At a time when the first decision by the European Court of Justice regarding the implementation of Article 50 of the Treaty on European Union (TEU), and more specifically the legality of the Council’s authorization to open negotiations, will be rendered on 26 November 2018,

At a time when the question of the reversibility of the Article 50 TEU procedure will be heard on 27 November 2018 in the context of an urgent preliminary ruling procedure before the CJEU,

And at a time when the demand for a second referendum has never been higher, especially following the report from the Electoral Commission of 17 July 2018 highlighting the overshoot of election expenses ceilings by the Leave camp…

…an issue of constitutional importance for the European Union arises.

It is the key issue of the right to vote and eligibility of British citizens in the European elections of May 2019.

Will British nationals be able to vote and stand for election to the European Parliament?

A first negative answer comes immediately to mind, for at least three reasons.

On the one hand, in the event of a forced agreement ratifies in extremis, the draft agreement clearly excludes the British nationals’ right to vote and eligibility to the European elections (Art. 122(1)(b)):

“Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period.

However, the following provisions of the Treaties and acts adopted by the institutions, bodies, offices or agencies of the Union shall not be applicable to and in the United Kingdom during the transition period: (b) Article 11(4) TEU, Articles 20(2)(b), 22 and the first paragraph of Article 24 TFEU, Articles 39 and 40 of the Charter of Fundamental Rights of the European Union, and acts adopted on the basis of those provisions”.

On the other hand, all the actors in the ongoing negotiations are using the fateful date of March 29, 2019 (23h GMT) to find an agreement in case of a non-exit from the EU and the Euratom Treaty, i.e before the European elections in May 2019.

On June 13^th, 2018, the European Parliament approved the reduction of the number of representatives to take the loss of 73 British MEPs into account. The decision was taken by the European Council on June 28^th, 2018: of the 73 seats left vacant, 27 will be reassigned to 14 Member states considered slightly under-represented in the European Parliament.

In legal terms however, this question of the right to vote seems more complex than it seems.

Art. 3(2) of the European Council Decision (EU) 2018/937 of 28 June 2018 provides that the United Kingdom may still be a Member state during the next European elections: “However, in the event that the United Kingdom is still a Member State of the Union at the beginning of the 2019-2024 parliamentary term, the number of representatives in the European Parliament per Member State taking up office shall be the one provided for in Article 3 of the European Council Decision 2013/312/EU until the withdrawal of the United Kingdom from the Union becomes legally effective”.

However, two different interpretations of the Decision sow doubt on this programmed exit synonymous with loss of voting rights and European eligibility.

On the one hand, the deadline for leaving the Union is not clearly defined in Article 50 TEU (1). On the other hand, the deadline cited in Art. 2 and 3 of the European Directive 93/109/EC to register on the electoral lists in 1993 could not anticipate the adoption of Article 50 TEU in 2009 and its implementation in 2017 (2).

Calling the date of exit without an agreement on March 29, 2019 into question

It is quite surprising that no one contradicts the politicized and publicized date of March 29, 2019.

However, one only has to read article 50(3) TEU to question the accuracy of this deadline:

“The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”

Words have a meaning and the general structure of the sentence cannot hide a serious inaccuracy.

In the absence of a withdrawal agreement, Article 50 TEU mentions the two-year period ‘after’ the notification and not two years ‘from’ the reception of the notification.

The drafters could have been as precise as, for example, Art. 263 TFEU that states: “The proceedings provided for in this Article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.”

But where in Article 50 TEU do the representatives of the EU and the UK read that the two-year period begins from the signature of the letter of intent to leave the Union – Mr. Tim Barrow handing it over to Mr. Donald Tusk, or a handshake between the representatives of the European Council and those of the UK?

With regard to the withdrawal agreement, however, the term « from » is used in the same paragraph of Article 50 TEU.

But this precision is not repeated in a No Deal scenario, while it was easy to specify « from the receipt of the notification letter ».

This allows for a different interpretation of the date of March 29th, 2019.

The term « after » the notification gives the ECJ free interpretation of the starting point of this « no deal Brexit » period.

The starting point may be May 22th, 2017.

Indeed, the act of transforming a national initiative for the withdrawal of the European Union into a European procedure governed by Article 50 TEU – and thus the starting point « after the notification » – can only be the formal and detailed authorization of 22 May 2017 by the Council of the European Union to open negotiations, and its annexes laying down the negotiating directives.

This decision of 22 May 2017 is implicitly divided in two acts: a decision to open negotiations (the instrumentum), and the decision to trigger Article 50 TEU (the negotium).

Article 50 TEU does not impose a withdrawal agreement nor the start of a European negotiation phase by the Council of the European Union following the national notification:

“A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.”

The Union negotiates and concludes an agreement but the text imposes nothing on the Council; it does not indicate that the Council must “authorize” – which is not found in Article 218 TFEU either, more generally, regarding the negotiation and conclusion of international agreements. The Council of the EU is therefore not in a position of bound competence and must verify the respect of fundamental rights and democracy as provided for in the treaties, such as the equality of European citizens when voting before triggering Article 50 TEU.

For this reason, it is not illegitimate to set the UK’s exit date from the EU to 22 May 2019, nearly two months longer than 29 March 2019.

The General Court will probably provide an initial answer to this question in the forthcoming judgment in Shindler and Others, and the Court of Justice of the European Union could take up this issue with the accelerated preliminary ruling by the Scottish Supreme Court on reversibility.

In any case, two more months of negotiations would be a breath of fresh air for both parties.

However, such a position would spur the thorny issue of the right to vote and eligibility of the British for the 2019-2024 term of office for the European elections starting the same day of the exit, from May 23 to 26 May 2019.

Ultimately, to consider that the « no deal Brexit » begins on 23 May 2019, the very day of the European elections, is tantamount to seriously questioning the right to vote and eligibility granted to British citizens. Yet such a right, if it were recognized, would undermine the « Brexit » by inducing a possibility of representation of British European citizens within this European institution.
And it is also appropriate to question this right in the event of a confirmation of the exit of the European Union on March 29, 2019, or even an extension of the date of exit induced by the extension of the negotiation. What to do with British MEPs elected after, concomitantly or during the Brexit extension phase?

Interpreting the “reference date” to register to vote in the light of Article 50 TEU

The right to vote and to stand as a candidate in the European elections is conditioned by European citizenship, which is assessed in accordance with Article 3 of Directive 93/109/EC as follows:

“Any person who, on the reference date:

(a)is a citizen of the Union within the meaning of the second subparagraph of Article 8 (1) of the Treaty”

Interpretation is complicated by the fact that Article 2 of the same Directive, by defining the concept of “reference date”, does not, logically, have any link with Article 50 TEU adopted subsequently and merely states that:

“8.‘reference date’ means the day or the days on which citizens of the Union must satisfy, under the law of the Member State of residence, the requirements for voting or for standing as a candidate in that State;”

The Court of Justice of the European Union is sole competent to interpret the notion of « reference date » found in Articles 2 and 3 of the European Directive 93/109/EC, pursuant to Article 267 TFEU.

Moreover, the same question relating to the notion of “reference date” arises for municipal elections in the light of Council Directive 94/80/EC of 19 December 1994, laying down the procedures for the exercise of the right to vote and eligibility for municipal elections for Union citizens residing in a Member State of which they are not nationals.

The Court’s monopoly of interpretation on this undefined concept, when combined with Article 50 TEU – an article entered into force long after the directive with the Lisbon Treaty, must be exercised.

The role of European lawyers is of prime importance in seeking requests for a preliminary ruling from national judges to the CJEU, in order to obtain a clear and uniform answer for British citizens living in the 28 states of the Union.

Indeed, both Article 39 of the Charter of Fundamental Rights of the European Union and Article 1 of the European Directive 93/109/EC specify that every European citizen has the right to vote and to stand for election in Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State.

Thus, if British applications for registration on the electoral lists take place prior to the exit, but the vote is either concomitant or subsequent to the exit of the United Kingdom from the European Union, it follows that the British are European citizens at the time of registration but will no longer be at the time of the vote.

Also, in the event of an extension of the withdrawal period provided for in Article 50 TEU, British citizens will remain European citizens, but the term of office of MEPs will be longer than the duration of the extension of their status as European citizens.

Finally, in the event of a withdrawal agreement ratified before the exit date, providing for the safeguarding of the rights of European citizens until the end of the year 2020 except for the right to vote and to stand for election, could the Court of Justice consider that such divisibility of the rights of European citizenship disregards the fundamental status previously recognized for nationals of a State which has become a third party to the European Union?

In other words: is the United Kingdom a third State in the making, and are British nationals third-country nationals in the making, already deprived of a right that they derive from EU law? (ECJ, Judgment of the Court, Kingdom of Spain v. United Kingdom of Great Britain and Northern Ireland, 12 September 2006, No. C-145/04).

With Article 50 TEU, it is impossible to know whether the “reference date” is the day of registration, or the day of the vote, or even the day of expiry of the term of office of MEPs.

The aforementioned European Directive merely refers to the « law of the Member State of residence ».

Technically, the national law of each Member state defines the “reference date”, so that there may be divergent national situations, and therefore no uniqueness regarding the fate of British citizens according to the Member States of residence.

This is all the more true in view of establishing a “Unity in the representation of citizens requires the adoption of a uniform electoral procedure or, at least, a procedure founded on common principles. (…) That is the meaning of Article 223(1) TFEU.” (Opinion of Advocate General Cruz Villalon on CJUE Delvigne-Commune de Lesparre, C-650/13, §101)

There is no text saying that it is possible to distinguish the act of registering from the act of voting, especially in a process of withdrawal from the European Union deemed irreversible by the European Commission and the UK Supreme Court (Miller case, §26), and about to be clarified by the Court of Justice of the Union after the hearing of 27 November.

It is hardly conceivable to allow British citizens to register on electoral lists to remove them automatically a few weeks later.

Such cancellation will in any event be challenged in court. This will undoubtedly call for a new accelerated preliminary question to the Court of Justice in order to get its interpretation of the right to vote and to stand for election to the European elections of the British – which can be transposed to the right to vote and eligibility to municipal elections in the Union governed by Directive 94/80/EC.

European friends and colleagues, it is from us that the impetus for an accelerated preliminary ruling on these constitutional questions for the European Union will come. No rights are yet lost for British European citizens. It’s now or never!

Julien Fouchet, lawyer at the Bordeaux bar, SCP Cornille-Pouyanne-Fouchet. Co-president of the Association pour l’Unification du Droit des Affaires en Europe (AUDE), defending with other partners a project of European Business Code. @EU27Voices4UKRemain – Paneuropean solidarity initiative « PECS ». Represents 13 applicants in case T-458/17 Shindler v Council of the European Union.