Thread by @SimonFRCox

Can UK Gov legally cancel elections to the European Parliament in May? Even if UK *might* still be in EU on 1 July, when the MEPs are due to take their seats?
A thread 1/20

EU law experts are disagreeing about this. Advocate-General Sharpston of the EU court says its probably OK legally

https://twitter.com/akulith/status/1105978993491263488

, while EU Law Prof @mayer_Franz thinks otherwise verfassungsblog.de/collateral-dam… (use GoogleChrome & it'll translate) 2/

It's now only 10 weeks until the window set by the EU for holding elections. 5 years ago, the UK's detailed rules were finalised 6 weeks before. So the UK Gov has time to organise - but does it have a legal duty?

Here's the law & my thoughts 3/

So long as UK remains an EU Member State, it's bound by the EU Treaties. Art 10 of Treaty on EU establishes the European Parliament to directly represent citizens, and art 14.3 says the elections must be every five years. 4/ 1. The functioning of the Union shall be founded on representative democracy.
2. Citizens are directly represented at Union level in the European Parliament.
3. Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen." src="/images/1px.png" data-src="https://pbs.twimg.com/media/D1pLCj1X0AAQvja.png">3. The members of the European Parliament shall be elected for a term of five years by direct universal suffrage in a free and secret ballot." src="/images/1px.png" data-src="https://pbs.twimg.com/media/D1pTnzsX0AIX1fo.png">

It's a fundamental individual right of each EU citizen to vote for a Member of the European Parliament - and stand to be one - says Art 20 TFEU and Article 39 of the EU Charter of Rights 5/ 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(b) the right to vote and to stand as candidates in elections to the European Parliament . . . in their Member State of residence, under the same conditions as nationals of that State;" src="/images/1px.png" data-src="https://pbs.twimg.com/media/D1pNDfNX0AA3w7m.png">1. Every citizen of the Union has the right to vote and to stand as a candidate at elections to the
European Parliament in the Member State in which he or she resides, under the same conditions as
nationals of that State.
2. Members of the European Parliament shall be elected by direct universal suffrage in a free and
secret ballot." src="/images/1px.png" data-src="https://pbs.twimg.com/media/D1pUu-7XcAAsgfZ.png">

The last European Parliament elections were held in May 2014. The Council has set the first sitting of the newly elected Parliament on 1 July 2019. (That's when Parliament starts to elect its officers, so its especially important.) 6/

The UK's European Parliamentary Elections Act 2002 implemented EU law legislation.gov.uk/ukpga/2002/24/…

This Act is still in force. The UK's EU (Withdrawal) Act 2018 will revoke it (Sched 9), but only on "exit day" - the day UK leaves the EU: legislation.gov.uk/uksi/2018/808/… 7/

If UK hadn't given A50 notice, preparation in UK for the May 2019 elections would be getting underway. Electoral Commission likes regulations laid 6 months in advance., but last time they were only in force on 6 April: 6 weeks before electoralcommission.org.uk/__data/assets/… 3.6 8/

The detailed EU law on elections is Council Decision 76/787. cvce.eu/content/public… (Personal note - my late father stood in the first Euro Parl elections in 1976. I remember his fear that he might get elected. It's OK - he didn't.) 9/

EU elections law gives EU institutions very little flexibility about timing. Decision 76/787 requires elections in the same "period" each five years. The period is 23-26 May. Article 11(2) might give the Council power to extend the time for elections - but only by one month. 10/

Does Article 50 TEU help? It doesn't mention Parliamentary elections. And Court of Justice of EU has already ruled that UK's A50 notice doesn't change UK's powers and duties as a Member State for issuing European Arrest Warrants or returning asylum seekers under Dublin III 11/

Eleanor Sharpston pointed out that when Croatia *joined* EU half way through a Parliament, the EU made special provision for elections. EU did that in Croatia's Accession Treaty under Article 49 TEU.

https://twitter.com/akulith/status/1105978993491263488

12/

Could UK & EU do the same under Article 50? The A50 legal mechanism equivalent to an A49 Accession Treaty is the Withdrawal Agreement. So maybe UK & EU could *include in a Withdrawal Agrement* a clause cancelling elections. 13/

But the UK & EU aren't about to make a Withdrawal Agreement - at least not one that needs to deal with the possibility of UK being a Member State after 30 June 2019. So that isn't available. 14/

Eleanor Sharpston suggests various solutions, but she doesn't identify the EU law power that the EU institutions might have to agree to them. EU law doesn't give the Council (or anyone) a general power to dispense with elections - and any specific power would surely be in A50 15/

This issue is between Union Citizens and the UK/EU. The EU Treaties give Union Citizens the right to vote for their MEP, every five years in May. Until that right is taken away by EU law (as it will be when UK leaves EU) then it stays. 16/

The duty to organise EuroParliament elections in May 2019 is on UK. UK failure to prepare which jeopardises running of those elections would seem to violate EU Treaty rights of UK & EU cits in UK, especially under Art 4(3) TEU which requires UK's loyal co-operation. 17/

If Gov won't act, the UK's High Court (in Scotland, Court of Session) has the judicial review power to order Ministers to lay any regulations needed to run the elections and order Election Commission to run them - if some-one brings a case. 18/

If UK and EU agree a Brexit date that will be before 1 July 2019, then those election plans can be cancelled. And if UK & EU agree a Brexit date after 1 July 2019, the Withdrawal Agreement could cancel elections, eg by allowing existing MEPs to stay in office for a few months 19/

But right now, there is no binding *agreement* for UK to leave EU on any particular date. And it may not be good enough under EU law for UK to say to all the voters on 1 July 2019 "sorry, we didn't plan and so you're not represented" 20/20

Thoughts of others in this thread

https://twitter.com/SimonFRCox/status/1106264615405735936