Various claims have been made but what is the legal reality?by George Peretz / March 7, 2019 / Leave a comment
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…