Cuyvers, Armin

<intR>²Dok

Protecting the EU from a Kill Switch:Why EU Law Does Not Require EPElections in the UKArmin Cuyvers 2019-03-29T09:22:10According to the EU, postponing Brexit beyond May 23 legally requires UK electionsfor the European Parliament. If no elections are held, the argument goes, the newEuropean Parliament would not be legally constituted. All acts adopted by thatParliament could then be open to legal challenge. Imagine the chaos.Several legal arguments support this view. Chief amongst them is Article 14(3)TEU, which requires ‘direct universal suffrage in a free and secret ballot’ forEuropean Parliament elections. More generally, elections should not be trifled with,especially not in a Union based on the principle of democracy. The UK, it seems,should therefore choose: leave before May 23, or hold elections for the EuropeanParliament. Yet, on closer inspection, this conclusion is not as legally convincing as it appears.The failure of one Member State to participate in elections for the EuropeanParliament does not necessarily undermine the legality of the entire EuropeanParliament. Luckily so, one may add. For the current EU position effectively givesevery Member State an EU kill switch. Simply by not holding European Parliamentelections, any Member State could shut down the entire EU. After all, without afunctional European Parliament, there would be no new Commission, no EU budget,and no EU legislative acts in general. Imagine Victor Orban, Marine Le Pen, Luigi DiMaio,Thierry Baudet or future equivalents wielding such a kill switch. The problemwould no longer be Brexit, Frexit or Nexit, but EUxit.There are at least five arguments why EU law does not oblige the UK to holdelections for the European Parliament, at least whilst Brexit is on-going. First, we should not just look at the European Parliament but at the whole EUsystem for democratic representation. As Article 10 TEU expressly recognizes, EUcitizens are also indirectly represented in the European Council and the Councilof Ministers, and by national parliaments acting on the EU level. The EuropeanParliament is therefore only one channel of democratic legitimacy in the EU. Interestingly, these other representative institutions are not blocked when aMember State chooses not to participate. Say for example that Italy would refuse toparticipate in the Council. This would in no way block the functioning of the Council,nor would we doubt the legality of any Council decisions taken by a sufficientmajority. Quite the contrary: the Italian absence would not even contribute towardsa blocking minority. Of course, we faced precisely this situation when De Gaulleopted for his famous ‘empty chair policy’. This blocked EU decision-making where- 1 -unanimity was required but did not threaten the legality of any acts adopted duringthis time.  So why would the same rule not apply to the European Parliament? Why would theEuropean Parliament, different from the Council and European Council, becomeillegitimate when one Member State voluntarily chooses not to participate? Consideralso that the quorum for plenary decisions by the European Parliament is only onethird of its component members. Only 251 of the 751 MEP’s therefore have to bepresent to adopt binding laws. This quorum, moreover, is only applied where at least40 MEP’s request the President to check if the quorum is met. If fewer than 40MEP’s object, therefore, the European Parliament can adopt acts with even fewerthan 251 MEP’s, which can easily mean that multiple Member States have no MEPvoting. Yet what about Article 14(3) TEU and democracy, which require ‘direct universalsuffrage in a free and secret ballot’ for European Parliament elections? So even ifthe European Parliament could function without the UK holding European elections,would this not violate the individual rightof each UK citizen to vote for the EuropeanParliament in an election? This is where the second argument becomes relevant: EU law only providesa rightto the UK and its citizens to participate in EU elections, but not an obligation.Here some close reading of the EU Treaties is in order. To begin with, Article 14(2)TEU only states that the European Parliament shall ‘be composed of representativesof the Union’s citizens’. Notice that it does not require all Member States’ citizens tobe represented per Member State. Quite the contrary: formally all MEPs are requiredto represent the interests of all EU citizens anyway. What is more, Article 14(3) TEUonly says that ‘[t]he members of the European Parliament shall be elected for aterm of five years by direct universal suffrage in a free and secret ballot’. Note thatit again does not say that all Member States must participate. The provision onlystates that the European Parliament may not be elected in a different way. Lastly,Article 20(4)(b) TFEU further supports the conclusion that there is no obligation tojoin in European Parliament elections. This provision holds that all EU citizens have‘the right to vote and to stand as candidates in elections to the European Parliament(…)’. In other words, participating in EU elections is a right, not an obligation. Ifcorrect, this also means that EU citizens may choose not to use this right by notparticipating in EU elections. Take the hypothetical example where all Frenchcitizens would choose to boycott the European Parliament elections, donning purplejackets instead. This would leave France without validly elected MEPs. But would itundermine the legality of the European Parliament for five years?Of course, this argument raises the further question of how a Member State, ora Member People, could legally decide not to participate in EU elections. Thisis particularly tricky because voting for the European Parliament is a right of theindividual citizen, and not of the Member State, as the judgments in Matthewsand Eman confirm. So, could the UK take away the individual rights of UK citizensthat do want to participate in European Parliament elections? - 2 -Obviously, this brings us to dangerous terrain. Withholding the right to vote is as darkand problematic as it gets in terms of democracy, and should not be allowed lightly.Yet if there would be one way to justify such a restriction of voting rights then it wouldseem a popular referendum to leave the EU, by direct universal suffrage and in afree and secret ballot, would be it. UK citizens voted to leave the EU, which logicallyentails losing the right to vote for the European Parliament. If the democratically-elected UK government, in executing this wish of the UK voters, then considers itnecessary to delay exit without European elections, so be it. Consider in this regardalso the hypothetical situation where the UK would have submitted its notice to leaveon 29 May 2017 instead of 29 March. The UK would then still have been an EUMember State on 23 May 2019, without the need for an extension. Could UK citizensthen still claim an individual right to vote in European Parliament elections, even if anexit would just be a week away (absent an extension or revocation)?The argument that, in the exceptional circumstances of Brexit, it may be allowed notto hold European Parliament elections is further strengthened by a third argument.This argument isbased on the unique legal context of Article 50 TEU. Joining andleaving the EU are special moments of transition where some rules should and havebeen applied flexibly. Now of course leaving is not the same as joining, and there areimportant differences between Articles 49 and 50 TEU. Yet it is fair to assume thatat least the same level of flexibility should be available in the treatment of a MemberState that is leaving as in the mirror scenario of a State that is actually becoming afull-blown Member. And in the context of accession, multiple fundamental principlesof EU law have been temporarily deviated from, including the right to vote. In the accession of Bulgaria and Romania, for example, it was agreed that Romanianand Bulgarian citizens would not have full free movement rights. Even though theyhad just become full EU citizens, Bulgarians and Romanians were not treatedequally to other EU citizens. This deviated from the foundational EU principle of non-discrimination and equal treatment, which is at least as fundamental as the right tovote for European Parliament elections.The accession of Croatia provides an even more striking example. Article 19 ofthe Accession Treaty makes an explicit derogation to Article 14(2) and (3) TEU.Derogating from primary law, Article 19 first changes the number of seats in theEuropean Parliament. Subsequently, it provides for ad hoc elections in Croatia,even before accession, to fill these extra seats. If, however, the accession ofCroatia would be less than six months before the next European Parliamentelections, Croatian MEPs could be ‘designated by the national Parliament ofCroatia’. Apparently, this would not have undermined the legitimacy of the EuropeanParliament. So why would it be illegitimate if the UK, for a limited time and inthecontext of withdrawal, did not participate in European Parliament elections? Orif the UK Parliament, for example, prolonged the tenure of current UK MEPs by‘designating’ them instead of holding elections? Such an approach, furthermore,would also fit with the principle of subsidiarity and the fact that it is up to MemberStates to determine the specific system for elections to the European Parliament,albeit of course within the limits of EU law. - 3 -A fourth argument concerns the substance of democracy. Would it not beincompatible with the EU’s commitment to substantive democracy that UK citizenswould be bound to decisions from a European Parliament they have not voted for? Inshort, no. To begin with, the UK would have democratically chosen not to participatein the European Parliament elections, whilst it would still be represented in theEuropean Council and the Council. More importantly, there are multiple states thatare substantively bound by EU law without having any direct representation in theEuropean Parliament (or any other EU institution for that matter). Take the examplesof Norway or Switzerland. Substantially, both countries are legally obligated totranspose EU law, in which they had no say, into their national laws. Or stayingcloser to Brexit, take the example of the transition period as agreed in the EU-UKwithdrawal agreement. During transition, which could last between a year and a halfto almost four years, the UK would be fully bound by EU law without having anyrepresentation in EU institutions, including the European Parliament. Apparently,this would not violate the principle of democracy, so why would it if the UK only lostits representation in the European Parliament for a limited time in the run-up to itswithdrawal? A fifth and last argumentconcerns the proper interpretation of EU law. Whenconfronted with multiple possible interpretations of EU law, the Court of Justiceof the EU (CJEU) of course protects fundamental rights. Yet most of all the CJEUprotects the effectiveness, or effet utile, of the EU and its legal order. As seen in interalia Opinion 2/13, Kadi, or Achmea, the CJEU will go to great lengths to protect theautonomy and stability of the EU legal order. Confronted with one interpretationwhich temporarily offers greater protection to the democratic rights of UK citizensbut grants an EU kill switch to each Member State, or another interpretation whichlimits the democratic rights of UK citizens, albeit for a limited time and in a limitedfashion, but which safeguards the future functioning of the EU from fatal sabotage,the meta-principle of effectiveness would argue for the latter. Such an interpretationalso follows from the commonsensical rule that, when interpreting constitutional-likeinstruments such as the EU treaties, one should choose an interpretation that doesnot undermine the long-term viability, stability, and functioning of the polity created.Lastly, an interpretation that would allow the UK not to organize elections wouldalso fit with the strong focus on sovereignty and self-determination in the process ofwithdrawal as stressed by the full CJEU in Wightman.   Clearly the above arguments do not provide a definitive answer, and counterarguments exist. Yet, with Brexit we are in legal and political terra incognita.Moreover, thanks to political brinkmanship, we are far beyond the realm of neat,happy, elegant, win-win or even relatively decent solutions. As a result, we have the obligation to look for the least horrible solution. So yes: notholding European Parliament elections in the UK, even if the UK remains a MemberState after 23 May, is ugly and clearly regrettable. But it is not so obvious that itwould be illegal or threaten the legality of the European Parliament. And faced withtwo possible legal interpretations, why not choose the one that does not hand anEU kill switch to populists? Granted, this is a normative as well as a legal position,but if Article 50 TEU provided populists with the nuclear option of leaving the EU, let- 4 -us not give them the hydrogen bomb of paralyzing the entire EU by not holding EUelections. No Brexit mess is worth that much.  - 5 -

Protecting the EU from a Kill Switch: Why EU Law Does Not Require EP Elections in the UK

http://intr2dok.vifa-recht.de/servlets/MCRFileNodeServlet/mir_derivate_00005575/Protecting_the_EU_from_a_Kill_Switch_Why_EU_Law_Does_Not_Require_EP_Elections_in_the_UK.pdf

Protecting the EU from a Kill Switch: Why EU Law Does Not Require EP Elections in the UK

Abstract

Similar works

Full text

Available Versions

<intR>²Dok