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Article 22 of the Treaty: an exception to the European election for the British?

(B2) A news has spread like wildfire in the British press in recent hours: Article 22 of the Treaty would make it possible to determine an exception to the holding of European elections. This would thus make it possible to push back beyond June 30, 2019 the 'official' date of Brexit. Is it correct ?

This information was notably taken up by our colleague from the Guardian.

Does article 22 allow a derogation to have British MPs elected?

No. We checked... There seems to be a 'small' misinterpretation by our British colleagues. Article 22 of the Treaty does not concern European elections as such, it authorizes the right of European citizens to vote in a European country other than that of which they are a national for elections (municipal or European). It is only in addition to this provision that the Treaty attributes to the Council the task of determining exceptional measures, and not to the principle of the election itself.

"Without prejudice to the provisions of Article 223, paragraph 1, and the provisions adopted for its application, any citizen of the Union residing in a Member State of which he is not a national has the right to vote and stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right will be exercised subject to detailed rules adopted by the Council, acting unanimously in accordance with a special legislative procedure, and after consulting the European Parliament; these arrangements may provide for derogatory provisions when justified by problems specific to a Member State.

It is not possible to establish, on the basis of this provision alone, a basis for allowing the adoption of a derogatory regime in the European elections in Great Britain.

Another arrangement

On the other hand, there is a provision, in Article 14 of the Treaty, which allows the " European Council unanimously, on the initiative of the European Parliament and with its approval, [to adopt] a decision determining the composition of the European Parliament ". But this is subject to compliance with two principles: 1° The European Parliament is made up of representatives of the citizens of the Union. 2nd " Representation of citizens is ensured in a degressively proportional manner ". This could require modifying the Treaty to insert a temporary provision for the British: this is possible with an accelerated procedure ('ordinary' procedure, without calling a Convention, as provided for in Article 48), but this supposes a subsequent ratification procedure in each country. A bit complex...

Impossible is not European

We will still have to interpret all this. But I trust the ingenious European lawyers to find a solution. Experience in the past has proven that everything that is impossible one day, becomes possible the next day, by finding a trick in some corner of the treaty, or even in international law... The same people who learnedly explained your heart on the hand that it was impossible then coming to explain the opposite to you, with a smile on his face.

(Nicolas Gros-Verheyde)

Updated - supplemented on Treaty amendment

Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).

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