ECJ opinion: UK could reverse Brexit - "under certain conditions"

The Advocate General of the European Union Court of Justice, Campos Sánchez-Bordona, gave his opinion this morning, 4 December 2018, that “Article 50 TFEU - notification of the intention to withdraw from the EU [Brexit] - can be revoked unilaterally under certain conditions”.

Whilst this is not a legally binding decision, it would be unusual for the Court to go against the opinion of the Advocate General.   The opinion has been fast-tracked in view of the urgency of the case – and has been delivered ahead of the UK Parliamentary debate that opens later today.

However, the option for unilateral revocation remains open only until the Withdrawal Agreement is formally concluded – and the process to accept and conclude the Agreement, whilst complex, is progressing.

Press release: https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-12/cp180187en.pdf

1 minute read

Luxembourg, 4 December 2018

Advocate General’s Opinion.  Case C-621/18: Wightman and Others v Secretary of State for Exiting the European Union

Summary

Advocate General Campos Sánchez-Bordona proposes that the Court of Justice should declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU.

That possibility continues to exist until such time as the Withdrawal Agreement is formally concluded – 115 days from now at 23:00 GMT on 29 March 2019.

Background

Various MSPs, MPs and MEPs, a Scottish court, the Court of Session, Inner House, First Division (UK), asked the Court of Justice whether a Member State which has notified the European Council of its intention to withdraw from the EU in accordance with Article 50 TEU may unilaterally revoke that notification and, if so, subject to what conditions.

If the notice of the intention to withdraw were revocable, this would open the possibility for the UK to remain in the EU in the face of an unsatisfactory Brexit.

The UK Government contends that the question is hypothetical since there is no indication that the UK Government or Parliament are going to revoke the notification of the intention to withdraw.

According to the Advocate General, the question is not merely academic and has obvious practical importance.   The Court of Justice has the power to interpret Article 50 TEU definitively.

The Advocate General proposes that the Court of Justice should, in its future judgment, declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU, until such time as the withdrawal agreement is formally concluded, provided that the revocation has been decided upon in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice.

Article 50 TEU states that a Member State which decides to withdraw is to notify the European Council of ‘its intention’ — and not of its decision — to withdraw, and such an intention may change.

Rejection of revocation would in practice entail the forced exit from the EU of a State which is presently an EU Member State in all respects.

However, unilateral revocation is subject to certain conditions and limits:

the notification of the intention to withdraw, the unilateral revocation must be notified by a formal act to the European Council;

it must respect national constitutional requirements - in the case of the UK, parliamentary authorisation was required for notification of the intention to withdraw, it is logical that the revocation of that notification also requires parliamentary approval;

there is a time limit on the possibility of revocation, since revocation is possible only within the two-year period that begins when the intention to withdraw is notified.

The Advocate General rejects the contention that Article 50 TEU only allows the possibility, put forward by the Commission and the Council, of a revocation following a unanimous decision of the European Council.  To accept that the European Council, acting by unanimity, should have the last word on the revocation increases the risk of the Member State leaving the EU against its will.

NOTE: The Advocate General’s Opinion is not binding on the Court of Justice.  It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible.  The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.

NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which have been brought before them, to refer questions to the Court of Justice about the interpretation of European Union law or the validity of a European Union act.  The Court of Justice does not decide the dispute itself.  It is for the national court or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.

 
John ShuttleworthComment