Professor Steve Peers, University of Essex

The recent definitive ruling by the Full Court concerning the Wightman case reaffirms the UK’s ability to independently revoke its withdrawal notification from the EU under the most flexible terms. This judgment aligns with the non-binding opinion given the previous week by an Advocate-General.

The judgment

The Court dismissed the UK government’s claim of the case being hypothetical, emphasizing the imminent involvement of some litigants (who are MPs) in voting on the proposed withdrawal agreement. It upheld its standard practice of respecting national courts’ decisions to seek clarification from the CJEU on EU law matters, thereby assuming the relevance of the case.

In its assessment, the Court maintained its usual approach of interpreting EU law in light of its text, objectives, context, and the broader framework of EU law. It noted that the text of Article 50 TEU, which outlines the withdrawal process, doesn’t explicitly address the revocation of a withdrawal notification. However, the Court emphasized that Article 50 refers to notifying an “intention” to withdraw, and an intention, by nature, is neither absolute nor irreversible.

Recognizing the unilateral nature of the withdrawal decision, made by a Member State following its own constitutional procedures, the Court decided:

“the Member State is not required to take its decision [to withdraw] in concert with the other Member States or with the EU institutions. The decision to withdraw is for that Member State alone to take, in accordance with its constitutional requirements, and therefore depends solely on its sovereign choice.”

Regarding the aims of Article 50, the Court identified two primary goals: firstly, safeguarding the sovereign right of a Member State to exit the European Union, and secondly, establishing a mechanism for a structured withdrawal. It positioned the matter of revocation within the first objective, connecting it to the sovereign decision to withdraw and clarifying the timeframe for exercising the right of revocation:

“…the sovereign nature of the right of withdrawal enshrined in Article 50(1) TEU supports the conclusion that the Member State concerned has a right to revoke the notification of its intention to withdraw from the European Union, for as long as a withdrawal agreement concluded between the European Union 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 laid down in Article 50(3) TEU, possibly extended in accordance with that provision, has not expired.”

The judgment clarifies that the unilateral right to revoke the notification persists even if the Article 50 timeframe is extended (which necessitates unanimous agreement between the exiting Member State and the remaining 27 EU members). This point, crucial because an extension would likely be needed for another Brexit referendum in the UK, was not clear in the Advocate-General’s opinion.

Addressing the rules governing unilateral revocation, the Court, given the silence of Article 50, determined that the same rules should apply as those governing the initial notification: ‘it may be decided upon unilaterally, in accordance with the constitutional requirements of the Member State concerned.’ It confirmed that a revocation would maintain the UK’s existing status as an EU Member State, as it reflects ‘a sovereign decision by that State to retain its status as a Member State of the European Union, a status which is not suspended or altered by that notification’ (reiterating the CJEU’s earlier judgment in RO), ‘subject only to the provisions of Article 50(4) TEU’ (which states that a departing Member State doesn’t participate in EU decisions regarding the withdrawal agreement). This revocation ‘is fundamentally different’ from requesting an extension of the Article 50 period, which needs unanimous consent from the EU27. This refutes the analogy with the second objective of Article 50, as advocated by the EU Commission and Council.

Examining the context of Article 50, the Court emphasized the Treaty’s goals of “ever closer union among the peoples of Europe,” EU citizenship, and the values of liberty and democracy. It highlighted that the European Union consists of States that have willingly committed to these values and that any Member State’s withdrawal could significantly impact the rights of all Union citizens, including freedom of movement for both nationals of that State and those of other Member States. Therefore, ‘given that a State cannot be forced to accede to the European Union against its will, neither can it be forced to withdraw from the European Union against its will,’ which would occur if a ‘Member State could be forced to leave the European Union despite its wish — as expressed through its democratic process in accordance with its constitutional requirements — to reverse its decision to withdraw and, accordingly, to remain a Member of the European Union’.

The Court also considered the drafting process of the earlier version of Article 50, where various proposed amendments were rejected because they didn’t ensure the voluntary and unilateral nature of the withdrawal decision, as explicitly stated in the draft’s comments. Furthermore, the Court’s conclusions were supported by the Vienna Convention on the Law of Treaties, which was considered during the drafting of the earlier Article 50. This Convention clearly states that a withdrawal notification from a treaty can be revoked anytime before it comes into effect.

Rejecting the Council and Commission’s argument that revocation needs unanimous consent, the Court argued that this would change a unilateral sovereign right into a conditional right contingent on an approval procedure. This, it stated, would contradict the principle that a Member State can’t be forced out of the European Union against its will.

Finally, the Court outlined the conditions for revocation:

“…must, first, be submitted in writing to the European Council and, secondly, be unequivocal and unconditional, that is to say that the purpose of that revocation is to confirm the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State, and that revocation brings the withdrawal procedure to an end.”

The Court doesn’t address the Council and Commission’s argument, discussed by the Advocate-General, that revocation should include a “good faith” element.

Comments

The Court’s judgment might not influence the political probability of the UK reversing Brexit, which remains unlikely. While it reduces the potential obstacles to a U-turn by the UK, this might only solidify the determination of Brexit proponents rather than change their stance.

From a legal standpoint, this ruling, even more than the Advocate-General’s opinion, strongly backs the unilateral revocation of a notification under the most straightforward conditions. The admissibility of the case is not unexpected considering the prior case law that defers to national courts. As noted by the Court, Article 50’s silence on the matter doesn’t necessarily offer a solution. However, the Court rightly pointed out the explicit reference to an intention to withdraw within Article 50’s wording.

The Court’s decision on the unilateral nature of the initial withdrawal notification supports the recent EU General Court ruling in Shindler regarding the nature of the UK’s initial decision, which wasn’t subject to approval or filtering by the EU institutions upon receiving the notification. The parallel drawn in today’s judgment between notification and revocation suggests that if Shindler is upheld on appeal on this point, which it logically should be, the EU institutions might not have the authority to review the revocation, as long as it fulfills the minimal conditions outlined by the Court (discussed further below).

The crux of the judgment seems to lie in the Court’s interpretation of Article 50 as having two objectives, categorizing the revocation of notification as part of the first objective—the decision-making process of withdrawal—instead of the second—the structured withdrawal process. Consequently, the Court drew an analogy with the unilateral aspect of the withdrawal decision rather than the bilateral aspect of the withdrawal agreement negotiation process, particularly the unanimous requirement to prolong that process.

Regarding the reference to international law, it deviates from the usual autonomy of EU law from international law that the Court itself acknowledges at the beginning of the judgment. However, the Court justifies this by stating that the drafters of what became Article 50 did consider the Vienna Convention. Nevertheless, this reference plays a secondary role in the Court’s reasoning.

Finally, concerning the conditions for revocation, submitting it in writing is straightforward: the EU institutions could likely determine the genuineness of a revocation given the publicity surrounding such an event. The need for an ‘unequivocal and unconditional’ revocation, effectively ending the withdrawal process with unchanged terms, implies that the revocation notification must confirm that the UK doesn’t intend to renegotiate its membership or submit another notification soon after. This implicitly suggests that if the UK’s revocation implied either, the question of the European Council’s response would arise. The Council could either reject the notification, potentially leading to a challenge by the UK, or address the issue when it arises, either refusing to renegotiate membership or (more problematically) accepting a fresh withdrawal notification shortly after a revocation of the first (again, this decision could then be challenged).

However, unlike the Advocate-General, the Court doesn’t mention the domestic procedures leading to revocation, stating only that it must align with the UK’s constitutional requirements. In Shindler, the General Court ruled that these requirements were not for the EU institutions to judge but for the UK’s national courts and political bodies, with the caveat that a national court might consult the CJEU on the compatibility of a specific requirement with EU law.

In conclusion, legally, the path is clear for the UK to make a U-turn if it chooses to. However, this remains irrelevant as long as the current stance persists. Whether there will be a change of heart, either by the current leadership or a new one, is yet to be seen.

Barnard & Peers: chapter 27

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