Earlier this morning the EU and the UK agreed on a further "Brextension". The European Council decision of 11 April 2019, "taken in agreement with the United Kingdom extending the period under Article 50(3) TEU" further extends the negotiating period to 31 October 2019. If the previously negotiated Withdrawal Agreement is ratified earlier, then withdrawal "should take place on the first day of the month following the completion of the ratification process".
Today's decision emphasises that in the meantime the UK remains a Member State, "with full rights and obligations". The obligations include the duty to hold European Parliament (EP) elections. The next EP elections are scheduled to take place between 23 and 26 May 2019.
This update summarises the issue and explains the procedure that will have to take place in order to hold EP elections in the UK.
Background
The legal basis for EP elections is contained in the European Treaties: Article 14 of the Treaty on European Union (TEU) and Articles 20, 22 and 223 of the Treaty on the Functioning of the European Union (TFEU)) as well as in the Act of 20 September 1976 "concerning the election of the representatives of the Assembly by direct universal suffrage (the "Electoral Act"), last amended in 2018.
EU citizens have the right to be represented in the European Parliament and to vote (and stand) in its elections. A failure of a Member State to hold EP elections would be viewed as a breach of these provisions.
EU law lays down common principles such as the principle of proportional representation and the right of EU citizens residing in another Member State to vote in the elections in their state of residence and under the same conditions as its nationals. These principles are supplemented by specific national provisions.
Does the UK have to hold EP elections?
Commentators have expressed different views about whether the EU would be prepared to accept a situation in which the UK was still in the EU at 22 May 2019 but had not held EP elections.
Today's European Council decision makes it clear that the UK will indeed have to hold elections if it wants to stay in the EU during the agreed negotiating period: "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 the obligation to hold the elections to the European Parliament in accordance with Union law. In the event that those elections do not take place in the United Kingdom, the extension should cease on 31 May 2019."
Not holding EP elections could therefore result in the UK leaving the EU on 31 May 2019 without a deal.
What is the timetable for the UK election?
EP elections take place over a four-day period (Thursday to Sunday) in order to accommodate electoral practice across the EU. This year's election period will be 23-26 May.
On 8 April 2019, the UK Government made the European Parliament Elections (Appointed Day of Poll) Order 2019 ("EP Elections Order"). The order appoints Thursday 23 May 2019 as polling day for the EP elections in the UK and Gibraltar.
The Electoral Commission has now published the election timetable. According to this timetable, the process will begin tomorrow, Friday 12 April 2019.
As a result of a bank holiday in Gibraltar on 29 April and on 1 May 2019, some electoral deadlines in the South West electoral region are different to the deadlines elsewhere in the UK. Accordingly, notices of elections for the South West electoral region (including Gibraltar) will have to be published no later than 12 April. Notices of elections for all other electoral regions will have to be published by Monday 15 April.
Closing date for nominations and candidate lists are 24 April (South West) and 25 April (rest of UK) respectively. The deadline for applications to register to vote will be 7 May and the deadline for postal vote and proxy vote applications will be 8 May and 15 May respectively (same for both South West and the rest of the UK). On election day (23 May), the polls will be open between 7am and 10pm. Results are expected from 10pm on 26 May.
Will there definitely be EP elections?
The UK is now expected to leave the EU on 31 October at the latest. If it does, the UK would have been required to hold EP elections in May. However, if the Withdrawal Agreement is ratified by 22 May 2019, the UK would not be required to hold EP elections.
The UK Government has started preparations for the EP elections. However, the Prime Minister's stated intention remains to obtain Parliament's approval of the Withdrawal Agreement and to leave before 22 May. The explanatory memorandum to EP Elections Order reads: "It remains the Government's intention to leave the EU with a deal and pass the necessary legislation before 22 May, so that we do not need to participate in European parliamentary elections. This Order appoints the date of the European Parliamentary elections, but it does not make these elections inevitable as leaving the EU before the date of election automatically removes our obligation to take part."
The election process will start tomorrow. It remains to be seen whether we get to cast our ballots.
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