why the UK will need to hold EP elections if its membership of the EU is prolonged beyond the 22nd of May

EU Law Analysis: Of extension of UK membership and basic democratic principles: why the UK will need to hold EP elections if its membership of the EU is prolonged beyond the 22nd of May

Of extension of UK membership and basic democratic principles: why the UK will need to hold EP elections if its membership of the EU is prolonged beyond the 22nd of May

Eleanor Spaventa
, Bocconi University
To say that the political situation
is the UK regarding Brexit negotiations is volatile is an underestimation of
reality; Mrs May’s tactic of running down the clock might or might not be
successful, but it also appears to have backfired, since now there is an
unavoidable need to seek an extension to Article 50 TEU. Should the Withdrawal
Agreement finally be accepted by the British Parliament this week, the UK will
need an extension to the exit day in order to pass all the legislative
instruments needed before withdrawal from the EU.
Should the Withdrawal Agreement be
rejected, then the UK will need an extension to either prepare for a non-agreed
exit, or to decide where its future lies. But once again the political turmoil,
and the options available, are constrained by the constitutional framework of
the EU. In particular, the issue is whether the UK would have to hold European Parliament
elections if its membership of the EU is to continue beyond the 23rd of May.
The problem of course is that holding EP elections is symbolically and
politically problematic for the Government, and yet, even opting for a shorter
extension, the UK might need more time to pass all the required legislation.
The European Commission’s view seems to be
that the UK will not be able to seek an extension beyond 23rd May unless it
holds EP elections. The Commission’s position is based on a very simple and
yet, in the writer’s opinion unchallengeable premise: EU citizens have a Treaty
right to vote for the European Parliament and, as long as the UK is a member of
the EU, that right is bestowed on its citizens and on EU citizens living in the
Yet, illustrious EU lawyers have
argued in this blog and elsewhere
that an extension could stretch to the end of June, without compromising the
legitimacy of the newly elected European Parliament. The same point was made in
a legal opinion to the European Parliament. Yet, to focus simply on the
legitimacy of the European Parliament misses the point: democracy is not a mere
exercise in institutional balance – if it were so there would be nothing
preventing any Member State or the EU to prolong the term of their Parliaments
beyond the fixed mandatory term. After all, if one Member State were to be
allowed not to hold European Parliament elections because of its own political
problems, why not another Member State for its own political problems. So at
first sight, the idea that the UK could be a member of the EU and withhold the
right of its citizens, and of EU citizens resident in its territory, to vote
for the European Parliament elections seems to be an anathema for a polity
which is based on the rule of law. And the legal impossibility of such a
scenario is backed not only by the Treaties, and the Charter, but also by the
obligations bestowed on the UK and all of the other Member States by the
European Convention on Human Rights.
The law on
EP elections as it stands
Article 14(3) of the TEU provides
that members of the European Parliament shall be elected for a term of five
years by direct universal suffrage, whereas Article 20 (2)(b) TFEU provides
that every citizen of the EU shall have a right to vote and stand for elections
in the State where they reside under the same conditions as nationals. The
Court of Justice, in its ruling in Delvigne
(discussed here),
clarified that the franchise for European Parliament elections is a matter
falling within the scope of EU law, even in relation to own citizens. For this
reason, the Charter of Fundamental Rights applies; the Court found that the
deprivation of the right to vote of a own citizen is a limitation of the right
conferred in Article 39(2) Charter; as such it must be justified under the
conditions provided for in Article 52 Charter. The limitation to the right to
vote must therefore be provided by law (which in the case of the UK would
require a new Act since at present the UK simply has not made any provision for
the EP elections), must be justified in relation to a public interest
recognized by the Union, be necessary for the attainment of that interest and
be proportionate. The disenfranchisement of an entire nation would fail to meet
these requirements: it would be difficult to identify a public interest pursued
by such disenfranchisement (unless one believes that protecting the
Conservative Party from self-implosion can be qualified as a public interest),
nor would disenfranchisement be proportionate or necessary to ensure withdrawal.
Furthermore, rights conferred by the
Charter cannot fall below those provided for in the ECHR: the European Court of
Human Rights has clarified in Matthews
that Article 3 of Protocol 1 of the ECHR, the right to free elections, applies
in relation to the European Parliament. Member States are then obliged, under
the Convention, to guarantee the franchise for it, as well as respect basic
democratic principles. For this reason, the UK was in violation of its ECHR
obligations for disenfranchising citizens in Gibraltar who did not (at the
time) have a right to vote for the European Parliament.
If the UK seeks an extension it will
remain a Member State of the EU, and as such bound by the Treaties and the
Charter. The UK is also bound by the ECHR in this matter, both as a Member of
the EU and as a Member of the Council of Europe. It therefore seems that it
would not be able, under both EU and ECHR law, to disenfranchise its own
Barnard and Weatherill, as well as AG
Sharpston, suggest that the democratic issue could be overcome by prolonging
the mandate of the current British MEPs – yet, such a suggestion is not only
contrary to the Treaty but also inimical to the very basics of democratic
principles (it is dictators that usually resort to these systems). Their
suggestion that, since those MEPs have been democratically elected in 2014,
they can continue to represent British citizens past the life of this European Parliament,
without seeking a new mandate is far from being persuasive, not only because
there is no such possibility in the Treaties, but also given that the passive
electorate has changed in the past five years and that prolonging MEPs would
entail the disefranchisement of those who have come to voting age in the past 5
years. And even if it were legally possible under EU law to provide such a
transitory arrangement, through a derogation from the Treaty provisions as
suggested by AG Sharpston, such a transitional arrangement would still breach
Article 3 of Protocol 1 of the ECHR.
In as much as we might want to avoid
Brexit chaos, the end cannot justify the means in this case; disenfranchisement
is illegal and infringes the founding principles upon which the EU is founded
(democracy, rule of law and protection of fundamental rights). Furthermore,
following the ruling in Wightman
(discussed here),
the UK can at any point withdraw its notice under Article 50. As clearly stated
by the Court, up until that point in which the Withdrawal agreement enters into
force or the UK has exited by virtue of the passing of time, the UK is and
remains a full member of the EU (also during the extension) – and its citizens
therefore are subject to all its rules and derive all the rights stemming from
the Treaties.
To allow the UK to remain a member of
the EU without participating to the European Parliament elections would not
only be illegal, it would be very dangerous (not least in these political
times): Brexit is bad enough as it is – it cannot be allowed to destroy the
very values upon which the EU is founded and which it already struggles to
Barnard & Peers: chapter 3,
chapter 27
Photo credit: Evening Standard

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