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(LUXEMBOURG) – Article 50 of the EU Treaty does allow the unilateral revocation by Britain of its notification of intention to withdraw from the EU, the advocate-general of the EU’s top Court said in an Opinion Tuesday.
The revocation possibility would continue to exist until such time as the withdrawal agreement is formally concluded, Advocate General Campos Sanchez-Bordona said in a landmark decision which could affect the upcoming vote in the House of Commons over whether to approve PM Theresa May’s draft Brexit deal.
The Opinion is not legally binding on the Court of Justice, but the majority (around 80 per cent) of Opinions are upheld. It is important because it gives encouragement to those trying to prevent Brexit, most likely through a ‘People’s Vote referendum.
The case was brought to the European Court by a cross-party group of Scottish politicians, and opposed by the UK Government.
A member of the group, Catherine Stihler, Labour MEP for Scotland, welcomed the Advocate General’s Opinion. “He has made clear that the UK can stop the ticking clock of Brexit before it is too late,” she said. “If judges accept his opinion, the UK will have the option of halting the process, and will be able to offer the chance to keep the best deal we have as a member of the EU through a People’s Vote rather than choosing between Theresa May’s bad deal or a catastrophic no-deal scenario.”
With the British Parliament about to vote on final approval of the deal, the group considered that if the notice of the intention to withdraw were revocable, it would open the possibility for the UK to remain in the EU in the face of an unsatisfactory Brexit.
The UK Government contended that the question referred for a preliminary ruling is inadmissible, given that it is hypothetical and theoretical.
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 and is formally notified to the European Council.
Withdrawal from an international treaty – the reverse of a treaty-making power – is by definition a unilateral act of a State party and a manifestation of its sovereignty, says the Advocate General . Unilateral revocation would also be a manifestation of the sovereignty of the departing Member State, which chooses to reverse its initial decision.
The Advocate General gives various reasons in favour of the notification of the intention to withdraw being unilaterally revocable. First, the conclusion of an agreement is not a prerequisite for the withdrawal to be completed. Secondly, Article 50(2) 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. Thirdly, the unilateral nature of the first phase of the procedure under Article 50 TEU, 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 with the EU institutions), in such a way that if the withdrawal decision is revoked in accordance with the departing Member State’s constitutional procedures, its constitutional foundation will disappear. Lastly, the rejection of revocation would in practice entail the forced exit from the EU of a State which, according to the Court of Justice’s recent case-law, continues to be an EU Member State in all respects. It would be illogical to force that Member State to withdraw from the EU in order to then have to negotiate its accession. In the Advocate General’s view, the legal acts adopted by reason of the negotiations are measures concerned with the negotiation or agreements adopted with a view to the future withdrawal, and do not preclude the notification of the intention to withdraw from being unilaterally revoked.
In the view of Mr Campos Sanchez-Bordona, not placing obstacles in the way of the continued EU membership of a Member State that decides to leave the EU, but then changes its stance, in accordance with its constitutional requirements, and wishes to continue being a member, is an especially appropriate interpretative approach. 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.
However, that possibility of unilateral revocation is subject to certain conditions and limits. 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 is the case in the UK, prior parliamentary authorisation is required for the notification of the intention to withdraw, it is logical that the revocation of that notification also requires parliamentary approval.
The Advocate General also states that there is no need for a unanimous decision of the European Council for revocation. In his opinion, a revocation by mutual consent of the departing Member State which changes its position and the EU institutions with which it is negotiating its withdrawal is possible.
Opinion of the Advocate General in the case C-621/18 – Wightman and Others
