Chronos vs. Brexit: why extending Article 50 and delaying Brexit might not be a feasible solution for the EU

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 by Tiago Cabral, Member of CEDU

1. If everything goes according to plan, the United Kingdom (UK) is currently set to leave the European Union (EU) on 29 March 2019 at 11.00 p.m. That is the date enshrined on the European Union (Withdrawal) Act 2018 and the British Government has a deal that, in theory, allows the UK to leave in the planned timeframe. Remarkably, the EU has managed to keep an extremely (and surprising) united front regarding the Brexit negotiations. It is noteworthy that the message from the Chairman of the Austrian People’s Party and current Austrian Prime-Minister Sebastian Kurz perfectly mirrors the one expressed by Jean-Claude Juncker or Donald Tusk.

2. However, in the UK nothing is going according to plan for Prime-Minister Theresa May. After the deal was announced and its contents revealed a number of ministers – both brexiters and remainers – resigned from the cabinet. Seizing the opportunity to press for a harder Brexit, Jacob Rees-Mogg, the current chairman of the “European Research Group” (a group of hard-Brexit leaning MPs) started pushing for a vote on May’s leadership of the conservative party and (in practice) premiership. Said attempted failed to get the backing of enough MPs (for now) but could find new breath if the current deal is rejected by parliament. On that note, the current deal is most likely than not to be indeed rejected. About 100 conservative MPs have already stated on record that they would vote against it, and most of the opposition parties (including the DUP that has been keeping the government afloat) promised to do the same. The vote is set to happen on 11 December.

3. While rejection seems likely, it is not yet a certainty. Conservative MPs, especially the remaining leaning ones, already flinched quite a few times when the time to “put their vote where their mouth is” came. We must take into account that rejecting the deal might result in new elections and in a Labour government (at least according to the latest polls). Quite a few MPs would sign on a deal that containing provisions that are of their liking to avoid losing their seat. This is not a Conservative problem, bottom line, it is also the reason why Labour prefers a general election to a new referendum. The parties in the UK are – one must point out at the expense of the people – putting their current national standing in front of a pressing problem for the country whose consequences will be felt for generations.

4. However, as of today, the most likely result of the vote taking place on 11 December is the rejection of the proposed deal. Then what happens? There are five basic possibilities: 1. The Prime Minister tries to get her deal through parliament again and eventually succeeds; 2. No-deal Brexit; 3. Snap election; 4. New referendum; 5. New negotiation rounds resulting in a new deal.

5. Options 1 and 2 do not change anything regarding the withdrawal of the UK. The British leave the EU and do so on 29 March 2019. However, every other option could give rise to a delay or even halt the withdrawal. There is a previous essay in this blog by Professor Alessandra Silveira that already examined the issue of withdrawing the withdrawal quite thoroughly. Additionally, the Advocate General Campos Sánchez-Bordona reached similar conclusions in his opinion in Wightman and Others v Secretary of State for Exiting the European Union. With all this in mind, it is expectable that the ECJ will decide that, indeed, the UK can revoke the notification of withdrawal unilaterally.

6. Nevertheless, we cannot focus excessively on the result and lose sight of the path we are currently taking to get there. That is, we need to think about we should think about the issue of simply delaying Brexit. If there is a snap election, a new referendum or a new round of negotiations how likely is it that we can reach a compromise before 29 March 2019? Looking at how much time it took to reach the current deal, the answer is: very unlikely. Thus, then we would need to either go for a cliff-edge Brexit or extend Article 50.

According to Article 50(3) TEU “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”. In this point, our constitutional law is clear, Article 50 can absolutely be extended.

7. Unfortunately, the timing of the withdrawal can hinder the feasibility of an extension. In fact, there is another date (or set of dates) that need to be considered (and rarely are): 23-26 May 2019, the European Parliament Elections. According to Article 14(2) TEU “the European Parliament shall be composed of representatives of the Union’s citizens. They shall not exceed seven hundred and fifty in number, plus the President. Representation of citizens shall be degressively proportional, with a minimum threshold of six members per Member State. No Member State shall be allocated more than ninety-six seats” and “the European Council shall adopt by unanimity, on the initiative of the European Parliament and with its consent, a decision establishing the composition of the European Parliament, respecting the principles referred to in the first subparagraph”.

8. If the UK wished to extend Article 50 to a later date than the EP elections, we would have a difficult challenge to solve. The composition of the European Parliament post-Brexit was already established and the UK is not represented. However, if the UK was still a Member-State having no representation in the Institution that should be most representative would, (obviously), be incompatible with the EU’s constitutional law. Could we go back to the current composition? It is certainly possible. However, if the decision to change the composition was taken by unanimously by the European Council, we believe that another decision in the same conditions would be needed to change it back. Some countries might even not agree and block it because they gained MEPs in the “new” European Parliament. Of course, one could also argue that since the UK would not be leaving (yet) the previous decision would not hold because the UK was not heard (and thus there is not really a unanimous decision). Nevertheless, such an argument holds no weight if we consider Article 50 (4) TEU and even pursuing it would border on venire contra factum proprium.

While it is, in fact, the truth that the same problem could arise if Brexit was completely reversed (new referendum) the situation is not equal in the least.  One would think that the other Member-States would be more flexible, since they would also have more to gain, if the UK was staying and not just delaying its exit.

9. Even if we manage to overcome the previous challenges, there is one last issue that might need to be addressed. Does the UK still have time to prepare the EP elections and elect its MEPs before 26 May? If Article 50 is extended (or withdrawn) it is key to assure that the constitutional rules regarding the election of the people’s representatives are followed. Timing is also essential to allow the UK’s MEPs to be there for the selection of the President of the European Commission. Suggestions like allowing the UK Parliament or even the government to temporarily choose MEPs do not offer appropriate guarantees of representativity and would not be compatible with Article 14(3) TEU and, therefore should not be even considered.

Pictures credits: Pocket watch… by annca.

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