Wednesday 10 April 2019

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:

Article 1

The period provided for in Article 50(3) TEU, as extended by the [first extension decision], is hereby further extended until 31 October 2019.

Article 2

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 previously discussed 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.

EU law issues

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 dessert-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. (Update: the Commission also proposed to drop unanimity for aspects of employment law on April 16th). 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.

UK legal issues

The UK gave effect to the first extension as a matter of UK law by means of a Statutory Instrument, in accordance with s 20 of the EU Withdrawal Act 2018, which sets out a process to change ‘exit day’. Some have queried the legality of this process, and there’s a pending court case challenging the first extension (although see the counter-argument by Professor Mark Elliott).

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. (Update: the secondary legislation changing the exit day to October 31 has since been adopted,) 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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