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UK can reverse article 50 notice, EU court rules

10 December 2018

The UK is free to revoke the notice given of its intention to leave the European Union, without requiring the consent of other member states, the EU Court of Justice ruled today.

A full court of 27 judges gave the decision in the case brought by six MPs, MSPs and MEPs led by Green MSP Andy Wightman, seeking a reference on the question. The Court of Session agreed that the EU court should be asked to rule on the issue, despite opposition from the UK Government which argued that it was purely hypothetical as there was no intention of reversing the decision to leave.

In line with the opinion given last week by Advocate General Campos Sánchez-Bordona, the court held that a member state that had given notice under article 50 of the Treaty was free to revoke it unilaterally, for as long as a withdrawal agreement had not entered into force or, if no such agreement had been concluded, for as long as the two-year period from the date of the notification of the intention to withdraw, and any possible extension, had not expired.

Any revocation would have to be decided following a democratic process in accordance with national constitutional requirements, and an unequivocal and unconditional decision communicated in writing to the European Council.

Such a revocation, the judges added, "confirms the EU membership of the member state concerned under terms that are unchanged as regards its status as a member state and brings the withdrawal procedure to an end".

Rejecting the UK Government's position that it should decline to consider the case, they accepted that the judgment of the Court of Session (giving effect to the ruling) would have the effect of clarifying the options open to MPs who have to decide on the ratification of the agreement negotiated between the UK and the EU, and that the question referred was relevant and not hypothetical.

On the main question, the court said that article 50 pursues two objectives: first, that of enshrining the sovereign right of a member state to withdraw from the EU and, secondly, that of establishing a procedure to enable such a withdrawal to take place in an orderly fashion. The sovereign nature of the right of withdrawal, the judges stated, "supports the conclusion that the member state concerned has a right to revoke the notification of its intention to withdraw from the EU", provided the necessary conditions were fulfilled.

"The revocation by a member state of the notification of its intention to withdraw reflects a sovereign decision to retain its status as a member state of the European Union, a status which is neither suspended nor altered by that notification."

It would be inconsistent with the EU Treaties’ purpose of creating an ever closer union among the peoples of Europe to force the withdrawal of a member state which, having notified its intention to withdraw in accordance with its constitutional rules and following a democratic process, decided to revoke the notification of that intention through a democratic process.

"To subject that right to revoke to the unanimous approval of the European Council as the Commission and Council proposed, would transform a unilateral sovereign right into a conditional right and would be incompatible with the principle that a member state cannot be forced to leave the European Union against its will."

Aidan O'Neill QC, counsel for the politicians who brought the case, said the decision meant that "it is open to Parliament, if so minded, to 'call off Brexit' so that the UK stays in the EU on its existing terms.

"This would involve the UK keeping the pound, maintaining its border controls, and holding on to its current EU budget rebate, while continuing to benefit from frictionless and tariff-free trade within the European Union and profiting from the free trade deals which the EU is able to conclude, from a position of world market strength, with third countries outside the EU".

The Scottish politicians – Andy Wightman MSP, Ross Greer MSP, Alyn Smith MEP, David Martin MEP, Catherine Stihler MEP, and Joanna Cherry QC, MP – were supported throughout this case by Jolyon Maugham QC, director of the Good Law Project, who organised crowdfunding support.

Mr Maugham commented after the decision: "The tiny Good Law Project and six brave Scottish parliamentarians have taken on the Government, the other 27 member states and the Commission – and won. This is the biggest upset since the First Book of Samuel and arguably the most impotant case in modern domestic legal history." He called on MPs to "find the moral courage to put the country's interests before private ambition".

He concluded: "We are enormously grateful for the assistance of a committed and talented legal team."

In addition to Mr O'Neill, who was instructed by Elaine Motion, chairman of solicitors Balfour+ Manson, the petitioners were represented by David Welsh, advocate and, before the European Court of Justice in Luxembourg, also by Maya Lester QC and Professor Piet Eeckhout.

Click here to access the judgment and other case papers.

 

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