Photo Court of Justice of the European Union
(LUXEMBOURG) – The United Kingdom does have the right to revoke Brexit unilaterally, to remain in the EU under terms that are unchanged as regards its status as a Member State, the EU’s top Court confirmed Monday.
The ruling confirms last week’s Opinion by Court Advocate General Campos Sanchez-Bordona and comes in time to affect Tuesday’s upcoming vote in the House of Commons over whether to approve prime minister Theresa May’s draft Brexit deal.
Following the June 2016 referendum which produced a majority in favour leaving the European Union, a group of members of the UK Parliament, the Scottish Parliament and the European Parliament politicians asked for a judicial review to determine whether the notification referred to in Article 50 can be revoked unilaterally before the expiry of the two year period, with the effect that such revocation would result in the United Kingdom remaining in the EU.
Judgment was expedited on request, and in today’s ruling, the Full Court has ruled that, when a Member State has notified the European Council of its intention to withdraw from the European Union, as the UK has done, that Member State is free to revoke unilaterally that notification.
It says that possibility exists for as long as a withdrawal agreement concluded between the EU and that Member State has not entered into force or, if no such agreement has been concluded, for as long as the two-year period from the date of the notification of the intention to withdraw from the EU, and any possible extension, has not expired.
It adds that the revocation must be decided ‘following a democratic process in accordance with national constitutional requirements’.
Such a revocation 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.
In its reasoning, the Court acknowledges the effect the judgement could have of clarifying the options that are open to MPs who will decide on Tuesday on the ratification of the agreement negotiated between the UK and the EU.
The Court confirmed that the question which regards the interpretation of Article 50 of the Treaty of the European Union is ‘relevant and not hypothetical’.
It rules that Article 50 TEU does not explicitly address the subject of revocation. It neither expressly prohibits nor expressly authorises revocation.
That being the case, the Court notes that Article 50 TEU pursues two objectives, namely, first, that of enshrining the sovereign right of a Member State to withdraw from the European Union and, secondly, that of establishing a procedure to enable such a withdrawal to take place in an orderly fashion. According to the Court, the sovereign nature of the right of withdrawal supports the conclusion that the Member State concerned has a right to revoke the notification of its intention to withdraw from the EU for as long as a withdrawal agreement has not entered into force or, if no such agreement has been concluded, for as long as the two-year period, and any possible extension, has not expired.
In the absence of an express provision governing revocation of the notification of the intention to withdraw, that revocation is subject to the rules laid down in Article 50(1) TEU for the withdrawal itself, with the result that it may be decided unilaterally, in accordance with the constitutional requirements of the Member State concerned.
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.
The Court considers that 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 from the EU in accordance with its constitutional rules and following a democratic process, decides 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.
Judgment in Case C-621/18 Wightman and Others v Secretary of State for Exiting the European Union
