Written by Ralf Drachenberg with Simon Schroecker,
At the special European Council (Article 50) meeting on 10 April 2019, Heads of State or Government agreed to further extend the Article 50 period until 31 October 2019 at the latest. This goes beyond the request made by the UK Prime Minister, Theresa May, for that period to be extended until 30 June 2019, but represents only half of the time period some European Council members had been seeking to offer. The compromise found, which maintains unity amongst the EU-27, is designed to reduce as much as possible the disruptive effects of the Brexit negotiations on EU affairs at the start of the new institutional cycle. With the longer extension period – and if the Withdrawal Agreement, already rejected three times by the UK Parliament, is not ratified by 22 May – the UK will be required to organise European elections. The decision adopted by the EU-27 also confirms that, during this period, the UK remains a Member State with all its rights and obligations. Under this extension, several different scenarios are all still possible: ratifying the current deal, ‘no deal’, another referendum or revoking Article 50. However, the decision preclude any changes to the Withdrawal Agreement. Progress in the ratification process in the UK will be reviewed at the European Council meeting on 20-21 June.
1. The UK request to further extend the Article 50 negotiation period
On 21 March 2019, the EU-27 Heads of State or Government had agreed to a first request by the UK Prime Minister, Theresa May, for an extension of the Article 50 period, deciding to postpone Brexit until 22 May 2019, provided that the Withdrawal Agreement were approved by the House of Commons by 29 March. If not approved, the extension would end on 12 April, with the UK required to indicate a way forward before that date. As the House of Commons rejected the Withdrawal Agreement for the third time, on 29 March 2019, the 22 May extension was no longer valid. On 5 April, the UK Prime Minister sent a letter to the President of the European Council, Donald Tusk, in which she requested the UK’s withdrawal to be delayed until 30 June 2019. In her letter, she argued that, without this further extension, the United Kingdom would leave the European Union without a deal on 12 April 2019. She also made the case that she was now seeking a consensus across the House of Commons, and therefore, had met with the leader of the opposition with the aim of agreeing on ‘a proposal that can be put before the House of Commons which allows the United Kingdom to leave the European Union with a deal’.
2. The European Council (Article 50) meeting
On 10 April, EU-27 Heads of State or Government met to deliberate on the consequences which an extension beyond 22 May, as requested by the UK Prime Minister, would have on the forthcoming European elections and on EU decision-making. Following an exchange of views with the President of the European Parliament, Antonio Tajani, the EU-27 Heads of State or Government listened to Theresa May’s presentation of the state of play of the ratification process in the UK, and to her arguments in favour of a further extension.
After lengthy discussions amongst the EU-27, between those seeking a longer extension period – possibly until the end of 2019 or even the end of March 2020 – and others, in particular the President of France, Emmanuel Macron, who were more critical of a long extension period, the Heads of State or Government adopted a decision to extend the Article 50 period, but not until 30 June, as requested by the UK Prime Minister. The compromise found grants the United Kingdom a six-month flexible extension of the Article 50 period, which ‘should last only as long as necessary and, in any event, no longer than 31 October 2019’. This flexibility means that the extension could be terminated at any time before 31 October, once the Withdrawal Agreement has been ratified. The UK would then leave the EU on the first day of the following month. Theresa May agreed to this flexible extension, since ‘the extension can be terminated when the Withdrawal Agreement has been ratified’. She nevertheless underlined that she believes that ‘we need to leave the EU, with a deal, as soon as possible’.
In advance of the meeting, Donald Tusk had already argued against a short extension until 30 June and for granting a ‘flexible extension, which would last only as long as necessary and no longer than one year’. The advantage of this approach would be, in his view, to avoid both an accidental ‘no-deal’ Brexit as well as repeated Brexit summits. Furthermore, it would allow the extension to terminate automatically, as soon as both sides had ratified the Withdrawal Agreement, and could also ‘allow the UK to rethink its Brexit strategy’.
The date of 31 October 2019 has most likely been chosen in order to complete the Brexit process before the entry into office of the new Commission on 1 November. The aim was thus to limit as much as possible further disruption to EU affairs at the start of the new institutional cycle – beyond the existing uncertainty arising with regard to the European elections, notably as to the effective composition of the new European Parliament.
Main messages of the President of the European Parliament: The President, Antonio Tajani, stressed that the key question was not the length of the extension, but whether it served a clear purpose. It should not be used for negotiations on further relations or to reopen the withdrawal agreement, but ‘must be designed to resolve the issue meaningfully’.
European Parliament elections
The European Council decision provides that, ‘if the United Kingdom is still a Member State on 23-26 May 2019, and if it has not ratified the Withdrawal Agreement by 22 May 2019, it will be under an obligation to hold the elections to the European Parliament in accordance with Union law‘. The UK Prime Minister stressed again her preference to agree on the Withdrawal Agreement in the House of Commons before 22 May, so that the UK would not have to participate in the European elections. The European Council’s decision specifies that ‘if it fails to live up to this obligation, the withdrawal will take place on 1 June 2019’.
Main messages of the President of the European Parliament: Antonio Tajani underlined the importance of any extension for the European Parliament. ‘The European elections are not a game, and they must not be made to look like one thanks to the casual attitude that some in the UK may choose to take towards them’. The President emphasised the importance of genuine participation of the United Kingdom in the European elections, as they are the basis for the efficiency and integrity of the European Parliament and the EU.
Membership rights and sincere cooperation
During the extension period, the United Kingdom will remain a Member State with full rights and obligations in accordance with Article 50 TEU. The other Member States expect ‘the United Kingdom to act in a constructive and responsible manner throughout the extension period in accordance with the duty of sincere cooperation’, and expect ‘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.’ The summit conclusions specify that, during the extension period, ‘the EU27 will continue to meet separately … to discuss matters related to the situation after the withdrawal of the UK’.
Following the meeting, the President of the European Commission, Jean-Claude Juncker, expressed the Commission’s satisfaction with the outcome of the meeting, and President Tusk called upon ‘our British friends not to waste the time’ given by this extension, and to seek ‘to find the best possible solution’.
Even after granting this new ‘flexible extension’ all the possible scenarios, including ratifying the current deal, ‘no deal’, another referendum or revoking Article 50 are all still possible. However, the EU-27 leaders clearly indicated that the extension ‘cannot be used to start negotiations on the future relationship’. They also indicated that in case the position of the United Kingdom were to evolve, they would be prepared ‘to reconsider the Political Declaration on the future relationship in accordance with the positions and principles stated in its guidelines and statements, including as regards the territorial scope of the future relationship. President Tusk stressed that ‘until the end of this period, the UK will also have the possibility to revoke Article 50 and cancel Brexit altogether’. Recent polls show that in case of a second referendum, ‘remain’ would be more likely to win, although the margins remain close.
The European Council will review progress at its meeting on 20-21 June 2019. President Tusk clarified that this date is not a ‘cliff edge’, as the aim for this meeting would not be to have a discussion, but only to inform the EU-27 of the current situation and the state of play in the ratification process. With the extension agreed at the special meeting, the possible ratification of the Withdrawal Agreement would most probably only take place after the new European Parliament has started its activity.
Main messages of the President of the European Parliament: Antonio Tajani, expressed the hope that an agreement could soon be reached between the British government and the opposition, preferably including a more ambitious political declaration on future relations. Prior to the meeting, the European Parliament had already stated its support for ‘an upgrading of the political declaration, that could include participation in either the customs union or the single market, in full compliance with EU principles – indivisibility of the four freedoms, integrity of the single market and autonomy of EU decision-making.’
Read the complete briefing on ‘Outcome of the Special European Council (Article 50) meeting, 10 April 2019‘ in the Think Tank pages of the European Parliament.