20 March 2019

The EU27 are prepared to wait until 28 March to grant an extension to Article 50, but only if the UK passes the Brexit deal next week. If MPs are serious about avoiding a no deal, their only option may be a longer extension, argues Georgina Wright.

In writing to request a one-off Brexit delay to 30 June, the Prime Minister put the ball firmly in the EU27’s court. In his statement in response, Donald Tusk sent it straight back. The EU Council President made clear that the EU27 would only agree to a short extension if the UK Parliament passes the deal next week.

He is silent on what happens if the deal fails. If MPs are serious about avoiding a no deal Brexit, their only option may be a longer extension.

The UK will need to hold another meaningful vote before the EU27 agree

Michel Barnier, the EU’s Chief Negotiator for Brexit, had previously made clear that the EU27 expect the Prime Minister to assure them that she can get a deal through Parliament. The EU27 have suggested that the only way to convince them would be to hold a meaningful vote next week. Their argument is simple. If Parliament passes the deal, the UK and EU27 could agree to a short technical extension which would allow the EU to ratify the deal and give the UK more time to adopt necessary domestic legislation. 

The EU may not want to extend until 30 June

Donald Tusk has said the Prime Minister’s proposal for a delay until 30 June “creates a series of questions of a legal and political nature”, presumably referring to the European Parliament elections which are taking place on 23-26 May. 

From the EU’s point of view, an extension until 23 May would be relatively straightforward as the EU Parliament elections could go ahead as planned, without UK participation, on 23-26 May. This would include the reallocation of 27 out of the 73 British seats among the EU27. A June deadline on the other hand looms dangerously close to the first plenary of the new European Parliament on 2 July. If the UK did decide to remain a member state past July, the new EU Parliament, without British seats, would not be able to carry out its activities. The EU27 might decide this is not a risk they are willing to take. Meanwhile the UK could be challenged in EU courts for denying UK or EU citizens in the UK the right to vote, or indeed stand, in European Parliament elections while it was still a member state. 

If Parliament rejects the deal, a longer extension could still be on offer – but with conditions

But the EU27 are silent on what happens if the deal fails. This leaves the door open to a longer extension if the UK wanted it. But here too there would be conditions.

First, the UK Government would still need to present a clear plan on how it intends to use the extension to resolve the current impasse. The EU27 would want to see a move to create a stable and secure majority on the way forward: either a new Parliamentary consensus on the future relationship, a general election or a commitment to hold another referendum. 

Second, the EU27 will want to make sure than a long extension does not “impact the smooth running of EU institutions”. The EU have important discussions coming up, including how the next seven-year EU budget will be spent. As a member state, the UK would still have a veto. The EU27 would want to make sure that it did not use this veto to frustrate EU processes. 

The EU27 are prepared to wait until 28 March to grant a Brexit delay

The EU27 are unlikely to sign up to an extension without the assurance that more time will make a difference. But delaying their answer should not be too much of a problem. EU heads of government could easily agree to an extension in “principle” at the EU Council this week, but have their Ambassadors in Brussels sign off the full terms once the UK has held a meaningful vote. The EU Council President suggested as much in his statement today. In theory, an extension could be approved as late as the 28 March.

The EU do not want the UK to leave without a deal. The Dutch Prime Minister Mark Rutte has warned of the ‘devastating’ impact of a no deal. Other EU leaders have voiced similar concerns. It is still not clear how Ireland and the EU would handle no deal at the Irish border

But their patience is wearing thin. With nine days to go, the Prime Minister has little time to play with. The EU has made its position clear. Further delay and prevarication will only increase the sense of frustration on both sides: a hardening of positions risks undermining constructive thinking even before future negotiations on security and trade have started.

Comments

The final blink has arrived. The UK can have brexit just as soon as they have handed Northern Island over to the EU and accept all orders they are given without a murmer.

The government might not have carried over all the EU's international agreements, but someone should look at which existing ones might provide protections.

The EU has undertaken to respect the UN Charter, which takes precedence over later treaties. This insists on respect for self-determination, and (through UN resolution 2625) bans political and economic coercion. Read 'bullying'.

The 1995 Barcelona Declaration upholds national territoriality; the UK is a signatory in its own respect.
This enables the Pan Euro Med Convention, EU commitment to free trading and keeping customs matters like rules of origin and cumulation straightforward.

Finally there is an under-explored mass of WTO jurisprudence, test cases for keeping trade flowing. Some WTO Agreement annexes like the Technical Barriers to Trade and Sanitary & Phytosanitary Agreements have obligations that take precedence over EU customs union or free trade agreement provisions. i.e. no unjustified discrimination and no unnecessary barriers to trade.