Brussels will have to terminate the UK’s extended membership of the EU on July 1 if elections for British members of the European Parliament (MEPs) have not been held, a leaked legal document revealed.
A three-month delay to Brexit beyond 29 March would not carry any conditions, but anything longer than that requires the UK to have taken part in European parliamentary elections, EU ambassadors have been told.
EU law does not stand in the way of multiple extensions to the UK’s membership if requested, the document says.
However, if elections had not been held in May and the UK subsequently sought to stay on as a member state to avoid a no-deal Brexit, for example, the EU would be bound to reject a request, the document seen by the Guardian says.
“No extension should be granted beyond 1 July unless the European parliament elections are held at the mandatory date,” the legal opinion shared among ambassadors on Friday says.
The EU would “cease being able to operate in a secure legal context” should there be an extension beyond July 1 and British MEPs had not been elected, it says.
“All acts of the union that would be adopted with the participation of an irregularly composed parliament would be open to legal challenge on this ground, which would put the security of legal relations in the union seriously at risk,” it adds.
The 27 heads of state and government are to discuss and decide on the UK’s expected extension request at an EU summit on Thursday.
The British House of Commons voted to seek an extension to June 30, should British Prime Minister Theresa May’s deal pass at the third time of asking.
May had informed lawmakers that a lengthier extension would be required if the deal was voted down again as she sought to win round the rebels in her party.
The leak of the document would probably help May in her bid to play up the threat to Brexit that would come if the withdrawal agreement was rejected again.
European Council President Donald Tusk is lobbying member states to keep an open mind to such a prolonged delay to potentially allow the British government to rethink its strategy.
Some Brexiters have suggested that the UK could stay in the EU for 21 months to allow it to negotiate a full trade deal and avoid the problem of the Irish backstop, which would hold the UK in a customs union to avoid a hard border with Ireland.
However, the document leaked to the Guardian suggests that the UK would have to hold elections for British MEPs by the time the European parliament sits for the first time on July 2, despite claims to the contrary by some legal experts.
It also says that the UK would not be able to negotiate on the future relationship as a member state.
The EU’s legal advice is that only treaty change could allow the UK to stay a member state without having held elections.
“Past experience shows that ratification by all member states could require at least two years,” the document says. “Therefore this possibility is not feasible in practice.”
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