Trick or Treaty? The legal issues of the second extension of the UK’s EU membership


Professor Steve Peers, University
of Essex
With the second Brexit day
deadline of April 12 only two days away, last night leaders of EU
Member States, meeting as the European Council, decided to grant the UK a
second extension of its EU membership, possibly up to Halloween this year. The key provisions in the formal decision
extending membership for the second time provide that:
The period
provided for in Article 50(3) TEU, as extended by the [first extension
decision], is hereby further extended until 31 October 2019.

This decision
shall enter into force on the day of its adoption. 

This decision shall cease to
apply on 31 May 2019 in the event that the United Kingdom has not held
elections to the European Parliament in accordance with applicable Union law
and has not ratified the Withdrawal Agreement by 22 May 2019.
The preamble to the decision also
notes that if the withdrawal agreement is ratified, Brexit day could be
earlier. More precisely: ‘the withdrawal should take place on the first day of
the month following the completion of the ratification procedures or on 1
November 2019, whichever is the earliest’. Also, the preamble calls for a
review in June, but doesn’t provide for the possibility of cutting the
extension short at that point.
The date of 31 October was not
chosen for its scary implications as such: it’s the last day in office of the
current European Commission, although this point isn’t explicitly made in the
European Council decision. Ending the UK’s membership therefore avoids a UK
Commissioner taking office (and so also avoids the awkward question of whether
the number of Commissioners should be reduced to prevent this happening).
This fresh extension followed
from the previous European Council decision extending
membership after the original Brexit Day of March 29, which I previouslydiscussed in detail here
(see also the relevant conclusions of
the European Council, adopted on March 21). This blog post
examines the details and legal issues arising from the second extension,
adapting some of the points already made in the previous blog post on the first
extension where relevant.
The starting point for discussing
extensions of membership 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.
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).
(In the event, as with the first extension decision it seems that neither was
necessary). The Member State concerned has to agree to the text of the relevant
European Council decision, and the UK indeed agreed
to the second extension decision, as it had agreed
to the first one. There’s no formal role for the European Parliament or
national parliaments. Article 50(3) is silent on whether or not there can be
multiple extensions, but obviously the EU and UK assume that this is legally
possible.
The first extension decision
provided for two variations for extending membership beyond the original Brexit
Day of 29 March 2019, depending on whether the House of Commons approved the proposed withdrawal agreement by
that date. If that had happened, UK membership would have been extended until
22 May 2019. Since it did not happen, the second variation applied: membership
was extended for only two weeks to 12 April 2019, and the UK had to ‘indicate a
way forward before 12 April 2019, for consideration by the European Council’.
The two dates referred to were
linked to the upcoming elections for the European Parliament, on May 23-26, as
noted in the preamble to the first extension decision. This is because 22 May
is the last day before the elections, and 12 April is the last day to give
notice of the poll in the UK. There was a legal debate over whether the UK
could be exempted from taking part in these elections (for details, see my blog
post
on the first extension), on which the EU has taken the view that there
cannot be an exception. The second extension decision takes the same approach,
forcing an early end to the UK’s EU membership on 31 May if the UK has neither
held the European Parliament elections on time, nor ratified the withdrawal
agreement by 22 May. However, it should be noted that, as discussed below, the
UK has taken the legal steps to hold the elections.
This obligation to hold the
elections is a specific application of the general rule: as the preamble to the
decision on the second extension confirms that, as in the first extension, the
UK has the same rights and responsibilities as it would ordinarily have as a
Member State otherwise. Indeed, the preamble explicitly observes that the UK
can revoke its notification of intention to leave the EU unilaterally (see the
CJEU’s Wightman
judgment). This continues the principle established in 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.
However, the preamble to the
second extension decision conversely rows back on this somewhat, in that it
also refers to the principle of ‘sincere cooperation’ applicable to all Member
States, by virtue of Article
4 TEU
. But the wording suggests that this principle might apply differently as regards a withdrawing
Member State. More precisely, the preamble states that (emphases added):
The European
Council takes note of the commitment by the United Kingdom to act in a
constructive and responsible manner throughout the extension period
in
accordance with the duty of sincere cooperation, and expects the United Kingdom
to fulfil this commitment and Treaty obligation in a manner that reflects
its situation as a withdrawing Member State
. To this effect, the United
Kingdom shall facilitate the achievement of the Union’s tasks and shall refrain
from any measure which could jeopardise the attainment of the Union’s
objectives, in particular when participating in the decision-making
processes of the Union
.
So the EU says that the UK must
be a full Member State for the purposes of the European Parliament elections,
but not exactly a full Member State for some other purposes. If only there were
a fruit-based or pastry-based analogy to describe this approach.
However, there’s no precise legal
obligation attached to the reference to sincere cooperation clause. And what
exactly could the UK do to obstruct
the business of the EU anyway?  First of
all, let’s look at the EU institutions. Member States do not have a veto on the
major appointments to the EU institutions to be made later this year: Mr Juncker
became Commission President despite the UK’s opposition (joined by Hungary),
and Mr Tusk was re-elected as European Council President despite the opposition
of Poland.  There’s no veto on appointing
the rest of the Commission this autumn either, although Member States do act
unanimously when appointing CJEU judges or renewing their terms. As regards the
Commission in particular, the implications aren’t fully fleshed out: the UK and
UK MEPs will still presumably have a vote for the new Commission, since those
votes would normally take place before November 1, but would it
follow that also the UK should nominate a Commissioner who might not even take
office?
Could the UK obstruct the functioning of those institutions? First,
although this is not mentioned in the extension decision, the European Council conclusions
note that the EU27 can meet informally without the UK:
the 27 Member
States and the Commission, where appropriate together with other institutions,
bodies, offices and agencies of the Union, will continue to meet separately at
all levels to discuss matters related to the situation after the withdrawal of
the United Kingdom
This suggests an informal
arrangement, where the EU27 might agree in principle on future developments
which will apply after Brexit day, with any legal texts to be adopted
officially once the UK has left.
Secondly, it should be noted that
the EU institutions do less work than usual between May and October of an
election year (ie the term of most of the extension decision), since the
European Parliament (EP) focusses on the elections and their aftermath and the
outgoing Commission is winding its activities up. But there are some
activities. However, the Commission, EP and CJEU do not act by unanimous vote,
and the EU institutions’ rules of procedure don’t provide for filibustering (ie
discussing an issue endlessly to stop debate). Nigel Farage rarely shows up for
long enough to filibuster anyway.
The possibility for obstruction
exists more in the Council (made up of ministers) and the European Council
(made up of Presidents and Prime Ministers). The Council usually (but not
always) decides by qualified majority voting (QMV), while the opposite is true
of the European Council.  For QMV, the UK
vote has to count in some way (except where the UK opts out), and asking the UK
to abstain accomplishes nothing, since UK abstentions would in effect count as
a vote against. However, it’s rare that so many Member States oppose a proposal
that the UK has the swing vote (for a current example, see the controversial
copyright directive, which the UK could block
if it abstained or voted against
).
The UK could, of course, block
everything where it has a veto.  This
particularly applies to taxation, accession to the EU, Treaty amendment,
foreign and defence policy, and major decisions on the budget. But budget
decisions are due to be agreed next year, after the second extension decision
will run its course, and applicant Member States are all a long way from
joining the EU. While the UK could block steps in the ongoing accession
negotiations (like opening or closing ‘chapters’ in the negotiations), the EU27
and the applicant State (like the EU27 internally) might simply decide agree in
principle on those steps while awaiting Brexit day.
As regards Treaty amendments,
there are no discussions of amendments underway or planned imminently. The UK
can’t block any amendment process getting started, but its agreement would be
necessary for any Treaty amendments to come into force. If there were interest
from other Member States in such negotiations, the UK could abstain from the
discussions, and ratification of any agreed text could get underway in the
EU27, with the proviso that the process could only be completed on or after
Brexit Day.
It’s also possible to use
simplified procedures to amend certain parts of the Treaties, but any
significant Treaty change by such simplified means still requires unanimity of
Member States. Unlike fully-fledged Treaty amendments, simplified Treaty
amendments are a live issue. The Commission has proposed extending QMV on
aspects of foreign
policy
, as well as on taxation
in general
and energy
and environmental taxes
in particular. (A Commission proposal reducing
unanimity for aspects of employment law is expected soon). The environmental
tax paper also suggests giving the European Parliament more powers as regards
EU law on nuclear energy, but this requires an ordinary Treaty amendment (which
the Commission suggests should happen after 2025). Again, the UK could block
these proposals as long as it’s a Member State, while the EU27 could agree on
them (if they are interested) in principle pending Brexit day, and adopt them
after that.
Since the first extension was
granted, as noted already, the House of Commons voted down the withdrawal
agreement a third time. But there have been other legal developments. The
Commons made two attempts to hold ‘indicative votes’ to find a Brexit outcome
that would command majority support – but no outcome did. Since the Commons had
also indicated its opposition to leaving the EU without a deal, the government
changed its strategy of trying to pass the withdrawal agreement with
Conservative and Democratic Unionist Party votes.
Instead, as the Prime Minister announced
on 2 April, she would instead hold discussions with the Labour party, with a
view to amending the declaration on the future relationship with the EU.  She would also seek a short second extension
of membership from the EU, while planning to table the bill to implement the
withdrawal agreement with a view to ratifying it by 22 May, thus
avoiding taking part in European Parliament elections. To that end, on April 5 the government sent
a request
to the EU for an extension until June 30. Since it
is possible that European Parliament elections might have to be held, the
government also adopted the order
which is legally necessary to hold them on May 23.
Furthermore, Parliament decided
to take control of the legislative agenda from the executive temporarily and
quickly pass a new law, the EU
Withdrawal Act 2019
. Among other things, it requires the government to seek
an extension of membership from the EU, and on that basis, the Commons approved
the government’s motion to set June 30 as the intended date. It
also simplifies the process of approving another change to ‘exit day’ in UK law,
which will be relevant imminently when giving effect to the second extension
decision in UK law. While the passage of the Act attracted controversy,
ultimately the outcome differs little from the government’s policy. I’ll leave
it to political commentators to discuss the broader political impact of the
Act. It should be noted that despite the passage of the Act, one MP, Bill Cash,
has queried
the legality of a second extension. With respect, his arguments about the
frustration of the intent of Parliament ignore the 2019 Act as well as the
prospect of extension of membership set out in the 2018 Act. But it would not
be surprising to see these arguments litigated.
Finally, it’s useful to consider the
second extension decision in its political context, although only a brave
observer could argue they know what will happen in UK politics in the near
future with any certainty.  An extension
to October leaves just enough time for a referendum, and lots of time for a
general election. It also leaves enough time for a Conservative party
leadership contest, although a new Prime Minister would, without an election,
face the same arithmetic in the House of Commons, regardless of their Brexit
views. While the Conservative party formally cannot challenge its leader before
December, it may try to find a way to do so indirectly. The results of local
elections at the start of May and (if held) European Parliament elections at
the end of May might alter the political dynamics. A new Queen’s Speech is due
in June, which will entail the Conservative party renegotiating its confidence
and supply arrangement with the DUP, as well as yet another opportunity to submit
the withdrawal agreement to the vote. The delay to Brexit might provide the
opportunity to pass further Brexit-related legislation, as well as conclude
some ‘rollover’ treaties with non-EU countries.
As for the impact on EU/UK
relations, while the second extension decision reiterates that the EU is not
willing to reopen talks on the withdrawal agreement, and furthermore states
that the extension period should not be used to negotiate the future
relationship as such, the European Council conclusions expressly state a
willingness to renegotiate the non-binding political declaration on that
relationship. Renegotiating the latter depends on successful conclusions of
talks between the Conservative and Labour parties, which many believe is an
unlikely prospect. A general election might change the situation, but the
government is not keen on one. There might remain a lack of a parliamentary
majority for anything else (simple revocation, no deal, another referendum) if
there’s no election. Time will tell if the UK can find any way out of the
current Brexit deadlock.
Photo credit: bored panda
Barnard & Peers: chapter 27





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