EU Law Analysis: Brexit and Extending EU Membership: The Legal Issues


Professor Steve Peers, University
of Essex
As the Brexit day deadline of
March 29th looms without approval of the proposed withdrawal
agreement
, tonight’s European Council meeting agreed conclusions
offering an extension of UK membership of the EU in principle. What are the
legal issues concerning the extension of EU membership?
The crucial part of tonight’s conclusions
stated that:
The European
Council agrees to an extension until 22 May 2019, provided the Withdrawal
Agreement is approved by the House of Commons next week. If the Withdrawal
Agreement is not approved by the House of Commons next week, the European
Council agrees to an extension until 12 April 2019 and expects the United
Kingdom to indicate a way forward before this date for consideration by the
European Council.
So the European Council has not
formally adopted an extension, but has rather offered to adopt one based on
events in the UK next week. If the House of Commons approves the withdrawal
agreement next week, it’s offering an extension to 22 May to sort out the
details (notably the Act of Parliament necessary to implement the withdrawal
agreement). If the agreement is not
approved next week, a shorter extension to 12 April is offered, and the EU
expects the UK to indicate what it sees as the way forward before this date.
The starting point for legal discussion
of this issue is Article 50(3) TEU, which provides, as regards a Member State
withdrawing from the EU:
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
.
(emphasis added)
Unanimity can still apply despite
abstentions (Article 235 TFEU), and the European Council can, if necessary, act
by written procedure (see its Rules
of Procedure
). It may well be the case that the written procedure is used
to adopt the formal extension decision next week. It logically follows that the
Member State concerned has to agree to the text of the relevant European
Council decision, in particular as regards the length of extension. There’s no
formal role for the European Parliament or national parliaments, but they might
choose to express an opinion which could have some influence. Article 50(3) is
silent on whether or not there can be multiple extensions.
During any extension, the UK
would have the same rights and responsibilities as it would ordinarily have as
a Member State otherwise, including the continuing right to revoke its
notification of intention to leave the EU unilaterally (see the CJEU’s Wightman judgment).
This follows on from two earlier CJEU rulings (discussed here
and here),
in which the Court confirmed that the UK remained a fully-fledged Member State throughout
the main two-year period after notifying its intention to leave the EU. In
other words: Membership means Membership. (This rule doesn’t prevent political conditions being attached to
the EU’s decision to agree to an extension though, such as those in tonight’s conclusions).
This general rule raises a
specific issue relevant to extension of the UK’s EU membership. Would the UK
have to hold European Parliament elections, set for May
23-26
? (The date is based on the basic
law on EP elections
, since amended in 2018 on
other points).  The answer would
obviously be no, if the extension did not go past May 22. Arguably the answer
would still be no if the extension went no further than June 30 – as requested
by the Prime
Minister
– because the new European Parliament would only take office after
that point. However, this is disputed (see the recent EU room document
on extension, Wednesday’s Commission
paper
, and the contrasting views of Professors Barnard
and Weatherill
, Professor Spaventa
and the UK’s CJEU Advocate-General Eleanor Sharpston).
This dispute likely explains why tonight’s conclusions offer an option of an
extension to May 22 – although there is no explicit mention of the
elections issue.
In the event of extension after
June 30, the UK would certainly be in breach of its obligation to hold EP elections,
unless a special exception was granted to it. This is because the Treaties
refer to election for five-year terms, and a Council decision (see link above) sets
out the election dates. Both the Treaties and the basic law on EP elections need
unanimous national ratification to amend them. Article 50 does not refer to
granting exceptions from EU law, except as regards the departing Member State’s
absence from discussions concerning its departure. While new Member States do
have temporary exceptions from the obligation to elect MEPs, they are covered
by a different legal framework: Article 49 TEU, which deals with accession,
expressly allows for “adjustments” to the EU Treaties. As noted above, tonight’s
conclusions make no specific mention of the elections issue (it appeared in an earlier draft,
but was dropped).
Would the EP (and the new Commission
which the EP has a big role in appointing) be acting illegally, if the UK had
not elected MEPs in time? The EU courts have answered a similar question
before, as regards the Santer Commission which resigned irregularly and was not
immediately replaced. In the British
Airways
judgment, it was held that the Commission’s actions adopted
during this period were not illegal.  There was also a brief period when the Commission’s
status was uncertain, as the Lisbon Treaty came into force a month after a new
Commission (with fewer Commissioners) was due to be appointed in 2009. In
practice, the new Commission was appointed after a short delay, with the old
Commissioners spending a short extra period in their jobs.
If the UK held EP elections in
(say) September, there could be a delay in appointing a new Commission or
adopting new EU legislation until then. (A new EP takes a while to have a big role
in adopting legislation anyway, since a lot of proposed legislation is wrapped
up before the outgoing EP dissolves for elections).  There might, however, be some complication as
regards the number of MEPs per Member State (see the relevant European
Council decision
).
In order to change ‘exit day’ as
far as Westminster legislation is concerned, it’s necessary to adopt secondary
legislation – a statutory instrument approved by Parliament – under s 20 of
the EU Withdrawal Act
. It’s been suggested
that a Statutory Instrument could be tabled next week. (The UK doesn’t need to
adopt a new law to hold EP elections, since the repeal of the legislation
concerned has not been commenced yet). In the event that an extension decision
is adopted, but the definition of ‘exit day’ has not changed in the UK, it’s
been argued
that this does not mean that the UK leaves the UK with no deal , but rather
that it stays in the EU with no domestic legal framework to give effect to EU
law (although it might be possible to fix this quickly).
Apart from the legal issues
directly related to the extension, next week is likely to see a number of crucial
votes relating to the UK’s imminent and future relationship with the EU. Time
will tell what indirect effect they may have on the length and circumstances of
the UK’s extended EU membership – and in particular whether the UK government
and parliament is able to agree upon a way forward in the event that the
withdrawal agreement is not approved.
Barnard & Peers: chapter 27
Photo credit: archdaily.com





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