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[...]A very short extension to Article 50 would not cause difficulties. If, for example, it was necessary to delay Brexit by a few weeks to tidy up loose ends in the withdrawal agreement, the UK could still avoid participating in the elections. But if the deadline falls after 23rd May, the UK will be legally obliged to participate in the election. The crunch moment then comes in early July 2019, about 6 weeks after the close of polls, when the new House has to assemble.
This gives rise two further problems:
(i) MEPs are elected for 5 year terms. It is difficult to conceive of any extension to Article 50 which would exceed the 5-year mandate of the next parliament. If a country headed for the exit door elects members of parliament whose term would outlive its membership of those political institutions, could those MEPs, once elected, be removed on the date of their country’s departure? Here, at least, there is a clear precedent. In 1985, the MEP representing Greenland left the EP on the same date as Greenland’s departure from the EU (technically, its departure from the part of Denmark inside the EU).
(ii) decisions have already been taken to re-structure the EP when British MEPs leave, and a number of other Member States stand to benefit from the re-allocation of some of the UK seats. If the Article 50 deadline should be extended beyond the date of the 2019 elections, these plans will have to be postponed. The legislation in question makes specific provision for the new allocation to come into effect only after the UK’s departure (even if this is in mid-term). This disruptive effect may deter some member states from granting an extension. [...]
What would the reaction of the EP be if Article 50 is extended?
Regarding the European Parliament’s position on Brexit and the forthcoming elections, its first resolution of 5thApril 2017 stated:
So the European Parliament may not be in favour of delaying Brexit. However, that would be a political decision taken by the European Council, as provided for by Article 50. A decision on the part of the 27 to extend Article 50 would automatically postpone the adjustment of the numbers of seats per Member State.
However, the EU is unlikely to want the UK to participate in 2019 European Parliament elections if the UK is set to leave anyway, even if there was unanimous agreement to extend Article 50. Nor would they want to see the UK appoint another Commissioner. So what other options are there?
Could the UK simply refuse to participate in the election?
In the event that Article 50 is extended, there is likely to be significant political pressure in the UK to sidestep an election which could be seen by some as a re-run of the referendum, or an opportunity for the electorate to pass judgement on the progress of negotiations with Brussels.
One scenario would be that Britain simply does not hold its part of the European election, in breach of the treaty, but with the tacit acceptance of the others.
However, that would no doubt give rise to a legal challenge (e.g. by citizens demanding their right to be represented and to vote), and the Court would likely order the UK to hold its elections as soon as feasible – which might, in a highly anomalous and controversial way, “gain” a couple of months with its MEPs only taking up their seats later (though maybe in time for the July constitutive sitting).
So, in the event of extending the negotiating period deadline beyond the European elections, the UK is likely to have to participate in them. [...]
Conclusion
There is no straightforward solution to the problem outlined at the start of this paper. [...]
The idea that the treaties could be re-opened to establish new rules between now and the EP elections in May 2019 is not realistic. Even if the political will to do so existed (which, given the EU’s other priorities, is unlikely), there is no time for ratification by national parliaments.
The reality is there is no easy way to avoid holding EP elections in the UK if we are still in the EU in May 2019.
The simplest way forward would be to hold elections as normal, and then to remove UK MEPs on the date of the UK’s departure. The EP’s restructuring plans would be postponed, but almost certainly not for 5 years as some have feared. Significantly, provision has already been made by the European Council for just this eventuality, demonstrating that thinking is already taking place at the political level about how to respond in the event that the UK’s departure is halted or postponed.
An alternative would be for the UK to seek a political agreement not to participate in the elections. In order to secure support for such an agreement, the UK would have to be prepared to respond positively to any subsequent ruling of the ECJ about the legality of refusing to hold elections.
The UK government might conclude that by the time such a challenge was heard, it could persist in its refusal to hold elections if there was only a short period of time remaining before the date of exit. However, any suggestion that the UK was planning in advance to ignore such a ruling would fatally undermine the chances of reaching agreement with the 27. The question for all member states would be whether an attempt of this kind to circumvent the requirement to hold elections was, in the long run, worth the effort involved.