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EU lawyers say European Parliament can carry on without Brits after Brexit

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EU lawyers say European Parliament can carry on without Brits after Brexit

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EU lawyers say European Parliament can carry on without Brits after Brexit

The legal considerations of how the Brexit delay can affect European elections are complex and potentially rather important

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With even Theresa May now acknowledging a possible delay to Brexit day, it looks increasingly likely that the UK will still be an EU member state when the European elections are held in May.

The legal and political considerations of what that implies — both for Brexit and the elections themselves — are complex and potentially rather important.

On one question the EU institutions are united: if Britain remains a member state during the election period of May 23-26, it is treaty-bound to hold a vote.

A harder question is what happens if the Brits refuse. Can a new set of MEPs take their seats if the UK breaches its treaty obligations? Would the European Parliament, in other words, remain legitimate?

The Brussels Briefing has seen confidential advice from the parliament’s in-house lawyers that says the chamber and its legislative work can’t be held hostage by the UK’s failure to hold an election.

EU law requires the new parliament to sit on July 2. The lawyers are clear: “Even in the case that the UK would not hold elections, the new European Parliament could validly be constituted,” said the opinion dated February 1. It adds that there is “no rule hindering the EP from being validly constituted even without all seats having been allocated at the time of the first sitting” — raising the possibility of 73 empty UK seats come July.

A key part of the opinion also dismisses fears that the work of the new EP — sans UK MEPs — risks being illegal. The new parliament would be “fully entitled to exercise its competences . . . even without the participation of the UK”, the lawyers conclude.

That means crucial early tasks for MEPs — such as approving a European Commission president, and quizzing the new batch of nominated commissioners — can carry on uninterrupted despite the British limbo.

The advice goes further still. It also shuts the door on some of the more creative ideas about how the Brits could find MEPs to fill the seats without an election. The lawyers rule out Britain sending sitting UK parliamentarians from London to Brussels (dual mandates are illegal). They also stress that any decision allowing Brits to have “observer” status in the parliament — like that enjoyed by some accession countries — requires a change to primary EU law and thus ratification through 28 national parliaments.

The complications don’t stop there. Parliament insiders are already thinking about what to do if the Brits are in as of July 2 but out by the end of 2019.

The legal opinion says the full 751 seats would have to be filled as long as the Brits stay. Should they finally exit, the chamber will have to switch to having 46 less seats with 27 others being shared out among existing member states. It’s an unprecedented administrative upheaval that will involve rejigging jobs and finding new MEPs for some countries.

And apart from the law, there’s the politics of Brexit that could still trump events. The UK government risks being sued by voters for failing to hold the vote. Confident he would sweep to victory in an election, Nigel Farage has reportedly hired lawyers and is ready to take the government to the ECJ.

As Larissa Brunner and Fabian Zuleeg write for the EPC, the potential political downsides of a Britain actually holding its vote could be quite considerable for Brussels.

Chart du jour: sterling surge

The pound is on a rip as the House of Commons moves towards ruling out a “no-deal” Brexit. Labour on Wednesday night said it would formally move towards supporting a new referendum after the party lost a vote calling for a customs union Brexit. But Jeremy Corbyn, who has done his best to avoid explicitly backing a new vote until now, also kept the door open for fresh elections instead. In Paris, Emmanuel Macron warned the EU was in no mood to grant the Brits extensions to nowhere. Angela Merkel was more open to the idea. (FT, EUObserver)

Planet Europe

Turbulence ahead
Emmanuel Macron has demanded explanations from the Dutch government after it bought up a surreptitious 14 per cent stake in Air France-KLM without telling Paris. Wopke Hoekstra, Dutch finance minister, tells the FT he wants to use the stake to push the carrier into becoming more competitive — hinting at Dutch frustrations with the French arm of the airline. Peter van Ammelrooy at Volkskrant thinks the uncharacteristic Dutch move is born of paranoia: KLM is petrified of turning distinctly Belgian. Shares in the carrier dropped 12 per cent on Wednesday.

Hansa off our cash
France and Germany are fighting over the fate of Margaret Thatcher’s €5bn UK rebate if the UK crashes out without a Brexit deal. The FT has the scoop:

“At issue is whether the UK rebate still exists after Brexit day and what it means for the so-called ‘rebates on the rebate’, which capped how much Germany, the Netherlands, Sweden and Austria were required to pay towards compensating Britain. Depending on the outcome, Germany might be forced to contribute €728m extra this year, while France would gain roughly €460m.

‘We know this could be toxic,’ said one EU diplomat handling Brexit. ‘This is the poster boy for post-Brexit divisions.’”

Wings clipped
The ECB’s erstwhile hawks are falling into line as the eurozone economy grinds to a halt. “The big news from the ECB is that monetary hawks are becoming an endangered species,” notes Melvyn Krauss, senior fellow at the Hoover Institution. (FT)

Germany’s champions
Angela Merkel has thrown her weight behind a German reimagining of EU industrial policy. But opinion is split. Alexander Hagelüken at SZ thinks the chancellor is backing the right horse and has the weight of big German businesses behind her. Heike Göbel at FAZ says a more activist state will put German and European taxpayer interests in peril.

AfD in revolt
Bild reports on a rebellion inside the ranks of Germany’s anti-Islam AfD where MPs are being forced to attend the party’s internal debates to boost flagging attendance.

Embassy alert
Spain is investigating a possible assault on an employee in North Korea’s embassy in Madrid. (New York Times)

Lay offs
Reuters is making 25 job cuts in its Paris office. (Le Monde)

Dirty money deadline
EU governments have until 1600 CET Thursday to try and stall the commission from automatically adopting its first independent anti-money laundering blacklist that’s been lambasted by the US and which includes Saudi Arabia.

mehreen.khan@ft.com; @mehreenkhn

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