How Brexit may harm the new EU parliament

Far from being a punishment, this is a necessity to preserve EU citizens living in the UK, as well as the integrity of the European Parliament as a whole (what if the UK should eventually stay in the EU?).

Yet this could irremediably do exactly the opposite.

Holding EU elections in the UK is set to fatally affect the good functioning of the next European Parliament - as well as the entire Union - for the five years to come.

The British participation in the elections is set to distort the new political balance emerging within the next parliament (the 73 UK MEPs are set to leave the assembly upon Brexit), but also to irremediably tarnish the validity of the parliament's future decisions.

This is true for at least three reasons, starting with the faulty representation of MEPs

Representation

The EU treaties require representation of citizens in the European Parliament to be "degressively proportional" to the population of each member state, with minimum six and maxium 96 MEPs per member state.

Before the start of each parliamentary term, the European Council must decide the composition of the upcoming European Parliament by reallocating the seats across countries to respect the above-mentioned requirements.

In June 2018, by taking into account Brexit (-73 MEPs), it decided that the new assembly will be composed of 705 MEPs (751 today) by awarding 27 extra seats to 14 member states: Denmark (+1), Estonia (+1), Ireland (+2), Spain (+5), France (+5), Croatia (+1), Italy (+3), Netherlands (+3), Austria (+1), Poland (+1), Romania (+1), Slovakia (+1), Finland (+1) and Sweden (+1).

However, by maintaining the current composition of the European Parliament, the treaty requirement according to which representation of citizens shall be "degressively proportional" would no longer be met.

The larger its population, the greater a member state's entitlement to a large number of MEPs.

Nevertheless, the "degressivity" requirement adds to this that for each member state, the ratio population/number of MEPs shall vary in such a way that each MEP from a more populous member state represents more citizens than any MEP from a less populous one.

Take now the example of Hungary (currently 21 MEPs) and Sweden (20 MEPs).

According to the post-Brexit allocation of seats, Sweden will have 21 seats, but if you keep the former allocation of seats, Sweden would keep fewer seats than Hungary while its population is now larger than the population of Hungary.

Citizens of some member states would be overrepresented compared to others - yet another breach of the treaties.

Length of mandate

In a second problem, MEPs are meant to be elected for five years, not fewer.

Should the Brits hold EU elections, the 73 MEPs elected in the UK would be kicked out of the European Parliament on Brexit day.

Only then the 27 extra MEPs in the 14 member states above-mentioned would take up their office.

This means that those 27 MEPs-elect will find themselves in an unparalleled situation at the end of May. They would have to wait the UK's withdrawal - be it orderly or not - from the Union to take up their mandate.

On one hand, these soon-to-be MEPs could argue that the treaties ensure them a term of five years, not fewer, and require to start their position as soon as 2 July, when the new European Parliament will be sitting for the first time.

On the other hand, "temporarily" elected British MEPs could invoke the same provision to stay after the UK's withdrawal.

This would lead the new European Parliament to have a record number of 778 MEPs.

This situation is manifestly illegal insofar as it goes against the maximum number of 751 MEPs foreseen by the treaties.

Who is who?

In a third question - who would be the voters and the candidates?

EU citizens have the right to vote and stand as candidates in EU elections in their member state of residence or in their member state of origin.

However, if the UK eventually holds EU elections, it might be too late for UK citizens resident in the EU and the EU residents in the UK to actually vote.

Indeed, both UK citizens living in another member state and EU27 citizens living in the UK should have the choice between voting or standing in their member state of residence or in their member state of origin.

But we are far too close to the election days to allow for a real choice.

Add to this chaos that we do not know when or if the UK will actually take the decision to hold EU elections (this must occur at the latest by April 15).

In sum, these mobile EU citizens, the incoming extra-MEPs from the EU27, and the outgoing UK MEPs are set to fall under a legal limbo as a result of Brexit.

How to get out of the legal impasse, if at all?

The best way to get out of this is to revise the treaties accordingly.

A revision of the treaties is however time-consuming and costly, whereas EU member states have other issues to work on before the forthcoming EU elections.

To maintain current UK-elected MEPs in office or enable British MPs to represent EU citizens living in the UK in the European Parliament would also likely require treaty changes.

The UK is set to slip as a Trojan Horse in the new European Parliament, but nobody is watching it.