Brexit delayed: the European Council Conclusions on extending Article 50

The UK requests an Article 50 extension

With just over a week to go to the scheduled Brexit date of 29 March 2019, the Prime Minister wrote to the President of the European Council on 20 March requesting an extension to the Article 50 period in order to delay Brexit.

Theresa May had previously stated her opposition to an extension of Article 50. However, following cross-party attempts to force a House of Commons vote on extending Article 50 she committed to holding such a vote on 14 March if the Government had not succeeded in getting its Withdrawal Agreement (WA) with the EU approved by the House by 12 March, and if the House subsequently rejected leaving the EU without a deal.

Following the Commons’ second rejection of the WA on 12 March, and its vote against no deal on 13 March, the Government motion on seeking an Article 50 extension was approved by the House on 14 March. It stated that a one-off extension of Article 50 ending on 30 June 2019 for the purpose of passing the necessary EU exit legislation would be sought if the Commons had approved the WA by 20 March. Alternatively, the motion noted that if the WA had not been approved that the European Council was highly likely to require a clear purpose for any extension, not least to determine its length, and that any extension beyond 30 June 2019 would require the UK to hold European Parliament (EP) elections in May.

The Prime Minister wrote to the President of the European Council, Donald Tusk, on 20 March requesting an Article 50 extension until 30 June 2019. She said that she intended to hold another Commons’ vote on the WA as soon as possible and that the extension would be required to pass legislation to implement it. She said that she did not believe it to be in the UK or EU interest for the UK to take part in the EP elections. President Tusk responded that a short extension would be possible, but would be conditional on a positive vote on the WA.

The European Council agrees an Article 50 extension

The European Council met on 21 March and agreed to an extension of Article 50 until 22 May 2019, provided the WA is approved by the House of Commons in the next week. In the event of the WA not being approved, the European Council agreed to an extension until 12 April 2019. By this point it said that it expects the UK “to indicate a way forward before this date for consideration by the European Council”.

The UK request for an extension to 30 June was based on the view that UK participation in the EP elections could be avoided given that the new Parliament does not sit for the first time until 2 July. However, advice from the European Commission warned of the risk of a scenario whereby the UK then sought a longer extension after 23 May or decided to revoke Article 50 without then having representation in the EP and with some of the UK’s Parliament seats having been reallocated. The Commission warned that the failure to organise EP elections in the UK could make the constitution of the new European Parliament illegal and result in subsequent EU decisions being open to legal challenge. Failure to participate in the EP elections would also see the UK in breach of EU Treaty Articles relating to the rights of EU citizens to vote in EP elections.

The European Council’s agreement to extend Article 50 until 12 April 2019 gives the UK more time to consider next steps should the WA not be approved by the House of Commons prior to 29 March, and to avoid a cliff edge to a no deal Brexit on that date. It also reflects the need for some Member States to have certainty by mid-April as to whether the UK is remaining in the EU for a longer period (and therefore participating in EP elections) given that some of the UK’s EP seats will be reallocated to them. 12 April is also the date by which returning officers in the UK would need to publish notice of the EP elections.

Deal, no deal, a long extension or revoke Article 50

In his remarks following the European Council on 21 March, President Tusk held out the possibility of a longer extension being agreed beyond 12 April if the WA had not been approved and the UK decided to participate in the EP elections. He said the UK Government will then have “a choice of a deal, no-deal, a long extension or revoking Article 50”.

In her statement following the European Council, the Prime Minister said if the WA was not agreed, the UK “would either leave with no deal, or put forward an alternative plan”. Mrs May said that further extension would mean UK participation in the EP elections, but that she believed strongly “that it would be wrong to ask people in the UK to participate in these elections three years after voting to leave the EU”.