Ronan McCrea, Professor of Constitutional and European Law, University College London
The Court of Justice of the European Union (CJEU) ruling in the Wightman case offers valuable insights into the Brexit process. The Court affirmed that the UK could unilaterally withdraw its intention to leave the EU, without needing approval from the remaining 27 EU members.
While this is a significant development that could empower those advocating for a second referendum with the option to remain in the EU, the CJEU ruling is ultimately inadequate. It lacks clear guidance on key aspects of revoking Article 50.
The Court outlined the following conditions for unilateral revocation:
Revocation must occur before the Withdrawal Agreement takes effect (or within the two-year period after notification if there’s no agreement),
Revocation must be communicated in writing to the European Council, following a decision made according to the Member State’s constitutional rules,
Revocation must be “unequivocal and unconditional,” signifying a clear intention to maintain EU membership.
However, the Court’s criteria omit the Advocate General’s suggestion that revocation should be sincere and in good faith. This omission is noteworthy, as applying such a condition could prove highly challenging.
The Court’s clarification is beneficial. It confirms that if the UK reconsiders Brexit, takes steps to reverse the decision in line with its constitutional processes, and formally notifies the European Council before March (or a later agreed-upon date), it can remain in the EU under its current terms.
This clarification is crucial, as it dispels previous assumptions that remaining in the EU might require consent from other Member States, potentially allowing them to exploit the UK’s position and remove existing benefits like the budget rebate.
Whether a valid revocation necessitates a referendum under EU law remains unclear. While the Court’s ruling mentions a “democratic process” three times, the operative section omits this, focusing solely on “constitutional requirements.”
Some argue that reversing Brexit without a referendum would be undemocratic. However, representative democracy is a legitimate form of decision-making. Moreover, in the UK system, Parliament holds supreme legislative power. Therefore, a parliamentary decision to reverse Brexit would align with constitutional requirements and likely face no opposition from the CJEU (regardless of its political improbability).
Thanks to the CJEU ruling, we now know that if these conditions are met and the UK decides to revoke Brexit before March 2019, it can remain in the EU under its current terms.
While this information is somewhat helpful, its practical value is limited. It’s highly unlikely that the UK will make a firm decision to reverse Brexit in the next few months.
The UCL Constitution Unit highlights that organizing a new referendum would take at least 22 weeks. Even if the UK government opts for a referendum to overturn Brexit, it would likely need to secure an extension to the Article 50 timeframe from the other 27 Member States. Whether they would agree without a guarantee of the UK government campaigning to remain is uncertain.
More importantly, the Court’s judgment doesn’t adequately address the likely scenario of the UK seeking revocation without a definitive decision to stay in the EU. This potential for exploiting the right of unilateral revocation was central to the Commission and Council’s arguments in Wightman. The Court offers little guidance on this crucial issue.
Consider these scenarios, each as plausible as the UK firmly deciding to reverse Brexit before March 2019:
The UK government seeks to revoke Article 50 in early March 2019 but states that this decision needs subsequent ratification through a British referendum.
The UK government revokes Article 50, declaring its intention to stay in the EU. However, three months later, it triggers Article 50 again due to changing political circumstances.
The UK revokes Article 50, claiming to end the current exit process, but clearly intends to restart the process soon (with better preparation and a clearer vision).
In each scenario, the revocation is legally clear but politically ambiguous (or later revealed as such). This appears to be an abuse of the revocation right, potentially allowing the UK to bypass Article 50’s strict two-year timeframe. While this theoretically contradicts the “unequivocal” requirement in Wightman and could be challenged, the process for such a challenge is unclear.
Since revocation is unilateral and lacks a formal acceptance from the Council, challenging it directly is difficult. A Member State or EU institution could potentially petition the General Court to annul the UK’s revocation. Alternatively, given the sovereign nature of revocation, they could seek a declaration that the act holds no legal weight within the EU, arguing its failure to meet the Wightman criteria. Without intervention, an ambiguous revocation would stand, seemingly contradicting the Wightman judgment and undermining the time limits within Article 50.
If the EU courts intervened and annulled the revocation, enforcing that ruling would be highly complex. In scenario two, the Court would retrospectively annul a past revocation. This would mean the UK technically left the EU back in March 2019 without realizing it.
Even in scenarios one and three, any EU court ruling would likely come close to or after the Article 50 two-year deadline. This could result in the chaotic and immediate expulsion of the UK from the EU, potentially leading to a no-deal Brexit. Such outcomes would create immense disruption and allow Brexit supporters to blame the Court of Justice for the chaos.
The EU courts might attempt to mitigate the disruption, as they have in the past, by delaying the annulment’s effect. However, this would thrust them into a political quagmire, forcing them to determine how much time the UK should have before a disorderly exit.
By granting a unilateral right to withdraw notification without allowing the Council to evaluate its sincerity or ambiguity, the Court of Justice becomes the sole institution responsible for preventing potential abuse. This compels it to intervene in inherently political matters, such as predicting the UK’s future actions or determining how much extra time to grant to avoid chaos.
Moreover, the Court’s process for exercising this self-granted role remains unknown. While implying a degree of scrutiny over revocations by requiring them to be unequivocal and final, the Court provides no guidance on how this scrutiny will operate. Given the Commission and Council’s concerns about potential abuse, this lack of clarity is deeply concerning.
The UK government argued against a ruling, claiming the question posed by the Scottish court was hypothetical, as they had not indicated a desire to withdraw their notification. However, once the Court decided to issue a ruling, it should have aimed for maximum clarity and practicality.
Regrettably, the ruling primarily applies to the improbable scenario of the UK definitively rejecting Brexit before March 2019 (or a later agreed date). It offers little guidance on the crucial issue of potential misuse of revocation to circumvent Article 50’s time constraints, which was a primary concern for the Commission and Council.
Consequently, political actors are left in the dark about the applicable law in most realistic scenarios. This increases the likelihood of further legal challenges and places the CJEU in the precarious position of ruling on inherently political matters, such as the UK government’s future actions. Additionally, any future rulings will be made closer to the Brexit deadline, creating a tense atmosphere and potentially turning the CJEU into a scapegoat for a no-deal Brexit.
In retrospect, the Court might regret not leaving inherently political issues—like judging the sincerity of an Article 50 revocation—to political bodies like the European Council.
Barnard & Peers: chapter 27
Photo credit: WiredUK