Leaving

Legal experts in Brussels are wrestling with something
of a problem. What if the UK wants an extension on the
Brexit departure date, currently set for the end of March.
27 of Britain's 73 seats have been allocated to other countries,
to take demographic developements into account, and
elections for a renewed Parliament are end of May. Could
the UK stay in without representation? A - in legal terms - difficult
question!


https://www.lemonde.fr/les-decodeurs/article/2019/01/23/un-brexit-repousse-le-casse-tete-institutionnel-avant-les-elections-europeennes_5413335_4355770.html




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source: Le Monde; Les Décodeurs

author: Pierre Breteau

translation: doxa-louise

A postponed Brexit? The institutional puzzle looking to the EU elections

Having already reassigned Brtitain’s Parliamentary seats, what should be done if Brexit is re-scheduled? Will Brussels be obligated to accept leaving elected officials from across the Channel?

The view from London is that Brexit is on ice:  Prime Minister Theresa May has not succeeded in having her accord for leaving the European Union (EU) endorsed by the House of Commons. Nor has she managed to present a ‘Plan B’ as the British Representatives have demanded of her.  All that while the departure of the United Kingdom from the EU is slated for March 29, thus in less than ten weeks.

On May 26, the 340 million citizens of voting age in the EU must elect 705 Representatives. The latter numbered 751 including those from the United Kingdom at the last European elections in 2014, but 27 of the 73 British seats have been given to other member States to better reflect the demographic evolution within the 27 member States. Let us see how this is important.

On Tuesday January 15, Emmanuel Macron suggested that perhaps the British could ‘take more time’ and ‘maybe leap over the European election’. In other words, in the context of a delicate political situation, the United Kingdom could ask to remain in the EU a bit longer after the elections of May 26, and even beyond the opening of the new Parliamentary session scheduled for July 2. But this poses something of a difficulty: can one even be a member of the EU - even a departing one - without having Representatives in Brussels?

On this question, ‘ work from a judicial point of view(...)is currently underway’, Tells us Michel Barnier, chief negotiator on Brexit for the European Union. But a few threads might help us see more clearly.

No more than 750 representatives in Brussels

The number of Parliamentarians in Brussels and Strasburg cannot go beyond 750 elected officials plus the President (article 14-2 of the Treaty on the European Union).

Moreover, no member can claim more then 96 Representatives - Germany, the most populous country, gets 96 in the next Assembly. The floor number is six, as is the case for Malta or Cyprus.

In point of fact, in 2019, 705 Representatives will be elected, and not 750 (+ a President) as was the case for the 2014-2019 legislature; 705 because 27 of Britain’s 73 seats have been reassigned (+5 to France or Spain, +3 to Italy or the Netherlands, etc), and the others are being held in reserve pending the arrival of new members (there are five official candidates including Serbia, Albania or Montenegro).

Demographic rebalancing and departure of the United Kingdom

The departure of 73 British representatives has thus made possible for the European Council - made up of the Chiefs of State of the Twenty-eight - to rebalance the

number of European Representatives to follow europe’s demographic evolution, country by country.

This is no different than the situation in 2013,  with the arrival of Croatia.  The number of Parliamentarians had gone up to 766 before the election of 2014. In order to make this possible, ther had to be enacted a derogating measure to the Treaty on the European Union.

Idem in 2007 with the arrival of Romania and Bulgaria. The Parliament went up to 788 members until the following election, in 2009, with a new breakdown coming in under 751 elected members, at 736.

From 410 to 788 European Representatives

This graph shows the number of European Representatives sitting in Parliament since its inception in 1979 to 2018 (see original for interactive numbers).

No clear guideline in European Law

No European law-maker or Brussels jurist had foreseen the present situation until now

within which a Member State wants to leave the EU but changes its mind at the last moment just before an election to postpone the moment of departure. In this context,

and awaiting a decision from London on a postponement and on Brussels on how this might be done, all the hypothesis are mere interpretations of law.

• Postpone, yes, but only for a few weeks

The first option, the simplest from a legal point of view, would be to postpone Brexit 

to no later than the end of June, thus after the election, but before the new session of the European Parliament. It follows automatically that London would not need to organize new elections, nor send elected Representatives to Brussels.

• Prolong but without British Members

It would also be possible, according to Legal Services to the Parliament, as we have had access to, that Parliament be legally constituted even if London cannot manage to run elections within prescribed time limits. In this case, the United Kingdom would be derelict in meeting its obligations, from the perspective of European treaties which impose elections of Members so as to ‘participate in the democratic life of the Union’.

In this scenario, each Member State would keep its current number of Members, and the United Kingdom would have...unoccupied seats. We would thus find ourselves with a Parliament of 678 Members. Here, there is no redistribution of British seats.

• Prolongation with derogation

This procedure has, at the moment, not been considered: a scenario which inverses the last new membership, that of Croatia. Instead of adding seats before an election to later

redistribute them between Member States, would it not be possible to temporarily assign seats to the United Kingdom, going through a derogatory measure ‘to the maximum number of seats as per article 14, paragraph 2, first subsection’, these seats becoming vacant on the day of the effective departure of the United Kingdom?