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UK able to revoke article 50 notice: advocate general

4 December 2018

The UK can legally decide on its own to reverse its decision to leave the European Union, according to an advocate general of the EU Court of Justice.

Giving his opinion in the case brought by a group of MPs, MSPs and MEPs led by Andy Wightman MSP, Advocate General Campos Sánchez-Bordona proposes that the Court of Justice should declare that article 50 of the Treaty on the European Union allows the unilateral revocation of the notification of the intention to withdraw from the EU, until such time as a withdrawal agreement is formally concluded.

In response to the UK Government's contention that the question referred for a preliminary ruling is inadmissible, given that it is hypothetical and merely theoretical, the advocate general considers that none of the conditions by which a reference for a preliminary ruling should be declared inadmissible are satisfied. He believes the dispute is genuine, and that the question is not merely academic, nor premature or superfluous, but has obvious practical importance and is essential in order to resolve the dispute.

Mr Sánchez-Bordona proposes that the Court of Justice should declare that article 50 allows unilateral revocation until such time as the withdrawal agreement is formally concluded, provided that revocation has been decided in accordance with the member state’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice.

He points out that in terms of the relevant provisions of the Vienna Convention on the Law of Treaties, on which article 50 is based, notifications of withdrawal from an international treaty may be revoked at any time before they take effect. Withdrawal from an international treaty, which is the reverse of a treaty-making power, is by definition a unilateral act of a state party and a manifestation of its sovereignty. Unilateral revocation would also be a manifestation of the sovereignty of the departing member state, which chooses to reverse its initial decision.

Other reasons include that by article 50(2), 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; that the first phase of the procedure, in which the member state decides to withdraw from the EU in accordance with its own constitutional requirements, is projected onto the subsequent phase (of negotiating the terms of its withdrawal), in such a way that if the withdrawal decision is revoked in accordance with the departing state’s constitutional procedures, its constitutional foundation will disappear; and that the rejection of revocation would in practice entail the forced exit from the EU of a state which continued to be a member state in all respects, and it would be illogical to force that member state to withdraw from the EU in order to then have to negotiate its accession.

The Advocate General describes article 50 as "an expression of the principle of respect for the national identities of the member states", in allowing them to withdraw if they consider that that national identity is incompatible with EU membership. Conversely, there is no reason why a member state may not link its identity to its integration into the EU, and not placing obstacles in the way of a member state that decides to leave the EU, but then changes its stance, is "an especially appropriate interpretative approach", which accords with the objective of advancing the process of integration. That approach is, in addition, the most favourable to the protection of the rights acquired by EU citizens, which the withdrawal of a member state will inevitably restrict.

The conditions Mr Sánchez-Bordona would place are that, first, like the notification of the intention to withdraw, the unilateral revocation must be notified by a formal act to the European Council. Secondly, it must respect national constitutional requirements: if, as in the UK, prior parliamentary authorisation is required for notification of the intention to withdraw, it is logical that the revocation of that notification also requires parliamentary approval. Revocation is also possible only within the two-year period that begins when the intention to withdraw is notified; and the principles of good faith and sincere cooperation must also be observed, in order to prevent abuse of the article 50 procedure.

He rejects the contention that article 50 only allows the possibility, put forward by the Commission and the Council, of a revocation following a unanimous decision of the European Council. While a revocation by mutual consent is possible, this would not prejudice unilateral revocation. To accept that the European Council, acting by unanimity, should have the last word on the revocation would increase the risk of the member state leaving the EU against its will.

The 27 judges who heard the case will now consider their final ruling, which it is hoped will be delivered before the vote on the UK's Withdrawal Agreement in the House of Commons on Tuesday 11 December.

Click here to access the opinion.

 

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