simply political inconvenience, for both sides, if European elections are held in Britain before Brexit is resolved. Evidence


Photo courtesy  Wikimedia Commons

This Behind the Headlines Briefing was first published on the DoorstepEU app: