A legal opinion issued by the German Bundestag says Article 50 cannot be extended beyond the end of May unless the UK agrees to hold elections to the European Parliament.
UK prime minister Theresa May conceded this week that Britain might have to seek “a short, limited” delay to Brexit, rather than leave on 29 March without a deal.
EU leaders have generally expressed openness to the idea. “If Britain needs a little more time, we will not refuse them that,” Angela Merkel, the German chancellor, said in Paris this week.
But the legal opinion, issued by the Bundestag’s Europe department, highlights the potential problems Mrs May might encounter in seeking an extension from the EU27.
It says the UK would be obliged to hold European elections, which are scheduled to take place from 23 to 26 May, if Brexit is delayed. A failure to do so would amount to a “violation of the active and passive voting rights of British nationals”, as well as of EU citizens living in the UK.
Should Britain not take part in the election, even though it would still be an EU member state on 26 May, “British citizens living in the UK would be denied a fundamental right conferred on them by citizenship of the European Union.”
The legal opinion says that if the UK refuses to hold the election, the EU Commission could initiate treaty infringement proceedings against London. It says that British citizens could also take the government to court for “violating their subjective rights to exercise their active and passive right to vote”.
The Bundestag’s assessment highlights the uncertainties stemming from a decision to bypass EU treaty-bound obligations. The issue is also preoccupying Brussels lawyers.
Some German MPs expressed disagreement with the Bundestag’s legal opinion. “My sense is that it should be possible to interpret Article 50 in such a way that the country exiting the EU is not obliged to hold European elections,” said Detlef Seif, an MP for Ms Merkel’s Christian Democrats, who is the party’s point person on Brexit.
He stressed, however, that the UK could not cancel the election unilaterally but would have to do so in co-ordination with the EU27.
Mr Seif said he would also be asking Jean-Claude Juncker, the EU Commission president, to request a legal opinion on the issue from the European Court of Justice.
The court has already intervened on legal aspects of Brexit, ruling in December that the UK could cancel its bid to leave the EU without the permission of the other 27 members of the bloc. The ECJ judges ruled this could be done without altering the terms of Britain’s membership.