The UK will leave the European Union at 11pm (GMT) on 29 March 2019, unless an extension to the Article 50 period is requested by the UK and granted by the EU.

Has the UK requested an extension, and if so, for how long?

On 14 March 2019, the Commons approved a motion instructing the Government to seek an extension to the Article 50 period. It set out two scenarios:

  • first, if the Commons approves the proposed Withdrawal Agreement and Political Declaration by 20 March 2019, then an extension until 30 June 2019 would be requested by the Government;
  • second, if the Commons does not approve the proposed Withdrawal Agreement and Political Declaration by 20 March 2019, that “it is highly likely that the European Council at its meeting the following day would require a clear purpose for any extension, not least to determine its length, and that any extension beyond 30 June 2019 would require the United Kingdom to hold European Parliament elections in May 2019.”

The second scenario, it should be stressed, does not
actually set out a proposed Government action. It only implies that if the
Withdrawal Agreement is not approved by the Commons by 20 March 2019, a
longer extension may be necessary (and this would necessitate European
Parliament elections in the UK). This would have to be discussed with the
European Council.

In light of the approved motion, on 20 March 2019 Prime Minister Theresa May officially requested an extension to the Article 50 process in a letter sent to the European Council President, Donald Tusk. The request was worded as follows:

“I am … writing to inform the
European Council that the UK is seeking an extension to the Article 50 period
under Article 50(3) of the Treaty on European Union … until 30 June 2019.”

The remainder of the request makes clear that the short
extension is being requested because the PM is “confident that Parliament will
proceed to ratify the deal constructively” as soon as a next motion voting on
the deal is put forward.

This changes the timeline set out in the 14 March 2019 motion slightly, but otherwise corresponds to the first scenario set out: a short extension, granted on the basis that the negotiated Withdrawal Agreement is approved but more time is needed to ratify and implement the Withdrawal Agreement.

Has the EU responded?

Under Article 50(3) TEU, the European Council is the EU body
that responds to extension requests. The Treaties do not specify the content of
an approval decision– eg, if it can be conditional, or must be unconditional –
but do set out clearly that the EU27 must approve an extension request
unanimously. (Under Article 50(4) TEU, the UK itself does not participate in
these European Council discussions or decisions). Article 325(1) makes clear
that this unanimity requirement does not preclude abstentions; to block an
extension, one of the EU27 would have to explicitly vote against it.

The European Council is meeting on 21-22 March and can take a decision on the UK’s extension request at this meeting. In advance of that meeting, European Council President Donald Tusk made a statement on 20 March 2019, setting out the following position:

In the light of the consultations
that I have conducted over the past days, I believe that a short extension will
be possible, but it will be conditional on a positive vote on the Withdrawal
Agreement in the House of Commons. The question remains open as to the duration
of such an extension. Prime Minister May’s proposal, of 30 June, which has its
merits, creates a series of questions of a legal and political nature. Leaders
will discuss this tomorrow. …

At this time I do not foresee an extraordinary European Council. If the leaders approve my recommendations, and if there is a positive vote in the House of Commons next week, we can finalise and formalise the decision on the extension in a written procedure. However, if there is such a need, I will not hesitate to invite the members of the European Council for a meeting to Brussels next week.

What does this mean?

Donald Tusk’s statement has been interpreted as meaning that the EU has ruled out a longer extension period. However, the only thing that Mr Tusk explicitly said was that a short extension (to 30 June, or perhaps to 23 May, which the Commission argues would be preferable in light of European Parliament elections) would be conditional on a “positive vote” in the Commons regarding the Withdrawal Agreement.

The UK’s request for an extension, and Mr Tusk’s response to it, do not comment on what happens in the absence of a “positive vote”. Mr Tusk merely notes that if necessary, an extraordinary European Council meeting can be arranged next week. This implies that a longer extension period could be discussed there. The European Council approach is not dissimilar to the second scenario set out in the Commons motion – it noted that a longer extension would necessitate European Parliament elections, implying that a longer extension might be necessary.

What happens next?

We expect the European Council to take a decision on the UK
extension request on 21 March 2019, when it adopts Conclusions on Article 50.

If it approves the UK extension request, as Mr Tusk
envisages, this approval will be conditional on the House of Commons passing
the Withdrawal Agreement and Political Declaration before 29 March 2019. The
European Council will also agree the length of any extension.

If it does not approve the UK extension request, the UK will have to consider its next course of action. The Prime Minister could then make a second request for an Article 50 extension, this time for a longer period, and requiring UK participation in the European Parliament elections. This could be considered by the EU in an emergency summit next week or by a “written procedure”. The EU has indicated that this there would need to be “a new event” or “new political process” in the UK to justify granting such an extension.

As the Prime Minister’s letter makes clear that ratifying
the Withdrawal Agreement will prove impossible by 29 March 2019, in the absence
of an extension of the Article 50 period, it appears that the House of Commons
can instruct the Government to do one of two things:

  • Revoke Article 50 TEU, which the UK can do unilaterally (in line with its constitutional arrangements), as the Court of Justice of the EU has confirmed in its Wightman
  • judgment;
  • Leave the EU without a Withdrawal Agreement on 29 March 2019 at 11pm.

The domestic steps needed to revoke Article 50 TEU are not fully clear,, but if the Government cannot revoke the notice under prerogative powers, an Act of Parliament may be needed to revoke Article 50 TEU (as the Supreme Court in Miller concluded that notifying Article 50 TEU required an Act of Parliament).

Further reading

About the author: Dr Sylvia de Mars is an EU and international law specialist in the House of Commons Library.

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